– State v. Carpenter ( 2019 )

IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 115,713
STATE OF KANSAS,
Appellee,
v.
DANIEL S. CARPENTER,
Appellant.
SYLLABUS BY THE COURT
1.
K.S.A. 22-3717(d)(1)(G) applies to persons convicted of a sexually violent crime
committed on or after July 1, 2006. There are no persons convicted of a sexually violent
crime on or after July 1, 2006, to whom both subsection K.S.A. 22-3717(d)(1)(A) and
subsection (d)(1)(G) apply.
2.
Construing the statute as a whole and giving effect to all of the subsections, there
is no conflict or ambiguity in K.S.A. 22-3717(d)(1).
Review of the judgment of the Court of Appeals in an unpublished opinion filed July 14, 2017.
Appeal from Sedgwick District Court; BRUCE C. BROWN, judge. Opinion filed December 6, 2019.
Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is
affirmed.
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Charles A. O'Hara, of O'Hara & O'Hara LLC, of Wichita, was on the brief for appellant.
Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, were on the brief for appellee.
The opinion of the court was delivered by
NUSS, C.J.: Daniel S. Carpenter argues the district court incorrectly sentenced him
to lifetime postrelease supervision after he was convicted of burglary, theft, criminal
damage to property, aggravated indecent liberties with a child, and criminal sodomy.
Chiefly based on our recent decision in State v. Brook, 309 Kan. 780, 440 P.3d 570
(2019), we reject his argument and affirm.
FACTS AND PROCEDURAL BACKGROUND
The State charged Carpenter with burglary, misdemeanor theft, and misdemeanor
criminal damage to property. In a separate complaint, the State charged aggravated
indecent liberties with a child and criminal sodomy. He pled no contest in both cases and
was convicted.
The sexually violent offenses of aggravated indecent liberties with a child and
criminal sodomy were committed between February 1 and 15, 2008, and both were
charged as severity level 3 person offenses. See K.S.A. 22-3717(d)(2)(C) and (D)
(defining these offenses as sexually violent). The court granted a downward dispositional
departure to probation on these presumptive imprisonment convictions. See K.S.A. 21-
4704. In pronouncing the underlying sentence, the court stated, "[T]he total term of
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incarceration you are facing in the case is 55 months," adding the "[p]ost-release chart
under the guidelines is 36 months." But the later journal entry in the case involving the
sexually violent offenses instead reflected lifetime postrelease supervision. See State v.
Gaudina, 284 Kan. 354, 358, 160 P.3d 854 (2007) (postrelease supervision is included as
part of a complete sentence).
Because of Carpenter's eventual probation violations, two years later the district
court revoked his probation and imposed the underlying sentence of 55 months as well as
lifetime postrelease supervision. More than five years later, Carpenter filed a motion to
modify the journal entry to correct a purportedly illegal sentence by confirming the orally
pronounced sentence of 36 months' postrelease supervision.
The State opposed the motion, arguing lifetime postrelease supervision was
mandatory and the 36-month supervision itself was illegal. The district court agreed with
the State.
A panel of the Court of Appeals affirmed the district court. State v. Carpenter, No.
115,713, 2017 WL 3001025 (Kan. App. 2017) (unpublished opinion). The panel held the
correct interpretation of K.S.A. 22-3717 (specifying different periods of postrelease
supervision) was that persons who committed sexually violent offenses after July 1, 1993,
but before July 1, 2006, are subject to subsection (d)(1)(A) (36 months' postrelease). By
contrast, people who committed such offenses after July 1, 2006, are subject to
subsection (d)(1)(G) (lifetime postrelease). Carpenter, 2017 WL 3001025, at *3. We
granted Carpenter's petition for review under K.S.A. 20-3018(b), obtaining jurisdiction
under K.S.A. 60-2101(b).
