State v. Brook , 440 P.3d 570 ( 2019 )

IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 115,657
STATE OF KANSAS,
Appellee,
v.
SKYLER LEE BROOK,
Appellant.
SYLLABUS BY THE COURT
1.
Imposition of an underlying prison term after a probation violation is not
equivalent to "incarceration for a supervision violation" under K.S.A. 2018 Supp. 22-
3717(d)(3). The period of a person's postrelease supervision term may be modified while
the person is serving his or her underlying prison sentence after probation revocation
without running afoul of K.S.A. 2018 Supp. 22-3717(d)(3).
2.
K.S.A. 2013 Supp. 22-3717(d)(1)(D) applies only to persons convicted of a
sexually violent crime on or after July 1, 1993, but before July 1, 2006. K.S.A. 2013
Supp. 22-3717(d)(1)(G) applies to persons convicted of a sexually violent crime on or
after July 1, 2006. There are no persons convicted of a sexually violent crime to whom
both subparagraph K.S.A. 2013 Supp. 22-3717(d)(1)(D) and subparagraph (d)(1)(G)
apply.
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Review of the judgment of the Court of Appeals in an unpublished opinion filed April 28, 2017.
Appeal from Nemaha District Court; JOHN L. WEINGART, judge. Opinion filed May 10, 2019. Judgment
of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed.
Peter Maharry, of Kansas Appellate Defender Office, was on the briefs for appellant.
Brad M. Lippert, county attorney, and Derek Schmidt, attorney general, were on the brief for
appellee.
The opinion of the court was delivered by
BEIER, J.: Defendant Skyler Lee Brook appeals the district court's correction of
his postrelease supervision term after his probation was revoked and he was ordered to
serve his original sentence. He challenges the district court judge's statutory authority to
change the term from two years to lifetime, and he argues the lifetime postrelease term
constitutes cruel and unusual punishment.
We affirm the district judge's decision and our Court of Appeals' endorsement of
it.
FACTUAL AND PROCEDURAL BACKGROUND
Brook pleaded no contest to sexual exploitation of a child as a result of
interactions with C.B. between May 6 and May 20, 2013. Brook was 22 years old at the
time. He was sentenced to 36 months in prison and 2 years of postrelease supervision.
The district court judge suspended imposition of Brook's sentence and ordered Brook to
serve 36 months' probation.
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Brook committed another crime, which resulted in revocation of his probation and
imposition of his original sentence in this case.
The Department of Corrections notified the court that Brook should have received
a lifetime postrelease term because of his plea to a sexually violent crime. The district
judge agreed that this portion of Brook's sentence was illegal and corrected the two-year
postrelease term to lifetime.
Brook challenged the lifetime term before the Court of Appeals. The panel
rejected his arguments, State v. Brook, No. 115,657, 2017 WL 1535138, at *6 (Kan. App.
2017) (unpublished opinion), and this court granted review.
DISCUSSION
Whether a sentence is illegal and may be corrected at any time is a question of law
subject to unlimited review. See K.S.A. 2018 Supp. 22-3504(1); State v. Horton, 308
Kan. 757, 759, 423 P.3d 548 (2018). To the extent resolution of Brook's claims requires
statutory interpretation, this court also is presented with a question of law subject to
unlimited review. 308 Kan. at 759.
Statutory Arguments
Brook argues that his original two-year term of postrelease could not be corrected
as an illegal sentence based on two different statutes.
The first statute is K.S.A. 2018 Supp. 22-3717(d)(3). That section states, "Persons
serving a period of incarceration for a supervision violation shall not have the period of
postrelease supervision modified until such person is released and returned to postrelease
supervision." K.S.A. 2018 Supp. 22-3717(d)(3). Brook asserts that because he "violated
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his supervision resulting in the revocation of his probation," K.S.A. 2018 Supp. 22-
3717(d)(3) should prohibit modification of his postrelease supervision term.
The Court of Appeals panel correctly analyzed and disposed of this argument.
There is no support for the proposition that the imposition of an underlying prison term
after a probation violation is equivalent to "incarceration for a supervision violation." The
panel said:
"K.S.A. 2016 Supp. 22-3717 as a whole involves postrelease supervision. In K.S.A. 2016
Supp. 22-3717(d)(3) the words 'supervision violation' clearly refers to a violation of
postrelease supervision and not a probation violation. The subject of K.S.A. 2016 Supp.
