State v. Thomas ( 2020 )

NOT DESIGNATED FOR PUBLICATION
No. 122,518
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
KEVIN L. THOMAS,
Appellant.
MEMORANDUM OPINION
Appeal from Sedgwick District Court; JEFFREY SYRIOS, judge. Opinion filed November 25,
2020. Sentence vacated and remanded with directions.
James M. Latta, of Kansas Appellate Defender Office, for appellant.
Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.
Before HILL, P.J., BRUNS and SCHROEDER, JJ.
PER CURIAM: Kevin L. Thomas appeals the modified sentence imposed by the
Sedgwick County District Court after his probation was revoked. Originally, the district
court had ordered Thomas to serve 17 months in prison to be followed by 12 months of
postrelease supervision. However, the district court granted a downward dispositional
departure and placed Thomas on probation. At the probation revocation hearing, the
district court modified Thomas' prison sentence to 15 months but did not mention
postrelease supervision. On appeal, Thomas contends that the district court's silence
means that he is no longer subject to postrelease supervision. However, we find that the
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district court was required to order some period of postrelease supervision under K.S.A.
2018 Supp. 22-3716(f). Thus, we vacate the sentence and remand this case to the district
court for clarification regarding the period of postrelease supervision to which Thomas
will be subject after he serves his 15-month prison sentence.
FACTS
On May 28, 2019, Thomas entered into a plea agreement in which he agreed to
plead guilty to one count of fleeing or attempting to elude a law enforcement officer.
Although the district court subsequently sentenced Thomas to 17 months in prison to be
followed by a 12-month period of postrelease supervision, it granted his motion for a
downward dispositional departure to 12 months of probation. Unfortunately, Thomas was
unable to fulfill the terms of his probation and committed a new crime as well as several
other violations.
On January 21, 2020, the district court revoked Thomas' probation and ordered
him to serve a modified prison sentence of 15 months. In doing so, the district court
failed to mention—one way or the other—the 12-month period of postrelease supervision
that was originally ordered. Yet, in the journal entry approved by both the prosecutor and
defense counsel, the 12-month term of postrelease supervision as originally imposed was
included.
ANALYSIS
On appeal, the sole issue presented is whether the district court's silence regarding
postrelease supervision at the probation hearing means that Thomas is no longer required
to serve any postrelease supervision. This issue was not raised below. In fact, a review of
the record reveals that defense counsel approved the journal entry from the revocation
hearing that included the term of postrelease supervision as originally ordered. Of course,
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K.S.A. 2018 Supp. 22-3504(1) provides that a court may correct an illegal sentence at
any time. Thus, we have jurisdiction to hear this matter for the first time on appeal. See
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 the appellate court has unlimited review. State v. Lee, 304 Kan. 416,
417, 372 P.3d 415 (2016). A sentence is illegal "when: (1) it is imposed by a court
without jurisdiction; (2) it does not conform to the applicable statutory provisions, either
in character or punishment; or (3) it is ambiguous with respect to the time and manner in
which it is to be served. [Citations omitted.]" State v. Hayes, 307 Kan. 537, 538, 411 P.3d
1225 (2018). Likewise, we have unlimited review over issues of statutory interpretation
of sentencing statutes. State v. Coleman, 311 Kan. 332, 334-35, 460 P.3d 828 (2020). In
reviewing a statute, we must read its provisions in pari materia and in a manner to avoid
unreasonable or absurd results. State v. Smith, 311 Kan. 109, 114, 456 P.3d 1004 (2020).
Thomas recognizes that K.S.A. 2018 Supp. 22-3716(c)(1)(E) authorizes a district
court to modify a sentence upon revocation of a defendant's probation "to serve the
sentence imposed, or any lesser sentence." As a result, the district court had the authority
upon revoking Thomas' probation to impose the original sentence in its entirety or to
order any lesser sentence that was legally appropriate. It appears likely from a review of
the transcript of the probation revocation hearing that the only modification that the
district court intended to make from the original sentence was to reduce the prison term
from 17 to 15 months. Furthermore, the journal entry approved by both the State and
Thomas' counsel includes the term of postrelease supervision as originally ordered. Even
so, the district court's failure to mention postrelease supervision at the probation hearing
makes it impossible for us to determine its actual intent.
Although Thomas cites to State v. Jones, 56 Kan. App. 2d 556, 561, 565-66, 433
P.3d 193 (2018), he candidly concedes that it involved a probation revocation under
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K.S.A. 2017 Supp. 22-3716(b)(3)(B) (addressing misdemeanors and specified felonies),
while this case involves a probation revocation under K.S.A. 2018 Supp. 22-3716(c)
(addressing all other felonies). Additionally, Thomas concedes that K.S.A. 2018 Supp.
22-3716(f)—which was not at issue in Jones—is applicable in this case. Hence, we do
not find the analysis in Jones to be helpful in resolving the issue presented on appeal. For
similar reasons, we do not find State v. Bishop, No. 119,961, 2019 WL 6973428, at *5
(Kan. App. 2019) (unpublished opinion), to be helpful to the resolution of this case.
Significantly, K.S.A. 2018 Supp. 22-3716(f) requires that a defendant whose
probation is revoked under K.S.A. 2018 Supp. 22-3716(c) "shall serve a period of
postrelease supervision upon the completion of the prison portion of the underlying
sentence." (Emphasis added.) In other words, based on the plain and unambiguous
language of K.S.A. 2018 Supp. 22-3716(f), the district court was required as a matter of
law to order Thomas to serve at least some period of postrelease supervision upon
revocation of his probation. In fact, a failure to do so would—in and of itself—render
Thomas' sentence to be illegal for failure to comply with applicable statutory provisions.
Moreover, we find that under the circumstances presented in this case, the district
court does not have the discretion to order no postrelease supervision. Allowing a district
court to order no postrelease supervision when a defendant's probation is revoked
pursuant to K.S.A. 2018 Supp. 22-3716(c) would render the requirement found in K.S.A.
2018 Supp. 22-3716(f)—that a defendant "shall serve a period of postrelease
supervision"—to be meaningless. As the Kansas Supreme Court has held, "we presume
the Legislature does not intend to enact meaningless legislation." Montgomery v. Saleh,
311 Kan. 649, 655, 466 P.3d 902 (2020) (citing In re Marriage of Traster, 301 Kan. 88,
98, 339 P.3d 778 [2014]).
We are persuaded that the district court erred by failing to specify a term of
postrelease supervision on the record at the probation revocation hearing. However, we
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are not persuaded that K.S.A. 2018 Supp. 22-3716(f) grants the district court the
discretion to impose no amount of postrelease supervision under the circumstances. So,
as both parties suggest as an alternative, we vacate the sentence and remand this matter to
the district court to determine—on the record—the duration of postrelease supervision
that Thomas must serve. This amount may be the amount originally ordered or any lesser
amount that the district court finds to be appropriate.
Sentence vacated and remanded with directions.
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