State v. Mason

• Decision Date: 06 July 2012
• Docket Number: No. 105,535.,105,535.
• Citation: State v. Mason, 294 Kan. 675, 279 P.3d. 707 (Kan. 2012)
• Parties: STATE of Kansas, Appellee, v. Lawrence MASON, Jr., Appellant.
• Court: Kansas Supreme Court

294 Kan. 675

279 P.3d 707

STATE of Kansas, Appellee,

v.Lawrence MASON, Jr., Appellant.

No. 105,535.

Supreme Court of Kansas.

July 6, 2012.

Syllabus by the Court

1. Lifetime parole imposed pursuant to K.S.A. 22–3717(u) is not in conflict with the mandatory term of lifetime postrelease supervision described in K.S.A. 22–3717(d)(1) because K.S.A. 22–3717(d)(1)(G) specifically exempts the provisions in K.S.A. 22–3717(u).

2. Our standard of review on the denial of a sentencing departure from Jessica's Law, K.S.A. 21–4643, is abuse of discretion.

Joanna Labastida, of Kansas Appellate Defender Office, was on the brief for appellant.

Natalie Chalmers, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, were on the brief for appellee.

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

Lawrence Mason, Jr., pleaded guilty to one count of rape of a child less than 14 years old and one count of aggravated criminal sodomy of a child less than 14 years old. He was sentenced to life imprisonment without possibility of parole for 592 months based on his criminal history score. He appeals his sentence.

Factual Background

On October 2, 2009, Mason pleaded guilty to one count of rape of a child less than 14 years old and one count of aggravated criminal sodomy of a child less than 14 years old. The victim was his adopted daughter, who was 12 years old at the time of the offense. Mason filed a motion for departure.

At sentencing, the district court heard statements from several of Mason's family members and family friends, expressing their support for Mason, their respect for his good character, and their continued belief that he was innocent. Mason made a statement, and his attorney presented argument in favor of departure from life sentences with lengthy mandatory minimums under Jessica's Law. The State presented testimony from the victim's therapist, who said the victim had been in a residential mental health facility for over a year and was making little to no progress as a result of trauma from the sexual abuse.

The district court found that Mason failed to demonstrate any substantial and compellingreasons for a departure. Mason was sentenced to life imprisonment, without eligibility for parole for 592 months, for rape of a child under the age of 14. Mason was also given a concurrent life sentence, without parole eligibility for 25 years, for aggravated criminal sodomy of a child under 14 years of age. The district court informed Mason that he would be required to register as a sex offender for his lifetime following his release. In addition to the sentence imposed from the bench, the journal entry of sentencing included that Mason is subject to lifetime postrelease supervision and lifetime electronic monitoring.

Lifetime Postrelease Supervision and Lifetime Electronic Monitoring

Mason argues that his convictions carried conflicting penalties—lifetime postrelease supervision without electronic monitoring under K.S.A. 22–3717(d)(1)(G) and lifetime parole with electronic monitoring under K.S.A. 22–3717(u). As his first issue, Mason argues he should have been sentenced to lifetime parole rather than lifetime postrelease supervision. In the alternative, Mason argues that if lifetime postrelease supervision was appropriate, electronic monitoring was in error. The State responds that Mason was properly sentenced by the court at the sentencing hearing, but the journal entry is erroneous and should be corrected with a nunc pro tunc order.

Standard of Review

Statutory interpretation raises a question of law over which this court has unlimited review. State v. Jolly, 291 Kan. 842, 845–46, 249 P.3d 421 (2011).

Analysis

Mason was sentenced to life imprisonment without possibility of parole for 592 months, based on his criminal history score, under K.S.A. 21–4643(a)(2)(B). His parole supervision following his release from prison is governed by K.S.A. 22–3717(u), which is a specific exception to K.S.A. 22–3717(d)(1)(G). There is no conflict between these provisions because K.S.A. 22–3717(d)(1)(G) begins with the phrase “[e]xcept as provided in subsection (u).”

This court recently stated that “a sentencing court has no authority to order a term of [lifetime] postrelease supervision in conjunction with an off-grid indeterminate life sentence.” State v. Cash, 293 Kan. 326, Syl. ¶ 2, 263 P.3d 786 (2011). Although lifetime electronic monitoring is mandated by K.S.A. 22–3717(u), the sentencing court does not have the authority to impose parole conditions. Jolly, 291 Kan. at 848, 249 P.3d 421. The sentence reflected in the journal entry is erroneous; however, there is no similar problem with the sentence pronounced from the bench.

“A criminal sentence is effective upon pronouncement from the bench; it does not derive its effectiveness from the journal entry. A journal entry that imposes a sentence at variance with that pronounced from the bench is erroneous and must be corrected to reflect the actual sentence imposed.” Abasolo v. State, 284 Kan. 299, Syl. ¶ 3, 160 P.3d 471 (2007). The journal entry of sentencing can be corrected by a nunc pro tunc order so that it reflects the actual sentence pronounced from the bench, which was a legal sentence. See K.S.A. 22–3504(2). We affirm the sentence imposed from the bench and remand this case to the district court with directions to issue a nunc pro tunc order correcting that portion of the journal entry that included lifetime postrelease supervision and lifetime electronic monitoring.

Departure

Mason filed a motion for departure from the mandatory sentencing provisions provided in K.S.A. 21–4643, Jessica's Law. Mason argues that the district court erred in denying his motion for departure, providing the following mitigating factors: (1) the length of time since his previous convictions, (2) his work history, (3) his family support, (4) the fact that he had taken responsibility for his actions, and (5) the fact that he would be subject to registration and supervision for the rest of his life. The State argues that Mason's prior conviction for a sex offense and the serious emotional trauma inflicted on the victim supported the district court's decision to deny the departure.

Standard of Review

“Our standard of review on the denial of a sentencing departure is abuse of discretion.” State v. Seward, 289 Kan. 715, 721, 217 P.3d 443 (2009).

“Judicial discretion...