State v. Thomas

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NOT DESIGNATED FOR PUBLICATION

No. 115,807

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

LEROY THOMAS, JR.,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; BRUCE C. BROWN, judge. Opinion filed May 26, 2017.
Affirmed.

Carl F.A. Maughan, of Maughan Law Group LC, of Wichita, for appellant.

Boyd K. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before ATCHESON, P.J., MALONE and POWELL, JJ.

Per Curiam: Leroy Thomas, Jr., appeals the district court's decision granting the
State's motion to correct illegal sentence. Thomas argues that the district court erred in
modifying his postrelease supervision term from 36 months to lifetime. For the reasons
stated herein, we affirm the district court's judgment.

On May 8, 2007, Thomas pled no contest to one count of aggravated indecent
liberties with a child for a crime committed on August 27, 2006. In exchange for Thomas'
plea, the State agreed to recommend a departure sentence of 150 months in prison. The
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plea agreement contained no provisions concerning the term of postrelease supervision.
On June 19, 2007, the district court granted the agreed-upon departure and sentenced
Thomas to 150 months in prison, followed by 36 months' postrelease supervision.

On February 5, 2016, the State filed a motion to correct illegal sentence. The State
argued that the district court, relying on an incorrect presentence investigation report,
mistakenly imposed 36 months' postrelease supervision when it was required by law to
impose lifetime supervision. Thomas' counsel filed a motion for postrelease departure
findings arguing that Thomas was opposed to the resentencing, that the imposition of
lifetime postrelease supervision constituted cruel and unusual punishment, and that the
court should depart and grant Thomas a lesser term of postrelease supervision.

On February 26, 2016, the district court held a hearing on the parties' motions. A
transcript of the hearing is not included in the record on appeal. According to the journal
entry, the district court granted the State's motion to correct illegal sentence and denied
Thomas' motion for postrelease departure findings. The district court resentenced Thomas
and imposed lifetime postrelease supervision. Thomas timely appealed.

On appeal, Thomas claims the district court erred in granting the State's motion to
correct illegal sentence. Specifically, Thomas argues that the sentence originally imposed
by the district court was a legal departure sentence. He also argues that even if the
original sentence was illegal, the district court was "powerless to modify that sentence to
impose a harsher sentence." Thomas makes no claim on appeal that the imposition of
lifetime postrelease supervision for his conviction constitutes cruel and unusual
punishment. An issue not briefed by the appellant is deemed waived or abandoned. State
v. Williams, 303 Kan. 750, 758, 368 P.3d 1065 (2016).

The State asserts that the district court did not err in correcting Thomas' original
postrelease supervision period from 36 months to lifetime supervision. Specifically, the
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State argues that K.S.A. 2016 Supp. 22-3717 provides for lifetime postrelease
supervision for persons convicted of sexually violent crimes. The State contends that
Thomas' original sentence of 36 months' postrelease supervision was illegal and the
district court was permitted to correct the sentence at any time.

Pursuant to K.S.A. 22-3504(1), the court may correct an illegal sentence at any
time. An "illegal sentence," as contemplated by K.S.A. 22-3504(1), is a sentence imposed
by the court without jurisdiction; a sentence that does not conform to the statutory
provision, either in the character or the term of authorized punishment; or a sentence that
is ambiguous with respect to the time and manner in which it is to be served. State v.
Gray, 303 Kan. 1011, 1014, 368 P.3d 1113 (2016). Whether a sentence is illegal within
the meaning of K.S.A. 22-3504 is a question of law over which an appellate court has
unlimited review. State v. Lee, 304 Kan. 416, 417, 372 P.3d 415 (2016).

State v. Ballard, 289 Kan. 1000, 218 P.3d 432 (2009), is directly on point and
controls the outcome of this appeal. In that case, Ballard was convicted of aggravated
indecent liberties with a child and received an original sentence that included 36 months'
postrelease supervision. Two weeks later, the district court conducted another hearing
and corrected Ballard's postrelease supervision term from 36 months to lifetime. On
appeal, Ballard argued that the district court erred in changing his original postrelease
supervision term from 36 months to lifetime supervision because, according to Ballard,
the district court had imposed a legal sentence at the initial hearing and it did not have
authority to increase that sentence 2 weeks later.

Our Supreme Court rejected Ballard's claim and pointed out that K.S.A. 2006
Supp. 22-3717(d)(1)(G) mandates lifetime postrelease supervision for sexually violent
crimes committed on or after July 1, 2006. 289 Kan. at 1011. Thus, the court reasoned
that Ballard's initial 36-month postrelease supervision term did not conform to the
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statutory provision in the term of authorized punishment and constituted an illegal
sentence that could be corrected at any time. 289 Kan. at 1011-12.

Here, Thomas was convicted of aggravated indecent liberties with a child for a
crime committed on August 27, 2006. Pursuant to K.S.A. 2016 Supp. 22-3717(d)(1)(G),
the district court was required to impose lifetime postrelease supervision. The district
court had no discretion or authority to depart downward and grant 36 months' postrelease
supervision. Thomas' original sentence of 36 months' postrelease supervision did not
conform to the statutory provision in the term of authorized punishment and constituted
an illegal sentence that could be corrected at any time pursuant to K.S.A. 22-3504(1).
Thus, the district court did not err in correcting Thomas' postrelease supervision term
from 36 months to lifetime.

Affirmed.