State v. Thomas
| Decision Date | 25 November 2020 |
| Docket Number | 122,518 |
| Court | Kansas Court of Appeals |
| Parties | State of Kansas, Appellee, v. Kevin L. Thomas, Appellant. |
NOT DESIGNATED FOR PUBLICATION
Appeal from Sedgwick District Court; Jeffrey Syrios, judge.
James M. Latta, of Kansas Appellate Defender Office, for appellant.
Matt J. Maloney, assistant district attorney, Marc Bennett district attorney, and Derek Schmidt, attorney general, for appellee.
Before Hill, P.J., Bruns and Schroeder, JJ.
Kevin L. Thomas appeals the modified sentence imposed by the Sedgwick County District Court after his probation was revoked. Originally, the district court had ordered Thomas to serve 17 months in prison to be followed by 12 months of postrelease supervision. However, the district court granted a downward dispositional departure and placed Thomas on probation. At the probation revocation hearing, the district court modified Thomas' prison sentence to 15 months but did not mention postrelease supervision. On appeal, Thomas contends that the district court's silence means that he is no longer subject to postrelease supervision. However, we find that the district court was required to order some period of postrelease supervision under K.S.A. 2018 Supp 22-3716(f). Thus, we vacate the sentence and remand this case to the district court for clarification regarding the period of postrelease supervision to which Thomas will be subject after he serves his 15-month prison sentence.
On May 28, 2019, Thomas entered into a plea agreement in which he agreed to plead guilty to one count of fleeing or attempting to elude a law enforcement officer. Although the district court subsequently sentenced Thomas to 17 months in prison to be followed by a 12-month period of postrelease supervision it granted his motion for a downward dispositional departure to 12 months of probation. Unfortunately, Thomas was unable to fulfill the terms of his probation and committed a new crime as well as several other violations.
On January 21, 2020, the district court revoked Thomas' probation and ordered him to serve a modified prison sentence of 15 months. In doing so, the district court failed to mention-one way or the other-the 12-month period of postrelease supervision that was originally ordered. Yet, in the journal entry approved by both the prosecutor and defense counsel, the 12-month term of postrelease supervision as originally imposed was included.
On appeal, the sole issue presented is whether the district court's silence regarding postrelease supervision at the probation hearing means that Thomas is no longer required to serve any postrelease supervision. This issue was not raised below. In fact, a review of the record reveals that defense counsel approved the journal entry from the revocation hearing that included the term of postrelease supervision as originally ordered. Of course, K.S.A. 2018 Supp. 22-3504(1) provides that a court may correct an illegal sentence at any time. Thus, we have jurisdiction to hear this matter for the first time on appeal. See State v. Fisher, 304 Kan 242, 264, 373 P.3d 781 (2016).
Whether a sentence is illegal within the meaning of K.S.A. 22-3504 is a question of law over which the appellate court has unlimited review. State v. Lee, 304 Kan. 416, 417 372 P.3d 415 (2016). A sentence is illegal State v. Hayes, 307 Kan. 537, 538, 411 P.3d 1225 (2018). Likewise, we have unlimited review over issues of statutory interpretation of sentencing statutes. State v. Coleman, 311 Kan. 332, 334-35, 460 P.3d 828 (2020). In reviewing a statute, we must read its provisions in pari materia and in a manner to avoid unreasonable or absurd results. State v. Smith, 311 Kan. 109, 114, 456 P.3d 1004 (2020).
Thomas recognizes that K.S.A. 2018 Supp. 22-3716(c)(1)(E) authorizes a district court to modify a sentence upon revocation of a defendant's probation "to serve the sentence imposed, or any lesser sentence." As a result, the district court had the authority upon revoking Thomas' probation to impose the original sentence in its entirety or to order any lesser sentence that was legally appropriate. It appears likely from a review of the transcript of the probation revocation hearing that the only modification that the district court intended to make from the original sentence was to reduce the prison term from 17 to 15 months. Furthermore, the journal entry approved by both the State and Thomas' counsel includes the term of postrelease supervision as originally ordered. Even so, the district court's failure to mention postrelease supervision at the probation hearing makes it impossible for us to determine its actual intent.
Although Thomas cites to ...
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