State v. Mason

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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 105,535

STATE OF KANSAS,
Appellee,

v.

LAWRENCE MASON, JR.,
Appellant.


SYLLABUS BY THE COURT

1.
Lifetime parole imposed pursuant to K.S.A. 22-3717(u) is not in conflict with the
mandatory term of lifetime postrelease supervision described in K.S.A. 22-3717(d)(1)
because K.S.A. 22-3717(d)(1)(G) specifically exempts the provisions in K.S.A. 22-
3717(u).

2.
Our standard of review on the denial of a sentencing departure from Jessica's Law,
K.S.A. 21-4643, is abuse of discretion.

Appeal from Shawnee District Court; RICHARD D. ANDERSON, judge. Opinion filed July 6, 2012.
Sentence affirmed and case remanded with directions.

Joanna Labastida, of Kansas Appellate Defender Office, was on the brief for appellant.

Natalie Chalmers, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek
Schmidt, attorney general, were on the brief for appellee.

The opinion of the court was delivered by
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ROSEN, J.: Lawrence Mason, Jr., pleaded guilty to one count of rape of a child less
than 14 years old and one count of aggravated criminal sodomy of a child less than 14
years old. He was sentenced to life imprisonment without possibility of parole for 592
months based on his criminal history score. He appeals his sentence.

FACTUAL BACKGROUND

On October 2, 2009, Mason pleaded guilty to one count of rape of a child less than
14 years old and one count of aggravated criminal sodomy of a child less than 14 years
old. The victim was his adopted daughter, who was 12 years old at the time of the
offense. Mason filed a motion for departure.

At sentencing, the district court heard statements from several of Mason's family
members and family friends, expressing their support for Mason, their respect for his
good character, and their continued belief that he was innocent. Mason made a statement,
and his attorney presented argument in favor of departure from life sentences with
lengthy mandatory minimums under Jessica's Law. The State presented testimony from
the victim's therapist, who said the victim had been in a residential mental health facility
for over a year and was making little to no progress as a result of trauma from the sexual
abuse.

The district court found that Mason failed to demonstrate any substantial and
compelling reasons for a departure. Mason was sentenced to life imprisonment, without
eligibility for parole for 592 months, for rape of a child under the age of 14. Mason was
also given a concurrent life sentence, without parole eligibility for 25 years, for
aggravated criminal sodomy of a child under 14 years of age. The district court informed
Mason that he would be required to register as a sex offender for his lifetime following
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his release. In addition to the sentence imposed from the bench, the journal entry of
sentencing included that Mason is subject to lifetime postrelease supervision and lifetime
electronic monitoring.

LIFETIME POSTRELEASE SUPERVISION AND LIFETIME ELECTRONIC MONITORING

Mason argues that his convictions carried conflicting penalties―lifetime
postrelease supervision without electronic monitoring under K.S.A. 22-3717(d)(1)(G)
and lifetime parole with electronic monitoring under K.S.A. 22-3717(u). As his first
issue, Mason argues he should have been sentenced to lifetime parole rather than lifetime
postrelease supervision. In the alternative, Mason argues that if lifetime postrelease
supervision was appropriate, electronic monitoring was in error. The State responds that
Mason was properly sentenced by the court at the sentencing hearing, but the journal
entry is erroneous and should be corrected with a nunc pro tunc order.

Standard of Review

Statutory interpretation raises a question of law over which this court has
unlimited review. State v. Jolly, 291 Kan. 842, 845-46, 249 P.3d 421 (2011).

Analysis

Mason was sentenced to life imprisonment without possibility of parole for 592
months, based on his criminal history score, under K.S.A. 21-4643(a)(2)(B). His parole
supervision following his release from prison is governed by K.S.A. 22-3717(u), which is
a specific exception to K.S.A. 22-3717(d)(1)(G). There is no conflict between these
provisions because K.S.A. 22-3717(d)(1)(G) begins with the phrase "[e]xcept as provided
in subsection (u)."

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This court recently stated that "a sentencing court has no authority to order a term
of [lifetime] postrelease supervision in conjunction with an off-grid indeterminate life
sentence." State v. Cash, 293 Kan. 326, Syl. ¶ 2, 263 P.3d 786 (2011). Although lifetime
electronic monitoring is mandated by K.S.A. 22-3717(u), the sentencing court does not
have the authority to impose parole conditions. Jolly, 291 Kan. at 848. The sentence
reflected in the journal entry is erroneous; however, there is no similar problem with the
sentence pronounced from the bench.

"A criminal sentence is effective upon pronouncement from the bench; it does not
derive its effectiveness from the journal entry. A journal entry that imposes a sentence at
variance with that pronounced from the bench is erroneous and must be corrected to
reflect the actual sentence imposed." Abasolo v. State, 284 Kan. 299, Syl. ¶ 3, 160 P.3d
471 (2007). The journal entry of sentencing can be corrected by a nunc pro tunc order so
that it reflects the actual sentence pronounced from the bench, which was a legal
sentence. See K.S.A. 22-3504(2). We affirm the sentence imposed from the bench and
remand this case to the district court with directions to issue a nunc pro tunc order
correcting that portion of the journal entry that included lifetime postrelease supervision
and lifetime electronic monitoring.

DEPARTURE

Mason filed a motion for departure from the mandatory sentencing provisions
provided in K.S.A. 21-4643, Jessica's Law. Mason argues that the district court erred in
denying his motion for departure, providing the following mitigating factors: (1) the
length of time since his previous convictions, (2) his work history, (3) his family support,
(4) the fact that he had taken responsibility for his actions, and (5) the fact that he would
be subject to registration and supervision for the rest of his life. The State argues that
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Mason's prior conviction for a sex offense and the serious emotional trauma inflicted on
the victim supported the district court's decision to deny the departure.

Standard of Review

"Our standard of review on the denial of a sentencing departure is abuse of
discretion." State v. Seward, 289 Kan. 715, 721, 217 P.3d 443 (2009).

"Judicial discretion is abused if judicial action (1) is arbitrary, fanciful, or unreasonable,
i.e., if no reasonable person would have taken the view adopted by the trial court; (2) is
based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion;
or (3) is based on an error of fact, i.e., if substantial competent evidence does not support
a factual finding on which a prerequisite conclusion of law or the exercise of discretion is
based. [Citation omitted.]" State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert.
denied 132 S. Ct. 1594 (2012).

Analysis

The district judge did not engage in a lengthy consideration of the mitigating and
aggravating factors presented at sentencing, saying only:

"I have considered carefully your request for a departure, and I am in agreement with the
State's position that you have not demonstrated any substantial and compelling reason for
a departure in these circumstances. The crime committed is one of the most serious
crimes under Kansas law, and you have admitted your responsibility for the crime, which
has caused a serious amount and great damage to the victim. For those reasons, I find that
you have not established a substantial and compelling reason for a departure."

Mason does not articulate the manner in which the district court allegedly abused
its discretion. Despite the district court's short, on-the-record explanation of the departure
denial, the district court had sufficient evidence to consider the factors with bearing on it.
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Mason had a prior conviction for attempted indecent liberties with a child from 1973.
Mason admitted committing these acts. DNA testing done by the KBI linked Mason to
the victim's vaginal swab and rectal swab. Independent testing done on Mason's behalf
confirmed the rectal swab. While Mason had significant family support, none of these
family members believed Mason was capable of committing the acts he pleaded guilty to
committing. The family had been unwilling to participate in family counseling with the
victim.

The victim was initially placed in a residential mental health facility for 90 days.
The victim's therapist reported that the victim had been in the facility for over a year, but
the victim had failed to make progress or show any stability. The therapist reported that
even though the victim had other traumatic instances in her life, the sexual abuse was a
significant factor in her current situation. The therapist reported that the victim had
flashbacks of the sexual abuse that caused her to become violent and aggressive. The
victim was unable to attend the hearing because her therapist believed she was not yet
stable enough to appear in court.

Based on the evidence presented, Mason has not met his burden that the denial of
the departure from the Jessica's Law sentence was not an abuse of discretion in this case.

Sentence affirmed. Because the journal entry erroneously included lifetime
postrelease supervison and lifetime electronic monitoring, we remand this case with
directions to the district court to issue a nunc pro tunc order to correct that portion of the
sentence in the journal entry.