Opinion
No. 113,299.
02-19-2016
STATE of Kansas, Appellee, v. Ernest E. SANDOVAL, Appellant.
Samuel Schirer, of Kansas Appellate Defender Office, for appellant. Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Samuel Schirer, of Kansas Appellate Defender Office, for appellant.
Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
MEMORANDUM OPINION
PER CURIAM.
Ernest E. Sandoval pled no contest to a sexually violent offense and received probation. Later, when he violated his probation, the district court ordered that he serve the balance of his original sentence. But the original sentence included the wrong postrelease supervision term, and the State moved to correct this error. The district court granted the motion to correct illegal sentence, and Sandoval appeals. Finding no error, we affirm.
Factual and Procedural History
In 2010, Sandoval pled no contest to aggravated indecent solicitation of a child. The district court sentenced him to 36 months' probation with an underlying term of 34 months' imprisonment. The district court also ordered 24 months of postrelease supervision.
But roughly 18 months later, the district court revoked Sandoval's probation after Sandoval admitted to several probation violations. Rather than reinstating his probation or imposing a lesser sentence, the district court ordered that Sandoval “serve the balance of the 34–month sentence previously imposed.”
Subsequently, the State filed a motion to correct illegal sentence. The State contended that instead of the 24 months originally ordered at sentencing, Sandoval's offense carried a term of lifetime postrelease supervision. The district court determined that the law required a lifetime postrelease term and corrected Sandoval's sentence. Sandoval timely appealed.
Analysis
The crux of Sandoval's appeal is simple: he argues that the district court erred by correcting the postrelease portion of his sentence. Preliminarily, an illegal sentence is one that is either: (1) imposed by a court without jurisdiction; (2) not in conformity with the applicable statutory provisions; or (3) ambiguous as to the time and manner in which it will be served. State v. Ballard, 289 Kan. 1000, 1010–11, 218 P.3d 432 (2009). The district court can correct an illegal sentence at any time. K.S.A. 22–3504(1). And when considering whether a sentence is illegal, this court exercises unlimited review. State v. Trotter, 296 Kan. 898, 902, 295 P.3d 1039 (2013).
In his brief, Sandoval concedes that the sentence as announced in January 2011 is indeed illegal. After all, Sandoval committed aggravated indecent solicitation of a minor, a sexually violent offense. See K.S.A.2009 Supp. 22–3717(d)(2)(G) (designating aggravated indecent solicitation of a child as a sexually violent offense). At the time, K.S.A.2009 Supp. 22–3717(d)(1)(G) provided that sexually violent offenses carry a lifetime postrelease supervision term. The 24–month term announced by the district court clearly failed to conform to this statute, rendering it illegal. See Ballard, 289 Kan. at 1010–11.
But despite this clear illegality, Sandoval argues on appeal that by ordering him to serve his original sentence—that is, the one with the 24–month postrelease supervision term—at the probation revocation hearing, the district court essentially chose to impose a lesser sentence. According to Sandoval, the initial illegality is immaterial because our Kansas statutes allow the district court to modify a sentence after revoking a defendant's probation.
As Sandoval correctly observes, K.S.A.2009 Supp. 22–3716(b) provides that when a probation violation is established, “the court may continue or revoke the probation ... and may require the defendant to serve the sentence imposed, or any lesser sentence.” However, this court rejected this very same argument in State v. Lobmeyer, No. 110,209, 2014 WL 3907097 (Kan.App.2014), rev. denied 302 Kan. –––– (July 27, 2015). There, as here, the defendant committed a sexually violent offense, and the district court erroneously sentenced him to a 24–month postrelease supervision term. The defendant subsequently violated his probation, and the district court ordered that he serve the balance of his original sentence. The State subsequently moved to correct the original, illegal postrelease supervision term, and the district court granted the motion over the defendant's objection.
Like Sandoval, the defendant insisted that by ordering him to serve the sentence with the 24–month term, the district court actually imposed a lesser sentence as authorized by statute. But this court examined the record and determined that the district court in fact “ordered [the defendant] to serve his original illegal sentence, not a lesser legal one.” 2014 WL 3907097, at *3. As this court succinctly explained:
“[The] original sentence was illegal. The district court then reimposed an illegal sentence rather than imposing a lesser one at the probation revocation hearing. Thus, the district court had jurisdiction later to correct [the defendant's] illegal sentence ... and the district court did not err in doing so.” 2014 WL 3907097, at *3.
The same is true in the present case. At the probation revocation hearing, the district court ordered Sandoval to “serve the balance of the 34–month sentence previously imposed.” Clearly, this phrase referred to the sentence announced in 2011 and not some new, lesser sentence as authorized by K.S.A.2012 Supp. 22–3716(b). But because, like in Lobmeyer, the district court reimposed an illegal sentence, it also retained jurisdiction to correct that sentence to conform to the applicable statute. 2014 WL 3907097, at *3. Nothing in the record suggests that this case differs from Lobmeyer in such a way as to require a different result.
In a second issue, Sandoval contends that this corrected sentence requires that the district court revisit the dispositional phase of his probation revocation hearing. Through somewhat convoluted logic, Sandoval essentially argues that because the corrected sentence is technically greater than the one imposed at the revocation hearing, the district court violated K.S.A.2009 Supp. 22–3716(b) and must, at the very least, reconsider his disposition.
Sandoval concedes that he failed to raise this issue with the district court. Generally, issues not raised before the trial court cannot be raised on appeal. See State v. Kelly, 298 Kan. 965, 971, 318 P.3d 987 (2014). Supreme Court Rule 6.02(a)(5) (2015 Kan. Ct. R. Annot. 41) requires that appellants explain why an issue not raised below should be considered for the first time on appeal. Failure to comply with this rule can result in the appellate court deeming the issue waived and abandoned. State v. Godfrey, 301 Kan. 1041, 1044, 350 P.3d 1068 (2015) (holding that Rule 6.02[a]5 will be strictly enforced). Other than briefly citing to one of the limited exceptions to this general rule, Sandoval presents no justification for why this court should now consider this argument for the first time. Therefore, the issue should be deemed waived and abandoned.
But more to the point, Sandoval's argument ignores that the district court complied with K.S.A.2009 Supp. 22–3716(b) by ordering him to serve his original (but illegal) sentence. Instead, Sandoval essentially asks this court to treat the corrected sentence as an entirely new disposition. But clearly, correcting the error in the postrelease supervision term does not transform Sandoval's original sentence into a new and different entity. Instead, it remains his original sentence, legally imposed by the district court as provided in K.S.A.2009 Supp. 22–3716(b). No new dispositional hearing is necessary, and the district court's decision is affirmed.
Affirmed.