State v. Harrison-Barr

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NOT DESIGNATED FOR PUBLICATION

No. 114,491

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

KALEB HARRISON-BARR,
Appellant.


MEMORANDUM OPINION

Appeal from Nemaha District Court; JAMES A. PATTON, judge. Opinion filed June 17, 2016.
Affirmed.

Submitted for summary disposition pursuant to K.S.A. 2015 Supp. 21-6820(g) and (h).

Before MALONE, C.J., GREEN and GARDNER, JJ.

Per Curiam: Kaleb Harrison-Barr appeals the district court's decision to modify
his postrelease supervision term from 24 months to lifetime following his conviction of
aggravated sexual battery. We granted Harrison-Barr's motion for summary disposition in
lieu of briefs pursuant to Supreme Court Rule 7.041A (2015 Kan. Ct. R. Annot. 67). The
State has filed no response.

On September 27, 2012, Harrison-Barr pled no contest to one count of aggravated
sexual battery. On November 29, 2012, the district court granted Harrison-Barr's motion
for downward durational departure and sentenced him to 36 months' imprisonment with
24 months' postrelease supervision.

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On July 16, 2015, the district court, on its own motion, held a hearing to correct
illegal sentence. At the hearing, the district court determined that Harrison-Barr's 24
months' postrelease supervision term constituted an illegal sentence and instead imposed
lifetime postrelease supervision. Harrison-Barr timely appealed.

On appeal, Harrison-Barr argues that the district court "erred by correcting [his]
sentence and by imposing lifetime postrelease supervision in this case as lifetime
postrelease is cruel and unusual punishment under the United States and Kansas
Constitutions." But as Harrison-Barr acknowledges, under Kansas law, a court is
mandated to impose a sentence of lifetime postrelease supervision for a conviction of a
"sexually violent crime," which includes aggravated sexual battery. See K.S.A. 2015
Supp. 22-3717(d)(1)(G), (d)(5)(I). A district court's failure to comply with the lifetime
postrelease statute results in an illegal sentence. See State v. Baber, 44 Kan. App. 2d 748,
753-54, 240 P.3d 980 (2010), rev. denied 296 Kan. 1131 (2013). An illegal sentence can
be corrected at any time. K.S.A. 22-3504(1).

State v. Ballard, 289 Kan. 1000, 218 P.3d 432 (2009), is directly on point. In that
case, the defendant was convicted of aggravated indecent liberties with a child and the
district court initially imposed a sentence that included 36 months' postrelease
supervision. At a later hearing, the district court found that it had imposed an illegal
sentence and modified the postrelease supervision term from 36 months to lifetime. On
appeal, the Kansas Supreme Court determined that the defendant's sentence for a sexually
violent crime that included postrelease supervision of 36 months did not conform to the
statutory provisions, either in the character or the term of the authorized punishment. The
sentence was illegal, and the district court was able to correct the sentence at any time by
imposing lifetime postrelease supervision. 289 Kan. at 1010-12.

As to Harrison-Barr's claim that lifetime postrelease supervision constitutes cruel
and/or unusual punishment under the United States and Kansas Constitutions, Harrison-
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Barr acknowledges that he did not raise this issue in the district court. Our Supreme Court
has held that the issue of cruel and/or unusual punishment will not be reviewed for the
first time on appeal because it requires the district court's findings upon the three-part test
established in State v. Freeman, 223 Kan. 362, 367, 574 P.2d 950 (1978). See State v.
Naputi, 293 Kan. 55, 67-68, 260 P.3d 86 (2011). Because Harrison-Barr did not raise his
constitutional claim in the district court, he has failed to preserve this issue for appeal.

Affirmed.