State v. Masterson

469 P.3d 103 (Table)

STATE of Kansas, Appellee,

v.Jeffrey Douglas MASTERSON, Appellant.

No. 121,153

Court of Appeals of Kansas.

Opinion filed August 14, 2020.

Kai Tate Mann, of Kansas Appellate Defender Office, for appellant.

Steven J. Obermeier, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.

Before Malone, P.J., McAnany, S.J., and Burgess, S.J.

MEMORANDUM OPINION

Per Curiam:

This appeal deals with the situation in which the district court imposed lawful presumptive sentences under our sentencing guidelines but then attempted to increase those sentences in an improper manner in order to reach a total sentence contemplated by a plea agreement. In this appeal we address the question whether, in responding to this sentencing error, the district court may vacate its otherwise lawfully imposed sentences and resentence the defendant to much higher terms of imprisonment in order to reach the total sentence contemplated by the plea agreement. We conclude that the district court may not, and we vacate the defendant's current sentences and remand for resentencing.

We find no merit in the defendant's second issue, that his age at the time of his crimes had to be established by a jury before the court could impose lifetime postrelease supervision.

PROCEDURAL HISTORY

Jeffrey Douglas Masterson was charged with two severity level 5 counts of sexual exploitation of a child, six off-grid felony counts of sexual exploitation of a child, plus a severity level 9 count of interference with law enforcement. He entered into a plea agreement with the State to resolve all nine charges. In accordance with the plea agreement, he pled guilty to three severity level 5 person felonies of sexual exploitation of a child, one of which the State agreed to reduce from an off-grid felony to a level 5 person felony. As part of the agreement the State agreed to dismiss the other six felony charges against him. The plea agreement contained the following:

"Both parties shall jointly recommend that the Court impose a sentence of 105 months in prison. The parties shall recommend that the sentences for Counts 1 and 2 be made consecutive to one another. Both parties shall jointly recommend that the Court grant a motion for an upward durational departure and impose a sentence of 105 months in prison. There shall be no request for probation or border box findings by the Defendant."

This was a recommendation for an upward durational departure sentence. Pursuant to the agreement, Masterson waived his right to have the upward departure factors proven to a jury. Masterson and the State further agreed on three aggravating factors to support the departure motion: (1) an agreement between the parties to impose a departure sentence; (2) the State's dismissal of six off-grid felonies in exchange for the plea and a promise to support a motion for an upward departure; and (3) the harm associated with the crime being greater than typical.

The State filed a motion for upward durational departure along with the plea agreement. Masterson joined the State in recommending an upward durational departure and 105 months' imprisonment.

At the plea hearing, the State informed the district court that the State expected to recommend that the first two counts run consecutively for "sixty-some months" and then the district court would have the authority to upwardly depart from there. After advising Masterson of his rights, the district court accepted Masterson's guilty pleas.

At the sentencing hearing that followed, the State provided the three agreed-upon reasons for the upward durational departure. The State recommended that the district court impose standard sentences of 32 months' imprisonment on Count 1; 32 months' imprisonment on Count 2, to be served consecutively; and 32-months' imprisonment sentence on Count 3, to be served concurrently with Counts 1 and 2. The State explained:

"If the Court were to follow this recommendation, then the sentence the Court would impose would be sixty-four months. If the Court were to then grant the State's Motion for an Upward Departure, it could increase the sentence by no more than double sixty-four months, and what we are asking for is under the terms of our plea agreement for the Court to impose a total sentence of 105 months in custody of the Secretary of Corrections."

Masterson's counsel confirmed the State's understanding as to how the sentences should be structured to conform to the plea agreement without the court having to upward depart "on each individual crime."

The district court confirmed that Masterson waived his right to a jury determination of the upward departure factors, found the three proposed factors were substantial and compelling reasons to depart, and sentenced Masterson consistent with the plea agreement as follows:

Count 1—32 months' imprisonment;

Count 2—32 months' imprisonment, consecutive to the sentence in Count 1; and

Count 3—32 months' imprisonment, concurrent with the sentences in Counts 1 and 2.

