State v. Hernandez

1

NOT DESIGNATED FOR PUBLICATION

No. 114,751

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

ALEJANDRO CESAR HERNANDEZ,
Appellant.


MEMORANDUM OPINION

Appeal from Cowley District Court; NICHOLAS M. ST. PETER, judge. Opinion filed June 10,
2016. Affirmed.

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

Before MALONE, C.J., BUSER and BRUNS, JJ.

Per Curiam: Alejandro C. Hernandez appeals the district court's decision to
modify his postrelease supervision term from 24 months to life following his conviction
of aggravated indecent solicitation of a child. We granted Hernandez' 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 a response and does not object to summary
disposition.

On April 13, 2009, Hernandez pled no contest to one count of aggravated indecent
solicitation of a child. On June 1, 2009, the district court sentenced Hernandez to 136
months' imprisonment with 24 months' postrelease supervision.

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On June 22, 2015, the district court held a separate sentencing hearing to correct
Hernandez' postrelease supervision term. At the hearing, the district court determined that
Hernandez' 24 months' postrelease supervision term constituted an illegal sentence and
instead imposed lifetime postrelease supervision. Hernandez timely appealed.

On appeal, Hernandez argues that the district court abused its discretion by
imposing lifetime postrelease supervision for his conviction. But as Hernandez
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 indecent solicitation of a child. See K.S.A. 2015 Supp. 22-3717(d)(1)(G),
(d)(5)(G). 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 and
controls the outcome of Hernandez' appeal. In Ballard, 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 life. 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. Based on Ballard, the district court herein did not err
by correcting Hernandez' sentence and imposing lifetime postrelease supervision.

Affirmed.