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Then, on May 10, 2019—while Carpenter's appeal was pending—we released
Brook, 309 Kan. 780. Like the Carpenter panel, there we held K.S.A. 22-3717 provided
that persons who committed sexually violent offenses after July 1, 2006, (such as
Carpenter) are subject to (d)(1)(G)—lifetime postrelease. 309 Kan. at 786.
As a result, we issued a show cause order because Brook "appears to be
controlling on the sole issue subject to our review." Both parties complied, as discussed
below.
ANALYSIS
Issue: Was lifetime postrelease supervision required under K.S.A 22-3717(d)(1)?
Standard of review
Whether a sentence is illegal within the meaning of K.S.A. 22-3504—as Carpenter
contends—is a question of law over which we have unlimited review. State v. Lee, 304
Kan. 416, 417, 372 P.3d 415 (2016).
Discussion
The State responded to our show cause order by declaring it knew "of no reason
why this Court should not summarily affirm" based on Brook.
Carpenter's response conceded (1) both he and defendant Brook were granted
probation and (2) this court held Brook's initial term of two years of postrelease
supervision under K.S.A. 2013 Supp. 22-3717(d)(1)(D) was illegal. Carpenter further
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conceded Brook did not support his argument—that his initial term of 36 months'
postrelease supervision under 22-3717(d)(1)(A) was legal because he received probation.
But he asserts defendant Brook never made (and so the court never addressed) this
precise probation-distinctive argument. As a result, he argues this court now should not
only consider it but also grant him relief.
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. Herrmann, 53 Kan. App. 2d 147, 149-
50, 384 P.3d 1019 (2016) (quoted in Brook, 309 Kan. at 783). Carpenter's argument relies
on an interplay among several subsections of K.S.A. 22-3717(d)(1). The relevant 2007
statutory language is as follows:
"(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,
but will be released to a mandatory period of postrelease supervision upon completion of
the prison portion of their sentence as follows:
"(A) Except as provided in subparagraphs (D) and (E), persons
sentenced for nondrug severity level 1 through 4 crimes and drug
severity levels 1 and 2 crimes must serve 36 months, plus the amount of
good time and program credit earned and retained pursuant to K.S.A. 21-
4722, and amendments thereto, on postrelease supervision.
....
"(D)(i) The sentencing judge shall impose the postrelease
supervision period provided in subparagraph (d)(1)(A), (d)(1)(B) or
(d)(1)(C), unless the judge finds substantial and compelling reasons to
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impose a departure based upon a finding that the current crime of
conviction was sexually motivated. In that event, departure may be
imposed to extend the postrelease supervision to a period of up to 60
months.
....
"(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."
(Emphases added.)
We begin our analysis by observing that in his brief, Carpenter overreads a 2009
decision where we reviewed subsection (d)(1)(A) and (G). Among other things, he
argues:
"'Paragraph (G) applies to persons who are released from prison. In [State v.]
Ballard, [289 Kan. 1000, 1003, 218 P.3d 432 (2009)], the sentencing court imposed a
prison sentence and knew the defendant was going to prison. Here, the Defendant was
granted probation. So, at the time of sentencing, the Defendant was not subject to
subparagraph (G) as he was not, at that time, going to 'be released from prison.'"
But the Ballard court did not base its determination of defendant's lifetime
postrelease supervision on subsection (G)'s application strictly to persons who are
sentenced to and then released from prison. Rather, "[B]y Ballard's own admission, 22-
3717(d)(1)(G) clearly does apply to him. Consistent with that statute, he was 'convicted
of a sexually violent crime committed on or . . . after July 1, 2006.' . . . Therefore,
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pursuant to subsection (G), he is subject to mandatory lifetime postrelease supervision."
(Emphasis added.) State v. Ballard, 289 Kan. 1000, 1012, 218 P.3d 432 (2009).
