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NOT DESIGNATED FOR PUBLICATION

No. 122,518

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellee,

v.

KEVIN L. THOMAS,

Appellant.

MEMORANDUM OPINION

Appeal from Sedgwick District Court; JEFFREY SYRIOS, judge. Opinion filed November 25,

2020. Sentence vacated and remanded with directions.

James M. Latta, of Kansas Appellate Defender Office, for appellant. 

Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, 

attorney general, for appellee.

Before HILL, P.J., BRUNS and SCHROEDER,JJ.

PER CURIAM: Kevin L. Thomas appeals the modified sentence imposed by the 

Sedgwick County District Court after his probation was revoked. Originally, the district 

court had ordered Thomas to serve 17 months in prison to be followed by 12 months of 

postrelease supervision. However, the district court granted a downward dispositional 

departure and placed Thomas on probation. At the probation revocation hearing, the 

district court modified Thomas' prison sentence to 15 months but did not mention 

postrelease supervision. On appeal, Thomas contends that the district court's silence 

means that he is no longer subject to postrelease supervision. However, we find that the 
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district court was required to order some period of postrelease supervision under K.S.A. 

2018 Supp. 22-3716(f). Thus, we vacate the sentence and remand this case to the district 

court for clarification regarding the period of postrelease supervision to which Thomas 

will be subject after he serves his 15-month prison sentence.

FACTS

On May 28, 2019, Thomas entered into a plea agreement in which he agreed to 

plead guilty to one count of fleeing or attempting to elude a law enforcement officer.

Although the district court subsequently sentenced Thomas to 17 months in prison to be 

followed by a 12-month period of postrelease supervision, it granted his motion for a 

downward dispositional departure to 12 months of probation. Unfortunately, Thomas was 

unable to fulfill the terms of his probation and committed a new crime as well as several 

other violations.

On January 21, 2020, the district court revoked Thomas' probation and ordered 

him to serve a modified prison sentence of 15 months. In doing so, the district court 

failed to mention—one way or the other—the 12-month period of postrelease supervision

that was originally ordered. Yet, in the journal entry approved by both the prosecutor and 

defense counsel, the 12-month term of postrelease supervision as originally imposed was 

included.

ANALYSIS

On appeal, the sole issue presented is whether the district court's silence regarding 

postrelease supervision at the probation hearing means that Thomas is no longer required 

to serve any postrelease supervision. This issue was not raised below. In fact, a review of 

the record reveals that defense counsel approved the journal entry from the revocation

hearing that included the term of postrelease supervision as originally ordered. Of course, 
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K.S.A. 2018 Supp. 22-3504(1) provides that a court may correct an illegal sentence at 

any time. Thus, we have jurisdiction to hear this matter for the first time on appeal. See

State v. Fisher, 304 Kan. 242, 264, 373 P.3d 781 (2016). 

Whether a sentence is illegal within the meaning of K.S.A. 22-3504 is a question 

of law over which the appellate court has unlimited review. State v. Lee, 304 Kan. 416, 

417, 372 P.3d 415 (2016). A sentence is illegal "when: (1) it is imposed by a court 

without jurisdiction; (2) it does not conform to the applicable statutory provisions, either 

in character or punishment; or (3) it is ambiguous with respect to the time and manner in 

which it is to be served. [Citations omitted.]" State v. Hayes, 307 Kan. 537, 538, 411 P.3d 

1225 (2018). Likewise, we have unlimited review over issues of statutory interpretation 

of sentencing statutes. State v. Coleman, 311 Kan. 332, 334-35, 460 P.3d 828 (2020). In 

reviewing a statute, we must read its provisions in pari materia and in a manner to avoid 

unreasonable or absurd results. State v. Smith, 311 Kan. 109, 114, 456 P.3d 1004 (2020). 

Thomas recognizes that K.S.A. 2018 Supp. 22-3716(c)(1)(E) authorizes a district 

court to modify a sentence upon revocation of a defendant's probation "to serve the 

sentence imposed, or any lesser sentence." As a result, the district court had the authority

upon revoking Thomas' probation to impose the original sentence in its entirety or to 

order any lesser sentence that was legally appropriate. It appears likely from a review of 

the transcript of the probation revocation hearing that the only modification that the 

district court intended to make from the original sentence was to reduce the prison term 

from 17 to 15 months. Furthermore, the journal entry approved by both the State and 

Thomas' counsel includes the term of postrelease supervision as originally ordered. Even 

so, the district court's failure to mention postrelease supervision at the probation hearing 

makes it impossible for us to determine its actual intent.

Although Thomas cites to State v. Jones, 56 Kan. App. 2d 556, 561, 565-66, 433 

P.3d 193 (2018), he candidly concedes that it involved a probation revocation under 
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K.S.A. 2017 Supp. 22-3716(b)(3)(B) (addressing misdemeanors and specified felonies),

while this case involves a probation revocation under K.S.A. 2018 Supp. 22-3716(c)

(addressing all other felonies). Additionally, Thomas concedes that K.S.A. 2018 Supp.

22-3716(f)—which was not at issue in Jones—is applicable in this case. Hence, we do 

not find the analysis in Jones to be helpful in resolving the issue presented on appeal. For 

similar reasons, we do not find State v. Bishop, No. 119,961, 2019 WL 6973428, at *5 

(Kan. App. 2019) (unpublished opinion), to be helpful to the resolution of this case.

Significantly, K.S.A. 2018 Supp. 22-3716(f) requires that a defendant whose 

probation is revoked under K.S.A. 2018 Supp. 22-3716(c) "shall serve a period of 

postrelease supervision upon the completion of the prison portion of the underlying 

sentence." (Emphasis added.) In other words, based on the plain and unambiguous 

language of K.S.A. 2018 Supp. 22-3716(f), the district court was required as a matter of 

law to order Thomas to serve at least some period of postrelease supervision upon 

revocation of his probation. In fact, a failure to do so would—in and of itself—render 

Thomas' sentence to be illegal for failure to comply with applicable statutory provisions.

Moreover, we find that under the circumstances presented in this case, the district 

court does not have the discretion to order no postrelease supervision. Allowing a district 

court to order no postrelease supervision when a defendant's probation is revoked 

pursuant to K.S.A. 2018 Supp. 22-3716(c) would render the requirement found in K.S.A. 

2018 Supp. 22-3716(f)—that a defendant "shall serve a period of postrelease 

supervision"—to be meaningless. As the Kansas Supreme Court has held, "we presume 

the Legislature does not intend to enact meaningless legislation." Montgomery v. Saleh, 

311 Kan. 649, 655, 466 P.3d 902 (2020) (citing In re Marriage of Traster, 301 Kan. 88, 

98, 339 P.3d 778 [2014]).

We are persuaded that the district court erred by failing to specify a term of 

postrelease supervision on the record at the probation revocation hearing. However, we 
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are not persuaded that K.S.A. 2018 Supp. 22-3716(f) grants the district court the 

discretion to impose no amount of postrelease supervision under the circumstances. So, 

as both parties suggest as an alternative, we vacate the sentence and remand this matter to 

the district court to determine—on the record—the duration of postrelease supervision 

that Thomas must serve. This amount may be the amount originally ordered or any lesser 

amount that the district court finds to be appropriate.

Sentence vacated and remanded with directions.