State v. Eastman

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NOT DESIGNATED FOR PUBLICATION

No. 113,568

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

RICHARD E. EASTMAN,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; TERRY L. PULLMAN, judge. Opinion on remand filed
January 18, 2019. Affirmed.

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

Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before MALONE, P.J., PIERRON and BRUNS, JJ.

PER CURIAM: Richard E. Eastman appeals the district court's order imposing
lifetime postrelease supervision following his conviction of aggravated indecent
solicitation of a child. The district court originally sentenced Eastman to 24 months'
postrelease supervision, but the district court corrected the sentence and imposed lifetime
postrelease supervision at Eastman's probation violation hearing after being informed by
the State that this was the appropriate term under the statute. Our court affirmed the
district court's judgment in an opinion filed September 8, 2017. State v. Eastman, No.
113,568, 2017 WL 3947376 (Kan. App. 2017) (unpublished opinion).
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Eastman filed a petition for review. On December 17, 2018, the Kansas Supreme
Court filed an order that summarily vacated the portion of our original decision finding
the district court had jurisdiction to correct any illegality in Eastman's sentence at the
probation violation hearing. Our Supreme Court remanded the case to our court for
consideration in light of State v. Roth, 308 Kan. 970, 424 P.3d 529 (2018), and State v.
Sandoval, 308 Kan. 960, 425 P.3d 365 (2018). After considering these recent decisions
and applying them to our facts, we again uphold Eastman's sentence of lifetime
postrelease supervision.

We begin by reciting the facts in our original opinion:

"On August 13, 2011, Eastman pled no contest to one count of aggravated
indecent solicitation of a child, a severity level 5 person felony. In exchange, the State
dismissed one count of aggravated criminal sodomy, an offgrid person felony, and agreed
to community-based treatment if a sex offender evaluation recommended it.
"At sentencing on December 21, 2012, the district court sentenced Eastman to 55
months' imprisonment with 24 months' postrelease supervision, but the district court
granted probation for 36 months to be supervised by community corrections. K.S.A. 2011
Supp. 22-3717(d)(1)(G) required a term of lifetime postrelease supervision for Eastman's
conviction of aggravated indecent solicitation of a child. However, neither party pointed
out to the district court that the sentence it imposed was illegal.
"After a string of violations, the State sought to revoke Eastman's probation. At a
hearing on June 24, 2014, the district court revoked Eastman's probation but reduced the
term of imprisonment from 55 months to 45 months:
'You have had periods of time where you haven't at least gotten
into overt trouble, so I will reduce your sentence under K.S.A. 22-
3716(b) down to 45 months but I will impose a prison sanction at this
point in time.
'This was a presumptive prison case. As such, you will be on
post-release supervision for 24 months.'
"As soon as the district court completed its ruling, the State pointed out that
lifetime postrelease supervision was required by the applicable statute. Defense counsel
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suggested that if the 24-month postrelease supervision term was illegal, the State should
file a separate motion to correct the illegal sentence. However, based on the district
attorney's statements, the district court ordered lifetime postrelease supervision. The
journal entry for the hearing stated that the district court altered the length of postrelease
supervision to correct the illegal sentence imposed at the original sentencing on
December 21, 2012. Eastman timely filed a notice of appeal." 2017 WL 3947376, at *1.

In his original brief to our court, Eastman argued that the district court illegally
modified his sentence by imposing lifetime postrelease supervision. Eastman argued that
even if the postrelease supervision term imposed at the original sentencing was illegal, it
was not illegal at the time of the probation violation hearing because (1) the district court
exercised its statutory authority to impose a lawful lesser sentence upon revoking his
probation, and (2) the 2013 amendments to the sentencing statute applied retroactively to
his case and allowed the district court to impose 24 months' postrelease supervision.

In its initial brief, the State asserted that Eastman's original sentence was illegal
and the district court acted appropriately to correct it. Although the State recognized that
the district court had the authority to impose a lesser sentence upon revoking Eastman's
probation, the State asserted that the district court chose not to exercise that power as to
postrelease supervision. Finally, the State argued that Eastman's postrelease supervision
term was governed by K.S.A. 2011 Supp. 22-3717(d)(1)(G) and later amendments to
K.S.A. 22-3717(d) did not affect Eastman's case.

