State v. Knopp

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NOT DESIGNATED FOR PUBLICATION

No. 116,365

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

MAX CHARLES KNOPP,
Appellant.


MEMORANDUM OPINION

Appeal from Saline District Court; JARED B. JOHNSON, judge. Opinion filed September 1, 2017.
Affirmed.

Michelle A. Davis, of Kansas Appellate Defender Office, for appellant.

Amy E. Norton, assistant county attorney, Ellen Mitchell, county attorney, and Derek Schmidt,
attorney general, for appellee.

Before ARNOLD-BURGER, C.J., LEBEN, J., and BURGESS, S.J.

Per Curiam: Max Charles Knopp entered Alford pleas to two counts of
aggravated indecent liberties with a child in 2012. See North Carolina v. Alford, 400 U.S.
25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970). The district court sentenced Knopp to 144
months' inprisonment followed by lifetime postrelease supervision, as provided in K.S.A.
2009 Supp. 22-3717(d)(1)(G). Knopp now challenges his sentence of lifetime postrelease
supervision, arguing that the 2013 amendments to K.S.A. 22-3717 required the district
court to sentence him to 36 months' postrelease supervision. This court decided this issue
against Knopp's position in State v. Herrmann, 53 Kan. App. 2d 147, 384 P.3d 1019
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(2016), rev. denied 306 Kan. ___ (July 25, 2017). While Knopp argues that Herrmann
was wrongly decided, none of his arguments are persuasive. Accordingly, we affirm the
district court's ruling.

FACTUAL AND PROCEDURAL BACKGROUND

In November 2012, as part of a plea agreement with the State, Knopp entered
Alford pleas to two counts of aggravated indecent liberties with a child based on crimes
that occurred between August 2009 and January 2010. See Alford, 400 U.S. 25. An
Alford plea allows a defendant to plead guilty without admitting the facts of the offense
or while maintaining his or her innocence in order to obtain a favorable plea deal. See
State v. Case, 289 Kan. 457, 460, 213 P.3d 429 (2009). On January 30, 2013, the district
court sentenced Knopp to a total of 144 months in prison followed by lifetime postrelease
supervision.

Knopp appealed to this court, arguing that imposing lifetime postrelease
supervision violated the United States and Kansas constitutional prohibitions against
cruel and unusual punishment. State v. Knopp, No. 109,534, 2014 WL 4231231, at *1
(Kan. App. 2014) (unpublished opinion). This court concluded that lifetime postrelease
supervision was not cruel and unusual punishment and affirmed the sentence. 2014 WL
4231231, at *6, 8. The Kansas Supreme Court denied review on July 21, 2015.

In April 2016, Knopp filed a pro se habeas motion under K.S.A. 60-1507 arguing
that he had received ineffective assistance of counsel because his attorney had misled him
into pleading guilty and accepting a term of lifetime postrelease supervision when the
plea agreement provided that he would receive a term of 36 months' postrelease
supervision. Knopp contended that the State should be bound by the plea agreement, so
he should be resentenced to 36 months' postrelease supervision.

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On May 20, 2016, the district court summarily denied Knopp's motion without
holding a hearing. The district court denied the motion because it lacked factual support.
In particular, the district court noted that (1) the plea agreement stated in bold type that
Knopp would be "'subjected to lifetime postrelease supervision,'" (2) the district court had
confirmed with Knopp on two separate occasions during the plea hearing that he would
be subject to lifetime postrelease supervision, and (3) Knopp had confirmed that there
were no other promises, offers, or conditions made to him to induce his plea that were not
in writing. The district court further concluded that Knopp's motion essentially claimed
that his sentence was illegal because the Kansas sentencing statutes required the court to
impose lifetime postrelease supervision.

Knopp appeals.

