Opinion
No. 111,236.
2014-12-19
STATE of Kansas, Appellee, v. Joseph B. SANDERS, Appellant.
Accord K.S.A.2013 Supp. 22–3717(d)(1)(G) and (5)(I).
Appeal from Pottawatomie District Court; Jeffrey R. Elder, Judge.
Submitted for summary disposition pursuant to K.S.A.2013 Supp. 21–6820(g) and (h).
Before HILL, P.J., McANANY, J., and BURGESS, S.J.
MEMORANDUM OPINION
PER CURIAM.
Joseph B. Sanders pled no contest to one count of aggravated sexual battery, a severity level 5 person felony. At sentencing, the district court imposed 24 months of postrelease supervision. The district court later corrected the sentence and imposed lifetime postrelease supervision under K.S.A.2010 Supp. 22–3717(d)(1)(G), a sentencing statute that requires lifetime postrelease supervision for people convicted of sexually violent crimes. Sanders appeals, arguing that the district court erred in sentencing him to a term of lifetime postrelease supervision.
Factual and Procedural Background
The State charged Sanders with aggravated sexual battery for events that occurred with a 17–year–old girl in October 2010. Sanders later pled no contest to the charge, a severity level 5 person felony, and the district court imposed a 45–month prison sentence with 24 months of postrelease supervision.
The State later filed a motion to correct an illegal sentence, arguing that Sanders should have been sentenced to lifetime postrelease supervision. The district court conducted a hearing on the State's motion on January 16, 2014, at which Sanders was present and represented by counsel. Sanders opposed the State's motion, arguing that “the Court ordered the twenty-four months and that's what ... it should be.” The district court found that pursuant to K.S.A.2010 Supp. 22–3717(d)(1)(G), Sanders' conviction of aggravated sexual battery made him subject to a mandatory lifetime period of postrelease supervision. Therefore, the district court concluded that Sanders' sentence needed to be corrected and imposed lifetime postrelease supervision.
Sanders timely appeals his sentence. This court granted Sanders' motion for summary disposition in lieu of briefs under Supreme Court Rule 7.041A (2013 Kan. Ct. R. Annot. 63).
Analysis
Did the district court err in sentencing Sanders to a lifetime term of postrelease supervision?
The district court modified Sanders' original sentence by later imposing lifetime postrelease supervision. Courts generally do not have jurisdiction to increase legally imposed sentences. State v. Ballard, 289 Kan. 1000, 1010–11, 218 P.3d 432 (2009). But illegal sentences, including those that do not conform to the statutory provision setting out the sentence, can be corrected at any time. See K.S.A. 22–3504(1); State v. Gilbert, 299 Kan. 797, 799, 326 P.3d 1060 (2014).
The State argues that Sanders' initial sentence was illegal because K.S.A.2010 Supp. 22–3717(d)(1)(G) provides that any person convicted of sexually violent crimes—including aggravated sexual battery—must receive lifetime postrelease supervision:
“(d)(1) Persons sentenced for crimes, other than off-grid crimes, committed on or after July 1, 1993, or persons subject to subparagraph (G), will not be eligible for parole, but will be released to a mandatory period of postrelease supervision upon completion of the prison portion of their sentence as follows:
(G) Except as provided in subsection (u), persons convicted of a sexually violent crime committed on or after July 1, 2006, and who are released from prison, shall be released to a mandatory period of postrelease supervision for the duration of the person's natural life.
“(2) As used in this section, ‘sexually violent crime’ means:
(I) aggravated sexual battery, K.S.A. 21–3518, and amendments thereto.”
Accord K.S.A.2013 Supp. 22–3717(d)(1)(G) and (5)(I).
Sanders “respectfully argues” that the district court erred in sentencing him to a term of lifetime postrelease supervision. But he acknowledges that his crime of conviction is subject to lifetime postrelease supervision and that assignment of an erroneous term of postrelease supervision constitutes an illegal sentence that can be corrected at any time.
Because Sanders was convicted of a sexually violent crime, K.S.A.2010 Supp. 22–3717(d)(1)(G) provides that he must receive lifetime postrelease supervision. Since he originally received only 24 months of postrelease supervision, that sentence was illegal, and the district court did not err in correcting it.
Affirmed.