In our initial decision, we concluded that Eastman's 24-month postrelease
supervision term constituted an illegal sentence that was never lawfully modified, so the
district court had jurisdiction to correct the illegal sentence at the probation violation
hearing. 2017 WL 3947376, at *4. We also concluded that on the date Eastman's crime
was committed, K.S.A. 2011 Supp. 22-3717(d)(1)(G) required a sentence of lifetime
postrelease supervision for a conviction of aggravated indecent solicitation of a child, and
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the 2013 statutory amendments have not altered this result. 2017 WL 3947376, at *5.
Thus, we affirmed the district court's judgment. 2017 WL 3947376, at *5.

After the Supreme Court's remand order, Eastman filed a motion for summary
disposition. In the motion, Eastman argues that we should now summarily reverse the
district court's sentencing order, citing Roth as controlling authority. Eastman again
argues that even though his original postrelease supervision term was illegal, the district
court lawfully modified the sentence at the probation violation hearing and imposed 24
months' postrelease supervision, so that sentence cannot later be changed. Eastman does
not renew his argument about the 2013 amendments to the sentencing statute, and it
appears that issue is beyond the scope of the Supreme Court's remand order.

The State has responded to Eastman's motion for summary disposition and argues
that Eastman's case is factually distinguishable from Roth. The State points out that
although the district court at first reimposed 24 months of postrelease supervision at
Eastman's probation violation hearing, the court immediately corrected itself while the
hearing was still in process and ordered lifetime postrelease supervision.

Resolution of Eastman's claims on appeal involve statutory interpretation.
Interpretation of a sentencing statute is a question of law over which an appellate court
exercises unlimited review. State v. Nguyen, 304 Kan. 420, 422, 372 P.3d 1142 (2016).
Additionally, whether a sentence is illegal is a question of law subject to de novo review.
State v. Lee, 304 Kan. 416, 417, 372 P.3d 415 (2016).

In his initial appeal to our court, Eastman relied on State v. McKnight, 292 Kan.
776, 257 P.3d 339 (2011), to support his claim that lifetime postrelease supervision
constituted an illegal sentence. In that case, the district court originally sentenced
McKnight to 30 months' imprisonment with 24 months' postrelease supervision after he
pled no contest to possession of marijuana with intent to distribute. The district court
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granted McKnight an 18-month probation term but later revoked it due to violations. At
the probation violation hearing, the district court imposed a modified sentence of 22
months' imprisonment; but based on a misunderstanding of the applicable statute, the
court eliminated the period of postrelease supervision. The State subsequently filed a
motion to correct illegal sentence, which the district court granted, reimposing 24 months
of postrelease supervision.

On appeal, McKnight argued that the district court imposed a lawful lesser
sentence when it revoked his probation and because the sentence was effective upon
pronouncement from the bench, the district court lacked jurisdiction to later increase the
postrelease supervision term. Our Supreme Court agreed, reasoning that the district court
imposed a lawful lesser sentence upon revoking McKnight's probation, even though the
lesser postrelease supervision term was based on the district court's mistake. 292 Kan. at
783. Because the lesser sentence was effective upon pronouncement from the bench at
the probation violation hearing, our Supreme Court held that the district court could not
subsequently modify it. 292 Kan. at 783.

In our initial decision, we found that Eastman's reliance on McKnight was
misplaced because the facts in McKnight are distinguishable from the facts herein.
Eastman, 2017 WL 3947376, at *3. We noted that when the district court revoked
Eastman's probation, it reduced his sentence from 55 months' imprisonment to 45
months. Although the district court at first stated that Eastman would be on postrelease
supervision for 24 months consistent with his original illegal sentence, the district court
immediately corrected the sentence, during the same hearing, when the district attorney
pointed out that the applicable statute required lifetime postrelease supervision. 2017 WL
3947376, at *3. This court concluded:

"To sum up, the district court was authorized to impose a lesser sentence upon
revoking Eastman's probation. Had the district court imposed a lesser term of postrelease
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supervision at Eastman's probation violation hearing than it originally imposed at
sentencing, then the district court could not subsequently modify that sentence even if it
imposed the lesser term by mistake. But here, at Eastman's probation violation hearing,
the district court initially ordered Eastman to serve his original illegal sentence of 24
months' postrelease supervision. Upon being informed by the district attorney that the
applicable statute required lifetime postrelease supervision, the district court immediately
corrected itself and ordered lifetime postrelease supervision. Under these circumstances,
it cannot be said that the district court imposed a lawful lesser sentence at the probation
violation hearing, and Eastman is not entitled to any relief under McKnight. Because
Eastman's 24-month postrelease supervision term constituted an illegal sentence and that
sentence was never lawfully modified, the district court had jurisdiction to correct the
illegal sentence at any time. See K.S.A. 22-3504(1); Ballard, 289 Kan. at 1010-12." 2017
WL 3947376, at *4.

As ordered by our Supreme Court, we will now consider our original decision in
light of Sandoval and Roth. In Sandoval, the defendant pled guilty to aggravated indecent
solicitation of a child. The district court sentenced the defendant to 34 months'
imprisonment with 24 months' postrelease supervision and granted probation. The
applicable statute required lifetime postrelease supervision for the defendant's crime of
conviction. The district court later revoked the defendant's probation and ordered him to
serve his original sentence, including the illegal term of postrelease supervision. In doing
so, the district court stated: "'I'm not going to modify sentence for someone who won't
follow the basic terms and conditions of a probation that I give.'" 308 Kan. at 961. The
State later moved to correct the illegal sentence of postrelease supervision, which the
district court granted.

On review, our Supreme Court found that the district court specifically rejected a
sentence modification at the probation violation hearing and reinstated the original illegal
sentence, so the district court could correct the illegal sentence and impose lifetime
postrelease supervision. 308 Kan. at 965. The court held:

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"[A]fter revoking a criminal defendant's probation, a district judge may choose to
sentence anew, even if some component of the original sentence was illegal because it
failed to match a mandatory statutory minimum. In the alternative, a judge may simply
require the defendant to serve the original sentence. If a new sentence is pronounced from
the bench after probation revocation, any original illegality no longer exists, and the new
sentence is not subject to challenge or correction under K.S.A. 22-3504. If the judge
instead requires the defendant to serve the original sentence, any original illegality
continues to exist and is subject to challenge or correction under K.S.A. 22-3504." 308
Kan. at 960.

In Roth, the defendant was convicted of aggravated sexual battery and two counts
of aggravated burglary. The district court imposed a controlling sentence of 102 months'
imprisonment, including 24 months' postrelease supervision, and placed the defendant on
probation. As in Sandoval, the applicable statute required lifetime postrelease
supervision. The district court later revoked the defendant's probation and modified the
sentence by running some counts concurrently instead of consecutively. The district
judge then said he would impose "'the mandated 24-month postrelease supervision
period.'" 308 Kan. at 971. Four years later, the State later moved to correct an illegal
sentence, which the district court granted by imposing lifetime postrelease supervision.

On review, our Supreme Court reversed and remanded with directions for the
district court to impose 24 months' postrelease supervision. 308 Kan. at 972. The Roth
court reasoned that the district court modified the defendant's sentence at the probation
violation hearing and sentenced the defendant anew. In that situation, the 24-month
postrelease supervision term became a lawful sentence that could not later be modified by
the district court. As the court stated: "Although the postrelease term pronounced after
revocation mimicked the original term, Roth's imprisonment terms were made concurrent
rather than consecutive. He was thus sentenced anew after revocation." 308 Kan. at 972.

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Returning to our facts, we conclude that Sandoval and Roth do not change the
outcome of Eastman's case, although these decisions cause us to modify our reasoning.
Eastman's case is more like Roth than Sandoval because the district court sentenced
Eastman anew and imposed a modified sentence at the probation violation hearing. The
district court originally sentenced Eastman to 55 months' imprisonment with 24 months'
postrelease supervision. At the probation violation hearing, the district court reduced the
term of imprisonment from 55 months to 45 months. Although the district court at first
reimposed 24 months of postrelease supervision, the court immediately corrected itself
while the hearing was still in process and ordered lifetime postrelease supervision. This
was the lawful term of postrelease supervision under K.S.A. 2011 Supp. 22-
3717(d)(1)(G) for Eastman's conviction of aggravated indecent solicitation of a child.

Had the district court imposed a modified sentence of 45 months' imprisonment
with 24 months' postrelease supervision at Eastman's probation violation hearing, then
Roth teaches us that such a sentence would have become a lawful lesser sentence that
could not be modified with a later motion. But that is not what happened here. Right after
the district court announced 24 months' postrelease supervision at Eastman's probation
violation hearing, the district court corrected itself while the hearing was still in process
and ordered lifetime postrelease supervision. To the extent this sentence amounted to an
increase in the postrelease supervision term, the district court had jurisdiction to make the
correction because a court can correct an illegal sentence at any time. K.S.A. 22-3504(1);
State v. Ballard, 289 Kan. 1000, 1012, 218 P.3d 432 (2009).

