NOT DESIGNATED FOR PUBLICATION
No. 121,739
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
MICHAEL LAWRENCE BASKA,
Appellant.
MEMORANDUM OPINION
Appeal from Johnson District Court; BRENDA M. CAMERON, judge. Opinion filed July 31, 2020.
Reversed and remanded with directions.
James M. Latta, of Kansas Appellate Defender Office, for appellant.
Shawn E. Minihan, assistant district attorney, Stephen M. Howe, district attorney, and Derek
Schmidt, attorney general, for appellee.
Before STANDRIDGE, P.J., HILL and ATCHESON, JJ.
STANDRIDGE, J.: Michael Lawrence Baska appeals from the district court's order
requiring him to serve the 356 days left on his postimprisonment supervision in jail,
arguing it amounts to an illegal sentence. For the reasons stated below, we agree.
Accordingly, we reverse the order revoking Baska's postimprisonment supervision and
remand the matter with directions for the court to decide whether Baska is otherwise
subject to imprisonment and, if not, to impose the mandatory one-year period of
postimprisonment supervision as originally ordered.
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FACTS
On June 2, 2016, Baska was arrested and charged with one count felony driving
under the influence (DUI) of alcohol and one count misdemeanor driving without an
ignition interlock device. Relevant here, the State later amended the complaint to add a
misdemeanor charge of transporting an open container.
At the time he was arrested, Baska was serving a period of postimprisonment
supervision under K.S.A. 2013 Supp. 8-1567 for a previous DUI conviction. At the time,
K.S.A. 2013 Supp. 8-1567(b)(3) stated, in relevant part:
"After the term of imprisonment imposed by the court, the person shall be placed on
supervision to community correctional services or court services, as determined by the
court, for a mandatory one-year period of supervision, which such period of supervision
shall not be reduced. . . . Any violation of the conditions of such supervision may subject
such person to revocation of supervision and imprisonment in jail for the remainder of the
period of imprisonment, the remainder of the supervision period, or any combination or
portion thereof."
Prior versions of K.S.A. 8-1567 required felony DUI offenders to be placed on
postrelease supervision in the custody of the Secretary of Corrections after they
completed the imprisonment portion of their sentence. But in 2011, the Kansas
Legislature eliminated this requirement and replaced it with the current provisions
mandating postimprisonment supervision. L. 2011, ch. 105, § 19. Because the Legislature
eliminated the provision requiring postrelease supervision for those convicted of felony
DUI, we necessarily presume the current version of the statute requires a distinct form of
supervision. See State v. Castillo, 54 Kan. App. 2d 217, 227, 397 P.3d 1248 (2017)
(Postimprisonment supervision for a DUI conviction is akin to probation and is a
sentence separate and distinct from that of postrelease supervision.). Under the statute,
the district court has discretion to revoke postimprisonment supervision and to impose
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additional jail time where the defendant is found to have violated the conditions of
supervision. 54 Kan. App. 2d at 227.
After his arrest in this case, the district court found Baska had violated the
conditions of his postimprisonment supervision in the earlier case, revoked his
supervision, and ordered him to serve the balance of his supervision period in county jail.
On November 3, 2017, Baska pleaded guilty in this case to felony DUI,
misdemeanor driving without an ignition interlock device, and misdemeanor transporting
an open container. The court held a sentencing hearing on January 3, 2018, and imposed
the following sentences:
Felony DUI, fourth
• The court imposed a 12-month (360 days) jail sentence but noted that Baska
was entitled to 459 days of jail time credit so the court deemed the jail time
served.
• The court imposed the mandatory one-year period of postimprisonment
supervision.
o The parties agreed the postimprisonment supervision would start when
Baska was released from the Residential Center Probation Program,
which was part of his sentence for both of the misdemeanor convictions
as described below.
Misdemeanor driving without ignition interlock device
• The court imposed a 12-month jail sentence, consecutive to the felony DUI
sentence, but granted Baska 24 months' probation under the supervision of
community corrections.
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o The court ordered the initial probation placement to be served at the
Therapeutic Community within the Residential Center Probation
Program;
o The court ordered Baska to transition to the Residential Center
Probation Program when he was released from the Therapeutic
Community; and
o The court ordered that, upon release from the Residential Center, Baska
would be required to wear a remote breath unit for 90 days.
Misdemeanor transporting open container
• The court imposed a 6-month jail sentence, consecutive to the sentence for
driving without an ignition interlock device and the sentence for felony DUI
but granted Baska 24 months' probation under the supervision of community
corrections.
o The court ordered the initial probation placement to be served at the
Therapeutic Community within the Residential Center Probation
Program;
o The court ordered Baska to transition to the Residential Center
Probation Program when he was released from the Therapeutic
Community; and
o The court ordered that, upon release from the Residential Center
Probation Program, Baska would be required to wear a remote breath
unit for 90 days.
To summarize, the district court sentenced Baska to 18 months in jail on the two
misdemeanors but granted him probation with very specific terms and conditions with
which he had to comply. In order to understand those terms and conditions, a few
definitions are helpful. The court ordered the initial probation placement to be served at
the Therapeutic Community and, when released, to transition to the Residential Center
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Probation Program. According to its website, the Residential Center is administered by
the Johnson County Department of Corrections and "is a 398 bed, community based,
facility that provides a highly structured environment for adult offenders ordered by the
District Court to [the] program. The main objective of the Residential Center program is
to reintegrate clients into the community as successful, productive citizens." See Johnson
County Kansas Department of Corrections: Adult Residential Center Probation Program,
https://www.jocogov.org/dept/corrections/adult-services/adult-residential-center-
probation-program (last visited June 5, 2020). The Therapeutic Community is a six-
month drug treatment program housed within the Residential Center and "is designed for
offenders who have extensive drug abuse and criminal histories." Johnson County Kansas
Department of Corrections: Therapeutic Community,
https://www.jocogov.org/dept/corrections/adult-services/therapeutic-community (last
visited June 5, 2020).
