State v. Matthews

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NOT DESIGNATED FOR PUBLICATION

No. 116,429

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

NATHAN ALLEN MATTHEWS,
Appellant.


MEMORANDUM OPINION

Appeal from Montgomery District Court; F. WILLIAM CULLINS, judge. Opinion filed September
8, 2017. Affirmed.

Heather Cessna, of Kansas Appellate Defender Office, for appellant.

Amanda G. Voth, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.

Before ARNOLD-BURGER, C.J., GARDNER, J., and STUTZMAN, S.J.

PER CURIAM: Nathan A. Matthews appeals from his sentence, claiming error by
the district court in construing K.S.A. 2015 Supp. 22-3717 when it ordered lifetime
postrelease as part of his sentence. We conclude the district court correctly applied that
section to this case and, finding no error, we affirm.

FACTS AND PROCEDURAL BACKGROUND

Nathan Matthews pled no contest to two counts of aggravated sexual battery,
severity level 5 person felonies, and one count of aggravated battery, a severity level 7
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person felony. The district court imposed an aggravated sentence of 34 months for each
of the aggravated sexual battery counts, to be served consecutively, and a standard 12-
month sentence for the aggravated battery, to be served concurrently with the other two.
The court further ordered that Matthews be subject to lifetime postrelease supervision.
Matthews timely appeals from that sentence.

ANALYSIS

At issue is the imposition of lifetime postrelease supervision as part of the district
court's sentence. Matthews argues it was error to subject him to the term of lifetime
postrelease mandated by K.S.A. 2015 Supp. 22-3717(d)(1)(G), because the postrelease
requirement applicable to him was reached through K.S.A. 2015 Supp. 22-3717(d)(1)(D),
which pointed to a 24-month period in K.S.A. 2015 Supp. 22-3717(d)(1)(B). He asserts
that ordering lifetime postrelease rendered his sentence illegal but subject to correction at
any time under K.S.A. 22-3504. Matthews recognizes that another panel of this court has
considered those subsections and did not reach the conclusion he desires. See State v.
Herrmann, 53 Kan. App. 2d 147, 384 P.3d 1019 (2016), rev. denied July 25, 2017. In
Herrmann, the court held that K.S.A. 2015 Supp. 22-3717(d)(1)(D) does not apply when
K.S.A. 2015 Supp. 22-3717(d)(1)(G) is applicable. 53 Kan. App. 2d at 153-54. Matthews
contends we should not be guided by Herrmann, which he claims was wrongly decided.
As might be expected, the State endorses the reading that the Herrmann panel gave the
statute.

Whether a sentence is illegal within the meaning of K.S.A. 22-3504 is a question
of law over which we have unlimited review. State v. Lee, 304 Kan. 416, 417, 372 P.3d
415 (2016). The Kansas Supreme Court has defined an "illegal sentence" under K.S.A.
22-3504 as:

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"(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
authorized punishment; or (3) a sentence that is ambiguous with respect to the time and
manner in which it is to be served." State v. Trotter, 296 Kan. 898, 902, 295 P.3d 1039
(2013).

Matthews' complaint falls into the second category of illegal sentences—he argues that
ordering him to be subject to lifetime postrelease supervision does not conform to the
applicable statutory provision. Interpretation of sentencing statutes is also a matter over
which we have de novo review. State v. Collins, 303 Kan. 472, 473-74, 362 P.3d 1098
(2015).

Matthews' argument involves interpretation of K.S.A. 2015 Supp. 22-3717(d)(1),
which requires periods of postrelease supervision, rather than parole, for certain crimes.
In relevant part, at the time of Matthews' sentencing that subsection directed:

"(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:
. . . .
(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 . . . 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." K.S.A. 2015 Supp. 22-3717(d)(1).
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Matthews argues that as a person sentenced to a crime committed after July 1,
1993—he committed his crimes in October 2015—he falls within the scope of K.S.A.
2015 Supp. 22-3717(d)(1). Since two of his convictions met the definition for sexually
violent crimes, he further reasons K.S.A. 2015 Supp. 22-3717(d)(1)(D) applied to him,
and that subsection states that those convicted of sexually violent crimes should serve a
postrelease period set by subsections (d)(1)(A), (d)(1)(B), or (d)(1)(C). Subsection
(d)(1)(B) provides that persons sentenced for nondrug severity level 5 crimes "must serve
24 months on postrelease supervision." K.S.A. 2015 Supp. 22-3717(d)(1)(B). Matthews
admits that K.S.A. 2015 Supp. 22-3717(d)(1)(G) also applies to persons convicted of
sexually violent crimes, and under that subsection the requirement is lifetime postrelease
supervision, rather than 24 months. He contends, therefore, that K.S.A. 2015 Supp. 22-
3717(d)(1) is ambiguous, and the rule of lenity requires application of the shorter period,
not lifetime postrelease supervision.

As Matthews recognizes, this court's decision in Herrmann recently held that
K.S.A. 2015 Supp. 22-3717(d)(1)(D) only applies to persons convicted of a sexually
violent crime committed after July 1, 1993, but before July 1, 2006. 53 Kan. App. 2d at
153-54. He asserts, however, that the Herrmann court incorrectly inserted a time
limitation that was not in the statute. We disagree.

The plain language of K.S.A. 2015 Supp. 22-3717(d)(1) supports the reasoning in
Herrmann. By its terms, subsection (d)(1) does not apply to all crimes committed after
July 1, 1993, but only to those that are not off-grid crimes or those committed by
"persons subject to subparagraph (G)." Subparagraph (G) specifically applies to
Matthews, since he committed his sexually violent offenses after July 1, 2006, and it
requires the lifetime postrelease the district court ordered.

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Matthews also raises arguments regarding legislative intent, but when the
language of a statute is plain and unambiguous we do not inquire into legislative intent.
State v. Coman, 294 Kan. 84, 92, 273 P.3d 701 (2012). Furthermore, the Legislature
recently amended K.S.A. 22-3717 to codify the Herrmann holding, suggesting that the
Legislature intended lifetime postrelease supervision should apply to those in Matthews'
situation. L. 2017, ch. 62, § 10.

Other panels of this court have accepted the Herrmann interpretation of the
statute. See, e.g., State v. Newton, No. 116,098, 2017 WL 3113025, at *3 (Kan. App.
2017) (unpublished opinion); State v. Wol, No. 115,633, 2017 WL 3000839, at *10 (Kan.
App. 2017) (unpublished opinion); State v. Wilson, No. 116,381, 2017 WL 2212171, at
*4 (Kan. App. 2017) (unpublished opinion); State v. Kness, No. 115,480, 2017 WL
1295994, at *2 (Kan. App. 2017) (unpublished opinion); State v. Combs, No. 115,683,
2017 WL 1296312, at *6 (Kan. App. 2017) (unpublished opinion). We also agree with
the analysis in Herrmann and find the district court's sentence was not illegal.

Affirmed.