State v. Combs

1

NOT DESIGNATED FOR PUBLICATION

No. 115,638

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

MICHAEL COMBS,
Appellant.


MEMORANDUM OPINION

Appeal from Riley District Court; DAVID L. STUTZMAN, judge. Opinion filed April 7, 2017.
Affirmed.

Sam Schirer, of Kansas Appellate Defender Office, for appellant.

Bethany C. Fields, deputy county attorney, Barry R. Wilkerson, county attorney, and Derek
Schmidt, attorney general, for appellee.

Before GREEN, P.J., STANDRIDGE and GARDNER, JJ.

Per Curiam: Michael Combs appeals from a judgment of the trial court revoking
his probation and ordering him to serve the balance of his sentence. Combs contends that
the trial court imposed an ambiguous sentence when it simply stated that he would have
to serve the balance of his sentence. Moreover, Combs contends that a 2013 amendment
to K.S.A. 22-3717(d), the provision that outlines what terms of postrelease supervision
defendants must serve, has made his lifetime postrelease supervision sentence illegal. We
disagree. Accordingly, we affirm.

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The State charged Combs with one count of sexual exploitation of a child, a
severity level 5 person felony in violation of K.S.A. 2011 Supp. 21-5510(a)(2), for
possessing child pornography between July and November 2011. Following a jury trial,
Combs was found guilty. On January 4, 2013, the trial court sentenced Combs to 36
months' probation, with an underlying sentence of 32 months' imprisonment followed by
lifetime postrelease supervision.

Combs appealed to this court, arguing that it was cruel and unusual punishment for
a first-time sexual exploitation of a child offender to be sentenced to lifetime postrelease
supervision. See State v. Combs, No. 109,728, 2014 WL 3019605 (Kan. App. 2014)
(unpublished opinion), rev. denied 302 Kan. 1013 (2015). Citing State v. Williams, 298
Kan. 1075, Syl. ¶ 8, 319 P.3d 528 (2014), as authority, this court held that the imposition
of lifetime postrelease supervision was not cruel or unusual punishment. Combs, 2014
WL 3019606, at *4-5.

Meanwhile, during the course of the 35 months Combs spent on probation, Combs
violated the terms of his probation six times. During his final probation violation hearing,
the trial court decided to revoke Combs' probation. Before revoking his probation, the
trial court asked the parties to determine how much jail time credit Combs had earned.
Once the parties determined that Combs had served about 20 months of his 32-month
underlying prison sentence in jail, the trial judge made the following statement:

"Okay. Alright. That's helpful. Thank you. . . . All along the way, it has been . . . like a
dripping tap of violations and [there] has never been a point at which things cleared up
and became what they needed to be. And at this point it appears to the Court that the
appropriate resolution is to be remanded to the custody of the Secretary to serve the
balance of the sentence, which will be accurately calculated completely, but if that's
about right then that would leave approximately that period of time. Which it seems to
me is appropriate to be served at this point."

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Did the Trial Court Impose an Ambiguous Sentence?

Combs' first argument on appeal is that the trial court imposed an ambiguous
postrelease supervision sentence when it revoked his probation. Combs concedes that the
trial court "unambiguously conveyed that [he] was required to serve the remainder of his
prison sentence." Nevertheless, Combs contends that the trial court's failure to
specifically reference what term of postrelease supervision he would serve resulted in an
ambiguous, and therefore illegal, sentence. Because Combs believes that the trial court
failed to clearly articulate whether he was to serve lifetime postrelease supervision,
Combs asks this court to remand to the trial court so the trial court could "articulate
whether [he was] to serve lifetime postrelease, or some lesser sentence." The State
counters that the trial court's pronouncement was not ambiguous because the trial court
clearly stated that Combs was required to serve "the balance of [his] sentence," which
necessarily included the trial court's original lifetime postrelease supervision sentence.

Under K.S.A. 22-3504(1), an illegal sentence includes a sentence that is
ambiguous with respect to the time and manner in which it shall be served. "Whether a
sentence is illegal within the meaning of K.S.A. 22-3504 is a question of law over which
the appellate court has unlimited review." State v. Gray, 303 Kan. 1011, 1013-14, 368
P.3d 1113 (2016). Moreover, appellate courts may review illegal sentence challenges
when raised for the first time on appeal because K.S.A. 22-3504(1) specifically states that
courts may "correct an illegal sentence at any time." See Gray, 303 Kan. at 1014.

