State v. Collier

513 P.3d 477

STATE of Kansas, Appellee,

v.Jeffrey Scott COLLIER, Appellant.

No. 124,047

Supreme Court of Kansas.

Opinion filed July 15, 2022.

Kristen B. Patty, of Wichita, was on the brief for appellant.

Julie A. Koon, 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 Biles, J.:

Jeffrey Scott Collier appeals from a district court's summary denial of his second pro se motion to correct an illegal sentence imposed for offenses committed in 1993. The sentencing court ordered a hard 15 life sentence with lifetime parole for a first-degree murder conviction and a consecutive 97-month prison term for an aggravated robbery conviction. Collier claims the applicable law required 24 months of postrelease supervision because the aggravated robbery should have been designated as the primary crime for sentencing purposes. The State agrees with him. But we hold the district court correctly sentenced Collier and affirm the district court's denial of his motion.

FACTUAL AND PROCEDURAL BACKGROUND

The details of Collier's crimes are not relevant to this postrelease supervision issue but can be found in State v. Collier , 259 Kan. 346, 348-49, 913 P.2d 597 (1996) ( Collier I ). Our focus here concerns his resentencing after a string of appeals and remands. See State v. Collier , 263 Kan. 629, 637, 952 P.2d 1326 (1998) ( Collier II ). He did not appeal that resentencing at the time.

But several years later, Collier filed what became his first pro se motion to correct an illegal sentence. He claimed the sentencing court should have classified his prior convictions as nonperson offenses when imposing his prison term for the aggravated robbery. The district court summarily denied that motion and this court affirmed. See State v. Collier , 306 Kan. 521, 394 P.3d 1164 (2017) ( Collier III ). In 2020, he filed his second pro se motion, which appears to seek correction of the supervision term, which he asserts is required for the aggravated robbery sentence. That is the basis for this appeal.

His second motion gave few specifics. But it did recite nine "Declarations" about his case's procedural history from which an outline for a legal claim emerges. Important here, the fourth and fifth declarations discussed the presumptive guideline sentence for aggravated robbery as "a prison term of 92 to 103 months and postrelease supervision of 24 months" and the fact the district court "did not establish a postrelease supervision duration" for that conviction. His ninth declaration stated: "The initial sentence imposed for ... Aggravated Robbery ... is still 97 months prison term with no postrelease supervision imposed."

Admittedly, his statements are challenging to decipher with precision. But when the fourth, fifth, and ninth declarations are read together, it is reasonable to infer Collier attacks the lifetime parole ordered by claiming the statute requires postrelease supervision. See K.S.A. 2021 Supp. 22-3504(a), (c)(1) (permitting correction at any time when a sentence is "ambiguous with respect to the time and manner in which it is to be served"). The district court, however, focused only on the 97-month prison term assigned to the aggravated robbery conviction to summarily deny the motion as successive, so it did not squarely address Collier's likely concern about postrelease supervision.

We view Collier's appeal as arguing the applicable law designates his aggravated robbery conviction as the "primary crime" for sentencing purposes and required the district court to impose 24 months of postrelease supervision. And he suggests the lifetime parole ordered at his 1998 resentencing on the murder conviction is illegal because "the only action the trial court was permitted to take to comply with the [m]andate" was reducing the mandatory minimum prison time attached to the life sentence.

Jurisdiction is proper. See K.S.A. 60-2101(b) (Supreme Court jurisdiction over direct appeals governed by K.S.A. 2021 Supp. 22-3601 ); K.S.A. 2021 Supp. 22-3601(b)(3)-(4) (life sentence and off-grid crime cases permitted to be directly taken to Supreme Court).

DISCUSSION

Under K.S.A. 2021 Supp. 22-3504(a), a court may correct an illegal sentence at any time while that sentence is being served. A sentence is illegal when it is "[i]mposed by a court without jurisdiction; ... does not conform to the applicable statutory provision, either in character or punishment; or ... is ambiguous with respect to the time and manner in which it is to be served at the time it is pronounced." K.S.A. 2021 Supp. 22-3504(c)(1).

An appellate court reviews a district court's summary denial of a motion to correct an illegal sentence de novo because it has the same access to the motion, records, and files as the district court. A sentence's legality is a question of law subject to unlimited review. State v. Jackson , 314 Kan. 178, 179-80, 496 P.3d 533 (2021) ; see also State v. Ross , 295 Kan. 1126, Syl. ¶ 2, 289 P.3d 76 (2012) ("Interpretation of a statute raises a question of law over which an appellate court has unlimited review.").

