State v. Montgomery

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NOT DESIGNATED FOR PUBLICATION

No. 112,652

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

ALPHONSO MONTGOMERY,
Appellant.


MEMORANDUM OPINION

Appeal from Johnson District Court; KEVIN P. MORIARTY, judge. Opinion filed November 20,
2015. Vacated and remanded with directions.

Michelle A. Davis, of Kansas Appellate Defender Office, for appellant.

Steven J. Obermeier, senior deputy district attorney, Stephen M. Howe, district attorney, and
Derek Schmidt, attorney general, for appellee.

Before MALONE, C.J., BRUNS, J., and ROBERT W. FAIRCHILD, District Judge, assigned.

Per Curiam: Alphonso Montgomery appeals the sentence imposed following his
guilty plea to charges of refusal to submit to testing and of DUI (fourth offense). On
appeal, Montgomery contends that the district court did not use a specified risk
assessment tool to assess his risk and needs before ordering that he serve intensive
postimprisonment supervision. Because K.S.A. 2014 Supp. 8-1567(b)(3) requires the
district court to consider an offender's risk and needs when determining the appropriate
level of supervision, we find that the district court failed to meet the statutory
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requirement in imposing Montgomery's postimprisonment supervision. Thus, we vacate
Montgomery's sentence and remand for resentencing.

FACTS

As part of a plea agreement, Montgomery pled guilty on June 23, 2014, in Johnson
County District Court to one count of felony driving under the influence (DUI)—his
fourth conviction—in violation of K.S.A. 2014 Supp. 8-1567 and to one count of felony
refusal to submit to testing in violation of K.S.A. 2014 Supp. 8-1025. Moreover, the State
agreed to dismiss the three other charges against Montgomery as part of the plea
agreement.

On August 4, 2014, the district court sentenced Montgomery to 6 months in jail
and 12 months of postrelease supervision, which is also referred to as postimprisonment
supervision in DUI cases. The district court ordered Montgomery's sentence to run
consecutive to his sentence in an unrelated Franklin County case. By the time he was
sentenced in the Johnson County case, Montgomery had already served his jail time.
However, the district court ordered that Montgomery's DUI postimprisonment
supervision should begin after his release on his Franklin County case.

At the sentencing hearing, the prosecutor asked the district court what level of
supervision Montgomery would be subject to since he had not gotten an "LSI-R" because
he was in custody. LSI-R is an acronym for Level of Service Inventory-Revised, which is
an instrument used to assess one's potential risk of re-offending. In response, the district
court stated that Montgomery would receive intensive supervision following his release
in the Franklin County case. Although Montgomery was personally present and
represented by counsel, he did not object or request a different level of postimprisonment
supervision.

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On August 7, 2014, the district court filed an order requiring Montgomery to serve
12 months of postimprisonment supervision. As for the level of supervision, the order
stated that Montgomery "shall comply with the LSI-R Case Plan" and all rules and
regulations of the program. It also stated that the supervising officer "may require"
Johnson County Community Corrections for intensive supervision.

ANALYSIS

Montgomery contends for the first time on appeal that the district court erred in
ordering him to serve his postimprisonment supervision in intensive supervision without
aid of an LSI-R assessment on which to base its finding. He argues that the district court's
decision violated K.S.A. 2014 Supp. 8-1567(b)(3), which requires a determination of
whether an offender should be supervised by community correctional services or court
services based on the risk and needs of the offender determined by using a risk
assessment tool. In response, the State argues that even if the district court committed
error by sentencing Montgomery without an LSI-R, such error would be harmless.

"The interpretation, construction, and application of a statute are questions of law
subject to unlimited review." State v. Vrabel, 301 Kan. 797, 802, 347 P.3d 201 (2015).
The sentencing of a defendant convicted of DUI is strictly governed by statute. See
K.S.A. 2014 Supp. 8-1567; State v. Anthony, 274 Kan. 998, 1001, 58 P.3d 742 (2002).
Furthermore, because DUI sentencing is not covered by the Kansas sentencing
guidelines, we have jurisdiction to consider an appeal of a presumptive sentence and may
set aside a defendant's sentence if the defendant's sentence was entered as a result of
partiality, prejudice, oppression, or corrupt motive. See State v. Heim, No. 108,124, 2013
WL 5925905, at *2 (Kan. App. 2013) (unpublished opinion), rev. denied 300 Kan. 1105
(2014).

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In addition to requiring jail time for a fourth DUI conviction, K.S.A. 2014 Supp.
8-1567(b) directs that a mandatory 1-year period of postimprisonment supervision be
imposed. Accordingly, it was appropriate for the district court to order 12 months
postimprisonment supervision. The question remains, however, whether the district court
erred in imposing intensive supervision without the assistance of an LSI-R or other risk
assessment tool.