THE DISTRICT COURT DID NOT ERR IN DENYING KNOPP'S REQUEST TO MODIFY HIS
PERIOD OF POSTRELEASE SUPERVISION FROM LIFETIME TO 36 MONTHS

On appeal, Knopp argues that his sentence is illegal because he should have been
sentenced to 36 months of postrelease supervision under K.S.A. 2016 Supp. 22-
3717(d)(1)(D) rather than lifetime postrelease supervision under K.S.A. 2016 Supp. 22-
3717(d)(1)(G) based on the 2013 amendments to K.S.A. 22-3717.

Although Knopp raises these arguments for the first time on appeal, this court may
consider illegal-sentence issues at any time, including for the first time on appeal. K.S.A.
22-3504(1); State v. Luarks, 302 Kan. 972, 975, 360 P.3d 418 (2015). An illegal sentence
includes a sentence that does not comply with the statutory provisions either in term or in
character to be served. State v. Gray, 303 Kan. 1011, 1014, 368 P.3d 1113 (2016).
Whether Knopp's sentence is illegal depends on which of the two statutory provisions
applies to him, and answering this question requires this court to interpret Kansas
sentencing statutes. This court reviews statutory-interpretation issues independently, with
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no required deference to the district court's conclusions. State v. Brown, 303 Kan. 995,
1005, 368 P.3d 1101 (2016).

K.S.A. 2016 Supp. 22-3717(d)(1)(G) provides that anyone convicted of a sexually
violent crime committed after July 1, 2006, "shall be released to a mandatory period of
postrelease supervision for the duration of the person's natural life." Aggravated indecent
liberties with a child is a sexually violent crime as that term is used in the statute. K.S.A.
2016 Supp. 22-3717(d)(5)(C). Knopp was convicted of two counts of aggravated
indecent liberties with a child that occurred between August 2009 and January 2010. The
district court concluded that this provision applied to Knopp and sentenced him to
lifetime postrelease supervision.

On the other hand, K.S.A. 2016 Supp. 22-3717(d)(1)(D) (as amended in 2013)
provides fixed terms for postrelease supervision—up to 36 months based on the severity
of the crime—for those sentenced for certain crimes, including sexually violent crimes.
That provision applied to offenders sentenced for crimes "committed on or after July 1,
1993." K.S.A. 2016 Supp. 22-3717(d)(1). Knopp committed his crime in 2009 or 2010,
At first glance, this provision could also apply to him.

Knopp argues that both subparagraphs (D) and (G) apply to him, so the statute is
ambiguous and must be construed in favor of the accused under the rule of lenity. See
State v. Jordan, 303 Kan. 1017, 1019, 370 P.3d 417 (2016). The rule of lenity would thus
require a court to apply subparagraph (D) and impose the shorter postrelease-supervision
term.

The most fundamental rule of statutory interpretation is that the intent of the
legislature governs if that intent can be determined. State v. Toliver, 306 Kan. 146, Syl. ¶
1, 392 P.3d 119 (2017); Salina Journal v. Brownback, 54 Kan. App. 2d 1, Syl. ¶ 3, 394
P.3d 134 (2017). When analyzing a statute to determine legislative intent, appellate
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courts must consider the various provisions of the same statute "in pari materia" and
reconcile and harmonize them if possible. State v. Keel, 302 Kan. 560, 573-74, 357 P.3d
251 (2015), cert. denied 136 S. Ct. 865 (2016). Appellate courts also presume that the
legislature did not intend for any portion of a statute to have no meaning or application.
302 Kan. at 574.

If Knopp's argument was given any credence, subparagraph (G) would never apply
to a case. In his reading, subparagraph (D) applies to all sexually violent crimes
committed from July 1, 1993, forward—even those committed on or after July 1, 2006,
where subparagraph (G) seems to apply. According to Knopp's reading of the statute a
court would always be required to apply the shorter term provided in subparagraph (D)
under the rule of lenity.

This court has considered this problem with Knopp's argument, when made by
another defendant, in Herrmann.

