No. 118,268
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
ANGELA L. JONES,
Appellant.
SYLLABUS BY THE COURT
1.
Whether a sentence is illegal under K.S.A. 2017 Supp. 22-3504 is a question of
law over which an appellate court has unlimited review.
2.
Generally, a sentence is effective when pronounced from the bench. A district
court usually lacks jurisdiction to modify a legal sentence once that sentence is
pronounced from the bench. But a court may correct an illegal sentence at any time.
3.
A sentence is illegal when it (1) is imposed by a court without jurisdiction; (2)
does not conform to the applicable statutory provision, either in character or punishment;
or (3) is ambiguous with respect to the time and manner in which it is to be served.
4.
There is one instance in which the court is authorized by statute to modify a legal
sentence. Under K.S.A. 2017 Supp. 22-3716(b)(3)(B)(iii), upon a finding that a defendant
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has violated the terms of his or her probation, the district court may require the defendant
to serve the sentence imposed, or any lesser sentence.
5.
K.S.A. 2017 Supp. 22-3716(b)(3)(B)(iii) authorizes the district court to impose
any lesser sentence upon revoking a defendant's probation, including a sentence with no
postrelease supervision term. Whether the district court mistakenly imposes no
postrelease supervision term upon revoking a defendant's probation and ordering a
modified sentence is not relevant because the Kansas Supreme Court has held that a
sentence is effective when pronounced from the bench regardless of the court's intent at
the time the sentence is pronounced.
6.
After revoking a criminal defendant's probation, a district judge may choose to
sentence anew, even if some component of the original sentence was illegal because it
failed to match a mandatory statutory minimum. In the alternative, a judge may simply
require the defendant to serve the original sentence. If a new sentence is pronounced from
the bench after probation revocation, any original illegality no longer exists, and the new
sentence is not subject to challenge or correction under K.S.A. 2017 Supp. 22-3504. If
the judge instead requires the defendant to serve the original sentence, any original
illegality continues to exist and is subject to challenge or correction under K.S.A. 2017
Supp. 22-3504.
7.
Under K.S.A. 2017 Supp. 21-6804(e)(2)(C), when the district court imposes an
original sentence under the revised Kansas Sentencing Guidelines Act and fails to
pronounce the period of postrelease supervision from the bench, this failure does not
negate the existence of the postrelease supervision term because it is required by law as
part of the defendant's original sentence.
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8.
K.S.A. 2017 Supp. 21-6804(e)(2)(C) does not apply to a sentence that is lawfully
modified at a probation revocation hearing under K.S.A. 2017 Supp. 22-3716(b) because
a postrelease supervision term is not required by law as part of the sentence when the
district court sentences a defendant anew after revoking his or her probation.
Appeal from Reno District Court; JOSEPH L. MCCARVILLE III, judge. Opinion filed November
30, 2018. Vacated and remanded with directions.
Clayton J. Perkins, of Kansas Appellate Defender Office, for appellant.
Thomas R. Stanton, deputy district attorney, Keith E. Schroeder, district attorney, and Derek
Schmidt, attorney general, for appellant.
Before STANDRIDGE, P.J., MALONE, J., and STUTZMAN, S.J.
MALONE, J.: Angela L. Jones appeals the denial of her motion to correct an illegal
sentence of postrelease supervision. Jones claims that the district court did not sentence
her to a term of postrelease supervision when it revoked her probation and ordered her to
serve a modified prison sentence. She argues that the district court's silence on the term
of postrelease supervision constituted a lawful modification of her sentence under K.S.A.
2017 Supp. 22-3716(b). We agree with Jones' claim and remand with directions for the
district court to vacate Jones' postrelease supervision term.
FACTUAL AND PROCEDURAL BACKGROUND
In 2012, the State charged Jones in case 12CR279 with three counts of failure to
register as a drug offender. Pursuant to a plea agreement, Jones pled guilty to two counts
and the State dropped the third count. On July 10, 2012, the district court sentenced Jones
to 51 months' imprisonment on count one and 34 months' imprisonment on count two, to
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run consecutively, for a total sentence of 85 months' imprisonment. The district court
ordered this sentence to run consecutive to a sentence in case 10CR1056, and it imposed
a 24-month period of postrelease supervision as required by law. The district court
granted a dispositional departure and placed Jones on probation for 36 months.
