State v. Dunn

444 P.3d 373 (Table)

STATE of Kansas, Appellee,

v.Stephen Montreal DUNN, Appellant.

No. 119,866

Court of Appeals of Kansas.

Opinion filed July 5, 2019.

Peter Maharry, of Kansas Appellate Defender Office, for appellant.

Rachel L. Pickering, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.

Before Schroeder, P.J., Green and Powell, JJ.

MEMORANDUM OPINION

Per Curiam:

Stephen Montreal Dunn appeals the sentence the Montgomery County District Court imposed for his conviction of rape. Dunn claims the district court erred because it imposed lifetime postrelease supervision, electronic monitoring of that supervision, and it failed to grant him good time credit. For the first time on appeal, the State claims the district court imposed an illegal sentence by departing more than 50 percent from a standard guideline sentence under the Kansas Sentencing Guidelines Act (KSGA). The State is correct. The sentence must be vacated.

Dunn is also partially correct. The district court erred in not granting him good time credit and by imposing lifetime postrelease electronic monitoring. Even so, the district court did not err by imposing lifetime postrelease supervision. We affirm in part, vacate the sentence, and remand with directions for resentencing.

FACTS

The State charged Dunn with the statutory rape of a 12-year-old girl which occurred when he was 18 years of age. After plea negotiations, Dunn entered a no contest plea to the rape charge and the State dismissed unrelated criminal charges in another case. Dunn also agreed to pay restitution for the dismissed charges. At the plea hearing, the State referenced an addendum to the plea agreement requiring Dunn to register as a sex offender for the rest of his life. Dunn acknowledged he was aware of this addendum.

Before sentencing, Dunn moved for a dispositional and durational sentencing departure. At the sentencing hearing, the district court granted Dunn's request, departed from the presumptive life sentence to the sentencing grid, and further reduced the sentence from the applicable grid penalties to 78 months' imprisonment. The court based the departure on Dunn's young age when he committed the offense, the desire of the victim's family to see a lesser sentence imposed, the victim's willing participation in the sexual intercourse, and the court's belief Dunn's remorse was heartfelt and sincere. The court originally ordered Dunn to serve 60 months of postrelease supervision. The State objected, and the court continued the sentencing hearing so the parties could brief the issues of applicable postrelease supervision period and good time credit.

After receiving briefs from the parties, the district court reconvened the sentencing hearing and imposed lifetime postrelease supervision with lifetime electronic monitoring. The court also found Dunn was not entitled to good time credit.

ANALYSIS

Dunn's departure sentence is illegal

The State contends the sentence imposed by the district court constituted an illegal sentence. The State neither raised the issue in the district court nor filed a separate appeal from the judgment imposed by the district court. Typically, the lack of a timely notice of appeal would deprive this court of jurisdiction over the issue. See State v. Sanchez-Loredo , 294 Kan. 50, 53, 272 P.3d 34 (2012) (citing Douglas v. Lombardino , 236 Kan. 471, 490, 693 P.2d 1138 [1985] ). But the Kansas Supreme Court has authorized the State to challenge the legality of Dunn's sentence because a party that did not take an appeal or file a motion to correct illegal sentence may still challenge a sentence's illegality during the other party's appeal. See State v. Spencer , 291 Kan. 796, 820, 248 P.3d 256 (2011) (citing State v. Gracey , 288 Kan. 252, 260-61, 200 P.3d 1275 [2009] ); see also K.S.A. 2018 Supp. 22-3504(a) (authorizing courts to correct an illegal sentence "at any time" while the defendant is serving such sentence).

An illegal sentence within the meaning of K.S.A. 2018 Supp. 22-3504(3) is a sentence imposed by a court without jurisdiction; a sentence that does not conform to the applicable statutory provisions, either in character or term of authorized punishment; or a sentence ambiguous with respect to the time and manner in which it is to be served. State v. Hayes , 307 Kan. 537, 538, 411 P.3d 1225 (2018). The State contends the sentence imposed upon Dunn by the district court failed to conform with the applicable statutory provisions, namely K.S.A. 2018 Supp. 21-6818(a), which states:

"When a departure sentence is appropriate, the sentencing judge may depart from the sentencing guidelines as provided in this section. The sentencing judge shall not impose a downward dispositional departure sentence for any crime of extreme sexual violence, as defined in K.S.A. 2018 Supp. 21-6815, and amendments thereto. The sentencing judge shall not impose a downward durational departure sentence for any crime of extreme sexual violence, as defined in K.S.A. 2018 Supp. 21-6815, and amendments thereto, to less than 50% of the center of the range of the sentence for such crime."

