State of Kansas, Appellee, v. Michael James Haffner, Appellant. (2026)

MEMORANDUM OPINION

Michael James Haffner pled guilty to two felony drug possession charges and another nondrug charge in three nonconsolidated cases. He was sentenced in all three cases at the same time. The district court treated both drug possession convictions as a third or subsequent offense even though Haffner only had one prior possession conviction. Under K.S.A. 21-6805(f)(1), otherwise known as “Special Rule 26,” the sentence for a third or subsequent felony drug possession conviction is presumptive prison.

On appeal, Haffner claims the district court erred by not designating one of his drug convictions as a second conviction, which is not subject to Special Rule 26. We agree and therefore vacate his sentences for his drug convictions and remand for resentencing.

Haffner also challenges the district court's assessment of jail credit in the sentences for his drug convictions. But we need not reach that issue given our disposition of his case.

Factual and Procedural Background

Haffner and the State reached a global plea agreement covering seven separate cases. In conformance with this agreement, Haffner pled guilty to aggravated residential burglary in case number 22-CR-663, possession of methamphetamine in case number 23-CR-413, and possession of methamphetamine in case number 23-CR-18. The State then dismissed the remaining charges in these three cases and dismissed charges in four other cases against Haffner. Both parties agreed to “recommend the middle number for each charge in each case and agree[d] that all cases run consecutive, for a controlling sentence of 120 months.” Haffner also agreed to serve 120 months and to not file for any departures.

A presentence investigation (PSI) report was created for each case, and each report showed that Haffner had one prior conviction for possession of methamphetamine under K.S.A. 21-5706. The PSI reports in cases 23-CR-18 and 23-CR-413 both indicated that Special Rule 26 should apply because they characterized the conviction in each case as a third or subsequent felony drug possession conviction.

At sentencing, Haffner objected to the application of Special Rule 26 to both cases and argued that one of his possession convictions should be considered as a second conviction. The district court overruled his objection and found both possession convictions were third or subsequent convictions. The court then followed the plea agreement and sentenced Haffner to 60 months in prison in case 22-CR-663, 30 months in prison in case 23-CR-18, and 30 months in prison for case 23-CR-413. It ran these three sentences consecutive for a total of 120 months in prison.

Haffner appealed his sentences for his drug convictions in cases 23-CR-18 and 23-CR-413, and we consolidated these cases on appeal.

Review of Haffner’s Appellate Challenge

The district court erred by finding Special Rule 26 applied to both of Haffner's convictions for possession of a controlled substance.

On appeal, Haffner claims the district court erred in determining his convictions for possession of methamphetamine in cases 23-CR-18 and 23-CR-413 were each third or subsequent convictions for purposes of Special Rule 26 under K.S.A. 21-6805(f)(1). The State, on the other hand, claims we lack jurisdiction over Haffner's claim because his sentences resulted from a plea agreement between the parties which the district court approved.

This court has jurisdiction to review whether the sentence conforms to the Kansas Sentencing Guidelines Act.

Under K.S.A. 21-6820(c)(2), an appellate court shall not review on appeal a sentence for a felony committed after July 1, 1993, that results from a plea agreement between the State and the defendant which the district court approved on the record. That said, under K.S.A. 22-3504(a), a court may correct an illegal sentence at any time while the defendant is serving the sentence. And an illegal sentence may be corrected for the first time on appeal or sua sponte. State v. Gomez, 320 Kan. 3, 22, 561 P.3d 908 (2025); State v. Zongker, 319 Kan. 411, 437, 555 P.3d 698 (2024).

An illegal sentence is a sentence: (1) imposed by a court without jurisdiction; (2) that does not conform to the applicable statutory provisions, either in character or the term of punishment; or (3) that is ambiguous about the time and manner in which it is to be served. K.S.A. 22-3504(c)(1); State v. Mitchell, 315 Kan. 156, 158, 505 P.3d 739 (2022).

The State contends we lack jurisdiction because both Haffner and the State agreed to recommend Haffner receive a 30-month prison sentence in each of the two cases. But as Haffner points out, Kansas appellate courts “do not allow the parties to agree upon or stipulate to an illegal sentence” and “[a]n illegal sentence may be corrected regardless of whether one or more parties may have had a hand in arriving at the illegality.” State v. Lehman, 308 Kan. 1089, 1093, 427 P.3d 840 (2018).

Haffner argues that the district court misinterpreted the Kansas Sentencing Guidelines Act, thus rendering his sentence illegal. Since we have jurisdiction to review illegal sentence claims, and a defendant cannot agree to an illegal sentence, we have jurisdiction over Haffner's appeal. See State v. Hankins, 304 Kan. 226, 231, 372 P.3d 1124 (2016).

Standard of Review

Whether a sentence is illegal is a question of law over which appellate courts exercise unlimited review. State v. Daniels, 319 Kan. 340, 342, 554 P.3d 629 (2024). Interpretation of a sentencing statute is a question of law, and the standard of review is unlimited. State v. Moore, 309 Kan. 825, 828, 441 P.3d 22 (2019).

For K.S.A. 21-6805(f)(1) to apply, there must be a second conviction.

When counting Haffner's drug convictions in case 23-CR-18, case 23-CR-413, and his prior drug conviction that was identified in his PSI reports, Haffner has a total of three drug convictions. Yet the district court counted both drug convictions in cases 23-CR-18 and 23-CR-413 as Haffner's third conviction, rather than designating one of them as his second conviction. Haffner says this was a mistake and so he should be resentenced in one of these cases for a second drug conviction instead of a third.

