State of Kansas, Appellee, v. Curtis L. Whitman, Appellant. (2026)

MEMORANDUM OPINION

Curtis L. Whitman pled guilty to seven different charges. As part of his plea agreement, Whitman acknowledged that he was over the age of 18 at the time his crimes were committed, and that he understood he would be subject to lifetime postrelease supervision. During his sentencing hearing, the district court ordered lifetime postrelease supervision pursuant to K.S.A. 22-3717(d)(1)(G).

On appeal, Whitman first raises a challenge to the district court's order of lifetime postrelease supervision, relying on Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). Whitman argues that under Apprendi, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proven beyond a reasonable doubt. Whitman believes that he was entitled to have a jury consider whether he was over 18 years of age at the time he committed his crimes—a necessary fact for the district court to order lifetime postrelease supervision under K.S.A. 22-3717(d)(1)(G). But we find that Whitman failed to raise his argument in district court and his claim is therefore unpreserved. While Whitman urges us to find an exception applies to the preservation rule, we exercise our discretion and decline to consider Whitman's argument.

Whitman alternatively argues on appeal that the district court's lifetime postrelease supervision order constituted an illegal sentence pursuant to K.S.A. 22-3504(c)(1). He notes that his age was not listed in the criminal complaint, nor was it an element of any crime he pled to; thus, there was no evidence the district court could have relied upon to determine his age. We find that Whitman's argument necessarily relies upon the holding from Apprendi. Framing the argument as a statutory violation does not allow Whitman to escape the well-established rule that an alleged constitutional violation may not form the basis of an illegal sentence claim. Accordingly, we affirm.

Factual and Procedural Background

Curtis L. Whitman pled guilty to two counts of aggravated indecent liberties with a child and five counts of criminal sodomy. During Whitman's plea hearing, the parties presented a signed plea agreement to the district court, which included a provision that stated, “defendant acknowledges being 18 years of age or older at the time of these offenses. The defendant further acknowledges the duty to register under the Kansas Offender Registration Act. This case requires lifetime post-release supervision pursuant to K.S.A. 22-3717(d)(1)(G) and (d)(5).” Whitman personally confirmed to the district judge that he had reviewed the written plea agreement and that he understood these terms were included.

During the plea colloquy, the district judge reviewed the rights Whitman would be giving up by entering his plea, as well as the burden of proof on the State. The district court specifically discussed Whitman's right to a jury trial and explained the State would need to prove each element of the offenses charged beyond a reasonable doubt. Whitman stated that he understood. The district court also explained the potential sentence for each charge including the fact Whitman would be subject to lifetime postrelease supervision. After indicating he understood the penalties, Whitman pled guilty to all seven counts.

Whitman was sentenced to a total of 142 months in prison and lifetime postrelease supervision.

Analysis

Did the District Court Violate Whitman’s Right to a Jury Trial Under Apprendi?

Whitman's first argument on appeal is that the district court violated his right to a jury trial when it found that he was over 18 years of age at the time the offense was committed—a necessary finding for the district court to impose lifetime postrelease supervision. K.S.A. 22-3717(d)(1)(G)(i). Whitman's argument is based on Apprendi v. New Jersey, 530 U.S. at 490, where the United States Supreme Court held that, 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 proven beyond a reasonable doubt.

Whitman argues that under Apprendi, even if a defendant waives his right to a jury trial, he has not waived his separate right to have a jury determine whether he was over 18 years of age at the time the offense was committed. Whitman reasons that because the district court only found that he had waived his right to a jury trial on the offenses charged and did not independently determine whether Whitman was waiving his right to have a jury determine his age, the district court violated his right to a jury trial under the Sixth Amendment to the United States Constitution. Whitman believes that the appropriate remedy for this violation is to remand his case to the district court with an instruction for the district court to resentence him to 60 months’ postrelease supervision. Whitman's proposed remedy is based on the idea that sexually violent crimes normally require 60 months of postrelease supervision. K.S.A. 22-3717(d)(1)(G)(ii). But if a defendant is 18 years of age or older at the time a sexually violent crime is committed, lifetime postrelease supervision applies. K.S.A. 22-3717(d)(1)(G)(i).

