State v. Ballard

• Decision Date: 06 November 2009
• Docket Number: No. 100,057.,100,057.
• Parties: STATE of Kansas, Appellee, v. Jason BALLARD, Appellant.
• Court: Kansas Supreme Court

218 P.3d 432

STATE of Kansas, Appellee, v. Jason BALLARD, Appellant.

No. 100,057.

Supreme Court of Kansas.

November 6, 2009.

Randall L. Hodgkinson, of Kansas Appellate Defender Office, argued the cause and was on the briefs for appellant.

David Lowden, chief attorney, appellate division, argued the cause, and Kristi L. Barton, assistant district attorney, Nola Tedesco Foulston, district attorney, and Steve Six, attorney general, were on the briefs for appellee.

The opinion of the court was delivered by NUSS, J.:

Jason Ballard directly appeals his sentence for committing aggravated indecent liberties with a child, an off-grid person felony under K.S.A.2006 Supp. 21-3504(a)(3)(A) and (c). More specifically, he appeals the district court's refusal to grant probation and its imposition of lifetime postrelease supervision without eligibility for good time credit. Our jurisdiction is pursuant to K.S.A. 22-3601(b)(1) (conviction of an off-grid crime).

The issues on appeal, and our accompanying holdings, are as follows:

1. Did the district court abuse its discretion in denying a downward dispositional sentencing departure to probation? No.

2. Did the district court err in changing Ballard's originally imposed postrelease supervision period from 36 months to lifetime supervision? No.

3. Did the district court err in finding Ballard ineligible for good time credit? Yes.

Accordingly, we affirm in part, reverse in part, and remand for resentencing with directions.

FACTS

Jason Ballard was charged with aggravated indecent liberties with a child pursuant to K.S.A.2006 Supp. 21-3504(a)(3)(A), which is an off-grid person felony. See K.S.A.2006 Supp. 21-3504(c); K.S.A. 21-4706(d). Under Jessica's Law, this offense carries a sentence of imprisonment for life, with a "mandatory minimum term of imprisonment of not less than 25 years." K.S.A. 21-4643(a)(1). Ballard pled no contest to the charge. He and the State jointly requested a downward durational sentencing departure, from off-grid to the grid block appropriate for a severity level 3 person felony. This severity level felony carries a sentence of between 55 and 247 months in prison. K.S.A.2006 Supp. 21-4704. In exchange for Ballard's plea, the State agreed not to file any additional charges.

The factual basis for the plea was straightforward. Early in the morning of January 1, 2007, Ballard and his wife returned home from a New Year's Eve party. Ballard's 11-year old niece, A.T., was watching television from the couch. When Ballard's wife went to the basement, he went to the couch and "put his hand down her [A.T.'s] pants underneath her panties and began touching her vagina. Even though he was called away by his wife downstairs, he continued to fondle her vagina with his hand inside of her pants." A.T. immediately told Ballard's wife and the event was eventually reported to law enforcement.

On September 11, 2007, Ballard filed a motion for a downward durational and dispositional departure to probation. In support, he argued that he had no felony criminal history and would fall into criminal history category "I." Ballard also argued that he was so intoxicated at the time of the offense that he had no recollection of it and that he mistook A.T. for his wife. Finally, he argued that A.T. and her family agreed that the underlying problem was alcohol addiction and they all wanted him to get probation and treatment. The State objected to Ballard's request for a dispositional departure, arguing that the court could not grant probation as a matter of law and that, even if it could, probation was inappropriate in this case.

At the sentencing hearing 3 days later, the court found that there were substantial and compelling reasons for a durational departure. As a mitigating circumstance, the court found that Ballard's capacity to appreciate the criminality of his conduct and to conform his conduct to the requirements of law was substantially impaired due to the use of alcohol. The court also noted that it was "taking into account the other arguments and evidence presented by your attorney and your family and your friends including all the letters and the information contained in that." It then imposed a sentence of 55 months in prison.

The judge denied Ballard's request for dispositional departure to probation, concluding, "I do not believe all the evidence under all the circumstances would warrant a further departure."

The court also imposed 36 months of postrelease supervision and indicated that Ballard would be eligible for earning good time credit of up to 15 percent. The State objected, arguing that even when there is a downward departure from an off-grid, life sentence to the Kansas Sentencing Guidelines Act, a lifetime of postrelease supervision is still required. The judge stated, "I am going to stay with the finding I previously made which is 36 months." However, he retained jurisdiction "to modify that order if it is in error and contrary to statute. Get with the court and counsel, and if I am in error, go ahead and file an appropriate motion, and I will take it up at that time."

