State v. Shaffer

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NOT DESIGNATED FOR PUBLICATION

No. 112,172

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

HERBERT H. SHAFFER,
Appellant.

MEMORANDUM OPINION

Appeal from Sedgwick District Court; JEFFREY GOERING, judge. Opinion filed September 18,
2015. Affirmed.

Peter Maharry, of Kansas Appellate Defender Office, for appellant.

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

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

Per Curiam: Pursuant to a plea agreement with the State, Herbert H. Shaffer pled
no contest to rape. In exchange, the State agreed not to oppose a departure sentence of
165 months' imprisonment. The plea agreement stated that if the sentencing court granted
the departure and ordered a sentence to the sentencing grid, Shaffer would face lifetime
postrelease supervision under K.S.A. 2009 Supp. 22-3717(d)(1)(G). Shaffer committed
this crime in 2010.

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At sentencing, the court granted Shaffer's motion for a downward durational
departure and imposed a sentence of 147 months' imprisonment. The court ordered
lifetime postrelease supervision.

Over 2 years later, Shaffer contended his sentence was illegal because the court
imposed lifetime postrelease supervision. He claimed that his postrelease supervision
should be only 36 months. The court summarily denied Shaffer's motion, ruling that the
sentence was not illegal because lifetime postrelease supervision was required under
K.S.A. 2009 Supp. 22-3717(d)(1)(G) and (d)(2)(A). Shaffer appealed. He argues that
lifetime postrelease supervision was illegal because he received a downward durational
departure and could only have been sentenced to 36 months' postrelease supervision. We
review this issue de novo. State v. Trotter, 296 Kan. 898, 901, 295 P.3d 1039 (2013).

K.S.A. 22-3504(1) allows the court to correct an illegal sentence at any time. An
illegal sentence includes one that does not conform to the applicable statutory provision
in either the character or the term of authorized punishment. State v. Taylor, 299 Kan. 5,
8, 319 P.3d 1256 (2014); see State v. Gilbert, 299 Kan. 797, 799, 801, 326 P.3d 1060
(2014).

Shaffer's crime was committed in 2010. K.S.A. 2009 Supp. 22-3717(d)(1)(G)
requires any person convicted of a sexually violent crime—including rape— to receive
lifetime postrelease supervision. The statute provides:

"(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:
. . . .
"(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
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released to a mandatory period of postrelease supervision for the duration of the person's
natural life.
"(2) As used in this section, 'sexually violent crime' means:
"(A) Rape, K.S.A. 21-3502, and amendments thereto." (Emphasis added.) K.S.A.
2009 Supp. 22-3717(d)(1)(G) and (d)(2)(A).

In State v. Cameron, 294 Kan. 884, 900, 281 P.3d 143 (2012), the court held that
an offender convicted of a sexually violent crime must be ordered to receive lifetime
postrelease supervision upon release from prison. In doing so, the court examined K.S.A.
22-3717 and rejected an argument similar to Shaffer's current argument, holding "there is
no reasonable doubt that the legislature intended the more specific and more severe
provision of (d)(1)(G) to apply to a sentence imposed for a conviction of a sexually
violent offense rather than the more general provision of (d)(1)(B)." 294 Kan. at 900; see
State v. Baber, 44 Kan. App. 2d 748, 753, 240 P.3d 980 (2010), rev. denied 296 Kan.
1131 (2013) (examining the postrelease statute and holding that the more specific
provision for sexually violent crimes controlled over the general provision for severity
level crimes). Rape is a sexually violent crime under K.S.A. 2009 Supp. 22-
3717(d)(2)(A). Thus, the district court did not err in denying Shaffer's motion to correct
illegal sentence.

Affirmed.