1

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 107,684

STATE OF KANSAS,

Appellee,

v.

KENNETH J. TAFOYA,

Appellant.

SYLLABUS BY THE COURT

1.

Whether a district court has complied with the mandate of an appellate court is a 

question of law over which we exercise plenary review.

2.

A sentence is effective when pronounced from the bench. A sentence is the 

judgment of the court which formally declares to the accused the legal consequences of 

his or her conviction. The final judgment in a criminal case is the sentence. Once 

sentence is pronounced and judgment entered, the district court loses jurisdiction over a 

criminal case except to correct arithmetic or clerical errors.

3.

A district court has no authority to modify unchallenged sentences following a 

remand by an appellate court except when modification is needed to correct arithmetic or 

clerical errors. The only other exception occurs when a sentence is determined to be 

illegal within the meaning of K.S.A. 22-3504. Thus, on remand from a higher court, 

absent narrow exceptions, a district court's jurisdiction to resentence or otherwise deviate 
2

from an already pronounced sentence is limited to the express instructions contained in 

the higher court's mandate.

4.

A sentence is not rendered illegal simply because the district court judge fails to 

consider (or fails to state on the record that he or she has considered) the financial 

resources of the defendant when determining either the discretionary amount of a fine or 

the discretionary method of payment. A remand from an appellate court to a district court 

to correct this error is not a remand for resentencing.

Review of the judgment of the Court of Appeals in an unpublished opinion filed December 12, 

2014. Appeal from Sedgwick District Court; BENJAMIN L. BURGESS, judge. Opinion filed June 17, 2016.

Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is 

affirmed.

Heather Cessna, of Kansas Appellate Defender Office, argued the cause and was on the brief for 

appellant. 

Julie A. Koon, assistant district attorney, argued the cause, and Nola Tedesco Foulston, district 

attorney, and Derek Schmidt, attorney general, were with her on the brief for appellee.

The opinion of the court was delivered by

STEGALL, J.: Kenneth. J. Tafoya was convicted by a jury in 2008 of one count of 

driving under the influence (DUI). Tafoya had three prior DUI convictions, all occurring 

in the 1990s. When Tafoya was sentenced in 2008, Kansas DUI sentencing statutes 

provided for a lifetime lookback period for purposes of classifying the current conviction 

as a second conviction, third conviction, etc. See K.S.A. 2010 Supp. 8-1567(o)(3).

Including his three prior convictions from the 1990s, Tafoya's 2008 conviction was 
3

properly classified as a fourth DUI, and Tafoya was sentenced accordingly to 180 days in 

jail, 12 months' postrelease supervision, and a mandatory $2,500 fine.

On direct appeal, the Court of Appeals ruled that the district court had erred by 

imposing a mandatory fine without making the necessary factual findings concerning 

Tafoya's financial condition. State v. Tafoya, No. 100,784, 2010 WL 5185473, at *9

(Kan. App. 2010) (unpublished opinion), rev. denied 293 Kan. 1113 (2011) (Tafoya I).

Specifically, the panel upheld Tafoya's conviction and sentencing for a fourth DUI but 

found that the district court erred by failing to consider community service under K.S.A. 

2006 Supp. 8-1567(j) in lieu of a direct payment of the fine. 2010 WL 5185473, at *9.

Announcing its holding on this point, the panel ordered that "Tafoya's fine must be 

vacated and the case must be remanded for reconsideration of the method of payment of 

the fine." 2010 WL 5185473, at *9. However, when summarizing the outcome of the 

appeal in the final sentence of the opinion, the Court of Appeals wrote: "Affirmed in 

part; sentence vacated and remanded for resentencing." 2010 WL 5185473, at *10.

After the Court of Appeals decision in Tafoya I, but before the district court held

the remand hearing as instructed by the panel, the legislature amended the DUI lookback 

provisions, effective July 1, 2011, to encompass only convictions occurring "on or after 

July 1, 2001." K.S.A. 2011 Supp. 8-1567(j)(3). Thus, at the time of the remand hearing in 

February 2012, Tafoya sought the benefit of the new, more limited lookback period 

which would have resulted in a resentencing for a first DUI, rather than a fourth DUI.