Two weeks later, the court conducted another hearing. The State argued that the postrelease issues were governed by K.S.A. 2006 Supp. 22-3717(d)(1)(G), which mandates lifetime postrelease supervision for sexually violent crimes, and that no good time credit was allowed pursuant to K.S.A.2006 Supp. 22-3717(b)(2). Defense counsel responded that because the court had departed from the life sentence to the sentencing guidelines, the appropriate postrelease term should be based on the sentence imposed pursuant to the guidelines, e.g., 36 months. The court then increased Ballard's postrelease supervision period to life and held that he was not entitled to up to 15 percent good time credit:

"[Y]ou will be, pursuant to statute, specifically K.S.A. 22-3717, subject to lifetime post-release supervision unless otherwise is subsequently modified by statute. Furthermore, I am going to rule and find that I previously stated that you would be subject to potentially earn good time credit of up to 15 percent. The Court was in error in making that. The statute specifically provides otherwise, and so you will not be eligible for good time credit."

Other facts will be added as necessary to the analysis.

ANALYSIS

Issue 1: The district court did not abuse its discretion in denying a downward dispositional departure to probation.

Ballard first claims the district court erred in denying his request for a downward dispositional departure to probation. He argues that he presented substantial and uncontested evidence in support of probation, and notes that the court found substantial and compelling reasons that justified a downward durational departure from a life sentence to 55 months. Ballard complains that the court "arbitrarily denied treatment for alcoholism problems that it acknowledged was at the core of this case." Because his evidence was uncontested, he argues the court acted arbitrarily and abused its discretion in refusing to grant probation.

As a threshold matter, the State argues that this court does not have jurisdiction to review Ballard's claims because he received a presumptive sentence. The State contends that because Ballard's sentence was ultimately calculated through use of a grid block, he received a presumptive sentence for that block's corresponding offense. It cites State v. Ortega-Cadelan, 287 Kan. 157, 163, 194 P.3d 1195 (2008) (a presumptive sentence is a sentence "issued pursuant to a number in a grid block"). Admittedly, his sentence of 55 months corresponds exactly with the low-number, presumptive sentence for a person with a criminal history of "I" committing a Level 3 person felony. Jurisdiction is a question of law over which we have unlimited review. State v. McCarley, 287 Kan. 167, Syl. ¶ 8, 195 P.3d 230 (2008).

We begin our analysis by observing that the Kansas Sentencing Guidelines Act (KSGA), K.S.A. 21-4701 et seq., governs when a defendant may appeal his or her sentence. The KSGA provides that departure sentences are "subject to appeal by the defendant or the state." K.S.A. 21-4721(a). It defines a "departure" as "a sentence which is inconsistent with the presumptive sentence for an offender." K.S.A. 21-4703(f). The KSGA further provides that appellate courts "shall not review: (I) Any sentence that is within the presumptive sentence for the crime." (Emphasis added.) K.S.A. 21-4721(c)(1). It defines "presumptive sentence" as "the sentence provided in a grid block for an offender classified in that grid block by the combined effect of the crime severity ranking of the current crime of conviction and the offender's criminal history." K.S.A. 21-4703(q).

We further observe that K.S.A.2006 Supp. 21-4643, also known as Jessica's Law, requires that a defendant 18 years of age or older who is convicted of certain sexually violent crimes, including aggravated indecent liberties with a child, committed on or after July 1, 2006, must be sentenced to a term of imprisonment for life, with a mandatory minimum term of imprisonment of not less than 25 years. K.S.A. 21-4643(a)(1)(C); see State v. Gracey, 288 Kan. 252, 255, 200 P.3d 1275 (2009). However, the statute's subsection (d) allows a sentencing court to make a downward departure from this mandatory minimum term of imprisonment set out in (a)(1). Upon a finding of substantial and compelling reasons to depart, via subsection (d) the court may instead impose a sentence pursuant to the KSGA.

Subsection (d) of K.S.A.2006 Supp. 21-4643 states in relevant part:

"On or after July 1, 2006, for a first time conviction of an offense listed in paragraph (a)(l), the sentencing judge shall impose the mandatory minimum term of imprisonment provided by subsection (a), unless the judge finds substantial and compelling reasons, following a review of mitigating circumstances, to impose a departure. If the sentencing judge departs from...