State v. Ortiz

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NOT DESIGNATED FOR PUBLICATION

No. 119,180

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

ARMANDO ORTIZ JR.,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; JEFFREY E. GOERING, judge. Opinion filed March 15,
2019. Affirmed.

Sam Schirer, of Kansas Appellate Defender Office, for appellant.

Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before BRUNS, P.J., SCHROEDER and GARDNER, JJ.

PER CURIAM: Armando Ortiz Jr. appeals, claiming the district court lacked
jurisdiction when it modified his sentence from an illegal 24-month period of postrelease
to lifetime postrelease supervision. Previously, Ortiz pled no contest to indecent
solicitation of a child and aggravated battery. The district court's original sentence and
grant of probation included an illegal 24-month postrelease period of supervision. Ortiz
violated his probation, and the district court revoked his probation, ordering the
imposition of the underlying sentence, including the illegal 24-month postrelease period.
Later, the district court corrected the original postrelease sentence error to reflect the
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statutorily mandated lifetime postrelease supervision period. We disagree with Ortiz and
affirm.

FACTS

In 2011, Ortiz pled no contest to indecent solicitation of a child and aggravated
battery. The district court sentenced him to 32 months' imprisonment and then granted
supervised probation for 24 months with a 24-month postrelease supervision period
should his probation be revoked. However at the time of Ortiz' sentencing, the district
court was required under K.S.A. 2010 Supp. 22-3717(d)(1)(G) and (d)(2)(F) to impose a
period of lifetime postrelease supervision for Ortiz' sexually violent crime.

In May 2012, the district court revoked Ortiz' probation and ordered him to serve
his underlying sentence. Ortiz' counsel asked the district court to modify his underlying
sentence to run concurrent instead of consecutive, but the district court said, "No."
However, the journal entry of judgment erroneously stated Ortiz' postrelease period was
vacated by operation of K.S.A. 2011 Supp. 22-3716(e). After discovering the error, the
district court issued a nunc pro tunc order which amended the probation revocation
journal entry to reflect Ortiz was required to serve a lifetime postrelease supervision
period. The district court also deleted the portion, stating: "No postrelease period to be
served per K.S.A. 22-3716(e)."

In May 2015, Ortiz filed a motion to correct illegal sentence, arguing the district
court erred in imposing a lifetime postrelease period because it was cruel and unusual
punishment. The district court summarily denied this motion, stating a defendant may not
litigate a constitutional issue through a motion to correct illegal sentence. Ortiz appealed
this ruling. On appeal, the Court of Appeals held the district court erred by correcting an
illegal period of postrelease through a nunc pro tunc order. State v. Ortiz, No. 116,478,
2017 WL 4558408, at *3 (Kan. App. 2017) (unpublished opinion). The panel found that
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district courts should only use a nunc pro tunc order to correct clerical errors and the
district court could not modify Ortiz' sentence outside the courtroom and without Ortiz
being present. 2017 WL 4558408, at *3. The panel remanded the case and issued a
mandate ordering the district court to resentence Ortiz with him present in court to the
appropriate period of postrelease supervision. 2017 WL 4558408, at *3.

At the resentencing hearing, Ortiz argued he should not receive a lifetime
postrelease supervision sentence because that was not the sentence pronounced from the
bench at his revocation hearing. Ortiz asserted the district court could not now modify the
sentence to impose a lifetime postrelease period. Ortiz argued his original 24-month
postrelease sentence should be imposed because that is what the State offered in the plea
agreement. Ortiz also claims the district court ordered him not to serve any postrelease
supervision time at his probation revocation hearing, meaning the revocation sentence
was not an oversight. Ortiz also argued the State failed to object to this sentence or appeal
the decision.

The district court found Ortiz' probation violation was only relevant in terms of
explaining why his sentence was bumped from a 24-month period to a lifetime period.
The district court further explained: "[T]he fact that you weren't successful on probation
really doesn't matter to me one way or the other in terms of the resentencing." The district
court stated Ortiz made a persuasive argument he should receive a 24-month postrelease
period based on the fact he bargained for it in the plea agreement. However, the State
clarified the plea agreement never mentioned a 24-month postrelease period, rather 24
months was simply the sentence originally imposed.