It appears from the record that Baska successfully completed his six-month drug
treatment program in the Therapeutic Community on September 20, 2018, and was
moved to the Residential Center Probation Program. Baska allegedly violated the terms
of his probation by failing drug tests on November 28, 2018, and December 5, 2018,
while in the Residential Center. Baska was arrested on December 28, 2018, at the
Residential Center and taken to jail. The State filed a motion to revoke probation.
On December 31, 2018, the district court held a hearing on the motion to revoke
probation. Baska, who was still in custody in the jail, appeared pro se at the hearing and
denied the allegations that he violated the conditions of his probation. The court
appointed the public defender and ordered Baska to personally appear at the next court
hearing. The court set bond at $50,000, cash or surety, prohibited Baska from the use of
illegal drugs or controlled substances, ordered him to submit to drug testing when
directed by the court, and ordered Baska confined to house arrest.
5
On March 29, 2019, Baska was arrested for bond violations based on his
submission of diluted drug test samples on three different occasions. The motion to
revoke probation was still pending, but the State filed a motion to revoke bond. The
district court permitted Baska to bond out a second time.
On April 24, 2019, Baska was arrested for bond violations based on his attempt to
falsify a drug test on April 19, 2019. The State filed its second motion to revoke bond.
The district court permitted Baska to bond out a third time.
On May 15, 2019, Baska failed a drug test. A week later, the State filed an
amended motion to revoke Baska's probation, changing the grounds from Baska's failed
drug tests in late 2018 to Baska's attempt to falsify his drug test on April 19, 2019, and
his failed drug test on May 15, 2019.
On May 30, 2019, the district court held a probation revocation hearing on the
State's May 22, 2019 motion. Baska stipulated to violating the terms and conditions of his
probation by attempting to falsify a drug test on April 19, 2019, and to failing a drug test
on May 15, 2019. The district court revoked Baska's probation in the two misdemeanor
cases and ordered him to serve the remaining 149 days of his underlying sentences for
misdemeanor driving without an ignition interlock device and misdemeanor transporting
an open container. The court also revoked Baska's postimprisonment supervision and
ordered Baska to serve the 356-day balance of time remaining on that period in the
county jail.
ANALYSIS
Baska argues that the district court imposed an illegal sentence when it ordered
him to serve almost the entirety of his postimprisonment supervision period in jail.
Although he failed to raise this claim before the district court, an illegal sentence can be
6
corrected at any time, even for the first time on appeal. See State v. Kelly, 298 Kan. 965,
975, 318 P.3d 987 (2014).
An illegal sentence is any sentence that is "[i]mposed by a court without
jurisdiction; that does not conform to the applicable statutory provision, either in
character or punishment; or that is ambiguous with respect to the time and manner in
which it is to be served at the time it is pronounced." K.S.A. 2019 Supp. 22-3504(c)(1).
Whether a sentence is illegal within the meaning of K.S.A. 2019 Supp. 22-3504(c)(1) is a
question of law over which appellate courts exercise unlimited review. State v. Lee, 304
Kan. 416, 417, 372 P.3d 415 (2016).
Baska makes four alternative arguments, all of which claim that his sentence is
illegal because it fails to conform to the applicable statutory provision, which in this case
is K.S.A. 8-1567(b)(3). Before reaching the merits of Baska's arguments, however, we
first must decide which version of the statute applies to the claims presented on appeal.
Baska was arrested on June 2, 2016, and sentenced on January 3, 2018. Both at the
time he was arrested and at the time he was sentenced, the statutory provision setting
forth the postimprisonment supervision period that applies to an offender's third and
subsequent DUI conviction stated, in relevant part, as follows:
"The court shall determine whether the offender, upon release from imprisonment, shall
be supervised by community correctional services or court services based upon the risk
and needs of the offender. The risk and needs of the offender shall be determined by use
of a risk assessment tool specified by the Kansas sentencing commission. The law
enforcement agency maintaining custody and control of a defendant for imprisonment
shall cause a certified copy of the judgment form or journal entry to be sent to the
supervision office designated by the court. After the term of imprisonment imposed by
the court, the person shall be placed on supervision to community correctional services or
court services, as determined by the court, for a mandatory one-year period of
7
supervision, which such period of supervision shall not be reduced. During such
supervision, the person shall be required to participate in a multidisciplinary model of
services for substance use disorders facilitated by a Kansas department for aging and
disability services designated care coordination agency to include assessment and, if
appropriate, referral to a community based substance use disorder treatment including
recovery management and mental health counseling as needed. The multidisciplinary
team shall include the designated care coordination agency, the supervision officer, the
Kansas department for aging and disability services designated treatment provider and
the offender. Any violation of the conditions of such supervision may subject such person
to revocation of supervision and imprisonment in jail for the remainder of the period of
imprisonment, the remainder of the supervision period, or any combination or portion
thereof." K.S.A. 2015 Supp. 8-1567(b)(3).
