Opinion
111,147.
11-21-2014
STATE of Kansas, Appellee, v. Duane F. BRANNAN, Appellant.
Duane F. Brannan, appellant pro se. Stephen A. Hunting, county attorney, and Derek Schmidt, attorney general, for appellee.
Duane F. Brannan, appellant pro se.
Stephen A. Hunting, county attorney, and Derek Schmidt, attorney general, for appellee.
Before McANANY, P.J., ARNOLD–BURGER, J., and LARSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
K.S.A. 22–3504(1) provides that a defendant has the right to be present and to have the assistance of counsel in any proceeding for the correction of an illegal sentence. Although such a motion can be denied without a hearing if the district court determines that the motion, files, and records of the case conclusively show that the defendant is not entitled to relief, if the district court determines that a substantial issue of fact is raised in the motion, a hearing must be conducted—with the defendant and his or her attorney present. See State v. Hoge, 283 Kan. 219, 224–25, 150 P.3d 905 (2007).
Duane F. Brannan pled no contest to one count of aggravated criminal sodomy, an off-grid crime. The district court sentenced Brannan to life in prison with a mandatory minimum sentence of 25 years. The sentence also included lifetime postrelease supervision and a lifetime no-contact order as to the victim. Brannan filed a motion to correct an illegal sentence, arguing, among other things, that lifetime postrelease supervision and a lifetime no-contact order were illegal. The district court agreed and, after a hearing with the State present, summarily granted that part of the motion, vacating the no-contact order and lifetime postrelease supervision and imposing lifetime parole instead. The district court then summarily denied the remainder of the motion. However, the district court did not notify Brannan of the hearing and arrange for his appearance and representation by counsel. Brannan appeals. Because we find that the district court was statutorily required to notify Brannan and give him an opportunity to be present with counsel at any hearing conducted on his motion, we are required to reverse and remand the case for such a hearing.
Factual and Procedural History
On February 1, 2012, Brannan pled no contest to one count of aggravated criminal sodomy where the victim was under age 14 and the defendant over age 18, an off-grid felony. K.S.A.2011 Supp. 21–5504. At the plea hearing, the State proffered evidence of Brannan's crime. Brannan's daughter, C.B., a child under the age of 14, visited his residence on the weekends between August 1, 2010, and October 3, 2011. The State proffered that C.B. would testify that during the nights of those visits, “her father would touch her in her vaginal and anal area with his finger and his penis.” The State additionally proffered that when questioned by the police regarding why his daughter would report those crimes, Brannan responded, “ ‘Because I have,’ “ and then further described the details to the police. The proffer included that Brannan was over the age of 18 at the time of the act. Brannan did not contest the State's factual basis.
The district court sentenced Brannan to life in prison with a mandatory minimum sentence of 25 years. The district court further ordered that Brannan have no contact with the victim and asked him if he agreed to this condition. Brannan agreed. The district court also imposed “lifetime postrelease [supervision] should the defendant secure his release after the servitude of the mandatory minimum.” The State called this “parole.” In the journal entry in the case, the box for “Lifetime Parole” was marked rather than the box for “Lifetime Postrelease.” The journal entry also reflected the no-contact order.
Over a year later, Brannon filed a pro se motion to correct an illegal sentence and memorandum in support of the motion. Brannan argued he did not waive his right to have a jury determine whether he was over the age of 18 at the time of the commission of the crime and his sentence violated Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Brannan also argued the district court could not impose lifetime postrelease supervision for an off-grid crime, citing State v. Cash, 293 Kan. 326, 330–31, 263 P.3d 786 (2011). Brannan further argued that the district court also could not impose a no-contact order with C.B., citing State v.. Post, 279 Kan. 664, Syl. ¶ 2, 112 P.3d 116 (2005).
The State agreed that the sentence should have referenced lifetime parole rather than lifetime postrelease supervision and that the district court was without jurisdiction to impose a no-contact order with C.B. The State argued against Brannan's other issues and argued the district court could summarily grant the changes to postrelease supervision and the no-contact order and summarily deny the other issues without a hearing in Brannan's presence.
The district court then held a hearing on the matter with the State present but without Brannan's presence or representation by counsel. The district court asked the State, “Is there anything you want to add to your brief ... or arguments you want to make?” The State declined. The district court then found that, under K.S.A. 22–3504, it could correct portions of the sentence that may have been erroneous without an evidentiary hearing or Brannan's presence. The district court then vacated the previous order of lifetime postrelease supervision and the no-contact order and instead imposed lifetime parole. Regarding the other issues Brannan raised, the court stated: “I would find that they have no merit on the part of the defendant. The defendant has not raised any material question of law or fact that requires an evidentiary hearing.”
Following the hearing, the district court issued a journal entry vacating Brannan's sentence of lifetime postrelease supervision and the lifetime no-contact order and imposing lifetime parole. The district court summarily denied all other issues, stating; “Additionally, the Court finds that the remainder of the sentence originally imposed was in accordance with the law and thereby the Court summarily denies the remainder of the defendant's motions and no resentencing is necessary.” Brannan timely appealed this ruling.