Noting this clarification, the district court emphasized it would give Ortiz a 24-
month postrelease period if it could but saw no way to do so. Instead, based off the Court
of Appeals' mandate, the district court found it must sentence Ortiz to the appropriate
period required by law, which was the lifetime postrelease period. The district court then
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imposed the lifetime postrelease period with the underlying prison sentence remaining
the same.

ANALYSIS

We have combined Ortiz' issues on appeal as one. Ortiz argues the district court on
remand should have sentenced him to a 24-month postrelease supervision period. Ortiz
asserts the district court had the statutory authority to impose this sentence at his
revocation hearing and, because this was a statutorily permissible sentence, the district
court no longer had jurisdiction to later modify this sentence.

Ortiz admits a district court does not have the authority to impose a postrelease
supervision period less than the period required by statute at sentencing. Thus, Ortiz
agrees his sentence was illegal when it was originally imposed. Still, Ortiz contends the
district court may reduce a probationer's sentence upon revocation, such as his period of
postrelease supervision. But he also argues the district court may not impose a sentence
greater than the original underlying sentence. Ortiz now contends the imposition of a
lifetime postrelease sentence on remand was greater than the underlying 24-month period
of postrelease supervision he received at his first revocation hearing. However, Ortiz
concedes the Kansas Supreme Court recently decided this issue adversely to his position.
He asserts the holding is wrong.

Conversely, the State argues the district court correctly followed the mandate from
this court. The State agrees the district court initially erred when it modified Ortiz'
sentence to include lifetime postrelease out of court and without Ortiz present. On
remand, the State argues the district court imposed the statutorily appropriate
postsentence period in Ortiz' presence. The State also asserts because Ortiz' appellate
complaint is not based on constitutional claims or due to an unfair imposition based on
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his crime alone, the district court was required to follow the mandate to impose the
appropriate lifetime postrelease sentence.

Whether a sentence is illegal is a question of law which receives unlimited review.
State v. Pennington, 288 Kan. 599, 601, 205 P.3d 741 (2009). An illegal sentence is one
that (1) is imposed by a court without jurisdiction; (2) does not conform to the applicable
statutory provision, either in character or the period of authorized punishment; or (3) is
ambiguous with respect to the time and manner it is to be served. K.S.A. 2018 Supp. 22-
3504(3).

Ortiz' case is controlled by the recent Kansas Supreme Court decision in State v.
Sandoval, 308 Kan. 960, 425 P.3d 365 (2018). Sandoval is factually and legally similar to
Ortiz'. In Sandoval, the defendant pled guilty to aggravated indecent solicitation, and the
district court granted him probation. The defendant received an underlying sentence of 34
months in prison with a 24-month postrelease supervision period. Sandoval should have
received a mandatory lifetime postrelease supervision period under K.S.A. 22-
3717(d)(1)(G). The district court subsequently revoked Sandoval's probation and ordered
him to serve the underlying sentence, but it failed to change the 24-month postrelease
period. The State later moved to correct the illegal postrelease sentence, and the district
court accordingly corrected the underlying sentence to reflect a lifetime postrelease
period. 308 Kan. at 961. This correction changed the defendant's revocation sentence to
now include the lifetime postrelease period.

On appeal, Sandoval argued the district court's new lifetime postrelease sentence
was greater than the 24-month postrelease sentence imposed at his revocation hearing in
violation of K.S.A. 22-3716(b). However, the Sandoval court found the district court
deliberately declined to modify the underlying sentence at his revocation hearing, thus it
intended to impose the original underlying sentence. 308 Kan. at 965. This left the
original postrelease period intact and in force even though it did not conform to the
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statutory minimum of lifetime postrelease. 308 Kan. at 965. Because the postrelease
period was illegal when originally imposed, it was also illegal under the revocation
sentence. 308 Kan. at 965. The district court had the authority to correct the postrelease
portion of the original sentence, thus, it could also correct the revocation sentence at the
same time. 308 Kan. at 965.

