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State v. Johnson

Supreme Court of Kansas

May 31, 2019

State of Kansas, Appellee,
v.
Cameron Lee Johnson, Appellant.

         SYLLABUS

         1. A criminal defendant who fails to object in district court to a sentencing judge's reliance on facts outside the record and who fails to argue the applicability of an exception to preservation of the issue for appeal is prevented from having the merits of the issue addressed.

         2. A sentencing judge who fails to explicitly bifurcate or continue a sentencing proceeding to set restitution later loses jurisdiction to do so.

         3. A parole eligibility time rather than a term of postrelease is appropriate when a criminal defendant is sentenced to life in prison for an off-grid crime.

         4. Illegal ambiguity in the concurrent or consecutive nature of a sentence requires correction. On the unique facts of this case, that correction can be accomplished without remand because the sentencing judge's intention otherwise clearly appears in the record on appeal.

          Appeal from Montgomery District Court; F. William Cullins, judge.

          Kai Tate Mann, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

          Natalie Chalmers, assistant solicitor general, argued the cause, and Derek Schmidt, attorney general, was with her on the brief for appellee.

          OPINION

          Beier, J.

         This case comes to us on direct appeal from Cameron Lee Johnson's no contest plea to felony murder, aggravated kidnapping, aggravated assault, and criminal possession of a firearm. The district court sentenced Johnson to life without parole for at least 25 years and 272 months for aggravated kidnapping, to run consecutive to the life sentence. Johnson raises three issues on direct appeal, concerning the imposition of consecutive sentences, restitution, and the imposition of lifetime postrelease supervision following a hard-25 life sentence. We also note another ambiguity in Johnson's sentence as pronounced.

         Factual and Procedural Background

         Johnson pleaded no contest to felony murder, aggravated kidnapping, aggravated assault, and criminal possession of a firearm. At his plea hearing, both the district court and county attorney referenced Johnson's numerous other criminal cases. The district court swore Johnson in before confirming with Johnson that he had read and understood each and every part of the acknowledgement of rights and entry of plea that he had signed. Johnson requested and was given additional time to discuss the acknowledgment with his mother and his attorney. The district court then confirmed Johnson understood the court was not bound by the plea agreement. The court took Johnson's no contest pleas for each of the four offenses charged.

         The district court then said, "[T]he Court is aware of the facts of the case based on the Probable Cause Affidavit, but just to be safe, for the record, would you provide a factual basis for the Court, please." The State did so, reciting facts including that the victim was kidnapped when she was taken by force or fear from the vehicle she had been in to a vacant lot where she was shot numerous times. The State also referenced Johnson's confession, which the district court was familiar with from a codefendant's case. None of these statements drew any objection from Johnson's counsel.

         The court responded: "Based on the information provided by Mr. Johnson . . . and [the State, ] the Court will find that there's a factual basis for the plea and find that the plea was knowingly and voluntarily entered into." (Emphasis added.) Johnson's counsel again did not object.

         At sentencing, the district court handed down a Hard 25 life sentence for felony murder; the judge made inconsistent references to whether the sentence included the possibility of parole after 25 years or required lifetime postrelease supervision.

"For the offense of first-degree murder, felony murder, an off-grid offense, the Court is sentencing you to life in prison. Lifetime post-release. That is the ...

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