State v. Monroy

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NOT DESIGNATED FOR PUBLICATION

No. 115,798

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

RAUL MONROY, JR.,
Appellant.

MEMORANDUM OPINION

Appeal from Sedgwick District Court; BRUCE C. BROWN, judge. Opinion filed July 14, 2017.
Affirmed.

Carl F.A. Maughan, of Maughan Law Group LC, of Wichita, for appellant.

Boyd K. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before HILL, P.J., MCANANY and ATCHESON, JJ.

Per Curiam: Raul Monroy, Jr., appeals the granting of the State's motion to
correct an illegal sentence. He argues his original sentence of 36 months of postrelease
supervision was legal because it was a valid departure sentence. But the issue is
controlled by K.S.A. 2016 Supp. 22-3717(d)(1)(G), which requires lifetime postrelease
supervision, and there is no indication in the record that the district court intended to
impose a departure from that requirement. Thus, we affirm the district court's order
correcting the illegal sentence of 36 months' postrelease supervision to lifetime
postrelease supervision.

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Pursuant to a plea agreement, Monroy pled guilty to aggravated burglary,
aggravated sexual battery, and attempted aggravated criminal sodomy. The district court
sentenced Monroy to a controlling term of 142 months' imprisonment and 36 months of
postrelease supervision.

About 7 years later, the State moved to correct Monroy's claimed illegal sentence,
arguing that Monroy's sentence was illegal because K.S.A. 2016 Supp. 22-3717(d)(1)(G)
mandated lifetime postrelease supervision for those persons convicted of a sexually
violent crime. The district court granted the State's motion and corrected Monroy's term
of postrelease supervision to lifetime supervision. Monroy appeals.

On appeal, Monroy claims his original sentence was a lawful departure sentence
so the district court lacked jurisdiction to alter it. It is true that the district court does not
have jurisdiction to modify a legal sentence once it is pronounced from the bench. State
v. Hall, 298 Kan. 978, 983, 319 P.3d 506 (2014). But the district court has jurisdiction to
modify an illegal sentence, and it has the discretion to do so at any time. K.S.A. 22-
3504(1); State v. Fisher, 304 Kan. 242, 264, 373 P.3d 781 (2016). Whether a sentence is
illegal within the meaning of K.S.A. 22-3504 is a question of law over which we exercise
unlimited review. State v. Lee, 304 Kan. 416, 417, 372 P.3d 415 (2016). We also exercise
unlimited review over the interpretation of the sentencing statutes. State v. Nguyen, 304
Kan. 420, 422, 372 P.3d 1142 (2016).

Monroy's sentence was not a departure sentence. At his sentencing, the court did
not follow the sentencing recommendation in the plea agreement and denied Monroy's
motion for a downward departure sentence. The court stated:

"[T]his is a situation in which I believe it is necessary for me to depart from my usual
desire to try to uphold the plea agreement of the parties.
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"Mr. Monroy, in looking at your criminal history, I see that you are persistent sex
offender. Also, all of the information involved here indicates that you are an active Sur
13 Street Gang member. The underlying facts of this case indicate that you went to a
nursing home, broke into that home, and then proceeded to the rooms of two people, both
in their mid 80s, and tried to force yourself sexually upon them. I see no reason nor any
grounds to depart at this time."

An illegal sentence as contemplated by K.S.A. 22-3504(1) is a sentence imposed
by a court without jurisdiction; a sentence that does not conform to the applicable
statutory provision, either in the character or the term of authorized punishment; or a
sentence that is ambiguous with respect to the time and manner in which it is to be
served. State v. Gray, 303 Kan. 1011, 1014, 368 P.3d 1113 (2016).

Pursuant to K.S.A. 2016 Supp. 22-3717(d)(1)(G), the legislature mandated the
imposition of lifetime postrelease supervision for all persons convicted of sexually
violent on-grid crimes. A district court's failure to comply with the lifetime postrelease
statute results in an illegal sentence. See State v. Herrmann, 53 Kan. App. 2d 147, 154,
384 P.3d 1019 (2016), petition for rev. filed December 19, 2016; State v. Baber, 44 Kan.
App. 2d 748, 753-54, 240 P.3d 980 (2010), rev. denied 296 Kan. 1131 (2013).

In Herrmann, the defendant's original sentence for attempted aggravated indecent
liberties with a child, a severity level 6 person felony, included 24 months of postrelease
supervision. This court determined that Herrmann's sentence did not conform to the
statutory provisions of K.S.A. 2015 Supp. 22-3717(d)(1)(G), which required lifetime
postrelease supervision. Thus, his sentence was illegal, and the district court did not err in
resentencing Herrmann. 53 Kan. App. 2d at 152-54. We adhere to the reasoning in
Herrmann. Monroy does not contest that under K.S.A. 2016 Supp. 22-3717(d)(1)(G) he
was subject to lifetime postrelease supervision. Instead, he claims the original sentence
constituted a departure sentence. Because this argument fails, the district court had
jurisdiction to correct Monroy's illegal sentence at any time, and in this instance the
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district court properly corrected the term of Monroy's term of postrelease supervision
from 36 months to lifetime postrelease supervision. See K.S.A. 22-3504(1).

Affirmed.