The district court ruled that it had no jurisdiction to resentence Tafoya because the panel's 

mandate was limited to "reconsideration of the method of payment of the fine." The 

district court simply allowed Tafoya to perform community service in lieu of a direct

payment of his mandatory DUI fine.
4

Tafoya again appealed and argued for a retroactive application of K.S.A. 2011 

Supp. 8-1567(j)(3) to his 2008 conviction. State v. Tafoya, No. 107,684, 2013 WL 

1457946 (Kan. App. 2013) (unpublished opinion) (Tafoya II). Another panel of the Court 

of Appeals had recently decided State v. Reese, ruling that the 2011 lookback period was 

not applicable to crimes committed prior to its effective date. 48 Kan. App. 2d 87, 283 

P.3d 233 (2012), rev'd 300 Kan. 650, 333 P.3d 149 (2014). Relying on the Court of 

Appeals' holding in Reese, the Tafoya II panel ruled that because Tafoya's conviction 

occurred in 2008, he was not entitled to the 2011 lookback period. 2013 WL 1457946, at 

*2-3. 

Soon after, however, while Tafoya's petition for review of Tafoya II was pending, 

we considered the decision of the Court of Appeals in Reese and reversed. State v. Reese, 

300 Kan. 650, 333 P.3d 149 (2014). There, we held that the question was not properly 

one of retroactive application. Rather, because the classification of a DUI conviction as a 

first conviction, second conviction, etc. was to occur "at the time of sentencing," the 2011 

lookback period applied "to all persons who are sentenced for DUI on or after the July 1, 

2011, effective date of the amended statute." 300 Kan. 650, Syl. In light of our decision 

in Reese, we granted a number of pending petitions for review affected by the Reese 

holding—including Tafoya's petition for review of the decision in Tafoya II—and then 

summarily vacated the decisions of the Court of Appeals and remanding the cases to the 

Court of Appeals for reconsideration in light of Reese.

The question on remand—and the question now before us in Tafoya's third trip to 

this court—was a simple one: When was Tafoya sentenced? If he was sentenced in 2008, 

the lifetime lookback provision was properly applied. If he was sentenced following the 

remand hearing in 2012, however, pursuant to Reese he would be entitled to the benefits 

of the 2011 lookback period. In Tafoya's case, the sentencing difference is significant.

The Court of Appeals again affirmed Tafoya's sentence for a fourth DUI conviction,
5

finding that Tafoya was actually sentenced in 2008 and that the 2012 remand hearing was 

limited to the question of the method of payment of the mandatory fine. As such, the 

panel reasoned that Tafoya was neither sentenced nor resentenced in 2012. State v. 

Tafoya, No. 107,684, 2014 WL 7152142, at *2 (Kan. App. 2014) (unpublished opinion)

(Tafoya III).

Tafoya appeals and we now affirm, thus ending his long sojourn through our 

appellate courts.

ANALYSIS

Whether a district court has complied with the mandate of an appellate court is a 

question of law over which we exercise plenary review. State v. Guder, 293 Kan. 763, 

765, 267 P.3d 751 (2012). Generally referred to as the "mandate rule," K.S.A 60-2106(c) 

provides:

"When . . . a decision of an appellate court becomes final, such court shall promptly 

cause to be transmitted to the clerk of the district court its mandate containing such 

directions as are appropriate under the decision. A copy of the opinion of the court shall 

accompany and be a part of the mandate. . . . Such mandate and opinion, without further 

order of the judge, shall thereupon be a part of the judgment of the court if it is 

determinative of the action, or shall be controlling in the conduct of any further 

proceedings necessary in the district court." 

"If our decision and mandate is fully determinative of the issues presented in the 

proceedings below, they become a part of the judgment in the case without further order 

of the trial court." Provance v. Shawnee Mission U.S.D. No. 512, 235 Kan. 927, 933, 683 

P.2d 902 (1984) (construing K.S.A. 60-2106). Furthermore, "where our decision and 

mandate [of the appellate court] does not fully determine the issues pending before the 
6

trial court . . . directions are necessary or appropriate to control the conduct of further 

proceedings to resolve any remaining issues." 235 Kan. at 933.

A sentence is effective when pronounced from the bench. State v. Mason, 294 

Kan. 675, 677, 279 P.3d 707 (2012); State v. Jackson, 262 Kan. 119, 140, 936 P.2d 761 

(1997). A sentence is the judgment of the court that formally declares to the accused the 

legal consequences of his or her conviction. State v. Van Winkle, 256 Kan. 890, 895, 889 

P.2d 749 (1995). The final judgment in a criminal case is the sentence. 256 Kan. at 895.

Once sentence is pronounced and judgment entered, the district court loses jurisdiction 

over a criminal case except to correct arithmetic or clerical errors. State v. Hall, 298 Kan. 

978, 983, 319 P.3d 506 (2014).

Likewise, a district court has no authority to modify unchallenged sentences 

following a remand by an appellate court except when modification is needed to correct 

arithmetic or clerical errors. See Guder, 293 Kan. at 766-67. The only other exception 

occurs when a sentence is determined to be illegal within the meaning of K.S.A. 22-3504, 

which may happen at any time. State v. Harp, 283 Kan. 740, 743, 156 P.3d 1268 (2007).

Thus, on remand from a higher court, absent narrow exceptions, a district court's 

jurisdiction to resentence or otherwise deviate from an already pronounced sentence is 

limited to the express instructions contained in the higher court's mandate.

Simply put, the outcome of this case depends entirely on the mandate issued by 

the Tafoya I panel of the Court of Appeals to the lower court. Ordinarily, determining the 

controlling content of an appellate court's mandate ought not be difficult. In this case 

though, as has become clearer in light of the peculiar subsequent series of events and 

legal holdings, the Tafoya I panel gave what amounted to two different, contradictory 

explanations of its mandate. On the one hand, it instructed: "Tafoya's fine must be 

vacated and the case must be remanded for reconsideration of the method of payment of 
7

the fine"; and on the other hand, it announced: "[Tafoya's] sentence vacated and 

remanded for resentencing." 2010 WL 5185473, at *9-10. Which is it?

If the Tafoya I mandate vacated Tafoya's 2008 sentence and remanded for 

resentencing, he should have had the benefit of the 2011 lookback period and been 

resentenced accordingly. If, however, the Tafoya I mandate did not vacate Tafoya's 2008 

sentence and remanded to the district court only for the limited purpose of properly 

considering and determining the method of the payment of the mandatory fine, then the 

district court was correct that it was not vested with jurisdiction to resentence Tafoya, and 

his 2008 sentence cannot be disturbed or otherwise rendered illegal by the 2011 changes 

to the lookback period.

Given that Tafoya I remanded this case pursuant to our holding in State v. Copes, 

290 Kan. 209, 224 P.3d 571 (2010), we find it useful to look to Copes to determine the 

substantive effect of a Copes remand. In Copes, we held: 

"Where the amount of fine is discretionary, this court has required the district 

court to 'state on the record that he or she has taken into account the financial resources of 

the defendant and the nature of the burden that payment of the fine will impose.' State v. 

McGlothlin, 242 Kan. 437, 441, 747 P.2d 1335 (1988). We see no reason to require a 

different procedure when the method of payment is discretionary. In doing so, we 

recognize there are considerations other than ability to pay that are relevant to the 

determination of whether the public service option will be ordered. Nevertheless, the 

existence of other factors influencing a court's discretion does not diminish a statutory 

requirement that a specific factor be considered. In addition, the method of payment may 

be equally relevant to a district court's decision in situations where a monetary fine 

imposes little or no burden on a defendant; in such a case, the court might determine the 

commitment of time to community service is a more appropriate penalty. Consequently, 

applying K.S.A. 21-4607(3) we hold that a district court must take into account the 

defendant's financial resources and the burden of the fine when considering the method of 
8

payment of a fine for a fourth or subsequent DUI offense, i.e., whether the defendant 

must pay a monetary fine or provide community service under K.S.A. 2009 Supp. 8-

1567(j)." 290 Kan. at 222-23. 

Notably, we did not declare Copes' original sentence illegal pursuant to K.S.A. 22-

3504, and we did not use the term "resentencing" when discussing the remand. We 

ordered "[t]he district court's decision [] reversed and remanded for consideration of

Copes' financial resources with respect . . . to the method of payment of her DUI fine."

Copes, 290 Kan. at 223. Several panels of the Court of Appeals have since followed suit. 

See, e.g., State v. Adame, 45 Kan. App. 2d 1124, 1130, 257 P.3d 1266 (2011) (In light of 

Copes, $2,500 DUI fine was "remanded and the court [was] directed to consider the 

alternative method of payment under K.S.A. 2008 Supp. 8-1567[j]."); State v. Wells, No. 

105,204, 2012 WL 718929, at *2 (Kan. App. 2012) (unpublished opinion) (DUI fine 

vacated and matter remanded in light of Copes); State v. Kent, No. 105,118, 2012 WL 

308536, at *1 (Kan. App. 2012) (unpublished opinion) ("[F]ine is vacated, and the case is 

remanded for the district court to make findings pursuant to Copes concerning the 

manner and method of paying the fine."); State v. Shaw, No. 102,206, 2011 WL 426105, 

at *3 (Kan. App. 2011) (unpublished opinion) ("The case is remanded for reconsideration 

of the fine in a manner consistent with Copes."); State v. Suter, No. 103,164, 2011 WL 

2039739, at *14 (Kan. App. 2011) (unpublished opinion) ("[F]ine must be vacated and 

the case must be remanded for reconsideration of the method of payment of the fine in 

light of Copes."), aff'd in part and rev'd in part on other grounds 296 Kan. 137, 290 P.3d 

620 (2012); cf. State v. Taylor, No. 104,091, 2011 WL 1878139, at *1 (Kan. App. 2011) 

(unpublished opinion) ("revers[ing] and vacat[ing] the $1,500 fine . . . and remand[ing]

for resentencing with the district court to consider Taylor's financial resources" [emphasis 

added]); State v. Torres, No. 103,058, 2011 WL 867602, at *2 (Kan. App. 2011) 

(unpublished opinion) ("fine vacated, and case remanded for resentencing in accordance 

with Copes" [emphasis added]).
9

The case Copes built upon, State v. McGlothlin, 242 Kan. 437, 747 P.2d 1335 

(1988), is even more instructive. There, we held that 

"where the defendant is convicted of a felony or a misdemeanor and is sentenced to 

imprisonment . . . and a fine is to be imposed, the judge must make specific findings . . . 

before imposing a fine. The judge must also state on the record that he or she has taken 

into account the financial resources of the defendant and the nature of the burden that 

payment of the fine will impose." 242 Kan. at 441.

Following this holding, our mandate read: "[T]he fines imposed . . . are vacated and that 

portion of the judgment is reversed; otherwise, the judgment of the trial court, including 

the sentences imposed in this case, is affirmed." 242 Kan. at 441.

Considering these authorities, we conclude that a sentence is not rendered illegal 

simply because the district court judge fails to consider (or fails to state on the record that 

he or she has considered) the financial resources of the defendant when determining 

either the discretionary amount of a fine or the discretionary method of payment.

Moreover, a remand from an appellate court to a district court pursuant to these 

authorities to correct this error is, in substance, not a remand for resentencing. As such, 

the Tafoya I panel was substantively correct when it limited its mandate to vacating the 

fine and instructing the district court to reconsider "the method of payment of the fine."

Having determined the substantive legal effect of the Tafoya I remand pursuant to 

Copes and McGlothlin, we are left to decide the impact on this case, if any, of the panel's 

contradictory statement that it was remanding Tafoya's case to the district court with his 

"sentence vacated" for "resentencing." We conclude that the substance of the Court of 

Appeals ruling controls over the form its ruling takes. "'"The law of this state is realistic. 

Substance prevails over form."'" State v. Fewell, 286 Kan. 370, 389, 184 P.3d 903 (2008) 
10

(quoting Murray v. Modoc State Bank, 181 Kan. 642, 647, 313 P.2d 304 [1957]). Tafoya 

was never resentenced, and his claim to the benefit of the 2011 lookback period

necessarily must fail.

Affirmed.