The Herrmann court first looked at the plain language of K.S.A. 2015 Supp. 22-
3717, focusing on subsection (d)(1). That provision provides that "[p]ersons sentenced
for crimes, other than off-grid crimes, committed on or after July 1, 1993, or persons
subject to subparagraph (G), will not be eligible for parole, but will be released to a
mandatory period of postrelease supervision upon completion of the prison portion of
their sentence as follows" and then prescribes the postrelease-supervision terms in the
subsequent subparagraphs. K.S.A. 2015 Supp. 22-3717(d)(1). Herrmann determined that
the plain language of (d)(1) meant that "persons sentenced for crimes committed after
July 1, 1993, will not be eligible for parole; instead, they will be subject to mandatory
postrelease supervision as provided in the subparagraphs that follow" and that the statute
expressly stated the postrelease-supervision terms "provided in the subparagraphs that
follow do not apply to 'persons subject to subparagraph (G).'" 53 Kan. App. 2d at 152. In
Herrmann, because the defendant was subject to subparagraph (G), the court concluded
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that no other subparagraph—including subparagraph (D)—applied to him. 53 Kan. App.
2d at 152.

Herrmann also discussed that the provisions of subparagraphs (D) and (G) apply
to distinct classes of persons. The court noted that K.S.A. 22-3717 as a whole applies to
all persons committed of a crime after July 1, 1993, while subparagraph (G) was added to
create an explicit exception for persons convicted of sexually violent crimes committed
after July 1, 2006. 53 Kan. App. at 153 (citing L. 2006, ch. 212, sec. 19). Considering the
provisions in pari materia, the Herrmann court determined that because subparagraph
(D) falls under subsection (d)(1), it "applies to all persons but those expressly excluded:
persons sentenced for off-grid crimes committed on or after July 1, 1993, and persons
committing a sexually violent crime on or after July 1, 2006, as stated in subparagraph
(G)." 53 Kan. App. 2d at 153.

Ultimately, the Herrmann court concluded that the two provisions could both be
read to have application, depending on the date of the offense. Subparagraph (D)'s shorter
terms of postrelease supervision would apply to those sentenced for sexually violent
crimes committed after July 1, 1993, but before July 1, 2006. Subparagraph (G)'s lifetime
supervision would apply to those sentenced for sexually violent crimes committed on or
after July 1, 2006. 53 Kan. App. 2d at 153.

Since the Herrmann opinion was filed, this court has agreed with its conclusion in
other cases. See, e.g., State v. Candley, No. 115,640, 2017 WL 2494948, at *4-6 (Kan.
App. 2017) (unpublished opinion), petition for rev. filed June 19, 2017; State v. Dackin,
No. 115,687, 2017 WL 2403349, at *2-3 (Kan. App. 2017) (unpublished opinion),
petition for rev. filed June 28, 2017; State v. Rothstein, No. 114,749, 2016 WL 7031921,
at *2 (Kan. App. 2016) (unpublished opinion), rev. denied 306 Kan. ___ (July 25, 2017).

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Knopp argues that Herrmann was wrongly decided and asks this court not follow
it. Knopp is correct that this court is not bound to follow the decisions of previous panels
of this court. See State v. Cottrell, 53 Kan. App. 2d 425, 434, 390 P.3d 44 (2017), petition
for rev. filed February 15, 2017. Even so, this court does not lightly disagree with prior
decisions reached by other panels. See State v. Moore, 52 Kan. App. 2d 799, 816, 377
P.3d 1162, rev. granted 305 Kan. 1256 (2016). The State responds that Herrmann
correctly interpreted K.S.A. 2016 Supp. 22-3717. As a result, the district court properly
determined that Knopp was subject to lifetime postrelease supervision under
subparagraph (G).

Knopp argues that the Herrmann court misread the plain language of K.S.A. 2016
Supp. 22-3717(d)(1) and improperly read a timeframe into the statute. In particular, he
contends that subsection (d)(1) simply provides that those subject to subparagraph (G) are
not eligible for parole and does not state that any other subparagraph applies. In Knopp's
view, both subparagraphs (D) and (G) could apply as they both fall under (d)(1), and the
Herrmann court was wrong to read a timeframe limitation into the statute that was not
readily found in it.

