State v. Haresnape

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NOT DESIGNATED FOR PUBLICATION

No. 117,564

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

DAVID A. HARESNAPE,
Appellant.


MEMORANDUM OPINION

Appeal from Douglas District Court; PEGGY C. KITTEL, judge. Opinion filed May 18, 2018.
Affirmed.

Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant.

Kate Duncan Butler, assistant district attorney, Charles E. Branson, district attorney, and Derek
Schmidt, attorney general, for appellee.

Before BRUNS, P.J., HILL, J., and WALKER, S.J.

PER CURIAM: David Haresnape was convicted of two counts of commercial
sexual exploitation of a child. The district court imposed a controlling sentence of 44
months' imprisonment and lifetime postrelease supervision. Haresnape appeals his
sentence, arguing that he should only have been sentenced to 24 months' postrelease
supervision. Finding no error, we affirm.



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FACTS

Haresnape pled guilty to two counts of commercial sexual exploitation of a child,
level 5 person felonies, which were alleged to have occurred in August or September
2014. At the plea hearing, the district court advised Haresnape that the postrelease
supervision period for a level 5 person felony was 36 months. The presentence
investigation (PSI) report, on the other hand, indicated that a 24-month term of
postrelease supervision was required.

At sentencing, the State objected to the PSI report, arguing that K.S.A. 2016 Supp.
22-3717(d)(1) required the district court to impose lifetime postrelease supervision
because Haresnape was convicted of a sexually violent crime. Haresnape argued against
imposition of lifetime postrelease supervision, noting that he did not use physical
violence in committing his crimes of conviction. The district court found that commercial
sexual exploitation of child was a sexually violent crime as defined by statute, and it was
required to impose lifetime postrelease supervision. The court imposed a controlling
sentence of 44 months' imprisonment and lifetime postrelease supervision. Haresnape has
timely appealed.

ANALYSIS

As his single issue on appeal, Haresnape argues that his sentence is illegal, and the
district court should have sentenced him to 24 months' postrelease supervision under
K.S.A. 2016 Supp. 22-3717(d)(1)(B) and (d)(1)(D) rather than lifetime postrelease
supervision under K.S.A. 2016 Supp. 22-3717(d)(1)(G). In response, the State contends
that Haresnape did not raise this specific argument below, so he did not preserve it for
appeal. Generally, this court will not entertain an argument raised for the first time on
appeal. State v. Kelly, 298 Kan. 965, 971, 318 P.3d 987 (2014). The legality of a sentence
is an exception to this rule because a court may correct an illegal sentence at any time.
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K.S.A. 2017 Supp. 22-3504(1); State v. Fisher, 304 Kan. 242, 264, 373 P.3d 781 (2016).
Thus, we will address Haresnape's argument.

Whether a sentence is illegal within the meaning of K.S.A. 2017 Supp. 22-3504 is
a question of law over which appellate courts have unlimited review. State v. Lee, 304
Kan. 416, 417, 372 P.3d 415 (2016). An illegal sentence includes a sentence that does not
conform to the statutory provision, either in the character or the term of authorized
punishment. State v. Gray, 303 Kan. 1011, 1014, 368 P.3d 1113 (2016).

Commercial sexual exploitation of a child is a sexually violent crime as defined by
K.S.A. 2016 Supp. 22-3717(d)(5). Under K.S.A. 2016 Supp. 22-3717(d)(1)(G), a person
convicted of a sexually violent crime committed after July 1, 2006, must be sentenced to
lifetime postrelease supervision. Both of Haresnape's crimes were committed in 2014.
The district court found that K.S.A. 2016 Supp. 22-3717(d)(1)(G) applied and sentenced
Haresnape to lifetime postrelease supervision.

Confusion exists because a similar statute, K.S.A. 2016 Supp. 22-3717(d)(1)(D),
provides that a person convicted of a sexually violent crime shall serve a fixed 12-, 24-,
or 36-month postrelease supervision term based on the severity level of the crime. This
provision applies to persons sentenced for crimes "committed on or after July 1, 1993."
K.S.A. 2016 Supp. 22-3717(d)(1).