Generally, the judgment and sentence in a criminal case are effective upon
pronouncement from the bench, although a sentence can be orally pronounced from the
bench and then corrected at the same hearing. State v. Howard, 287 Kan. 686, 692, 198
P.3d 146 (2008). In Howard, the defendant was convicted of aggravated kidnapping, two
counts of rape, and six counts of aggravated criminal sodomy. At sentencing, the district
court at first imposed a sentence of life, plus 10 years to life. The State interrupted,
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pointing out that this sentence was illegal because the minimum sentence for aggravated
criminal sodomy was 15 years, not 10. The court corrected the sentence to life, plus 15
years to life. The defendant later filed a motion to correct illegal sentence which the
district court summarily denied. On appeal, our Supreme Court upheld the sentence,
finding that a sentence can be orally pronounced from the bench and then corrected at the
same hearing to reflect the district court's intent before being properly journalized. 287
Kan. at 692-94. See State v. Garcia, 288 Kan. 761, 766, 207 P.3d 251 (2009); State v.
Crawford, 253 Kan. 629, 649, 861 P.2d 791 (1993).

That is exactly what happened at Eastman's probation violation hearing with
respect to his postrelease supervision term. The moment the district court announced
Eastman's sentence, including the 24 months' postrelease supervision term, the prosecutor
stood and said: "Your Honor, I'm checking on something here. And I realize that the
post-release was 24 months, originally, but I believe that's a lifetime post-release offense
requirement." After a brief discussion with counsel, the district court stated: "Well, on
the representation of the District Attorney, if it is a lifetime post-release I'll order a
lifetime post-release." The journal entry conformed to the district court's oral
pronouncement at the hearing and stated: "Court corrects the illegal sentence imposed on
12/21/12 by changing the postrelease supervision term from 24 months, to Lifetime
Postrelease."

Our court reached a different result under different facts in State v. Zirkle, 15 Kan.
App. 2d 674, 814 P.2d 452 (1991). In that case, the defendant was convicted of burglary
and initially received a suspended sentence. At a probation violation hearing, the district
court at first sentenced the defendant to one to five years' imprisonment. But after
pronouncing that sentence, during the same hearing, the court learned that the defendant
had six months of jail credit, so the court "vacated" the one to five years' sentence and
imposed a sentence of two to five years' imprisonment. 15 Kan. App. 2d at 675. The
Zirkle court held that under these facts, the defendant "was sentenced when the court
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announced the one- to five-year sentence from the bench." 15 Kan. App. 2d at 677. Based
on the general rule that a sentence is effective when pronounced from the bench, this
court remanded with directions to reinstate the one to five years' sentence. 15 Kan. App.
2d at 678.

Eastman's case is much more like Howard than Zirkle. In Zirkle, after the district
court learned that the defendant had six months of jail credit, the court decided that a one
to five years' sentence was not long enough, so it vacated that sentence and imposed a
sentence of two to five years' imprisonment. The district court clearly changed its mind
about the original legal sentence it had imposed and decided to impose a longer one. In
Howard, the district court announced a sentence from the bench but then immediately
corrected the term to comply with the applicable statute, making it clear that was the
court's intent all along. That is what happened in Eastman's case with respect to the
postrelease supervision term. It is clear from the record that the district court's intent in
Eastman's case was to impose the postrelease term authorized by statute, and when the
court learned that the statute required lifetime postrelease supervision, it ordered the
appropriate term.

In his motion for summary disposition, Eastman argues that "[t]his case is exactly
like Roth and the result should be the same as Roth." But Eastman's case is not exactly
like Roth. We reject Eastman's argument that once the district court stated a 24-month
postrelease supervision term at the probation violation hearing, the court could not
correct the term to comply with the statute and the court's intent while the hearing was
still in process. Such a result is contrary to the holding in Howard. So Eastman's
postrelease supervision term was never lawfully modified to 24 months at the probation
violation hearing, distinguishing his case from Roth.

To sum up, the district court originally sentenced Eastman to 55 months'
imprisonment with 24 months' postrelease supervision. At his probation violation
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hearing, the district court sentenced Eastman anew and imposed a lawful modified
sentence of 45 months' imprisonment with lifetime postrelease supervision. The district
court had jurisdiction to correct any illegality in Eastman's sentence at the probation
violation hearing. Under these facts and circumstances, we conclude the district court did
not err by ordering lifetime postrelease supervision.

Affirmed.