State v. Jones

• Decision Date: 30 November 2018
• Docket Number: No. 118,268,118,268
• Citation: 433 P.3d 193,56 Kan.App.2d 556
• Parties: STATE of Kansas, Appellee, v. Angela L. JONES, Appellant.
• Court: Kansas Court of Appeals

56 Kan.App.2d 556

433 P.3d 193

STATE of Kansas, Appellee,

v.Angela L. JONES, Appellant.

No. 118,268

Court of Appeals of Kansas.

Opinion filed November 30, 2018.

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 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. ¶ 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 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 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, 160 P.3d 471. 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 revocation hearing. In that case, the district court sentenced the defendant to 30 months' imprisonment with 24 months'...