Opinion
No. 112612.
05-29-2015
STATE of Kansas, Appellee, v. Brandon Timothy NATIONS, Appellant.
MEMORANDUM OPINION
PER CURIAM.
Brandon Timothy Nations appeals his sentence following his conviction of one count of aggravated sexual battery. We granted Nations' motion for summary disposition in lieu of briefs pursuant to Supreme Court Rule 7.041 A (2014 Kan. Ct. R. Annot. 66). The State has filed no response.
On December 9, 2013, Nations pled no contest to one count of aggravated sexual battery, a severity level 5 person felony. According to the presentence investigation report, Nations' criminal history included a prior juvenile adjudication of residential burglary and a prior adult conviction of unlawful voluntary sexual relations, both person offenses, which placed Nations into criminal history category B. At the sentencing hearing on March 26, 2014, the district court granted a durational departure from the presumptive sentencing range of 114–120–128 months and imposed a sentence of 32 months' imprisonment with 24 months postrelease supervision.
The State later filed a motion to correct illegal sentence, noting that an aggravated sexual battery conviction requires lifetime postrelease supervision. On June 26, 2014, the district court granted the motion and imposed lifetime postrelease supervision. Nations timely appealed his sentence.
Nations raises two issues on appeal. First, he claims the district court erred by modifying the original sentence of 24 months postrelease supervision to lifetime postrelease supervision. But as Nations points out, in State v. Ballard, 289 Kan. 1000, 1010–13, 218 P.3d 432 (2009), our Supreme Court held that a term of postrelease supervision that does not conform to statutory provisions is an illegal sentence that may be corrected at any time under K.S.A. 22–3504(1). Pursuant to K.S.A.2014 Supp. 22–3717(d)(1)(G), a person convicted of a sexually violent crime, including aggravated sexual battery, is subject to lifetime postrelease supervision. Thus, the district court did not err by modifying Nations' original sentence to impose lifetime postrelease supervision because this was the correct postrelease supervision term that should have been imposed in the first place.
Second, Nations contends that the district court violated his constitutional rights under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), by using his prior adult conviction and his prior juvenile adjudication to determine his sentence for his conviction of aggravated sexual battery without requiring the criminal history to be charged in the complaint and proven to a jury beyond a reasonable doubt. But as Nations acknowledges, this argument previously has been rejected by the Kansas Supreme Court. See State v. Ivory, 273 Kan. 44, 46–47, 41 P.3d 781 (2002) (Apprendi does not require proof of a prior conviction by a jury beyond a reasonable doubt); State v. Hitt, 273 Kan. 224, Syl. ¶ 2, 42 P.3d 732 (2002) (Apprendi exception for prior convictions encompasses juvenile adjudications). Thus, Nations' Apprendi claim fails. Affirmed.