Whitman's argument was not properly preserved for appeal.

Whitman acknowledges that he did not object to the imposition of lifetime postrelease supervision in district court. “Generally, issues not raised before the district court cannot be raised on appeal.” State v. Gatewood, 321 Kan. 564, 574, 582 P.3d 534 (2026).

To consider Whitman's claim, we must apply an exception to the general preservation rule. An exception may be invoked when “(1) the newly asserted claim involves only a question of law arising on proved or admitted facts and is finally determinative of the case; (2) the claim's consideration is necessary to serve the ends of justice or to prevent the denial of fundamental rights; or (3) the district court's judgment may be upheld on appeal despite its reliance on the wrong ground or reason for its decision.” State v. Gutierrez-Fuentes, 315 Kan. 341, 347, 508 P.3d 378 (2022).

Whitman asserts his appeal falls within the first two exceptions. Even if we were to agree, our review remains prudential, meaning we are under no obligation to consider Whitman's claim even if an exception applies. State v. Rhoiney, 314 Kan. 497, 500, 501 P.3d 368 (2021) (“ Even if an exception may apply, we are under no obligation to review the claim.”). Here, we need not determine whether an exception applies because we exercise our discretion and decline to consider Whitman's claim.

Our court has previously declined review of Apprendi challenges to lifetime postrelease supervision made for the first time on appeal. In State v. Jelinek, 66 Kan. App. 2d 158, 577 P.3d 662 (2025), petition for rev. filed October 8, 2025, a panel of this court stated:

“Even though the Supreme Court has addressed Apprendi challenges to lifetime postrelease supervision terms based on the offender's age for the first time on appeal, the Supreme Court has repeatedly and more recently stressed that Kansas appellate courts generally do not address legal theories raised for the first time on appeal, even those of a constitutional dimension. State v. Mendez, 319 Kan. 718, 730, 559 P.3d 792 (2024). And even if a recognized exception to this general rule may apply, we are under no obligation to review the new claim and we need to provide no reason for the denial. 319 Kan. at 730.

“There is a good reason for this rule. Appellate courts are designed to review decisions made by the trial courts, not to serve as forums for introducing new arguments or evidence. This principle ensures that trial courts have the first opportunity to address and resolve issues, promotes judicial efficiency, and prevents unfair surprises to the opposing party.” 66 Kan. App. 2d at 163.

See State v. Skidmore, No. 127,668, 2025 WL 2682404, at *3 (Kan. App. 2025) (unpublished opinion) (“But more recently, our Supreme Court has repeatedly stressed that Kansas appellate courts generally do not address legal theories raised for the first time on appeal, even when those issues allege constitutional violations.”), petition for rev. filed October 17, 2025; State v. Bednarz, No. 126,821, 2025 WL 2265714, at *3 (Kan. App. 2025) (unpublished opinion) (“There is a good reason for this rule. Appellate courts are designed to review decisions made by the trial courts, not to serve as forums for introducing new arguments or evidence.”), petition for rev. filed September 5, 2025.

As the Jelinek court explained, we are under no obligation to explain why we are declining to consider Whitman's claim. Jelinek, 66 Kan. App. 2d at 163. But we acknowledge that other panels of our court have elected to reach an unpreserved alleged Apprendi challenge on appeal. See State v. Duckworth, No. 126,677, 2024 WL 4579265 (Kan. App. 2024) (unpublished opinion), rev. denied 320 Kan. 864 (2025); State v. Lunsford, No. 127,962, 2026 WL 972956, at *3 (Kan. App. 2026) (unpublished opinion). Thus, we find it appropriate to provide reasoning to support our decision.

In a letter of supplemental authority submitted pursuant to Supreme Court Rule 6.09 (2026 Kan. S. Ct. R. at 40), Whitman asks us to consider the applicability of State v. Contreras, 66 Kan. App. 2d 182, 579 P.3d 1278 (2025), rev. granted 321 Kan. 791 (2026). Whitman notes that he was sentenced prior to the panel's decision in Contreras. He reasons the panel in Contreras considered an Apprendi challenge for the first time on appeal because failing to do so would lead to an unjustifiably harsh result. Whitman's letter was filed before the Kansas Supreme Court issued its opinion in Contreras on September 11, 2026. State v. Contreras, ___ Kan. ___, 2026 WL 2671971, at *1 (2026). Notably, the Supreme Court mentioned but did not address the panel's decision on preservation. 2026 WL 2671971, at *1.

We are under no obligation to adopt the reasoning of the Contreras panel on the issue of preservation. “Each panel conducts an independent analysis of the issues presented and comes to its own conclusions.” Sandate v. Kansas Dept. of Revenue, 58 Kan. App. 2d 450, 454, 471 P.3d 700 (2020). But even if we were to apply the reasoning from the Contreras panel, Whitman would not receive relief. Whitman fails to acknowledge the fact the main reason the Contreras panel chose to hear the case was “because the case Contreras relies on for relief, State v. Nunez, 319 Kan. 351, 354, 554 P.3d 656 (2024), was decided after Contreras’ sentencing and while this appeal was pending.” Contreras, 66 Kan. App. 2d at 185. Whitman's case is in a different posture than that in Contreras. Whitman was sentenced after Nunez was decided. Although the Kansas Supreme Court disagreed with the Contreras majority's interpretation of its decision in Nunez, the holding from Nunez was available to Whitman at the time of his sentencing. We also note that Whitman does not explain why he failed to raise his argument in district court even though Nunez had been decided.

We conclude our consideration of this issue by pointing out our decision to decline to reach Whitman's argument here does not lead to a harsh result. We find it compelling that our Kansas Supreme Court has relied upon principles of equity in declining to apply exceptions to our preservation rule. In Gatewood, the defendant entered into a plea agreement that included terms related to fees that would be ordered at sentencing. The State indicated at Gatewood's plea hearing that it would seek the fees at sentencing, and a presentence investigation (PSI) indicated Gatewood would be responsible for the fees. At his sentencing hearing, Gatewood did not object to the fees listed in the PSI, nor did he object to the district court's imposition of fees. 321 Kan. at 574. Gatewood challenged his fees for the first time on appeal.

The Kansas Supreme Court found that Gatewood's challenge was unpreserved and declined to apply an exception to reach his claim. The court reasoned:

“Regardless, assuming without deciding that the preservation exception applies, principles of equity counsel against us relying on it to reach the merits. Gatewood and the State negotiated a plea agreement in which both parties received certain benefits. As part of the agreement, the State dismissed several charges against Gatewood. And it reserved the right to request certain fees at sentencing. At the sentencing hearing, the State asked the court to impose those fees. And Gatewood never objected. So the State had no reason to develop the record or its arguments supporting these fees.

“Relying on a preservation exception to reach the merits here could create improper incentives. It could encourage similarly situated defendants to keep their powder dry—that is, give the State certain concessions to make sentencing arguments during negotiations, then ignore the preservation rule at sentencing, but object to the State's sentencing arguments on appeal. This would give defendants a chance to enrich the benefit of their bargain while depriving the State of the opportunity to fully develop its negotiated position. So we decline to reach the merits of Gatewood's unpreserved challenges to the court-imposed fees.” 321 Kan. at 576-77.