Haresnape argues that K.S.A. 2016 Supp. 22-3717(d)(1)(D) and (d)(1)(G) both
apply to persons convicted of sexually violent crimes, so the statute is ambiguous. He
contends the rule of lenity required the district court to impose the lesser of the two
possible sentences. Since Haresnape was convicted of a nondrug level 5 crime, he
believes he should have received the lesser term of 24 months' postrelease supervision.
K.S.A. 2016 Supp. 22-3717(d)(1)(B) and (d)(1)(D).
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Resolution of Haresnape's claim requires this court to interpret K.S.A. 2016 Supp.
22-3717(d)(1). On matters of statutory interpretation, we have unlimited review. State v.
Collins, 303 Kan. 472, 473-74, 362 P.3d 1098 (2015).The most fundamental rule of
statutory construction is that the intent of the Legislature governs if that intent can be
ascertained. State v. Jordan, 303 Kan. 1017, 1019, 370 P.3d 417 (2016). We must first
attempt to ascertain legislative intent through the statutory language enacted, giving
common words their ordinary meanings. State v. Barlow, 303 Kan. 804, 813, 368 P.3d
331 (2016). When construing statutes to determine legislative intent, we must consider
various provisions of an act in pari materia with a view of reconciling and bringing the
provisions into workable harmony if possible. State v. Keel, 302 Kan. 560, Syl. ¶ 7, 357
P.3d 251 (2015). The rule of lenity arises only when there is any reasonable doubt of the
statute's meaning. State v. Williams, 303 Kan. 750, 760, 368 P.3d 1065 (2016).

Haresnape's argument mirrors that of the defendant in State v. Herrmann, 53 Kan.
App. 2d 147, 384 P.3d 1019 (2016), rev. denied 306 Kan. 1324 (2017). There, Herrmann
argued the 2013 legislative amendments to K.S.A. 22-3717(d)(1)(D) rendered all of
subsection (d)(1) ambiguous, and as a result, district courts had discretion in imposing the
term of postrelease supervision. Our court rejected Herrmann's argument, finding:

"[T]he 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).' . . .
". . . 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
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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)." 53 Kan. App. 2d at 152-53.

Our reliance on Herrmann is buttressed by the fact that our Supreme Court
declined to review the decision. Additionally we note that numerous other panels of this
court have agreed with Herrmann's analysis. See, e.g., State v. Kirk, No. 116,609, 2017
WL 5016019, at *2-4 (Kan. App. 2017) (unpublished opinion), petition for rev. filed
December 4, 2017; State v. Stagner, No. 116,869, 2017 WL 4848359, at *2 (Kan. App.
2017) (unpublished opinion), rev. denied 307 Kan. ___ (April 26, 2018); State v. Cook,
No. 116,592, 2017 WL 4558496, at *2 (Kan. App. 2017) (unpublished opinion), rev.
denied 307 Kan. ___ (April 26, 2018); State v. Munoz, No. 115,590, 2017 WL 4081374,
at *12-13 (Kan. App. 2017) (unpublished opinion), rev. denied 307 Kan. ___ (April 27,
2018); State v. Brewer, No. 116,331, 2017 WL 3947342, at *4 (Kan. App. 2017)
(unpublished opinion), rev. denied 307 Kan. ___ (April 26, 2018).

Additionally, Haresnape argues that the holding in Herrmann conflicts with State
v. Cameron, 294 Kan. 884, 281 P.3d 143 (2012). In Cameron, a case decided before the
2013 legislative amendments, Cameron argued that under the rule of lenity the district
court should have sentenced him to 24 months' postrelease supervision under K.S.A. 22-
3717(d)(1)(B) rather than lifetime postrelease supervision under subsection (d)(1)(G).
The Kansas Supreme Court ultimately held that only subsection (d)(1)(G) applied to
Cameron. In reaching this conclusion, the court noted the rule of lenity only applies if
there is reasonable doubt as to a statute's meaning. 294 Kan. at 899. Looking at K.S.A.
22-3717(d)(1) in pari materia, the court concluded there was no reasonable doubt that the
Legislature intended the more specific provision of subsection (d)(1)(G) to apply to those
convicted of sexually violent crimes rather than the more general provision of subsection
(d)(1)(B). 294 Kan. at 900.

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According to Haresnape, Cameron implicitly found that K.S.A. 22-3717(d)(1) was
ambiguous because it used a "rule of lenity analysis." He reasons that Herrmann
improperly used a plain language analysis to resolve this issue because the statute is
ambiguous. But Haresnape's contention is incorrect. Contrary to his arguments, the
Cameron court did not make an implicit finding of ambiguity nor did it use a rule of
lenity analysis. Instead, the Supreme Court declined to use the rule of lenity because there
was no reasonable doubt regarding which subsection applied. 294 Kan. at 899-900.
Additionally, while Cameron's method of analysis may be instructive, it "cannot speak to
the meaning and purpose of the 2013 amendment to K.S.A. 22-3717(d)(1)(D) given that
it had not been enacted when Cameron was decided in 2012." State v. Wol, No. 115,633,
2017 WL 3000839, at *9 (Kan. App. 2017) (unpublished opinion), rev. denied 307 Kan.
___ (April 27, 2018); see also State v. Wilson, No. 116,381, 2017 WL 2212171, at *3
(Kan. App. 2017) (unpublished opinion) (rejecting same argument), rev. denied 306 Kan.
1331 (2017).

Next, Haresnape contends that Herrmann's interpretation of K.S.A. 2015 Supp.
22-3717(d)(1) does not account for other amendments throughout the sentencing scheme.
He specifically points to K.S.A. 2016 Supp. 21-6821. Before 2013, K.S.A. 21-6821
provided that any good time and program credit any offender earned would be added to
the offender's postrelease supervision term. K.S.A. 2012 Supp. 21-6821(c) and (e)(2). In
2013, the Legislature amended K.S.A. 21-6821(c) and (e)(2) so that only offenders
convicted of sexually violent crimes and certain other crimes involving sex must serve
any good time and program credits earned while incarcerated as part of their postrelease
supervision. L. 2013, ch. 76, sec. 4. Haresnape claims that Herrmann renders these
amendments void because it is impossible to add to a life term.

While the Herrmann court did not expressly address the amendments to K.S.A.
21-6821, it did discuss changes in K.S.A. 2015 Supp. 22-3717(d)(1)(A)-(D), which
reflected the changes to K.S.A. 21-6821(c) and (e). Before 2013, K.S.A. 22-
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3717(d)(1)(A)-(C) provided certain terms of postrelease supervision plus any good time
or program credit earned. The 2013 amendments removed the language regarding good
time and program credits from subsections (A)-(C). According to the Herrmann court,
the Legislature amended subsection (d)(1)(D) "to provide an exception for persons
convicted of sexually violent crimes so that earned good-time and program credits
continued to be added to their postrelease supervision period. L. 2013, ch. 133, sec. 13."
53 Kan. App. 2d at 154. Subsection (d)(1)(D) thus clarified that the rule stated in K.S.A.
2016 Supp. 21-6821(c) and (e) regarding good time and program credits applied to those
convicted of sexually violent offenses committed on or after July 1, 1993, but before
July 1, 2006. See 53 Kan. App. 2d at 154. Thus, the Herrmann court's reading of the
statute does not render K.S.A. 2016 Supp. 21-6821(c) and (e) void. See State v. Knopp,
No. 116,365, 2017 WL 3822799, at *5 (Kan. App. 2017) (unpublished opinion), rev.
denied 307 Kan. ___ (April 26, 2018).

We take further note that the Legislature has expressed approval of the Herrmann
decision by amending the language of K.S.A. 2016 Supp. 22-3717(d)(1)(D) to reflect
Herrmann's interpretation of the statute. This subsection now reads: "Persons sentenced
to a term of imprisonment that includes a sentence for a sexually violent crime . . .
committed on or after July 1, 1993, but prior to July 1, 2006, . . . shall serve the period of
postrelease supervision as provided in subsections (d)(1)(A), (d)(1)(B) or (d)(1)(C) . . . ."
(Emphasis added.) K.S.A. 2017 Supp. 22-3717(d)(1)(D). The amendment, which became
effective May 18, 2017, clarifies that subsection (d)(1)(D) only applies to crimes
committed on or after July 1, 1993, but before July 1, 2006.

We find the reasoning of Herrmann to be persuasive. Haresnape was convicted of
two sexually violent offenses committed after July 1, 2006, and K.S.A. 2016 Supp. 22-
3717(d)(1)(G) required the district court to sentence him to lifetime postrelease
supervision. Thus, his sentence is legal.

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Affirmed.