Knopp's reading of subsection (d)(1), however, would render the language of
subparagraph (G) meaningless. All persons convicted of off-grid crimes committed after
July 1, 1993, are ineligible for parole—it is not necessary to add that those subject to
subparagraph (G) are ineligible for parole. See McGann v. McKune, 21 Kan. App. 2d
798, 801, 911 P.2d 811 (1995). Additionally, the language in subsection (d)(1) referring
to those subject to subparagraph (G) was added at the same time subparagraph (G) was
added to K.S.A. 22-3717. L. 2006, ch. 212, sec. 19. This demonstrates that the legislature
intended that the mandatory postrelease-supervision terms provided in the subparagraphs
that follow subsection (d)(1) would not apply to those subject to subparagraph (G), as
discussed in Herrmann. See 53 Kan. App. 2d at 153.
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Knopp's argument also does not address the simple fact that under his
interpretation, K.S.A. 2016 Supp. 22-3717(d)(1)(G) would no longer apply to any
defendant. Herrmann's reading ensures that both subparagraphs (D) and (G) are in
workable harmony, without rendering either provision meaningless or inapplicable.
Notably, the Kansas Legislature recently amended K.S.A. 22-3717 to reflect the holding
in Herrmann. As of May 18, 2017, subsection (d)(1)(D) now explicitly applies only to
sexually violent crimes "committed on or after July 1, 1993, but prior to July 1, 2006." L.
2017, ch. 62, sec. 10. This strongly suggests that the legislature approved of and
confirmed Herrmann's interpretation of 22-3717.

Knopp's arguments also overlook the history of the 2013 amendments to
subparagraph (D). As Herrmann described, the 2013 amendments shortened postrelease
supervision for most crimes by removing the requirement that good-time credit (which
shortens certain prison sentences by 15 or 20% for good behavior) be added to the
postrelease supervision term. Compare K.S.A. 2012 Supp. 22-3717(d)(1)(A)-(C) with
K.S.A. 2013 Supp. 22-3717(d)(1)(A)-(C); see Herrmann, 53 Kan. App. 2d at 153-54.
These shortened postrelease terms applied retroactively to defendants who had already
been sentenced. K.S.A. 2013 Supp. 22-3717(s)-(t) (providing that subsections [d][1][A]-
[C] and [d][1][E] apply retroactively). But the legislature did not want to provide shorter
postrelease terms to those who had committed certain crimes, including sexually violent
crimes, so it amended subparagraph (D) to create an exception—good-time credit would
still be added to the postrelease-supervision terms of defendants convicted of those
crimes. 53 Kan. App. 2d at 153-54. Significantly, the legislature did not amend
subparagraph (G) and has not since it was first enacted in 2006. This history supports the
conclusion that the 2013 amendments did not do away with lifetime postrelease
supervision for sexually violent crimes committed after July 1, 2006. Dackin, 2017 WL
2403349, at *2.

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Knopp argues further that the Kansas Supreme Court's decision in State v.
Cameron, 294 Kan. 884, 281 P.3d 143 (2012), casts doubt on the reasoning in Herrmann.
In Cameron, a case decided before the 2013 legislative amendments, the defendant
argued that the district court erred in sentencing him to lifetime postrelease supervision
under (d)(1)(G) because the court had the authority and discretion to impose a shorter
term under (d)(1)(B), which provided for 24 months of postrelease supervision based on
the severity level of the crime. 294 Kan. at 898. In essence, the defendant argued that the
rule of lenity required the district court to impose the shorter term. 294 Kan. at 899.