Similarly, Whitman reached a plea agreement with the State. In this agreement, Whitman admitted that he was over 18 years of age when he committed his crimes. He also acknowledged that he understood he would be under lifetime postrelease supervision. He orally affirmed to the district court that he understood this provision and why it applied to him. Considering Whitman's claim for the first time on appeal would be unfair to the State and the district court because the error alleged by Whitman—the district court's failure to inquire whether he was waiving a right to have a jury determine his age—could have been avoided had it been raised in the district court. Like the court in Gatewood, we are concerned that reaching the merits here would create “improper incentives” to stand silent on an Apprendi issue at sentencing and then raise the issue later when neither the State nor the district court has an opportunity to develop the facts necessary to resolve the issue, or alternatively, to obtain a jury trial waiver from the defendant.

Finally, we are reminded that Apprendi was decided over 25 years ago. Litigants have been made aware of the principles espoused in Apprendi for over two decades. We exercise our discretion and decline to consider Whitman's claim.

Whitman’s Apprendi Argument May Not Be Raised as a Motion to Correct Illegal Sentence.

In his second issue on appeal, Whitman argues that the district court's imposition of lifetime postrelease supervision resulted in an illegal sentence pursuant to K.S.A. 22-3504(c)(1).

Standard of Review

Whether a sentence is illegal is a question of law over which appellate courts exercise unlimited review. State v. Daniels, 319 Kan. 340, 342, 554 P.3d 629 (2024).

Discussion

An illegal sentence is a sentence “[i]mposed by a court without jurisdiction; that does not conform to the applicable statutory provision, either in character or punishment; or that is ambiguous with respect to the time and manner in which it is to be served at the time it is pronounced.” K.S.A. 22-3504(c)(1); see State v. Mitchell, 315 Kan. 156, 158, 505 P.3d 739 (2022).

Whitman acknowledges that based upon his plea, the district court found him guilty of criminal sodomy under K.S.A. 21-5504(a)(3), and aggravated indecent liberties with a child under K.S.A. 21-5506(b)(1). But he points out that neither of those criminal statutes include a defendant's age as an element of the crime, and Whitman's age was not included in the criminal complaint. Whitman believes that because there was no evidence before the district court that could have allowed it to find Whitman's age, the district court erred by finding that Whitman was 18 years of age or older at the time the crimes were committed. He argues that this factual finding formed the basis for the court's order for Whitman to serve lifetime postrelease supervision under K.S.A. 22-3717(d)(1)(G)(i). Whitman claims that as a result, his sentence is illegal. In other words, Whitman is making a statutory argument that the district court engaged in prohibited fact-finding which resulted in an illegal sentence under K.S.A. 22-3504(c)(1) rather than making a constitutional claim under Apprendi. Whitman concludes:

“So, when Mr. Whitman pleaded guilty, the ‘charge[s] and every material fact’ to which he pleaded guilty did not include him being 18 years of age or older at the time of the offenses, and the district court did not find him guilty of being at least 18 years old when he committed the offenses․ Thus, the district court did not sentence Mr. Whitman to imprisonment for a sexually violent crime he committed when he was 18 years of age or older, but it ordered him to serve lifetime postrelease supervision as though it had.”

While K.S.A. 22-3504(a) allows an illegal sentence to be corrected at any time—including for the first time on appeal—our Kansas Supreme Court has made it clear that the definition of “illegal sentence” does not include a claim that the sentence is illegal because it violates a constitutional provision—including an Apprendi violation. State v. Hayes, 312 Kan. 865, 868, 481 P.3d 1205 (2021). In Hayes, the defendant appealed the district court's summary denial of a motion to correct illegal sentence. In his motion, Hayes argued that his upward departure sentence violated Apprendi “because he had a right to have a jury, rather than the court, determine facts that increased his maximum sentence.” 312 Kan. at 867.