In his appellate brief, however, Baska cites to the current version of K.S.A. 8-
1567(b)(3), which includes additional language that became effective on July 1, 2018.
And, although the State appears to cite to the 2015 version of the statute, the specific
language it quotes is from the 2018 amended statute. The new language states as follows:
"An offender for whom a warrant has been issued by the court alleging a violation of this
supervision shall be considered a fugitive from justice if it is found that the warrant
cannot be served. If it is found the offender has violated the provisions of this
supervision, the court shall determine whether the time from the issuing of the warrant to
the date of the court's determination of an alleged violation, or any part of it, shall be
counted as time served on supervision. . . . The term of supervision may be extended at
the court's discretion beyond one year, and any violation of the conditions of such
extended term of supervision may subject such person to the revocation of supervision
and imprisonment in jail of up to the remainder of the original sentence, not the term of
the extended supervision." L. 2018, ch. 106, § 13.
Although both parties rely on the language in the 2018 amended statute, neither
party explains in their briefs why the amendments should apply retroactively to Baska's
case. An argument not briefed is generally deemed waived and abandoned. State v.
8
Godfrey, 301 Kan. 1041, 1043-44, 350 P.3d 1068 (2015). In any case, we cannot apply
the 2018 amendments retroactively. The general rule is that a statute operates
prospectively unless (1) the statutory language clearly indicates the Legislature intended
the statute to operate retrospectively or (2) the change is procedural or remedial in nature.
State v. Bernhardt, 304 Kan. 460, 479, 372 P.3d 1161 (2016). Here, the 2018
amendments do not direct courts to apply the change retroactively. See K.S.A. 8-1567, as
amended by L. 2018, ch. 106, § 13. And the amendments are not merely procedural since
they permit the court to extend the term of postimprisonment supervision beyond one
year. See Bernhardt, 304 Kan. at 480 (explaining that "[a] merely procedural law does
not 'change[] the legal consequences of acts completed before its effective date'"). For
these reasons, we apply the version of K.S.A. 8-1567 in effect when Baska was sentenced
on January 3, 2018, to the claims presented by Baska on appeal.
Having determined that K.S.A. 2015 Supp. 8-1567 applies to the claims presented
on appeal, we move on to address each of the four alternative arguments made by Baska
claiming his sentence is illegal for failing to conform to that statute.
1. Expiration of the term of imprisonment
Under K.S.A. 2015 Supp. 8-1567(b)(3), a felony DUI offender must be placed on
a one-year mandatory period of supervision "[a]fter the term of imprisonment imposed by
the court." The statute also states that placement on this one-year mandatory period of
supervision must occur "upon release from imprisonment" and upon "expiration of the
term of imprisonment."
For purposes of this particular claim, Baska argues he was released from
imprisonment on January 3, 2018, when the court deemed the 459 days he already had
spent in jail as time served on the 12-month jail sentence he received for the felony DUI
conviction. Based on this argument, Baska asserts his period of postimprisonment
9
supervision ended on January 3, 2019, which necessarily rendered the district court's
original sentencing order and its revocation order illegal because neither conformed to the
provisions of K.S.A. 2015 Supp. 8-1567(b)(3). The former because it improperly delayed
the start of Baska's postimprisonment supervision period and the latter because it revoked
Baska's postimprisonment supervision after it already had expired.
We are not persuaded by Baska's argument. In this case, Baska was convicted and
sentenced on three separate counts. On the two misdemeanor counts, the district court
placed Baska on 24 months' probation. As a condition of probation, the court required
Baska to attend the Therapeutic Community, an inpatient rehabilitation program and,
after completing that program, to reside at the Residential Center. On the felony DUI
count, the court ordered Baska to time served on the prison sentence and imposed the
mandatory period of one-year postimprisonment supervision, to be completed once Baska
was released from the Residential Center.
K.S.A. 2015 Supp. 8-1567(b)(3) states that "upon expiration of the term of
imprisonment" a felony DUI offender must be delivered and shall be placed on the
mandatory one-year supervision "[a]fter the term of imprisonment imposed by the court."
Under K.S.A. 2015 Supp. 8-1567(o)(2), the term "imprisonment" is defined as "any
restrained environment in which the court and law enforcement agency intend to retain
custody and control of a defendant." Under the statutory definition, we conclude Baska
was imprisoned during the entire time he was serving his probation sentence at the
Therapeutic Community and later at the Residential Center because he was in a restrained
environment under the custody and control of the Johnson County Department of
Corrections, a law enforcement agency. Our conclusion that Baska was imprisoned
during these periods is supported by the fact that he received jail credit for the time he
spent at the Therapeutic Community and at the Residential Center. See K.S.A. 2019
Supp. 21-6615 (jail time credit is granted for time spent in a residential facility or a
community correctional residential services program).
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But it appears Baska might be arguing that an offender may begin serving
postimprisonment supervision on a felony DUI conviction while still serving the
imprisonment portion of a sentence on another conviction in the same case. A similar
argument was submitted to the court in State v. Martinez, No. 117,875, 2018 WL
4039405 (Kan. App. 2018) (unpublished opinion). In Martinez, the offender was
convicted of felony DUI in four different cases. The question presented on appeal was
whether a DUI offender may begin serving postimprisonment supervision in one case
while serving an imprisonment portion of a sentence in another case.
"[Martinez] asserts that because the statute provides that the term of post-imprisonment
supervision begins '[a]fter the term of imprisonment' rather than beginning after all
consecutive sentences imposed by the court have been served, a DUI offender may be on
post-imprisonment supervision in one case while also serving a jail sentence or house
arrest in another case." Martinez, 2018 WL 4039405, at *6.
A panel of this court was not persuaded by this argument, finding that Martinez'
"interpretation directly conflicts with the purpose of post-imprisonment supervision and
the requirements of post-imprisonment supervision as provided in K.S.A. 2017 Supp. 8-
1567(b)(3)." 2018 WL 4039405, at *6.
"When the statute is read as a whole, it is clear that the Legislature intended the period of
post-imprisonment supervision to be served after the terms of imprisonment were served
in all consecutive sentences. After all of the jail time is served, the purpose of placing the
offender in the community under post-imprisonment supervision then can be realized."
2018 WL 4039405, at *6.
The legal analysis in Martinez is consistent with the analysis we set forth above.
Using that analysis, we conclude the district court's order imposing the mandatory one-
year period of postimprisonment supervision—to be completed once Baska was released
from the Residential Center—properly conforms to the provisions of K.S.A. 2015 Supp.
11
8-1567(b)(3). The order did not delay the start of Baska's period of postimprisonment
supervision period but instead directed it to begin upon expiration of Baska's term of
imprisonment, which in this case was contemplated to be the probation sentence he
would be serving under the supervision of community corrections at the Therapeutic
Community and the Residential Center.
2. The time period after the Residential Center and before the arrest warrant
As an alternative claim, Baska argues he was released from imprisonment on
December 28, 2018, the day he was arrested on his probation violations in the
misdemeanor cases and taken from the Residential Center to jail. Baska claims the
district court erred in failing to give him jail credit towards his postimprisonment
supervision period from December 28, 2018, to May 29, 2019, when the arrest warrant
for his most recent probation violations was issued. Baska argues that without that credit,
the order requiring him to serve the 356 days left on his postimprisonment supervision in
jail is illegal.
In support of his claim, Baska relies on the new language added to K.S.A. 8-1567
as part of the 2018 amendments:
"If it is found the offender has violated the provisions of this supervision, the court shall
determine whether the time from the issuing of the warrant to the date of the court's
determination of an alleged violation, or any part of it, shall be counted as time served on
supervision. Any violation of the conditions of such supervision may subject such person
to revocation of supervision and imprisonment in jail for the remainder of the period of
imprisonment, the remainder of the supervision period, or any combination or portion
thereof." (Emphasis added.) K.S.A. 2019 Supp. 8-1567(b)(3).
But as explained above, the 2018 amendments are not retroactive and do not apply
to the claims presented on appeal. Even if the amendments were retroactive, the district
12
court never made a finding that Baska violated the conditions of postimprisonment
supervision, and there is no evidence in the record to support a finding that Baska
violated the conditions of his postimprisonment supervision. This is primarily because, as
explained above and again below, Baska's period of postimprisonment supervision never
started in the first place.
In further support of his argument, Baska hones in on the district court's
sentencing order imposing the mandatory one-year period of postimprisonment
supervision, which the parties agreed and the court ordered would begin when Baska was
released from the Residential Center. Baska asserts that "[b]ased on the record, [he] was
arrested while in the facility, bonded out, and never returned to the facility, so he was
discharged from the facility on December 28, 2018." But under Baska's very broad
definition of the term "release," his period of postimprisonment supervision would have
started even if he had unlawfully absconded from the Residential Center. In a strict,
literal sense, the Johnson County Department of Corrections had to "release" Baska to
law enforcement on December 28, 2018, when law enforcement came to the Residential
Center to arrest Baska for his probation violations and take him to jail. But to deem
Baska to have been "released" from the Residential Center for purposes of starting his
postimprisonment supervision would misconstrue the court's purpose here: to comply
with the statute that mandates Baska to start his postimprisonment supervision upon
expiration of his term of imprisonment, which in this case was the probation sentence he
was serving under the supervision of community corrections at the Therapeutic
Community and the Residential Center.
Even more importantly, deeming Baska to have been released from the Residential
Center at the time of his arrest on December 28, 2018, ignores the plain language of the
statute requiring a felony DUI offender to begin serving the period of postimprisonment
supervision upon release from imprisonment. Baska was not released from the
Residential Center to a postimprisonment supervision program for participation in a
13
multidisciplinary model of services for substance use disorders. See K.S.A. 2015 Supp.
8-1567(b)(3). Baska was arrested and taken to jail for allegedly violating the conditions
of his probation. Baska bonded out of jail and was ordered by the court to confinement
under house arrest pending a probation revocation hearing. Baska remained in custody
and therefore imprisoned as defined by the DUI statute, during the time period he was
confined to house arrest.
"'[C]ustody contemplates an intent on the part of prison officials to exercise actual or
constructive control of the prisoner and that in some manner the prisoner's liberty is
restrained. There is no requirement that the prisoner be constantly supervised or watched
over by prison officials. The key factor is that prison officials have not evidenced an
intent to abandon or give up their prisoner, leaving him [or her] free to go on his [or her]
way.' [Citations omitted.]" State v. Kraft, 38 Kan. App. 2d 215, 220, 163 P.3d 361 (2007)
(quoting State v. Pritchett, 222 Kan. 719, 720, 567 P.2d 886 [1977]).
In Kraft, 38 Kan. App. 2d at 220-23, this court applied this sound reasoning to
hold the defendant was still in "custody" after he left the Residential Center and was
placed on house arrest.
