State v. Ali

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NOT DESIGNATED FOR PUBLICATION

No. 115,979

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

IBRAHEEM R. ALI,
Appellant.

MEMORANDUM OPINION

Appeal from Douglas District Court; SALLY D. POKORNY, judge. Opinion filed June 9, 2017.
Affirmed.

Adam M. Hall, of Collister & Kampschroeder, of Lawrence, for appellant.

Kate Duncan Butler, assistant district attorney, Charles E. Branson, district attorney, and Derek
Schmidt, attorney general, for appellee.

Before MCANANY, P.J., GREEN and BUSER, JJ.

Per Curiam: In 1993, Ibraheem R. Ali received consecutive prison sentences in
Case No. 92CR2631 and Case No. 92CR2870 for a series of burglaries. Later that year,
the district court reduced the prison term in Case No. 92CR2631 from 2 to 10 years to 1
to 5 years but denied Ali's request that his sentences be served concurrently. Ali's prison
term of 1 to 5 years in Case No. 92CR2631 was to run consecutively to his sentence of 5
to 20 years in Case No. 92CR2870 as originally ordered.

Ali was released on parole in December 1997. In March 1998, the State charged
Ali in Case No. 98CR332 with kidnapping and two counts of aggravated robbery. The
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presentence investigation report indicated that Ali's criminal history score was A and that
a special sentencing rule applied because Ali committed his crimes while on parole from
a felony conviction.

Ali did not object to his criminal history at sentencing. The district court sentenced
him to a controlling prison term of 194 months, noting in the journal entry the special
sentencing rule for crimes committed while on parole. The district court stated that Ali's
"[s]entence [was] to be served [c]onsecutively with Shawnee County Case Number
92CR2870." The sentence in Case No. 92CR2870 had been ordered to be served
consecutively to Ali's sentence in his first case, Case No. 92CR2631.

Ali filed a series of motions to correct his sentence in Case No. 98CR332. The
district court denied Ali's first motion to correct an illegal sentence based on State v.
Murdock, 299 Kan. 312, 318, 323 P.3d 846 (2014), overruled by State v. Keel, 302 Kan.
560, 357 P.3d 251 (2015), cert. denied 136 S. Ct. 865 (2016). Ali appealed. In the
meantime, Ali filed a second motion to correct an illegal sentence, contending that his
sentence was ambiguous. Before resolution of his appeal, the district court denied Ali's
second motion to correct an illegal sentence, rejecting his argument that his sentence was
ambiguous. Ali initially filed but then withdrew an appeal from the district court's ruling
on his second motion to correct an illegal sentence. Then, by order under Supreme Court
Rule 7.041 (2017 S. Kan. Ct. R. 48), we summarily affirmed the district court's denial of
Ali's first motion to correct an illegal sentence.

Soon afterward, Ali filed the present motion to correct an illegal sentence. In the
motion, Ali contended that his sentence was ambiguous with regard to the time and
manner in which it is to be served because the journal entry in Case No. 98CR332 failed
to adequately record whether all of his prison terms ran consecutively to each other.

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At the April 2016 hearing on Ali's motion, the district court denied relief, and Ali's
appeal brings the matter to us.

Ali does not argue that the sentences individually imposed in any of these three
cases are ambiguous. Rather, he claims that his "composite" sentence is illegal because it
is ambiguous as to whether his 194-month prison sentence in Case No. 98CR332 begins
to run immediately after he completes serving his sentence in Case No. 92CR2870. He
points out that the district court's journal entry does not state whether his sentence in Case
No. 98CR332 runs consecutively or concurrently to his sentence in Case No. 92CR2631.
He argues that "as a matter of law, in the absence of a statement regarding the relation of
[Case No. 98CR332] to all other [then existing] sentences, the resulting composite
sentence is ambiguous, and therefore illegal."

K.S.A. 22-3504(1) provides that a "court may correct an illegal sentence at any
time." A sentence is illegal if it is ambiguous with regard to the time and manner in
which it is to be served. State v. Neal, 292 Kan. 625, 630, 258 P.3d 365 (2011).

The State responds that no reasonable interpretation of the journal entry allows for
any of Ali's sentences to run concurrently. The State contends that the order of Ali's
sentences is clear: Ali first serves his sentence in Case No. 92CR2631, because that case
was first in time, then his sentence in Case No. 92CR2870, and then his sentence in Case
No. 98CR332.

It is clear to us that Ali's sentences, viewed as a whole, are unambiguous with
regard to the time and manner in which they are to be served. Ali received consecutive
prison sentences in Case No. 92CR2631 and Case No. 92CR2870. He was later placed on
parole. While on parole, he committed the new crimes for which he was sentenced in
Case No. 98CR332.

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K.S.A. 21-4608(c) (now K.S.A. 2016 Supp. 21-6606[c]) states: "Any person who
is convicted and sentenced for a crime committed while . . . on parole . . . for a felony
shall serve the sentence consecutively to the term or terms under which the person was
. . . on parole." Here, the district court marked in the journal entry that Ali was subject to
the special rule stated in K.S.A. 21-4608(c). Thus, because Ali was on parole when he
committed his crimes of conviction in Case No. 98CR332, the court was statutorily
required to impose the sentence in Case No. 98CR332 consecutively to Ali's sentences in
Case Nos. 92CR2870 and 92CR2631. The court so indicated by noting that this special
sentencing rule found in K.S.A. 21-4608(c) applied.

Thus, there is no ambiguity in Ali's sentences with regard to the time and manner
in which they are to be served. The district court correctly denied Ali's motion to correct
an illegal sentence.

Affirmed.