These sentences were the standard guidelines sentences for these crimes. The district court then upwardly departed from the prison terms under Counts 1 and 2 of 64 months and imposed a total prison term of 105 months.

Masterson later moved to correct his illegal sentence, arguing that the sentencing court did not follow the proper sentencing procedure. He contended that in correcting the misapplication of the sentencing law the court could not alter the legal sentences for Counts 1 and 2. He argued that the controlling term of confinement, based on the consecutive guideline sentences in Counts 1 and 2, should be 64 months.

At the hearing that followed, the prosecutor conceded that the parties had erroneously recommended that the Court "impose a departure that I don't believe was lawful because of the mechanics of it." The sentences imposed violated K.S.A. 2019 Supp. 21-6819(c)'s procedures and limits on departure sentences because the district court upwardly departed on the entire sentence instead of each individual crime. The prosecutor explained:

"[B]ecause the parties asked the Court to impose a base sentence and then depart at the end, in terms of we asked the Court to impose a particular base sentence, and then a particular sentence on another count, but then double at the end and we didn't ask the Court to impose a departure on the original base count. But what we did was lead the Court into error."

Masterson and the State agreed with the court's observation that

"what the Count should have done, was entered a sentence of let's say 32 months on Count I and then departed on Count I to up to 64 months then entered a sentence on Count II I think it was 32 or 64. The court could have departed on that up to 64 and they ran those two consecutive and could have resulted in a sentence of 128 months. Although the parties could have agreed to 105 so the Court could have still departed on Count II to an amount less than a total of 64, running those consecutive, and arriving at a sentence of 105 months."

At the conclusion of the hearing the district court found that because both parties misunderstood the applicable sentencing law, the procedure they recommended at sentencing could not legally result in the agreed-upon sentence. The district court vacated the sentences on all three counts because they "defeated the terms of the plea agreement."

Masterson moved the court to reconsider, arguing that the district court only had jurisdiction to correct the illegal departure because all three sentences imposed were lawful guideline sentences. He argued that in correcting the misapplication of the sentencing law the court could not alter the legal sentences for Counts 1 and 2, so the controlling sentence should be 64 months. Thus, he contended, the district court must reinstate his 32-month sentences for each count and run Counts 1 and 2 consecutively for a total of 64 months.

At Masterson's resentencing hearing the district court stated the original sentences imposed were the result of a mutual mistake. The court found some merit in the State's equitable estoppel argument and adopted the State's reasoning. The court resentenced Masterson as follows:

Count 1—an upward departure sentence of 53 months' imprisonment (up from the guideline 32 months previously imposed);

Count 2—an upward departure sentence of 52 months' imprisonment, consecutive to the sentence in Count 1 (up from the guideline 32 months previously imposed); and

Count 3—32 months' imprisonment, concurrent with sentences in Counts 1 and 2.

The court also ordered Masterson to serve lifetime postrelease supervision.

Masterson appeals. He contends that the district court lacked jurisdiction to vacate his lawful sentences. According to Masterson, his sentences on Counts 1, 2, and 3 were legal sentences and, thus, the district court only had jurisdiction to set aside its attempted departure from his guideline sentences. He asks us to remand with instructions to set aside the court's resentencing and reinstate the guideline sentences which, as originally imposed, have a controlling term of 64 months. He also contends that the district court violated his constitutional rights by sentencing him to lifetime postrelease supervision without a jury finding that he was age 18 or older when he committed his crimes.

ANALYSIS

I. The Legality of the Court's Resentencing

Our review standard in interpreting our sentencing statutes and in determining whether Masterson's sentences are illegal is de novo. See State v. Jamerson , 309 Kan. 211, 214, 433 P.3d 698 (2019).

Preservation

The State contends that this issue has not been preserved for appeal because Masterson's sentences conform to the applicable statutory provisions, in both character and punishment. See K.S.A. 2019 Supp. 22-3504(c)(1). The State asserts Masterson's complaint is about the procedure the district court used, "which is not a component of an illegal sentence."

But Masterson's issue is with the district court's...