A couple years later, the State moved to revoke Jones' probation for absconding.
At the probation revocation hearing on May 12, 2014, the district court heard evidence,
found Jones violated her probation, and revoked her probation. The district court then
stated: "[S]o sentence is ordered executed in each case; 20 months DOC in [10CR1056],
51 months DOC in 12 CR 279." The district court at first stated that the sentences in the
two cases would be served consecutively as originally ordered, but the State said it would
not object to running the sentences concurrently, so the district court ordered the cases to
run concurrently. The district court did not mention the postrelease supervision term in
either case at the May 12, 2014 probation revocation hearing.
The original journal entry of the probation revocation hearing, filed on June 2,
2014, ordered Jones to serve an 85-month prison sentence in 12CR279, even though the
district court had ordered from the bench that Jones must serve "51 months DOC in
12 CR 279." The journal entry also included a postrelease supervision term of 24 months,
even though the district court had been silent on the postrelease term. On January 5,
2016, Jones moved to have the district court correct the journal entry to reflect its 51-
month pronouncement from the bench. The motion did not refer to the 24-month term of
postrelease supervision. At a hearing on February 5, 2016, the district court denied Jones'
motion, explaining that it was the court's intent at the probation revocation hearing to
order Jones to serve her original sentence of 85 months' imprisonment in 12CR279.
Jones appealed the district court's February 5, 2016 order. On August 17, 2016, on
Jones' motion for summary disposition, this court issued an order finding that a sentence
is effective when pronounced from the bench, citing Abasolo v. State, 284 Kan. 299, Syl.
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¶ 3, 160 P.3d 471 (2007). This court thus remanded the case to the district court with
directions to correct the journal entry to reflect the sentence pronounced in open court at
the probation revocation hearing on May 12, 2014.
On August 30, 2016, pursuant to this court's order and without holding a hearing,
the district court filed a journal entry nunc pro tunc reflecting that Jones was to serve 51
months' imprisonment in 12CR279. This journal entry also stated that Jones was to serve
a 24-month period of postrelease supervision.
The district court held a status conference on July 17, 2017, as the result of a
written letter Jones had mailed to the court. The letter is not included in the record on
appeal. At the status conference, Jones orally moved to correct an illegal sentence,
arguing that her postrelease supervision term should be vacated for various reasons, but
not because it had been modified at the probation revocation hearing. The gist of her
argument was that her postrelease supervision term was not properly calculated under
K.S.A. 2017 Supp. 22-3717 and that her postrelease term should have been vacated at the
probation revocation hearing because her probation was revoked for technical violations
that did not include the commission of a new crime. The district court ruled that Jones'
sentence was correct, and it issued an order denying her motion to correct an illegal
sentence. Jones timely appealed from that order.
ANALYSIS
On appeal, Jones claims the district court erred in denying her motion to correct an
illegal sentence. Jones argues in her brief that the district court did not sentence her to a
term of postrelease supervision when it revoked her probation and ordered her to serve a
modified prison sentence. She argues that the district court's silence on the term of
postrelease supervision at the probation revocation hearing constituted a lawful
modification of her sentence under K.S.A. 2017 Supp. 22-3716(b). Jones concedes that
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she did not make this argument before the district court, but she asserts that she can raise
it for the first time on appeal under K.S.A. 2017 Supp. 22-3504.
The State counters that Jones may not raise a new issue for the first time on
appeal. On the merits, the State argues in its brief that the district court did not err in
denying Jones' motion to correct an illegal sentence because the district court's silence on
the postrelease supervision term at the probation revocation hearing did not constitute a
modification of the sentence.
After this case was submitted for disposition, this court ordered the parties to file
supplemental briefs stating their positions on what effect, if any, K.S.A. 2017 Supp. 21-
6804(e)(2)(C) has on the outcome of this appeal. That statute states that when a judge
sentences a defendant and fails to pronounce the period of postrelease supervision from
the bench, the "[f]ailure to pronounce the period of postrelease supervision shall not
negate the existence of such period of postrelease supervision." Jones' supplemental brief
argues that the statute "does not impact [her] appeal" because it does not apply when a
lesser sentence is imposed following the revocation of a defendant's probation. The
State's supplemental brief argues conversely that the statute "controls the present appeal"
and establishes that the district court's silence on postrelease supervision at a probation
revocation hearing does not negate the existence of the postrelease term.
