Opinion
No. 111156.
02-27-2015
STATE of Kansas, Appellee, v. George FERENZ, Appellant.
Samuel Schirer, Kansas Appellate Defender Office, for appellant. Barry K. Disney, assistant county attorney, Barry R. Wilkerson, county attorney, and Derek Schmidt, attorney general, for appellee.
Samuel Schirer, Kansas Appellate Defender Office, for appellant.
Barry K. Disney, assistant county attorney, Barry R. Wilkerson, county attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., BRUNS, J., and RICHARD B. WALKER, District Judge, assigned.
Opinion
PER CURIAM:
George Ferenz appeals following his convictions of two counts of aggravated criminal sodomy and two counts of aggravated indecent liberties with a child. Ferenz argues that (1) his two convictions of aggravated criminal sodomy were multiplicitous, as were his two convictions of aggravated indecent liberties with a child; (2) the district court erroneously admitted evidence of names of deleted computer files; (3) the district court committed structural error by using special questions on the verdict forms; (4) the complaint was defective as to the aggravated criminal sodomy charges, depriving the district court of jurisdiction over those charges; (5) the district court abused its discretion by failing to explicitly rule on Ferenz' motion for a departure sentence; and (6) the journal entry of judgment incorrectly indicates lifetime postrelease supervision when in fact Ferenz will receive lifetime parole. We agree with Ferenz on his first issue and we reverse the multiplicitous convictions and vacate the corresponding sentences. We also vacate the lifetime postrelease supervision portion of his sentences, but we affirm the district court's judgment in all other respects.
Factual and Procedural Background
When Ferenz met his future wife, Amanda, in the spring of 2009, she had a 4–year–old daughter, C.J. After Ferenz and Amanda married that September, they and C.J. lived together in Ogden, Kansas. In July 2010, Amanda gave birth to their son, B.F. Ferenz, who was in the Army, was deployed to Afghanistan from April 2011 until January 2012, during which time Amanda and the children left Kansas to stay with family. When Ferenz returned from Afghanistan, he was stationed at Fort Riley and the family moved into a house in Manhattan, Kansas.
The house in which they lived had two bathrooms: a bathroom off the hallway, which the children used, and a bathroom adjoining the master bedroom, which Amanda and Ferenz used. Amanda later testified that she had never seen C.J. use the shower in the master bathroom and that there was no reason for her to do so. According to Amanda, when C.J. would shower, she did so in the hall bathroom and left the clothing she wore before the shower in that bathroom, where Amanda retrieved them. Amanda later testified that she did the family's laundry and Ferenz only washed his own clothes if he needed them the following day.
After Ferenz returned from Afghanistan, Amanda's relationship with him was “not so good”; they fought about their finances and her drinking. Amanda threatened to take C.J. and leave Ferenz and, at the beginning of October 2012, had purchased two bus tickets to do so. Ultimately, however, she did not leave and, after that, Amanda felt that their relationship was improving.
On Sunday, October 21, 2012, Amanda went to work at 5 p.m. She returned home shortly after 1 the next morning, spoke briefly with Ferenz, and went to bed. According to Amanda's later testimony, the following morning when C.J. woke Amanda after Ferenz had left for work, Amanda noticed that C.J. was not wearing the clothes Amanda had laid out for her the night before. Amanda asked C.J. about the clothes when she could not find them in C.J.'s room. C.J. explained that she was not wearing the clothes that Amanda had set out for her because she had worn the outfit the day before. Amanda thought this answer was strange because C.J. had been wearing pajamas when Amanda left for work the day before, so she asked C.J. why she had put on a clean outfit after 5 p.m. C.J. said that she did not know. Amanda checked the hall bathroom and the clothes hamper in the laundry room, but still could not find the clothes.
Amanda again asked C.J. why the clothes were not in her bathroom if she had worn them the day before, and C.J. replied, “ ‘Because I took a shower in your shower.’ “ When Amanda asked C.J. why she showered in that shower, C.J. replied, “ ‘Because I took a shower with [Ferenz].’ “ Amanda attempted to clarify whether C.J. took a shower while Ferenz was in the bathroom or whether Ferenz was in the shower with her. C.J. stated that she took a shower with Ferenz and that they were both naked.
Amanda later testified that she sat down on the bed with C.J. and asked her if Ferenz had touched her. C.J. responded that Ferenz had hugged her and “ ‘tickled [her] private part.’ “ Amanda asked C.J. if Ferenz had touched himself or asked her to touch his private part, and C.J. hid her face in the pillow and said, “ ‘I can't tell you. It's a secret.’ “ Amanda told C.J. that she should not keep secrets from her, and C.J. informed Amanda that Ferenz had “ ‘asked [her] to tickle his private parts.’ “
Law enforcement investigation
At this point, Amanda found a babysitter for B.F. and took CJ. to the police station. At the police station, Amanda spoke with Officer Carla Swartz of the Riley County Police Department. Swartz described Amanda as initially calm but stated that Amanda became distraught and upset as she related the morning's events. Swartz informed Detective Sonia Gregoire that Amanda was reporting possible inappropriate touching of a child by an adult, and Gregoire met with Amanda. Gregoire, Amanda, and CJ. left the police station and met at the Child Advocacy Center, where the Riley County Police Department prefers to interview children. Amanda gave Gregoire a brief overview of what had happened, and Gregoire interviewed C J.; the interview was videotaped.
During the interview, Gregoire and C J. looked at body diagrams and C J. referred to the vaginal area as a private part and a penis as a private part. C J. acknowledged to Gregoire that people are not supposed to touch her private parts, but C J. said that Ferenz had touched hers. When Gregoire asked to hear more, C J. said, “Like when we're taking a shower together” and told Gregoire that Ferenz had tickled her on her private part and her butt with his fingers the previous night while Amanda was at work. C J. also told Gregoire that Ferenz had C J. touch his private part, that water came out, and that it had to be a secret. C J. informed Gregoire that Ferenz had put his private part inside her private part and inside her butt. C J. said that Ferenz also had asked her the night before to touch his private part with her tongue while they were lying on the bed without any clothes.
After the interview, Amanda, C J., and a social worker went to Topeka for a physical examination. In the meantime, Gregoire contacted military police to have Ferenz report to the police station. Ferenz arrived around 11 a.m., and Gregoire conducted a videotaped interview with Ferenz. At the beginning of the interview, Ferenz stated he did not know what was going on; he was angry and felt that Amanda had lied and was using C.J. against him. After Gregoire read Ferenz his Miranda rights, he agreed to talk with her in more detail; he also consented and submitted to a DNA test.
