State v. Cash

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NOT DESIGNATED FOR PUBLICATION

No. 116,560

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

CHRISTOPHER DEAN CASH,
Appellant.


MEMORANDUM OPINION

Appeal from Cowley District Court; NICHOLAS M. ST. PETER, judge. Opinion filed June 9, 2017.
Affirmed.

Randall L. Hodgkinson, of Kansas Appellate Defender Office, for appellant.

Larry R. Schwartz, county attorney, and Derek Schmidt, attorney general, for appellee.

Before ARNOLD-BURGER, C.J., HILL, J., and HEBERT, S.J.

Per Curiam: Christopher Dean Cash pled guilty to one count of aggravated sexual
battery and was sentenced to 36 months in prison and 24 months' postrelease supervision,
which the district court suspended so that Cash could serve the time on probation. Cash
violated the terms of his probation, causing the district court to revoke his probation and
order him to serve his underlying sentence, including the 24 months' postrelease
supervision. Shortly thereafter, the State filed a motion to correct an illegal sentence
seeking modification of the term of postrelease supervision from 24 months to life. The
district court granted the motion. Cash now appeals. Because we find that Cash's sentence
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was illegal from the beginning, we affirm the district court's modification of his sentence
from 24 months' postrelease supervision to lifetime postrelease supervision.

FACTUAL AND PROCEDURAL HISTORY

In 2012, Cash pled guilty to one count of aggravated sexual battery. The district
court sentenced him to 36 months in prison with 24 months' postrelease supervision. The
district court then suspended the prison sentence and ordered probation. In 2015, after
first imposing graduated sanctions, the district court revoked Cash's probation and
ordered him to serve his underlying sentence including the 24 months' postrelease
supervision.

Several months later, the State filed a motion to correct an illegal sentence,
arguing that Cash should have been subject to lifetime postrelease supervision. The
district court granted the motion. Cash now appeals.

ANALYSIS

Cash argues that the district court erred when it granted the State's motion to
correct an illegal sentence and modified his term of postrelease supervision from 24
months to life. Whether a sentence is illegal is a question of law over which this court has
unlimited review. State v. Moncla, 301 Kan. 549, 551, 343 P.3d 1161 (2015). To the
extent that Cash's appeal requires this court to engage in statutory interpretation, such
review is also unlimited. See State v. Morningstar, 299 Kan. 1236, 1246, 329 P.3d 1093
(2014).

Cash makes two alternative arguments. First, he points to K.S.A. 2013 Supp. 22-
3716(c)(1)(E), which says that when an offender's probation is revoked, district courts
may order the offender to serve his or her original sentence or any lesser sentence as the
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court sees fit. Relying on State v. McKnight, 292 Kan. 776, 257 P.3d 339 (2011), Cash
argues that the power of a district court to shorten a sentence upon revocation of an
offender's probation includes the ability to reduce the period of postrelease supervision to
which the offender is subject.

In McKnight, the defendant was sentenced to 30 months in prison with 24 months'
postrelease supervision, but the district court suspended the sentence and placed him on
probation. McKnight violated the terms of his probation, leading the district court to
revoke his probation and impose a modified sentence of 22 months in prison. At the
revocation hearing, the district court considered whether it could also order McKnight to
serve a period of postrelease supervision, but it ultimately decided that it could not
because McKnight's probation was being revoked for a technical violation. Several
months later, the State filed a motion to correct an illegal sentence in which it argued that
postrelease supervision should have been ordered. The district court granted the motion,
and McKnight appealed.

On appeal, the Kansas Supreme Court determined that the district court erred
when it granted the motion to correct an illegal sentence and reinstated postrelease
supervision because the sentence the district court imposed at the revocation hearing was
a legal sentence. 292 Kan. at 783. "Once a legal sentence is pronounced from the bench,
the trial court does not have jurisdiction to modify the sentence." 292 Kan. at 779.

Our Supreme Court reasoned:

"In cases where a sentence was announced, but probation was granted, [upon
revocation] the court 'may require that [the] defendant serve the sentence imposed, or any
lesser sentence.' The phrase 'any lesser sentence' is not defined, and the 'lesser sentence' is
not limited to that which might have been imposed at sentencing. A plain reading of
K.S.A. 22-3716(b) [now codified at K.S.A. 2016 Supp. 22-3716(c)(1)(E)] gives the trial
court the authority to impose any sentence less than that originally imposed. Such a
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'lesser sentence' might be a shorter prison sentence, a shorter term of postrelease
supervision, or any combination thereof." 292 Kan. at 782.

In recent cases, this court has limited McKnight's holding. See State v. Reed, 50
Kan. App. 2d 1133, 1135-36, 336 P.3d 912 (2014), rev. denied 302 Kan. 1019 (2015);
State v. Dodd, No. 114,993, 2016 WL 6662284, at *3 (Kan. App. 2016) (unpublished
opinion), petition for rev. filed December 12, 2016; State v. Rodriguez, No. 114,991,
2016 WL 7031959, at *3 (Kan. App. 2016) (unpublished opinion), petition for rev. filed
December 13, 2016; State v. Roth, No. 113,753, 2016 WL 3659800, at *3 (Kan. App.
2016) (unpublished opinion), petition for rev. filed August 8, 2016; State v. Sandoval,
No. 113,299, 2016 WL 687737, at *2 (Kan. App. 2016) (unpublished opinion), rev.
granted 306 Kan. ___ (April 20, 2017); State v. Lobmeyer, No. 110,209, 2014 WL
3907097, at *3 (Kan. App. 2014) (unpublished opinion), rev. denied 302 Kan. 1017
(2015).

Reed, like Cash, was convicted of a sexually violent offense, sentenced to 18
months in prison with 24 months' postrelease supervision, and had her sentence
suspended so that she could be placed on probation. Reed violated the terms of her
probation and the district court held a hearing on a motion to revoke probation. At the
hearing, the district court revoked Reed's probation and imposed her original sentence,
including the 24 months' postrelease supervision. Shortly thereafter, the State filed a
motion to correct an illegal sentence, arguing that Reed should have been subject to
lifetime postrelease supervision. Reed appealed, arguing that under McKnight the district
court had the power to impose a shorter period of postrelease than would have been
statutorily permissible at her original sentencing so that it was error for the district court
to find that the sentence was illegal.

This court disagreed with Reed and upheld the modified sentence. 50 Kan. App.
2d at 1136-37. The court distinguished Reed's case from McKnight on the basis that the
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district court did not order a lesser sentence at the probation revocation hearing as the
court in McKnight did, but rather it ordered her to serve her original sentence. 50 Kan.
App. 2d at 1136-37. As a result, the district court concluded that K.S.A. 2011 Supp. 22-
3716(b) and McKnight's interpretation of it did not apply. 50 Kan. App. 2d at 1136-37.

The same is true here. At the sentencing hearing held in conjunction with Cash's
probation revocation hearing, the district court concluded: "In terms of post-release, I do
believe, because of his initial sentence, that he's required to serve post-release as part of
his—as part of his—his original post-release period is 24 months. So that's applicable as
well." Because the district court did not impose a lesser sentence but rather ordered Cash
to serve his original sentence, this case falls outside the scope of K.S.A. 2016 Supp. 22-
3716(c)(1)(E) and McKnight. We reject the notion that a district court may impose a
lesser sentence by mere omission. Unlike the district court in McKnight, the district court
expressed no intent to modify the original sentence imposed. The illegality of Cash's
original sentence was not cured by the probation revocation.

Cash next argues that recent amendments to K.S.A. 22-3717, which apply
retroactively, create a conflict between K.S.A. 2015 Supp. 22-3717(d)(1)(D) and
(d)(1)(G). Cash contends that as a result of the conflict, district courts now have
discretion to impose either 24 months (or other term corresponding to the severity of the
crime as set out in K.S.A. 2015 Supp. 22-3717[d][1][A]-[C]) or lifetime postrelease
supervision on offenders who commit sexually violent crimes. Because either sentence is
legal, Cash maintains that his original 24-month postrelease supervision sentence
conformed to the statute at the time the motion to correct it was filed so that the district
court lacked jurisdiction to modify the sentence.

Cash recognizes that this court addressed this exact argument in State v.
Herrmann, 53 Kan. App. 2d 147, 384 P.3d 1019 (2016), petition for rev. filed December
19, 2016, but he urges this panel to reject the reasoning of Herrmann, noting that "one
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panel of this Court is not bound by decisions made by other panels." While Cash is right,
one panel of this court may choose to disregard an opinion reached by another, there is a
growing consensus amongst the members of the Court of Appeals that Herrmann was
correctly decided. See State v. Combs, No. 115,638, 2017 WL 1296312, at *6 (Kan. App.
2017) (unpublished opinion), petition for rev. filed May 8, 2017; State v. Kilgore, No.
115,010, 2017 WL 748597, at *2 (Kan. App. 2017) (unpublished opinion), petition for
rev. filed March 20, 2017; State v. Kness, No. 115,480, 2017 WL 1295994, at *2 (Kan.
App. 2017) (unpublished opinion), petition for rev. filed May 8, 2017; State v. Rose, No.
115,490, 2017 WL 383877, at *3 (Kan. App. 2017) (unpublished opinion), petition for
rev. filed February 27, 2017;State v. Younkman, No. 115,606, 2017 WL 1035473, at *3
(Kan. App. 2017) (unpublished opinion), petition for rev. filed March 30, 2017.

Herrmann made the same argument Cash now makes, that the 2013 amendment to
K.S.A. 22-3717 gave district courts an option to choose between sentencing offenders
convicted of sexually violent crimes either in accordance with other grid sentences or to
lifetime postrelease supervision. Interpreting K.S.A. 2015 Supp. 22-3717, this court
concluded:

"[T]he 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).'" 53 Kan. App. 2d at
152.

The court went on to explain:

"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
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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." 53 Kan. App. 2d at 153.

As the panels before us, we too find this interpretation of the statute persuasive.
Cash committed the sexually violent offense in January 2012. At that time, K.S.A. 2011
Supp. 22-3717(d)(1) read: "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." Subparagraph (G)
instructed that offenders convicted of a "sexually violent crime" that was committed after
July 1, 2006, should receive lifetime postrelease supervision. K.S.A. 2011 Supp. 22-
3717(d)(1)(G). The statute goes on to define "sexually violent crime" by listing various
offenses including aggravated sexual battery. K.S.A. 2011 Supp. 22-3717(d)(1)(G)(2)(I).

Based on the statute that was in effect at the time Cash was sentenced, his sentence
of 24 months' postrelease supervision was illegal from the start. Neither the 2013 nor the
2015 amendments to the statute changed it so that Cash's sentence was ever legal.
Accordingly, the district court's decision to grant the State's motion and resentence Cash
to lifetime postrelease supervision is affirmed.

Affirmed.