Opinion
111,194.
12-12-2014
STATE of Kansas, Appellee, v. Joshua P. BRISSEY, Appellant.
MEMORANDUM OPINION
PER CURIAM.
Joshua P. Brissey appeals from the district court's order granting the State's motion to correct an illegal sentence that changed his 36–month postrelease supervision term to lifetime postrelease supervision. He also challenges the use of his prior convictions to enhance his sentence. We granted Brissey's request for summary disposition pursuant to Supreme Court Rule 7.041A (2014 Kan. Ct. R. Annot. 66) and now affirm the district court.
Brissey pled guilty to one count of aggravated indecent liberties (sexual intercourse) with a child and one count of criminal sodomy with a child. In exchange for the plea, the State agreed to dismiss the remaining two counts of criminal sodomy, to recommend concurrent sentences, to not oppose Brissey's motion for a durational departure to a 72–month prison sentence, and to recommend commitment to Larned State Security Hospital in lieu of incarceration. At his sentencing in October 2008, the district court largely followed the terms of the plea agreement, sentencing Brissey to a controlling sentence of 72 months' incarceration with 36 months of postrelease supervision. The court, however, ordered Brissey to serve his time in prison.
In September 2013, the State filed a motion to correct illegal sentence. The State argued that the court had imposed a period of 36 months of postrelease supervision when the statute mandated that Brissey be sentenced to lifetime postrelease supervision for committing a sexually violent crime. A hearing on the motion was held November 21, 2013, and defense counsel conceded the statute in effect at the time of Brissey's offenses called for lifetime postrelease. The court granted the State's motion and resentenced Brissey to lifetime postrelease supervision. Brissey timely appeals.
Brissey challenges the district court's modification of his sentence by increasing his 36–month postrelease supervision to lifetime postrelease supervision. Brissey also challenges the use of his prior convictions to enhance the length of his sentence.
Whether a sentence is illegal is a question of law over which we have unlimited review. State v. Trotter, 296 Kan. 898, 902, 295 P.3d 1039 (2013). K.S.A. 22–3504(1) allows the court to correct an illegal sentence at any time. An illegal sentence includes one that does not conform to the applicable statutory provision in either the character or the term of authorized punishment. State v. Lawson, 296 Kan. 1084, 1099, 297 P.3d 1164 (2013) (citing State v. LaBelle, 290 Kan. 529, 532, 231 P.3d 1065 [2010] ).
The district court ordered the change in Brissey's 36–month postrelease supervision term to lifetime supervision based on the State's claim that the original term was an illegal sentence. While it is true that courts generally do not have jurisdiction to modify legally imposed sentences, State v. Ballard, 289 Kan. 1000, 1010, 218 P.3d 432 (2009), Brissey acknowledges that the 36–month postrelease supervision period imposed was contrary to the sentencing statutes in effect at the time of his offenses.
Brissey pled guilty to crimes committed on October 18, 2007. At that time, K.S.A. 22–3717(d)(1)(G) stated: “[P]ersons 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.” (Emphasis added.) Aggravated indecent liberties with a child and criminal sodomy with a child—Brissey's crimes of conviction—were categorized as sexually violent crimes under K.S.A. 22–3717(d)(2)(C) and (D). When a defendant has been convicted of a statutorily defined sexually violent offense, the district court does not have discretion to ignore the lifetime postrelease supervision requirement of the statute. Ballard, 289 Kan. at 1012 ; State v. Baber, 44 Kan.App.2d 748, 753–54, 240 P.3d 980 (2010), rev. denied 296 Kan. 1131 (2013). A district court's failure to comply with the terms set forth in a sentencing statute results in an illegal sentence. Baber, 44 Kan.App.2d at 754. Consequently, the district court did not err in granting the State's motion to correct illegal sentence and correcting Brissey's sentence to include lifetime postrelease supervision.
Brissey's final argument is that the use of his criminal history to calculate his guidelines sentence was unconstitutional since his past convictions were not proved in this case to a jury. See Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Our Supreme Court has rejected this argument, and we reject it as well. See State v. Baker, 297 Kan. 482, 485, 301 P.3d 706 (2013) ; State v. Ivory, 273 Kan. 44, 46–48, 41 P.3d 781 (2002).
Affirmed.