Ferenz repeatedly denied touching C.J. inappropriately. He explained that C.J. usually showered in her bathroom but had showered in his bathroom the previous night because he was using the hall bathroom. When Gregoire told Ferenz about C.J.'s specific allegations against him, Ferenz denied the allegations and said he did not know why C.J. would say such things. Ferenz stated that the previous night, he and C.J. had showered at the same time, but C.J. showered in the master bathroom and Ferenz in the hall bathroom. Later in the interview, Ferenz changed his statement to explain that C.J. showered first in the master bathroom because he was using her bathroom and then Ferenz showered in the master bathroom after C .J. finished her shower. Ferenz stated that after his shower he masturbated and was watching TV in his bedroom when C.J. came in to watch TV with him. Ferenz said that C.J. was wearing pajamas and he was only wearing shorts.
Ferenz said that C.J. lay on the pillow next to him and put her head on his shoulder; he had his arm around her. Gregoire asked Ferenz if at any time he grabbed C.J.'s breast or touched anywhere close to C.J.'s vagina, and Ferenz responded, “Sure; I don't know. I didn't pay attention; probably. I would admit yes.” He said that “maybe” he touched the outside or inside of C.J.'s pants and admitted that they did tickle each other but asserted that it was innocent, although his hand might have slipped as he tickled her inner thigh. Ferenz told Gregoire that when he accidentally touched C.J., he did so for a couple of seconds, then backed off because he “knew [he] brushed it” as he was transitioning from tickling her leg to her hip. He stated that they tickled each other for approximately 5 minutes but maintained that C.J. never touched his penis. Ferenz also said that he pinched C.J.'s butt “all the time” and had done so the previous night.
During the interview, Ferenz also acknowledged that C.J. had once “caught [him] watching porn” and that he had let her see maybe a minute of it, but “it wasn't hardcore.” Ferenz stated he had been watching pornography on a computer when C.J. walked over and asked what it was; Ferenz told C.J. the woman was giving a blow job. While he admitted this, Ferenz still denied ever touching C.J. inappropriately.
When asked if there was any way he could explain fluid on C.J.'s back, Ferenz stated that he probably touched his penis while cleaning it after masturbating, so when C.J. got onto the bed and he touched her back, he could have transferred semen onto her. Ferenz explicitly stated that he did not shower with C.J., he did not have her touch his penis, and he did not touch C.J. inappropriately. Finally, at the end of the recorded interview, Ferenz admitted that he had accidentally had child pornography on his computer and that he had searched for “jail bait.”
Meanwhile, Joy Thomas, the supervisor for the Sexual Assault Nurse Examiner program at Stormont–Vail Health Care in Topeka performed the sexual assault examination on C.J. Thomas noted more redness than she expected on C.J.'s genital area, and she took swabs from this area. Next, Thomas used a Wood's lamp to look for bodily fluids on C.J.'s body. She swabbed the area on C.J.'s back that fluoresced and sent the swabs for testing. At trial, the parties stipulated that the forensic testing found no seminal fluid or saliva on the swabs or in C.J.'s underwear. Thomas later testified that, overall, she felt her observations were consistent with the behavior C.J. reported; but on cross-examination, Thomas admitted she could not tell absolutely what had caused the redness.
Criminal prosecution
On October 24, 2012, the State charged Ferenz with one count of rape, two counts of aggravated criminal sodomy, and two counts of aggravated indecent liberties with a child. At the preliminary hearing, the district judge asked the State to explain the essential facts supporting each charge. The State conceded that there might not be enough evidence to support a rape conviction but argued there was enough evidence to support a charge of attempted rape; therefore, the State asked to amend the charge. Regarding the aggravated criminal sodomy charges, the State informed the judge that they were based upon C.J.'s mouth touching Ferenz' genitals and Ferenz' mouth touching C.J.'s genitals. The aggravated indecent liberties charges were based upon Ferenz touching C.J. in the shower and C.J. touching Ferenz in the shower. The district court bound Ferenz over on the charges as amended. The State later filed a bill of particulars which described the particular conduct on which it based each charge; the bill of particulars matched the prosecutor's statements at the preliminary hearing.
On April 11, 2013, the State filed a motion to admit certain computer evidence pursuant to K.S.A. 60–455. The district court held a hearing on the motion and granted the State's request to admit the computer evidence. Specifically, the district court found that the probative value of the evidence outweighed its potential for prejudice.
The jury trial began on September 10, 2013. The State presented evidence from Detective Alan Riniker of the Riley County Police Department, who had assisted with a search of Ferenz' home, photographing the residence and collecting items. Swartz, Amanda, Thomas, and Gregoire also testified, and the State introduced into evidence and played for the jury the interviews with C.J. and Ferenz.
C.J. also testified. At the time of trial, she was 8 years old and in the third grade. As to the events in question, C.J. testified that she wanted to take a shower by herself, but Ferenz “kept on begging and begging” her to take a shower with him while Amanda was at work and B.F. was sleeping. According to C.J.'s testimony, after Ferenz begged her, she said, “ ‘Fine,’ “ and took a shower with him. Although she testified that she and Ferenz were both naked, she stated that she did not remember what happened in the shower.
C.J. testified that after the shower she wanted to get dressed, but Ferenz “begged like five times” for her to lay down with him, so they lay down on his bed. C.J. testified that neither she nor Ferenz were clothed and “[t]here was some touching.” She stated that she touched his private part with her tongue and that he licked her private area. She also testified that Ferenz squirted something on her back; he told her it was water and wiped it off with a towel. Ferenz then told her, “ ‘Don't tell anybody. It's a secret.’ “
The State also presented evidence and testimony related to computer evidence. Officer Richard Lewis of the Riley County Police Department testified that he assisted in searching Ferenz' home on October 22, 2012, and photographed certain computer equipment in the house. Richard Nixon of the Platte County Sheriff's Department worked at the Heart of America Regional Computer Forensics Laboratory (HARCFL) and testified that he had examined the seized computers-a Gateway, a Lenovo, and a Dell. Nixon explained to the jury how computers store, save, and delete data and informed them that a computer file is generally named for the user's convenience so that the user knows what is in the file; he also explained that “JPG” is a type of digital picture format and appears at the end of a file name if the file contains a digital picture.