The Sandoval court determined its case could be distinguished from State v.
McKnight, 292 Kan. 776, 257 P.3d 339 (2011). In McKnight, the district court chose to
impose a lesser sentence at the revocation hearing instead of the original underlying
sentence. Because the district court chose to impose a lesser sentence, it imposed a new
sentence, and the district court subsequently lacked jurisdiction to correct the sentence at
any point after it pronounced the new sentence from the bench. Sandoval, 308 Kan. at
965; see State v. Roth, 308 Kan. 970, 972, 424 P.3d 529 (2018) (holding that defendant's
revocation sentence could not later be "corrected" after the district court imposed a new
sentence at the revocation hearing rather than imposing the original underlying sentence).

The court in Sandoval held the district court had the authority to correct the
original postrelease supervision period to reflect the accurate lifetime postrelease period.
The authority to correct also extended to the revocation sentence despite the fact
Sandoval had already been sentenced to a 24-month postrelease period at his revocation
hearing. In ruling, the Sandoval court stated:

"Sandoval is correct that he ultimately is subject to a period of postrelease
supervision longer than that pronounced as part of his original sentence. But the
imposition of that period is a function of the State's allowable correction of an illegal
original sentence that survived Sandoval's probation revocation, not of a new sentence
pronounced as a result of that revocation. The correction did not conflict with the 'lesser
sentence' language we have examined." 308 Kan. at 965.

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Here, identical to Sandoval, the district court expressly declined to modify Ortiz'
sentence at the revocation hearing and stated it was imposing the original underlying
sentence. Ortiz is correct the district court could not impose a lifetime postrelease
supervision period at revocation when Ortiz' underlying sentence only included a 24-
month postrelease period, the original postrelease period imposed was illegal. The district
court corrected the illegal sentence to accurately reflect a lifetime postrelease period for
his original sentence. Under Sandoval, the authority to correct an illegal sentence
survived Ortiz' probation revocation sentence, and the correction did not conflict with the
"lesser sentence" requirement under K.S.A. 2011 Supp. 22-3716(b). Under Sandoval, the
district court did not err in following this court's mandate to impose the appropriate
postrelease supervision period on Ortiz at the remand hearing.

Next, Ortiz argues even if the district court has the right to modify his initial
sentence, he should still be granted a new dispositional hearing on his revocation
sentence. Ortiz admits he did not argue for a new hearing at the district court level, but he
argues this court may hear this issue for the first time on appeal because it is purely a
question of law based on stipulated facts that are determinative of this case.

Ortiz now asserts the district court is required to hold a dispositional hearing when
a sentence is increased after a revocation disposition. Ortiz admits Sandoval controls here
and the district court would be free to impose a lifetime postrelease period at the new
dispositional hearing. However, the district court would also be free to impose a lesser
sentence, thus he could benefit from a new hearing. The State argues this court is duty
bound to follow the Kansas Supreme Court precedent in Sandoval. We agree with the
State.

The defendant in Sandoval also argued "a remand to the district court for a new
disposition hearing was required because his ultimate postrelease supervision period was
not lesser but greater." 308 Kan. at 961. However, the Sandoval court did not agree for
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the same reasons stated above. With respect to his probation revocation sentence, the
defendant simply received the legally correct sentence, not a new sentence, thus the
district court did not impose a greater sentence. Accordingly, a new disposition hearing
was not necessary. "The Court of Appeals is duty bound to follow Kansas Supreme Court
precedent absent some indication that the court is departing from its previous position."
State v. Medina, 53 Kan. App. 2d 89, 98, 384 P.3d 26 (2016). There is no indication the
Supreme Court is departing from its position in Sandoval. On remand, the district court
had jurisdiction and Ortiz received the statutorily required sentence of lifetime
postrelease. A new disposition hearing is not required.

Affirmed.