State v. Zapata

• Citation: 457 P.3d 213 (Table)
• Decision Date: 14 February 2020
• Docket Number: No. 120,529,120,529
• Parties: STATE of Kansas, Appellee, v. Oscar ZAPATA Jr., Appellant.
• Court: Court of Appeals of Kansas

457 P.3d 213 (Table)

STATE of Kansas, Appellee,

v.Oscar ZAPATA Jr., Appellant.

No. 120,529

Court of Appeals of Kansas.

Opinion filed February 14, 2020.

Kasper Schirer, of Kansas Appellate Defender Office, for appellant.

Barry K. Disney, senior deputy county attorney, Barry Wilkerson, county attorney, and Derek Schmidt, attorney general, for appellee.

Before Arnold-Burger, C.J., Hill and Gardner, JJ.

MEMORANDUM OPINION

Per Curiam:

Oscar Zapata Jr. appeals from his sentence after pleading no contest to one count each of aggravated burglary and aggravated sexual battery. At the original sentencing, the district court imposed a 36-month period of postrelease supervision. A few weeks later, the State filed a motion requesting that the district court resentence Zapata in accordance with K.S.A. 2018 Supp. 22-3717(d)(1)(G), which requires lifetime postrelease supervision for persons being sentenced for a sexually violent crime committed on or after July 1, 2006, when the offender was 18 or older. After holding a hearing, the district court found that Zapata's original sentence was illegal and resentenced him to lifetime postrelease supervision. After a thorough review of the court's decision, we affirm in part, reverse in part, and remand with directions.

FACTUAL AND PROCEDURAL HISTORY

Around 2 a.m. on September 15, 2017, C.H. was being escorted back to her apartment by a male friend after becoming intoxicated at a bar in Manhattan. Zapata drove by and offered to give them a ride in his truck. Zapata and the friend carried C.H. into her apartment and left her there passed out on the living room floor. Zapata then drove away with the friend to drop him off at another residence and returned alone to C.H.'s apartment.

Less than an hour later, C.H.'s roommates returned to the apartment to find Zapata with his pants pulled down and huddled over C.H.—still passed out on the floor but now with her pants and underwear pulled down to her ankles. One roommate yelled, "[H]ey, stop," and told the other roommate, "I think [C.H.] is getting raped." Zapata quickly got up from the floor and pulled his pants up, grabbed his keys, pushed past the roommate through the door, and fled in his truck.

After being identified and located by the police, Zapata admitted he knew C.H. was intoxicated but said he was trying to wake her up to "do sexual things to her." The State charged Zapata with aggravated burglary and attempted rape of C.H.

In August 2018, Zapata pled no contest to the aggravated burglary and a reduced charge of aggravated sexual battery. The State agreed to recommend concurrent sentences, and Zapata agreed not to seek any departure from the presumptive sentence.

Zapata's acknowledgment of rights and entry of plea form reflected that he was 22 years old, that his counsel advised him the aggravated burglary charge was a severity level 4 person felony which carried a postrelease supervision period of 36 months, and that the aggravated sexual battery charge was a severity level 5 person felony which carried a postrelease supervision period of 24 months. The presentence investigation report reflected the same, including the fact that he was 21 at the time of the offenses.

At sentencing, the district court sentenced Zapata to 50 months' imprisonment on the aggravated burglary charge as the primary offense and 32 months' imprisonment on the aggravated sexual battery charge. As to postrelease supervision, the court imposed a term of 36 months for each offense.

Approximately two weeks later, the State filed a motion requesting that the district court resentence Zapata. The State explained that Zapata's aggravated sexual battery conviction was a sexually violent crime as defined in K.S.A. 2018 Supp. 22-3717(d)(1)(G) and (d)(5), which required the district court to impose a mandatory period of lifetime postrelease supervision. Because the district court only sentenced him to a 36-month postrelease supervision period, his sentence was illegal, and the court needed to correct Zapata's sentence. The State ended its motion by conceding that the court should give Zapata a chance to withdraw his plea "[b]ecause the defendant's counsel erroneously advised him of the wrong period of post-release."