Nixon further testified that a file name can be changed and that even if a user deletes a file it may be possible to recover part or all of the file if the data has not been overwritten. Another possibility is that a forensic examiner could find evidence that a file previously existed—a file path—but not be able to physically retrieve the file's contents. Nixon explained that a file path is a way of organizing data on a computer to route files where they should go, similar to a residential address, which contains information about a street and house number.
Nixon testified that the Riley County Police Department had requested that HARCFL examine the computers for “incest-related activities,” among other things. On the Dell computer, Nixon found file paths to deleted files that he believed could be related to incest-related activity. Over Ferenz' objection, the State admitted 13 exhibits listing the file paths to which Nixon referred. Nixon testified that the file paths included the user-created folder name “Geo's Folder,” which indicated that someone had placed the image in that folder to save it for possible future use. At the State's request, Nixon read each of the 13 file names into the record; the file names contained sexually explicit terms. For example, one of the file names was “BAMBINA–Collection 01 Real Child Porn!!! (illegal preteen underage lolita kiddy incest little girl rape anal cum sex lesb(l)(1).jpg.”
On cross-examination, Nixon conceded that he did not know who had named the files and he had “no way of knowing what this was a picture of.” He further testified, though, that he felt the file names were descriptive and that experience told him that “more than likely it's gonna be what it says it is.” Further, Nixon conceded that he did not know who downloaded the files, when they were downloaded, how they were downloaded, or what information was in the files.
After the State rested, Ferenz testified on his own behalf. Regarding the computer evidence, Ferenz testified that while he was deployed, Amanda took the Gateway to California where she and her mother both used it. He also testified that he had the Dell since 2004 and that an estimated 12 to 15 people had access to it over the years, including multiple roommates and others who would use it for video conferencing. Ferenz stated that he did not download the images that created the file paths to which Nixon testified and did not know how they got on the computers.
Concerning the events of the night in question, Ferenz testified that Amanda left for work at approximately 4 or 4:30 p.m. They had all been relaxing in their pajamas that day, as was their custom on Sundays, but after Amanda left for work, C.J. and B.F. wanted to go outside. Ferenz told them to change because they could not go outside in their pajamas, so everyone got dressed and went outside. After about 90 minutes, they came inside and ate dinner. Between 7 and 8 p.m., Ferenz put B.F. to bed, after which Ferenz and C.J. hung out in the living room until C.J.'s bedtime. When it was time for CJ. to shower, Ferenz was using the hallway bathroom and realized he would be longer than he anticipated, so he yelled at CJ. to shower in the master bathroom. When Ferenz came out of the hallway bathroom, he went to check on CJ. and told her to hurry up.
When C J. finished showering, she went to her room and, as she got dressed in her pajamas, Ferenz showered in the master bathroom. After his shower, Ferenz masturbated and then lay down on his bed to watch TV. C J. came into the master bedroom and asked if she could lay with him and watch a TV show. Ferenz testified that he and C.J. tickled each other and were having fun and “goofing around.” He explained that he stated during the videotaped interview that he bumped C J.'s vaginal area because, during the interview, his mind was “running a thousand miles a minute of just what's going on” and he never touched C J. with any sexual intent.
As to the statement he made during the interview about C J. seeing pornography on his computer, Ferenz again testified that he was very nervous during the interview and he did not explain that situation well. He testified that he had been watching pornography on his computer in the living room and C J. was in bed. He left the computer to get a drink and when he came out of the kitchen, C J. was watching the computer and asked him about the pornography. He testified that he told her it was “ ‘an adult video,’ “ closed the computer, and shooed her out of the room.
Regarding his statement at the end of the video that he had viewed child pornography on his computer, he explained that it was accidental and he had never searched for anything other than legitimate adult pornography. On cross-examination, he admitted that he had searched the term “jail bait,” but he stated he had done so with the understanding that the term referred to adult pornography; he denied searching for or downloading any child pornography.
Next, Ferenz called John Mallery, a computer forensics expert. Mallery testified that he had examined the three computers in this case and reviewed the HARCFL's report. Mallery further testified that he could not tell whether there were any photographs associated with the file paths at issue because no photographs were recovered. He deemed the file path evidence as “essentially meaningless” because “[a]nyone can name a file anything [a]nd so without having the file to look at, the file name may not actually reflect the contents of what the original image contained.” Mallery explicitly testified that there was no way to tell who downloaded the files, when they were downloaded, how they were downloaded, or the contents of the files. He further testified that he had not encountered the term “jail bait” in a case involving child pornography and that he felt it was an ambiguous term, not exclusive to child pornography.
Finally, Ferenz called Staff Sergeant Dustin Peterson as a character witness. Peterson testified that he had known and spent a significant amount of time with Ferenz over the preceding 4 years, that he saw no indication of deviant sexual interests, and that Ferenz had a reputation for being honest and truthful. He further testified about prior incidents in which Amanda had called him and attempted to get Ferenz into trouble.
Prior to submitting the case to the jury, the State asked the district court to dismiss the attempted rape charge. The jury found Ferenz guilty of the four remaining counts. The jury also responded to a special question on the verdict form finding beyond a reasonable doubt that Ferenz was 18 years old or older at the time he committed the crimes. Ferenz filed posttrial motions for judgment of acquittal and for a new trial. He also filed a motion for a downward durational departure in which he asked the district court to depart to the sentencing grid and sentence him to a severity level 1 crime.
Sentencing was held on October 21, 2013. The district court denied the motions for judgment of acquittal and for a new trial. At that point, Ferenz argued his motion for a departure sentence. After hearing a statement from Ferenz personally and listening to the State's arguments, the district court imposed concurrent sentences of life in prison without the possibility of parole for 25 years for each conviction under Jessica's Law. The district court also noted that upon release each conviction required lifetime parole. However, the journal entry of judgment indicated that Ferenz was subject to lifetime postrelease supervision. Ferenz timely appealed the district court's judgment.
Multiplicitous Convictions
Ferenz first contends that his two aggravated indecent liberties with a child convictions are multiplicitous, as are his two aggravated criminal sodomy convictions, and that this court must therefore vacate one of each of those convictions. The State contends that Ferenz has failed to preserve his claim of multiplicity and, even if considered, there is insufficient information in the record to sustain his claim on appeal.
The issue of multiplicity is a question of law and an appellate court's review is unlimited. State v. Colston, 290 Kan. 952, 971, 235 P.3d 1234 (2010).
As to the State's argument that Ferenz has failed to preserve his claim of multiplicity, our Supreme Court has repeatedly held that an appellate court may consider a multiplicity issue raised for the first time on appeal in order to serve the ends of justice or to prevent a denial of fundamental rights. See, e.g., State v. Weber, 297 Kan. 805, 809, 304 P.3d 1262 (2013) ; Colston, 290 Kan. at 971 ; State v. Walker, 283 Kan. 587, 609, 153 P.3d 1257 (2007).
“ ‘[M]ultiplicity is the charging of a single offense in several counts of a complaint or information.’ [Citations omitted.] ‘The principal danger of multiplicity is that it creates the potential for multiple punishments for a single offense, which is prohibited by the Double Jeopardy Clauses of the Fifth Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights.’ [Citation omitted.]
“ ‘[T]he overarching inquiry is whether the convictions are for the same offense. There are two components to this inquiry, both of which must be met for there to be a double jeopardy violation: (1) Do the convictions arise from the same conduct? and (2) By statutory definition are there two offenses or only one?’ [Citation omitted.]” State v. King, 297 Kan. 955, 970, 305 P.3d 641 (2013).
To determine whether the convictions arose from the same-or “unitary”—conduct, this court considers the following factors:
“ ‘(1) whether the acts occur at or near the same time; (2) whether the acts occur at the same location; (3) whether there is a causal relationship between the acts, in particular whether there was an intervening event; and (4) whether there is a fresh impulse motivating some of the conduct.’ [Citation omitted.]” State v. Holman, 295 Kan. 116, 148, 284 P.3d 251 (2012).
As for the second step, our Supreme Court has instructed:
“ ‘If the double jeopardy issue arises because of convictions on multiple counts for violation of a single statute, the test is: How has the legislature defined the scope of conduct which will comprise one violation of the statute? Under this test, the statutory definition of the crime determines what the legislature intended as the allowable unit of prosecution. There can be only one conviction for each allowable unit of prosecution.’ “ 295 Kan. at 148–49.
Ferenz challenges his aggravated indecent liberties with a child convictions as multiplicitous and his aggravated criminal sodomy convictions as multiplicitous. The two aggravated indecent liberties with a child convictions arise from a violation of a single statute. Likewise, the two aggravated criminal sodomy convictions arise from a violation of a separate single statute. As a result, the “unit of prosecution” test applies as to each statute. We will first address Ferenz' multiple convictions of aggravated indecent liberties with a child followed by his multiple convictions of aggravated criminal sodomy.
Aggravated indecent liberties with a child convictions
Counts 4 and 5 of the original information charged Ferenz with two separate counts of aggravated indecent liberties with a child. See K.S.A.2014 Supp. 21–5506(b)(3)(A). At the preliminary hearing, the prosecutor explained that the charges of aggravated indecent liberties were based upon C.J. touching Ferenz and Ferenz touching C.J., both in the shower. The subsequently filed bill of particulars matched the prosecutor's statements at the preliminary hearing. By the time closing argument occurred, the State had filed an amended information, which included the two charges of aggravated indecent liberties with a child as counts 3 and 4. In closing argument, the State explained:
“Count III is the ag [sic ] indecent-Count III and IV are the ag [sic ] indecent liberties. And again, it's him touching her and her touching him, and I want to make sure it's clear on what we're saying. This-both of the ag [sic ] indecent liberties are based on what [C.J.] said happened in the shower. And on Count III it says that the defendant engaged in lewd touching. And what we mean by that is that the defendant was the one touching her. Count IV says that the defendant submitted to touching. That means that the defendant allowed her to touch him.”
Moreover, during deliberations, the jury sent out a question asking: “Are Counts III and IV restricted to the activity that occurred in the shower?” The district court—with no objection from the State—replied: “Yes.” Thus, it is clear from the record that the aggravated indecent liberties with a child convictions were based upon C.J. touching Ferenz and Ferenz touching C.J., both in the shower.
The record on appeal shows that the acts supporting the aggravated indecent liberties with a child convictions occurred at or near the same time and in the same location. Likewise, there was no evidence or testimony about an intervening act between C.J. touching Ferenz and Ferenz touching C.J., nor was there evidence or testimony of a fresh impulse motivating some of the conduct. Clearly, the separate aggravated indecent liberties with a child convictions arose from the same, or unitary, conduct.
The State spends the entirety of its appellate argument asserting that it is Ferenz' burden to prove that the convictions were multiplicitous, which he cannot do because his failure to argue multiplicity below led to the State's failure to elicit testimony that would now show that the convictions were not multiplicitous. The State argues that the record is insufficient to support Ferenz' claim of multiplicity because, for example, “other than the location, C.J. did not testify to any of the factors necessary to determine whether [the] conduct was unitary or discrete.”
We reject the State's argument that the record is insufficient to consider Ferenz' multiplicity claim. The State's argument ignores the fact that although it is Ferenz' burden to prove his claim of error on appeal, the State has the duty at trial to present sufficient evidence to support the convictions, including such evidence that supports the fact that the convictions are not multiplicitous. Contrary to the State's characterization, the record is not insufficient to determine whether the convictions were multiplicitous; it is merely insufficient to find in the State's favor.
Because the conduct supporting Ferenz' multiple convictions of aggravated indecent liberties with a child was unitary, this court turns to the second inquiry in the multiplicity analysis: whether, by statutory definition, there were two offenses or only one. See King, 297 Kan. at 970. The answer to this inquiry rests on how the legislature has defined the conduct that comprises one violation of the statute, i.e., what the legislature intended as the allowable unit of prosecution. See Holman, 295 Kan. at 148–49.
Ferenz argues that this step is controlled by State v. Sprung, 294 Kan. 300, 277 P.3d 1100 (2012). In that case, our Supreme Court addressed the multiplicity of the defendant's two convictions of aggravated indecent liberties with a child (under prior version of statute) and, after determining that the convictions arose from unitary conduct, moved to the second step of the analysis. 294 Kan. at 307–08. Much like Ferenz' convictions, the defendant's convictions in Sprung were based upon one incident in which the defendant touched the victim and a separate incident in which the victim touched the defendant. The Sprung court concluded:
“We are persuaded by Sprung's argument that K.S.A. 21–3504(a)(3)(A) creates only a single unit of prosecution. Had the legislature intended to create one unit of prosecution when the offender touches the child and a separate unit of prosecution when the child touches the offender, the legislature could have separated subsection (A) into two subsections, i.e., one subsection proscribing any lewd fondling or touching of a child by the offender and one subsection proscribing any lewd fondling or touching of the offender by the child. Instead, the legislature defined aggravated indecent liberties as ‘engaging in any of the following acts,’ and then provided only two defining subsections, (A) and (B). [Citations omitted.]
