STATE v. ELMS (2001)

Joseph C. Elms appeals an upward departure of his postrelease supervision period to 36 months.

On March 23, 2000, Elms sent a letter to his former parole officer, stating that when he got out of jail he was going to kill her and if she told anyone about his threat, he would send somebody for her.   Based on these acts, he was prosecuted.   As a result, Elms pled guilty to one count of criminal threat in exchange for the State's recommendation to follow the presumptive sentence and the low number of the grid box.

Elms' criminal history classification was E and the offense severity level was 9;  therefore, his presumptive sentencing range was 9-10-11 months.   The judge sentenced him to 11 months' imprisonment and 36 months' postrelease supervision, where the statute allowed 24 months.   The judge stated as the reasons for the departure:

“Because of Mr. Elms' criminal history and because of the nature of this offense and because of the specific threats that were made and the fact that there was more than one threat, I find that society needs to be protected by Mr. Elms having a postrelease supervision period of 36 months.”

Elms first argues he was not given notice or opportunity to respond to the trial court's intent to impose a departure sentence.

Determining whether the notice requirements under K.S.A. 21-4718(b) were complied with requires interpretation of a statute.   Such interpretation raises a question of law over which an appellate court exercises unlimited review.  State v. Patterson, 25 Kan.App.2d 245, 247, 963 P.2d 436, rev. denied 265 Kan. 888 (1998).

K.S.A. 21-4718(b) states:

“If the court decides to depart on its own volition, without a motion from the state or the defendant, the court must notify all parties of its intent and allow reasonable time for either party to respond if [it requests].   The notice shall state the type of departure intended by the court and the reasons and factors relied upon.”

The issue has not been preserved for appeal.   Elms' counsel did not object to lack of notice at the sentencing hearing or request postponing the sentencing to a later date to prepare a response.  “[W]here a defendant fails to object to the notice of departure at the time of sentencing, any issue relative to the departure is not preserved for appeal.”  State v. Billington, 24 Kan.App.2d 759, 762, 953 P.2d 1059 (1998).

Elms argues his counsel objected to the enhanced postrelease supervision period sufficient to preserve the issue on appeal.   However, counsel merely stated, “Just for the record, your Honor, I'd like to object to the enhanced postrelease period in this case.”   This objection is not sufficient to preserve the issue of lack of notice by the sentencing judge.

More importantly, Elms also has failed to make a proffer of the evidence that would have been presented to refute the departure factors if notice had been sufficient.

“[F]or a defendant to successfully assert error based on the trial court's failure to give notice of the factors it intended to rely on for departure, ‘[t]he defendant must make some proffer of the evidence he would present (or the argument he would make) to refute the factor before this court will find reversible error.’ ” 24 Kan.App.2d at 762-63, 953 P.2d 1059 (quoting State v. Gideon, 257 Kan. 591, 621, 894 P.2d 850 [1995] ).

There is no reversible error by the trial court on the issue of lack of notice of the departure sentence under the circumstances of this case.

K.S.A.1999 Supp. 22-3717(d)(1) provides:

“(B) Except as provided in subparagraphs (C) and (D), persons sentenced for nondrug severity level 7 through 10 crimes and drug severity level 4 crimes must serve 24 months, plus the amount of good time earned and retained pursuant to K.S.A. 21-4722 and amendments thereto, on postrelease supervision.

“(C)(i) The sentencing judge shall impose the postrelease supervision period provided in subparagraph (d)(1)(A) or (d)(1)(B), 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.

“(ii) If the sentencing judge departs from the presumptive postrelease supervision period, the judge shall state on the record at the time of sentencing the substantial and compelling reasons for the departure.   Departures in this section are subject to appeal pursuant to K.S.A. 21-4721 and amendments thereto.”

Elms argues the trial court went beyond the maximum prescribed sentence based upon aggravating facts which were not found by a jury or beyond a reasonable doubt.   Elms further argues his sentence was unconstitutional and illegal, citing State v. Gould, 271 Kan. 394, 23 P.3d 801 (2001).  Gould declared:

“The Kansas scheme for imposing upward departure sentences, embodied in K.S.A.2000 Supp. 21-4716, is unconstitutional on its face.   Gould received a sentence beyond the statutory maximum based upon a court finding of certain aggravating factors found by a preponderance of the evidence.  Apprendi [v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) ], on the other hand, requires ‘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.’  [Citation omitted.]   Any other procedure ‘is an unacceptable departure from the jury tradition that is an indispensable part of our criminal justice system.’  [Citation omitted.]”  271 Kan. at ----, 23 P.3d 801.

The rationale in Gould which held the upward durational departure provision of K.S.A.2000 Supp. 21-4716 was unconstitutional also applies to K.S.A.1999 Supp. 22-3717.   Elms' extended supervision period was in violation of his constitutional rights based on Gould and Apprendi.

State v. McKay, 271 Kan. 725, 26 P.3d 58 (2001), by its silence on the issue, seems to indicate upward dispositional departures do not offend against the rules set down in Apprendi and Gould.   However, the instant case, which deals with increased postrelease supervision, is a durational departure which, under these facts, is unconstitutional under Apprendi and Gould.   Therefore, the postrelease supervision portion of the sentence is reversed and remanded for resentencing consistent with this opinion.

Reversed and remanded with directions.

PIERRON, J.: