State v. Ballard

1

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 100,057

STATE OF KANSAS,
Appellee,

v.

JASON BALLARD,
Appellant.



SYLLABUS BY THE COURT


1. Jurisdiction is a question of law over which we have unlimited review.

2. Interpretation of statutes is a question of law over which this court has unlimited review.

3. A departure sentence is a sentence that is inconsistent with the presumptive sentence for
an offender. K.S.A. 21-4703(f).

4. Under the facts of this case, appellate court jurisdiction existed for reviewing defendant's
sentence because it was a departure sentence and not presumptive.

5. Known as "Jessica's Law," K.S.A. 21-4643(a)(1) provides that a defendant 18 years of
age or older who is convicted of the crime of aggravated indecent liberties with a child
committed on or after July 1, 2006, must be sentenced to a term of imprisonment for life
with a mandatory term of imprisonment of not less than 25 years.

6. K.S.A. 21-4643(d) allows a sentencing court to find mitigating circumstances that permit
a downward departure from the mandatory minimum imprisonment terms set out in
K.S.A. 21-4643(a)(1).

7. For defendants convicted of certain sexually motivated or sexually violent crimes
committed before July 1, 2008, and sentenced pursuant to K.S.A. 21-4643(d), a
"departure sentence" includes both durational and dispositional departures.
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8. An abuse of discretion standard applies to an appellate court's review of a district court's
determination of whether mitigating circumstances presented under K.S.A. 21-4643(d)
are substantial and compelling reasons for a departure sentence. The magnitude of the
departure is similarly within the court's discretion.

9. Under the facts of this case, the district court did not abuse its discretion by denying a
defendant's motion for a downward dispositional departure sentence of probation under
K.S.A. 2006 Supp. 21-4643(d).

10. When a lawful sentence has been imposed, the sentencing court has no jurisdiction to
modify that sentence except to correct arithmetic or clerical errors. However, an illegal
sentence can be corrected at any time.

11. An illegal sentence under K.S.A. 22-3504(1) is a sentence imposed by a court without
jurisdiction; a sentence which does not conform to the statutory provision, either in the
character or the term of the punishment authorized; or a sentence which is ambiguous
with respect to the time and manner in which it is to be served.

12. Under the facts of this case, a sentence that included postrelease supervision of 36
months did not conform to the statutory provisions. The sentence was therefore illegal
and able to be corrected at any time for the imposition of lifetime postrelease supervision.

13. Under the facts of this case, the court erred in finding defendant ineligible to earn good
time credit under K.S.A. 2006 Supp. 21-4722.

Appeal from Sedgwick district court; DOUGLAS R. ROTH, judge. Opinion filed November 6, 2009.
Affirmed in part, reversed in part, and remanded with directions.

Randall L. Hodgkinson, of Kansas Appellate Defender Office, argued the cause and was on the briefs for
appellant.

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David Lowden, chief attorney, appellate division, argued the cause, and Kristi L. Barton, assistant district
attorney, Nola Tedesco Foulston, district attorney, and Steve Six, attorney general, were on the briefs for appellee.

The opinion of the court was delivered by

NUSS, J.: Jason Ballard directly appeals his sentence for committing aggravated indecent
liberties with a child, an off-grid person felony under K.S.A. 2006 Supp. 21-3504(a)(3)(A) and
(c). More specifically, he appeals the district court's refusal to grant probation and its imposition
of lifetime postrelease supervision without eligibility for good time credit. Our jurisdiction is
pursuant to K.S.A. 22-3601(b)(1) (conviction of an off-grid crime).

The issues on appeal, and our accompanying holdings, are as follows:

1. Did the district court abuse its discretion in denying a downward dispositional
sentencing departure to probation? No.

2. Did the district court err in changing Ballard's originally imposed postrelease
supervision period from 36 months to lifetime supervision? No.

3. Did the district court err in finding Ballard ineligible for good time credit? Yes.

Accordingly, we affirm in part, reverse in part, and remand for resentencing with directions.

