State v. Younkman

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NOT DESIGNATED FOR PUBLICATION

No. 115,606

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

SHANE T. YOUNKMAN,
Appellant.

MEMORANDUM OPINION


Appeal from Kearny District Court; WENDEL W. WURST, judge. Opinion filed March 17, 2017.
Affirmed.

Sam Schirer, of Kansas Appellate Defender Office, for appellant.

Nicholas C. Vrana, special prosecutor, of Finney County Attorney Office, and Derek Schmidt,
attorney general, for appellee.

Before PIERRON, P.J., HILL, J., and WALKER, S.J.

Per Curiam: Shane T. Younkman appeals the granting of the State's motion to
correct an illegal sentence. He argues his original sentence of 24 months postrelease
supervision was legal because his sentence falls under K.S.A. 22-3717(d)(1)(D).
However, his sentence actually falls under K.S.A. 22-3717(d)(1)(G), which requires
lifetime postrelease supervision. Because the 24-month postrelease sentence was illegal
and was corrected to lifetime postrelease supervision, the district court is affirmed.

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On March 3, 2009, Younkman pled guilty to one count of aggravated indecent
solicitation of a child, a severity level 5 person felony, and one count of abuse of a child,
also a severity level 5 person felony. On May 5, 2009, the district court sentenced
Younkman to 68 months in the custody of the Department of Corrections (DOC) and 24
months of postrelease supervision. The court then granted Younkman probation for 36
months.

On September 1, 2011, Younkman was found to be in violation of his probation.
On September 22, 2011, the district court ordered the original sentence to be reinstated.
This decision was affirmed on appeal. State v. Younkman, No. 107,263, 2013 WL
195767, at *2 (Kan. App. 2013) (unpublished opinion).

On May 28, 2015, the State filed a motion to correct an illegal sentence. The
motion alleged the 24-month term of postrelease supervision was illegal and under
K.S.A. 22-3717(d)(1)(G), lifetime postrelease supervision was required. After a hearing
on December 1, 2015, the district court found the original sentence of 24 months'
postrelease supervision was illegal and ordered lifetime postrelease supervision. On
appeal, Younkman argues his lifetime postrelease supervision sentence was illegal and
his 24-month postrelease supervision sentence was a permissible disposition for his
probation revocation.

Interpretation of a sentencing statute is a question of law, and the standard of
review is unlimited. State v. Nguyen, 304 Kan. 420, 422, 372 P.3d 1142 (2016)
(interpreting sentencing provision for felony-murder convictions); State v. Collins, 303
Kan. 472, 473-74, 362 P.3d 1098 (2015). Whether a sentence is illegal is a question of
law over which the appellate court has unlimited review. State v. Lee, 304 Kan. 416, 417,
372 P.3d 415 (2016).

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A court can correct an illegal sentence at any time. State v. Lewis, 299 Kan. 828,
858, 326 P.3d 387 (2014). The Kansas Supreme Court in State v. Taylor, 299 Kan. 5, 8,
319 P.3d 1256 (2014), defined an illegal sentence as: "(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 the term of authorized punishment; or (3) a sentence that
is ambiguous with respect to the time and manner in which it is to be served."

Younkman argues that K.S.A. 22-3717(d)(1)(G), which states defendants
convicted of sexually violent crimes are required to serve a term of lifetime postrelease
supervision, and K.S.A. 22-3717(d)(1)(D) which states a defendant convicted of a
sexually violent crime is required to serve 12 to 36 months of postrelease supervision, are
in direct conflict.

The State argues K.S.A. 22-3717(d)(1) excludes those subject to subparagraph (G)
from the provisions of subparagraph (D) and Younkman's conviction of aggravated
indecent solicitation of a child committed in 2008 falls under K.S.A. 22-3717(d)(1)(G)
requiring lifetime postrelease supervision.

K.S.A. 22-3717, as it currently stands, contains two seemingly conflicting
provisions regarding the term of postrelease supervision for those convicted of sexually
violent crimes. Prior to the 2013 amendment, the only provision expressly dealing with
postrelease supervision of sexually violent offenders was subsection K.S.A. 22-
3717(d)(1)(G), which mandates lifetime postrelease supervision of those convicted of
sexually violent crimes. This subsection reads: "Except as provided in subsection (u),
persons convicted of a sexually violent crime committed on or after July 1, 2006, and
who are released from prison, shall be released to a mandatory period of postrelease
supervision for the duration of a person's natural life." K.S.A. 22-3717(d)(1)(G).
Subsection (u) is not relevant here.

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A careful analysis of the statute shows there is not a conflict between the two
provisions.

The Kansas Supreme Court has stated: "[T]he crime and penalty in existence at
the time of the offense are controlling unless the legislature has given retroactive effect to
any statutory changes made subsequent to the time of the commission of the crime." State
v. Van Cleave, 239 Kan. 117, 122, 716 P.2d 580 (1986). Younkman committed
aggravated indecent solicitation of a child and abuse of a child in 2008 and was convicted
in 2009. At that time, lifetime postrelease supervision was mandated under K.S.A. 22-
3717(d)(1)(G).

Younkman argues that the 2013 amendments to K.S.A. 22-3717(d)(1) changed the
law regarding postrelease supervision for persons sentenced for sexually violent crimes,
and that the changes apply to him retroactively. He argues that because K.S.A. 22-
3717(s) states: "The provisions of subsections (d)(1)(A), (d)(1)(B), (d)(1)(C) and
(d)(1)(E) shall be applied retroactively as provided in subsection (t)," and those
subsections expressly incorporate (d)(1)(D), then it is retroactive.

However, State v. Herrmann, 53 Kan. App. 2d 147, 384 P.3d 1019 (2016), directly
addressed this issue. Contrary to Younkman's argument, K.S.A. 22-3717(d)(1)(D) and
K.S.A. 22-3717(d)(1)(G) are not in direct conflict. There are no persons convicted of a
sexually violent crime who would fall under both (D) and (G). 53 Kan. App. 2d at 149.

In Herrmann, the court stated the plain language of the statute which clearly
decides the issue here:

"Subsection (d)(1) explains that persons sentenced for crimes committed after July 1,
1993, will not be eligible for parole; instead they will be subject to mandatory postrelease
supervision as provided in the subparagraphs that follow. Notably, however, this
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subsection (d)(1) expressly states that the mandatory postrelease supervision provided in
the subparagraphs that follow do not apply to 'persons subject to subparagraph (G).'
Subparagraph (G) provides that 'persons convicted of a sexually violent crime committed
on or after July 1, 2006, and who are released from prison, shall be released to a
mandatory period of postrelease supervision for the duration of the person's natural life.'"
53 Kan. App. 2d at 152.

Younkman was convicted of aggravated indecent solicitation, which is a sexually violent
crime under K.S.A. 2016 Supp. 22-3717(d)(5)(G). His conviction occurred after July 1,
2006. In accordance with Herrmann, because Younkman is subject to subparagraph (G),
no other subparagraph following (d)(1) applies to him, including (D). 53 Kan. App. 2d at
152.

Younkman argues that the rule of lenity resolves the ambiguity between these two
subsections and requires the court to rule in his favor by imposing 24 months of
postrelease supervision instead of lifetime postrelease supervision. This is incorrect
because the provisions in each subsection apply to a distinct class of persons. As outlined
in Herrmann, K.S.A. 22-3717 "as a whole applies to all persons convicted of a crime
after July 1, 1993." 53 Kan. App. 2d at 153. K.S.A. 22-3717(d)(1)(G) was added in 2006
to create an explicit exception that only applies to "persons convicted of a sexually
violent crime committed on or after July 1, 2006." L. 2006, ch. 212, sec. 19. When
K.S.A. 22-3717(d)(1)(D) is read in pari materia, it is clear it applies to all persons but
those expressly excluded "persons sentenced for off-grid crimes committed on or after
July 1, 1993, and persons committing a sexually violent crime on or after July 1, 2006, as
stated in subparagraph (G)." 53 Kan. App. 2d at 153. Therefore, subsection (D) only
applies to those persons convicted of a sexually violent crime after July 1, 1993, but
before July 1, 2006. 53 Kan. App. 2d at 153. As stated previously, that means there are
no persons convicted of a sexually violent crime who are subject to both (D) and (G). 53
Kan. App. 2d at 153. When reading the statute as a whole, there is no conflict or
ambiguity in K.S.A. 22-3717(d)(1).
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The court in Herrmann also looked at legislative history for the 2013 amendment
to K.S.A. 22-3717 for support. The legislative history confirms that the new language in
(D) was not intended to create a conflict with subsection (G). The changes were meant to
maintain the same term of postrelease supervision for certain offenders, including those
who committed a sexually violent offense between July 1, 1993 and June 30, 2006. 53
Kan. App. 2d at 153. Prior to the 2013 amendment, subsections (A)-(C) had either 36, 24,
or 12 months of postrelease supervision, plus the amount of good-time credit earned.
K.S.A. 22-3717(d)(1)(A)-(C). The 2013 amendment changed the language pertaining to
good-time credit in subsections (A)-(C), which reduced the length of postrelease
supervision terms by not requiring the credits to be added to someone's postrelease term.
53 Kan. App. 2d at 154. The legislature did not want to provide the same benefit for
persons convicted of sexually violent offenses, so it amended subparagraph (D) to create
an exception for those convicted of sexually violent crimes so the good-time credit is
added to their postrelease supervision term. L. 2013, ch. 133, sec. 13; 53 Kan. App. 2d at
154.

The most fundamental rule of statutory construction is that the intent of the
legislature governs if that intent can be ascertained. State v. Jordan, 303 Kan. 1017, 1019,
370 P.3d 417 (2016). When construing a statute to determine legislative intent, appellate
courts must consider various provisions of the statute in pari materia in order to reconcile
and bring the provisions into workable harmony, if possible. State v. Keel, 302 Kan. 560,
Syl. ¶ 7, 357 P.3d 251 (2015), cert. denied 136 S. Ct. 865 (2016). Here, the plain
language of K.S.A. 22-3717(d)(1) provides an exception for persons convicted of a
sexually violent crime for an offense after July 1, 2006, in subsection (G). Younkman
committed his sexually violent offense, aggravated indecent solicitation, after July 1,
2006, and is therefore only subject to subsection (G). Because subsection (D) does not
apply to Younkman, there is no need to determine whether it would apply retroactively.

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Because Younkman's 24-month term of postrelease supervision was illegal under
the 2013 amendment to K.S.A. 22-3717(d)(1), the district court did not err in
resentencing him to lifetime postrelease supervision under subsection (G). The district
court is affirmed.

Whether a sentence is illegal is a question of law subject to de novo review. State
v. Lee. 304 Kan. 416, 417, 372 P.3d 415 (2016).

As discussed above, Younkman's term of postrelease supervision is governed by
K.S.A. 22-3717(d)(1)(G) because he committed his offense after the July 1, 2006
effective date of subsection (G). Therefore, when his probation was revoked and his
original sentence was reinstated, 68 months in the custody of the DOC and 24 months of
postrelease supervision, his sentence was illegal under K.S.A. 22-3717(d)(1)(G). The
district court does not have the discretion to ignore the requirement of lifetime
postrelease supervision in K.S.A. 22-3717(d)(1)(G). State v. Reed, 50 Kan. App. 2d 1133,
1137, 336 P.3d 912 (2014), rev. denied 302 Kan. 1019 (2015). Therefore, when the State
filed a motion to correct the illegal sentence to impose lifetime postrelease supervision,
the district court was required to correct the sentence. In a case from the Kansas Supreme
Court, a district court's resentencing of a defendant to lifetime postrelease supervision
under subsection (d)(1)(G) was upheld because the defendant was convicted of a sexually
violent crime and his first sentence of 36 months postrelease supervision was therefore
illegal. State v. Ballard, 289 Kan. 1000, 1012, 218 P.3d 432 (2009).

Younkman argues because 24 months of postrelease supervision was authorized
by statute, it does not matter that the district court could have imposed a greater sentence
if it had realized the alleged illegality of the original sentence, and therefore his
postrelease supervision should be for a period of 24 months. If a revocation of probation
sentence is illegal, the district court has jurisdiction to correct the illegal sentence. Reed,
50 Kan. App. 2d at 1137. Therefore, the district court had jurisdiction to impose the
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lifetime postrelease supervision requirement under K.S.A. 22-3717(d)(1)(G).
Younkman's argument fails and the district court is affirmed.

Affirmed.