Clayton J. Perkins won in State v. Jones, No. 118,268 (Kan. App. November 30, 2018), vacating her postrelease supervision period in a Reno County failure to register prosecution. When Ms. Jones was originally sentenced, the district court imposed a 24-month postrelease supervision period and granted probation. A couple years later, the district court revoked Ms. Jones' probation. At the revocation hearing, the district court modified the previously imposed prison sentences to run concurrently instead of consecutively. The district court did not pronounce any postrelease supervision period at the revocation hearing. Notwithstanding that silence, the journal entry from probation revocation indicated that Ms. Jones had to serve 24 months on postrelease supervision. Ms. Jones moved to correct that provision, but the district court denied the motion.
On appeal, the state argued that the district court's silence at the revocation hearing regarding postrelease supervision should not be construed as a modification of the original postrelease supervision period. In particular the state cited K.S.A. 21-6804(e)(2)(C) that provides that "[f]ailure to pronounce the period of post release supervision shall not negate the existence of such period." After reviewing several KSC cases related to the district court's power upon revocation (blogged about here and here), the COA held that other statutory provisions authorizing "any lesser sentence" upon revocation controlled:
Jones argues that the district court's silence on the period of postrelease supervision at her probation revocation hearing constituted a modification of the postrelease term. Based on McKnight, Sandoval, and Roth, we agree with Jones' claim. The district court modified Jones' sentence at the probation revocation hearing and sentenced her anew. That sentence did not include a period of postrelease supervision. Although the district court may not have intended to vacate Jones' postrelease supervision term upon revoking her probation, the court was authorized to do so and the new lawful sentence was effective when pronounced from the bench. Thus, the district court erred when it later included a 24-month postrelease supervision term in the journal entry.
As a result, the COA vacated the 24-month post-release period and remanded with directions to file a corrected journal entry reflecting no post-release period.
[Update: the state did not file a PR and the mandate issued on January 7, 2019.]
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