“Further, ... K.S.A. 21–3504(a)(3)(A) possesses a unifying intent—‘to arouse or to satisfy the sexual desires'—with the object of that intent being the child, the offender, or both. [Citation omitted.] The legislature's inclusion of a unitary intent in subsection (A) lends additional support to our conclusion that the legislature intended to create a single unit of prosecution for that subsection.
“Moreover, even if we were to find the legislature's intent to be unclear as to the unit of prosecution defined by K.S.A. 21–3504(a)(3)(A), the rule of lenity would mandate that we construe the statute in favor of the defendant. Under that rule, statutory silence and ambiguity regarding the unit of prosecution is construed in favor of the defendant. [Citation omitted.]” 294 Kan. at 310–11.
The Sprung court ultimately held that the plain language of the statute created a single unit of prosecution when an offender fondles or touches a child and the child fondles or touches the offender. 294 Kan. at 311. Because the convictions were multiplicitous, the court affirmed one conviction, reversed the second, and vacated the sentence for the second conviction. 294 Kan. at 311.
Based on Sprung, Ferenz' two convictions of aggravated indecent liberties with a child are multiplicitous. We reverse one of the convictions and vacate the corresponding sentence. Because the district court ordered the sentences to run concurrently, there is no need to remand for resentencing.
Aggravated criminal sodomy convictions
Ferenz also challenges his two convictions of aggravated criminal sodomy as multiplicitous. Once again, the State does not address the merits of this challenge, arguing only that because Ferenz failed to raise this issue below the record is insufficient for this court to determine whether the convictions are multiplicitous.
At the preliminary hearing, the prosecutor explained that both aggravated criminal sodomy counts were based upon acts that occurred on the bed, one charge for Ferenz' oral contact with C.J.'s genitals and one charge for C.J.'s oral contact with Ferenz' genitals. The subsequently filed bill of particulars matched the prosecutor's statements at the preliminary hearing. In closing argument, the prosecutor described the aggravated criminal sodomy charges to the jury as follows:
“[I]n Count I he's charged with aggravated criminal sodomy, and this is for the action that took place on the bed. And it is her—the allegation is her putting his-her mouth on his private area.... And specifically, this is for the allegation that [C.J.] said that while she was on the bed, that the defendant had her lick his penis. That's Count I....
“Now, Count II is also a count of aggravated sodomy, and it's also for the actions that took place on the bed, and it's for him having oral contact with her private area. Her female genitalia.”
Based upon the evidence and testimony at trial, the acts supporting the aggravated criminal sodomy convictions appear to have occurred at or near the same time, they both occurred on the bed, and there was no evidence of an intervening event or a fresh impulse motivating some of the conduct. Therefore, the conduct was unitary, and we proceed to the second step of the analysis to determine whether the legislature intended one allowable unit of prosecution. See King, 297 Kan. at 970 ; Holman, 295 Kan. at 148–49.
The State convicted Ferenz of two counts of aggravated criminal sodomy. See K.S.A.2014 Supp. 21–5504(b)(l). Pursuant to this statute, aggravated criminal sodomy is sodomy with a child who is under 14 years of age. K.S.A.2014 Supp. 21–5501(b) defines sodomy as: “oral contact or oral penetration of the female genitalia or oral contact of the male genitalia; anal penetration, however slight, of a male or female by any body part or object; or oral or anal copulation or sexual intercourse between a person and an animal .”
Ferenz argues that the analysis in Sprung is instructive and should guide this court to find that the legislature intended for oral contact with the female genitalia and oral contact of the male genitalia to constitute a single offense, rendering his two convictions multiplicitous. Specifically, Ferenz argues that just as the victim touching the offender and the offender touching the victim constituted one act of aggravated indecent liberties with a child in Sprung, so do the different types of sodomy at issue here.
We find that Ferenz' argument has merit. Moreover, although Ferenz does not address the implications of the statutory definition of sodomy, we note that the definition places “oral contact or oral penetration of the female genitalia or oral contact of the male genitalia” in one subsection and, in fact, within one phrase of the definition, set off by a semicolon from the other definitions. See K.S.A.2014 Supp. 21–5501(b). Thus, the plain language of the statute creates a single unit of prosecution for the acts underlying Ferenz' aggravated criminal sodomy convictions, which means that the separate convictions are multiplicitous. Accordingly, we reverse one of the convictions and vacate the corresponding sentence. Because the district court ordered the sentences to run concurrently, there is no need to remand for resentencing.
Evidence of Names of Deleted Computer Files
Next, Ferenz asserts that the district court erred in admitting evidence of deleted files on computers seized from his house. The State's expert at trial called the evidence “file paths,” and he explained that the evidence is a way of organizing data on a computer to route files. He further explained that a file path contains information about where a file is or was located on a computer, includes the file name, and may be discovered even after the file has been deleted. Specifically, Ferenz contends that the evidence of the file paths found on the seized computers was not admissible under either K.S.A.2014 Supp. 60–455(b) or K.S.A.2014 Supp. 60–455(d) and that any probative value was greatly outweighed by its unduly prejudicial effect. See K.S.A. 60–445. The State responds that the evidence was not subject to K.S.A.2014 Supp. 60–455 and that, in any event, the district court was correct in admitting the evidence.
During the trial, over Ferenz' continuing objection, the State presented testimony from Nixon and admitted into evidence exhibits of printouts showing 13 file names:
(1) “BAMBINA–Collection 01 Real Child Porn!!! (illegal preteen underage lolita kiddy incest little girl rape anal cum sex lesb(l)(l).jpg”;
(2) “fucked lolita preteen (incest kiddy rape).jpg”;
(3) “incest rape daughter young preteen lolita cherry pop jpg”;
(4) “young naked little girl kiddy child porn—15ddoggprn lolita incest (l). jpg”;
(5) “asian preteen lolita incest ddoggnprn!9fuksis (incest kiddy rape) (1)(1)(1)(l).jpg”;
(6) “Preteengirlrape (incest kiddy rape).jpg”;
(7) “12year04 (illegal iincest kiddy rape) preteen lolita (1)(1)(l).jpg”;
(8) “3year, preteen, incest, young, anal, dildo, hentai, animal, dog). jpg”;
(9) “Preteen family sex (l).jpg”;
(10) “young lolita incest porno underage.jpg”;
(11) “pedo 13 year old daughter with dad pic3 (1)(l).jpg”;
(12) “riding dadd (preteen incest rape)..jpg”; and
(13) “13–teal Child Porn!!!(illegal preteen underage lolita kiddy incest little girl rape anal cum sex lesbian blow(1)(1)(1)(1)(2).jpg.”
