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State v. Reed

Court of Appeals of Kansas

October 31, 2014

STATE OF KANSAS, Appellee,
v.
ABIGAIL REED, Appellant

Page 913

Appeal from Finney District Court; ROBERT J. FREDERICK, judge.

Affirmed.

SYLLABUS

bye THE COURT

1. Whether a sentence is illegal is a question of law over which an appellate court has unlimited review.

2. K.S.A. 22-3504(1) allows the court to correct an illegal sentence at anytime. An illegal sentence includes one that does not conform to the applicable statutory provision in either the character or the term of authorized punishment.

3. Once the district court pronounces a legal sentence from the bench, it does not have jurisdiction to modify that sentence absent statutory language allowing a modification.

4. K.S.A. 2011 Supp. 22-3716(b) provides, in pertinent part, that once a probation violation has been established, the district court may require the defendant to serve the sentence imposed or any lesser sentence.

5. K.S.A. 2011 Supp. 22-3717(d)(1)(G) provides that a person convicted of a sexually violent crime committed on or after July 1, 2006, and who is released from prison, shall be released to a mandatory period of postrelease supervision for the duration of the person's natural life. A district court's failure to comply with K.S.A. 2011 Supp. 22-3717(d)(1)(G) results in an illegal sentence.

6. A revocation of probation may lead to the imposition of a lesser sentence. However, the new sentence cannot be illegal.

7. The final sentence imposed here, which included lifetime postrelease supervision, did not violate the Eight Amendment to the United States Constitution.

Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant.

Tamara S. Hicks, assistant court attorney, Susan Lynn Hillier Richmeier, county attorney, and Derek Schmidt, attorney general, for appellee.

Before BRUNS, P.J., PIERRON and POWELL, JJ.

OPINION

Page 914

Pierron, J.

Abigail Reed appeals the sentence entered by the district court following the State's motion to correct an illegal sentence. Reed argues that once the court ordered the sentence following the revocation of her probation, the court had no jurisdiction to modify the sentence. Additionally, Reed argues her lifetime postrelease sentence was cruel and unusual punishment based on her conviction for indecent solicitation of a child. We affirm.

On May 16, 2012, the State charged Reed with criminal sodomy, aggravated indecent liberties with a child, and indecent solicitation of a child. Reed pled guilty to indecent solicitation of a child. She fell within the presumptive probation portion of the sentencing grid. The court sentenced Reed to an incarceration sentence of 18 months and then ordered probation (intensive supervision) for 24 months. The court also ordered a postrelease supervision term of 24 months.

On January 14, 2013, the State moved to revoke Reed's probation for violating curfew, failing to attend meetings, and failing to maintain a residence. The court ordered Reed to serve her 18-month prison sentence and a 24-month period of postrelease supervision. On February 14, 2013, the State filed a motion to correct an illegal sentence, arguing Reed was statutorily required to serve a term of lifetime postrelease supervision. After a full hearing, the district court granted the State's motion and ordered Reed to serve a lifetime of postrelease supervision. Reed appeals.

We first address the issue of whether the district court had jurisdiction to modify Reed's sentence.

Reed argues the sentence imposed on her after the revocation of her probation was a legal sentence, effective upon pronouncement from the bench, and the court did not have jurisdiction to modify that sentence. She contends that although Kansas law requires anyone convicted of a sexually violent crime to be subjected to lifetime postrelease supervision, Kansas law also authorizes the district court to impose a lesser sentence when it revokes a defendant's probation. She argues this is what the court ...


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