State v. Dawson

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NOT DESIGNATED FOR PUBLICATION

No. 119,446


IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

TYLER LEE DAWSON,
Appellant.


MEMORANDUM OPINION

Appeal from Jackson District Court; NORBERT C. MAREK JR., judge. Opinion filed May 3, 2019.
Sentence vacated and remanded with directions.

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

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

Before LEBEN, P.J., GREEN and POWELL, JJ.

PER CURIAM: Tyler Lee Dawson argues that the district court's decision to
sentence him to prison instead of mandatory drug treatment for his possession of
methamphetamine conviction was illegal. Because we agree, we vacate his sentence and
remand for resentencing.

Dawson pled no contest to one count of possession of methamphetamine, a
severity level 5 nonperson felony in violation of K.S.A. 2018 Supp. 21-5706(a).
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Before sentencing, an Intensive Supervision Officer (ISO) with the Department of
Community Corrections completed an eligibility worksheet. The ISO determined that
Dawson met mandatory drug treatment requirements. Dawson's presentencing
investigation (PSI) report stated that the district court should sentence Dawson, who had
a criminal history score of G, to mandatory drug treatment. Moreover, the PSI report said
(1) that Dawson's sentence was presumed probation and (2) that the special rule requiring
imprisonment because Dawson committed his crime while on felony bond applied. See
K.S.A. 2018 Supp. 21-6604(f)(1).

During sentencing, the district court declined Dawson's request to sentence him to
probation where he could complete mandatory drug treatment. Instead, the district court
sentenced Dawson to 15 months' imprisonment followed by 12 months' postrelease
supervision.

Dawson timely appealed his sentence to this court.

After both parties filed their briefs, the State filed notice under Supreme Court
Rule 2.042 (2019 Kan. S. Ct. R. 18) that Dawson completed his prison sentence and is
currently serving postrelease supervision. Dawson will complete his postrelease
supervision on July 30, 2019, at the earliest.

On appeal, Dawson argues that his prison sentence was illegal because he
qualified for mandatory drug treatment under K.S.A. 2018 Supp. 21-6824(a)(1). Dawson
relies on our Supreme Court case State v. Andelt, 289 Kan. 763, Syl. ¶ 7, 217 P.3d 976
(2009), to support his proposition. The State agrees that under Andelt, "it appears that the
sentencing court ruled incorrect." Even so, the State argues that Dawson's argument is
moot because he is now out of prison and on postrelease supervision.

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Whether a sentence is illegal under K.S.A. 2018 Supp. 22-3504 constitutes a
question of law over which we have unlimited review. State v. Lee, 304 Kan. 416, 417,
372 P.3d 415 (2016). Furthermore, we exercise unlimited review when considering
whether a question is moot. State v. Hilton, 295 Kan. 845, 849, 286 P.3d 871 (2012).

To begin with, we reject the State's contention that Dawson's argument is moot.
The State relies on our Supreme Court case of State v. Montgomery, 295 Kan. 837, 286
P.3d 866 (2012), to support its assertion that Dawson's argument is moot. But our
Supreme Court's holding in Montgomery supports that Dawson's argument is not moot
because Dawson remains on postrelease supervision.

In Montgomery, our Supreme Court held the following:

"The issue of the propriety of the sanction imposed by the district court for an
admitted violation of probation becomes moot upon the completion of the sanction and
the termination of State supervision, subject to the recognized exceptions to the mootness
doctrine. The sanction imposed for an admitted probation violation is not sufficiently
relevant to an assessment of amenability to probation in a future criminal proceeding so
as to negate the application of the mootness doctrine." (Emphasis added.) 295 Kan. 837,
Syl. ¶ 5.

Moreover, this court considered an identical argument about mootness in State v.
Johnson, No. 115,919, 2017 WL 1369957, at *2 (Kan. App. 2017) (unpublished
opinion):

"But here, Johnson claims that this issue isn't moot because he remains on
postrelease supervision, so he hasn't completely finished serving his sentence. He also
notes that if he had been properly sentenced to drug treatment and successfully completed
the drug-treatment program while on probation, he wouldn't have been subject to any
postrelease term at all. See K.S.A. 2016 Supp. 22-3717(d)(1) (postrelease supervision
follows the completion of the prison portion of sentence). Furthermore, he points out that
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there is a concrete difference between the sentence he's currently serving (postrelease
supervision) and the sentence he should have been given (drug treatment paid for, at least
in part, by the State). On these facts, we agree that his rights would be impacted if we
vacated his sentence because he would be resentenced to state-sponsored drug treatment.
The drug treatment is a real distinction and something that Johnson didn't receive in
prison and isn't receiving on postrelease supervision."

Next, K.S.A. 2018 Supp. 21-6824(a)(1)-(2) mandates that certain offenders with
qualifying convictions and criminal histories be sentenced to probation, when they are
placed "in certified drug abuse treatment programs." There is no dispute that Dawson
qualifies for mandatory treatment under K.S.A. 2018 Supp. 21-6824(a)(1).

In Andelt, our Supreme Court held that based on the plain language of the
predecessor to K.S.A. 2018 Supp. 21-6824(a)(1)-(2), the district court "does not have
discretion to sentence an offender otherwise qualifying for a drug abuse treatment
program to imprisonment," even when the offender committed his or her current crime on
felony parole. 289 Kan. at 774. This means a district court cannot invoke the special rule
under K.S.A. 2018 Supp. 21-6604(f)(1) to send an offender to prison when that offender
qualifies for mandatory drug treatment.

As a result, we hold that Dawson's prison sentence was illegal. We therefore
vacate Dawson's sentence and remand to the district court for resentencing.

Sentence vacated and remanded with directions.