We review a district court's decision to admit or exclude evidence under a multi-step process. First, a court must determine whether the evidence is relevant. Generally speaking, all relevant evidence is admissible. K.S.A. 60–407(f). K.S.A. 60–401(b) defines relevant evidence as “evidence having any tendency in reason to prove any material fact.” State v. Bowen, 299 Kan. 339, 348, 323 P.3d 853 (2014). This definition encompasses two elements: a materiality element and a probative element. Standards of review for each element vary.
Evidence is material when the facts it supports is in dispute or in issue in the case. Review for materiality is de novo. 299 Kan. at 348. Evidence is probative if it has any tendency to prove any material fact. State v. Lowrance, 298 Kan. 274, 289, 312 P.3d 328 (2013). An appellate court reviews the district court's assessment of the probative value of evidence under an abuse of discretion standard. State v. Huddleston, 298 Kan. 941, 959–60, 318 P.3d 140 (2014).
Even if evidence is relevant, a trial court has discretion to exclude it where the court finds its probative value is outweighed by its potential for producing undue prejudice. See K.S.A. 60–445. An appellate court reviews any such determination for an abuse of discretion. See Lowrance, 298 Kan. at 291.
A court's consideration of the admissibility of evidence can also require application of statutory rules controlling the admission and exclusion of certain types of evidence. These statutory rules are applied as a matter of law or as an exercise of the trial court's discretion, depending on the applicable rule. Bowen, 299 Kan. at 348. The standard of appellate review will vary accordingly. When the question of whether the trial court complied with specific statutory requirements for admitting evidence requires interpretation of a statute, appellate review is de novo. State v.. Stafford, 296 Kan. 25, 47, 290 P.3d 562 (2012).
Applicability of K.S.A.2014 Supp. 60–455
K.S.A.2014 Supp. 60–455 states, in relevant part:
“(a) Subject to K.S.A. 60–447, and amendments thereto, evidence that a person committed a crime or civil wrong on a specified occasion, is inadmissible to prove such person's disposition to commit crime or civil wrong as the basis for an inference that the person committed another crime or civil wrong on another specified occasion.
“(b) Subject to K.S.A. 60–445 and 60–448, and amendments thereto, such evidence is admissible when relevant to prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.
“(d) Except as provided in K.S.A. 60–445, and amendments thereto, in a criminal action in which the defendant is accused of a sex offense under article[ ] ... 55 ... of chapter 21 of the Kansas Statutes Annotated, ... and amendments thereto, evidence of the defendant's commission of another act or offense of sexual misconduct is admissible, and may be considered for its bearing on any matter to which it is relevant and probative.”
In other words, for propensity evidence to be inadmissible under K.S.A.2014 Supp. 60–455(a), the evidence in question must be “evidence that a person committed a crime or civil wrong on a specified occasion.” But such evidence is still admissible under K.S.A.2014 Supp. 60–455(b) if it is offered for certain limited purposes. Under K.S.A.2014 Supp. 60–455(d), when the defendant is accused of a sex offense, “evidence of the defendant's commission of another act or offense of sexual misconduct” is admissible and “may be considered for its bearing on any matter to which it is relevant and probative.”
It is questionable whether the previous existence of since-deleted computer files with names that at some point contained sexually explicit words and phrases would constitute “evidence that a person committed a crime or civil wrong on a specified occasion” under K.S.A.2014 Supp. 60–455(a). Even if such evidence constituted evidence that a person committed a crime or civil wrong, which is questionable, K.S.A.2014 Supp. 60–455(a) applies only to limit evidence that a person committed a crime or civil wrong on a specified occasion. Here, the experts for the State and Ferenz both acknowledged that there was no way to determine when the files were on the computer. Thus, K.S.A.2014 Supp. 60–455(a) does not apply to limit the computer evidence, and we need not consider whether the evidence would be admissible for a limited purpose under K.S.A.2014 Supp. 60–455(b).
K.S.A.2014 Supp. 60–455(d) does not contain a reference to “a crime or civil wrong on a specified occasion.” Instead, in order for subsection (d) to apply, the evidence in question must be “evidence of the defendant's commission of another act or offense of sexual misconduct.” K.S.A.2014 Supp. 60–455(g) provides 10 definitions of the term “act or offense of sexual misconduct” as used in the subsection, including K.S.A.2014 Supp. 21–5510(a)(2) —the statute that prohibits sexual exploitation of a child by “possessing any visual depiction of a child under 18 years of age shown or heard engaging in sexually explicit conduct with intent to arouse or satisfy the sexual desires or appeal to the prurient interest of the offender or any other person.” See K.S.A.2014 Supp. 60–455(g)(l). Based on the plain language of the statutes, we conclude that K.S.A.2014 Supp. 60–455(d) applies to the computer evidence in question. The State did not rely upon K.S.A.2014 Supp. 60–455(d) for admission of the evidence at trial. But as the State points out, Kansas appellate courts will uphold the admission of evidence under an inapplicable statutory section if the evidence could have been properly admitted under a different rule. See State v. Hart, 297 Kan. 494, 512, 301 P.3d 1279 (2013).
Admissibility under K.S.A.2014 Supp. 60–455(d)
Having found K.S.A.2014 Supp. 60–455(d) applicable, we next turn to whether the evidence was admissible under that statute. As previously noted, K.S.A.2014 Supp. 60–455(d) states:
“Except as provided in K.S.A. 60–445, and amendments thereto, in a criminal action in which the defendant is accused of a sex offense under article[ ] ... 55 ... of chapter 21 of the Kansas Statutes Annotated, ... and amendments thereto, evidence of the defendant's commission of another act or offense of sexual misconduct is admissible, and may be considered for its bearing on any matter to which it is relevant and probative.”
Our Supreme Court has interpreted this provision, stating:
“Under the plain language of K.S.A.2013 Supp. 60–455(d), an exception exists to the prohibition on admission of certain types of other crimes and civil wrongs evidence to prove propensity of a criminal defendant to commit the charged crime or crimes for sex crime prosecutions. As long as the evidence is of another act or offense of sexual misconduct and is relevant to propensity or any matter, it is admissible if the district court is satisfied the evidence's probative value outweighs its potential for undue prejudice. A district court's determination that the probative value of evidence outweighs its potential for producing undue prejudice is reviewed for abuse of discretion.” Bowen, 299 Kan. 339, Syl. ¶ 7.
