Opinion
No. 111,587.
2014-11-14
STATE of Kansas, Appellee, v. Alfredo PENA, Appellant.
Appeal from Sedgwick District Court; Douglas R. Roth, Judge.
Before MALONE, C.J., HILL and BRUNS, JJ.
MEMORANDUM OPINION
PER CURIAM.
Alfredo Pena appeals the district court's decision granting the State's motion to correct an illegal sentence. We granted Pena's motion for summary disposition in lieu of briefs pursuant to Supreme Court Rule 7.041 A (2013 Kan. Ct. R. Annot. 63). The State has filed a response and requested that the district court's judgment be affirmed.
On May 26, 2009, Pena pled no contest to one count of aggravated sexual battery and two counts of furnishing alcohol to a minor for illicit purposes. On July 9, 2009, the district court imposed a controlling sentence of 38 months' imprisonment followed by 24 months of postrelease supervision.
On March 5, 2014, the State filed a motion to correct an illegal sentence, alleging that pursuant to K.S.A.2008 Supp. 22–3717(d)(l)(G), Pena should have been sentenced to a mandatory period of lifetime postrelease supervision for his conviction of aggravated sexual battery. On March 7, 2014, the district court resentenced Pena to a controlling term of 38 months' imprisonment followed by lifetime postrelease supervision. Pena was present and did not object on the grounds of cruel and/or unusual punishment. Pena timely appealed.
On appeal, Pena argues that the district court erred when it granted the State's motion to correct an illegal sentence and when it sentenced him to lifetime postrelease supervision. However, Pena acknowledges that K.S.A. 22–3504(a) permits a court to correct an illegal sentence at any time. Pena further acknowledges that a sentence cannot be challenged as cruel and/or unusual punishment for the first time on appeal, because the issue requires the district court to have made factual findings at the sentencing hearing.
Pena initially received an illegal sentence for his conviction of aggravated sexual battery because he received 24 months' postrelease supervision even though K.S.A.2008 Supp. 22–3717(d)(1)(G) requires lifetime postrelease supervision. As Pena acknowledges, pursuant to K.S.A. 22–3504(a), the court is permitted to correct an illegal sentence at any time. See State v. Osbey, 238 Kan. 280, 288, 710 P.2d 676 (1985) (where a person convicted of a crime has never been legally sentenced, a proper sentence may later be imposed).
Also, as Pena acknowledges, our Supreme Court has held that a defendant may not make a case-specific cruel and/or unusual punishment claim for the first time on appeal because the issue requires the district court to have made factual findings at sentencing. See State v. Naputi, 293 Kan. 55, 67–68, 260 P.3d 86 (2011). Because Pena was present at his resentencing hearing and did not object to his specific sentence on the grounds of cruel and/or unusual punishment, he cannot raise this claim for the first time on appeal.
Affirmed.