State v. Darnell

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NOT DESIGNATED FOR PUBLICATION

No. 116,329

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

MICHAEL PAUL DARNELL,
Appellant.


MEMORANDUM OPINION

Appeal from Saline District Court; RENE S. YOUNG, judge. Opinion filed June 30, 2017.
Affirmed.

Caroline M. Zuschek, of Kansas Appellate Defender Office, for appellant.

Ellen H. Mitchell, county attorney, and Derek Schmidt, attorney general, for appellee.

Before MCANANY, P.J., GREEN and BUSER, JJ.

Per Curiam: Michael Darnell was convicted by a jury of aggravated burglary,
battery, aggravated kidnapping, and aggravated sexual battery. In connection with his
conviction for aggravated sexual battery, Darnell was sentenced to 32 months'
imprisonment with 24 months of postrelease supervision. After sentencing, the Kansas
Department of Corrections notified the sentencing court that Darnell should have been
sentenced to lifetime postrelease supervision under K.S.A. 2015 Supp. 22-3717(d)(1)(G).
The sentencing court resentenced Darnell to lifetime postrelease supervision relating to
his conviction of aggravated sexual battery. Darnell appeals from the sentencing court's
order. Specifically, Darnell argues that his original sentence was legal; thus, the
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sentencing court lacked jurisdiction to alter or amend it. Darnell's argument has been
considered and rejected by a number of panels of this court, most notably the holding in
State v. Herrmann, 53 Kan. App. 2d 147, 384 P.3d 1019 (2016), petition for rev. filed
May 17, 2017. Accordingly, we affirm.

On May 19, 2014, Michael Darnell was charged with one count of aggravated
burglary, one count of battery, one count of aggravated kidnapping, one count of
attempted aggravated robbery, and one count of aggravated sexual battery.

On May 22, 2015, Darnell was convicted by a jury of aggravated burglary, battery,
aggravated kidnapping, and aggravated sexual battery. He was acquitted of attempted
aggravated robbery. On August 31, 2015, Darnell was sentenced to a total controlling
prison term of 285 months. For his conviction of aggravated sexual battery, Darnell was
sentenced to 32 months' imprisonment with 24 months of postrelease supervision.

On January 15, 2016, the sentencing court held a hearing after the Kansas
Department of Corrections sent a letter to the court in which it claimed that Darnell was
incorrectly sentenced insofar as he received 24 months of postrelease supervision in
connection with his conviction for aggravated sexual battery. The letter is not in the
record on appeal. The Department of Corrections asserted in its letter that Darnell should
have been sentenced to lifetime postrelease supervision under K.S.A. 2015 Supp. 22-
3717(d)(1)(G). No motion to correct illegal sentence was ever filed. At the hearing, the
State argued that Darnell's sentence was illegal and should be corrected. Darnell argued
that his sentence was legal, and thus the court had no jurisdiction to modify his sentence.
The court found that Darnell's original sentence was not in conformity with the
sentencing statute, K.S.A. 2015 Supp. 22-3717(d)(1)(G), and was therefore illegal. As a
result, the court resentenced Darnell to lifetime postrelease supervision in relation to his
conviction for aggravated sexual battery.

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Did the Trial Court Err in Resentencing Darnell to Lifetime Postrelease Supervision for
His Conviction of a Sexually Violent Crime?

Darnell argues that his original sentence was a legal sentence under K.S.A. 2015
Supp. 22-3717(d)(1)(D). Moreover, because a trial court lacks jurisdiction to modify a
legal sentence after it is pronounced from the bench, Darnell asserts that his new sentence
under K.S.A. 2015 Supp. 22-3717(d)(1)(G) is an illegal sentence. See State v. Hall, 298
Kan. 978, 983, 319 P.3d 506 (2014). Consequently, Darnell asks this court to vacate the
sentencing court's resentencing order.

The State, on the other hand, argues that Darnell's original sentence was an illegal
sentence because it failed to comply with K.S.A. 2015 Supp. 22-3717(d)(1)(G).
Moreover, because a trial court has jurisdiction to modify an illegal sentence at any time,
the State asserts that the sentencing court did not err in resentencing Darnell. See K.S.A.
22-3504(1).

Thus, Darnell's appeal hinges on whether his original sentence was illegal. If the
answer to that question is yes, then the sentencing court had jurisdiction to modify his
sentence and bring it in compliance with the applicable statute. If the answer to that
question is no, then Darnell is correct that the sentencing court lacked jurisdiction to
modify his sentence and we must vacate its order resentencing him.

Whether a sentence is illegal under K.S.A. 22-3504 is a question of law over
which this court exercises unlimited review. State v. Lee, 304 Kan. 416, 417, 372 P.3d
415 (2016). Our Supreme Court defines an "illegal sentence" under K.S.A. 22-3504(1) as
follows:

"'(1) a sentence imposed by a court without jurisdiction; (2) a sentence that does not
conform to the applicable statutory provision, either in the character or the term of the
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authorized punishment; or (3) a sentence that is ambiguous with respect to the time and
manner in which it is to be served.' [Citations omitted.]" State v. Gray, 303 Kan. 1011,
1014, 368 P.3d 1113 (2016).

Our analysis will also involve the interpretation of sentencing statutes. The interpretation
of a statute is a question of law over which this court exercises unlimited review. State v.
Collins, 303 Kan. 472, 473-74, 362 P.3d 1098 (2015).

This appeal specifically centers on the statutory interpretation of K.S.A. 2015
Supp. 22-3717. The relevant provisions of K.S.A. 2015 Supp. 22-3717 state:

"(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
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.
. . . .
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(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."