The State argues that the proffered computer evidence was probative to prove Ferenz' propensity to commit sexual offenses with C.J., his stepdaughter, because it illustrated his attraction to “incest related child pornography.” Ferenz argues that K.S.A.2014 Supp. 60–455(d) is limited to instances in which the prior act or offense of sexual misconduct is similar to the charged offense. For support, he cites State v. Stevens, No. 109,047, 2014 WL 1096635, at *7 (Kan.App.2014) (unpublished opinion), petition for rev. filed April 14, 2014, in which a panel of this court held a district court erred by allowing evidence of a prior rape of an adult woman in a prosecution on charges of aggravated criminal sodomy and aggravated indecent liberties with a child. The Stevens court held that the evidence of the rape “bears little or no resemblance, relevance, or probative value to a propensity to commit” the crimes charged. 2014 WL 1096635, at *7.
Relying on Stevens, Ferenz contends that sexual exploitation of a child-the crime of possessing child pornography-is not similar enough to offenses requiring sexual touching for the computer evidence to be admissible under K.S.A.2014 Supp. 60–455(d). He cites State v. Coburn, 38 Kan.App.2d 1036, 1046–47, 176 P.3d 203, rev. denied 286 Kan. 1181 (2008), in which this court held, for purposes of a joinder analysis, that sexual exploitation charges and aggravated indecent liberties charges “do not belong to the same class of crimes.” The State persuasively responds by arguing that, unlike evidence of the prior rape of an adult woman in a child sex offense prosecution, the relevance of child pornography in a child molestation case is obvious.
Indeed, our Supreme Court has specifically recognized that
“the modern psychology of pedophilia tells us that propensity evidence may actually possess probative value for juries faced with deciding the guilt or innocence of a person accused of sexually abusing a child. In short, sexual attraction to children and a propensity to act upon it are defining symptoms of this recognized mental illness. [Citation omitted.]” State v. Prine, 287 Kan. 713, 737, 200 P.3d 1 (2009), superseded by statute as recognized in State v. Hart, 44 Kan.App.2d 986, 242 P.3d 1230 (2010), aff'd 297 Kan. 494, 301 P.3d 1279 (2013).
Moreover, our Supreme Court recently recognized, with no limitation to similar offenses, that “[i]n sex offense cases, propensity evidence is material, i.e., has a ‘legitimate and effective bearing’ on defendants' guilt. [Citations omitted.]” Bowen, 299 Kan. at 349. Under Bowen, to the extent that the computer evidence was propensity evidence allowed under K.S.A.2014 Supp. 60–455(d), it was material to Ferenz' guilt.
Whether the evidence of the deleted computer files was admissible under K.S.A.2014 Supp. 60–455(b), (d), or independent of this statute under the general rules of evidence, the most significant question is whether the district court abused its discretion in finding that “the probative value of the evidence outweigh[ed] its potential for producing undue prejudice.” See K.S.A. 60–445 ; Bowen, 299 Kan. 339, Syl. ¶ 7. A district court abuses its discretion if its action (1) is arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted by the trial court; (2) is based on an error of law; or (3) is based on an error of fact. State v. Frierson, 298 Kan. 1005, 1016, 319 P.3d 515 (2014).
Ferenz points to the testimony of his expert witness, Mallery, who testified that the value of file names in determining what the files contained was “essentially meaningless.” Mallery also testified there was no way to tell who downloaded the files, when they were downloaded, how they were downloaded, or what information they contained. For these reasons, Ferenz argues that the probative value of the evidence in question was slight whereas the potential for undue prejudice was great.
But as the State points out, Nixon testified that a computer file generally is named for the user's convenience so that the user knows what is in the file. Nixon testified that his experience told him that “more than likely it's gonna be what it says it is.” Stated differently, it was reasonable to assume that a file name would be descriptive of the material in the file. Moreover, the fact that the files were saved to a folder titled “GEO” specifically tied the deleted files to “George” Ferenz. At trial, Ferenz acknowledged that he had “accidentally” viewed child pornography on his computer. The fact that the HARCFL had found evidence of 30 files containing JPG images that at some point had been downloaded and saved to a folder titled “GEO” was relevant to rebut Ferenz' assertion that he accidentally viewed child pornography on his computer.
We agree with Ferenz that the potential for undue prejudice associated with this evidence was great. But we also agree with the State that the evidence of the names of the deleted computer files had some probative value relative to the charges that Ferenz molested his stepdaughter. Moreover, the jury heard the evidence from both experts that there was no way to be certain who downloaded the files, when they were downloaded, how they were downloaded, or what information the files contained. The weight to be given to this testimony was for the jury to decide. We are unable to find that no reasonable person would have taken the view adopted by the district court that the probative value of the evidence outweighed its prejudicial effect. Thus, we conclude the district court did not err in admitting evidence of the names of the deleted computer files.
Special Questions on Verdict Forms
Next, Ferenz argues that the district court erred by using special questions on the verdict forms in order to determine whether the jury unanimously found beyond a reasonable doubt that Ferenz was 18 years or older when he committed the offenses. For each charge of aggravated criminal sodomy and aggravated indecent liberties with a child, the district court gave the jury a verdict form that included options for finding Ferenz guilty or not guilty. Under the section in which the jury could indicate it found Ferenz guilty, the verdict form continued: “If you find the defendant guilty of [name of crime], do you also unanimously find beyond a reasonable doubt that the defendant was 18 or more years old at the time the offense was committed?” Ferenz did not object to the verdict forms at trial, but he now claims that the district court committed structural error by using the special questions on the verdict forms.
Because Ferenz did not object to the special verdict forms as given, the standard of review is governed by K.S.A.2014 Supp. 22–3414(3) and State v. Williams, 295 Kan. 506, Syl. ¶ 3, 286 P.3d 195 (2012). A reviewing court must first determine whether there was any error at all. If error is found, then the court assesses whether it is firmly convinced that the jury would have reached a different verdict had the instruction error not occurred. The party claiming a clearly erroneous instruction maintains the burden to establish the degree of prejudice necessary for reversal. State v. Herbel, 296 Kan. 1101, 1121, 299 P.3d 292 (2013).