22-3717 is postrelease supervision and not probation. The statutory scheme for probation
is set out in an entirely different statute. See K.S.A. 2016 Supp. 21-6604, K.S.A. 2016
Supp. 21-6607, and K.S.A. 2016 Supp. 21-6608 (establishing the sentencing scheme for
probation); K.S.A. 2016 Supp. 22-3716 (establishing procedures for probation
violations). The plain reading of K.S.A. 2016 Supp. 22-3717 shows that the legislature
did not intend a probation violation to prevent modification of postrelease supervision."
Brook, 2017 WL 1535138, at *2.
Moreover, the language of subsection (d)(3) itself indicates that the "supervision"
referred to is postrelease supervision. The limitation to modifying a period of postrelease
continues "until such person is released and returned to postrelease supervision."
(Emphasis added.) K.S.A. 2018 Supp. 22-3717(d)(3).
Brook's second statutory argument is based on what he perceives to be conflicting
subsections within K.S.A. 2013 Supp. 22-3717(d)(1). That statute provides in pertinent
part:
"(d)(1) Persons sentenced for crimes, other than off-grid crimes, committed on or
after July 1, 1993, or persons subject to subparagraph (G), will not be eligible for parole,
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but will be released to a mandatory period of postrelease supervision upon completion of
the prison portion of their sentence as follows:
....
(B) Except as provided in subparagraphs (D) and (E), persons sentenced for
nondrug severity levels 5 and 6 crimes, drug severity level 3 crimes committed on or after
July 1, 1993, but prior to July 1, 2012, and drug severity level 4 crimes committed on or
after July 1, 2012, must serve 24 months on postrelease supervision.
....
(D) Persons sentenced to a term of imprisonment that includes a sentence for a
sexually violent crime as defined in K.S.A. 22-3717, and amendments thereto, a sexually
motivated crime in which the offender has been ordered to register pursuant to subsection
(d)(1)(D)(vii) of K.S.A. 22-3717, and amendments thereto, electronic solicitation, K.S.A.
21-3523, prior to its repeal, or K.S.A. 2013 Supp. 21-5509, and amendments thereto, or
unlawful sexual relations, K.S.A. 21-3520, prior to its repeal, or K.S.A. 2013 Supp. 21-
5512, and amendments thereto, shall serve the period of postrelease supervision as
provided in subsections (d)(1)(A), (d)(1)(B) or (d)(1)(C) plus the amount of good time
and program credit earned and retained pursuant to K.S.A. 21-4722, prior to its repeal, or
K.S.A. 2013 Supp. 21-6821, and amendments thereto, on postrelease supervision.
....
(G) 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 the person's
natural life."
Brook argues that his original postrelease term was legal under subparagraphs
(d)(1)(B) and (D). The Court of Appeals panel disagreed with this argument, relying on
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State v. Herrmann, 53 Kan. App. 2d 147, 384 P.3d 1019 (2016), rev. denied 306 Kan.
1324 (2017). In Herrmann, another Court of Appeals panel had thoroughly analyzed the
issue Brook raised:
"[Defendant Jon T.] Herrmann claims the district court erred in granting the
State's motion to correct an illegal sentence because his original sentence of 24 months'
postrelease supervision was legal and not subject to modification when the court granted
the State's motion. The trial 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). The court does, however, have jurisdiction to modify an illegal sentence and can
do so at any time. K.S.A. 22-3504(1). . . .
....
"Herrmann argues the sentence of lifetime postrelease supervision is illegal . . .
because it does not conform to subparagraph (D) of K.S.A. 2015 Supp. 22-3717(d)(1),
which he asserts is the applicable statutory provision. Herrmann contends the post-2013
version of subparagraph (D) retroactively eliminates the statutory requirement that courts
impose lifetime postrelease supervision for those convicted of sexually violent crimes. In
response to Herrmann's argument, the State argues lifetime postrelease supervision
readily conforms to the applicable statutory provision, which it asserts is subparagraph
(G) of K.S.A. 2015 Supp. 22-3717(d)(1). . . . Given the dispute between the parties, we
first must decide which statutory provision within K.S.A. 2015 Supp. 22-3717(d)(1) is
applicable to Herrmann's case for purposes of imposing postrelease supervision before
we can decide whether the lifetime postrelease supervision ordered conformed to that
applicable statutory provision.
....
"Generally, the crime and penalty in existence at the time of the offense are
controlling, except where the legislature has given retroactive effect to statutory changes
made after the commission of the crime. State v. Van Cleave, 239 Kan. 117, 122, 716
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P.2d 580 (1986). At the time of Herrmann's offense, K.S.A. 2011 Supp. 22-3717(d)(1)(G)
required that persons who committed a sexually violent crime after July 1, 2006, be
sentenced to lifetime postrelease supervision. Attempted aggravated indecent liberties
with a child was defined as a sexually violent crime under K.S.A. 2011 Supp. 22-
3717(d)(2)(C) and (d)(2)(K). Herrmann does not contest that under K.S.A. 2011 Supp.
