State v. Sheets
| Decision Date | 16 July 2021 |
| Docket Number | No. 123,140,123,140 |
| Citation | 494 P.3d 168 |
| Court | Kansas Court of Appeals |
| Parties | STATE of Kansas, Appellee, v. Amber SHEETS, Appellant. |
James M. Latta, of Kansas Appellate Defender Office, for appellant.
Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before Powell, P.J., Bruns, J., and Steve Leben, Court of Appeals Judge Retired, assigned.
If a statute says that a felon "shall serve a period of postrelease supervision" after completing the prison portion of a sentence, can the term of that postrelease-supervision term be zero? We think not. And because that's the basis of the defendant's legal position in this appeal, we reject it.
With the big picture in mind, let's turn to the details. Those will involve several statutory provisions. For the reader's convenience, and because there haven't been substantive changes of any significance during the time this defendant's case has worked through the criminal-justice system, we cite the current version of those provisions.
Amber Sheets pleaded guilty to one felony, a criminal threat, committed in August 2019. The district court sentenced her to probation with an underlying prison sentence of eight months that would be served if her probation was revoked.
When Sheets first violated her probation, the court gave her a three-day jail sanction. That complied with a statutory provision, K.S.A. 2020 Supp. 22-3716(c)(1)(B), that generally requires a short jail stay as a sanction before the court may consider revoking the probation and sending the defendant to serve the underlying prison sentence.
But Sheets violated her probation again, and this time the court revoked the probation. At this point, the statute allowed the court to do so since she had had a jail sanction. See K.S.A. 2020 Supp. 22-3716(c)(1)(C). The same statute also allowed the court to require that she serve "the sentence imposed" previously or "any lesser sentence." K.S.A. 2020 Supp. 22-3716(c)(1)(C). The court elected to impose a lesser sentence of seven months, and the judge announced that from the bench.
What the judge did not do, though, was make any comment from the bench about whether Sheets had to serve a period of postrelease supervision after she completed the seven-month prison sentence. In a written order entered later, the judge imposed a 12-month postrelease-supervision period. That was the same postrelease-supervision period that had been included in the original sentencing order with the earlier eight-month prison sentence.
The judge's failure to mention postrelease supervision when announcing the sentence from the bench after revoking probation could be significant. The postrelease-supervision period is part of the sentence. See State v. Jones , 293 Kan. 757, 762, 268 P.3d 491 (2012). Usually, whatever sentence is announced from the bench is final and can't be corrected later by the sentencing judge except for minor clerical errors. K.S.A. 2020 Supp. 22-3504(b) ; State v. Edwards , 309 Kan. 830, 835-36, 440 P.3d 557 (2019). But there's an exception to that rule: If the sentence as announced isn't a lawful one because it doesn't comply with the sentencing statutes, then it can be corrected to make it lawful while the defendant is still serving the sentence. See K.S.A. 2020 Supp. 22-3504(a), (c) ; State v. Roberts , 309 Kan. 420, 422, 435 P.3d 1149 (2019). Even then, though, the terms of the sentence must be announced from the bench, not added in a later document. See State v. McDaniel , 292 Kan. 443, 445-46, 254 P.3d 534 (2011).
Sheets has appealed to try to eliminate any postrelease supervision. Since the district court didn't announce a postrelease-supervision period from the bench, Sheets argues that the court can't add it later. Whether that's true depends on whether the sentence announced from the bench could lawfully exclude postrelease supervision: if not, the sentence entered was an unlawful one, and the district court has jurisdiction to correct an unlawful sentence. K.S.A. 2020 Supp. 22-3504(a) ; Edwards , 309 Kan. at 835-36, 440 P.3d 557.
To determine whether the district court could lawfully sentence Sheets to a seven-month prison term followed by no postrelease supervision, we must consider one more statutory provision. When a felony offender's probation is revoked under subsection (c) of K.S.A. 2020 Supp. 22-3716 (), then subsection (f) also applies:
"(f) For crimes committed on and after July 1, 2013, a felony offender whose nonprison sanction is revoked pursuant to subsection (c) or whose underlying prison term expires while serving a sanction pursuant to subsection (c)(1) shall serve a period of postrelease supervision on the completion of the prison portion of the underlying sentence." K.S.A. 2020 Supp. 22-3716(f).
Sheets committed her felony in 2019 and her probation was revoked under subsection (c), so subsection (f) applies to her. Under it, she "shall serve a period of postrelease supervision upon the completion of the prison portion of the underlying sentence." K.S.A. 2020 Supp. 22-3716(f).
She argues that because subsection (c)(1)(C) gave the district court the ability to impose "any lesser sentence" after it revoked her probation, the court had the ability to reduce the postrelease-supervision period to zero. If there's doubt about that, she urges that we apply the rule of lenity, under which ambiguous statutes are interpreted in favor of the criminal defendant. See State v. Gales , 312 Kan. 475, 485, 476 P.3d 412 (2020).
But we don't think a fair reading of subsection (f) allows the district court to altogether eliminate the postrelease-supervision period:
We are to give statutory language its plain and natural meaning. See State v. Rizal , 310 Kan. 199, 205-06, 445 P.3d 734 (2019). We cannot read subsection (f) to allow the district court to eliminate altogether a postrelease-supervision term.
Sheets points to our decision in State v. Jones , 56 Kan. App. 2d 556, 433 P.3d 193 (2018), to support her argument. It's similar to the facts of her case: the district court revoked Jones' probation, imposed a lesser prison sentence than first ordered, and then made no statement from the bench about postrelease supervision. We concluded that "the district court's silence on the postrelease term at a probation revocation hearing—even if by mistake—constitutes a lawful lesser sentence that is effective when pronounced from the bench." 56 Kan. App. 2d at 566, 433 P.3d 193. And as we've explained here, a lawful sentence announced from the bench can't be modified later.
But there's a key difference between Jones and this case. In Jones , the defendant was on probation for a crime committed before July 1, 2013....
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...notice, if any, as the court orders." But the statute is intended to be used to correct "minor clerical errors." State v. Sheets , 60 Kan. App. 2d 378, 379, 494 P.3d 168 (2021). This alleged error cannot be described as a minor clerical error when Zink is asking this court to recalculate hi......
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