FACTS

Jason Ballard was charged with aggravated indecent liberties with a child pursuant to
K.S.A. 2006 Supp. 21-3504(a)(3)(A), which is an off-grid person felony. See K.S.A. 2006 Supp.
21-3504(c); K.S.A. 21-4706(d). Under Jessica's Law, this offense carries a sentence of
imprisonment for life, with a "mandatory minimum term of imprisonment of not less than 25
years." K.S.A. 21-4643(a)(1). Ballard pled no contest to the charge. He and the State jointly
requested a downward durational sentencing departure, from off-grid to the grid block
appropriate for a severity level 3 person felony. This severity level felony carries a sentence of
between 55 and 247 months in prison. K.S.A. 2006 Supp. 21-4704. In exchange for Ballard's
plea, the State agreed not to file any additional charges.
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The factual basis for the plea was straightforward. Early in the morning of January 1,
2007, Ballard and his wife returned home from a New Year's Eve party. Ballard's 11-year old
niece, A.T., was watching television from the couch. When Ballard's wife went to the basement,
he went to the couch and "put his hand down her [A.T.'s] pants underneath her panties and began
touching her vagina. Even though he was called away by his wife downstairs, he continued to
fondle her vagina with his hand inside of her pants." A.T. immediately told Ballard's wife and
the event was eventually reported to law enforcement.

On September 11, 2007, Ballard filed a motion for a downward durational and
dispositional departure to probation. In support, he argued that he had no felony criminal history
and would fall into criminal history category "I." Ballard also argued that he was so intoxicated
at the time of the offense that he had no recollection of it and that he mistook A.T. for his wife.
Finally, he argued that A.T. and her family agreed that the underlying problem was alcohol
addiction and they all wanted him to get probation and treatment. The State objected to Ballard's
request for a dispositional departure, arguing that the court could not grant probation as a matter
of law and that, even if it could, probation was inappropriate in this case.

At the sentencing hearing 3 days later, the court found that there were substantial and
compelling reasons for a durational departure. As a mitigating circumstance, the court found that
Ballard's capacity to appreciate the criminality of his conduct and to conform his conduct to the
requirements of law was substantially impaired due to the use of alcohol. The court also noted
that it was "taking into account the other arguments and evidence presented by your attorney and
your family and your friends including all the letters and the information contained in that." It
then imposed a sentence of 55 months in prison.

The judge denied Ballard's request for dispositional departure to probation, concluding, "I
do not believe all the evidence under all the circumstances would warrant a further departure."

The court also imposed 36 months of postrelease supervision and indicated that Ballard
would be eligible for earning good time credit of up to 15 percent. The State objected, arguing
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that even when there is a downward departure from an off-grid, life sentence to the Kansas
Sentencing Guidelines Act, a lifetime of postrelease supervision is still required. The judge
stated, "I am going to stay with the finding I previously made which is 36 months." However, he
retained jurisdiction "to modify that order if it is in error and contrary to statute. Get with the
court and counsel, and if I am in error, go ahead and file an appropriate motion, and I will take it
up at that time."

Two weeks later, the court conducted another hearing. The State argued that the
postrelease issues were governed by K.S.A. 2006 Supp. 22-37l7(d)(1)(G), which mandates
lifetime postrelease supervision for sexually violent crimes, and that no good time credit was
allowed pursuant to K.S.A. 2006 Supp. 22-37l7(b)(2). Defense counsel responded that because
the court had departed from the life sentence to the sentencing guidelines, the appropriate
postrelease term should be based on the sentence imposed pursuant to the guidelines, e.g., 36
months. The court then increased Ballard's postrelease supervision period to life and held that he
was not entitled to up to 15 percent good time credit:

"[Y]ou will be, pursuant to statute, specifically K.S.A. 22-3717, subject to lifetime post-release
supervision unless otherwise is subsequently modified by statute. Furthermore, I am going to rule
and find that I previously stated that you would be subject to potentially earn good time credit of
up to 15 percent. The Court was in error in making that. The statute specifically provides
otherwise, and so you will not be eligible for good time credit."

Other facts will be added as necessary to the analysis.

ANALYSIS

Issue 1: The district court did not abuse its discretion in denying a downward dispositional
departure to probation.

Ballard first claims the district court erred in denying his request for a downward
dispositional departure to probation. He argues that he presented substantial and uncontested
evidence in support of probation, and notes that the court found substantial and compelling
reasons that justified a downward durational departure from a life sentence to 55 months.
Ballard complains that the court "arbitrarily denied treatment for alcoholism problems that it
6

acknowledged was at the core of this case." Because his evidence was uncontested, he argues
the court acted arbitrarily and abused its discretion in refusing to grant probation.

As a threshold matter, the State argues that this court does not have jurisdiction to review
Ballard's claims because he received a presumptive sentence. The State contends that because
Ballard's sentence was ultimately calculated through use of a grid block, he received a
presumptive sentence for that block's corresponding offense. It cites State v. Ortega-Cadelan,
287 Kan. 157, 163, 194 P.3d 1195 (2008) (a presumptive sentence is a sentence "issued pursuant
to a number in a grid block"). Admittedly, his sentence of 55 months corresponds exactly with
the low-number, presumptive sentence for a person with a criminal history of "I" committing a
Level 3 person felony. Jurisdiction is a question of law over which we have unlimited review.
State v. McCarley, 287 Kan. 167, Syl. ¶ 8, 195 P.3d 230 (2008).

We begin our analysis by observing that the Kansas Sentencing Guidelines Act (KSGA),
K.S.A. 21-4701 et seq., governs when a defendant may appeal his or her sentence. The KSGA
provides that departure sentences are "subject to appeal by the defendant or the state." K.S.A.
21-4721(a). It defines a "departure" as "a sentence which is inconsistent with the presumptive
sentence for an offender." K.S.A. 21-4703(f). The KSGA further provides that appellate courts
"shall not review: (I) Any sentence that is within the presumptive sentence for the crime."
(Emphasis added.) K.S.A. 21-4721(c)(1). It defines "presumptive sentence" as "the sentence
provided in a grid block for an offender classified in that grid block by the combined effect of the
crime severity ranking of the current crime of conviction and the offender's criminal history."
K.S.A. 21-4703(q).

We further observe that K.S.A. 2006 Supp. 21-4643, also known as Jessica's Law,
requires that a defendant 18 years of age or older who is convicted of certain sexually violent
crimes, including aggravated indecent liberties with a child, committed on or after July 1, 2006,
must be sentenced to a term of imprisonment for life, with a mandatory minimum term of
imprisonment of not less than 25 years. K.S.A. 21-4643(a)(1)(C); see State v. Gracey, 288 Kan.
252, 255, 200 P.3d 1275 (2009). However, the statute's subsection (d) allows a sentencing court
to make a downward departure from this mandatory minimum term of imprisonment set out in
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(a)(1). Upon a finding of substantial and compelling reasons to depart, via subsection (d) the
court may instead impose a sentence pursuant to the KSGA.

Subsection (d) of K.S.A. 2006 Supp. 21-4643 states in relevant part:

"On or after July 1, 2006, for a first time conviction of an offense listed in paragraph (a)(l), the
sentencing judge shall impose the mandatory minimum term of imprisonment provided by
subsection (a), unless the judge finds substantial and compelling reasons, following a review of
mitigating circumstances, to impose a departure. If the sentencing judge departs from such
mandatory minimum term of imprisonment, the judge shall state on the record at the time of
sentencing the substantial and compelling reasons for the departure. The departure sentence shall
be the sentence pursuant to the sentencing guidelines act, K.S.A. 21-4701 et seq., and amendments
thereto, and no sentence of a mandatory minimum term of imprisonment shall be imposed
hereunder." (Emphasis added.)

Resolution of this jurisdiction issue also requires statutory interpretation. Interpretation
of statutes is a question of law over which this court has unlimited review. State v. Storey, 286
Kan. 7, 9-10, 179 P.3d 1137 (2008). When the language of a statute is plain and unambiguous,
we cannot read into the statute language not readily found there. Steffes v. City of Lawrence, 284
Kan. 380, Syl. ¶ 2, 160 P.3d 843 (2007). Accordingly, we must reject the State's jurisdiction
argument because subsection (d) clearly provides that if the sentencing court finds substantial
and compelling reasons to depart, "[t]he departure sentence shall be the sentence pursuant to the
sentencing guidelines act, K.S.A. 21-4701 et seq." (Emphasis added.) As a result, what Ballard
received was not a presumptive sentence—even if his is identical to a presumptive sentence for
someone with his criminal history committing a level 3 person felony. Instead, he received a
departure sentence: a downward durational departure of 55 months from the life sentence
provided for in K.S.A. 2006 Supp. 21-4643(a)(1). And departure sentences clearly are subject to
appeal by the defendant. K.S.A. 21-4721(a).