The question posed by Haffner's appeal was answered in State v. Bell, 65 Kan. App. 2d 160, Syl. ¶ 1, 561 P.3d 562 (2024). There, we discussed how under K.S.A. 21-6805(f)(1), a district court cannot impose a presumptive prison sentence for a third or subsequent felony conviction of unlawful possession of a controlled substance without finding a preexisting first and second conviction of the unlawful possession of a controlled substance:

“Under K.S.A. 21-6805(f)(1), to allow both convictions in these concurrent cases—where there is one existing prior felony drug conviction—to both be treated as a third conviction which requires a presumptive prison sentence is inconsistent with the Legislature's intent under K.S.A. 21-6805(f)(1). Under these circumstances, a defendant would never have a second conviction. This simply defies logical explanation.

“Clearly, the Legislature understood the concept of an ordered series, as evidenced in K.S.A[.] 21-6805. The ordered series addressed by our court in Unruh was K.S.A. 21-6805(e), directing a sentence for a ‘second or subsequent’ conviction of unlawful manufacturing of a controlled substance. In Unruh, our court found that to have a second conviction, there must logically be a first conviction.

“Likewise, in the ordered sequence set out in the next subsection, K.S.A. 21-6805(f)(1), the concept of a ‘third or subsequent’ conviction inherently implies the existence of intermediate convictions—that is, both a first and a second. The first conviction must be followed by a second, and the second must be followed by a third. But by the structure of ordered sequences, the existence of a second is required.” 65 Kan. App. 2d at 168-69.

While the State acknowledges our holding in Bell, it repeats the arguments it made in that case, urging a different result. We are similarly unpersuaded.

The State contends the district court here did not err because the court properly considered Haffner's convictions in all three cases as “prior convictions” at sentencing. It relies on K.S.A. 21-6810(a) to support this point, which defines a “prior conviction” as “any conviction ․ which occurred prior to sentencing in the current case, regardless of whether the offense that led to the prior conviction occurred before or after the current offense or the conviction in the current case.” It also relies on the “inclusive rule,” which holds that prior convictions include other convictions occurring on the same date in different cases under a joint plea agreement. State v. Shipley, 62 Kan. App. 2d 272, 280-81, 510 P.3d 1194 (2022).

But the State's argument misses the mark. The issue is not whether the district court could consider one of Haffner's convictions in case 23-CR-413 and case 23-CR-18 as a third conviction. It is the fact that the district court double-counted one of his convictions by considering both convictions as third convictions. In total, Haffner had three drug convictions; so only one of his drug convictions in case 23-CR-413 and case 23-CR-18 could be his third conviction.

We explained why the State's argument fails and how a district court should address this situation in Bell:

“Because Bell's first conviction was already designated, the only issue remaining, then, is which of his present convictions was his second conviction. On this topic, we have two primary thoughts. First, as illustrated by the facts of this case, a second and third conviction under this rule may occur simultaneously—in this way, the reading of K.S.A. 21-6805(f)(1) does not conflict with the inclusive rule found in K.S.A. 21-6810. Each statute is simply counting the concurrent but separate convictions for their individual purposes.

“Second, the designation of which conviction becomes second or third is left to the district court's discretion. Here, Bell was convicted in Case 1 and Case 2 on the same date, June 14, 2022. Defense counsel asked the district court to label Case 1 as the second conviction and to designate Case 2 as Bell's third conviction for purposes of K.S.A. 21-6805(f)(1). This would have been appropriate. If either case were to be designated as the second conviction, then logically, the other becomes the third. This would properly render only one of Bell's convictions qualified for the presumptive prison sentence under K.S.A. 21-6805(f)(1) as the third felony conviction. The other would merely be the second conviction and would not be subject to the presumptive prison sentence under K.S.A. 21-6805(f)(1).” 65 Kan. App. 2d at 169.

As in Bell, the district court here had to designate one of Haffner's current convictions as the second conviction. By failing to do so, the court erred by imposing the presumptive prison sentence under K.S.A. 21-6805(f)(1) on one of his convictions. For this reason, we vacate Haffner's sentences in cases 23-CR-18 and 23-CR-413, remand these cases to the district court with directions to designate a second and a third conviction, and resentence Haffner accordingly.

We pause to acknowledge the State's request that we affirm the district court's sentences for alternative reasons, based on the parties’ stipulations in the plea agreement. But, again, the parties’ agreement is irrelevant when it comes to an illegal sentence. See Lehman, 308 Kan. at 1093.

We also acknowledge that Haffner has challenged the district court's assessment of jail credit in his sentences in these two cases. Since we vacated his sentences and are remanding the cases for him to be resentenced, any consideration of Haffner's jail credit challenge would be advisory. See State v. Dunn, 313 Kan. 8, 11, 483 P.3d 446 (2021). Our Supreme Court has said: “Once an appellate court finds the district court imposed an illegal sentence, the court is limited to remanding on that issue with directions for the district court to impose a legal sentence.” State v. Tonge, 313 Kan. 3, Syl., 482 P.3d 1151 (2021). And the Kansas Supreme Court has also indicated that any further consideration on collateral issues related to an illegal sentence is advisory. Dunn, 313 Kan. at 11. When Haffner is resentenced, the district court can assess any applicable jail credit at that time. We therefore find Haffner's jail credit challenges to be moot.

Sentences vacated and case remanded with directions.

Cline, J.: