1

NOT DESIGNATED FOR PUBLICATION

No. 125,752

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellee,

v.

DE'ANDREW V. DIXON,

Appellant.

MEMORANDUM OPINION

Appeal from Sedgwick District Court; KEVIN J. O'CONNOR, judge. Submitted without oral 

argument. Opinion filed April 5, 2024. Reversed, sentence vacated, and remanded with directions.

Sam S. Kepfield, of Hutchinson, for appellant. 

Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Kris W. Kobach, 

attorney general, for appellee.

Before GREEN, P.J., HILL and CLINE, JJ.

PER CURIAM: At De'Andrew V. Dixon's June 2022 resentencing hearing, the 

district court would not consider Dixon's new durational departure motion. The district 

court ruled that this court's mandate in Dixon's direct appeal—State v. Dixon, 60 Kan. 

App. 2d 100, 492 P.3d 455 (2021)—gave it only limited jurisdiction to sentence Dixon to 

1,306 months' imprisonment.

Dixon does not appeal his convictions. Indeed, at the outset of his appellant's brief, 

Dixon stresses that the underlying facts of his crimes are irrelevant because his argument 
2

on appeal involves the district court's procedure at his resentencing hearing on remand. 

Dixon specifically challenges the district court's legal reasoning when it imposed his new 

1,306-month prison sentence. Dixon contends that the resentencing district court erred as 

a matter of law when it ruled that the Dixon mandate narrowed its jurisdiction on the 

district court to impose only a 1,306-month prison sentence on him. He asserts that 

because his original sentences were vacated by the Dixon court, the court granted him an 

entirely new sentencing hearing where he could move for a durational departure. 

As determined later in this opinion, we conclude that Dixon's argument is 

persuasive. Because the law controlling appellate mandates—as applied to the Dixon 

mandate and its opinion—shows that the district court had jurisdiction to consider 

Dixon's durational departure motion at his resentencing hearing, the district court erred 

when it ruled otherwise. Thus, we reverse the district court's lack of jurisdiction ruling, 

vacate Dixon's total controlling 1,306-month prison sentence, and remand Dixon's case to 

the district court with directions as follows: (1) that the district court must resentence 

Dixon on all of his convictions and (2) that Dixon may move for a departure at his 

resentencing hearing.

PROCEDURAL BACKGROUND

The district court's interpretation of the Dixon mandate and opinion at Dixon's 

resentencing hearing

A jury convicted Dixon of two counts of aggravated kidnapping, three counts of 

aggravated criminal sodomy, two counts of criminal possession of a weapon by a 

convicted felon, and one count each of rape, kidnapping, and battery. It is undisputed that 

Dixon committed these crimes against three different women in the fall of 2016 and 

2017. It is also undisputed that the State brought its charges against Dixon in two 

complaints. Dixon, 60 Kan. App. 2d at 112.
3

Before his jury trial, the district court granted the State's motion to consolidate 

Dixon's two pending criminal cases for trial. 60 Kan. App. 2d at 112. Yet, the State never 

filed an amended complaint joining Dixon's two criminal complaints into a single 

complaint. 60 Kan. App. 2d at 137. Then, at his sentencing hearing, the district court 

sentenced Dixon separately on each complaint. Ultimately, the district court ordered 

Dixon to serve his sentences for each crime consecutively, and it ordered Dixon to serve 

his sentences for his two criminal cases consecutively. Thus, the district court sentenced 

Dixon to a total controlling sentence of 2,045 months' imprisonment for his criminal 

cases. 60 Kan. App. 2d at 138-39.

Dixon timely appealed his convictions and sentences to this court. On appeal, 

Dixon argued that under the correct application K.S.A. 2020 Supp. 21-6819(b)(4)—also 

known as the "'double rule'"—his total controlling sentence for his crimes would "be 

limited to 1,306 months." 60 Kan. App. 2d at 132. Highly summarized, although this 

court rejected Dixon's arguments to reverse his convictions, it accepted Dixon's argument 

that the district court violated the double rule when it sentenced him to 2,045 months' 

imprisonment. 60 Kan. App. 2d at 140-41. The Dixon court held that the district court's 

application of the double rule violated Dixon's Equal Protection Rights of the Fourteenth 

Amendment because the only reason he was not receiving the benefit of the double rule 

was the State's arbitrary decision to file its charges against Dixon in two separate criminal 

complaints. 60 Kan. App. 2d at 137. 

To prove this point, the Dixon court explained how the State's arbitrary decision to 

charge Dixon in two criminal complaints allowed the district court to impose a much 

longer prison sentence on Dixon:

"Dixon points out that if the charges were all brought in one charging document, 

the maximum sentence would be 1,306 months (twice the base sentence of 653 months). 

But here, the application of the double rule led to a total sentence of 2,045 months 
4

between the two cases because Dixon had a base sentence for each case. This difference 

of more than 700 months, or about 61 years, is the result solely of the number of case 

numbers attached to the charges at Dixon's consolidated trial. As Dixon argues, this 

disparity seems to defeat the [Kansas Sentencing Guidelines Act's] purpose of uniformity 

in sentencing." 60 Kan. App. 2d at 139.

And ultimately, the Dixon court stated in its syllabus the following:

"For K.S.A. 2020 Supp. 21-6819(b)(4) to comply with the Equal Protection 

Clause of the Fourteenth Amendment, when two or more cases are consolidated for trial 

because all the charges could have been brought in one charging document, and the 

defendant is convicted of multiple charges at trial, the defendant shall receive the benefit 

of the statutory double rule at sentencing regardless of whether the convictions arise from 

multiple counts within a single information, complaint, or indictment." 60 Kan. App. 2d 

100, ¶ 12. 

As for the Dixon court's mandate, immediately after this court made the preceding 

holding, it relied on this holding to "vacate Dixon's sentences and remand for 

resentencing consistent with this opinion." 60 Kan. App. 2d at 141. And the court's 

closing remand directions stated: "Convictions affirmed, sentences vacated, and case 

remanded with directions." 60 Kan. App. 2d at 141. Afterwards, the Clerk of Appellate 

Courts filed the mandate and opinion with the district court. This mandate stated Dixon's 

"convictions are affirmed, sentences vacated, and case remanded with directions."

At the start of Dixon's resentencing hearing on remand, the district court explained 

its understanding of the mandate. In doing so, the district court cited the two sentences 

from the Dixon opinion stating that the maximum total controlling sentence that it could 

impose on Dixon without violating the double rule at resentencing would be a sentence of

1,306 months' imprisonment. Then, it relied on those two sentences to make the 

following ruling: "[T]he direction of the Kansas Court of Appeals is to resentence 

consistent with this opinion. And the sentence consistent with this opinion is that [the 
5

district court] should sentence Mr. Dixon to 1,306 months." During Dixon's resentencing 

hearing, the district court also repeatedly stated that the opinion "spelled out" that it must 

sentence Dixon to 1,306 months' imprisonment on remand, which in turn, limited its 

jurisdiction at Dixon's resentencing hearing to imposing a total controlling sentence of 

1,306 months' imprisonment on him. 

The State seemingly agreed with the district court's interpretation of the Dixon

opinion. After the district court outlined its interpretation of the mandate, the prosecutor 

said, "I would agree with that." Also, the prosecutor told the district court that the 

"[d]ouble rule only counts for one primary count, and it's going to be the 1,306."

But Dixon, who moved for a durational departure at his original sentencing and 

resentencing hearing, disagreed with the district court's interpretation of the mandate. 

When the district court asked Dixon his position, he argued that the Dixon court had not 

limited the district court's jurisdiction at his resentencing hearing to sentencing him to 

1,306 months' imprisonment. Dixon stressed that no language in the mandate or opinion 

stated that the district court must sentence him to a total controlling sentence of 1,306 

months' imprisonment. Then, citing the lack of such limiting language, Dixon argued that 

when the Dixon court vacated all of his sentences and remanded his case for 

resentencing, it granted him an entirely new sentencing hearing at which the district court 

had jurisdiction to consider his new motion for a durational departure. 

Nevertheless, Dixon's arguments about how to interpret the mandate and opinion 

did not sway the district court. The district court refused to consider Dixon's durational 

departure motion based on its ruling that the mandate and opinion limited its jurisdiction 

to imposing a total controlling sentence of 1,306 months' imprisonment on Dixon at his 

resentencing hearing and nothing else. In denying Dixon's durational departure motion at

his resentencing hearing, the district court stressed that the original sentencing court had 

also denied his departure motion. It explained that because the Dixon court had not 
6

expressly reversed the original sentencing court's rulings on Dixon's original durational 

departure motion, it had no "authority" to reconsider the original sentencing court's 

ruling. Similarly, in Dixon's journal entry of judgment for his resentencing hearing, 

although the district court checked the box that it denied his new durational departure 

motion, its comment why it denied Dixon's motion stated that consideration of his motion 

"was not subject to the remand" because the original sentencing court had denied his 

original durational departure motion. 

Dixon timely appeals his resentencing. 

ANALYSIS

The district court erred when it refused to consider Dixon's durational departure motion 

at his resentencing hearing.

When the district court refused to consider Dixon's new durational departure 

motion at his resentencing hearing, it ruled that it lacked jurisdiction to consider the 

motion based on its interpretation of the Dixon mandate and opinion. Although the 

district court's ruling focused on the extent of its jurisdiction on remand based on the 

plain language of the mandate and opinion, the district court's ruling hinged on three 

distinct but often interrelated principles: (1) the mandate rule, (2) the law of the case 

doctrine, and (3) the district court's jurisdiction. Dixon's current appeal challenges the 

district court's reliance on each of these principles.

K.S.A. 20-108—the rule on applying appellate mandates—states: 

"An appellate court of this state may require the district court of the county 

where any action or proceeding shall have originated to carry the judgment or decree of 

the appellate court into execution; and the same shall be carried into execution by proper 

proceedings, by such district court, according to the command of the appellate court 

made therein."
7

Similarly, K.S.A. 60-2106(c) states that an appellate court's mandate "shall be controlling 

in the conduct of any further proceedings necessary in the district court." 

So, when an appellate court remands a case to the district court for further 

proceedings, K.S.A. 20-108 and K.S.A. 60-2106(c) require the district court to follow all 

orders in the appellate mandate; this principle is called the mandate rule. Under the 

mandate rule, "a district court is obliged to effectuate the mandate and may consider only 

those matters essential to the implementation of the ruling of the appellate court." State v. 

Dumars, 37 Kan. App. 2d 600, 603, 154 P.3d 1120 (2007). Whether a district court 

complied with an appellate court mandate is a question of law over which this court has 

unlimited review. 37 Kan. App. 2d at 603.

K.S.A. 20-108 and K.S.A. 60-2106(c) also prevent the district court from 

relitigating issues already decided on appeal; this principle is called the law of the case 

doctrine. State v. Bailey, 317 Kan. 487, 491, 531 P.3d 520 (2023). The law of the case 

doctrine "applies not only to matters actually decided in the prior proceedings, but also to 

matters for which the party failed to seek review in a prior proceeding." State v. Parry, 

305 Kan. 1189, 1195, 390 P.3d 879 (2017). The purpose of the law of the case doctrine is 

"'to avoid indefinite relitigation of the same issue, to obtain consistent results in the same 

litigation, to afford one opportunity for argument and decision of the matter at issue, and 

to assure the obedience of lower courts to the decisions of appellate courts.'" Bailey, 317 

Kan. at 491. This means that "[a]n argument once made to and resolved by an appellate 

court becomes 'the law' in that case and generally cannot be challenged in a second 

appeal." 317 Kan. at 491. Whether the law of the case doctrine barred a district court 

from considering an issue on remand is a question of law over which this court has 

unlimited review. See Parry, 305 Kan. at 1194. 

Likewise, because jurisdictional issues are questions of law, this court exercises 

unlimited review when deciding whether the mandate rule or the law of the case doctrine 
8

limited a district court's jurisdiction upon remand. State v. Lundberg, 310 Kan. 165, 170, 

445 P.3d 1113 (2019). Thus, each principle that the district court relied on when it ruled 

that it would not consider Dixon's new durational departure motion—the mandate rule, 

the law of the case doctrine, and the district court's jurisdiction—involve questions of law 

over which this court's review is unlimited. As a result, our review over each of Dixon's 

arguments why the district court erred when it refused to consider his new durational 

departure motion at his resentencing hearing is unlimited. 

As for Dixon's specific appellate arguments, he contends that neither the plain 

language of the mandate or opinion, nor the laws controlling appellate mandates, support 

the district court's ruling that it lacked jurisdiction to consider his new durational 

departure motion. Essentially, Dixon argues that the district court interpreted the mandate 

too narrowly. He argues that because the Dixon court vacated all of his sentences, at his 

resentencing hearing, the district court had jurisdiction to sentence him anew. Hence, 

Dixon argues that the mandate and opinion gave the district court jurisdiction to consider 

his new durational departure motion at his resentencing hearing. Dixon also argues that 

the law of the case doctrine did not prevent him from moving for a new durational 

departure motion at his resentencing hearing. He stresses that although the original 

sentencing court denied his durational departure motion, he never appealed that ruling. 

So, according to Dixon, when he moved for a durational departure at his resentencing 

hearing, he did not try to relitigate an issue that had already been decided against him. 

Instead, he argues that "[t]he order of the Court of Appeals vacating the sentence was 

itself the law of the case, meaning no more and no less than that the district court had to 

vacate the old sentence and impose a new sentence." 

To support his interpretation of the mandate and opinion, Dixon relies on our 

Supreme Court's decision in State v. Guder, 293 Kan. 763, 766, 267 P.3d 751 (2012). He 

contends that the Guder court held that when an appellate court vacates a defendant's 

sentence for a particular conviction, the appellate court's mandate requires the district 
9

court to sentence the defendant anew for that conviction. In other words, Dixon argues 

that our Supreme Court's precedent in Guder proves that when an appellate court vacates 

a defendant's sentence for a crime and remands for resentencing, the defendant is in the 

same position as he or she was when originally sentenced for that crime. As a result, he 

argues that a defendant who has his or her sentence vacated may move for a departure at 

his or her resentencing hearing. In turn, Dixon asks this court to reverse the district 

court's jurisdiction ruling, vacate his total controlling 1,306-month prison sentence, and 

remand his case to the district court for another resentencing hearing where he may move 

for a durational departure. 

In response, the State asserts that "[t]he mandate rule and the law of the case 

[doctrine] prohibited the district court from considering [Dixon's] request for [a] 

departure upon remand." The State notes that in Dixon, Dixon never directly challenged 

the district court's denial of his durational departure motion at his original sentencing. 

Because Dixon never appealed the denial of his original durational departure motion, the 

State suggests that the law of the case doctrine prevented Dixon from moving for a new 

durational departure at his resentencing hearing. Additionally, the State argues that 

because Dixon's only sentencing challenge in his direct appeal was whether the district 

court's application of the double rule violated his equal protection rights, the Dixon

mandate only addressed this narrow issue. According to the State, because Dixon raised a 

narrow issue, the Dixon court "narrowly tailored" its mandate and opinion to limit the 

district court's jurisdiction on remand to correct the double rule violation. So, the State 

contends that the mandate "was not a blanket remand for resentencing." Rather, because 

Dixon chose to raise only a double rule violation in his direct appeal, the State maintains

that the mandate rule and law of the case doctrine prevented the district court from 

reviewing Dixon's new durational departure motion at his resentencing hearing. The State 

further contends that Dixon's reliance on Guder is misplaced and that our Supreme 

Court's decision in State v. Jamerson, 309 Kan. 211, 214, 433 P.3d 698 (2019), 

undermines Dixon's arguments. Alternatively, the State argues that even if the district 
10

court erred by refusing to consider Dixon's new durational departure motion at his 

resentencing hearing, the district court's error was harmless beyond a reasonable doubt 

under the constitutional harmless error standard explained in State v. Ward, 292 Kan. 

541, 256 P.3d 801 (2011). 

Yet, we conclude that the State's arguments are flawed. Indeed, an analysis of the 

State's arguments demonstrates that the district court erred when it ruled that this court's 

mandate and opinion in Dixon limited the district court's jurisdiction at Dixon's 

resentencing hearing to sentence him to 1,306 months' imprisonment. It shows that 

Dixon's interpretation of the mandate and opinion allowed him to move for a new 

durational departure at his resentencing hearing. Also, it explains that the district court's 

ruling that it lacked jurisdiction to consider Dixon's new durational departure motion 

prejudiced Dixon. 

To begin with, the State's arguments ignore that Dixon's goal when arguing his 

sentences violated the double rule in his direct appeal was for this court to vacate his 

sentences and grant him a new sentencing hearing. As the Dixon court explained when 

discussing how to remedy the district court's sentencing error, "Dixon argue[d] the proper 

remedy for the constitutional violation [was] not to invalidate the double rule but to 

instead extend the benefit of the double rule to his case." 60 Kan. App. 2d at 139. More 

tellingly, the Dixon court "vacate[d] Dixon's sentences" just as Dixon had requested. 60 

Kan. App. 2d at 141. In short, in his direct appeal, Dixon's express objective was (1) to 

persuade this court that his sentences violated the double rule under K.S.A. 2020 Supp. 

21-6819(b)(4) and (2) to have this court remand his case for a resentencing hearing after 

vacating all of his sentences. So, the State's argument that Dixon never contended that his 

sentences were illegal in his direct appeal is disingenuous. 

For this same reason, the State's argument that the law of the case doctrine barred 

Dixon from moving for a durational departure at his resentencing hearing is flawed. 
11

Dixon wanted the Dixon court to vacate all of his sentences and remand to the district 

court for a new sentencing hearing. 60 Kan. App. 2d at 139. The term "vacate" means 

"[t]o nullify or cancel; make void; invalidate." Black's Law Dictionary 1862 (11th ed. 

2019). Thus, in Dixon, when Dixon argued that this court should vacate his sentences and 

remand his case to the district court for resentencing, he also asked the court to vacate the 

original sentencing court's other sentencing rulings. So, contrary to the State's argument 

that the law of the case doctrine prevented Dixon from moving for a new durational 

departure at his resentencing hearing because he never appealed this issue, Dixon 

implicitly challenged the district court's denial of his original durational departure motion 

by raising the double rule argument in his direct appeal. 

Next, the State argues that neither Guder's nor Jamerson's precedent applies in this 

case for two reasons: (1) because Dixon never argued that his sentence was illegal under 

the revised Kansas Sentencing Guidelines Act (KSGA) in his direct appeal and (2) 

because "[t]here were no illegal sentences of any kind [in Dixon's case]; thus, nothing 

needed to be opened back up in full for relitigation" at Dixon's resentencing hearing. In 

making this argument, the State stresses that violations of a defendant's constitutional 

rights are not illegal sentences under K.S.A 22-3504—the statute controlling the 

correction of an illegal sentence under the KSGA. Rather, under K.S.A. 22-3504(c)(1), an 

illegal sentence is a sentence "that does not conform to the applicable statutory provision, 

either in character or punishment."

Again, the Dixon court held that the double rule under K.S.A. 2020 Supp. 21-

6819(b)(4) as applied to Dixon in his original sentences violated his rights under the 

Equal Protection Clause. 60 Kan. App. 2d at 139. So, it is undisputed that Dixon argued 

that the district court's original sentences infringed on his constitutional rights in his 

direct appeal. But the Dixon court also held that the double rule under K.S.A. 2020 Supp. 

21-6819(b)(4), which is a provision of the KSGA, was "under-inclusive." 60 Kan. App. 

2d at 139; see also K.S.A. 2020 Supp. 21-6801 et seq. (stating that K.S.A. 21-6801 
12

through 21-6824 are KSGA provisions). So, although the Dixon court never explicitly 

stated that Dixon's original sentences were illegal under the KSGA, the Dixon court 

implicitly ruled that his sentences were illegal under the KSGA when it determined that 

his sentences violated K.S.A. 2020 Supp. 21-6819(b)(4)'s double rule. 

Notwithstanding this implicit ruling, the State's arguments about Dixon's reliance 

on Guder are shortsighted. The issue before our Supreme Court in Guder was "whether a 

district court may modify a previously imposed sentence on one conviction following a 

remand from an appellate court for resentencing based on a different conviction." 293 

Kan. at 766. On remand from this court, the district court modified Guder's sentence for a 

conviction that this court did not vacate—Guder's possession of drug paraphernalia 

conviction. The only sentence that this court vacated on appeal was Guder's sentence for 

manufacturing a controlled substance. 293 Kan. at 764. In deciding whether the district 

court erred, our Supreme Court stressed that nothing under the KSGA "allow[ed] 

resentencing on other convictions following the vacating of a sentence on appeal." 293 

Kan. at 766. It stressed that it found "no language from the legislature allowing a district 

court to modify any of the sentences that were not vacated on appeal." 293 Kan. at 767. 

And when interpreting the plain language of K.S.A. 21-4720(b)(5), now K.S.A. 21-

6819(b)(5), it stressed that it would "not add words to the statute that would provide 

jurisdiction [to the district court] to resentence on other counts when only the sentence on

the primary conviction [was] vacated." 293 Kan. at 766. 

Based on this analysis, the Guder court held that the district court had jurisdiction 

to modify only Guder's manufacturing a controlled substance sentence that this court had 

vacated on appeal; it had no jurisdiction to modify Guder's possession of drug 

paraphernalia sentence that this court had not vacated on appeal. 293 Kan. at 765, 767. 

Then, our Supreme Court vacated the district court's errant modification of Guder's 

possession of drug paraphernalia conviction. 293 Kan. at 767. 
13

So, Guder's precedent supports that when an appellate court vacates the sentence 

of a defendant, that defendant is entitled to a new sentencing hearing on the vacated 

sentence. Although our Supreme Court vacated the district court's modification of 

Guder's sentence for possessing drug paraphernalia, it did not vacate or condemn the 

district court's resentencing of Guder on his manufacturing a controlled substances 

conviction since this court had vacated that sentence in Guder's direct appeal. 293 Kan. at 

767. In addition, by stating that it would not add words to K.S.A. 21-4720(b)(5) "that 

would provide jurisdiction [to the district court] to resentence on other counts when only 

the sentence on the primary conviction [was] vacated," our Supreme Court implicitly held 

that the district court has jurisdiction to resentence a defendant when an appellate court 

vacates that defendant's sentence on appeal. 293 Kan. at 766.

Next, although the State argues that the Jamerson decision undermines Dixon's 

arguments because its precedent only applies to defendants whose sentences were illegal 

under the KSGA, our Supreme Court's analysis in Jamerson establishes that whether 

Dixon's original sentences were illegal under the KSGA or for some other reason does 

not affect this court's review or the district court's procedure at resentencing hearings. In 

Jamerson, our Supreme Court considered the State's argument that Guder's precedent did 

not apply in Jamerson's case because Guder's case "involved the court's authority to 

modify a nonvacated portion of the sentence on remand from an appellate court" while 

Jamerson's case involved a resentencing court's finding that Jamerson's sentence was

illegal under K.S.A. 22-3504. 309 Kan. at 215. Although Guder never explicitly argued 

that his sentence was illegal or even mentioned K.S.A. 22-3504 in his direct appeal, the 

Jamerson court called Guder's sentence illegal. 309 Kan. at 216; see Guder, 293 Kan. 

763. In addition, the Jamerson court recognized that K.S.A. 22-3504 was not a provision 

under the KSGA. 309 Kan. at 215.
14

All the same, after it found that K.S.A. 22-3504 provided no guidance on 

correcting illegal sentences at a defendant's resentencing hearing, it turned "to the KSGA 

for guidance." 309 Kan. at 216. Then, it held the following:

"Reading K.S.A. 22-3504 for the correction of an illegal sentence and the KSGA together 

would logically advise that correcting an illegal sentence should follow the same 

statutory rules as resentencing after a remand. Procedurally, we find no reason a district 

court's conclusion (that a sentence is illegal) is different in any legally significant way 

from the holding by this court that a sentence is illegal under K.S.A. 22-3504. In either 

scenario the sentence must be corrected to become one complying with the KSGA." 309 

Kan. at 216.

Thus, in Jamerson, our Supreme Court ruled that whether a court determines that a 

defendant's sentence is illegal under the KSGA or a court determines that a defendant's 

sentence is illegal for some other reason, the district court applies the same procedural 

rules when resentencing a defendant. The district court must resentence the defendant so 

his or her sentence is legal. As a result, the State's argument that the Jamerson decision 

supports that the district court lacked jurisdiction at Dixon's resentencing hearing to 

consider his new durational departure motion is repugnant to reason. Under Jamerson's 

precedent, once a court determines that a defendant's sentence is illegal for any reason, 

the court must use the same procedures to resentence the defendant to a legal sentence. 

So, although the State has relied on Jamerson to support its arguments, Jamerson's 

precedent actually supports Dixon's argument that the district court had jurisdiction to 

resentence him anew after this court vacated all of his sentences in Dixon. 

To summarize, so far, none of the State's arguments support the district court's 

interpretation of the Dixon mandate and opinion. In his direct appeal, Dixon argued that 

this court should vacate all of his sentences and remand his case to the district court for 

an entirely new sentencing hearing because his sentences were illegal. Because Dixon 

asked this court to vacate all of his sentences and remand for a resentencing hearing, 
15

Dixon asked the Dixon court to nullify all of the district court's rulings at his original 

sentencing. So, the fact that Dixon never directly challenged the denial of his durational 

departure motion at his original sentencing hearing is irrelevant. Put another way, Dixon 

was not barred from moving for a new durational departure motion under the law of the 

case doctrine since he explicitly asked for this court to vacate his sentences and grant him 

a new sentencing hearing. Our Supreme Court's precedent in Guder establishes that when 

an appellate court vacates a defendant's sentence, the district court obtains jurisdiction to 

resentence the defendant on the vacated sentence. 293 Kan. at 767. Meanwhile, our 

Supreme Court's precedent in Jamerson establishes that it is irrelevant whether Dixon's 

sentences were illegal under the KSGA or for some other reason because no matter why a 

defendant's sentence is illegal, the district court must apply the same procedures when 

resentencing a defendant for any illegal sentence. And the illegal sentence must be 

corrected to comply with KSGA. Jamerson, 309 Kan. at 216.

At this point, the parties' remaining arguments regarding the district court's 

specific interpretation of the Dixon mandate and opinion involve the mandate rule. Once 

more, Dixon argues that the district court interpreted the mandate and opinion with a 

myopic view. On the other hand, the State argues that the district court had to interpret 

the mandate and opinion narrowly based on the narrow issue Dixon raised in his direct 

appeal. 

Nevertheless, the district court's interpretation of the mandate is flawed. Nothing 

within the mandate or opinion limited the district court's jurisdiction at Dixon's 

resentencing to imposing only a total controlling 1,306-month prison sentence on Dixon. 

Rather, the two sentences in the Dixon opinion that the district court relied on when it 

ruled that the mandate gave it limited jurisdiction to impose a total controlling 1,306-

month prison sentence on Dixon simply stated that it was the maximum total controlling 

sentence it could impose on Dixon at his resentencing without violating the double rule. 

To review, the Dixon court's first reference to a 1,306-month prison sentence stated that 
16

"if Dixon prevails on his constitutional claim, his sentence will be limited to 1,306 

months." 60 Kan. App. 2d at 132. And the Dixon court's second reference to a 1,306-

month prison sentence stated: "Dixon points out that if the charges were all brought in 

one charging document, the maximum sentence would be 1,306 months (twice the base 

sentence of 653 months)." 60 Kan. App. 2d at 139. 

So, in both its references to a 1,306-month prison sentence, the Dixon court merely 

provided guidance to the district court how to avoid violating the double rule again when 

resentencing Dixon. The Dixon court never said that the district court must sentence 

Dixon to 1,306 months' imprisonment. It never said that the district court should sentence 

Dixon to 1,306 months' imprisonment. Instead, it told the district court the maximum 

prison sentence it could impose on Dixon at his resentencing. So, when the Dixon court 

vacated Dixon's sentences and remanded his case for resentencing, it authorized, that is,

gave the district court jurisdiction, to entirely resentence Dixon. In short, there is no 

reasonable explanation why the district court interpreted the mandate and opinion as 

limiting its jurisdiction to imposing only a total controlling 1,306-month prison sentence 

on Dixon. 

In its final argument, the State contends that even if the district court erred by not 

considering Dixon's new durational departure motion at his resentencing hearing, the 

district court's error was harmless beyond a reasonable doubt. The State seemingly 

believes that the district court's refusal to consider Dixon's durational departure motion 

was harmless for the following reasons: (1) because the facts of Dixon's crimes are 

"abhorrent"; (2) because Dixon's new durational departure motion repeated some of the 

arguments in his original departure motion; and (3) because the district court indicated 

that it would deny his motion if it had considered it. 

But the State's harmless error argument is fatally flawed. At sentencing, a 

defendant has a statutory right under K.S.A. 21-6815(c)(1) to move for a durational 
17

departure. So, a district court's refusal to consider a defendant's durational departure 

motion at sentencing when it has jurisdiction to do so is not harmless. It deprives the 

defendant of his or her right to request a shorter prison sentence. Because legislative 

grace is woven within the Kansas sentencing statutes, a defendant is entitled to move for 

a departure under K.S.A. 21-6815(c)(1) at his or her sentencing hearing. 

Regarding the State's argument that Dixon repeated some of the arguments that he 

made in his original durational departure motion in his new durational departure motion, 

as explained already, when the Dixon court vacated Dixon's sentences, he was entitled to 

an entirely new sentencing hearing. So, it is irrelevant that Dixon made some of the same 

arguments in both departure motions. And regardless, Dixon made new arguments in his 

durational departure motion at his resentencing hearing. This includes arguing that he 

was entitled to a durational departure because of his good behavior in prison since his 

original sentencing hearing in October 2018. 

As for the State's argument that any error resulting from the district court's refusal 

to consider Dixon's durational departure motion was harmless because the district court 

indicated that it would deny Dixon's motion if it had considered it, the State ignores the 

plain language of the district court's ruling. The State points out that when the district 

court judge refused to consider Dixon's durational departure motion, the judge told Dixon 

the following: 

"I did find that the remand is specific and gives the Court specific directions on how to 

proceed. I guess arguably the easier thing to do would be to say I'll consider the departure 

and deny it, but I think there are some times where you don't necessarily take the easy 

way out." 

Thus, although the district court alluded that it would have denied Dixon's departure

motion, its actual holding was that it lacked jurisdiction to consider the motion. 
18

Additionally, the State's arguments ignore the district court's explicit rulings at 

Dixon's sentencing hearing and in his resentencing journal entry of judgment. In short,

his resentencing hearing and resentencing journal entry of judgment point out that the 

district court ruled that it lacked jurisdiction to consider Dixon's new durational departure 

motion. 

Once more, at Dixon's original sentencing hearing, the sentencing judge denied his 

motion for a durational departure. Then, at Dixon's resentencing hearing, the district court 

responded to his argument about considering his new duration departure motion by 

pointing out this fact. It explained that from its interpretation of the mandate and opinion, 

it had no authority to reconsider the original sentencing court's denial of his durational 

departure motion. Afterwards, in Dixon's journal entry of judgment for his resentencing 

hearing, the district court repeated its ruling. Although it checked the box on Dixon's 

journal entry of judgment that it had "denied" his new durational departure motion, 

immediately after checking this box, the district court explained its ruling as follows: 

"Motion was denied by [the original sentencing court] on 10/01/18. [The district court] 

found that the matter was not subject to the remand." As a result, despite checking the 

box that the district court had denied "[d]efendant's motion for departure," the district 

court's comment about Dixon's new durational departure motion stated that "[the district 

court] found that the matter was not subject to the remand," that is, that the district court

lacked jurisdiction to consider Dixon's new durational departure motion. So, although the 

district court's statements implied that it would have denied Dixon's durational departure 

motion, it nonetheless ruled that it lacked jurisdiction to consider his new durational 

departure motion. 

Thus, we point out that the district court has come to two incompatible 

propositions about Dixon's new motion for departure. First, the district court denied 

Dixon's new motion for departure in its journal entry of judgment, dated August 29, 

2022. Second, the district court maintained that it lacked jurisdiction to consider Dixon's 
19

new motion for departure from the Dixon remand. These two opposing propositions are 

logically contradictory. So, if the first is true (the district court had jurisdiction to deny 

Dixon's new motion for departure), the second is false; if the first is false, the second is 

true (the district court lacked jurisdiction to consider Dixon's new motion for departure). 

So, these two contradictory propositions cannot be correlated as two steps in an 

argument. Indeed, the two propositions can never be true together, or false together: one 

is always true and the other always false. It is like saying, for example, "It is both raining 

and not raining in the same place and at the same time." This is a logical contradiction in 

reasoning. 

Finally, the State's harmless error argument is inconsistent with this court's 

previous rulings in State v. Brown, No. 125,482, 2023 WL 6172076 (Kan. App. 2023) 

(unpublished opinion), and State v. McMillan, No. 124,726, 2023 WL 176653 (Kan. App. 

2023) (unpublished opinion). Indeed, Brown's legal issue at resentencing is identical to 

Dixon's legal issue at resentencing. 

In Brown's direct appeal to this court, this court vacated Brown's sentences 

because of a criminal history error. State v. Brown, No. 120,590, 2020 WL 1897361, at 

*7 (Kan. App. 2020) (unpublished opinion), aff'd 314 Kan. 292, 498 P.3d 167 (2021). In 

Brown, after our Supreme Court affirmed this court's decision to vacate Brown's 

sentences because of the criminal history score error, it remanded Brown's case for 

resentencing consistent with this court's decision. Brown, 314 Kan. at 308. But at his 

resentencing hearing, the district court refused to consider Brown's new durational 

departure motion. Brown, 2023 WL 6172076, at *1. In addition to citing our Supreme 

Court's decision in Guder and Jamerson, this court explained that McMillan supported 

Brown's argument that the district court had to consider his departure motion at 

resentencing:
20

"Brown's reliance on State v. McMillan, No. 124,726, 2023 WL 176653 (Kan. 

App. 2023) (unpublished opinion), rev. granted April 20, 2023, is well-placed. McMillan

concluded our Supreme Court's precedent and the plain language of the KSGA gives a 

district court authority to reconsider a departure motion on remand for resentencing. 2023 

WL 176653, at *5. In State v. Guder, 293 Kan. 763, 766, 267 P.3d 751 (2012), our 

Supreme Court held a district court has limited jurisdiction on remand for resentencing to 

modify sentences 'to correct arithmetic or clerical errors, to consider or reconsider 

departures from presumptive sentences, or to modify sentences by reinstating previously 

revoked probations.' (Emphasis added.) Further, the plain language of K.S.A. 2022 Supp. 

21-6819(b)(5) provides: 'Upon resentencing, if the case remains a multiple conviction 

case the court shall follow all of the provisions of this section concerning the sentencing 

of multiple conviction cases.' In other words, the KSGA makes no distinction in the 

sentencing procedures between original sentencing and resentencing in multiple 

conviction cases.

"At resentencing, a district court must impose a sentence compliant with the 

KSGA. State v. Jamerson, 309 Kan. 211, 216, 433 P.3d 698 (2019). 'In doing so, the 

court has to exercise its independent judgment—within the limitations imposed by the 

KSGA—to determine the appropriate sentence.' 309 Kan. at 218. The McMillan panel 

concluded this authority includes reconsidering a departure motion on remand for 

resentencing because the district court must impose a sentence in the appropriate KSGA 

grid box unless it finds substantial and compelling reasons to depart. 2023 WL 176653, at 

*5; see K.S.A. 2022 Supp. 21-6815(a). Here, the district court erred in finding it had no 

authority to reconsider the departure motion which had been denied at Brown's original 

sentencing. Accordingly, we remand for resentencing so the district court can consider 

the departure motion if renewed at resentencing. [Citation omitted]." Brown, 2023 WL 

6172076, at *3.

In summary, this court's decision in Brown and McMillan further shows that the 

district court erred when it ruled it lacked jurisdiction under the Dixon mandate and

opinion. When sentencing a defendant, the district court must follow the rules outlined in 

the KSGA. Those rules include that if the defendant moves for a departure motion at 

sentencing, then the district court must consider that departure motion. Here, because the 

district court refused to consider Dixon's new departure motion at his resentencing 
21

hearing, citing a lack of jurisdiction when it actually had jurisdiction, the district court 

necessarily erred by not considering Dixon's new departure motion. And because Dixon's 

durational departure motion concerned the length of his sentence, which involves his 

liberty rights, it necessarily follows that the district court's refusal to consider his motion 

implicated his constitutional rights. As a result, the State cannot establish that the district 

court's ruling that it lacked jurisdiction to consider Dixon's new durational departure 

motion constituted harmless error. 

CONCLUSION

Thus, we reverse the district court's lack of jurisdiction ruling, vacate Dixon's total 

controlling 1,306-month prison sentence, and remand Dixon's case to the district court for 

another resentencing hearing with directions. These directions are as follows: (1) that the 

district court must resentence Dixon on all of his convictions and (2) that Dixon may 

move for a departure at his resentencing hearing.

Reversed, sentence vacated, and remanded with directions.