In this case, Baska went from being in the custody and control of the Johnson
County Department of Corrections at the Residential Center, to being in the custody and
control of law enforcement at the jail, to being in the custody and control of court
services when he bonded out to house arrest. As defined by K.S.A. 2015 Supp. 8-
1567(o)(2), Baska remained imprisoned—bonded out on house arrest and in the custody
and control of court services—from the time he left the Residential Center until his
probation was revoked in the misdemeanor cases on May 30, 2019. At no time was he
released from imprisonment.
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3. Risk assessment tool
As a second alternative claim, Baska argues the order of postimprisonment
supervision was an illegal sentence because the court failed to comply with the
requirement in K.S.A. 2015 Supp. 8-1567 that the court use a risk assessment tool to
determine whether the felony DUI offender should be supervised by community
correctional services or court services.
"The court shall determine whether the offender, upon release from imprisonment, shall
be supervised by community correctional services or court services based upon the risk
and needs of the offender. The risk and needs of the offender shall be determined by use
of a risk assessment tool specified by the Kansas sentencing commission." K.S.A. 2015
Supp. 8-1567(b)(3).
But the record reflects that the district court did use a risk assessment tool as
required by the statute. The transcript from the November 3, 2017 plea hearing reflects
that the district court ordered a Level of Service Inventory-Revised (LSI-R) be
conducted:
"THE COURT: Count III is dismissed. Sentencing will be continued. A
presentence investigation is ordered. Are you a Kansas resident?
"THE DEFENDANT: Yes, Your Honor.
"THE COURT: I will also order an LSI-R." (Emphasis added.)
And the case docket sheet similarly reflects that the district court ordered a LSI-R
at the November 3, 2017 plea hearing:
"11/03/17 . . . JURY TRIAL WAIVED BY DEFENDANT, PLEA NO CONTEST,
FINDING GUILTY, PRESENTENCE INVESTIGATION ORDERED,
CONTINUED BY DEFENSE, DEFENDANT ORDERED TO
PERSONALLY APPEAR AT NEXT COURT HEARING, COMMENT
LSIR ORDERED." (Emphasis added.)
15
Notably, the December 29, 2017 presentence investigation report suggested that
the LSI-R assessment was completed: The investigator recommended that the district
court follow the recommendations of the LSI-R assessment and have Baska comply with
the LSI-R case plan. And on January 3, 2018, the court issued orders of misdemeanor
probation and postimprisonment supervision in which it specifically ordered Baska to
comply with the LSI-R case plan with Johnson County Community Corrections.
The district court complied with the statutory provision requiring it to use a risk
assessment tool to determine that Baska should be supervised by community correctional
services; therefore, there is no merit to Baska's claim that the court's order of
postimprisonment supervision was an illegal sentence.
4. Starting postimprisonment supervision
As a third and final alternative claim, Baska argues his postimprisonment
supervision period never actually began because he never successfully completed his
treatment at the Residential Center. Because a felony DUI offender must be on
postimprisonment supervision for any part of it to be converted to a jail sentence, Baska
asserts the district court's order does not conform to K.S.A. 2015 Supp. 8-1567(b)(3).
We find Baska's claim has merit, although not because of his failure to
successfully complete treatment at the Residential Center. The issue here is a statutory
one, plain and simple. Under K.S.A. 2015 Supp. 8-1567(b)(3), a felony DUI offender will
be placed on the one-year mandatory period of supervision only "[a]fter the term of
imprisonment imposed by the court" or "upon release from imprisonment" or upon
"expiration of the term of imprisonment." So, the issue is whether Baska remained
imprisoned from January 3, 2018, the day he was sentenced, to May 30, 2019, the day his
probation was revoked in the misdemeanor cases. The record reflects that he was.
16
On January 3, 2018, the district court sentenced Baska in the two misdemeanor
cases to 18 months in jail but granted him 24 months' probation under the supervision of
community corrections. Specifically, the court ordered the initial probation placement to
be served at the Therapeutic Community within the Residential Center with Baska to
transition to the Residential Center when he was released from the Therapeutic
Community. The court ordered that Baska wear a remote breathing unit for 90 days after
release from the Residential Center.
Baska spent the first seven days after sentencing in jail waiting for a bed to open
up at the Therapeutic Community. While in jail, he was under the control and in the
custody of law enforcement. Baska spent the next 12 months at the Therapeutic
Community and the Residential Center under the custody and control of community
corrections. Almost 12 months into the 24-month probation period, Baska was arrested at
the Residential Center, taken to the jail, and then released on bond to house arrest. With
the exception of two additional arrests for bond violations, he remained on bond under
house arrest until May 29, 2019, when he was taken into custody on an arrest warrant for
violating the terms and conditions of his probation. He was under the custody and control
of law enforcement for the days he spent in jail on bond violations, and he was under the
custody and control of court services when he was on bond under house arrest. His
probation was revoked on May 30, 2019, and he was ordered to serve his underlying 18-
month sentence, with credit for time spent in jail before he originally was sentenced.
Baska was imprisoned, as that word is defined in the applicable statute, during the entire
time period from January 3, 2018, through May 30, 2019. See K.S.A. 2015 Supp. 8-
1567(o)(2). At no point during that time period was he released from the term of
imprisonment imposed by the district court. Accordingly, Baska's one-year mandatory
period of postimprisonment supervision never began. Because it never began, the court
could not have found Baska to have violated the conditions of the supervision and, in
turn, could not have subjected Baska to revocation of supervision and imprisonment in
jail for the remainder of the supervision period. K.S.A. 2015 Supp. 8-1567(b)(3).
