Post release supervision period not illegal if lesser sentence imposed at revocation

Samuel D. Schirer and Adam D. Stolte won in State v. Roth, No. 113,753 (Kan. August 31, 2018), vacating a "corrected" postrelease supervision period in a Finney County aggravated sexual battery prosecution. In Mr. Roth's case, the district court originally imposed consecutive prison sentences totaling 102 months and imposed a 24-month postrelease supervision period. The district court then granted probation. Mr. Roth's probation was subsequently revoked, but upon revocation, the district court ran the prison sentences concurrently and again pronounced a postrelease supervision period of 24 months. Several years later, the state filed a motion to correct illegal sentence, seeking correction of the postrelease supervision period to reflect lifetime post-release, arguing that Kansas statutes mandated such a postrelease period for a conviction for aggravated sexual battery.

The KSC contrasted Mr. Roth's case with another case decided the same day in State v. Sandoval. The KSC held that, where a district court actually imposes a lesser sentence upon probation revocation, as it is authorized to do under K.S.A. 22-3716(b), the district court can impose any lesser sentence, including a lesser postrelease supervision period:

In today's decision in Sandoval, this court holds that, under the "any lesser sentence" language in K.S.A. 22-3716(b), a district judge pronouncing sentence after probation revocation may choose to sentence anew, even if some component of the original sentence was illegal because it failed to match a mandatory statutory minimum. If a new sentence is pronounced from the bench, the original illegality no longer exists, and the new sentence is not subject to challenge or correction under K.S.A. 22-3504(1). If the judge instead requires the defendant to serve the original sentence, the opposite is true. Any original illegality continues to exist and is subject to challenge or correction under K.S.A. 22-3504(1).

In Sandoval, the judge who revoked the defendant's probation explicitly declined to modify the original sentence and required the defendant to serve it. This left an illegal postrelease term in place and in effect, and it was ripe for later correction. 

Here, on the other hand, the judge who revoked Roth's probation chose to give Roth a "lesser" sentence, as expressly permitted by K.S.A. 22-3716(b). Although the postrelease term pronounced after revocation mimicked the original term, Roth's imprisonment terms were made concurrent rather than consecutive. He was thus sentenced anew after revocation; whatever may have been illegal about the postrelease term when originally pronounced no longer existed and was not subject to correction on the State's later motion under K.S.A. 22-3504(1). 

As a result, the KSC remanded for re-imposition of the original 24-month postrelease supervision in Mr. Roth's case, but affirmed the "corrected" lifetime postrelease supervision period in Mr. Sandoval's case.