Here, the State specifically argues, and the sentencing court agreed, that Darnell's
original sentence was an illegal sentence because it failed to conform to the applicable
statutory provision—K.S.A. 2015 Supp. 22-3717(d)(1)(G)—in that it failed to order
lifetime postrelease supervision in connection with his conviction for aggravated sexual
battery.

Darnell argues that his sentence was legal under K.S.A. 2015 Supp. 22-
3717(d)(1)(D). Darnell specifically argues that the sentencing court had the option of
either sentencing him under K.S.A. 2015 Supp. 22-3717(d)(1)(G) or sentencing him
under K.S.A. 2015 Supp. 22-3717(d)(1)(D). He asserts that because K.S.A. 2015 Supp.
22-3717(d)(1)(D) covers sexually violent crimes and states that the postrelease
punishment under K.S.A. 2015 Supp. 22-3717(d)(1)(B) applies, he was properly
sentenced to 24 months of postrelease supervision under K.S.A. 2015 Supp. 22-
3717(d)(1)(B) for committing a severity level 5 crime.

This very issue has been considered by a number of panels from this court, most
notably in Herrmann, 53 Kan. App. 2d at 147. See also State v. Brook, No. 115,657, 2017
WL 1535138 (Kan. App. 2017) (unpublished opinion), petition for rev. filed May 17,
2017; State v. Combs, No. 115,638, 2017 WL 1296312 (Kan. App. 2017) (unpublished
opinion), petition for rev. filed May 8, 2017; State v. Kness, No. 115,480, 2017 WL
1295994 (Kan. App. 2017) (unpublished opinion), petition for rev. filed May 8, 2017;
State v. Younkman, No. 115,606, 2017 WL 1035473 (Kan. App. 2017) (unpublished
opinion), petition for rev. filed March 30, 2017; State v. Rothstein, No. 114,749, 2016
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WL 7031921 (Kan. App. 2016) (unpublished opinion), petition for rev. filed December
19, 2016.

In Herrmann, this court held that "K.S.A. 2015 Supp. 22-3717(d)(1)(D) only
applies to persons convicted of a sexually violent crime after July 1, 1993, but before July
1, 2006." 53 Kan. App. 2d 147, Syl. ¶ 5. The court also held that "[t]here are no persons
convicted of a sexually violent crime to whom both subparagraph K.S.A. 2015 Supp. 22-
3717(d)(1)(D) and subparagraph K.S.A. 2015 Supp. 22-3717(d)(1)(G) apply." 53 Kan.
App. 2d 147, Syl. ¶ 6. Thus, the Herrmann court essentially found that any persons
convicted of a sexually violent crime that was committed after July 1, 2006, must be
sentenced to a period of lifetime postrelease supervision under K.S.A. 2015 Supp. 22-
3717(d)(1)(G). The Herrmann court gave the following reasons for its holdings:

"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 following subsection (d)(1) applies to him—including
subparagraph (D)." Herrmann, 53 Kan. App. 2d at 152.

"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
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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.

But Darnell contends that our reliance on Herrmann is misplaced, arguing that its
analysis is flawed insomuch as it "completely ignores the legislative intent for the entire
sentencing scheme as it does not account for the mirrored amendments contained in
K.S.A. 21-6821 pertaining to good time credits." K.S.A. 2015 Supp. 21-6821(c) states
that

"[t]he postrelease supervision term of a person sentenced to a term of imprisonment that
includes a sentence for a sexually violent crime as defined in K.S.A. 22-3717 . . . shall
have any time which is earned and subtracted from the prison part of such sentence and
any other consecutive or concurrent sentence pursuant to good time calculation added to
such inmate's postrelease supervision term."

A similar provision is also found in K.S.A. 2015 Supp. 21-6821(e). Thus, Darnell
specifically argues that because it is impossible to add time to a lifetime term of
postrelease supervision, then "under the interpretation of the Herrmann panel, the
legislative changes made to K.S.A. 21-6821(c) [and] (e) become void and ineffective."

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Darnell's argument misses the mark. Those provisions from K.S.A. 2015 Supp.
21-6821 are perfectly in sync with the Herrmann panel's interpretation of K.S.A. 2015
Supp. 22-3717. Based on the holdings from Herrmann, it is clear that good time credit
would be added to sentences ordered under K.S.A. 2015 Supp. 22-3717(d)(1)(D) but not
to sentences ordered under K.S.A. 2015 Supp. 22-3717(d)(1)(G). Accordingly, we cannot
agree that the interpretation from Herrmann renders the provisions from K.S.A. 2015
Supp. 21-6821 void or ineffective. Moreover, despite Darnell's arguments, we reject the
notion that "the Herrmann analysis is fundamentally flawed." To the contrary, we find
that the Herrmann analysis is well-reasoned and thorough.

Here, Darnell does not dispute that when he was convicted of aggravated sexual
battery he was convicted of a sexually violent crime. Darnell also does not dispute that he
committed the aggravated sexual battery after July 1, 2006. Because Darnell committed a
sexually violent crime after July 1, 2006, we find that K.S.A. 2015 Supp. 22-
3717(d)(1)(G) mandates that he be sentenced to lifetime postrelease supervision. Despite
Darnell's arguments, K.S.A. 2015 Supp. 22-3717(d)(1)(D) does not apply to his
conviction. Thus, we find that his original sentence was illegal because it failed to
comply with K.S.A. 2015 Supp. 22-3717(d)(1)(G). Because an illegal sentence may be
corrected at any time, the sentencing court had jurisdiction to modify Darnell's sentence.
Accordingly, the sentencing court did not err in resentencing Darnell to a period of
lifetime postrelease supervision under K.S.A. 2015 Supp. 22-3717(d)(1)(G).

Affirmed.