Opinion
112,477.
04-03-2015
STATE of Kansas, Appellee, v. Johnathan SHULTZ, Appellant.
MEMORANDUM OPINION
PER CURIAM.
Johnathan Don Shultz appeals the district court's decision denying his motion to correct illegal sentence. We granted Shultz' motion for summary disposition in lieu of briefs pursuant to Supreme Court Rule 7.041A (2014 Kan. Ct. R. Annot. 66). The State has filed no response.
On January 9, 2009, Shultz was convicted of two counts of rape, each an off-grid person felony. Pursuant to a plea agreement, the district court imposed a downward durational departure sentence of 216 months' imprisonment, including lifetime postrelease supervision. Shultz did not appeal his sentence.
On March 13, 2014, Shultz filed a motion to correct illegal sentence pursuant to K.S.A. 22–3504. In the motion, Shultz argued that the imposition of a lifetime postrelease supervision term constituted an illegal sentence for a number of reasons, including the allegation that it amounts to cruel and unusual punishment under the Eighth Amendment to the United States Constitution and § 9 of the Kansas Constitution Bill of Rights. The district court denied the motion without a hearing. Shultz timely appealed.
On appeal, Shultz argues that the imposition of lifetime postrelease supervision constitutes an illegal sentence
“because (1) it amounts to cruel and unusual punishment under § 9 of the Kansas Constitution and the Eighth Amendment to the U.S. Constitution; (2) it constitutes an upward departure sentence that should have been proved to a jury beyond a reasonable doubt; and (3) it amounts to an ambiguous sentence without a definite timeframe for the sentence to be served.”
Shultz acknowledges that a defendant must appeal his sentence in order to preserve a claim regarding lifetime postrelease supervision. He also acknowledges that under Kansas law, a court is mandated to impose a sentence of lifetime postrelease supervision for a conviction of rape. Shultz' appeal requires interpretation of K.S.A. 22–3504. Interpretation of a statute is a question of law over which appellate courts have unlimited review. State v. Eddy, 299 Kan. 29, 32, 321 P.3d 12 (2014).
An “illegal” sentence, as contemplated by K.S.A. 22–3504, is a sentence imposed by a court without jurisdiction; a sentence which does not conform to the statutory provision, either in the character or the term of the punishment authorized; or a sentence which is ambiguous with respect to the time and manner in which it is to be served. State v. Neal, 292 Kan. 625, 630, 258 P.3d 365 (2011). “Because the definition of an illegal sentence does not include a claim that the sentence violates a constitutional provision, a defendant may not file a motion to correct an illegal sentence based on constitutional challenges to his or her sentence.” State v. Mitchell, 284 Kan. 374, 377, 162 P.3d 18 (2007). Thus, a motion to correct illegal sentence was not the proper method for Shultz to attack the constitutionality of his lifetime postrelease supervision sentence.
Shultz presents no argument and cites no authority to support his claims that the imposition of lifetime postrelease supervision constitutes an upward departure sentence that should have been proved to a jury beyond a reasonable doubt and that it amounts to an ambiguous sentence without a definite time frame for the sentence to be served. Failure to support a point with pertinent authority or show why it is sound despite a lack of supporting authority or in the face of contrary authority is akin to failing to brief the issue. State v. Tague, 296 Kan. 993, 1001, 298 P.3d 273 (2013). An issue not briefed by the appellant is deemed waived and abandoned. State v. Boleyn, 297 Kan. 610, 633, 303 P.3d 680 (2013).
Finally, as Shultz acknowledges, under Kansas law, a court is mandated to impose a sentence of lifetime postrelease supervision for the conviction of a “sexually violent crime” which includes rape. See K.S.A.2014 Supp. 22–3717(d)(1)(G), (d)(5). In State v. Mossman, 294 Kan. 901, Syl. ¶¶ 5, 7, 281 P.3d 153 (2012), the Kansas Supreme Court held that a defendant's sentence of lifetime postrelease supervision for the crime of aggravated indecent liberties with a child is not cruel or unusual punishment under § 9 of the Kansas Constitution Bill of Rights and under the Eighth Amendment to the United States Constitution. Thus, we conclude the district court did not err in denying Shultz' motion to correct illegal sentence.
Affirmed.