17
For all of these reasons, we conclude the district court's order finding Baska
violated the conditions of supervision, revoking Baska's supervision, and ordering Baska
to serve the remaining period of supervision in jail does not conform to K.S.A. 2015
Supp. 8-1567(b)(3). We reverse the district court's order revoking supervision and
requiring Baska to serve the remaining period of postimprisonment supervision in jail.
We remand the matter with directions for the court to decide whether Baska is otherwise
subject to imprisonment and, if not, to impose the mandatory one-year period of
postimprisonment supervision as originally ordered.
Reversed and remanded with directions.
***
ATCHESON, J., dissenting: Having been convicted as a repeat drunk driver,
Defendant Michael L. Baska was required to complete a period of postimprisonment
supervision immediately after satisfying a term of incarceration, all as mandated in
K.S.A. 2015 Supp. 8-1567. During that one-year supervision, offenders like Baska must
be closely monitored and participate in substance abuse treatment—legislative directives
aimed at preventing further drunk driving incidents and promoting public safety on the
state's roadways. If offenders fail to comply with the conditions of the supervision, a
district court can order them reincarcerated for the balance of the one-year period.
The Johnson County District Court ordered Baska jailed after he violated the terms
of his probation on other convictions and erroneously tacked on the bulk of the
supervision period. But based on the governing statutory language in K.S.A. 2015 Supp.
8-1567(b)(3), Baska actually had been on postimprisonment supervision for at least 360
days and likely the full year. The district court, therefore, could not have ordered Baska
incarcerated for that time. I respectfully dissent from the majority's decision finding
18
otherwise and remanding to the district court to determine if Baska may be required to
yet spend a year on postimprisonment supervision.
In short, I would find Baska's first point on appeal, as outlined in the majority
opinion, to be well-taken. His other points entail lesser relief or doubtful arguments, and I
offer no assessment of them.
The proper legal resolution of this case on appeal is comparatively straightforward
and requires no more than the application of that part of K.S.A. 2015 Supp. 8-1567(b)(3)
outlining postimprisonment supervision for defendants with three or more DUI
convictions. Baska had at least three earlier DUI convictions, so this one constituted a
felony.
As best I can tell, the matter of Baska's postimprisonment supervision got fouled
up in the district court for two primary reasons. First, Baska also accumulated a series of
misdemeanor charges and convictions, and in some of those cases he was placed on
probation with conditions that mirrored much of what he was supposed to do on
postimprisonment supervision for this DUI conviction. Baska also racked up probation
violations with various sanctions that made it hard to tell whether he was coming or
going.
Second, in this case, the prosecutor and Baska's lawyer informed the district court
they had agreed that the one-year postimprisonment supervision would not begin until
after Baska was released from custody on his prison sentence and went through both the
Residential Center, a highly structured nonprison program, and the Therapeutic
Community, an intensive substance abuse treatment program. The district court followed
that agreement. But the arrangement directly conflicted with K.S.A. 2015 Supp. 8-
1567(b)(3), making the agreement and the district court's adoption of it an illegal
19
sentence. Parties cannot agree to illegal sentences. See State v. Lehman, 308 Kan. 1089,
Syl. ¶ 1, 427 P.3d 840 (2018).
So the district court sentenced Baska to a 12-month term of imprisonment on the
DUI conviction on January 3, 2018. Because Baska had been in jail as a pretrial detainee
for more than a year, the district court credited that time against the DUI sentence and
properly found he had effectively served the sentence. As I explain shortly, under K.S.A.
2015 Supp. 8-1567(b)(3), the one-year postimprisonment supervision began then,
notwithstanding the contrary (and unenforceable) agreement otherwise. The appellate
record shows that Baska spent six months at the Therapeutic Community, completing
treatment there, and then went to the Residential Center. On December 28, he was
arrested on a warrant for a probation violation and taken to jail. Baska bonded out of jail
several days later. Over the next 5 months, Baska was on house arrest for some period,
cited for several bond violations, and was twice jailed for a total of 15 days before being
released.
Ultimately, the State sought to revoke Baska's postimprisonment supervision on
this DUI conviction and his probation on the other convictions based on his misconduct
in April and May 2019. During the revocation hearing at the end of May, Baska admitted
the violations. The district court ordered Baska to serve the underlying sentences on the
other convictions plus 356 days it determined he had yet to spend on postimprisonment
supervision on the DUI conviction. In coming to that conclusion, the district court plainly
did not count as part of the one-year supervision period the time Baska spent at the
Therapeutic Community and the Residential Center between January 3 and December 28,
2018. And that's a legal error.
The resolution of the point depends upon the proper application of K.S.A. 2015
Supp. 8-1567(b)(3) to Baska's DUI conviction. An issue resting on statutory construction
presents a question of law that we address without deference to the district court. State v.
20
Turner, 293 Kan. 1085, 1086, 272 P.3d 19 (2012). The majority says the statute in effect
when Baska committed the DUI governs, although the parties have relied on the more
recent version in their briefs. I suppose the majority is correct, so I do not consider the
2018 amendments to K.S.A. 8-1567(b)(3). But I would come to the same conclusion
under either version.
The Legislature added subsection (b)(3) as an entirely new component of K.S.A.
