State v. Sheets ( 2021 )

No. 123,140
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
AMBER SHEETS,
Appellant.
SYLLABUS BY THE COURT
When the district court revokes probation and imposes a prison sentence on a
felony defendant under K.S.A. 2020 Supp. 22-3716(c), K.S.A. 2020 Supp. 22-3716(f)
prevents the sentencing court from altogether eliminating a postrelease-supervision
period.
Appeal from Sedgwick District Court; CHRISTOPHER M. MAGANA, judge. Opinion filed July 16,
2021. Affirmed in part, sentence vacated in part, and case remanded with directions.
James M. Latta, of Kansas Appellate Defender Office, for appellant.
Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek
Schmidt, attorney general, for appellee.
Before POWELL, P.J., BRUNS, J., and STEVE LEBEN, Court of Appeals Judge Retired,
assigned.
LEBEN, J.: If a statute says that a felon "shall serve a period of postrelease
supervision" after completing the prison portion of a sentence, can the term of that
postrelease-supervision term be zero? We think not. And because that's the basis of the
defendant's legal position in this appeal, we reject it.
With the big picture in mind, let's turn to the details. Those will involve several
statutory provisions. For the reader's convenience, and because there haven't been
substantive changes of any significance during the time this defendant's case has worked
through the criminal-justice system, we cite the current version of those provisions.
Amber Sheets pleaded guilty to one felony, a criminal threat, committed in August
2019. The district court sentenced her to probation with an underlying prison sentence of
eight months that would be served if her probation was revoked.
When Sheets first violated her probation, the court gave her a three-day jail
sanction. That complied with a statutory provision, K.S.A. 2020 Supp. 22-3716(c)(1)(B),
that generally requires a short jail stay as a sanction before the court may consider
revoking the probation and sending the defendant to serve the underlying prison sentence.
But Sheets violated her probation again, and this time the court revoked the
probation. At this point, the statute allowed the court to do so since she had had a jail
sanction. See K.SA. 2020 Supp. 22-3716(c)(1)(C). The same statute also allowed the
court to require that she serve "the sentence imposed" previously or "any lesser
sentence." K.S.A. 2020 Supp. 22-3716(c)(1)(C). The court elected to impose a lesser
sentence of seven months, and the judge announced that from the bench.
What the judge did not do, though, was make any comment from the bench about
whether Sheets had to serve a period of postrelease supervision after she completed the
seven-month prison sentence. In a written order entered later, the judge imposed a 12-
month postrelease-supervision period. That was the same postrelease-supervision period
that had been included in the original sentencing order with the earlier eight-month prison
sentence.
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The judge's failure to mention postrelease supervision when announcing the
sentence from the bench after revoking probation could be significant. The postrelease-
supervision period is part of the sentence. See State v. Jones, 293 Kan. 757, 762, 268
P.3d 491 (2012). Usually, whatever sentence is announced from the bench is final and
can't be corrected later by the sentencing judge except for minor clerical errors. K.S.A.
2020 Supp. 22-3504(b); State v. Edwards, 309 Kan. 830, 835-36, 440 P.3d 557 (2019).
But there's an exception to that rule: If the sentence as announced isn't a lawful one
because it doesn't comply with the sentencing statutes, then it can be corrected to make it
lawful while the defendant is still serving the sentence. See K.S.A. 2020 Supp. 22-
3504(a), (c); State v. Roberts, 309 Kan. 420, 422, 435 P.3d 1149 (2019). Even then,
though, the terms of the sentence must be announced from the bench, not added in a later
document. See State v. McDaniel, 292 Kan. 443, 445-46, 254 P.3d 534 (2011).
Sheets has appealed to try to eliminate any postrelease supervision. Since the
district court didn't announce a postrelease-supervision period from the bench, Sheets
argues that the court can't add it later. Whether that's true depends on whether the
sentence announced from the bench could lawfully exclude postrelease supervision: if
not, the sentence entered was an unlawful one, and the district court has jurisdiction to
correct an unlawful sentence. K.S.A. 2020 Supp. 22-3504(a); Edwards, 309 Kan. at 835-
36.
To determine whether the district court could lawfully sentence Sheets to a seven-
month prison term followed by no postrelease supervision, we must consider one more
statutory provision. When a felony offender's probation is revoked under subsection (c)
of K.S.A. 2020 Supp. 22-3716 (which is the applicable section for most felony
offenders), then subsection (f) also applies:
"(f) For crimes committed on and after July 1, 2013, a felony offender whose
nonprison sanction is revoked pursuant to subsection (c) or whose underlying prison term
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expires while serving a sanction pursuant to subsection (c)(1) shall serve a period of
postrelease supervision on the completion of the prison portion of the underlying
sentence." K.S.A. 2020 Supp. 22-3716(f).
Sheets committed her felony in 2019 and her probation was revoked under subsection (c),
so subsection (f) applies to her. Under it, she "shall serve a period of postrelease
supervision upon the completion of the prison portion of the underlying sentence."
K.S.A. 2020 Supp. 22-3716(f).
She argues that because subsection (c)(1)(C) gave the district court the ability to
impose "any lesser sentence" after it revoked her probation, the court had the ability to
reduce the postrelease-supervision period to zero. If there's doubt about that, she urges
that we apply the rule of lenity, under which ambiguous statutes are interpreted in favor
of the criminal defendant. See State v. Gales, 312 Kan. 475, 485, 476 P.3d 412 (2020).
But we don't think a fair reading of subsection (f) allows the district court to
altogether eliminate the postrelease-supervision period:
• First, the concept of "a period" generally suggests some length of time. See
American Heritage Dictionary 1311 (5th ed. 2011) (defining "period" as "[a]n
interval of time"); New Oxford American Dictionary 1303 (3d ed. 2010) (defining
"period" as "a length or portion of time").
• Second, the statutory phrase includes "shall serve." "Shall" generally suggests
something must happen, and a person wouldn't serve any time in postrelease
supervision if the time period were zero. See State v. Rashke, 289 Kan. 911, 920,
219 P.3d 481 (2009) (noting several cases interpreting "shall" as mandatory);
State v. Bee, 288 Kan. 733, 739, 207 P.3d 244 (2009) (noting that the court had
interpreted "shall" to be mandatory in the context of nonprison sanctions); Scalia
& Garner, Reading Law: The Interpretation of Legal Texts § 11 (2012) (noting
that "shall" generally is mandatory); American Heritage Dictionary 1601
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(defining "serve" as "[t]o work through or complete (a period of service: served
four terms in Congress" or "[t]o be in prison for (a period or term): served 10
years for armed robbery"). Even so, we recognize that sometimes "shall" can
mean "may" or "should" based on context, and each case must be examined
considering the specific statutory language. See Rashke, 289 Kan. at 920-22. In
context here, though, subsection (f) serves as a limit on the district court's
otherwise broad authority—and if subsection (f) is not a mandatory provision,
there seems to be no purpose served by it. We do not presume the Legislature
adds statutory language unnecessarily. State v. Sedillos, 279 Kan. 777, 782, 112
P.3d 854 (2005).
• Third, subsection (f) applies to felonies, but not misdemeanors, suggesting that
greater supervision is needed when probation is revoked for a felon. And the
provision in subsection (f) applies postrelease supervision even to defendants
whose prison sentence expires (because of the total credit for days in custody)
while they are serving an initial sanction in the local jail, not serving a state prison
sentence. The statutory scheme here strongly suggests that postrelease supervision
was intended in the more serious situation—like Sheets' case—when probation is
revoked (after an initial jail sanction failed to correct the defendant's behavior)
and the defendant is sent to prison. The common situation in both cases is that the
defendant is on felony probation and has not complied with the probation terms.
We are to give statutory language its plain and natural meaning. See State v. Rizal, 310
Kan. 199, 205-06, 445 P.3d 734 (2019). We cannot read subsection (f) to allow the
district court to eliminate altogether a postrelease-supervision term.