Accordingly, Combs correctly argues that this court may consider his illegal
sentence challenge raised for the first time on appeal. Although a trial court may modify a
defendant's sentence after revoking that defendant's probation under K.S.A. 2015 Supp.
22-3716(c)(1)(E), the trial court here never intimated that it intended to modify Combs'
sentence. Despite Combs' argument to the contrary, this means that the trial court told
Combs he had to serve the original sentence of 32 months' imprisonment followed by
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lifetime postrelease supervision. This is also confirmed by the trial court's journal entry,
which states that it ordered Combs to serve his "original sentence" that included lifetime
postrelease supervision.

Furthermore, State v. Brown, No. 110,488, 2015 WL 326450 (Kan. App. 2015)
(unpublished opinion), rev. denied 302 Kan. 1012 (2015), a case the State relies on in its
brief, is instructive on the outcome here. In Brown, Brown argued that the trial court's
statement that it was revoking his probation and that he would have to serve "the
sentence" was illegal. 2015 WL 326450, at *6. Like Combs, Brown conceded that "the
sentence" the trial court was referring to meant "'the sentence announced at [his] original
sentencing hearing.'" Brown, 2015 WL 326450, at *6. Yet, just like Combs, Brown
asserted that because the trial court failed to explicitly reference what term of postrelease
supervision he would be required to serve, this court needed to remand to the trial court
so the trial court could clearly pronounce his entire sentence. Brown, 2015 WL 326450,
at *6. In rejecting Brown's argument, this court stated:

"The district court chose to require Brown to serve his underlying sentence. It is
undisputed that the district court had already pronounced the terms of that complete
sentence during Brown's original sentencing hearing as required by K.S.A. 2011 Supp.
21-6804(e)(2). No authority was found to support Brown's contention that the district
court had to repeat those terms in requiring Brown to serve that sentence upon revoking
his probation." Brown, 2015 WL 326450, at *7.

Although Brown is merely persuasive authority, it is highly persuasive authority
given the similar facts and arguments. Combs has not addressed the Brown decision in
his brief. Thus, he has failed to explain why this court should not reach the same
conclusion as the Brown court. What is more, Combs has failed to provide any supporting
authority for his argument in his brief. As pointed out by the Brown court, Brown was
unable to cite a Kansas case on this specific issue. For these reasons, Combs' sentence is
not illegal because it was not ambiguous. When the trial court ordered Combs to serve the
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balance of his sentence, the trial court clearly meant that Combs was to serve the balance
of his original sentence, which included his term of lifetime postrelease supervision.
Because Combs' sentence was not illegal, we affirm.

Is Combs' Sentence of Lifetime Postrelease Supervision Illegal?

Next, Combs argues that his sentence of lifetime postrelease supervision was
illegal because the July 2013 amendments to K.S.A. 22-3717 "have changed the
mandatory duration of [his] postrelease from a term of life to 24 months." Combs does
not contest that the imposition of lifetime postrelease supervision was legal when the trial
court originally sentenced him. This is because K.S.A. 2011 Supp. 22-3717(d)(2)(H)
defined Combs' crime of sexual exploitation of a child as a sexually violent crime, and
K.S.A. 2011 Supp. 22-3717(d)(1)(G) states that persons who commit a "sexually violent
crime" must serve lifetime postrelease supervision.

Nevertheless, Combs believes that K.S.A. 2015 Supp. 22-3717(d)(1)(D), which
includes the 2013 amendments, and K.S.A. 2015 Supp. 22-3717(d)(1)(G), which has
remained unaltered since he committed his offenses, directly conflict with one another as
to the term of postrelease supervision sexually violent offenders must serve. Combs
asserts that subparagraph (D) requires that sexually violent crime offenders serve terms of
either 12, 24, or 36 months of postrelease supervision depending on the severity level of
their crime, while subparagraph (G) requires that sexually violent offenders serve a term
of postrelease supervision for the length of their natural life. Combs contends that under
the rule of lenity, courts must resolve this conflict in favor of the defendant. Combs
argues that this would result in sexual exploitation of a child offenders, like him, being
sentenced to 24 months' postrelease supervision under K.S.A. 2015 Supp. 22-
3717(d)(1)(D). Combs further argues that the 2013 amendments apply retroactively.

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The State counters that "the plain language of [K.S.A. 2015 Supp. 22-3717(d)(1)]
makes it clear that a defendant who is subject to subparagraph (G) is excluded from other
subsections." The State further cites State v. Chavez, 292 Kan. 464, 254 P.3d 539 (2011),
and State v. Cameron, 294 Kan. 884, 281 P.3d 143 (2012), for the proposition that
specific penalty provisions like K.S.A. 2015 Supp. 22-3717(d)(1)(G) apply, rather than
more general penalty provisions like K.S.A. 2015 Supp. 22-3717(d)(1)(D). Last, the State
counters that Combs has misread K.S.A. 2015 Supp. 22-3717 in arguing that
subparagraph (D) applies retroactively.