We further observe the plain language of K.S.A. 22-3717(d)(1) specifically
excludes persons subject to subsection (G) from the mandatory (and limited) periods of
postrelease supervision set forth in subsections such as (A). Finally, subsection "(G)
expressly addresses the postrelease supervision term to be imposed upon sexually violent
offenders." State v. Baber, 44 Kan. App. 2d 748, 753, 240 P.3d 980 (2010), rev. denied
296 Kan. 1131 (2013). In sum, per the Baber court, (G) is more specific than (A) and the
"law is clear that a specific provision within a statute controls over a more general
provision within the statute." 44 Kan. App. 2d at 753. Thus, when "a defendant is subject
to K.S.A. 22-3717(d)(1)(G), he or she is to be sentenced under that subsection. Any other
sentence imposed is illegal." 44 Kan. App. 2d at 754.
Carpenter then moves from the 2007 version of K.S.A. 22-3717 to its 2013
amendments. He claims this latter version simply "clarifies the prior meaning of the
statutory language." He argues that because the 2013 amendments changed subsection
(D), there must have been ambiguity in 22-3717(d)(1). As mentioned, 22-
3717(d)(1)(D)(i) originally read in 2007:
"(D)(i) The sentencing judge shall impose the postrelease supervision period
provided in subparagraph (d)(1)(A), (d)(1)(B) or (d)(1)(C), unless the judge finds
substantial and compelling reasons to impose a departure based upon a finding that the
current crime of conviction was sexually motivated. In that event, departure may be
imposed to extend the postrelease supervision to a period of up to 60 months."
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But after the 2013 amendments, (d)(1)(D) read:
"(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."
(Emphases added.) K.S.A. 2013 Supp. 22-3717.
Carpenter argues that because the 2013 amendment to (D) points to the limited
period of postrelease supervision set out in (A), then (G)'s lifetime postrelease
supervision is at odds with both (A) and (D). The Baber court essentially rejected his
argument regarding (A) and (G), however. And we explained in Brook that amended
subsection (D) and the original (G) are reconcilable. There we approvingly quoted
Herrmann, 53 Kan. App. 2d at 153:
"'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
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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 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).'" (Emphasis added.) Brook, 309
Kan. at 785.
In addition to holding "there is no conflict or ambiguity" within amended
subsection (d)(1), we also ruled the earlier version had contained no conflict or
ambiguity.
"'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 change to reduce postrelease supervision
generally. . . . 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
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as it was prior to the 2013 amendments.'" (Emphasis added.) Brook, 309 Kan. at 785-86
(quoting Herrmann, 53 Kan. App. 2d at 153-54).
In sum, the date of the sexually violent offense is the controlling factor, with (G)
applying to persons who, like Carpenter, committed sexually violent crimes on or after
July 1, 2006. Brook, 309 Kan. at 786. Like the Carpenter panel, we therefore reject his
latest argument—a distinction of postrelease supervision for persons who are sent to
prison versus those who are granted probation—as inconsistent with the plain language of
the statute and our prior caselaw. Carpenter, 2017 WL 3001025, at *3 ("Through these
amendments, the legislature did not intend to draw a distinction between persons
sentenced directly to prison and persons granted probation.").
Conclusion
For determining length of postrelease supervision, the Legislature clearly has
distinguished between the categories of sexually violent offenses in K.S.A. 22-3717(d)(1)
(D) and (G) based on the date of their commission, not by sentences of probation versus
prison. See Steffes v. City of Lawrence, 284 Kan. 380, Syl. ¶ 2, 160 P.3d 843 (2007)
("The fundamental rule to which all other rules are subordinate is that the intent of the
legislature governs if that intent can be ascertained."). Due to the nature and timing of his
offenses, Carpenter is subject to lifetime postrelease supervision under 22-3717(d)(1)(G).
We affirm the district court and the Court of Appeals.
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PATRICK D. MCANANY, Senior Judge, assigned.1
1
REPORTER'S NOTE: Senior Judge McAnany was appointed to hear case No.
115,713 under the authority vested in the Supreme Court by K.S.A. 20-2616 to fill the
vacancy on the court created by the retirement of Justice Johnson.
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