Analysis
The district court erred in failing to have Brannan present during a hearing on his motion to correct an illegal sentence.
Brannan argues that the district court violated his right to be present and represented by counsel during the hearing on his motion to correct an illegal sentence pursuant to K.S.A. 22–3504. Because our analysis of this issue involves statutory interpretation, our review is de novo. See Vontress v. State, 299 Kan. 607, 611, 325 P.3d 1114 (2014). K.S.A. 22–3504 states:
“(1) The court may correct an illegal sentence at any time. The defendant shall receive full credit for time spent in custody under the sentence prior to correction. The defendant shall have a right to a hearing, after reasonable notice to be fixed by the court, to be personally present and to have the assistance of counsel in any proceeding for the correction of an illegal sentence.
“(2) Clerical mistakes in judgments, orders or other parts of the record and errors in the record arising from oversight or omission may be corrected by the court at any time and after such notice, if any, as the court orders.”
According to our Supreme Court, after conducting a preliminary examination of the motion, the court can proceed in one of three ways:
“First, the motion can be denied without a hearing or appointment of counsel if the district court determines the motion, files, and records of the case conclusively show the defendant is not entitled to relief. Second, if the district court determines that a substantial issue of fact or law is raised in the motion, a hearing or hearings must be conducted. The defendant is entitled to the assistance of counsel. Third, if the district court is unable to determine from the motion, files, and record whether or not an issue raised may allow relief, the court must conduct further proceedings, including evidentiary hearings. The defendant is entitled to the assistance of counsel. [Citations omitted.]” Hoge, 283 Kan. at 224–25.
Here, Brannan raised several arguments in his motion, including that the district court illegally sentenced him to lifetime postrelease supervision and imposed a lifetime no-contact order. The State's response to the motion conceded that those two portions of his sentence were in error. Because Brannan was entitled to relief, under the second option outlined in Hoge a hearing was held on the matter. But Brannan was not present or represented by counsel. At that hearing the district court asked the State, which was present through counsel, “Is there anything you want to add to your brief, Mr. Hunting, or arguments you want to make?” The State declined. The district court then stated:
“I would find that under 22–3504 that I can correct portions of the sentence that may have been erroneous without having to conduct an evidentiary hearing or have the defendant present, the reason being that the matters that I think have some merit in this case are really not contested by the State and we can correct those, and the matters that are contested by the State, 1 would find that they have no merit on the part of the defendant. The defendant has not raised any material question of law or fact that requires an evidentiary hearing.”
So, the issue here is whether the district court denied Brannan his statutory right to be present under K.S.A. 22–3504 by both summarily denying and granting portions of the motion to correct an illegal sentence. We find that it did.
It is undeniable that a hearing was actually held where the State was given the opportunity to present further argument to the district court outside of the presence of Brannan, although no argument was actually made. Our Supreme Court has held that the right to be present and have counsel appointed applies to proceedings in which an illegal sentence is corrected. Hoge, 283 Kan. at 224–25. Here, the district court held a proceeding where it determined that Brannan had received an illegal sentence and modified that sentence, even imposing a sentence of lifetime parole after vacating its order of lifetime postrelease supervision. The district court, in simultaneously granting and denying portions of the motion to correct an illegal sentence without Brannan's presence or appointment of counsel, denied Brannan his unambiguous statutory right under K.S.A. 22–3504(1).
Other panels of this court have remanded similar proceedings to the district court for a new hearing with the defendant present when the district court modified a defendant's sentence without his or her presence. In State v. Simpson, 25 Kan.App.2d 639, 969 P.2d 905 (1998), the district court originally sentenced the defendant to a postrelease supervision term of 24 months upon conviction of a severity level 5 person felony. The Department of Corrections then notified the district court that the period of postrelease supervision is 36 months for a severity level 5 person felony, and the district court entered a nunc pro tunc order following a hearing with only the State present. A panel of this court remanded the matter for a new hearing with the defendant present. The court noted that K.S.A. 22–3405(1) establishes the defendant's right to be present at the “ ‘imposition of sentence.’ “ 25 Kan.App.2d at 640. Accordingly, the defendant had the right to be present when his postrelease supervision term was changed from 24 to 36 months.
In sum, K.S.A. 22–3504(1) clearly grants the defendant the right to a hearing, to be present, and to have counsel appointed for a motion to correct an illegal sentence unless the district court summarily dismisses the motion. Hoge, 283 Kan. at 224–25. Here, the district court did not summarily dismiss the motion; it found portions of the motion correct and granted relief on those issues. The district court did not correct a clerical mistake, as contemplated by K.S.A. 22–3504(2), it corrected a legal mistake. Although we recognize that a remand will not change the result as to the postrelease supervision and no-contact order, we cannot ignore the plain language of the statute. Brannan is to be granted a new hearing at which he will have the opportunity to be present and have the assistance of counsel.
Because we have ordered a new hearing, we need not address Brannan's remaining arguments concerning the sufficiency and appropriateness of the district court's findings of fact and conclusions of law. We simply remind the court on remand that any such findings and conclusions must be sufficient to allow meaningful appellate review. See Hoge, 283 Kan. at 221–22.
Reversed and remanded with directions.