Zapata responded, asserting that the State failed to allege in its motion why the district court had jurisdiction to resentence him and that the court lacked jurisdiction to modify a legal sentence. He also asserted that the district court lacked jurisdiction to resentence him because the court properly imposed a lesser term of postrelease supervision. Zapata referenced other cases in which Kansas courts have held that lifetime postrelease supervision was unconstitutional "as applied" to other defendants convicted of sexually violent crimes, including State v. Riffe , 308 Kan. 103, 418 P.3d 1278 (2018), and State v. Proctor , 47 Kan. App. 2d 889, 280 P.3d 839 (2012), rev'd and remanded by S. Ct. order dated June 19, 2013. Zapata raised additional challenges, including that lifetime postrelease supervision as applied would be unconstitutional under the Eighth Amendment to the United States Constitution and Section 9 of the Kansas Constitution Bill of Rights. On this second point, Zapata argued that the factors set out in State v. Freeman , 223 Kan. 362, 574 P.2d 950 (1978), favored a finding that imposing lifetime postrelease supervision would be unconstitutional in his case.

At the resentencing hearing, the district court first explained to Zapata that a lifetime postrelease supervision period should have been imposed instead of a 36-month period and gave him a chance to withdraw his plea. Zapata initially said he was confused but ultimately said he understood and declined to withdraw the plea. After hearing arguments from counsel on whether Zapata should be resentenced, the court determined that it had failed to follow the statutory provisions, leading to an illegal sentence. As to the constitutionality of lifetime postrelease supervision, the court found:

"As it relates to the other arguments made as to the constitutionality of it or the other issues set forth in Freeman , the first factors that courts are to consider, degree of danger, facts of the crime, either it was violent or nonviolent. Both parties have stated their position as to what the facts of the case are and what the facts of the case reveal. The Court has considered both the statements made by defense and by the State as it relates to those items.

"As to the second Freeman factor, comparing the punishment with other more serious crimes, the defendant correctly points out that we have what many individuals would consider to be more serious crimes that do not carry a lifetime post-release. This becomes a very difficult one to weigh by this Court. It's calling for me to make a judgment as to what crimes are serious or how much one crime is more serious than another crime. It's always been my belief that the legislature makes that decision when they pass the laws and the statutory provisions.

"Even though I might feel like one crime is more serious than the other, and one crime should contain a longer sentence, or one crime should contain the longer postrelease, I believe under the Freeman case and the others cited that unless it's something which is obviously out of line, is best left up to the legislature.

"The third factor, of course, is comparing other states or jurisdictions, and it's apparently uncontroverted not only in case law but statements that Kansas is in a minority, small minority that even provides for lifetime post-release. Once again, because we're not with the majority, does that make this an unconstitutional situation?

"Having considered all of those factors, I don't believe any of them are compelling to the point that this Court is willing to order—enter such an order. Therefore, I am ready to proceed with sentencing at this time."

Ultimately, the district court resentenced Zapata to concurrent prison terms of 50 months on the aggravated burglary charge, 32 months on the aggravated sexual battery charge, and ordered lifetime postrelease supervision.

Zapata subsequently filed a motion asking the district court to make additional findings on its decision to resentence him and declare lifetime postrelease supervision constitutional as applied to the facts of the case. The court granted the request by issuing a journal entry about two weeks after Zapata filed a timely notice of appeal. The order memorialized these findings of fact and conclusions of law:

"1. The defendant entered a no contest plea to Aggravated Burglary and Aggravated Sexual Battery on August 15th, 2018.

"2. Prior to entering his plea the defendant was advised in an Acknowledgment of Rights form that the post release supervision duration period for a conviction of Aggravated Sexual Battery was 36 months.

"3. The defendant was sentenced on October 1st, 2018, at which time the court imposed a post-release supervision term of 36 months for the Aggravated Sexual Battery conviction.

"4. After sentencing, the Kansas Department of Corrections notified the court and the parties that ... the post release supervision period imposed by the court was contrary to K.S.A. 2013 Supp. 22-3717(d)(l)(G) and (d)(5) which requires offenders convicted of sexually violent crimes to have a mandatory post release supervision for the duration of the person's natural life.

"5. On October 29th, 2018 the defendant was brought before the court and informed that the post release duration period imposed upon him at sentencing did not conform to the applicable statutory provision. The court afforded the defendant an opportunity to withdraw the plea he had entered on August 15th, 2018. The defendant request[ed] time to consider the matter.

"6. On November 5th, 2018, the defendant filed a motion asserting that the court did not [have] jurisdiction to modify the sentence previously imposed.

"7. On November 9th, 2018, the defendant filed a pleading asserting that the

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