State v. Nelson

1

NOT DESIGNATED FOR PUBLICATION

No. 119,491

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

TROY H. NELSON,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; DEBORAH HERNANDEZ MITCHELL, judge. Opinion filed
May 3, 2019. Affirmed.

Angela M. Davidson, of Davidson Appellate Law, of Lawrence, for appellant.

Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before STANDRIDGE, P.J., GARDNER, J., and WALKER, S.J.

PER CURIAM: Troy H. Nelson appeals the district court's denial of his motion to
correct an illegal sentence. He was serving 228 months in prison when his sentence was
vacated on appeal. But the length of the prison sentence imposed on remand was shorter
than the time Nelson had already served in prison. So Nelson filed a motion to correct an
illegal sentence, arguing that the district court should have credited the excess time he
spent incarcerated against his postrelease supervision time. But the Kansas Supreme
Court has previously held that a defendant is not entitled to do so. Finding no error, we
affirm.
2

Factual and procedural background

Nelson was convicted of aggravated robbery, possession of cocaine, no tax stamp,
and three counts of theft. The district court sentenced him to 228 months in prison with
36 months of postrelease supervision based on a criminal history score of B. But Nelson
successfully challenged the legality of his sentence under State v. Dickey, 301 Kan. 1018,
350 P.3d 1054 (2015) (Dickey I), and State v. Dickey, 305 Kan. 217, 380 P.3d 230 (2016)
(Dickey II), arguing that the court relied on an incorrect criminal history score at
sentencing. State v. Nelson, No. 113,895, 2016 WL 6821852, at *1 (Kan. App. 2016)
(unpublished opinion). The Supreme Court remanded his case for resentencing. On
remand, the district court sentenced Nelson to 107 months in prison with 36 months of
postrelease supervision. But Nelson had already served 5,452 days in prison—more days
than required by that 107-month prison sentence. So Nelson was released from custody
and began serving his postrelease supervision term. He was later charged with new
crimes and was returned to custody.

Nelson then filed a pro se motion to correct illegal sentence. He sought to have his
postrelease supervision term vacated, claiming it is illegal, constitutes cruel and unusual
punishment, and violates the Ex Post Facto Clause, Due Process Clause, and the Equal
Protection Clause. He argued that his excess time served in prison should have been
credited toward his 36 months' postrelease supervision.

The State responded that Nelson failed to make a valid claim of an illegal sentence
under K.S.A. 22-3504 because he raised only constitutional claims that cannot give rise
to a claim of an illegal sentence. Nelson moved to amend his previous motion to correct
illegal sentence, claiming manifest injustice and asking the court to apply the rule of
lenity and credit his time served against his postrelease supervision requirement. The
district court denied Nelson's motion, finding he had failed to bring a claim permitted by
K.S.A. 22-3504. Nelson appeals.
3

The district court did not err in denying Nelson's motion to correct illegal sentence.

Nelson abandons his constitutional claims and now argues that requiring him to
serve a term of postrelease supervision constitutes manifest injustice. He argues that his
sentence is illegal and "shocks the conscience and can be deemed nothing but 'obviously
unfair' to now incarcerate [him] an additional three years for a violation of postrelease."
Nelson seems to argue that he is incarcerated now only because he violated the conditions
of his postrelease supervision which he should not have had to serve.

Standard of Review

Whether a sentence is illegal under 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).
When a district court summarily denies a motion to correct illegal sentence, we also
apply a de novo standard of review. This is because we have the same access to the
motion, records, and files as the district court. State v. Gray, 303 Kan. 1011, 1013-14,
368 P.3d 1113 (2016).

Analysis

In his only claim on appeal, Nelson argues that requiring him to serve the post-
release supervision portion of his sentence shocks the conscience and can be deemed
nothing but "obviously unfair." We disagree.

We first consider the Kansas Supreme Court's decision in State v. Gaudina, 284
Kan. 354, 160 P.3d 854 (2007). There, the appellate court vacated defendant's sentence
and the district court on remand imposed a prison term shorter than the time the
defendant had already served. The defendant sought to credit his excess period of
4

imprisonment against the postrelease supervision portion of his sentence. That case raised
the same issue that Nelson raises here:

"This case raises the question of whether time spent in prison beyond the prison
term can reduce the term of postrelease supervision. The question arises after Robert
Gaudina's sentence was vacated on appeal and the prison term imposed on remand was
for a shorter time than the time Gaudina had already served. Gaudina seeks to credit that
excess period of imprisonment against the postrelease supervision portion of his
sentence." 284 Kan. at 354-55.

