Opinion
No. 106,639.
2012-07-6
STATE of Kansas, Appellee, v. Sophia Ann EICHHORN, Appellant.
Appeal from Finney District Court; Philip C. Vieux, Judge. Shawn E. Minihan, of Kansas Appellate Defender Office, for appellant. Brian R. Sherwood, assistant county attorney, John P. Wheeler, Jr ., county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Finney District Court; Philip C. Vieux, Judge.
Shawn E. Minihan, of Kansas Appellate Defender Office, for appellant. Brian R. Sherwood, assistant county attorney, John P. Wheeler, Jr ., county attorney, and Derek Schmidt, attorney general, for appellee.
Before ARNOLD–BURGER, P.J., McANANY, J., and LARSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Sophia Ann Eichhorn violated her probation, and the district court ordered her to serve her underlying sentence. Although the district court previously ordered Eichhorn to postrelease supervision, the district court imposed no such requirement at her final probation revocation hearing. Nonetheless, Eichhorn argues the district court erred by not expressly waiving her from postrelease supervision. Finding no error, we affirm.
Factual and Procedural History
On March 4, 2010, Eichhorn pled no contest to one count of forgery and one count of burglary of a motor vehicle, and the district court accepted her pleas. Based on these crimes and her criminal history score, Eichhorn's presumptive sentence was probation, and she did not fall into one of the border boxes on the Kansas Sentencing Guidelines grid. Accordingly, the district court sentenced Eichhorn to 18 months of probation with an underlying 18–month sentence for both crimes.
At her initial sentencing hearing, the district court told Eichhorn she would be subject to 12 months of postrelease supervision if she violated her probation order and served her underlying prison sentence. The district court's journal entry of sentencing states the same.
In September 2010, Eichhorn admitted she violated several conditions of her probation order. The district court, consequently, revoked her probation, sentenced her to 60 days in jail, but then reinstated her probation. Her new journal entry of sentencing again stated she would be subject to 12 months of postrelease supervision if she were required to serve her underlying sentence.
Six months later, the district court revoked Eichhorn's probation after finding she violated her probation order by consuming alcohol, violating her curfew, and failing to attend treatment. She was ordered to serve the balance of her sentence, which was 15 months. Neither Eichhorn nor the State discussed postrelease supervision at the revocation hearing. The district court's final journal entry of sentencing also does not order Eichhorn to serve any postrelease supervision after completing her prison sentence. None of the boxes in the postrelease supervision category—ranging from a lifetime of postrelease supervision to none whatsoever—are filled in.
Eichhorn filed a timely notice of appeal to the final probation revocation hearing.
Analysis
Standard of Review
Interpretation of a sentencing statute is a question of law, and the standard of review is unlimited. State v. Jolly, 291 Kan. 842, 845–46, 249 P.3d 421 (2011). The district court was not required to expressly waive Eichhorn's postrelease supervision.
Eichhorn argues the district court erred by failing to waive her 12–month postrelease supervision period. The State, however, correctly observes no error occurred because the district court did not impose any postrelease supervision requirement when the court revoked her probation and ordered her to serve her underlying sentence.
When a district court revokes a defendant's probation and orders the defendant to serve his or her underlying prison sentence, the court cannot order the defendant to postrelease supervision unless the defendant falls within certain statutory exceptions. See K.S.A.2010 Supp. 22–3716(e). In the present case, as the State readily concedes, Eichhorn does not fall into any of the exceptions specified under K.S.A.2010 Supp. 22–3716(e) and therefore she could not be ordered to postrelease supervision upon completion of her term in prison.
“ ‘A sentence is effective upon pronouncement from the bench, regardless of the court's intent at the time the sentence is pronounced.’ “ State v. McKnight, 292 Kan. 776, 779, 257 P.3d 339 (2011). Once a district court pronounces a sentence from the bench, the court does not have jurisdiction to modify the sentence unless the sentence is illegal. See K.S.A. 22–3504(1); McKnight, 292 Kan. at 779. A journal entry of sentencing is merely a record of the sentence imposed, and a district court is powerless to vacate and impose a harsher sentence once it has pronounced the sentence. State v. Jackson, 291 Kan. 34, 35, 238 P.3d 246 (2010). Accordingly, the district court was statutorily prohibited from ordering postrelease supervision, did not order postrelease supervision from the bench, and is prohibited from changing its order now, even if it wanted to.
Eichhorn's apparent concern arises from the district court's statement that it was reinstating “the original term,” which included 12 months of postrelease supervision. But the district court went on to define her original term as 18 months, with credit for 90 days served. Eichhorn's concerns that the district court may somehow step in now and require postrelease supervision are simply unfounded. She cites no cases supporting her position that the district court is required to expressly waive postrelease supervision. In addition, K.S.A.2010 Supp. 22–3716(e) imposes no such requirement.
Affirmed.