State v. Johnson

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NOT DESIGNATED FOR PUBLICATION

No. 113,229

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

DAQUANTRIUS S. JOHNSON,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; BENJAMIN L. BURGESS, judge. Opinion filed February 26,
2016. Affirmed and remanded with directions.

Sam Schirer, 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, C.J., PIERRON, J., and WALKER, S.J.

Per Curiam: After Daquantrius S. Johnson waived his right to a jury trial, the
district court found him guilty of failing to register under the Kansas Offender
Registration Act (KORA) and sentenced him in accordance with his criminal history
score.

Johnson appeals based on two grounds. First, he contends that the district court did
not properly advise him of his right to a jury trial and so he could not knowingly and
voluntarily waive it. Second, he argues that imprisoning someone for up to 46 months for
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failing to comply with registration requirements is categorically cruel and/or unusual
punishment. Because we find no errors, the conviction and sentence are affirmed.
However, we remand for correction of an error in the sentencing journal entry.

FACTS

Johnson was required to register as an offender under KORA because of a 2012
juvenile adjudication. Although Johnson initially registered properly, in November 2013
he failed to report and register as required. A sheriff's investigator was unable to locate or
contact Johnson to bring him into compliance.

In January 2014, Johnson was arrested on another case and was then charged with
failure to report and register as required under KORA. See K.S.A. 2015 Supp. 22-4901 et
seq. Under K.S.A. 2015 Supp. 22-4903, the first conviction for violating the requirements
in KORA is a severity level 6, person felony.

In late October 2014, the day before his jury trial was to start, Johnson waived his
right to a jury trial. At the bench trial, the State contended that Johnson deliberately chose
not to register to avoid being arrested on a warrant for violating probation. Ultimately, the
district court found Johnson guilty.

At sentencing in December 2014, the district court determined that Johnson had a
criminal history score of A—the highest score. See K.S.A. 2015 Supp. 21-6804. The
district court sentenced Johnson to 46 months' imprisonment and 24 months' postrelease
supervision.

Johnson now appeals to this court.


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ANALYSIS

Johnson first argues that his conviction must be reversed because the district court
failed to properly advise him of his right to a jury trial before accepting his waiver. The
State counters that Johnson's claim should not be considered for the first time on appeal
and, in the alternative, that Johnson knowingly and voluntarily waived his right.

As a preliminary matter, we must consider whether Johnson's claim is properly
before us. As a general rule, issues, even constitutional ones, not raised before the trial
court cannot be raised on appeal. State v. Godfrey, 301 Kan. 1041, 1043, 350 P.3d 1068
(2015); State v. Kelly, 298 Kan. 965, 971, 318 P.3d 987 (2014). Johnson asserts one of
the exceptions to the general rule applies because consideration of the issue is necessary
to prevent the denial of fundamental rights. See State v. Phillips, 299 Kan. 479, 493, 325
P.3d 1095 (2014). As Johnson contends, Kansas courts have recognized the right to a jury
trial as a fundamental right. See, e.g., State v. Frye, 294 Kan. 364, 368-70, 277 P.3d 1091
(2012); State v. Bowers, 42 Kan. App. 2d 739, 740, 216 P.3d 715 (2009). Despite the
State's contention to the contrary, Johnson properly invokes and argues an exception to
the general rule that issues may not be raised for the first time on appeal as required
under Kansas Supreme Court Rule 6.02(a)(5) (2015 Kan. Ct. R. Annot. 41). See Godfrey,
301 Kan. at 1043-44. Because the right to a jury trial is a fundamental right, this court
may consider the issue even though it was first raised on appeal.

Whether a defendant has waived the right to a jury trial is a factual question,
which this court reviews for substantial competent evidence. But when the facts are
undisputed, whether the defendant knowingly and voluntarily waived his or her right is a
legal question subject to unlimited review. State v. Beaman, 295 Kan. 853, 858, 286 P.3d
876 (2012).

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A criminal defendant's right to a jury trial is guaranteed by both the United States
and Kansas Constitutions. U.S. Const. amend. VI; Kan. Const. Bill of Rights, §§ 5, 10. In
Kansas, defendants charged with felonies also have a statutory right to a jury trial. K.S.A.
22-3403. Because the State charged Johnson with a felony punishable by imprisonment
of up to 46 months, he had both a constitutional and statutory right to a jury trial.