As for the State's citation to Ortega-Cadelan, that decision actually cuts somewhat in
favor of Ballard. There, defendant pled guilty to statutory rape as defined in K.S.A. 21-
3502(a)(2). He was sentenced under Jessica's law, K.S.A. 2006 Supp. 21-4643(a)(1), to a
mandatory life sentence without the possibility of parole for 25 years. He appealed his sentence,
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arguing the district court wrongly denied his motion for a downward durational departure to the
grid block sentence corresponding to the severity level of his crime and his criminal history
score. Like the instant case, the State argued lack of appellate court jurisdiction. Specifically, it
argued that the mandatory life sentence imposed under Jessica's Law was presumptive and
therefore could not be appealed.

We rejected that argument. As the State in the instant case points out, we stated that
defendant's sentence was not presumptive because presumptive sentences must be issued
pursuant to a number in a grid block, citing K.S.A. 21-4703(q). What the State does not
presently point out, however, is the additional basis for our holding: the sentence was not
presumptive because the crime to which he pled guilty—statutory rape—was an off-grid crime.
See, e.g., K.S.A. 2006 Supp. 21-4706(d) (statutory rape was an "off-grid crime for the purposes
of sentencing"). Similarly, the crime to which Ballard pled no contest, aggravated indecent
liberties with a child, is an off-grid crime. See K.S.A. 2006 Supp. 21-4643(a)(1)(C); K.S.A.
2006 Supp. 21-4706(d). In fact, we have rejected the identical Ortega-Cadelan jurisdiction
argument made by the State where defendant was convicted and sentenced under Jessica's Law
for aggravated indecent liberties with a child. See State v. Thomas, 288 Kan. 157, 163, 199 P.3d
1265 (2009). We clearly have jurisdiction over off-grid crimes. See K.S.A. 22-3601(b)(1)
(jurisdiction to review convictions of off-grid crimes committed on or after July 1, 1993).

Now that we have established appellate jurisdiction for this sentencing issue, we turn to
Ballard's argument that the district court abused its discretion in denying his motion for departure
to probation. Ortega-Cadelan provides additional guidance. Its defendant, similar to Ballard,
cited several mitigating circumstances, including his lack of prior felony convictions and the sex
offender evaluator's conclusion that he was a good candidate for sex offender treatment. Ortega-
Cadelan, 287 Kan. at 162. The district court denied his request, finding, among other things, that
his lack of criminal history was outweighed by "'the extent of the crime and the impact of the
crime upon a 5-year-old girl.'" 287 Kan. at 163. As in the instant case, the court also recognized
that the defendant admitted responsibility, but did not find that to be a substantial and compelling
reason to depart.

9

On review, we noted that "in considering other sentencing departure provisions, this court
has reviewed a district court's weighing of aggravating and mitigating circumstances for abuse of
discretion," and concluded that the same standard should apply in this context. 287 Kan. at 165.
We concluded that the sentencing court had considered all of Ortega-Cadelan's arguments,
acknowledged the mitigating circumstances, and explained why it chose to reject his request for
a downward departure. 287 Kan. at 165. We held that because "[r]easonable people could agree
with the district court's assessment of whether the mitigating circumstances were substantial and
compelling," the district court did not abuse its discretion in denying the departure. 287 Kan. at
165-66.

In Thomas, as in the instant case, the defendant pled no contest to aggravated indecent
liberties with a child under the age of 14. After receiving a hard 25 sentence under Jessica's
Law, he challenged the court's refusal to grant not only a downward durational departure, but
also, as here, a dispositional departure to probation. While the district court did not specifically
reference any mitigating factors, it found that "a departure sentence would be 'insufficient' in this
case, despite the fact that Thomas had presented some grounds for departure." Thomas, 288
Kan. at 163. Even though the district court did not outline its findings, this court held that "the
court implicitly found that none of the reasons asserted by Thomas were substantial and
compelling reasons to depart from the mandatory minimum sentence." 288 Kan. at 163. We
again stated that we would "apply a broad abuse of discretion standard because this issue
involves the district court's consideration and weighing of mitigating circumstances." 288 Kan.
at 164. We concluded that the district court did not abuse its discretion in denying Thomas'
motion for a downward durational departure or, like here, dispositional departure sentence under
K.S.A. 2006 Supp. 21-4643(d). Thomas, 288 Kan. at 164.

One week later, in Gracey, 288 Kan. 252, this court elaborated on some of these
sentencing principles in Jessica's Law cases. We observed that K.S.A. 2006 Supp. 21-4643(d)
provides that in the presence of substantial and compelling reasons, the district court may impose
a sentence pursuant to the sentencing guidelines. And "[o]nce sentencing has shifted to the
sentencing guidelines, nothing precludes the district court from granting a departure, either
dispositional or durational. The decision whether to depart lies within the discretion of the
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sentencing court. See Ortega-Cadelan, 287 Kan. [157, 165, 194 P.3d 1195]." Gracey, 288 Kan.
at 260. The magnitude of the departure is similarly within the court's discretion. Cf. State v.
Fadela, 259 Kan. 215, 244, 911 P.2d 792 (1996) (upholding durational and dispositional
departure sentence for conviction of attempted second-degree murder because no abuse of
discretion).

Here, the district court outlined the mitigating factors that Ballard presented, i.e., no
felony criminal history; A.T. and her mother agreed they wanted him to get probation and
treatment for his alcohol addiction, which they believed was the underlying problem; a
psychologist testified that the "likelihood of his reoffending is at the lowest range" and also
concluded that Ballard was not a pedophile or sexual predator. However, exercising its
discretion, the court refused to grant a downward dispositional departure.

We hold that when considering departures, sentencing courts do not simply add together
the total number of mitigating circumstances and then contrast them with the total number of
aggravating circumstances. Cf. State v. Sharp, 289 Kan. 72, 81, 210 P.3d 590 (2009) (in
reviewing confession for voluntariness, we do not "form our conclusion by simply listing this
one factor as possibly favoring involuntariness and enumerating all those other factors possibly
favoring voluntariness"); State v. Thompson, 284 Kan. 763, 804, 166 P.3d 1015 (2007) (in
considering totality of circumstances to determine whether a consent to search is voluntary, "we
do not expect courts to merely count the number of factors weighing on one side of the
determination or the other.").

We conclude that reasonable minds could agree with Ballard's sentencing court's
determination that the mitigating circumstances were not substantial and compelling to justify a
departure to probation. See Ortega-Cadelan, 287 Kan. at 165-66. More specifically, we
conclude that a departure from a "term of imprisonment for life with a mandatory minimum term
of imprisonment of not less than 25 years" (K.S.A. 21-4643[a][1]) to 55 months' imprisonment—
instead of a greater downward departure to probation—is reasonable. Therefore, the district
court did not abuse its discretion in denying Ballard's request.

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It should also be noted that, in 2008, the legislature amended K.S.A. 21-4719(a), the
statute on departure sentences, to prohibit a downward dispositional departure for any defendant
convicted of a crime of extreme sexual violence, which includes aggravated indecent liberties.
See K.S.A. 2008 Supp. 21-4719(a); Gracey, 288 Kan. at 260. However, this amendment became
effective July 1, 2008, and does not apply to Ballard, who committed his crime in 2007.

Issue 2: The district court did not err in changing Ballard's originally imposed postrelease
supervision period from 36 months to lifetime supervision.

Ballard next argues that the district court erred in changing his originally imposed period
of postrelease supervision from 36 months to lifetime supervision. He essentially claims that
because the court imposed a legal sentence at the initial proceeding, it did not have authority to
increase that sentence 2 weeks later.

The State responds that the district court could amend the postrelease term because the
court continued the sentencing proceeding. In the alternative, it argues that the court properly
corrected an earlier-imposed, illegal sentence.

This issue requires statutory interpretation, which is a question of law over which this
court has unlimited review. Storey, 286 Kan. at 9-10.

We begin our analysis by observing that courts generally do not have jurisdiction to
increase legally imposed sentences. See State v. Miller, 260 Kan. 892, 900, 926 P.2d 652 (1996)
(when a lawful sentence has been imposed, "the sentencing court has no jurisdiction to modify
that sentence except to correct 'arithmetic or clerical errors'"). However, an illegal sentence can
be corrected at any time. K.S.A. 22-3504; see State v. Breedlove, 285 Kan. 1006, 1009, 179 P.3d
1115 (2008). An illegal sentence under K.S.A. 22-3504(1) is a "'sentence imposed by a court
without jurisdiction; a sentence which does not conform to the statutory provision, either in the
character or the term of the punishment authorized; or a sentence which is ambiguous with
respect to the time and manner in which it is to be served.'" (Emphasis added.) Trotter v. State,
288 Kan. 112, 126, 200 P.3d 1236 (2009) (quoting State v. Edwards, 281 Kan. 1334, 1336, 135
P.3d 1251 [2006]).
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Ballard argues that 36 months' postrelease supervision was a legal sentence because it is
the term expressly provided by the sentencing guidelines, and that he was given a guidelines
sentence. He particularly points to K.S.A. 2006 Supp. 21-4643(d), which he contends governs
sentences imposed when the district court makes downward departure findings in Jessica's Law
cases. It provides that the "departure sentence shall be the sentence pursuant to the [KSGA]."
Ballard reasons that this language takes him to the KSGA, particularly K.S.A. 2006 Supp. 22-
3717(d)(1), which provides in relevant part:

"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:

"(A) Except as provided in subparagraphs (D) and (E), persons sentenced for nondrug
severity level 1 through 4 crimes and drug severity levels 1 and 2 crimes must serve 36 months,
plus the amount of good time earned and retained pursuant to K.S.A. 21-4722, and amendments
thereto, on postrelease supervision."


Ballard points to subsection (A), reasoning that his sentence of 55 months was a sentence
for a nondrug severity level 3 crime, and concludes that per this subsection, he must serve 36
months of postrelease supervision. He readily concedes that K.S.A. 2006 Supp. 22-
3717(d)(1)(G) mandates lifetime postrelease supervision for sexually violent crimes, and further
concedes that his offense, aggravated indecent liberties with a child, is such a crime. See K.S.A.
2006 Supp. 22-3717(d)(2)(C). Subsection (d)(1)(G) provides:

"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 released to a mandatory period of
postrelease supervision for the duration of the person's natural life."

Ballard argues that either 22-3717(d)(1)(A) or 22-3717(d)(1)(G) could apply. As a result,
a postrelease term under either statute would be legal. He contends that because the 36 months
13

of postrelease supervision was part of the sentence initially imposed, and it was legal, that
sentence cannot be changed to a later, also legal, sentence of lifetime supervision.

We reject Ballard's analytical approach because he is caught by two exceptions to the
general rule of 22-3717(d)(1)(A). First, he was not "sentenced for" a nondrug severity level 1
through 4 crime. Rather, he was sentenced for an off-grid crime. K.S.A. 21-3504(c); K.S.A.
2006 Supp. 21-4706(d) (when a defendant convicted under K.S.A. 21-3504 is 18 years of age or
older and the victim is under 14 years of age, "such violations are off-grid crimes for the
purposes of sentencing"). The fact that Ballard was granted a departure and received a grid
sentence does not change the nature of his offense from an off-grid to a grid crime. Indeed, his
filing of his appeal directly with this court, and not the Court of Appeals, tacitly admits this
point. See K.S.A. 22-3601(b)(1) (appeal shall be taken directly to Supreme Court when
maximum sentence of life imprisonment has been imposed or where defendant has been
convicted of an off-grid crime). Accordingly, 22-3717(d)(1)(A) simply does not apply to
Ballard.

Second, by Ballard's own admission, 22-3717(d)(1)(G) clearly does apply to him.
Consistent with that statute, he was "convicted of a sexually violent crime committed on or about
after July 1, 2006." See K.S.A. 22-3209(2); State v. Holmes, 222 Kan. 212, Syl. ¶ 1, 563 P.2d
480 (1977) (when court accepts a tendered plea of nolo contendere and adjudges a finding of
guilt thereon, the defendant at that point stands convicted of the offense). Therefore, pursuant to
subsection (G), he is subject to mandatory lifetime postrelease supervision.

Because Ballard's initial sentence of 36 months' postrelease supervision was based on the
wrong statute, 22-3717(d)(1)(A), the district court had jurisdiction to correct the illegal sentence
and impose the legal one under 22-3717(d)(1)(G). See K.S.A. 21-4704(e)(2); State v. Gaudina,
284 Kan. 354, 358, 160 P.3d 854 (2007) (postrelease supervision is included as part of a
complete sentence). As such, the district court did not err in imposing lifetime postrelease
supervision.

14

As a result of our decision, we need not consider the State's alternative argument
regarding the continuance of the sentencing proceeding.

Issue 3: The district court erred in finding Ballard ineligible for good time credit.

Ballard finally argues that the district court erred in finding him ineligible for good time
credit. Specifically, he claims the court erred in applying K.S.A. 2006 Supp. 22-3717(b)(5)
instead of applying the good time credit specified by the sentencing guidelines in K.S.A. 21-
4722. Because this issue involves statutory interpretation, this court's review is unlimited.
Storey, 286 Kan. at 9-10.

The statute relied upon by the district court, 22-3717(b)(5), states: "An inmate sentenced
to imprisonment pursuant to K.S.A. 2006 Supp. 21-4643, and amendments thereto, committed on
or after July 1, 2006, shall be eligible for parole after serving the mandatory term of
imprisonment without deduction of any good time credits." (Emphasis added.) Ballard again
argues that he was not sentenced pursuant to 21-4643; instead, he was sentenced pursuant to the
KSGA. He bases this argument upon the language of 2l-4643(d) which, as mentioned earlier,
states in relevant part:

"If the sentencing judge departs from such mandatory minimum term of imprisonment, the judge
shall state on the record at the time of sentencing the substantial and compelling reasons for the
departure. The departure sentence shall be the sentence pursuant to the sentencing guidelines act,
K.S.A. 21-4701 et seq., and amendments thereto, and no sentence of a mandatory minimum term
of imprisonment shall be imposed hereunder." (Emphasis added.)

Part of the KSGA, i.e., K.S.A. 2006 Supp. 21-4722(a), explains that a system of good
time credit shall be developed allowing inmates to receive good time credit, limited to 15 percent
of the prison part of the sentence. The statute further explains that good time credits are to be
subtracted from the prison part of the sentence and added to the inmate's postrelease supervision
obligation. K.S.A. 2006 Supp. 21-4722(b). It also gives the Secretary of Corrections authority to
adopt rules and regulations to calculate and implement good time credits. K.S.A. 2006 Supp. 2l-
4722(c).

15

We agree with Ballard that 22-3717(b)(5) is not applicable to him. The statutory
language addresses parole eligibility for offenders who are sentenced to imprisonment pursuant
to 21-4643. The term "parole" generally means "the release of a prisoner to the community by
the Kansas parole board prior to the expiration of such prisoner's term." K.S.A. 2l-4602(d).
Thus, "parole" is a term of art that is limited to off-grid crimes, i.e., usually those receiving
indeterminate sentences. Cf. Thomas, 288 Kan. at 159 (under K.S.A. 2006 Supp. 21-
4643(a)(1)(C), district court ordered postrelease supervision for life if Thomas would be paroled
from his mandatory life sentence without possibility of parole for 25 years). By contrast, the
term "postrelease supervision" generally means "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). This term has
traditionally been applied to only grid crimes.

Accordingly, the legislature's use of the term "parole" in 22-3717(b)(5) strongly suggests
that the undeparted-from sentence of life imprisonment—pursuant to 2l-4643(a)—is the sentence
to which 22-3717(b)(5) refers. As a result, subsection (b)(5) does not apply when an offender
receives a departure sentence from Jessica's Law, i.e., a determinate sentence pursuant to 21-
4643(d).

Here, Ballard received a departure sentence from Jessica's Law: a determinate sentence
pursuant to the guidelines of 55 months' imprisonment. Consequently, when Ballard completes
his prison sentence, he will be placed on postrelease supervision, not parole. Stated another way,
he will not serve an indeterminate sentence and then be subject to parole, as he would have been
if sentenced to life imprisonment pursuant to 21-4643(a). Because the provisions of 22-
3717(b)(5) simply do not apply to Ballard, they cannot serve as the basis for denying him
eligibility for good time credit.

The State does not point to any other authority which purports to specifically prohibit
Ballard from receiving good time credit. It does argue, however, that he cannot receive good
time credit if he is given lifetime postrelease supervision. The State points out that 21-4722
16

directs that good time credit be subtracted from the prison part of the sentence and added to the
inmate's postrelease supervision obligation. It reasons that an inmate receiving lifetime
postrelease could not earn good time credit because one cannot add time to supervision which is
already for life.

Nevertheless, there is no specific statutory provision prohibiting Ballard from receiving
good time credits. Thus, the general rule in 21-4722 applies, and he is eligible to earn good time
credits of up to 15 percent of his prison sentence. In any event, while adding earned good time
credits to Ballard's mandatory lifetime of postrelease supervision does not realistically affect that
supervisory period, it does potentially affect the amount of time actually spent in prison. Ballard
will be able to earn good time credit and potentially be released before his 55-month prison
sentence would have been fully served. Thus, we reject the State's apparent position that Ballard
is getting "something for nothing."

Affirmed in part, reversed in part, and remanded for resentencing to include Ballard's
eligibility to earn good time credit.