Specifically, the portion of the statute relating to the level of postimprisonment
supervision provides:

"The court shall determine whether the offender, upon release from imprisonment, shall
be supervised by community correctional services or court services based upon the risk
and needs of the offender. The risk and needs of the offender shall be determined by use
of a risk assessment tool specified by the Kansas sentencing commission." (Emphasis
added.) K.S.A. 2014 Supp. 8-1567(b)(3).

Montgomery failed to object below as to the level of supervision imposed or the
lack of a risk assessment tool being used. As such, he would generally be precluded from
raising the issue for the first time on appeal. State v. Kelly, 298 Kan. 965, 971, 318 P.3d
987 (2014). However, Montgomery argues that we should nevertheless consider his
argument because (1) it involves only a question of law arising on proved or admitted
facts and is determinative of the case and (2) his sentence is illegal. See State v. Phillips,
299 Kan. 479, 493, 325 P.3d 1095 (2014); K.S.A. 22-3504(1). We agree that the sentence
was illegal.

An illegal sentence can be corrected at any time, even for the first time on appeal.
Kelly, 298 Kan. at 975; K.S.A. 22-3504(1). "An 'illegal sentence' is: (1) a sentence
imposed by a court without jurisdiction; (2) a sentence that does not conform to the
applicable statutory provision, either in character or term of authorized punishment; or
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(3) a sentence that is ambiguous with respect to the time and manner in which it is to be
served." State v. Taylor, 299 Kan. 5, 8, 319 P.3d 1256 (2014).

In the present case, we find that Montgomery's sentence—to the extent that it
imposes intensive postimprisonment supervision—is illegal because it does not conform
to the applicable statutory provision. When a statute is plain and unambiguous, we are not
to speculate about the legislative intent behind that clear language. Furthermore, we are
to refrain from reading something into the statute that is not readily found in its words.
State v. Brooks, 298 Kan. 672, 685, 317 P.3d 54 (2014).

The statutory language at issue clearly states: "The risk and needs of the offender
shall be determined by use of a risk assessment tool specified by the Kansas sentencing
commission." (Emphasis added.) K.S.A. 2014 Supp. 8-1567(b)(3). There is no ambiguity
in this language. A district court is required to determine the appropriate level of
postimprisonment supervision based on that offender's risk and needs as determined
using a risk assessment tool specified by the Kansas Sentencing Commission. Here, it is
undisputed that the district court used no risk assessment tool of any kind.

Nevertheless, the State argues that Montgomery cannot complain about the district
court's failure to use a risk assessment tool because he decided to be transported from
Franklin County for his plea and sentencing in this case and he failed to request a
continuance of sentencing due to the lack of an LSI-R. In support of this argument, the
State relies on State v. Spencer, 31 Kan. App. 2d 681, 70 P.3d 1226, rev. denied 276 Kan.
973 (2003). In Spencer, a panel of this court considered whether a probationer was
incorrectly placed on probation with community corrections rather than court services
when a risk assessment was unavailable due to her refusal to submit to the assessment on
the basis of her Fifth Amendment privilege against self-incrimination. The panel
determined that Spencer had a right to refuse to submit to the assessment, but when she
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did so, the district court was allowed to place her in the more intensive supervision
category despite not having a risk assessment on which to rely. 31 Kan. App. 2d at 686.

Specifically, the Spencer court found:

"When adequate information is not available, it is not error for the trial court to place a
convicted felon in the high risk status so that the needs of such a party will be met and the
highest services be made available so that probation will most likely be successful and
community protection will be achieved." 31 Kan. App. 2d at 686.

Unlike the defendant in Spencer, Montgomery did not refuse to submit to a risk
assessment. Rather, there is nothing in the record to indicate that he was ever requested to
participate in an assessment. Accordingly, we do not find Spencer to be particularly
helpful in the resolution of this case.

Finally, we note that the State argues that the issue may be moot. Although the
State may be correct, it has not provided us with anything to show that Montgomery's
postimprisonment supervision has expired. Instead, a review of the record simply reveals
that Montgomery's intensive supervision was to begin after he was released in the
Franklin County case, and there is nothing in the record to show when that may have
occurred. The record, therefore, does not contain sufficient information upon which we
could find this matter to be moot.

In summary, because the district court failed to follow the statute's plain and
unambiguous requirement that a risk assessment tool specified by the Kansas Sentencing
Commission be utilized, we vacate that portion of Montgomery's sentence related to the


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level of postimprisonment supervision to be imposed under K.S.A. 2014 Supp. 8-
1567(b)(3)'s requirements and remand the case for resentencing.

Vacated and remanded with directions.