A defendant may waive his or her right to a jury trial, but "'the defendant must first
be advised by the court of [the] right to a jury trial, and he [or she] must personally waive
this right in writing or in open court for the record.'" State v. Lewis, 301 Kan. 349, 377,
344 P.3d 928 (2015) (quoting State v. Irving, 216 Kan. 588, 590, 533 P.2d 1225 [1975]).
By statute, the defendant, the State, and the district court must all agree to the waiver.
K.S.A. 22-3403(1). In determining whether a waiver is valid, the court considers
"whether it was voluntarily made by a defendant who knew and understood what he or
she was doing" based on the particular facts and circumstances of the case. Beaman, 295
Kan. at 858. But waivers are strictly construed to ensure the defendant has every chance
to receive a jury trial. 295 Kan. at 858 (citing Irving, 216 Kan. at 589).

At the jury waiver hearing, the following exchange occurred:

"THE COURT: This case is one where Mr. Johnson is charged with an . . .
offender registration violation. It is scheduled for trial. . . . I understand the parties have
informally come to an understanding that Mr. Johnson will waive his right to a jury trial
and we'll proceed to a bench trial on Friday, which would be the 31st. Is that correct?
. . . .
"THE COURT: All right. Mr. Johnson, if you'd please stand. You've discussed
this waiver with [your attorney]?
"THE DEFENDANT: Yes, sir.
"THE COURT: And you understand if you waive your right to a jury trial it's a
binding waiver. You don't get to change your mind about it. It's going to be a bench trial
without a jury. You understand that?
"THE DEFENDANT: Yes, sir.
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"THE COURT: All right. And it is your decision and you're the one making the
decision to waive; is that correct?
"THE DEFENDANT: Yes, sir.
"THE COURT: All right. Let the record reflect then that Mr. Johnson has waived
his right to a jury trial in 14 CR 45. We will proceed to trial then with a bench trial on
Friday, October 31st, beginning at ten o'clock AM."

Johnson contends that this waiver was ineffective because the district court failed
to fully explain the nature and extent of the right to a jury trial or the meaning and effect
of a "bench trial." The State counters that the record demonstrates that the district court
properly advised Johnson of his right to a jury trial and so the waiver was knowing and
voluntary.

In support of his position, Johnson cites two unpublished opinions: State v.
Cervantes-Cano, No. 107,179, 2013 WL 1943060 (Kan. App.) (unpublished opinion),
rev. denied 298 Kan. 1204 (2013), and State v. Harris, No. 110,228, 2014 WL 6909612
(Kan. App. 2014) (unpublished opinion). In particular, he focuses on the similarities
between the dialogue between the defendant and district court in Cervantes-Cano and the
dialogue in his case.

In Cervantes-Cano, the defendant did not speak English and communicated with
the district court through an interpreter. The district court judge said to Cervantes-Cano,
"'[Y]our attorney has advised me that you wish to waive your right to a trial by jury; is
that right?'" Through the interpreter, Cervantes-Cano responded, "'Yes.'" The judge went
on to say, '"You want to try the case to the Court and you are waiving your right to a
speedy trial; is that correct?'" Again Cervantes-Cano responded, "'Yes.'" 2016 WL
1943060, at *3. The judge then questioned Cervantes-Cano about whether anyone had
threatened him and if he had made the decision himself. Satisfied with the answers, the
judge then accepted the waiver. A panel of this court determined this was an ineffective
waiver because "the district court failed to advise Cervantes-Cano that he had a right to
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trial by jury, failed to verify that [he] understood that trying the case 'to the court' meant
that a judge would determine his guilt, and failed to explain the nature and extent of the
right to a jury trial." The Cervantes-Cano panel noted that "jury trial" and "trial to the
court" are terms of art that even an informed lay person might not understand, let alone a
person who does not speak English and is communicating through an interpreter. 2013
WL 1943060, at *4.