Ferenz candidly admits that our Supreme Court addressed this question in State v. Brown, 298 Kan. 1040, 1043–50, 318 P.3d 1005 (2014), where it held that the use of special questions on criminal verdict forms to determine the jury's findings on an age element of off-grid sex offenses was error, but it was not clear error requiring reversal. In so concluding, the court noted its previous recognition that “age [is] an essential element” of the off-grid offenses, then stated:
“Brown was entitled to have the jury instructed on his age as part of the elements instructions. [Citation omitted.] A jury is vested with the duty to determine whether a defendant is guilty or not guilty of each charged crime; and in fulfilling that duty, it must apply the law to the facts as it finds them. Therefore, the failure to properly instruct a jury on the essential elements of the crime charged typically prevents the jury from rendering a proper verdict. [Citation omitted.] Moreover, a defendant's right to have the jury properly instructed on all essential elements of the charged crime is rooted in the Sixth Amendment to the United States Constitution, which guarantees a defendant's right to trial by jury. See United States v. Gaudin, 515 U.S. 506, 522–23, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995) (The Constitution gives a criminal defendant the right to have a jury determine, beyond a reasonable doubt, his guilt of every element of the crime with which he is charged.').” 298 Kan. at 1045.
Although Ferenz asserts that Brown “compels” this court to conclude that the special question verdict forms used here violated his right to a jury trial under the Sixth Amendment to the United States Constitution—a point the State contests—Ferenz also freely admits that Brown would lead this court to find that error harmless. In light of that, Ferenz argues that the special questions violated his right to trial by jury as provided by § 5 of the Kansas Constitution Bill of Rights, which states: “The right of trial by jury shall be inviolate.” He contends that the right of trial by jury under § 5 of the Kansas Constitution Bill of Rights is more protective than that found in the Sixth Amendment, it may never be compromised, and therefore a violation of that right is structural error, requiring reversal. See Harrell v. State, 134 So.3d 266, 269–75 (Miss.2014).
Ferenz did not make this argument in district court. Constitutional grounds for reversal asserted for the first time on appeal are not properly before the appellate court for review. Bowen, 299 Kan. at 354. Although there are exceptions to this general rule, Ferenz does not argue that any of the exceptions apply. See 299 Kan. at 354. Supreme Court Rule 6.02(a)(5) (2014 Kan. Ct. R. Annot. 40) requires an appellant to explain why an issue that was not raised below should be considered for the first time on appeal. Ferenz has failed to comply with this rule; thus, the issue is not properly preserved for appeal.
Even if this issue was properly preserved, we would decline to extend the protections of § 5 of the Kansas Constitution Bill of Rights beyond the parameters of its federal counterpart as to this issue. Here, the district court should have instructed the jury that Ferenz' age was an essential element of the crimes, rather than submitting the issue as special questions on the verdict forms. But either way, this finding was made by the jury at Ferenz' trial; he was not denied his constitutional right to a jury trial. Following the harmless error reasoning of Brown, 298 Kan. at 1048–50, we find the district court's use of the special questions on the verdict forms was not clear error requiring reversal of Ferenz' convictions.
Defective Complaint
Next, Ferenz argues that the complaint was defective as to the aggravated criminal sodomy charges in that it failed to allege all the elements of the crime, that this deficiency divested the district court of jurisdiction, and that this court therefore must reverse his aggravated criminal sodomy convictions. Ferenz candidly acknowledges, however, that his argument is controlled by State v. Hall, 246 Kan. 728, 765, 793 P.2d 737 (1990), overruled in part on other grounds by Ferguson v. State, 276 Kan. 428, 78 P.3d 40 (2003). Ferenz states that he is raising this issue primarily for the purpose of preserving it for Supreme Court review.
The Court of Appeals is duty bound to follow Kansas Supreme Court precedent, absent some indication the Supreme Court is departing from its previous position. State v. Ottinger, 46 Kan.App.2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. 946 (2012). Our Supreme Court has not indicated that it is departing for the rule established in Hall. Thus, Ferenz' argument fails.
Motion for Sentencing Departure
Next, Ferenz contends that the district court erred by failing to explicitly rule on his motion for a departure sentence to the sentencing grid. He argues that the district court had the discretion to grant a departure and that the court abused its discretion by failing to rule on the motion. The State replies that the district court implicitly denied Ferenz' departure motion when it sentenced him to the presumptive, off-grid sentences.
On October 9, 2013, after his convictions but prior to sentencing, Ferenz filed a motion for a downward durational sentencing departure to the sentencing grid. He pointed out that he had no criminal history, C.J. was not physically harmed, and Ferenz was a productive member of the community, as well as a commissioned military serviceman. At the sentencing hearing, Ferenz orally argued the motion as well, stressing the same mitigating factors. After hearing the State's arguments against departure, the district court imposed concurrent hard 25 life sentences for each of the convictions, but it did not explicitly deny Ferenz' departure motion.
As stated above, Ferenz now argues that the district court's “failure to rule” on the motion was an abuse of discretion that requires this court to remand for resentencing. However, it is abundantly clear that the district court denied Ferenz' motion for departure sentences—the district court demonstrated as much when it imposed the presumptive sentences for the crimes. Here, there is no indication that the sentencing court did not realize it had the authority to depart to on-grid sentences; it simply chose not to do so. A judge is not required to state the reasons a departure motion is denied. State v. Florentin, 297 Kan. 594, 601–02, 303 P.3d 263 (2013). We find no merit in Ferenz' claim that the district court failed to rule on his motion for a sentencing departure.
Lifetime Postrelease Supervision
Finally, Ferenz and the State agree that the journal entry of judgment erroneously imposes lifetime postrelease supervision although the district court correctly noted at sentencing that Ferenz would be eligible for parole after no less than 25 years of imprisonment. See K.S.A.2014 Supp. 22–3717(b)(6). Ferenz asks this court to order the district court to issue a nunc pro tunc order correcting the journal entry to show imposition of “a lifetime parole sentence following his release from prison.”
Our Supreme Court has repeatedly noted the “distinction between lifetime parole and lifetime postrelease supervision.” See, e.g., State v. Smith, 299 Kan. 962, 986, 327 P.3d 441 (2014). Yet sentencing Ferenz to “a lifetime parole sentence” is not the appropriate remedy. As our Supreme Court further noted: “[P]arole is separate and distinct from the sentence and will be granted, if at all, by the Kansas Prisoner Review Board (successor to the Kansas Parole Board). The proper remedy is simply to vacate the lifetime postrelease supervision imposed.” 299 Kan. at 986. Thus, we vacate the lifetime postrelease portion of Ferenz' hard 25 life sentences.
Affirmed in part, reversed in part, and vacated in part.