Opinion
113 753
07-08-2016
State of Kansas, Appellee, v. Andrew Todd Roth, Appellant.
Adam D. Stolte, of Kansas Appellate Defender Office, for appellant. Tamara S. Hicks, assistant county attorney, Susan Lynn Hillier Richmeier, county attorney, and Derek Schmidt, attorney general, for appellee.
NOT DESIGNATED FOR PUBLICATION
Appeal from Finney District Court; Robert J. Frederick, judge.
Adam D. Stolte, of Kansas Appellate Defender Office, for appellant.
Tamara S. Hicks, assistant county attorney, Susan Lynn Hillier Richmeier, county attorney, and Derek Schmidt, attorney general, for appellee.
Before Powell, P.J., Pierron and Atcheson, JJ.
MEMORANDUM OPINION
POWELL, J.
Andrew Todd Roth appeals the district court's modification of his postrelease supervision term from 24 months to Roth's lifetime. Relying on State v. McKnight, 292 Kan. 776, 257 P.3d 339 (2011), Roth argues the district court lacked jurisdiction to further modify his sentence because when the court modified his underlying prison sentence at the time it revoked his probation, the court also, in effect, modified his postrelease supervision term making what had been an illegal postrelease supervison term legal. We disagree. Because the record shows the district court did not impose a "lesser" postrelease supervision term than that originally and illegally imposed, the district court was required to grant the State's motion to correct illegal sentence and impose lifetime postrelease supervision as mandated by K.S.A. 2010 Supp. 22-3717(d)(1)(G). Accordingly, we affirm.
Factual and Procedural Background
In 2008, Roth pled no contest to one count of aggravated sexual battery and guilty to two counts of aggravated burglary. The district court ordered Roth's sentences to run consecutively for an underlying prison term of 102 months' with 24 months' postrelease supervision but granted Roth's motion for a downward dispositional departure and sentenced him to 60 months' probation.
Subsequently Roth's probation was revoked in September 2010. The district court imposed Roth's underlying sentences but modified them to run concurrently rather than consecutively as originally ordered. This modification reduced Roth's term of imprisonment from 102 months to 51 months' imprisonment. The district judge then stated, "I will impose the mandated 24-month postrelease supervision period."
In December 2014 the State filed a motion to correct an illegal sentence, arguing Roth should have been sentenced to lifetime postrelease supervision pursuant to K.S.A. 2010 Supp. 22-3717(d)(1)(G). Roth argued in response that according to McKnight the district court could impose "any lesser sentence" under K.S.A. 2010 Supp. 22-3716(b), meaning the postrelease supervision term was properly reduced and not illegal. The district court granted the State's motion and modified Roth's 24-month term of postrelease supervision to lifetime postrelease supervision.
Roth timely appeals.
Did the District Court Err by Granting the State's Motion to Correct an Illegal Sentence?
On appeal, Roth contends the district court erred in granting the State's motion to correct an illegal sentence. Specifically, he argues the district court did not have jurisdiction to further modify his sentence because the sentencing court relied on K.S.A. 2010 Supp. 22-3716(b), which allowed it to impose "any lesser sentence" when it revoked his probation.
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 allows a court to correct an illegal sentence at any time. An illegal sentence includes one that does not conform to the statutory provision in either the character or the terms of authorized punishment. State v. McCarley, 287 Kan. 167, 171, 195 P.3d 230 (2008).
Resolution of Roth's argument requires interpretation of two different statutes in the Kansas Code of Criminal Procedure: K.S.A. 2010 Supp. 22-3716(b) and K.S.A. 2010 Supp. 22-3717(d)(1)(G). "Interpretation of a sentencing statute is a question of law and the appellate court's standard of review is unlimited." State v. Riojas, 288 Kan. 379, Syl. ¶ 7, 204 P.3d 578 (2009). The relevant language of K.S.A. 2010 Supp. 22-3716(b) states:
"Except as otherwise provided, if the violation is established, the court may continue or revoke the probation, assignment to a community correctional services program, suspension of sentence or nonprison sanction and may require the defendant to serve the sentence imposed, or any lesser sentence, and, if imposition of sentence was suspended, may impose any sentence which might originally have been imposed." (Emphasis added.)K.S.A. 2010 Supp. 22-3717(d)(1)(G) states:
"[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."
Aggravated sexual battery, one of Roth's crimes of conviction, is a sexually violent crime subject to mandatory lifetime postrelease supervision. K.S.A. 2010 Supp. 22-3717(d)(2)(I).
Under the statutory provisions in effect at the time Roth committed his crimes, there is no question Roth should have been sentenced to mandatory lifetime postrelease supervision. However, Roth argues that our Supreme Court's decision in McKnight converts what would normally be an illegal sentence into a legal one if the sentence is imposed at the time a defendant's probation is revoked because K.S.A. 2010 Supp. 22-3716(b) allows the court to impose any lesser sentence.
When the district court revoked the defendant's probation in McKnight, it imposed a modified sentence of 22 months' incarceration and no postrelease supervision. The State later made an oral motion to correct an illegal sentence, arguing that postrelease supervision was required by statute. The district court granted the motion, stating it did not make a conscious decision to modify McKnight's sentence by not requiring postrelease as it did not believe it could order postrelease because McKnight's probation violations were technical ones. Our Supreme Court overturned the modification of the sentence, holding the district court did not have jurisdiction to modify the sentence because the sentence pronounced upon revocation of McKnight's probation was legal under K.S.A. 22-3716(b) and effective upon pronouncement from the bench. 292 Kan. at 780-83. The McKnight court stated that "[a] plain language reading of K.S.A. 22-3716(b) gives the trial court the authority to impose any sentence less than that originally imposed" because "'lesser sentence'" is not defined in the statute. 292 Kan. at 782. The court further declared that "[i]f the legislature intended to limit the trial court's discretion to imposing only a lesser prison sentence, K.S.A. 22-3716(b) should specifically state 'any lesser prison sentence' or define what 'lesser sentence' might be imposed by the court." 292 Kan. at 783.
We consider McKnight unhelpful to Roth because we agree with other panels of this court which have rejected similar arguments under the theory that a district court's reimposition of an original sentence at a probation revocation hearing does not amount to a modification of the sentence to a lesser sentence. See State v. Reed, 50 Kan.App.2d 1133, 1136, 336 P.3d 912 (2014) (district court reimposed original illegal sentence at probation revocation hearing, not lesser legal one), rev. denied 302 Kan. (September 10, 2015); State v. Sandoval, No. 113, 299, 2016 WL 687737, at *2 (Kan. App. 2016) (unpublished opinion) (same); State v. Lobmeyer, No. 110, 209, 2014 WL 3907097, at *3 (Kan. App. 2014) (unpublished opinion) (same), rev. denied 302 Kan. (July 27, 2015).
Here, the district court did not modify Roth's postrelease supervision term but merely reimposed the original but illegal term of 24 months' postrelease supervision. The fact that the district court modified Roth's prison term by ordering the sentences to be served concurrently instead of consecutively does not change our analysis because Roth only complains about the part of his sentence the State sought to modify: the postrelease supervision term. Therefore, because the illegal part of Roth's sentence was simply carried over, it remained illegal and the district court did not err in granting the State's motion to correct an illegal sentence.
Affirmed.
Atcheson, J., concurring:
I concur in the result affirming the Finney County District Court's decision to grant the State's motion to correct an illegal sentence by imposing lifetime postrelease supervision on Defendant Andrew Todd Roth.