In Harris, the district court's exchange with the defendant was very minimal and
did not even refer to the jury trial as a right. The district court judge said, "'The matter
was set for a jury trial today. Yesterday the Court was advised that Mr. Harris has wished
to withdraw his request for a jury trial and try the matter to the bench; is that correct?'"
(Emphasis added.) Harris' attorney replied, "'Yes, your honor.'" The judge then asked
Harris whether he still wished to withdraw his "'jury trial request'"; to which he replied,
"'Yes.'" 2014 WL 6909612, at *1-2. On appeal, a panel of this court determined the
waiver was ineffective because the record did not establish that the district court
informed Harris that he had a right to a jury trial as opposed to a bench trial, citing
Cervantes-Cano. 2014 WL 6909612, at *3-4.

Although there are some similarities between Cervantes-Cano, Harris, and the
case at issue, there are also some notable differences as well. Here, the record makes it
clear that the district court did refer to the "right to a jury trial," not merely a request.
Johnson was also asked whether he understood that it would be a bench trial without a
jury, but he expressed no confusion and did not ask for further clarification. There was
also no indication in the record that Johnson had difficulty understanding English, unlike
the defendant in Cervantes-Cano. Moreover, he had just had a jury trial in another case,
so he had recent knowledge of what the right to a jury trial included. The district court
also confirmed that Johnson had discussed the waiver with his attorney. The Harris court
noted this as a significant difference between its facts and State v. Clemons, 273 Kan.
328, 340-41, 45 P.3d 384 (2002), in which the Kansas Supreme Court found the
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defendant's jury waiver was valid. 2014 WL 6909612, at *4. In Clemons, the district
court asked the defendant if it was his decision to waive his right to a jury trial, if he had
spoken about the matter with his attorney, if he understood that he couldn't change his
mind, and if anyone had threatened him or made any promises.

As was said in Beaman, "just the form of a waiver alone cannot be an appellate
court's determinant. Full consideration of the facts and circumstances surrounding a
defendant's waiver of his or her jury trial right is necessary in deciding whether a
knowing and voluntary waiver occurred in any given case." 295 Kan. at 861. Though the
colloquy between Johnson and the court was quite spare in this case, it covered all the
essential requirements under our caselaw. We find that Johnson knowingly and
voluntarily waived his right to a jury trial.

Johnson next argues that imprisoning someone for 46 months for the first violation
of offender registration requirements categorically constitutes cruel and/or unusual
punishment under the Eighth Amendment to the United States Constitution and Section 9
of the Kansas Constitution Bill of Rights. The State contends that this court does not have
jurisdiction to review the claim because it is based on a presumptive grid sentence but
even if the court had jurisdiction, the sentence is not cruel and/or unusual punishment.

As the State notes in its brief, this court has a duty to question jurisdiction on its
own initiative, and if it determines there is no jurisdiction, then it must dismiss the claim.
State v. Gill, 287 Kan. 289, 294, 196 P.3d 369 (2008); State v. J.D.H., 48 Kan. App. 2d
454, 458, 294 P.3d 343, rev. denied 297 Kan. 1251 (2013). In determining whether
jurisdiction exists, this court's review is unlimited. State v. Reed, 302 Kan. 227, 233, 352
P.3d 530 (2015). Under K.S.A. 2015 Supp. 21-6820(c)(1) (formerly K.S.A. 21-
4721[c][1]), appellate courts do not have jurisdiction to review any sentence that is within
the presumptive sentence for the crime. See State v. Sprung, 294 Kan. 300, 317, 277 P.3d
1100 (2012). A presumptive sentence is "the sentence provided in a grid block for an
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offender classified in that grid block" based on the crime severity ranking of his or her
current crime of conviction and criminal history. K.S.A. 2015 Supp. 21-6803(q).

The first issue is whether Johnson received a presumptive sentence. Under K.S.A.
2015 Supp. 22-4903, the first violation of the offender registration requirements is a
severity level 6, person felony. The district court found Johnson had a criminal history
score of A. Forty-six months' imprisonment is the high sentence provided in the grid box
for the severity level of the crime and applicable criminal history score. See K.S.A. 2015
Supp. 21-6804. Johnson was therefore sentenced to a presumptive sentence. Although
Johnson submitted a reply brief, he did not address the jurisdictional issue raised by the
State.

Despite Johnson's failure to address the issue, this court has a duty to consider
jurisdictional issues. See State v. Dull, 302 Kan. 32, 38, 351 P.3d 641 (2015), petition for
cert. filed September 4, 2015. In State v. Huerta, 291 Kan. 831, 247 P.3d 1043 (2011),
the Kansas Supreme Court clarified that appellate courts may consider constitutional
claims that challenge the statutory scheme for sentencing—that is a facial challenge to
sentencing provisions which is not limited to the defendant's case alone—even when the
defendant received a presumptive sentence. 291 Kan. at 839-40 (discussing State v.
Johnson, 286 Kan. 824, 190 P.3d 207 [2008]). The court then reiterated that appellate
courts do not have jurisdiction to consider claims that merely challenge a defendant's
individual presumptive sentence on constitutional grounds. 291 Kan. at 840. Although
past cases have held that this court does not have jurisdiction to consider cruel and
unusual punishment challenges to presumptive sentences on direct appeal, these cases all
considered individual challenges to the defendant's sentence. See, e.g., Clemons, 273
Kan. at 343-44; State v. Blackshire, 29 Kan. App. 2d 493, 499, 28 P.3d 440, rev. denied
272 Kan. 1420 (2001); State v. Lewis, 27 Kan. App. 2d 134, 140-41, 998 P.2d 1141, rev.
denied 269 Kan. 938 (2000). Here, Johnson raises a facial or categorical challenge to the
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sentencing scheme for first time violations of the offender registration requirements.
Therefore, this court has jurisdiction to hear the claim.

The next hurdle that Johnson must overcome is that he failed to raise the issue at
the district court. As stated above, a party cannot raise new issues, even constitutional
ones, for the first time on appeal. State v. Swint, 302 Kan. 326, 335, 352 P.3d 1014
(2015). But there are several exceptions to the general rule. A constitutional issue may be
asserted for the first time on appeal if: (1) the newly asserted claim involves only a
question of law arising on proved or admitted facts and is determinative of the case; (2)
consideration of the claim is necessary to serve the ends of justice or prevent the denial of
fundamental rights; or (3) the district court was right for the wrong reason. 302 Kan. at
335 (citing State v. Tague, 296 Kan. 993, 1000, 298 P.3d 273 [2013]). Additionally, to
comply with Kansas Supreme Court Rule 6.02(a)(5), the party must explain why the
issue is properly before the court or the court may determine the party abandoned it by
failure to brief. Godfrey, 301 Kan. at 1043-44. Johnson asserts that this court may review
the issue because it involves a purely legal question arising on admitted facts. The Kansas
Supreme Court has allowed categorical challenges to be raised for the first time on appeal
under this exception. State v. Williams, 298 Kan. 1075, 1084-85, 319 P.3d 528 (2014);
State v. Ruggles, 297 Kan. 675, Syl. ¶ 1, 304 P.3d 338 (2013). This court may review
Johnson's claim.

The Eighth Amendment to the United States Constitution and Section 9 of the
Kansas Constitution Bill of Rights prohibit cruel and/or unusual punishment. The United
States Supreme Court in Graham v. Florida, 560 U.S. 48, 59, 130 S. Ct. 2011, 176 L. Ed.
2d 825 (2010), stated that the Eighth Amendment not only prohibits inherently barbaric
punishments but also punishments that are disproportionate to the crime: "Embodied in
the Constitution's ban on cruel and unusual punishments is the 'precept of justice that
punishment for crime should be graduated and proportioned to [the] offense.' [Citation
omitted.]" The Kansas Supreme Court has recognized similar protections under Section 9
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of the Kansas Constitution Bill of Rights. State v. Freeman, 223 Kan. 362, 367, 574 P.2d
950 (1978).

Defendants who challenge their sentences as cruel and/or unusual can bring
several different types of challenges. There are two types of proportionality challenges to
sentences under the Eighth Amendment. In the first, known as a case-specific
proportionality review, the defendant claims the length of the sentence is grossly
disproportionate given all the circumstances of his or her particular case. Graham, 560
U.S. at 59-60; Williams, 298 Kan. at 1084. The second is a categorical challenge in which
the defendant makes a general challenge to the use of a particular sentence to punish a
specific category of offenders, asserting that the punishment of the sentence is inherently
disproportionate to an entire class of offenders. Graham, 560 U.S. at 60-61; Williams,
298 Kan. at 1084. Challenges to sentences under Section 9 of the Kansas Constitution
Bill of Rights are all analyzed under the three-factor test set out in Freeman. See, e.g.,
State v. Mossman, 294 Kan. 901, 908-09, 281 P.3d 153 (2012).