Under K.S.A. 22-3504(1), an illegal sentence includes a sentence that does not
conform to the applicable statutory provisions. Gray, 303 Kan. at 1014. Thus, as with
Combs' first argument, this court's review is unlimited because whether a sentence is
illegal constitutes a question of law. See Gray, 303 Kan. at 1013. To the extent Combs'
challenge requires this court to engage in statutory interpretation, this court's review is
also unlimited because interpretation of a statute also involves a question of law. State v.
Keel, 302 Kan. 560, 571-72, 357 P.3d 251 (2015). Additionally, as with Combs' first
argument, this court may review Combs' illegal sentence challenge even though he is
raising it for the first time on appeal. See K.S.A. 22-3504(1) (which states that courts
may "correct an illegal sentence at any time").

In relevant part, K.S.A. 2015 Supp. 22-3717 states:

"(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:
. . . .
"(B) Except as provided in subparagraphs (D) and (E), persons sentenced for
nondrug severity levels 5 and 6 crimes, drug severity level 3 crimes committed on or after
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July 1, 1993, but prior to July 1, 2012, and drug severity level 4 crimes committed on or
after July 1, 2012, must serve 24 months on postrelease supervision.
. . . .
"(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. 2015 Supp. 21-5509, and amendments thereto, or
unlawful sexual relations, K.S.A. 21-3520, prior to its repeal, or K.S.A. 2015 Supp. 21-
5512, and amendments thereto, shall serve the period of postrelease supervision as
provided in subsections (d)(1)(A), (d)(1)(B) or (d)(1)(C) plus the amount of good time
and program credit earned and retained pursuant to K.S.A. 21-4722, prior to its repeal, or
K.S.A. 2015 Supp. 21-6821, and amendments thereto, on postrelease supervision.
. . . .
"(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."

Based on the language of subparagraphs (D) and (G), Combs is correct that both
outline what term of postrelease supervision persons who have committed a sexually
violent crime will receive. Moreover, assuming arguendo that Combs' severity level 5
sexual exploitation of a child conviction fell under the scope of subsection (D), Combs is
correct in that he would be sentenced to a base term of 24 months' postrelease
supervision. This is because sexually violent offenders who fall under the scope of
subparagraph (D) and have committed a severity level 5 crime are referred to subsection
(d)(1)(B) for their postrelease supervision sentence, and subsection (d)(1)(B) states that
"persons sentenced for nondrug severity levels 5 or 6 crimes . . . must serve 24 months on
postrelease supervision." Then, under subparagraph (D), any good time or program credit
Combs has received would have to be added to Combs' base term of 24 months'
postrelease supervision.

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Nevertheless, since the parties have filed their briefs, this court has thoroughly
examined and rejected Combs' arguments in State v. Herrmann, 53 Kan. App. 2d 147,
384 P.3d 1019 (2016). In Herrmann, Herrmann made two arguments. First, Herrmann
"argue[d] the 2013 amendments to K.S.A. 22-3717(d)(1)(D) retroactively eliminate[d]
the mandatory nature of lifetime postrelease supervision in K.S.A. 22-3717(d)(1)(G) for a
person convicted of a sexually violent crime by giving the court an option to impose a
term of months based on the severity level of the sexually violent crime of conviction."
53 Kan. App. 2d at 148. In the alternative, Herrmann argued that the amended
subparagraph (D) directly conflicted with subparagraph (G) because (D) required persons
convicted of sexually violent crimes to serve a term of months on postrelease supervision
while subparagraph (G) required persons convicted of sexually violent crimes to serve a
term of life on postrelease supervision. Herrmann, 53 Kan. App. 2d at 148. Because
Herrmann believed that the subparagraphs conflicted and were ambiguous, Herrmann
asserted that courts must sentence persons convicted of sexually violent crimes under
subparagraph (D)'s less serve penalty based on the rule of lenity. Herrmann, 53 Kan.
App. 2d at 148.

This court rejected Herrmann's first argument for the following reason:

"We find the plain language of the statute clearly decides the issue presented. Subsection
(d)(1) explains that persons sentenced for crimes committed after July 1, 1993, will not
be eligible for parole; instead, they will be subject to mandatory postrelease supervision
as provided in the subparagraphs that follow. Notably, however, this subsection (d)(1)
expressly states that the mandatory postrelease supervision provided in the subparagraphs
that follow do not apply to 'persons subject to subparagraph (G).' Subparagraph (G)
provides that '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.' Herrmann was
convicted of attempted aggravated indecent liberties with a child, which is a sexually
violent crime under subsection (d)(5)(C) and (d)(5)(M). His conviction occurred after
July 1, 2006. Because Herrmann is subject to subparagraph (G), no other subparagraph
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following subsection (d)(1) applies to him—including subparagraph (D)." Herrmann, 53
Kan. App. 2d at 152.

