Opinion
No. 108,959.
2013-11-8
STATE of Kansas, Appellee, v. Darcus D. WICKLIFFE, Appellant.
Appeal from Sedgwick District Court; James R. Fleetwood, Judge. Patrick H. Dunn, of Kansas Appellate Defender Office, for appellant. Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; James R. Fleetwood, Judge.
Patrick H. Dunn, of Kansas Appellate Defender Office, for appellant. Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before GREEN, P.J., PIERRON, J., and KNUDSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Darcus D. Wickliffe committed aggravated assault and was sentenced to 25 months' imprisonment, with postrelease supervision for 12 months. The court suspended the imposition of sentence and placed Wickliffe on probation for 24 months. Ultimately, Wickliffe violated the terms of probation and was ordered to serve the sentence imposed. Wickliffe filed a motion to correct an illegal sentence, contending he should not be subjected to postrelease supervision. He now appeals from the district court's order denying the motion to correct an illegal sentence.
On January 28, 2010, Wickliffe pled guilty to one count of aggravated assault. The State's factual basis established that Wickliffe committed the crime with a firearm. The State agreed not to request that the court impose the special rule for presumed imprisonment under K.S.A.2009 Supp. 21–4704(h). On March 11, 2010, the district court found Wickliffe's criminal history classification to be C and sentenced him to 24 months' supervised probation, with an underlying sentence of 25 months and postrelease supervision for 12 months.
On November 1, 2011, the State filed a motion alleging Wickliffe had violated the terms of probation. On November 15, 2011, there was a hearing on the motion to determine if Wickliffe had failed to pay court costs and restitution, failed to abstain from alcohol and drugs, and failed to attend drug and alcohol treatment, all terms of his probation. Wickliffe admitted that he did not make any payments toward his court costs, that he tested positive for marijuana, and that he failed to attend substance abuse treatment education class. The district court revoked Wickliffe's probation and remanded him to the custody of the Secretary of Corrections to serve the sentence that had been imposed.
On September 5, 2012, Wickliffe filed a pro se motion to correct an illegal sentence. Wickliffe alleged that he should not be subject to postrelease supervision upon the revocation of his probation. The district court denied Wickliffe's motion on October 5, 2012. Wickliffe has filed a timely appeal.
Whether a sentence is illegal within the meaning of K.S.A. 22–3504 is a question of law over which an appellate court has unlimited review. State v. Trotter, 296 Kan. 898, 902, 295 P.3d 1039 (2013). Interpretation of a sentencing statute is a question of law, and the appellate court's standard of review is unlimited. State v. McKnight, 292 Kan. 776, 780, 257 P.3d 339 (2011).
K.S.A.2009 Supp. 22–3716(e) prevents a district court from imposing postrelease supervision as a new condition of sentencing when probation is revoked under certain circumstances:
“Notwithstanding the provisions of any other law to the contrary, an offender whose nonprison sanction is revoked and a term of imprisonment imposed pursuant to either the sentencing guidelines grid for nondrug or drug crimes shall not serve a period of postrelease supervision upon the completion of the prison portion of that sentence.”
Wickliffe acknowledges his nonprison sanction was imposed pursuant to findings under K.S.A.2009 Supp. 21–4704(h) and that therefore postrelease supervision could be imposed under K.S.A.2009 Supp. 22–3716(e). Nonetheless, Wickliffe contends that the exception is inapplicable because it conflicts with the general rule of K.S.A.2009 Supp. 21–4704 defining gridbox 7–C as a nonprison sentence. He essentially asks this court to ignore the presumptive prison which is imposed by K.S.A.2009 Supp. 21–4704(h) in favor of the presumptive probation which is imposed by the general sentencing guidelines.
This argument is without merit. If there is a conflict between a statute dealing generally with a subject and another statute dealing more specifically with that subject, the specific statute controls unless it appears that the legislature intended to make the general act controlling. See State v. Wilcox, 245 Kan. 76, 78, 775 P.2d 177 (1989). There is nothing to indicate that the legislature had such intent in the sentencing guidelines. K.S.A.2009 Supp. 22–3716(e) expressly states that it does not apply to offenders sentenced pursuant to K.S.A.2009 Supp. 21–4704 wherein the presumptive sentence is imprisonment, and K.S.A.2009 Supp. 21–4704(h) expressly states that for person felonies committed with a firearm, the presumptive sentence is imprisonment. Wickliffe has failed to demonstrate that imposition of postrelease supervision is an illegal sentence. The district court did not err in dismissing his motion.
Affirmed.