22-3717(d)(1)(G), as it existed at the time of his crime, he was subject to lifetime
postrelease supervision.
"Rather, Herrmann argues that the 2013 amendments to K.S.A. 22-3717(d)(1)
changed the law regarding postrelease supervision as it applies to persons sentenced for
sexually violent crimes and that those changes apply retroactively to his case. He
contends that new language in subparagraph (D) expressly applies to persons convicted
of sexually violent crimes and directs the court to impose a term of postrelease
supervision based on the severity level of the offense. Herrmann notes that the new
language in subparagraph (D) requires 24 months' postrelease supervision for severity
level 6 offenders like him, plus any good-time or program credit earned and retained.
"Herrmann acknowledges that the 2013 amendments to subparagraph (D)
directing a term postrelease supervision based on severity level of the sexually violent
crime committed did not modify subparagraph (G), which requires lifetime postrelease
supervision for persons convicted of sexually violent crimes after July 1, 2006.
Nevertheless, Herrmann asserts this fact is not fatal to his claim that the current
subparagraph (D) controls his term of postrelease supervision. In support of this
assertion, Herrmann claims the 2013 amendments to subparagraph (D) effectively created
an option for courts to choose between when imposing postrelease supervision for
persons convicted of sexually violent crimes: subparagraph (D) provides a term of
months depending on the severity level of the crime, plus any good-time or program
credits accrued while in prison, while subparagraph (G) requires lifetime postrelease
supervision. In light of these two options, Herrmann asserts the original 24-month term of
postrelease supervision imposed was legal after the 2013 amendments became effective
because it conformed to one of the two applicable statutory provision options.
....
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"We find the plain language of the [2013 amended] statute clearly decides the
issue presented. 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 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.' Herrmann was convicted of attempted aggravated indecent liberties
with a child, which is a sexually violent crime under subsection (d)(5)(C) and (d)(5)(M).
His conviction occurred after July 1, 2006. Because Herrmann is subject to subparagraph
(G), no other subparagraph following subsection (d)(1) applies to him—including
subparagraph (D).
"As an alternative to the 'two option' argument above, Herrmann asserts K.S.A.
2015 Supp. 22-3717(d)(1) is ambiguous because the provisions of subparagraphs (D) and
(G) directly conflict with each other on the proper term of postrelease supervision to
impose: one provides for a term of months based on severity level of the sexually violent
crime and the other requires a lifetime term. Herrmann argues that the rule of lenity
should resolve the ambiguity in his favor by imposing the lesser of the two postrelease
supervision terms. We disagree. The provisions in each subparagraph apply to a distinct
class of persons. K.S.A. 22-3717 as a whole applies to all persons convicted of a crime
after July 1, 1993. See L. 1992, ch. 239, sec. 270 ('Persons sentenced for crimes
committed on or after July 1, 1993, will not be eligible for parole, but will be released to
a mandatory period of postrelease supervision upon completion of the prison portion of
their sentence.'). Subparagraph (G) was added to the statute in 2006 to create an explicit
exception applicable only for 'persons convicted of a sexually violent crime committed
on or after July 1, 2006.' See L. 2006, ch. 212, sec. 19 (also adding language to [d][1]
excepting 'persons subject to subparagraph [G]'). Reading subparagraph (D) in pari
materia, it falls under subsection (d)(1) and so applies to all persons but those expressly
excluded: persons sentenced for off-grid crimes committed on or after July 1, 1993, and
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persons committing a sexually violent crime on or after July 1, 2006, as stated in
subparagraph (G). Therefore, subparagraph (D) only applies to persons convicted of a
sexually violent crime after July 1, 1993, but before July 1, 2006. Thus, there are no
persons convicted of a sexually violent crime to whom both subparagraph (D) and
subparagraph (G) apply. Construing the statute as a whole and giving effect to all of the
statutes, as this court must, there is no conflict or ambiguity in amended subsection
(d)(1).
"The legislative history of the 2013 amendments confirms that the new language
in subparagraph (D) was not intended to create a conflict with subparagraph (G). Instead,
the changes were actually meant to maintain the same term of postrelease supervision for
certain offenders, including persons who committed a sexually violent offense between
July 1, 1993, and June 30, 2006, despite changes to reduce postrelease supervision
generally. Prior to 2013, subparagraphs (A)-(C) assigned either 36, 24, or 12 months'
postrelease supervision, respectively, 'plus the amount of good time and program credit
earned and retained.' See, e.g., K.S.A. 2012 Supp. 22-3717(d)(1)(A)-(C). The 2013
amendments deleted the language pertaining to good-time and program credits from
subparagraphs (A)-(C)—in effect, reducing the length of postrelease supervision
sentences by not requiring those credits to be added to a person's postrelease term. But
the legislature did not want to provide that same benefit for persons convicted of certain
crimes, including sexually violent crimes. So, the legislature also amended subparagraph
(D) to provide an exception for persons convicted of sexually violent crimes so that
earned good-time and program credits continued to be added to their postrelease
supervision period. L. 2013, ch. 133, sec. 13. In a nutshell, the postrelease supervision
calculation for persons convicted of a sexually violent crime between July 1, 1993, and
June 30, 2006, remained the same as it was prior to the 2013 amendments.
"The analysis above is a straightforward reading of K.S.A. 2015 Supp. 22-
3717(d)(1) as a whole in which subparagraphs (D) and (G) are read in a workable
harmony, without assuming the legislature intended to enact contradictory or meaningless
provisions. See Keel, 302 Kan. at 574. The plain language of subsection (d)(1) provides
an exception for persons convicted of a sexually violent crime for an offense after July 1,
2006, in subparagraph (G). Herrmann committed his sexually violent offense after July 1,
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2006; therefore, he is subject only to subparagraph (G). Because subparagraph (D) does
not apply to him, there is no need to determine whether the amended provision would
apply retroactively to his case." Herrmann, 53 Kan. App. 2d at 149-54.
The Legislature confirmed the Herrmann panel's interpretation of the statute two
years ago by amending subparagraph (d)(1)(D) to apply to "[p]ersons sentenced to a term
of imprisonment that includes a sentence for a sexually violent crime as defined in K.S.A.
22-3717, and amendments thereto, committed on or after July 1, 1993, but prior to July 1,
2006." (Emphasis added.) See K.S.A. 2018 Supp. 2018 22-3717(d)(1)(D).
Brook's original two-year term of postrelease was imposed after his probation was
revoked. See State v. Sandoval, 308 Kan. 960, Syl., 425 P.3d 365 (2018) (upon probation
revocation, judge may impose original sentence or sentence anew; when original sentence
illegal, imposed upon revocation, illegality persists). It was illegal because it did not
conform to applicable statutory requirements; it was therefore subject to later correction
under K.S.A. 22-3504(1). 308 Kan. at 965; State v. Roth, 308 Kan. 970, 971-72, 424 P.3d
529 (2018).
Constitutional Argument
On petition for review, Brook also mounts a federal constitutional challenge to his
lifetime postrelease term, arguing that it qualifies categorically as cruel and unusual
punishment. He acknowledges that this court rejected this argument in State v. Williams,
298 Kan. 1075, 319 P.3d 528 (2014).
In Williams, this court held that "[l]ifetime postrelease supervision for a first-time
offender over age 18 convicted of sexual exploitation of a child for crimes involving
possession of pornographic images of children under age 18 is not categorically
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disproportionate under the Eighth Amendment to the United States Constitution." 298
Kan. 1075, Syl. ¶ 8.
Brook urges us to jettison Williams because of this court's more recent decision in
State v. Dull, 302 Kan. 32, 351 P.3d 641 (2015).
In Dull, we held that "[m]andatory lifetime postrelease supervision is categorically
unconstitutional under Graham v. Florida, 560 U.S. 48, 130 S. Ct. 2011, 176 L. Ed. 2d
825 (2010), when imposed on a juvenile who committed and was later convicted of
aggravated indecent liberties with a child." Dull, 302 Kan. 32, Syl. ¶ 8.
As the Court of Appeals panel in this case noted, the Dull opinion explicitly
distinguished juvenile offenders, such as the defendant in Dull, from adult offenders,
such as Brook:
"While we have found mandatory lifetime postrelease supervision constitutional for
adults, the same factors that result in a diminished culpability for juveniles, i.e.,
recklessness, immaturity, irresponsibility, impetuousness, and ill-considered decision
making, along with their lower risks of recidivism, all diminish the penological goals of
lifetime supervision for juvenile sex offenders." 302 Kan. 32, Syl. ¶ 7.
We still hold this distinction to be valid and dispositive. Brook's categorical
challenge to his lifetime postrelease term fails.
CONCLUSION
The district court judge did not err in correcting Brook's two-year postrelease term
to lifetime. We affirm his judgment and the decision of the Court of Appeals upholding
it.
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