Then, this court rejected Herrmann's second argument for the following reason:

"The provisions in each subparagraph apply to a distinct class of persons. K.S.A. 22-3717
as a whole applies to all persons convicted of a crime after July 1, 1993. See L. 1992, ch.
239, sec. 270 ('Persons sentenced for crimes committed on or after July 1, 1993, 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.'). Subparagraph (G)
was added to the statute in 2006 to create an explicit exception applicable only for
'persons convicted of a sexually violent crime committed on or after July 1, 2006.' See L.
2006, ch. 212, sec. 19 (also adding language to [d][1] excepting 'persons subject to
subparagraph [G]'). Reading subparagraph (D) in pari materia, it falls under subsection
(d)(1) and so applies to all persons but those expressly excluded: persons sentenced for
off-grid crimes committed on or after July 1, 1993, and persons committing a sexually
violent crime on or after July 1, 2006, as stated in subparagraph (G). Therefore,
subparagraph (D) only applies to persons convicted of a sexually violent crime after July
1, 1993, but before July 1, 2006. Thus, there are no persons convicted of a sexually
violent crime to whom both subparagraph (D) and subparagraph (G) apply. Construing
the statute as a whole and giving effect to all of the statutes, as this court must, there is no
conflict or ambiguity in amended subsection (d)(1)." Herrmann, 53 Kan. App. 2d at 153.

The Herrmann court further noted that the legislative history of the 2013
amendments established that the legislature never intended for K.S.A. 22-3717(d)(1)(D)
and (G) to conflict. 53 Kan. App. 2d at 153-54. Instead, the legislative history revealed
that subparagraph (D) was amended to exclude some offenders, including violent sex
offenders who committed their offenses after July 1, 1993, but before July 1, 2006, from
receiving the benefit of not having good time or program credit earned added to the term
they must serve on postrelease supervision as other offenders would have been entitled to
under K.S.A. 2015 Supp. 22-3717(d)(1)(A)-(C). Herrmann, 53 Kan. App. 2d at 154.
Last, the Herrmann court noted that "[b]ecause subparagraph (D) [did] not apply to
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[Herrmann], there [was] no need to determine whether the amended provision would
apply retroactively to his case." 53 Kan. App. 2d at 154.

Turning our focus back to this case, we note that Combs argues that the
postrelease supervision provisions in K.S.A. 2015 Supp. 22-3717(d)(1)(D) and (G)
directly conflict, that courts must apply the less severe postrelease supervision term under
subparagraph (D) based on the rule of lenity, and that subparagraph (D) applies
retroactively. Accordingly, Combs makes the same arguments that this court rejected in
Herrmann because the arguments ignored that subsection (d)(1) provides that the
mandatory postrelease supervision terms outlined in subparagraphs (A)-(D) do not apply
to "persons subject to subparagraph (G)" and that subparagraph (D) applies only to
persons convicted of sexually violent crimes committed after July 1, 1993, but before
July 1, 2006. 53 Kan. App. 2d at 152.

Although the parties in this case have not addressed Herrmann in their briefs or
filed letters of supplemental authority under Supreme Court Rule 6.09(b)(1)(C) (2015
Kan. Ct. R. Annot. 53), the reasoning in Herrmann is still applicable to Combs' identical
arguments. In short, because Combs is a person who committed a sexually violent crime
after July 1, 2006, the only subparagraph of K.S.A. 2015 Supp. 22-3717(d)(1) that could
possibly apply to him is subparagraph (G). In consequence, because subparagraph (D)
cannot apply to Combs, this court need not address Combs' retroactivity argument. As a
result, this court adopts the reasoning in Herrmann and affirms the trial court's imposition
of lifetime postrelease supervision. See also State v. Fishback, No. 114,797, 2016 WL
7031848, at *1 (Kan. App. 2016) (unpublished opinion); State v. Rothstein, No. 114,749,
2016 WL 7031921, at *2 (Kan. App. 2016) (unpublished opinion); State v. Hill, No.
115,041, 2016 WL 6919609, at *1 (Kan. App. 2016) (unpublished opinion); State v.
Ramsey, No. 114,795, 2016 WL 6925994, at *1 (Kan. App. 2016) (unpublished opinion)
(where this court adopted the reasoning in Herrmann to reject identical arguments).

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Affirmed.