Print Page | Contact Us | Sign In | Register
Appellate Court Digests
Blog Home All Blogs
@@WEBSITE_ID@@

 

Search all posts for:   

 

Top tags: Attorney Discipline  Sedgwick District  Wyandotte District  constitutional law  Shawnee District  statutes  Johnson District  Reno District  Saline District  Sedgwick  8807  Criminal Procedure  evidence  Johnson District Court  Motions  Douglas District  criminal law  Fourth Amendment  Johnson  jury instructions  search and seizure  Sedgwick District Court  Shawnee District Court  Disbarment  Finney District  habeas corpus  Leavenworth District  Reno  Riley  sentences 

August 31, 2018 Digests

Posted By Administration, Tuesday, September 4, 2018
Updated: Tuesday, September 4, 2018

Kansas Supreme Court

Criminal

criminal law—criminal procedure–probation—sentencing—statutes
State v. Sandoval
Sedgwick district court—affirmed
court of appeals—affirmed
No. 113,299—august 31, 2018

FACTS: Sandoval was convicted in 2011 of aggravated indecent solicitation. Probation was ordered with an underlying 34 month prison term and 24 month postrelease supervision. Probation revoked in 2012. District judge denied defense request for modification, and ordered service of the original underlying sentence. Later recognizing the 24-month postrelease supervision did not comply with the sentencing statute at the time of Sandoval’s crime, State filed K.S.A. 22-3504 motion seeking substitution of lifetime postrelease supervision. District judge granted the motion. Sandoval appealed, arguing the district judge was empowered by K.S.A. 2017 Supp. 22-3716(b)(3)(B)(iii) to impose a lesser sentence than the lifetime term required at the original sentence, thus no illegality existed in the postrevocation sentence. Court of appeals affirmed in unpublished opinion. Sandoval’s petition for review granted.

ISSUE: Sentencing after probation revocation

HELD: After revoking probation, a district judge may choose to sentence anew, even if some component of the original sentence was illegal because it failed to match a mandatory statutory minimum. In the alternative, a judge may simply require the defendant to serve the original sentence. If a new sentence is pronounced from the bench after probation revocation, any original illegality no longer exists, and the new sentence is not subject to challenge or correction under K.S.A. 22-3504. If the judge instead requires the defendant to serve the original sentence, any original illegality continues to exist and is subject to challenge or correction under K.S.A. 22-3504(1). Here, no new sentence was imposed. The judge who revoked Sandoval’s probation explicitly declined to modify the original sentence and required Sandoval to serve it. This left an illegal postrelease term in place and open to correction. State v. McKnight, 292 Kan. 776 (2011), is factually distinguished.

CONCURRENCE (Beier, J.)(joined by Nuss, C.J., and Biles, J.): Write separately to reinforce majority’s decision with alternative and more broadly applicable plain language rationale. K.S.A. 2017 Supp. 22-3716(b)(3)(B), read as a whole including introductory “[e]xcept as otherwise provided,” has additional benefit of harmonizing the statute with the explicit purpose of the Kansas Sentencing Guidelines Act: uniformity. 

DISSENT (Johnson, J.)(joined by Rosen, J.): A judge pronouncing sentence after probation revocation inevitably sentences anew, and any illegality in the original sentence no longer exists. While judge in this case did not appreciate at time of revocation the error in the postrelease supervision term in the original sentence, when he refused to modify that term, he effectively reduced it. This reduction was legal and could not be modified through a motion under K.S.A. 22-3504.  Facts in this case are not meaningfully different from McKnight. Would vacate the lifetime postrelease supervision component of the sentence and remand for journal entry substituting a term of 24 months. 

STATUTES: K.S.A. 2017 Supp. 22-3504(3), -3716)(b)(3)(B)(iii); K.S.A. 21-6806(c), 22-2201(3), -3504, -3504(1), -3716, -3716(b), -3717(d)(1)(B), -3717(d)(1)(G), -3717(d)(2)(G)

 

criminal law—criminal procedure—probation—sentencing—statutes
state v. roth
finney district court—reversed and remanded
court of appeals—affirmed
No. 113,753—august 31, 2018

FACTS: Roth was convicted of aggravated sexual battery and two counts of aggravated burglary. Sixty months of probation ordered with underlying prison term totaling 102 months and 24 month postrelease supervision. When probation was revoked in 2010, district judge modified the prison term to run the three sentences concurrently instead of consecutively, with the 24-month postrelease supervision period. In 2014, State filed motion to correct an illegal sentence, seeking the mandatory lifetime postrelease supervision for Roth’s crime. Roth argued the postrelease supervision component of the postrevocation sentence was a legal “lesser sentence” under K.S.A. 2017 Supp. 22-3716(b)(3)(B)(iii). District judge ruled the 24-month postrelease term was illegal and ordered lifetime postrelease supervision. Roth appealed. Count of appeals affirmed in unpublished opinion. Roth’s petition for review granted. 

ISSUE: Sentencing after probation revocation

HELD: As in Sandoval (decided this same date), Roth’s appeal addresses limits of a district judge’s sentencing power after probation revocation. Here, the judge who revoked probation chose to give Roth a “lesser sentence” as expressly permitted by K.S.A. 2017 Supp. 22-3716(b)(3)(B)(iii), and this new sentence was not subject to challenge or correction under K.S.A. 22-3504. Court of appeals is reversed. Lifetime postrelease supervision component of Roth’s sentence is vacated and case is remanded for journal entry modifying the sentence to substitute a term of 24 months of postrelease supervision. 

CONCURRENCE (Johnson, J.)(joined by Rosen, J.): Concurs for same reasons set out in his dissent in Sandoval.

DISSENT (Beier, J.)(joined by Nuss, C.J., and Biles, J.): Dissents for reasons set out in her concurrence in Sandoval.

STATUTES: K.S.A. 2017 Supp. 22-3716(b)(3)(B), -3716(b)(3)(B)(iii); K.S.A. 2010 Supp. 22-3717(d)(1)(G), -3717(d)(2)(I); K.S.A. 21-3518(a)(1), -3716, 22-3504, -3504(1)

Tags:  Concurrence  Dissent  Finney District  Sedgwick District 

Share |
PermalinkComments (0)