State v. Carpenter

453 P.3d 865

STATE of Kansas, Appellee,

v.Daniel S. CARPENTER, Appellant.

No. 115,713

Supreme Court of Kansas.

Opinion filed December 6, 2019.

Charles A. O'Hara, of O'Hara & O'Hara LLC, of Wichita, was on the brief for appellant.

Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, were on the brief for appellee.

The opinion of the court was delivered by Nuss, C.J.:

Daniel S. Carpenter argues the district court incorrectly sentenced him to lifetime postrelease supervision after he was convicted of burglary, theft, criminal damage to property, aggravated indecent liberties with a child, and criminal sodomy. Chiefly based on our recent decision in State v. Brook , 309 Kan. 780, 440 P.3d 570 (2019), we reject his argument and affirm.

FACTS AND PROCEDURAL BACKGROUND

The State charged Carpenter with burglary, misdemeanor theft, and misdemeanor criminal damage to property. In a separate complaint, the State charged aggravated indecent liberties with a child and criminal sodomy. He pled no contest in both cases and was convicted.

The sexually violent offenses of aggravated indecent liberties with a child and criminal sodomy were committed between February 1 and 15, 2008, and both were charged as severity level 3 person offenses. See K.S.A. 22-3717(d)(2)(C) and (D) (defining these offenses as sexually violent). The court granted a downward dispositional departure to probation on these presumptive imprisonment convictions. See K.S.A. 21-4704. In pronouncing the underlying sentence, the court stated, "[T]he total term of incarceration you are facing in the case is 55 months," adding the "[p]ost-release chart under the guidelines is 36 months." But the later journal entry in the case involving the sexually violent offenses instead reflected lifetime postrelease supervision. See State v. Gaudina , 284 Kan. 354, 358, 160 P.3d 854 (2007) (postrelease supervision is included as part of a complete sentence).

Because of Carpenter's eventual probation violations, two years later the district court revoked his probation and imposed the underlying sentence of 55 months as well as lifetime postrelease supervision. More than five years later, Carpenter filed a motion to modify the journal entry to correct a purportedly illegal sentence by confirming the orally pronounced sentence of 36 months' postrelease supervision.

The State opposed the motion, arguing lifetime postrelease supervision was mandatory and the 36-month supervision itself was illegal. The district court agreed with the State.

A panel of the Court of Appeals affirmed the district court. State v. Carpenter , No. 115,713, 2017 WL 3001025 (Kan. App. 2017) (unpublished opinion). The panel held the correct interpretation of K.S.A. 22-3717 (specifying different periods of postrelease supervision) was that persons who committed sexually violent offenses after July 1, 1993, but before July 1, 2006, are subject to subsection (d)(1)(A) (36 months' postrelease). By contrast, people who committed such offenses after July 1, 2006, are subject to subsection (d)(1)(G) (lifetime postrelease). Carpenter , 2017 WL 3001025, at *3. We granted Carpenter's petition for review under K.S.A. 20-3018(b), obtaining jurisdiction under K.S.A. 60-2101(b).

Then, on May 10, 2019—while Carpenter's appeal was pending—we released Brook , 309 Kan. 780, 440 P.3d 570. Like the Carpenter panel, there we held K.S.A. 22-3717 provided that persons who committed sexually violent offenses after July 1, 2006, (such as Carpenter) are subject to (d)(1)(G)—lifetime postrelease. 309 Kan. at 786, 440 P.3d 570.

As a result, we issued a show cause order because Brook "appears to be controlling on the sole issue subject to our review." Both parties complied, as discussed below.

ANALYSIS

Issue: Was lifetime postrelease supervision required under K.S.A 22-3717(d)(1) ?

Standard of review

Whether a sentence is illegal within the meaning of K.S.A. 22-3504 —as Carpenter contends—is a question of law over which we have unlimited review. State v. Lee , 304 Kan. 416, 417, 372 P.3d 415 (2016).

Discussion

The State responded to our show cause order by declaring it knew "of no reason why this Court should not summarily affirm" based on Brook .

Carpenter's response conceded (1) both he and defendant Brook were granted probation and (2) this court held Brook's initial term of two years of postrelease supervision under K.S.A. 2013 Supp. 22-3717(d)(1)(D) was illegal. Carpenter further conceded Brook did not support his argument—that his initial term of 36 months' postrelease supervision under 22-3717(d)(1)(A) was legal because he received probation. But he asserts defendant Brook never made (and so the court never addressed) this precise probation-distinctive argument. As a result, he argues this court now should not only consider it but also grant him relief.

