State v. Herrmann

384 P.3d 1019, 53 Kan. App. 2d 147, 2016 Kan. App. LEXIS 64
CourtCourt of Appeals of Kansas
DecidedNovember 18, 2016
Docket114887
StatusPublished
Cited by3 cases

This text of 384 P.3d 1019 (State v. Herrmann) is published on Counsel Stack Legal Research, covering Court of Appeals of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Herrmann, 384 P.3d 1019, 53 Kan. App. 2d 147, 2016 Kan. App. LEXIS 64 (kanctapp 2016).

Opinion

*148 Standridge, J.:

Jon T. Herrmann entered a plea of no contest to one count of attempted aggravated indecent liberties with a child, a severity level 6 person felony, on April 16, 2012. The district court subsequently sentenced Herrmann to a term of 24 months’ imprisonment and 24 months’ postrelease supervision. The State later discovered that the period of postrelease supervision imposed by the district court at sentencing was illegal because it did not conform to K.S.A. 2011 Supp. 22-3717(d)(l)(G), which mandates lifetime postrelease supervision for persons convicted of a sexually violent crime. As such, the State filed a motion to correct an illegal sentence. The court ultimately granted the State’s motion and resentenced Herrmann to lifetime postrelease supervision.

On appeal, Herrmann claims the district court did not have jurisdiction to resentence him to lifetime postrelease supervision because at the time the court resentenced him, his original sentence of 24 months’ postrelease supervision was legal and the court does not have jurisdiction to modify a legal sentence. Herrmann relies on the 2013 amendments to K.S.A. 22-3717 to support his claim. First, he argues the 2013 amendments to K.S.A. 22-3717(d)(l)(D) retroactively eliminate the mandatory nature of lifetime postrelease supervision in K.S.A. 22-3717(d)(l)(G) for a person convicted of a sexually violent crime by giving tire court an option to impose a term of months based on the severity level of the sexually violent crime of conviction. Alternatively, Herrmann argues the 2013 amendments tp K.S.A. 22-3717(d)(l)(D) render the entire (d)(1) subsection ambiguous because the provisions of subparagraphs (D) and (G) directly conflict with each other: both apply to persons who are convicted of sexually violent crimes but require different terms of postrelease supervision. Based on this conflict, Herrmann argues the court should have applied the rule of lenity and imposed the lesser of the two postrelease supervision terms.

Contrary to Herrmann’s arguments, the 2013 amendments to K.S.A. 22-3717(d)(l)(D) do not alter the requirement in K.S.A. 22-3717(d)(1)(G) that a person convicted of a sexually violent crime after July 1, 2006, receive fifetime postrelease supervision. Most significantly, subparagraph (D) falls under subsection (d)(1), which by its express terms does not apply to persons who are subject to *149 subparagraph (G). Moreover, subparagraph (D) does not conflict with subparagraph (G) because each of those provisions apply to different persons. As explained in more detail below, there are no persons convicted of a sexually violent crime to whom both sub-paragraph (D) and subparagraph (G) apply.

Herrmann claims the district court erred in granting the State’s motion to correct an illegal sentence because his original sentence of 24 months’ postrelease supervision was legal and not subject to modification when the court granted the State’s motion. The trial court does not have jurisdiction to modify a legal sentence once it is pronounced from the bench. State v. Hall, 298 Kan. 978, 983, 319 P.3d 506 (2014). The court does, however, have jurisdiction to modify an illegal sentence and can do so at any time. K.S.A. 22-3504(1). Whether a sentence is illegal is a question of law over which an appellate court has unlimited review. State v. Moncla, 301 Kan. 549, 551, 343 P.3d 1161 (2015). Our Supreme Court has defined “illegal sentence” under K.S.A. 22-3504 as:

“ ‘(1) a sentence imposed by a court without jurisdiction; (2) a sentence that does not conform to the applicable statutory provision, either in character or the term of authorized punishment; or (3) a sentence that is ambiguous with respect to the time and manner in which it is to be sewed. [Citations omitted.]’ ” 301 Kan. at 551.

Herrmann argues the sentence of lifetime postrelease supervision is illegal under the second factor because it does not conform to subparagraph (D) of K.S.A. 2015 Supp. 22-3717(d)(1), which he asserts is the applicable statutory provision. Herrmann contends the post-2013 version of subparagraph (D) retroactively eliminates the statutory requirement that courts impose lifetime postrelease supervision for those convicted of sexually violent crimes. In response to Herrmann’s argument, the State argues lifetime postrelease supervision readily conforms to the applicable statutory provision, which it asserts is subparagraph (G) of K.S.A. 2015 Supp. 22-3717(d)(1). The State argues the concise and unambiguous language set forth in subparagraph (G) clearly reflects the legislature’s intent that lifetime postrelease supervision be imposed for all persons convicted of sexually violent crimes. Given the dispute between the parties, we first must decide which statutory provision within K.S.A. 2015 Supp. 22-3717(d)(1) is applicable to *150 Herrmann s case for purposes of imposing postrelease supervision before we can decide whether the lifetime postrelease supervision ordered conformed to that applicable statutory provision.

Interpretation of statutes is a question of law subject to de novo review. State v. Morningstar, 299 Kan. 1236, 1246, 329 P.3d 1093 (2014). The most fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained. State v. Jordan, 303 Kan. 1017, 1019, 370 P.3d 417 (2016). When construing a statute to determine legislative intent, appellate courts must consider various provisions of the statute in pari ma-teria in order to reconcile and bring the provisions into workable harmony if possible. State v. Keel, 302 Kan. 560, Syl. ¶ 7, 357 P.3d 251 (2015), cert. denied 136 S. Ct. 865 (2016); State v. Swazey, 51 Kan. App.

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Related

– State v. Carpenter
453 P.3d 865 (Supreme Court of Kansas, 2019)
State v. Dunn
444 P.3d 373 (Court of Appeals of Kansas, 2019)
State v. Brook
440 P.3d 570 (Supreme Court of Kansas, 2019)

Cite This Page — Counsel Stack

Bluebook (online)
384 P.3d 1019, 53 Kan. App. 2d 147, 2016 Kan. App. LEXIS 64, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-herrmann-kanctapp-2016.