As mentioned, Collier and the State agree the aggravated robbery sentence is illegal. They believe the applicable law required the district court to impose a postrelease supervision term by designating the aggravated robbery as the primary crime. They rely on K.S.A. 1993 Supp. 21-4720(b), which was in effect at the time of Collier's sentencing and addressed situations when a sentencing judge imposes multiple sentences consecutively. Subsection (b)(1) provided: "[T]he consecutive sentences shall consist of an imprisonment term and a supervision term. The postrelease supervision term will be based on the primary crime." And subsection (b)(2) stated, "An off-grid crime shall not be used as the primary crime in determining the base sentence when imposing multiple sentences." (Emphasis added.) And subsection (b)(7) provided: "If the sentence for the consecutive sentences is a prison term, the postrelease supervision term is a term of postrelease supervision as established for the primary crime." In their view, Collier's off-grid crime of first-degree murder could not be used as the primary crime when deciding the supervision period because of the italicized text quoted above.

But we read the applicable provisions differently. K.S.A. 1993 Supp. 21-4720(b) declares:

"In cases where consecutive sentences may be imposed by the sentencing judge, the following shall apply:

(1) When the sentencing judge imposes multiple sentences consecutively, the consecutive sentences shall consist of an imprisonment term and a supervision term. The postrelease supervision term will be based on the primary crime.

(2) The sentencing judge must establish a base sentence for the primary crime. The primary crime is the crime with the highest crime severity ranking. An off-grid crime shall not be used as the primary crime in determining the base sentence when imposing multiple sentences. If sentences for off-grid and on-grid convictions are ordered to run consecutively, the offender shall not begin to serve the on-grid sentence until paroled from the off-grid sentence. ...

(3) The base sentence is set using the total criminal history score assigned.

....

(7) If the sentence for the consecutive sentences is a prison term, the postrelease supervision term is a term of postrelease supervision as established for the primary crime."

The use of the term "postrelease supervision" in subsections (b)(1) and (b)(7) is not obvious from its plain language, but Ross resolved that ambiguity. The Ross court held:

"This section is nonsensical if the phrase ‘postrelease supervision term’ in K.S.A. 21-4720(b)(2) refers to a period of postrelease supervision under K.S.A. 2008 Supp. 22-3717(d) because ... off-grid crimes are followed by parole under K.S.A. 2008 Supp. 22-3717(b). Accordingly, the phrase, ‘postrelease supervision term’ in K.S.A. 21-4720(b)(2) must refer more generally to the supervision period that follows the defendant's release from prison, regardless if that is termed ‘parole’ or ‘postrelease.’ " 295 Kan. at 1133, 289 P.3d 76.

Ross dealt with K.S.A. 21-4720(b)(2), which has slightly different language than K.S.A. 1993 Supp. 21-4720(b)(2), but the use of "postrelease supervision" in Collier's case does not differ from that in Ross . And since the statutory meaning of "postrelease supervision" in K.S.A. 1993 Supp. 21-4720(b)(1) and (b)(7) is the same as K.S.A. 21-4720(b)(2), the Ross holding makes the remaining statutory language clear. In other words, under subsection (b)(1), "consecutive sentences shall consist of an imprisonment term and a supervision term. The ... supervision term will be based on the primary crime." Subsection (b)(2) states "[t]he primary crime is the crime with the highest crime severity ranking," which for the narrow purpose of determining the correct supervision term in Collier's case is the first-degree murder, an off-grid crime. This makes his supervision term lifetime parole. See K.S.A. 1993 Supp. 22-3717(b).

The parties rely on K.S.A. 1993 Supp. 21-4720(b)(2) to press their point in favor of an illegal sentence, but they do not consider the modifier "in determining the base sentence when imposing multiple sentences." (Emphasis added.) K.S.A. 1993 Supp. 21-4720(b)(2). And when the relevant portion of the statute is read as a whole, it means a defendant's base sentence has nothing to do with the supervision term in cases involving multiple convictions. See K.S.A. 1993 Supp. 21-4720(b)(3) ("The base sentence is set using the total criminal history score assigned.").

We also note the Legislature replaced the term "primary crime" with "longest supervision term imposed for any of the crimes" in subsection (b)(1) and added the language of "the postrelease supervision term will be based on the off-grid crime" in subsection (b)(2) in 1994. L. 1994, ch. 291, § 59; ...