State v. Arrocha

1

No. 100,588

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

JOHN L. ARROCHA,
Appellant.

SYLLABUS BY THE COURT

1.
A defendant has a right to be present at sentencing. In felony cases, the defendant
shall be present at the imposition of the sentence. A sentence imposed outside the
presence of the defendant is void unless the defendant has waived this right.

2.
The oral pronouncement of a sentence in the defendant's presence controls over
the subsequent written journal entry if there is a conflict between the two, since allowing
the journal entry to control would effectively allow the defendant to be sentenced in
absentia.

2


3.
The sentencing guidelines define two segments of the criminal sentence, the
period of confinement and the period of postrelease supervision.

4.
In a case where the sentencing court failed to pronounce the term of postrelease
supervision but included the term in the sentencing journal entry, we vacate the sentence
and remand for resentencing for the failure to pronounce the complete sentence as the law
requires.

Appeal from Johnson District Court; PETER V. RUDDICK, judge. Opinion filed
October 9, 2009. Sentence vacated and case remanded with directions.
Michael J. Bartee, of Michael J. Bartee, P.A., of Olathe, for appellant.

Steven J. Obermeier, assistant district attorney, Stephen M. Howe, district attorney,
and Steve Six, attorney general, for appellee.

Before RULON, C.J., ELLIOTT and HILL, JJ.


3

HILL, J.: This appeal presents the question of whether a district court can legally
add, by journal entry, a postrelease supervision term to a criminal sentence already
pronounced from the bench. The law directs the sentencing court to pronounce the
complete sentence at the sentencing hearing where the defendant is present. Criminal
sentences have two parts, a period of confinement and a period of postrelease
supervision. Because the court here did not pronounce the complete sentence at the
sentencing hearing by failing to include the term of postrelease supervision, we vacate the
sentence and remand the case for resentencing.

As an afterthought, the court added the postrelease supervision term in the journal entry
of sentencing.

John L. Arrocha is serving a prison sentence for his 2002 aggravated robbery and
kidnapping convictions. In July 2007, Arrocha filed a "Motion for Correction of Journal
Entry of Sentencing," stating the district court failed to announce any postrelease
supervision at his sentencing hearing but had included the period in the written journal
entry. Arrocha argued the inclusion of postrelease supervision in the journal entry was
ineffective and asked the court to correct the journal entry to show no period of
postrelease supervision. Only then, in his view, would the journal entry accurately
reflect what the court said at the sentencing hearing.

4

The district court summarily denied the motion by citing K.S.A. 1999 Supp. 21-
4704 and ruling the "plain language of the statute clearly indicates that even if the
postrelease supervision period is not pronounced at sentencing, the postrelease
supervision period is still valid." Arrocha appeals to this court, arguing the inclusion of
36 months' postrelease supervision in the journal entry of sentencing was an error the
court should have corrected by granting his motion. The defendant asks that we remand
the case with directions to enter a journal entry of sentencing consistent with the sentence
as originally pronounced and eliminate any postrelease supervision period.

A statute and a Supreme Court case control this issue.

We have read the transcript of the sentencing hearing and, indeed, the court did
not announce a period of postrelease supervision at that time. But the journal entry set a
postrelease supervision term of 36 months. Also, we note that according to our
sentencing guidelines, aggravated robbery, in violation of K.S.A. 21-3427 (Furse 1995), a
severity level 3 person felony, and kidnapping, in violation of K.S.A. 21-3420 (Furse
1995), also a severity level 3 person felony, are presumptive imprisonment crimes. This
means K.S.A. 1999 Supp. 21-4704(e)(2) controls.

That law requires the court to pronounce the complete sentence:
5


"In presumptive imprisonment cases, the sentencing court shall
pronounce the complete sentence, which shall include the prison sentence,
the maximum potential reduction to such sentence as a result of good time
and the period of postrelease supervision at the sentencing hearing. Failure
to pronounce the period of postrelease supervision shall not negate the
existence of such period of postrelease supervision." K.S.A. 1999 Supp.
21-4704(e)(2).

Obviously, the sentencing court failed here to pronounce the complete sentence.
In commenting about a later version of this statute, our Supreme Court stated: "This
[statutory] requirement clearly mandates and defines two segments of the bifurcated
sentence: the period of confinement and the period of postrelease supervision." State v
Gaudina, 284 Kan. 354, 358, 160 P.3d 854 (2007). The court also stated that
"postrelease supervision is the portion of the sentence that does not begin until the
confinement portion of the sentence has been served." 284 Kan. at 358.

A defendant has a right to be present at sentencing. In felony cases, the defendant
shall be present at the imposition of the sentence. See K.S.A. 22-3405(1). Therefore, a
sentence imposed outside the presence of the defendant is void unless the defendant has
waived this right. Also, the oral pronouncement of a sentence in the defendant=s presence
controls over the subsequent written journal entry if there is a conflict between the two,
6

since allowing the journal entry to control would effectively allow the defendant to be
sentenced in absentia. See State v. Baldwin, 37 Kan. App. 2d 140, 143, 150 P.3d 325
(2007); see Abasolo v. State, 284 Kan. 299, 303-04, 160 P.3d 471 (2007).

The court erred when it did not pronounce the postrelease supervision term at the
sentencing hearing. But that error does not mean Arrocha will not have to serve such a
term. Clearly, the second section of the quoted statute posits that the failure to pronounce
the period does not negate the existence of such a period. The incomplete sentence given
Arrocha must be corrected.

We vacate the defendant's sentence and remand with directions for imposition of a
complete sentence in open court.