The Kansas Supreme Court expressly rejected Hayes’ argument because it could not be raised as part of a motion to correct an illegal sentence:

“First, Hayes’ argument does not fall within the allowed parameters of a motion for illegal sentence. The illegal sentence statute, K.S.A. 2018 Supp. 22-3504(3), defines an illegal sentence as one imposed by a court without jurisdiction, one that does not conform to statutes, or one that is ambiguous. This court has long held the plain language of this narrow statutory definition does not include a claim that the sentence is illegal because it violates a constitutional provision.” 312 Kan. at 867-68.

Whitman has seemingly reframed his Apprendi challenge as a statutory illegal sentence claim. Since illegal sentencing claims may be considered at any time, Whitman's failure to preserve an illegal sentencing claim would therefore not preclude our review. K.S.A. 22-3504(a). But the Kansas Supreme Court has clearly stated a constitutional claim may not properly form the basis of a motion to correct an illegal sentence. Hayes, 312 Kan. at 867-68; State v. Warrior, 303 Kan. 1008, 1010, 368 P.3d 1111 (2016) (K.S.A. 22-3504 is not an appropriate vehicle to claim a sentence violates a constitutional provision.).

A panel of our court recently considered the nuanced approach to this issue Whitman presents here. That is, rather than arguing the district court's order for lifetime postrelease supervision was illegal under Apprendi, Whitman now argues that the district court's order was an illegal sentence under K.S.A. 22-3504(c)(1).

In State v. Sanders, 65 Kan. App. 2d 236, 253, 563 P.3d 234 (2025), a jury convicted the defendant of four charges, and he was sentenced to prison and ordered to serve lifetime postrelease supervision. Sanders argued that the imposition of lifetime postrelease supervision created an illegal sentence because “his crime of conviction did not include his age as an element of the offense, so he was convicted of a ‘lesser’ offense that only required a 60-month postrelease supervision term.” 65 Kan. App. 2d at 252.

The Sanders panel recognized that the reframing of a claim could not protect it from our longstanding rule that alleged constitutional violations may not serve as the basis of an illegal sentence claim:

“Our Supreme Court has repeatedly held that K.S.A. 22-3504(a) does not cover a claim that a sentence violates a constitutional provision. See State v. Warrior, 303 Kan. 1008, 1010, 368 P.3d 1111 (2016). Apparently to avoid this rule, Sanders insists he is challenging his lifetime postrelease supervision term as a statutory illegal sentence claim rather than raising a claim based on a constitutional violation under Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). Yet, he relies heavily on Apprendi to argue his claim.” 65 Kan. App. 2d at 253.

The Sanders panel explained, “[b]y definition, Sanders’ purported ‘illegal sentence’ claim clearly implicates Apprendi because he is arguing the district court increased the penalty for his crime of conviction beyond the prescribed statutory maximum based solely on judicial fact-finding of his age.” 65 Kan. App. 2d at 253. The panel concluded, “Put simply, Sanders cannot disguise his argument as an illegal sentence claim to avoid adverse caselaw stemming from Apprendi while still relying on its holdings. His illegal sentence claim necessarily fails.” 65 Kan. App. 2d at 253.

We find the panel's reasoning persuasive here. Whitman claims to be making a statutory argument—that he was not found guilty of a crime while being 18 years of age of older when the crime was committed, because there is no age requirement in the statutes that define his crimes of conviction. But Whitman ignores the evidence in the record that provided the court with Whitman's age by his own admissions. The record reflects the district court was provided with the plea agreement between the parties in which Whitman acknowledged he was over 18 years of age and that he understood he was subject to lifetime postrelease supervision. Whitman confirmed these facts in open court. The district court then used Whitman's admissions to find he was 18 years or older at the time the crimes were committed and ordered postrelease supervision. Whitman's real argument is that the district court made a factual finding based on Whitman's own admissions. That finding increased Whitman's postrelease supervision—which is the same argument to be made under Apprendi. Since an alleged constitutional violation cannot form the basis of an illegal sentence claim, we find that Whitman's claim that his sentence is illegal is without merit.

Affirmed.

Per Curiam: