State v. WalkerState v. Walker
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- Before:
- Six
The opinion of the court was delivered by
Six, J.;
David L. Walker pled guilty to aggravated indecent liberties with a child and received a presumptive prison term and an extended postrelease supervision term. A divided panel of the Court of Appeals, in an unpublished opinion, vacated the post-release term. We granted the State’s petition for review. See
The question we consider is whether, following a plea of guilty to a sexually violent crime, Walker’s extended postrelease supervision period is unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), and State v. Gould, 271 Kan. 394, 23 P.3d 801 (2001). The answer is “no.” We reverse the decision of the Court of Appeals vacating and remanding Walker’s sentence. We affirm Walker’s sentence.
David L. Walker was charged in August 2000 with aggravated indecent liberties with a child after he had sex with his mentally retarded daughter. In exchange for Walker s guilty plea, the State agreed to recommend a presumptive prison sentence and not seek a departure. Walker sought a downward dispositional and durational departure based on his lack of criminal history. The trial court imposed a presumptive prison term of 61 months and a post-release supervision term of 60 months based on the “nature of the offense.”
Walker appealed, arguing that the imposition of an extended postrelease supervision period violated his constitutional rights under Apprendi and Gould. A majority of the Court of Appeals panel agreed and, in an unpublished opinion, vacated the postrelease term and remanded for resentencing.
DISCUSSION
The State argues that Walker’s extended postrelease period does not violate Apprendi and Gould. The State raises a question of law over which we have unlimited review. See State v. Crow, 266 Kan. 690, 694, 974 P.2d 100 (1999).
Postrelease supervision is mandatory and is a component of the underlying prison sentence.
State v. Anthony,
273 Kan. 726, 728, 45 P.3d 852, 854 (2002). Because Walker was convicted of aggravated indecent liberties with a child, a severity level 3 crime, he was required to serve 36 months on postrelease supervision. See
Postrelease supervision may be extended under certain circumstances.
“The sentencing judge shall impose the postrelease supervision period provided in subparagraph (d)(1)(A) [36 months], unless the judge finds substantial and compelling reasons to impose a departure based upon a finding that the current crime of conviction was sexually violent or sexually motivated. In that event, departure may be imposed to extend the postrelease supervision to a period of up to 60 months.”
“Sexually violent crime” is defined in
In
Apprendi,
the United States Supreme Court held: “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490. In
Gould,
we applied
Apprendi
to the scheme for imposing upward departure sentences under
In Anthony, we held that the trial court’s extension of the post-release supervision period from 36 to 60 months increased the penalty for a crime beyond the statutoxy maximum, implicating Apprendi. We also held in Anthony that the increased postrelease supervision period did not offend Apprendi or Gould:
“Here, the district court simply used the fact that Anthony was convicted of aggravated indecent liberties, by definition a sexually violent crime, to impose an extended postrelease supervision period underK.S.A. 2001 Supp. 22-3717(d)(l)(D)(i) . In doing so, the court was not required to make an additional finding of fact beyond that made by the jury. Because the fact relied upon to extend the period of postrelease supervision was found by a jury beyond a reasonable doubt, the 60-month postrelease period does not violate Apprendi or Gould.” 273 Kan. at 729.
Walker’s situation is similar to Anthony’s. Both were convicted of aggravated indecent liberties with a child, and both received extended postrelease supervision terms based on the “nature of the offense.” Walker argues that the trial court here based its post-release departure on the fact that the crime was sexually motivated, a fact not admitted by Walker as part of his guilty plea. In Anthony, we held that the trial court’s “nature of the offense” basis for imposing an extended postrelease period referred to the fact that aggravated indecent liberties with a child is a statutorily defined sexually violent crime. 273 Kan. at 729. There is no reason to conclude otherwise here.
There is one key difference between the facts here and those in
Anthony.
Anthony was convicted by a jury, while Walker pled guilty
The Court of Appeals faced this question in
State v. Allen,
30 Kan. App. 2d 774, 48 P.3d 678 (2002). Allen pled guilty to four counts of aggravated indecent liberties with a child and three counts of criminal sodomy. He received a presumptive prison term and an extended postrelease supervision term under
The Court of Appeals applied
Anthony
and upheld the extended postrelease supervision period. The
Allen
court noted that while the trial court found Allen’s crimes to be sexually motivated, they were also statutorily defined sexually violent crimes under
“The plea to a charge of aggravated indecent liberties is a plea to a crime which is sexually violent and sexually motivated by definition. No inference is necessary. Once the statutory nature of the crime is determined, the provisions ofK.S.A. 2001 Supp. 22-3717(d)(l)(D)(i) can be applied. There is no need for any evidentiary fact-finding by the court, which is prohibited by Apprendi and Gould.” 30 Kan. App. 2d at 777.
A different, but divided, panel of the Court of Appeals recently arrived at the opposite conclusion in State v. Purcell, 30 Kan. App. 2d 1102, 54 P.3d 523 (2002). Purcell pled guilty to aggravated indecent liberties with a child and contributing to a child’s misconduct. He received a presumptive prison sentence and an extended postrelease supervision period. The Purcell majority refused to apply Anthony because Purcell, unlike Anthony, pled guilty to a sexually violent crime. The court concluded:
“In the instant matter, it is true that defendant pled guiliy to a sexually violent crime. However, the plea of guiliy did not authorize the court to durationally upward depart on the postrelease supervision period. A factual determination that the crime was one of sexual violence was never submitted to the jury and was never proven beyond a reasonable doubt.” 30 Kan. App. 2d at 1105-06.
Also relevant to our analysis are State v. Cody, 272 Kan. 564, 35 P.3d 800 (2001), and State v. Kneil, 272 Kan. 567, 35 P.3d 797 (2001). Cody pled guilty to multiple drug crimes and received an upward durational departure sentence. We vacated Cody’s sentence, relying on Gould. Cody, 272 Kan. at 566. Kneil pled guilty to theft and received an upward durational departure sentence. We vacated Kneil’s sentence, reasoning that her sentence, like Cody’s, was imposed under an unconstitutional sentencing scheme and was void. Kneil, 272 Kan. at 572.
The Court of Appeals in Allen considered Cody but distinguished it on the basis that Cody’s upward durational departure was anchored to the unproven inference that Cody was a major drug dealer, while Allen’s extended postrelease supervision was based on the statutory classification of his crime, not a court-made inference. 30 Kan. App. 2d at 277. On the other hand, the Court of Appeals in Purcell noted Cody and Kneil and concluded that “a plea of guilty does not provide the necessary facts to impose an upward durational departure, nor does the fact that a defendant entered into a plea agreement agreeing to an illegal sentence malee that sentence legal.” 30 Kan. App. 2d at 1105.
Cody
and
Kneil
are distinguishable. They deal with upward durational departures under
Walker pled guilty to a statutorily defined sexually violent crime. His extended postrelease supervision period imposed under
The judgment of the Court of Appeals vacating and remanding Walker’s sentence is reversed. The judgment of the district court is affirmed.