A crime of extreme sexual violence is statutorily defined to encompass "a crime involving an act of sexual intercourse, sodomy or lewd fondling and touching with any child who is less than 14 years of age." K.S.A. 2018 Supp. 21-6815(c)(2)(F)(i)(c). Statutory rape falls within this definition. See K.S.A. 2018 Supp. 21-5503(a)(3). Consequently, the district court was statutorily limited and could not reduce the durational departure sentence to less than 50 percent of the standard penalty within the applicable guidelines grid.

At sentencing, Dunn's criminal history score was H. When the district court departed to the sentencing grid block, the severity level of Dunn's crime became a severity level 1 person felony. See K.S.A. 2018 Supp. 21-5503(b)(1)(B) (sexual intercourse with a child under the age of 14 is a severity level 1 person felony without the aggravating factor of the offender's age). This placed Dunn in a sentencing grid box of 166-176-186 months. See K.S.A. 2018 Supp. 21-6804(a). Half the standard penalty within that grid box (176 months) is 88 months. By imposing a sentence less than 88 months, the district court violated K.S.A. 2018 Supp. 21-6818(a), rendering the sentence illegal. Dunn concedes as much in his reply brief. Consequently, the sentence must be vacated and we remand for resentencing.

Dunn's claims on appeal

We now turn to address Dunn's three issues on appeal. He first argues the district court erred in finding he was not entitled to good time credit based on his departure sentence. Second, he argues it was improper for the district court to impose lifetime electronic monitoring during his lifetime postrelease period of supervision. Third, he argues the district court erred in concluding it must impose lifetime postrelease supervision.

Dunn is entitled to good time credit

Dunn correctly contends the district court erred in ordering no good time credit be applied to his sentences. The State concedes this issue is controlled by State v. Ballard , 289 Kan. 1000, 1014, 218 P.3d 432 (2009).

"Here, Ballard received a departure sentence from Jessica's Law: a determinate sentence pursuant to the guidelines of 55 months' imprisonment. Consequently, when Ballard completes his prison sentence, he will be placed on postrelease supervision, not parole. Stated another way, he will not serve an indeterminate sentence and then be subject to parole, as he would have been if sentenced to life imprisonment pursuant to 21-4643(a). Because the provisions of 22-3717(b)(5) simply do not apply to Ballard, they cannot serve as the basis for denying him eligibility for good time credit." Ballard , 289 Kan. at 1014.

Ballard's and Dunn's sentences are analogous because both are durational departure sentences. This court is bound by the precedent set by Ballard . See State v. Meyer , 51 Kan. App. 2d 1066, 1072, 360 P.3d 467 (2015). The district court erred when it denied Dunn the right to earn good time credit to his sentences.

Dunn is not subject to lifetime postrelease electronic monitoring

Dunn next challenges the district court's order imposing lifetime electronic monitoring during his postrelease supervision period. To consider this argument we must analyze the interplay of several sentencing statutes. The proper interpretation of statutes constitutes a question of law over which an appellate court exercises unlimited review. State v. Warren , 307 Kan. 609, 612, 412 P.3d 993 (2018). The fundamental goal of statutory construction is to give effect to the legislative intent of the statute. State v. Jordan , 303 Kan. 1017, 1019, 370 P.3d 416 (2016). Typically, this statutory intent is ascertained by giving ordinary meaning to the plain language of the statute. Only when a statutory provision is genuinely ambiguous should a court resort to canons of construction or legislative history to give meaning to the statute. State v. Barlow , 303 Kan. 804, 813, 368 P.3d 331 (2016).

K.S.A. 2018 Supp. 22-3717(u) provides:

"An inmate sentenced to imprisonment pursuant to K.S.A. 21-4643, prior to its repeal, or K.S.A. 21-6627, and amendments thereto, for crimes committed on or after July 1, 2006, shall be placed on parole for life and shall not be discharged from supervision by the prisoner review board. When the board orders the parole of an inmate pursuant to this subsection, the board shall order as a condition of parole that the inmate be electronically monitored for the duration of the inmate's natural life." (Emphasis added.)

Previously construing this provision, our Supreme Court has ruled lifetime electronic monitoring is not a function of the court but a function of the Kansas Prisoner Review Board (Board) in establishing conditions of parole. State v. Waggoner , 297 Kan. 94, 100, 298 P.3d 333 (2013) ("It is well established that although lifetime electronic monitoring is mandated by K.S.A. 2012 Supp....