The Cameron court ultimately concluded that only subsection (d)(1)(G) applied to
the defendant. The court discussed that the rule of lenity only applies if there is
reasonable doubt about the meaning of a criminal statute. 294 Kan. at 899 (citing State v.
Chavez, 292 Kan. 464, 468, 254 P.3d 539 [2011]). The court then considered K.S.A. 22-
3717(d)(1) in pari materia and held that there was no reasonable doubt that the
legislature intended that the more specific provision of (d)(1)( G) apply to those
convicted of sexually violent offenses rather than the more general provision of (d)(1)(B).
294 Kan. at 900.

Knopp contends that the Cameron court implied that K.S.A. 22-3717 was
ambiguous because the Cameron court "undertook a rule of lenity analysis." According
to Knopp, the Herrmann court could not have resolved the issue by analyzing the plain
language of the statute because the statute is ambiguous. Contrary to Knopp's arguments,
the Cameron court did not make an "implied finding of ambiguity" and did not conduct a
"rule of lenity analysis." In fact, Cameron held "there [was] no reasonable doubt"
regarding which provision the legislature intended to apply and declined to apply the
rules of strict construction and lenity reserved for ambiguous statutes. 294 Kan. at 899-
900. See State v. Wilson, No. 116,381, 2017 WL 2212171, at *3-4 (Kan. App. 2017)
(unpublished opinion) (rejecting identical argument), petition for rev. filed June 19, 2017.

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Finally, Knopp argues that in Herrmann, the court's interpretation of K.S.A. 2016
Supp. 22-3717(d)(1) does not account for other amendments to the sentencing scheme
thus, ignoring legislative intent and rendering other amendments void and meaningless.
Before 2013, 21-6821 provided that any earned good-time credits would be added to the
offender's postrelease supervision term. K.S.A. 2012 Supp. 21-6821(c) and (e)(2). In
2013, the Kansas Legislature amended 21-6821(c) and (e)(2) so that only offenders
convicted of sexually violent crimes must serve any earned good-time credit as part of
their postrelease supervision term. L. 2013, ch. 76, sec. 4. Knopp argues that the holding
in Herrmann renders these amendments void because it is impossible to add time to a life
term.

In Herrmann, the court did not specifically address the amendments to 21-6821,
but it did discuss similar changes to K.S.A. 22-3717. As discussed above, the 2013
amendments to K.S.A. 22-3717 removed the requirements in subparagraphs (A)-(C) that
good-time credits be added to the postrelease terms for most crimes. The legislature,
however, created an exception for those convicted of sexually violent crimes (among
others) in subparagraph (D). These amendments to K.S.A. 22-3717 mirror and reflect the
legislative changes to 21-6821. See L. 2013, ch. 76, sec. 4 (amending 21-6821); L. 2013,
ch. 76, sec. 6 (amending 22-3717). The Herrmann panel's interpretation of K.S.A. 2016
Supp. 22-3717(d)(1)(D) is perfectly consistent with the provisions in K.S.A. 2016 Supp.
21-6821. Based on the holdings from Herrmann, it is clear that good-time credit would
be added to sentences ordered under K.S.A. 2016 Supp. 22-3717(d)(1)(D)—convictions
of sexually violent crimes committed after July 1, 1993, but before July 1, 2006—but not
to sentences ordered under K.S.A. 2016 Supp. 22-3717(d)(1)(G)—convictions for
sexually violent crimes committed after July 1, 2006. The Herrmann court's reading did
not render K.S.A. 2016 Supp. 21-6821(c) and (e)(2) meaningless or void. See Wilson,
2017 WL 2212171, at *4.

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Knopp has failed to prove that Herrmann was wrongly decided or is no longer
sound. This court adopts the Herrmann interpretation and reaches the same result. Knopp
was convicted of sexually violent crimes—aggravated indecent liberties with a child—
committed after July 1, 2006. See K.S.A. 2016 Supp. 22-3717(d)(1)(G). The district court
was required to sentence him to lifetime postrelease supervision. Accordingly, the district
court properly denied Knopp's sentencing request for 36 months of postrelease
supervision.

Affirmed.