State v. Stagner

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NOT DESIGNATED FOR PUBLICATION

No. 116,869

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

DAVID STAGNER,
Appellant.


MEMORANDUM OPINION

Appeal from Johnson District Court; STEPHEN R. TATUM, judge. Opinion filed October 27, 2017.
Affirmed.

Michelle A. Davis, of Kansas Appellate Defender Office, for appellant.

Shawn E. Minihan, assistant district attorney, Stephen M. Howe, district attorney, and Derek
Schmidt, attorney general, for appellee.

Before STANDRIDGE, P.J., HILL and SCHROEDER, JJ.

PER CURIAM: David Stagner appeals the imposition of lifetime postrelease
supervision as a result of his conviction for sexual exploitation of a child. On appeal,
Stagner claims the decision by this court in State v. Herrmann, 53 Kan. App. 2d 147, 384
P.3d 1019 (2016), rev. denied 306 Kan. ___ (July 25, 2017), which found K.S.A. 2015
Supp. 22-3717(d)(1)(G) applies to sexually violent offenders convicted after July 1, 2006,
was incorrectly decided. We find Stagner's arguments unpersuasive and we affirm.

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Stagner pled guilty to committing one count of sexual exploitation of a child and
one count of criminal use of explosives on June 13, 2016. The district court sentenced
Stagner on August 30, 2016, to 38 months' imprisonment followed by lifetime
postrelease supervision. Stagner did not object to the imposition of lifetime postrelease
supervision at sentencing. He now appeals.

On appeal, Stagner asserts his sentence is illegal because the 2013 legislative
amendments to K.S.A. 2016 Supp. 22-3717(d)(1) created a conflict that required the
district court to sentence him to 36 months' postrelease supervision under K.S.A. 2016
Supp. 22-3717(d)(1)(D), rather than lifetime postrelease supervision under K.S.A. 2016
Supp. 22-3717(d)(1)(G).

Whether a sentence is an illegal sentence is a question of law subject to unlimited
review on appeal. State v. Lee, 304 Kan. 416, 417, 372 P.3d 415 (2016). A court may
correct an illegal sentence at any time. K.S.A. 22-3504(1); State v. Fisher, 304 Kan. 242,
263-64, 373 P.3d 781 (2016). An illegal sentence is (1) a sentence imposed by a court
without jurisdiction; (2) a sentence that does not conform to the 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. Sims, 306 Kan.
618, Syl. ¶ 2, 395 P.3d 413 (2017).

Stagner's argument depends on which one of the two statutory provisions apply to
him. Thus, we must interpret the Kansas sentencing statutes. This court has unlimited
review over statutory interpretation issues. 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). When a statute is plain and unambiguous, an appellate court should
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not speculate about the legislative intent behind that clear language, and it should refrain
from reading something into the statute that is not readily found in its words. State v.
Barlow, 303 Kan. 804, 813, 368 P.3d 331 (2016). When construing statutes to determine
legislative intent, appellate courts must consider various provisions of an act in pari
materia with a view of reconciling and bringing the provisions together in workable
harmony if possible. State v. Keel, 302 Kan. 560, 573-74, 357 P.3d 251 (2015), cert.
denied 136 S. Ct. 865 (2016). Additionally, the courts must construe statutes to avoid
unreasonable or absurd results and presume the legislature does not intend to enact
meaningless legislation. State v. Frierson, 298 Kan. 1005, 1013, 319 P.3d 515 (2014).

Sexual exploitation of a child is a sexually violent crime as defined in the statute.
See K.S.A. 2016 Supp. 22-3717(d)(5)(H). A person convicted of a sexually violent crime
committed after July 1, 2006, "shall be released to a mandatory period of postrelease
supervision for the duration of the person's natural life." K.S.A. 2016 Supp. 22-
3717(d)(1)(G). Stagner was convicted of one count sexual exploitation of a child which
occurred on or about May 7, 2015. The district court found that K.S.A. 22-3717(d)(1)(G)
applied and sentenced Stagner to lifetime postrelease supervision.

In comparison, K.S.A. 2016 Supp. 22-3717(d)(1)(D) provides that a person
convicted of a sexually violent crime 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).

Stagner's challenge to lifetime postrelease supervision and the application of
K.S.A. 2016 Supp. 22-3717(d)(1)(G) was extensively discussed by our court in
Herrmann. We see no reason to rewrite its detailed analysis but quote in relevant part:

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"We find the 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).' Subparagraph (G) provides that '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.' . . .
". . . The provisions in each subparagraph apply to a distinct class of persons.
K.S.A. 22-3717 as a whole applies to all persons convicted of a crime after July 1, 1993.
See L. 1992, ch. 239, sec. 270 ('Persons sentenced for crimes committed on or after July
1, 1993, 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.').
Subparagraph (G) was added to the statute in 2006 to create an explicit exception
applicable only for 'persons convicted of a sexually violent crime committed on or after
July 1, 2006.' See L. 2006, ch. 212, sec. 19 (also adding language to [d][1] excepting
'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 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.

To further clarify, the Herrmann court ultimately concluded the date the person
committed the sexually violent crime is the deciding factor in determining which
postrelease supervision provision applies. Subparagraph (D) applies to persons sentenced
for a sexually violent crime committed after July 1, 1993, but before July 1, 2006.
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Whereas, subparagraph (G) applies to all persons sentenced for a sexually violent crime
committed on or after July 1, 2006. 53 Kan. App. 2d at 153.