Sheets points to our decision in State v. Jones, 56 Kan. App. 2d 556, 433 P.3d 193(2018), to support her argument. It's similar to the facts of her case: the district court
revoked Jones' probation, imposed a lesser prison sentence than first ordered, and then
made no statement from the bench about postrelease supervision. We concluded that "the
district court's silence on the postrelease term at a probation revocation hearing—even if
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by mistake—constitutes a lawful lesser sentence that is effective when pronounced from
the bench." 56 Kan. App. 2d at 566. And as we've explained here, a lawful sentence
announced from the bench can't be modified later.
But there's a key difference between Jones and this case. In Jones, the defendant
was on probation for a crime committed before July 1, 2013. So subsection (f), which
we've found critical in Sheets' case, did not apply in Jones. In Jones, then, there was no
requirement that the defendant "shall serve a period of postrelease supervision."
Postrelease supervision is part of the sentence, so K.S.A. 2020 Supp. 22-
3716(b)(3)(B)(iii) allows the court to enter "any lesser sentence." With only those
statutory provisions to apply, as we held in Jones, the failure to say anything about
postrelease supervision effectively eliminated any postrelease-supervision term: without
the constraint of subsection (f), the trial court could do so.
There's a reason the current provision in subsection (f) didn't apply to crimes
committed, as in Jones, before July 1, 2013. Subsection (f) was amended, effective that
date, to require a postrelease-supervision term for most felony probation revocations.
That's when the present language, requiring a person whose probation is revoked under
subsection (c) to "serve a period of postrelease supervision upon the completion of the
prison portion of the underlying sentence," was added. See L. 2013, ch. 76, § 5. Before
that 2013 amendment, our Supreme Court had held that the authority to impose "any
lesser sentence" when revoking probation allowed the sentencing court to shorten the
prison sentence, the postrelease-supervision period, or both. State v. McKnight, 292 Kan.
776, 782, 257 P.3d 339 (2011).
The McKnight court invited the Legislature to add language limiting the
sentencing court's authority if some limitation was intended, 292 Kan. at 783, and the
Legislature acted on that invitation in 2013. But the amended language in subsection (f)
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providing a limitation didn't apply to the probation revocation in Jones, so the district
court there had the broad authority noted in McKnight.
In Sheets' case, though, the amended language in subsection (f) applies, and we
find that it unambiguously prevents eliminating postrelease supervision altogether. In this
conclusion, we agree with three panels of our court that have addressed the same issue in
unpublished opinions. See State v. Pierce, No. 122,381, 2021 WL 833999, at *5 (Kan.
App.) (unpublished opinion), rev. denied 313 Kan. ___ (June 10, 2021); State v. Lozano,
No. 122,459, 2021 WL 642306, at *5-6 (Kan. App.) (unpublished opinion), rev. denied
313 Kan. ___ (June 10, 2021); State v. Thomas, No. 122,518, 2020 WL 6930601, at *2
(Kan. App. 2020) (unpublished opinion). While we realize that one earlier unpublished
opinion came to a different result, there was no discussion of subsection (f) in it, so we do
not find it persuasive on the point at issue here. See State v. Bishop, No. 119,961, 2019
WL 6973428, at *5-6 (Kan. App. 2019) (unpublished opinion).
So where does this leave us in Sheets' case? After revoking Sheets' probation, the
district court had to include a postrelease-supervision term but did not do so when
announcing the sentence from the bench. That made the sentence as announced an illegal
one that may be corrected later. But it's not proper simply to add a new part of the
sentence that wasn't announced from the bench in a later written order. Meanwhile,
Sheets has not challenged in this appeal either the probation revocation or the imposition
of a reduced seven-month prison sentence.
We therefore affirm the district court's revocation of Sheets' probation and the
imposition of a seven-month prison sentence. We vacate the journal entry of the
postrelease-supervision period and remand with directions for the district court to
announce in a new sentencing hearing a postrelease-supervision term greater than zero.
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