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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 Court of appeals affirmed in unpublished opinion.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 

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November 22, 2017 Digest

Posted By Administration, Tuesday, November 28, 2017
Updated: Monday, November 27, 2017

Kansas Court of Appeals

CRIMINAL

CRIMES AND PUNISHMENT—SENTENCES—STATUTES
STATE v. FOWLER
SEDGWICK DISTRICT COURT—AFFIRMED
NO. 116,803—NOVEMBER 22, 2017

FACTS: Fowler pled guilty to felony domestic battery, felony possession of methamphetamine, and misdemeanor violation of a protective order. The domestic battery offense was charged as a felony because he had been convicted of domestic battery twice within the past five years. The anticipated presumptive probation for the primary crime of possession of methamphetamine, however, was altered to presumptive prison when the presentence investigation report calculated Fowler’s criminal history by aggregating six prior misdemeanors to two person felonies. To follow spirit of the plea agreement, State joined Fowler’s request for a dispositional departure to probation. District court denied the motion and imposed sentence which included prison term for the primary crime of felony possession of methamphetamine. Fowler appealed, arguing for first time the sentence was illegal because the sentencing court, in violation of K.S.A. 2015 Supp. 21-6810(d)(9) of the Kansas Sentencing Guidelines Act (KSGA), “double counted” two of Fowler’s prior person misdemeanor convictions both to enhance the domestic battery conviction from a misdemeanor to a felony and to elevate Fowler’s criminal history.

ISSUE: Sentencing - use of prior misdemeanor domestic battery convictions

HELD: Reasoning in State v. Vontress,  266 Kan. 248 (1998), reaffirmed in State v. Davis, 275 Kan. 107 (2003), was discussed and applied. Fowler was properly charged with felony domestic battery, a non-grid felony. The KSGA sentencing grid is inapplicable to this crime because the crime has its own sentencing scheme with no severity level designation. Felony domestic battery thus cannot be designated as the primary crime for the purpose of applying a criminal history score to calculate a sentence. District court properly designated Fowler’s methamphetamine conviction as the primary crime of conviction for purpose of calculating Fowler’s base sentence, and correctly calculated Fowler’s criminal history score because Fowler’s two prior domestic battery convictions were not used to elevate the classification of the primary crime. 

DISSENT (Malone, J.): Use of Fowler’s two prior domestic battery convictions to calculate his criminal history and to elevate the domestic battery conviction from a misdemeanor to a felony violates the plan language of K.S.A. 2015 Supp. 21-6819(d)(9). Vontress is distinguishable from Fowler’s case. Would vacate Fowler’s sentence and remand for resentencing.  

STATUTES: K.S.A. 2015 Supp. 5414, -5414(a), -5414(b), -5414(b)(3), -6803(d), -6804(a), -6804(c), -6804(i)(1), -6804(i)(3), -6805(a), -6806(c), -6806(d), -6809, -6810, -6810(d)(9), -6811, -6811(a), -6819(b), -6819(b)(2), -6819(b)(3), -6819(b)(5); K.S.A. 21-4710, -4710(d)(11), -4720, 22-3504(1)

Tags:  crimes and punishment  Dissent  Sedgwick  Sedgwick District  sentences  statutes 

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