Generally, the crime and penalty in existence at the time of the offense are controlling, except where the Legislature has given retroactive effect to statutory changes made after the commission of the crime. State v. Herrmann , 53 Kan. App. 2d 147, 149-50, 384 P.3d 1019 (2016) (quoted in Brook , 309 Kan. at 783, 440 P.3d 570 ). Carpenter's argument relies on an interplay among several subsections of K.S.A. 22-3717(d)(1). The relevant 2007 statutory language is as follows:

"(d)(1) Persons sentenced for crimes, other than off-grid crimes, committed on or after July 1, 1993, or persons subject to subparagraph (G), will not be eligible for parole, but will be released to a mandatory period of postrelease supervision upon completion of the prison portion of their sentence as follows:

"(A) Except as provided in subparagraphs (D) and (E), persons sentenced for nondrug severity level 1 through 4 crimes and drug severity levels 1 and 2 crimes must serve 36 months , plus the amount of good time and program credit earned and retained pursuant to K.S.A. 21-4722, and amendments thereto, on postrelease supervision .

....

"(D)(i) The sentencing judge shall impose the postrelease supervision period provided in subparagraph (d)(1)(A), (d)(1)(B) or (d)(1)(C), unless the judge finds substantial and compelling reasons to impose a departure based upon a finding that the current crime of conviction was sexually motivated. In that event, departure may be imposed to extend the postrelease supervision to a period of up to 60 months.

....

"(G) Except as provided in subsection (u), persons convicted of a sexually violent crime committed on or after July 1, 2006, and who are released from prison , shall be released to a mandatory period of postrelease supervision for the duration of the person's natural life ." (Emphases added.)

We begin our analysis by observing that in his brief, Carpenter overreads a 2009 decision where we reviewed subsection (d)(1)(A) and (G). Among other things, he argues:

" ‘Paragraph (G) applies to persons who are released from prison. In [ State v. ] Ballard , [289 Kan. 1000, 1003, 218 P.3d 432 (2009) ], the sentencing court imposed a prison sentence and knew the defendant was going to prison. Here, the Defendant was granted probation. So, at the time of sentencing, the Defendant was not subject to subparagraph (G) as he was not, at that time, going to ‘be released from prison.’ "

But the Ballard court did not base its determination of defendant's lifetime postrelease supervision on subsection (G)'s application strictly to persons who are sentenced to and then released from prison. Rather, "[B]y Ballard's own admission, 22-3717(d)(1)(G) clearly does apply to him. Consistent with that statute, he was ‘convicted of a sexually violent crime committed on or ... after July 1, 2006.’ ... Therefore , pursuant to subsection (G), he is subject to mandatory lifetime postrelease supervision." (Emphasis added.) State v. Ballard , 289 Kan. 1000, 1012, 218 P.3d 432 (2009).

We further observe the plain language of K.S.A. 22-3717(d)(1) specifically excludes persons subject to subsection (G) from the mandatory (and limited) periods of postrelease supervision set forth in subsections such as (A). Finally, subsection "(G) expressly addresses the postrelease supervision term to be imposed upon sexually violent offenders." State v. Baber , 44 Kan. App. 2d 748, 753, 240 P.3d 980 (2010), rev. denied 296 Kan. 1131 (2013). In sum, per the Baber court, (G) is more specific than (A) and the "law is clear that a specific provision within a statute controls over a more general provision within the statute." 44 Kan. App. 2d at 753, 240 P.3d 980. Thus, when "a defendant is subject to K.S.A. 22-3717(d)(1)(G), he or she is to be sentenced under that subsection. Any other sentence imposed is illegal." 44 Kan. App. 2d at 754, 240 P.3d 980.

Carpenter then moves from the 2007 version of K.S.A. 22-3717 to its 2013 amendments. He claims this latter version simply "clarifies the prior meaning of the statutory language." He argues that because the 2013 amendments changed subsection (D), there must have been ambiguity in 22-3717(d)(1). As mentioned, 22-3717(d)(1)(D)(i) originally read in 2007:

"(D)(i) The sentencing judge shall impose the postrelease supervision period provided in subparagraph (d)(1)(A), (d)(1)(B) or (d)(1)(C), unless the judge finds substantial and compelling reasons to impose a departure based upon a finding that the current crime of conviction was sexually motivated. In that event, departure may be imposed to extend the postrelease supervision to a period of up to 60 months."

But after the 2013 amendments, (d)(1)(D) read:

"(D) Persons sentenced to a term of imprisonment that includes a sentence for a sexually violent crime as defined in K.S.A. 22-3717, and amendments thereto, a sexually motivated crime in which the offender has been ordered to register pursuant to subsection (d)(1)(D)(vii) of K.S.A. 22-3717, and amendments thereto, electronic solicitation, K.S.A. 21-3523, prior to its repeal, or K.S.A. 2013 Supp. 21-5509, and amendments thereto, or unlawful

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