Johnson brings only an Eighth Amendment categorical challenge under Graham.
In doing so, Johnson waives his case-specific challenge under the Eighth Amendment.
See State v. Reed, 300 Kan. 494, 505, 332 P.3d 172 (2014) (noting an issue not briefed is
deemed waived). Additionally, although he cites Section 9 of the Kansas Constitution
Bill of Rights, by failing to provide further argument or support, Johnson has also waived
any claims under Section 9. See Tague, 296 Kan. at 1001; State v. Gomez, 290 Kan. 858,
866, 235 P.3d 1203 (2010). Moreover, this court could not consider either challenge on
direct appeal anyway because both require the district court to have made factual findings
and drawn conclusions of law. See State v. Cervantes-Puentes, 297 Kan. 560, Syl. ¶ 4,
303 P.3d 258 (2013). A categorical proportionality challenge under the Eighth
Amendment implicates questions of law, and so this court exercises unlimited review.
Dull, 302 Kan. at 40.
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The United States Supreme Court has recognized three subcategories of
categorical proportionality challenges: (1) those concerning the nature of the offense; (2)
those concerning the characteristics of the offender; and (3) those that combine the first
two. Williams, 298 Kan. at 1086. Johnson identifies his categorical challenge as "failing
to comply with offender registration requirements, as a first-time offense." Johnson
appears to fall into the first category, as he challenges the sentences based on the nature
of the offense.

As a preliminary matter, this court must address the State's contention that
Johnson's challenge is actually a case-specific challenge cloaked as a categorical
challenge. Kansas courts have questioned and rejected categorical claims when the
"categorization is so case-specific it seems to obliterate the distinction between" case-
specific and categorical challenges. Mossman, 294 Kan. at 928; see Cervantes-Puentes,
297 Kan. at 566. In Mossman, for example, the Kansas Supreme Court rejected
Mossman's proposed categorical challenge that included the age of the victim and
characteristics of the crime and redefined the category as the offense committed by first-
time offenders. 294 Kan. at 928-29.

Johnson slightly mischaracterizes his categorical challenge but not to the extent
the State claims. He uses the term "first-time offense" and cites to Mossman and State v.
Reed, 51 Kan. App. 2d 107, 341 P.3d 616 (2015), as authority that the court can consider
whether it is a defendant's conviction for a first-time offense. Mossman and Reed
however actually state that the court can consider the defendant's status as a first-time
offender. Mossman, 294 Kan. at 928-29; Reed, 51 Kan. App. 2d at 110. Johnson is not a
first-time offender and has an extensive criminal history, but this was his first violation of
the offender registration requirements. Therefore, stated more clearly, the nature of the
offense that applies to this analysis is the first violation of offender registration
requirements.

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There is a two-prong test used to evaluate a defendant's categorical challenge to a
sentence. Graham, 560 U.S. at 60-61; Dull, 302 Kan. at 45; Reed, 51 Kan. App. 2d at
110. First, the reviewing court considers the "objective indicia of national consensus" by
surveying the laws and practices in other states to determine whether there is a national
consensus against the sentencing practice. Graham, 560 U.S. at 62. Second, the court
conducts an independent review of the practice by considering "the culpability of the
offenders at issue in light of their crimes and characteristics, . . . the severity of the
punishment in question[,] . . . [and] whether the challenged sentencing practice serves
legitimate penological goals." 560 U.S. at 67.

In analyzing this claim, the court first determines whether there is any national
consensus against similar sentences for first violations of offender registration
requirements. Although the specific rules may vary, all states have sex offender
registration requirements. See FBI, Sex Offender Registry Websites,
https://www.fbi.gov/scams-safety/registry. In Kansas, the first violation of offender
registration requirements carries a prison sentence of 17 months to 46 months, depending
on the defendant's criminal history, and 24 months' postrelease supervision. K.S.A. 2015
Supp. 22-4903(c)(1)(A); K.S.A. 2015 Supp. 21-6804; K.S.A. 2015 Supp. 22-
3717(d)(1)(B). Johnson concedes that he cannot establish Kansas' sentencing practice is
outside the national norms. Some states like Alaska and New Mexico provide lesser
penalties than Kansas. Alaska Stat. § 11.56.840 (2014) (first registration violation is a
misdemeanor); N.M. Stat. Ann. § 29-11A-4 (Mitchie 2013) and N.M. Stat. Ann. § 31-18-
15 (Michie 2010) (failure to comply is fourth-degree felony punishable by 18 months'
imprisonment). But several states have similar or steeper penalties than Kansas'
sentences. See, e.g., Ga. Code Ann. § 42-1-12(n) (2015 Supp.) (first violation is
punishable by 1 to 30 years in prison); Ill. Comp. Stat. ch. 730 150/10 (2007) and Ill.
Comp. Stat. ch. 730 5/5-4.5-40 (2015 Supp.) (first violation is a class 3 felony punishable
by 2 to 5 years). Johnson has not established a national consensus against equivalent
sentences for first-time violations of offender registration requirements. Nevertheless,
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although the community consensus is important, it is not itself determinative of whether a
punishment is cruel and/or unusual. Graham, 560 U.S. at 67.

The second prong of Graham requires the reviewing court to independently
review the sentencing practice, considering the culpability of the offender and the nature
of the offense and sentence. In regards to this, the Kansas Supreme Court has noted that
the defendant must show that based on the characteristics of the class of offenders and the
nature of the crime committed, the sentence is disproportionate with the offender's
culpability. Ruggles, 297 Kan. at 684-85 (holding "hard 25" life sentence was not cruel
and unusual punishment).

Johnson argues that because the registration requirements are burdensome and
there are many opportunities for an individual to unintentionally violate them, the
sentence is disproportionate to the offender's culpability. But, the requirements of lifetime
postrelease supervision are also burdensome and that has been held constitutional for
adult offenders. Dull, 302 Kan. at 53-56, 61 (detailing lifetime postrelease supervision
requirements and holding it unconstitutional for juvenile offenders); Williams, 298 Kan.
at 1089-90 (holding lifetime postrelease supervision constitutional for adult offenders).
Johnson has also not proven that the class of offenders he belongs to is less culpable for
their crimes than other adults. See Ruggles, 297 Kan. at 685 ("The law clearly presumes
that people 18 years of age or older have reached a level of maturity that renders them
fully culpable for the crimes they commit."). Moreover, the sentence at issue, 17 months
to 46 months, is not severe when compared to other states' sentencing and it is graduated
to reflect the defendant's criminal history.

In conducting this analysis, this court also considers whether the sentence furthers
legitimate penological goals. Such legitimate goals include retribution, deterrence,
incapacitation, and rehabilitation. Graham, 560 U.S. at 71-74. The United States
Supreme Court and Kansas courts have held that the duty to register is a civil penalty
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intended to protect the public, not to impose punishment. Smith v. Doe, 538 U.S. 84, 102-
03, 123 S. Ct. 1140, 155 L. Ed. 2d 164 (2003); State v. Myers, 260 Kan. 669, 681, 695-
96, 923 P.2d 1024 (1996), cert. denied 521 U.S. 1118 (1997); State v. Simmons, 50 Kan.
App. 2d 448, 458, 329 P.3d 523 (2014), petition for rev. filed July 25, 2014. Without
enforcement mechanisms like prison sentences, offenders would likely fail to comply
with registration requirements and the public could be endangered. Thus, imprisonment
for failure to register has a legitimate goal in advancing public safety by enforcing
registration requirements. Moreover, the severity of the sentence is tied to how much of a
risk the individual is to the public—those with extensive criminal history are sentenced to
longer sentences while those with minimal criminal history are given lighter sentences. In
accordance with the principles set out in Graham, the sentences serve a legitimate goal
and are proportionate to that goal.

We hold that sentencing someone such as Johnson to 46 months' imprisonment for
a first violation of offender registration requirements does not categorically constitute
cruel and unusual punishment under the Eighth Amendment to the United States
Constitution.

Finally, we note there appears to be an error in the journal entry of judgment
"Recap of Sentence" which lists the postrelease supervision term as 12 months instead of
the 24 months pronounced at sentencing. This error requires correction. See State v.
Mason, 294 Kan. 675, 677, 279 P.3d 707 (2012) (noting when journal entry imposes
sentence that varies from sentence pronounced, it must be corrected to reflect actual
sentence imposed). Accordingly, we remand this case with directions that a nunc pro tunc
order be filed to correct the journal entry of sentence.

Affirmed and remanded with directions.