State v. Ross

• Decision Date: 07 December 2012
• Docket Number: No. 103,097.,103,097.
• Citation: 289 P.3d 76
• Parties: STATE of Kansas, Appellee, v. Deon Andrew ROSS, Appellant.
• Court: Kansas Supreme Court

289 P.3d 76

STATE of Kansas, Appellee,

v.Deon Andrew ROSS, Appellant.

No. 103,097.

Supreme Court of Kansas.

Dec. 7, 2012.

Lydia Krebs, of Kansas Appellate Defender Office, argued the cause and was on the briefs for appellant.

Sherri L. Schuck, county attorney, argued the cause, and Steve Six, attorney general, was with her on the brief for appellee.

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

Deon Andrew Ross pled no contest to felony murder and kidnapping. He was sentenced to a hard 20 life sentence for the felony-murder conviction and a consecutive 61–month prison sentence for the kidnapping conviction. He raises several sentencing issues: (1) The district court erred when it imposed lifetime postrelease supervision; (2) the district court erred in ordering him to register under the Kansas Offender Registration Act (KORA), K.S.A. 22–4901 et seq. , pursuant to K.S.A. 22–4902(a)(4)(A) (anyone convicted of kidnapping and the victim was less than 18 years of age will be deemed an offender under KORA); (3) the district court erred in ordering him to serve the aggravated sentence in the applicable grid block for his kidnapping conviction; and (4) the district court erred in ordering his sentences to run consecutive to one another.

Based on the analysis below, we conclude that the district court did err in imposing lifetime postrelease supervision. Furthermore, because nothing in the record suggests that Ross' victim was under 18 years of age, the district court erred in ordering registration pursuant to K.S.A. 22–4902(a)(4)(A). We conclude, however, that because Ross' 61–month prison sentence for his kidnapping conviction fell within the applicable grid block, the sentence is considered a presumptive sentence; thus, we lack jurisdiction to review the propriety of the 61–month sentence. Finally, we conclude that an appellate court has jurisdiction to review whether a district court abused its discretion in ordering an on-grid sentence to run consecutive to an off-grid sentence. Based on the facts of this case, we ultimately conclude that the district court did not abuse its discretion in ordering Ross' sentences to run consecutively rather than concurrently.

Factual Background

Pursuant to a plea agreement, Ross pled no contest to felony murder and kidnapping. The State moved to dismiss one count of rape and informed the district court that Shawnee County authorities were satisfied with the plea and would not prosecute any sex-offense charges related to this case. The district court accepted the plea and found Ross guilty of felony murder and kidnapping.

The district court imposed a life sentence for the felony-murder conviction and a 61–month prison sentence for the kidnapping conviction. The 61–month prison sentence was the aggravated sentence in the applicable grid block for the crime. Relying on the factual basis presented by the State before Ross entered his plea of no contest, the court ordered that the sentence for kidnapping run consecutive to Ross' life sentence. Based on Ross' kidnapping conviction, the district court imposed 36 months' postrelease supervision and informed Ross that he would be required to register under KORA.

The district court's journal entry of judgment reflects the sentence imposed at sentencing. The journal entry shows felony murder as the primary offense, with a “Life—Minimum 20 yrs.” sentence imposed for the off-grid conviction and a 61–month sentence for the additional crime of kidnapping. Just as the district court stated at sentencing, the journal entry includes a 36–month term of postrelease supervision for the kidnapping charge.

Several months after sentencing, the Kansas Department of Corrections sent a letter to the court, the prosecutor, and defense counsel stating that the Sentence Computation Unit believed lifetime postrelease supervision was appropriate because Ross was convicted of an off-grid crime. The State prepared a nunc pro tunc order, which the court signed, changing the period of postrelease supervision from 36 months to lifetime.

Postrelease Supervision

Ross argues that the district court lacked jurisdiction to impose lifetime postrelease supervision. Accordingly, he contends that we should vacate his sentence and remand with directions that the district court reinstate the 36–month postrelease supervision term that it originally imposed at sentencing.

[1] [2] “Courts are permitted to correct illegal sentences at any time. [Citations omitted.] Whether a sentence is illegal is an issue of statutory interpretation and subject to unlimited review as a question of law. [Citation omitted.]” State v. Cash, 293 Kan. 326, 330, 263 P.3d 786 (2011).

Analysis

[3] Ross was convicted of felony murder, an off-grid felony; therefore, under K.S.A. 2008 Supp. 22–3717(b)(2), he “shall be eligible for parole after serving 20 years of confinement without deduction of any good time credits.” Ross' conviction for kidnapping, standing alone, would include a mandatory 36–month period of postrelease supervision. See K.S.A. 2008 Supp. 22–3717(d)(1)(A). We must determine whether the district court could impose a 36–month term of postrelease supervision under these circumstances. This issue turns on whether the phrase “postrelease supervision” in K.S.A. 21–4720(b) refers only to mandatory postrelease supervision imposed for convictions of on-grid crimes or whether the term refers more broadly to the supervision that follows any term of imprisonment, be it parole or postrelease supervision.

In State v. Torres, No. 99,308, 2009 WL 862166 (Kan.2009) (unpublished opinion), we reviewed the sentences imposed for felony murder, criminal discharge of a firearm at an occupied building, and aggravated assault. Like Ross, defendant Oscar Torres had both off-grid and on-grid convictions. Considering whether the postrelease supervision term of 36 months imposed by the district court was valid, this court stated:

“[I]mposing a 36–month postrelease supervision period was also contrary to K.S.A. 21–4720(b)(2), which provides: ‘If sentences for off-grid and on-grid convictions are ordered to run consecutively, the offender shall not begin to serve the on-grid sentence until paroled from the off-grid sentence, and the postrelease supervision term will be based on the off-grid crime.’ (Emphasis added.) The statute further states that the postrelease periods ‘will reflect only the longest ... term assigned to any’ of the consecutive sentences and ‘will not be aggregated.’ K.S.A. 21–4720(b)(4). In Kansas, off-grid crimes are not associated with periods of postrelease supervision but instead are followed by life parole. See K.S.A. 22–3717(b)(2). K.S.A. 21–4720 makes it clear that in cases (as here) where a defendant is being sentenced for both off-grid and on-grid crimes, the court only has authority to impose the supervision period associated with the off-grid crime. In other words, a court must impose life parole.

“Because the district court did not have authority to impose a postrelease period of less than life parole, the total duration of Torres' sentences does not conform to the requirements of K.S.A. 21–4720. See State v. McCarley, 287 Kan. 167, 175, 195 P.3d 230 (2008) (this court has jurisdiction to remand for correction of an illegal sentence even when the resultant sentence would be more severe than that originally imposed). As such, Torres' sentences are illegal and must be vacated.” Torres, 2009 WL 862166, at *3.

[4] [5] [6] [7] [8] We believe that Torres was correctly decided; however, we take this opportunity to expand and clarify the reasoning behind the decision.

“Interpretation of a statute raises a question of law over which an appellate court has unlimited review. The most fundamental rule is that the intent of the legislature governs if that intent can be ascertained. An appellate court must first attempt to ascertain legislative intent through the statutory language enacted, giving common words their ordinary meanings. When a statute is plain and unambiguous, an appellate court does not speculate as to the legislative intent behind it and will not read into the statute something not readily found in it. Where there is no ambiguity, the court need not resort to statutory construction. Only if the statute's language or text is unclear or ambiguous does the court use canons of construction or legislative history or other background considerations to construe the legislature's intent.” State v. Comprehensive Health of Planned Parenthood, 291 Kan. 322, Syl. ¶ 3, 241 P.3d 45 (2010).

1. What is postrelease supervision?

[9] [10] [11] [12] Parole and postrelease supervision are governed by K.S.A. 2008 Supp. 22–3717. On-grid sentences consist of a prison term followed by a mandatory period of postrelease supervision. K.S.A. 2008 Supp. 22–3717(d)(1) (“Persons sentenced for crimes, other than off-grid crimes, committed on or after July 1, 1993, or persons subject to subparagraph [G], will not be eligible for parole, but will be released to a mandatory period of postrelease supervision upon completion of the prison portion of their sentence....”) The term of mandatory postrelease supervision under K.S.A. 2008 Supp. 22–3717(d) does not apply to off-grid crimes. Off-grid crimes consist of a mandatory term of imprisonment followed by parole eligibility. K.S.A. 2008 Supp. 22–3717(b). The district court has no jurisdiction to enter a term of postrelease supervision for an off-grid conviction. Cash, 293 Kan. at 330–31, 263 P.3d 786.

[13] “If sentences for off-grid and on-grid convictions are ordered to run consecutively, the offender shall not begin to serve the on-grid sentence until paroled from the off-grid sentence, and the postrelease supervision term will be based on the off-grid crime.” (Emphasis added.) K.S.A. 21–4720(b)(2). This section is nonsensical if the phrase “postrelease supervision term” in K.S.A. 21–4720(b)(2) refers to a period of postrelease supervision under K.S.A. 2008 Supp. 22–3717(d) because, as...