8-1567 in 2011 and amended the statute in a number of other ways. As I have indicated,
subsection (b)(3) requires that a defendant convicted of a third (or greater) DUI transition
from serving a sentence of incarceration in jail or prison to a one-year period of
supervision during which he or she must "participate in a multidisciplinary model of
services for substance use disorders." K.S.A. 2015 Supp. 8-1567(b)(3). Pertinent here, I
extract several parts of the lengthy subsection describing the incarceration, the
supervision period, and their relationship:
⦁ "The court shall determine whether the offender, upon release from
imprisonment, shall be supervised by community correctional services or court services
based upon the risk and needs of the offender." This language requires supervision and
presents the district court with options in selecting the supervising agency.
⦁ "The law enforcement agency maintaining custody and control of a defendant for
imprisonment . . . upon expiration of the term of imprisonment shall deliver the defendant
to a location designated by the supervision office designated by the court." This language
requires defendants go from the agency having custody of them while they serve a term
of incarceration as punishment for the DUI to a place the agency overseeing the
postimprisonment supervision has determined. There is to be a seamless (and immediate)
transition from incarceration to postimprisonment supervision.
21
⦁ "After the term of imprisonment imposed by the court, the person shall be placed
on supervision to community correctional services or court services . . . for a mandatory
one-year period of supervision." Nothing in this language suggests the supervision period
may be deferred once the defendant has served the punitive term of incarceration.
⦁ "During such supervision, the person shall be required to participate in a
multidisciplinary model of services for substance use disorders . . . and, if appropriate,
referral to a community based substance use disorder treatment." The one-year
supervision must include appropriate drug and alcohol counseling and treatment. This
further suggests the supervision period is to immediately follow the defendant's release
from the punitive incarceration, since delaying the supervision and the treatment would
undercut the subsection's obvious policy objectives.
⦁ "Any violation of the conditions of such supervision may subject such person to
revocation of supervision and imprisonment in jail for the remainder of the period of
imprisonment, the remainder of the supervision period, or any combination or portion
thereof." This creates a punitive sanction for a violation of the conditions of supervision.
As those provisions also illustrate, the Legislature clearly distinguished
"imprisonment" and "term of imprisonment," on the one hand, from the period of
supervision and the requisite substance abuse treatment on the other. In subsection (b)(3),
imprisonment refers to the defendant's actual confinement in a penal facility, i.e., a
county jail or a state prison. Equally clearly, a defendant is to transition immediately from
incarceration to the one-year supervision period. During the supervision period, under the
continuing guidance of either community corrections or court services, the defendant
must participate in a treatment program. A district court has no discretion to dispense
with or modify the supervision period. K.S.A. 2015 Supp. 8-1567(b)(3) ("period of
supervision shall not be reduced"). Likewise, the requirement for community corrections
placement or court services monitoring intertwined with the requirement for substance
22
abuse treatment during the supervision period are all statutorily described with a
mandatory "shall." See Gannon v. State, 298 Kan. 1107, 1141, 319 P.3d 1196 (2014)
(when used in "legal document[s]," term "shall" ordinarily construed as mandatory).
The statutory mandates in K.S.A. 2015 Supp. 8-1567(b)(3) are unmistakable,
given the Legislature's language outlining them. Our task is to give effect to the
legislative intent animating a statute. State v. Looney, 299 Kan. 903, 906, 327 P.3d 425
(2014). And in discerning that intent, we typically should rely on the plain meaning of the
words the Legislature has used. State v. O'Connor, 299 Kan. 819, 822, 326 P.3d 1064
(2014). This is such a case.
The district court erred in delaying the start of Baska's one-year supervision period
after determining he had served the term of imprisonment for his DUI conviction,
crediting the time he spent in jail as a pretrial detainee. The supervision period
necessarily began when Baska completed the incarceration portion of his sentence.
Ironically, the district court compounded the error by delaying the period while Baska
was under community corrections supervision in the Residential Center and participating
in a community based treatment program at the Therapeutic Community—the very
conditions that are mandatory components of the period. So the district court
impermissibly deferred the one-year period and ordered Baska to do exactly what he was
otherwise supposed to do during the period. Although the district court may have been
led astray by the parties' joint request, that doesn't excuse an otherwise illegal sentence.
The majority relies on two ineffective rejoinders to affirm the district court. First,
the majority points to the definition of "imprisonment" in K.S.A. 2015 Supp. 8-
1567(o)(2) that includes "any restrained environment in which the court and law
enforcement agency intend to retain custody and control of a defendant." The majority
concludes that definition governs the insular supervision and treatment regimen the
Legislature created in K.S.A. 2015 Supp. 8-1567(b)(3), so Baska's drug treatment at the
23
Therapeutic Community and his supervision through the Residential Center actually
constitute imprisonment that postponed the start of the one-year supervision period. But
that reading of the statute deviates from two canons of construction and does so with
perilous results.
A specific statutory provision controls over a more general provision. State v.
Carpenter, 310 Kan. 945, 949, 453 P.3d 865 (2019) (specific section within statute
controls over general section in same statute); Merryfield v. Sullivan, 301 Kan. 397, 398,
343 P.3d 515 (2015) (specific statute controls over general statute). Here, K.S.A. 2015
Supp. 8-1567(b)(3) is the more specific, since it creates and outlines the purpose and
concept of postimprisonment supervision. And, as I have explained, that subsection
clearly differentiates imprisonment meaning incarceration in jail or prison, from
participation in community corrections and substance abuse treatment during the one-
year supervision period.
Although the general definition in K.S.A. 2015 Supp. 8-1567(o)(2) may be used
for all kinds of other purposes, it cannot be imported into K.S.A. 2015 Supp. 8-
1567(b)(3) to blur the legislatively crafted distinction between imprisonment and
postimprisonment supervision in that subsection. To do otherwise, as the majority would,
disassociates community corrections and substance abuse treatment from the mandated
supervision period when they are supposed to be integrated components of a single mode
of fairly coercive rehabilitation.[*]
[*]For example, if Baska's only crime of conviction were the DUI, the district
court would have had no readily available coercive remedy for his failure to meaningfully
engage in drug treatment the way it handled the one-year supervision period. Under the
district court's order, Baska had completed his prison sentence, so he could not have been
required to serve some remaining portion of it. But he had not yet started the one-year
supervision period in K.S.A. 2015 Supp. 8-1567(b)(3), so he couldn't have been jailed for
violating the terms of the supervision. Properly applied, however, K.S.A. 2015 Supp. 8-
1567(b)(3) makes substance abuse treatment a mandated condition of supervision, and a
district court may order a defendant to jail for the remainder of the supervision period for
24
noncompliance. That punitive stick has been lost here with no especially efficacious
substitute.
A second canon of construction directs that a newer legislative enactment should
control over an older one ostensibly addressing the same or similar subject matter. See
Jones v. Continental Can Co., 260 Kan. 547, 556, 920 P.2d 939 (1996); State v. Sexton,
232 Kan. 539, 543, 657 P.2d 43 (1983). Although less commonly cited than the specific-
general canon and perhaps of less force, the rule is apt here. The general definition of
imprisonment in subsection (o)(2) predated the enactment of subsection (b)(3), so it
should yield rather than override.
The Legislature adopted K.S.A. 2015 Supp. 8-1567(b)(3) as a detailed, self-
contained scheme to rehabilitate repeat DUI offenders. To reiterate, the Legislature
plainly refers to imprisonment and term of imprisonment as the time the defendant
spends in a jail or prison serving a sentence of incarceration, thereby differentiating less
restrictive forms of confinement like community corrections and intensive substance
abuse treatment. Given the carefully tailored and internally complete plan for
postimprisonment supervision in K.S.A. 2015 Supp. 8-1567(b)(3), the Legislature had no
need to modify the existing general definition of imprisonment in subsection (o)(2), since
it has no direct bearing on the operation of postimprisonment supervision.
In short, the majority errs by superimposing the general definition in subsection
(o)(2) on the specific rehabilitative scheme detailed in subsection (b)(3), when it doesn't
obviously fit with the statutory language and impedes the purpose of that scheme.
Finally, the majority relies on State v. Martinez, No. 117,875, 2018 WL 4039405,
at *6 (Kan. App. 2018) (unpublished opinion), but the opinion is inapposite. In that case,
Martinez sequentially committed four felony DUIs and received consecutive sentences
that included imprisonment—actual time behind bars in jail or prison—followed by
25
postimprisonment supervision under K.S.A. 2015 Supp. 8-1567(b)(3). Martinez argued
that because the sentences were consecutive, she actually completed her
postimprisonment supervision on one conviction while she served the incarceration
portion of the sentence in the next case. This court rejected that argument as inconsistent
with the purpose of postimprisonment supervision as a tool for rehabilitation built on
substance abuse treatment and close monitoring in a community setting. 2018 WL
4039405, at *6. The court held that a defendant serving consecutive sentences would
have to complete the terms of imprisonment on each of those sentences before starting
postimprisonment supervision. But the court concluded the statutory scheme neither
called for nor permitted aggregating postimprisonment supervision periods from
consecutive DUI sentences. So a defendant would be required to serve a single one-year
period of postimprisonment supervision after serving all of the consecutive terms of
incarceration. 2018 WL 4039405, at *5-6.
Nothing in Martinez supports the district court's decision in this case to sever the
community corrections and substance abuse treatment components of postincarceration
supervision from the period of supervision itself. And nothing in Martinez suggests that a
placement in either community corrections or substance abuse treatment constitutes part
of a term of imprisonment under K.S.A. 2015 Supp. 8-1567(b)(3), thereby delaying the
start of the supervision period. While Martinez may advance entirely reasonable readings
of how postimprisonment supervision should operate in certain circumstances, those
circumstances are not the circumstances of this case. So those readings are neither
directly relevant nor even analogous here.
The proper remedy for Baska would necessarily require crediting the time he spent
between January 3 and December 28 in treatment at the Therapeutic Community and then
being monitored through the Residential Center as part of the one-year postimprisonment
supervision period in K.S.A. 2015 Supp. 8-1567(b)(3). That's because the time
immediately followed his imprisonment on the DUI conviction and entailed precisely the
26
sort of activity mandated during the postimprisonment supervision. The district court
could not, therefore, properly order that he serve the time in jail based on a revocation of
postimprisonment supervision. Assuming Baska should be credited with the partial days
of January 3 and December 28, 2018, the time he spent at the Therapeutic Community
and the Residential Center is five days short of a full year. Were I deciding this case, I
would be inclined to invite the parties to address whether we have a sufficient appellate
record to determine if Baska completed the supervision period after he was released on
bond on December 31. And if so, what that determination should be, and if not, whether a
remand to the district court would be in order.
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