Stagner acknowledges Herrmann applies to the issue on appeal but argues this
panel should not follow it. We decline Stagner's invitation and find his arguments against
applying Herrmann unpersuasive.

With our finding the Herrmann decision is persuasive, we also observe the
Legislature has reacted favorably to the Herrmann decision and recently modified K.S.A.
2016 Supp. 22-3717(d)(1)(D), as follows:

"Persons sentenced to a term of imprisonment that includes a sentence for a
sexually violent crime as defined in K.S.A. 22-3717, and amendments thereto, committed
on or after July 1, 1993, but prior to July 1, 2006, a sexually motivated crime in which
the offender has been ordered to register pursuant to K.S.A. 22-3717(d)(1)(D)(vii), . . .
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 . . . ." (Emphasis added.) L. 2017, ch. 100, § 10(d)(1)(D).

This legislative action effective July 1, 2017, deleted nothing from the previous
statutes and added language to clarify, as Herrmann found, the statute only applies to
crimes committed between July 1, 1993 and July 1, 2006. With this change to (D), the
Legislature also amended K.S.A. 2016 Supp. 22-3717(d)(1)(G) to specify it only applies
to offenders 18 years or older. It still requires lifetime postrelease supervision for
sexually violent offenders for offenses committed after July 1, 2006. L. 2017, ch. 100, §
10(d)(1)(G)(i).

Stagner also requests we apply the rule of lenity. We decline as we observe no
reason why it applies to Stagner's sentence. He was correctly sentenced pursuant to
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K.S.A. 2016 Supp. 22-3717(d)(1)(G) as his crime of conviction occurred long after July
1, 2006.

Finally, Stagner argues the Herrmann decision renders the 2013 amendments to
K.S.A. 2016 Supp. 21-6821 meaningless when applied to persons sentenced under K.S.A.
2016 Supp. 22-3717(d)(1)(G) because it is impossible to add good-time credits to a term
of lifetime postrelease supervision.

K.S.A. 2016 Supp. 21-6821 provides in relevant part:

"(c) The postrelease supervision term of a person sentenced to a term of
imprisonment that includes a sentence for a sexually violent crime as defined in K.S.A.
22-3717 . . . shall have any time which is earned and subtracted from the prison part of
such sentence and any other consecutive or concurrent sentence pursuant to good time
calculation added to such inmate's postrelease supervision term.
. . . .
"[e](2) Any time which is earned and subtracted from the prison part of the
sentence of any inmate pursuant to program credit calculation shall not be added to such
inmate's postrelease supervision term, if applicable, except that the postrelease
supervision term of a person sentenced to a term of imprisonment that includes a sentence
for a sexually violent crime as defined in K.S.A. 22-3717 . . . shall have any time which
is earned and subtracted from the prison part of such sentence and any other consecutive
or concurrent sentence pursuant to program credit calculation added to such inmate's
postrelease supervision term."

Before 2013, K.S.A. 2012 Supp. 21-6821(c) and (e)(2) provided good-time credits
earned in prison would be added to any person's postrelease supervision term. The
Kansas Legislature's 2013 amendments to K.S.A. 21-6821(c) and (e)(2) provided that
only persons convicted of certain offenses, including sexually violent crimes, must have
earned good-time credits added onto his or her postrelease supervision term. L. 2013, ch.
76, § 4.
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The Herrmann decision does not address the 2013 amendments to K.S.A. 21-
6821, but it did address the legislative intent behind the 2013 amendments to K.S.A. 22-
3717. 53 Kan. App. 2d at 153-54. The Herrmann court found the amendments provide
for a general reduction to most postrelease supervision terms but made an exception for
persons convicted of sexually violent crimes in subparagraph (D). 53 Kan. App. 2d at
153-54. Specifically, the amendments removed language regarding good-time credits
from subparagraphs (A)-(C). See L. 2013, ch. 133, § 13. The Legislature created an
exception for persons convicted of a sexually motivated crime in subparagraph (D) by
sentencing persons to fixed postrelease supervision terms, as discussed above, "plus the
amount of good time and program credit earned and retained . . . ." L. 2013, ch. 133, §
13; see also Herrmann, 52 Kan. App. 2d at 154 (discussing 2013 amendments).

Together, the 2013 amendments to K.S.A. 22-3717 and K.S.A. 21-6821 provide
that persons sentenced to a fixed postrelease supervision term under K.S.A. 22-
3717(d)(1)(D) will continue to serve any good-time credits earned on his or her
postrelease supervision. See L. 2013, ch. 133, § 13 (amending K.S.A. 22-3717); L. 2013,
ch. 76, § 4 (amending K.S.A. 21-6821). Because the 2013 amendments to K.S.A. 21-
6821 continue to affect persons sentenced under K.S.A. 22-3717(d)(1)(D)—persons who
commit a sexually violent crime after July 1, 1993, but before July 1, 2006—Herrmann
did not render the amendments to K.S.A. 21-6821(c) and (e)(2) meaningless. See State v.
Knopp, No. 116,365, 2017 WL 3822799, at *5 (Kan. App. 2017) (unpublished opinion),
petition for rev. filed October 2, 2017; State v. Wilson, No. 116,381, 2017 WL 2212171,
at *4 (Kan. App. 2017) (unpublished opinion), petition for rev. filed June 19, 2017.

The district court was statutorily required to sentence Stagner to lifetime
postrelease supervision and did.

Affirmed.