The parties agree on our standard of review. Whether a sentence is illegal under
K.S.A. 2017 Supp. 22-3504 is a question of law over which an appellate court has
unlimited review. State v. Lee, 304 Kan. 416, 417, 372 P.3d 415 (2016). Likewise, to the
extent that resolution of this issue requires statutory interpretation, an appellate court has
unlimited review. State v. Collins, 303 Kan. 472, 473-74, 362 P.3d 1098 (2015).
The State is correct that Jones is making a new argument about why her
postrelease supervision term is illegal that she did not make in district court. But if her
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argument is correct, then she is serving an illegal sentence that fails to conform to the
applicable statutory provision in the character or the term of the authorized punishment,
and the court may correct an illegal sentence at any time. K.S.A. 2017 Supp. 22-3504(1).
Thus, we will address the merits of her claim.
We will begin our analysis by reviewing some basic principles of law governing
sentencing in a criminal case. Generally, a sentence is effective when pronounced from
the bench. Abasolo, 284 Kan. 299, Syl. ¶ 3. A district court usually lacks jurisdiction to
modify a legal sentence once that sentence is pronounced from the bench. State v. Hall,
298 Kan. 978, 983, 319 P.3d 506 (2014). But a court may correct an illegal sentence at
any time. K.S.A. 22-3504(1); see State v. Ballard, 289 Kan. 1000, 1010-12, 218 P.3d 432
(2009). A sentence is illegal when it (1) is imposed by a court without jurisdiction; (2)
does not conform to the applicable statutory provision, either in character or punishment;
or (3) is ambiguous with respect to the time and manner in which it is to be served.
K.S.A. 2017 Supp. 22-3504(3).
There is one instance in which the court is authorized by statute to modify a legal
sentence. Under K.S.A. 2017 Supp. 22-3716(b)(3)(B)(iii), upon a finding that a defendant
has violated the terms of his or her probation, the district court may impose alternative
sanctions, including ordering the defendant to serve the sentence imposed "or any lesser
sentence." Here, upon revoking Jones' probation, the district court modified her sentence
by running the sentence in 12CR279 concurrent with the sentence in 10CR1056. The
district court also modified the term of Jones' sentence in 12CR279 by reducing it from
85 months' imprisonment to 51 months' imprisonment, although the record is clear that
the district court did not intend to make this change. The district court did not mention
the postrelease supervision term at the May 12, 2014 probation revocation hearing.
Jones relies on State v. McKnight, 292 Kan. 776, 257 P.3d 339 (2011), to support
her claim that her postrelease supervision term was modified and vacated at the probation
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revocation hearing. In that case, the district court sentenced the defendant to 30 months'
imprisonment with 24 months' postrelease supervision for a conviction of possession of
marijuana with intent to distribute. The district court granted the defendant an 18-month
probation term but later revoked it due to violations. At the probation revocation hearing,
the district court imposed a modified sentence of 22 months' imprisonment; but based on
a misreading of the applicable statute, the court vacated the postrelease supervision term.
The State later filed a motion to correct illegal sentence, which the district court granted,
reinstating the 24-month postrelease supervision term.
On appeal, the defendant argued that the district court imposed a lawful lesser
sentence when it revoked his probation and because the sentence was effective when
pronounced from the bench, the district court lacked jurisdiction to later increase the
postrelease supervision term. Our Supreme Court observed that at an initial sentencing
hearing, the district court does not have discretion to impose a term of postrelease
supervision that is shorter than the period mandated by statute. 292 Kan. at 782. But the
court went on to interpret K.S.A. 22-3716(b) as allowing the district court to impose "any
lesser sentence" upon revoking a defendant's probation, including a shorter prison
sentence, a shorter term of postrelease supervision, or any combination thereof. 292 Kan.
at 782. The court found that whether the district court mistakenly imposed no postrelease
supervision term due to a misunderstanding of the statute was not relevant because a
sentence is effective when pronounced from the bench regardless of the court's intent at
the time the sentence is pronounced. 292 Kan. at 783. The court concluded that the
district court imposed a legal sentence at the probation revocation hearing and did not
have jurisdiction to later modify it. 292 Kan. at 783.