The Kansas Supreme Court rejected Gaudina's statutory construction, double jeopardy,
and equal protection arguments and held that a defendant is not entitled to have excess
time served in prison credited against the postrelease supervision time. Three main pillars
supported that result.

First, Gaudina emphasized that two distinct segments make up a defendant's
sentence—a period of confinement and a period of postrelease supervision. 284 Kan. at
358-59. The statutory language of the Kansas Sentencing Guidelines Act that compelled
that conclusion provided:

"'[I]f the judge sentences the defendant to confinement' the judge must 'pronounce the
complete sentence which shall include the prison sentence, the maximum potential
reduction to such sentence as a result of good time and the period of postrelease
supervision.' K.S.A. 2006 Supp. 21-4704(e)(2)." 284 Kan. at 358.

The court found this statutory requirement mandates and defines two segments of the
bifurcated sentence: the period of confinement and the period of postrelease supervision.

Although that statute was repealed in 2011, the current KSGA retains the same
bifurcated sentencing structure:
5

"(2) In presumptive imprisonment cases, the sentencing court shall pronounce the
complete sentence which shall include the:
(A) Prison sentence;
(B) maximum potential reduction to such sentence as a result of good time; and
(C) period of postrelease supervision at the sentencing hearing. Failure to
pronounce the period of postrelease supervision shall not negate the existence of such
period of postrelease supervision." K.S.A. 2018 Supp. 21-6804(e)(2).

As in Gaudina, this statutory requirement mandates and defines two separate segments of
the bifurcated sentence: the period of confinement and the period of postrelease
supervision.

Secondly, Gaudina found that drawing a distinction between the two segments is
consistent with the meaning of the terms.

"'Confinement,' a term of ordinary meaning, is '[t]he act of imprisoning or restraining
someone; the state of being imprisoned or restrained.' Black's Law Dictionary 318 (8th
ed. 2004). In contrast, the term 'postrelease supervision' has 'particular technical meaning
under the [KSGA].' Fanning v. State, 25 Kan. App. 2d 469, 470, 967 P.2d 1083, rev.
denied 266 Kan. 1108 (1998). It is defined by statute as
'the release of a prisoner to the community after having served a period of imprisonment
or equivalent time served in a facility where credit for time served is awarded as set forth
by the court, subject to conditions imposed by the Kansas parole board and to the
secretary of correction's supervision.' K.S.A. 21-4703(p)." 284 Kan. at 358.

An identical definition of postrelease supervision is in effect today. K.S.A. 2018 Supp.
21-6803(p).

Third, Gaudina found that caselaw has consistently held that postrelease
supervision cannot begin until the defendant serves the confinement portion of the
sentence. 284 Kan. at 358-59. See White v. Bruce, 23 Kan. App. 2d 449, 453, 932 P.2d
6

448 (1997); Faulkner v. State, 22 Kan. App. 2d 80, 83, 911 P.2d 203 (1996). Our statute
underscores that conclusion. K.S.A. 2018 Supp. 22-3717(q) ("Inmates shall be released
on postrelease supervision upon the termination of the prison portion of their sentence.").

The governing caselaw and the statutory provisions in effect today are identical, in
relevant part, to those that caused Gaudina to conclude that postrelease supervision is a
separate segment of the sentence and any credit for time spent in confinement is credited
against time spent incarcerated, not against postrelease supervision. 284 Kan. at 360. We
thus find Gaudina to control Nelson's claim.

Thus a defendant who is resentenced after serving time in prison is not entitled to
credit against a postrelease supervision period for any time served in prison, even if the
time served exceeds the sentence imposed on remand. Gaudina, 284 Kan. at 368. This is
because postrelease supervision is a separate portion of the sentence that does not begin
until the confinement portion of the sentence has been served. 284 Kan. at 358-59;
K.S.A. 2018 Supp. 22-3717(q); K.S.A. 2018 Supp. 21-6803(p). Because Kansas court do
not credit excess imprisonment served against postrelease supervision, 284 Kan. at 360,
we cannot credit Nelson's postrelease supervision period with his excess penal time.

Additionally, we note that Nelson's sentence is not otherwise illegal. Three
circumstances make a sentence illegal: (1) when a court without jurisdiction imposes it;
(2) when it does not conform to the applicable statutory provision, either in character or
punishment; or (3) when it is ambiguous to the time and manner in which it is to be
served. K.S.A. 2018 Supp. 22-3504(3). Nelson does not argue that any of these apply
here.

Affirmed.