Opinion
111,402.
06-05-2015
STATE of Kansas, Appellee, v. Jamie BRUNT, Appellant.
Patrick H. Dunn, of Kansas Appellate Defender Office, for appellant. Sheryl L. Lidtke, chief deputy district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Patrick H. Dunn, of Kansas Appellate Defender Office, for appellant.
Sheryl L. Lidtke, chief deputy district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Before PIERRON, P.J., BUSER and POWELL, JJ.
MEMORANDUM OPINION
PER CURIAM.
Jamie Brunt appeals from the district court's order denying his pro se motion to correct an illegal sentence, arguing the district court erred in summarily denying his motion without first appointing counsel and conducting an evidentiary hearing. Finding no error, we affirm.
Factual and Procedural Background
In December 2010, Brunt entered a no-contest plea to aggravated indecent liberties with a child. At the sentencing hearing in March 2011, the district court sentenced Brunt to a 68–month prison term with lifetime postrelease supervision. Brunt did not file a direct appeal of his sentence.
Almost 3 years after sentencing, in January 2014, Brunt filed his present motion to correct an illegal sentence, claiming that the imposition of lifetime postrelease supervision was disproportionately cruel and unusual punishment based upon the facts of his case and in violation of Section 9 of the Kansas Constitution Bill of Rights. The district court summarily denied Brunt's motion, finding it was not an illegal sentence.
Brunt timely appeals.
Whether a sentence is illegal within the meaning of K.S.A. 22–3504 is a question of law over which an appellate court has unlimited review. State v. Taylor, 299 Kan. 5, 8, 319 P.3d 1256 (2014). This is particularly true when the district court summarily denies a motion to correct an illegal sentence because the reviewing court has access to the same motion, records, and files as the district court. Makthepharak v. State, 298 Kan. 573, 577, 314 P .3d 876 (2013).
The essence of Brunt's appeal is that the district court erred in refusing to consider whether the imposition of lifetime postrelease supervision in his case was unconstitutional under the Eighth Amendment to the United States Constitution and Section 9 of the Kansas Constitution Bill of Rights. We note that Brunt raises the Eighth Amendment violation for the first time on appeal.
K.S.A. 22–3504(1) states:
“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.”
An illegal sentence is defined as
“ ‘a sentence imposed by a court without jurisdiction, a sentence which does not conform to the statutory provision, either in the character or the term of the punishment authorized, or a sentence which is ambiguous with respect to the time and manner in which it is to be served. [Citations omitted.]’ “ State v. Mebane, 278 Kan. 131, 134, 91 P.3d 1175 (2004).
Unfortunately for Brunt, the Kansas Supreme Court has previously held:
“The defendant's sentence must fall within the definition of an illegal sentence to qualify as an illegal sentence under the statute. A constitutional challenge to a sentence is not equivalent to a statutory challenge. Because the definition of an illegal sentence does not include a claim that the sentence violates a constitutional provision, a defendant may not file a motion to correct an illegal sentence based upon constitutional challenges to his or her sentence .” State v. Mitchell, 284 Kan. 374, 376–77, 162 P.3d 18 (2007).
Brunt may not raise constitutional challenges to his sentence under a motion to correct illegal sentence. Because imposition of lifetime postrelease supervision is mandatory for a person convicted of aggravated indecent liberties with a child under K.S.A.2014 Supp. 22–3717(d)(1)(G) and K.S.A.2014 Supp. 22–3717(d)(5)(C), we find Brunt's sentence was not illegal under K.S.A. 22–3504.
Affirmed.