McKnight is distinguishable from Jones' case because in McKnight the district
court expressly vacated the defendant's postrelease supervision term at the probation
revocation hearing. Here, the district court was silent on Jones' postrelease term upon
revoking her probation. That said, the McKnight court was clear in finding that K.S.A.
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22-3716(b) authorizes the district court to impose any lesser sentence upon revoking a
defendant's probation, including a sentence with no postrelease supervision term at all.
292 Kan. at 782. And whether the district court mistakenly imposes no postrelease
supervision term upon revoking a defendant's probation and ordering a modified sentence
is not relevant because a sentence is effective when pronounced from the bench
regardless of the court's intent at the time the sentence is pronounced. 292 Kan. at 783.
The Kansas Supreme Court recently revisited this issue in two cases decided on
the same day. In State v. Sandoval, 308 Kan. 960, 425 P.3d 365 (2018), the defendant
pled guilty to aggravated indecent solicitation of a child. The district court sentenced the
defendant to 34 months' imprisonment with 24 months' postrelease supervision and
granted probation. The applicable statute required lifetime postrelease supervision for the
defendant's crime of conviction. The district court later revoked the defendant's probation
and ordered him to serve his original sentence, including the illegal term of postrelease
supervision. In doing so, the district court stated: "'I'm not going to modify sentence for
someone who won't follow the basic terms and conditions of a probation that I give.'" 308
Kan. at 961. The State later moved to correct the illegal sentence of postrelease
supervision, which the district court granted.
On review, our Supreme Court found that the district court specifically rejected a
sentence modification at the probation revocation hearing and reinstated the original
illegal sentence, so the district court was authorized to correct the illegal sentence and
impose lifetime postrelease supervision. 308 Kan. at 965. The court held:
"[A]fter revoking a criminal defendant's probation, a district judge may choose to
sentence anew, even if some component of the original sentence was illegal because it
failed to match a mandatory statutory minimum. In the alternative, a judge may simply
require the defendant to serve the original sentence. If a new sentence is pronounced from
the bench after probation revocation, any original illegality no longer exists, and the new
sentence is not subject to challenge or correction under K.S.A. 22-3504. If the judge
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instead requires the defendant to serve the original sentence, any original illegality
continues to exist and is subject to challenge or correction under K.S.A. 22-3504." 308
Kan. at 960.
In State v. Roth, 308 Kan. 970, 424 P.3d 529 (2018), the defendant was convicted
of aggravated sexual battery and two counts of aggravated burglary. The district court
imposed a controlling sentence of 102 months' imprisonment, including 24 months'
postrelease supervision, and placed the defendant on probation. As in Sandoval, the
applicable statute required lifetime postrelease supervision. The district court later
revoked the defendant's probation and modified the sentence by running some counts
concurrently instead of consecutively. The district judge then said he would impose "'the
mandated 24-month postrelease supervision period.'" 308 Kan. at 971. The State later
moved to correct an illegal sentence, which the district court granted by imposing lifetime
postrelease supervision.
On review, our Supreme Court reversed and remanded with directions for the
district court to impose 24 months' postrelease supervision. 308 Kan. at 972. The Roth
court reasoned that the district court modified the defendant's sentence at the probation
revocation hearing and sentenced the defendant anew. In that situation, the 24-month
postrelease supervision term became a lawful sentence that could not later be modified by
the district court. As the court stated: "Although the postrelease term pronounced after
revocation mimicked the original term, Roth's imprisonment terms were made concurrent
rather than consecutive. He was thus sentenced anew after revocation." 308 Kan. at 972.
Returning to our facts, upon revoking Jones' probation, the district court modified
her sentence by running the sentence in 12CR279 concurrent with the sentence in
10CR1056. The district court also modified the term of Jones' sentence in 12CR279 by
reducing it from 85 months' imprisonment to 51 months' imprisonment. Under the
analysis in Sandoval and Roth, the district court "chose to sentence [Jones] anew" at the
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probation revocation hearing. In doing so, the district court sentenced Jones in 12CR279
to 51 months' imprisonment and was silent on the postrelease supervision term.
Jones argues that the district court's silence on the period of postrelease
supervision at her probation revocation hearing constituted a modification of the
postrelease term. Based on McKnight, Sandoval, and Roth, we agree with Jones' claim.
The district court modified Jones' sentence at the probation revocation hearing and
sentenced her anew. That sentence did not include a period of postrelease supervision.
Although the district court may not have intended to vacate Jones' postrelease supervision
term upon revoking her probation, the court was authorized to do so and the new lawful
sentence was effective when pronounced from the bench. Thus, the district court erred
when it later included a 24-month postrelease supervision term in the journal entry.
As mentioned before, this court ordered the parties to file supplemental briefs
stating their positions on what effect, if any, K.S.A. 2017 Supp. 21-6804(e)(2)(C) has on
the outcome of this appeal. K.S.A. 2017 Supp. 21-6804(e) states:
"(e)(1) The sentencing court has discretion to sentence at any place within the
sentencing range. In the usual case it is recommended that the sentencing judge select the
center of the range and reserve the upper and lower limits for aggravating and mitigating
factors insufficient to warrant a departure.
"(2) In presumptive imprisonment cases, the sentencing court shall pronounce the
complete sentence which shall include the:
(A) Prison sentence;
(B) maximum potential reduction to such sentence as a result of good time; and
(C) period of postrelease supervision at the sentencing hearing. Failure to
pronounce the period of postrelease supervision shall not negate the existence of
such period of postrelease supervision.
"(3) In presumptive nonprison cases, the sentencing court shall pronounce the:
(A) Prison sentence; and
(B) duration of the nonprison sanction at the sentencing hearing."
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K.S.A. 2017 Supp. 21-6804(e)(2)(C) states that when a judge sentences a
defendant and fails to pronounce the period of postrelease supervision from the bench,
the "[f]ailure to pronounce the period of postrelease supervision shall not negate the
existence of such period of postrelease supervision." See also K.S.A. 2017 Supp. 21-
6805(c)(2)(C) (providing same rule for drug grid). These provisions are a part of the
revised Kansas Sentencing Guidelines Act (KSGA), and they apply when the district
court originally sentences a defendant under the Act. The postrelease supervision portion
of a defendant's sentence at the original sentencing is controlled strictly by statute based
on the severity level of the defendant's crime, and the district court has no discretion over
the lawful term to impose. See K.S.A. 2017 Supp. 22-3717(d)(1). So when the district
court imposes an original sentence under the KSGA and fails to pronounce the period of
postrelease supervision from the bench, this failure does not negate the existence of the
postrelease term because it is required by law as part of the defendant's original sentence.
But as we have already discussed, a defendant's original sentence can be modified
at a probation revocation hearing under K.S.A. 2017 Supp. 22-3716(b), which is not a
part of the KSGA. As our Supreme Court explained in McKnight, this statute authorizes
the district court to impose any lesser sentence upon revoking a defendant's probation,
including imposing no postrelease supervision term at all. 292 Kan. at 782. So the district
court's silence on the postrelease term at a probation revocation hearing—even if by
mistake—constitutes a lawful lesser sentence that is effective when pronounced from the
bench. K.S.A. 2017 Supp. 21-6804(e)(2)(C) does not apply to a sentence that is lawfully
modified at a probation revocation hearing under K.S.A. 2017 Supp. 22-3716(b) because
a postrelease supervision term is not required by law as part of the sentence when the
district court sentences a defendant anew after revoking his or her probation.
In sum, the district court imposed a lawful lesser sentence under K.S.A. 2017
Supp. 22-3716(b) of 51 months' imprisonment with no postrelease supervision period
when it revoked Jones' probation on May 12, 2014. This sentence was effective when
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pronounced from the bench and cannot later be modified. Thus, we vacate the 24-month
postrelease supervision term of Jones' sentence and remand with directions for the district
court to file a corrected journal entry in 12CR279 reflecting the sentence pronounced
from the bench on May 12, 2014.
Vacated and remanded with directions.
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