1

NOT DESIGNATED FOR PUBLICATION

No. 121,153

 

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellee,

v.

JEFFREY DOUGLAS MASTERSON,

Appellant.

MEMORANDUM OPINION

Appeal from Shawnee District Court; DAVID DEBENHAM, judge. Opinion filed August 14, 2020. 

Affirmed in part, sentences vacated, and remanded with directions.

Kai Tate Mann, of Kansas Appellate Defender Office, for appellant. 

Steven J. Obermeier, assistant solicitor general, and Derek Schmidt, attorney general, for 

appellee.

Before MALONE, P.J., MCANANY, S.J., and BURGESS, S.J.

PER CURIAM: This appeal deals with the situation in which the district court 

imposed lawful presumptive sentences under our sentencing guidelines but then 

attempted to increase those sentences in an improper manner in order to reach a total 

sentence contemplated by a plea agreement. In this appeal we address the question 

whether, in responding to this sentencing error, the district court may vacate its otherwise 

lawfully imposed sentences and resentence the defendant to much higher terms of 

imprisonment in order to reach the total sentence contemplated by the plea agreement. 

We conclude that the district court may not, and we vacate the defendant's current 

sentences and remand for resentencing. 
2

We find no merit in the defendant's second issue, that his age at the time of his 

crimes had to be established by a jury before the court could impose lifetime postrelease 

supervision.

PROCEDURAL HISTORY

Jeffrey Douglas Masterson was charged with two severity level 5 counts of sexual 

exploitation of a child, six off-grid felony counts of sexual exploitation of a child, plus a 

severity level 9 count of interference with law enforcement. He entered into a plea 

agreement with the State to resolve all nine charges. In accordance with the plea 

agreement, he pled guilty to three severity level 5 person felonies of sexual exploitation

of a child, one of which the State agreed to reduce from an off-grid felony to a level 5 

person felony. As part of the agreement the State agreed to dismiss the other six felony 

charges against him. The plea agreement contained the following:

"Both parties shall jointly recommend that the Court impose a sentence of 105 

months in prison. The parties shall recommend that the sentences for Counts 1 and 2 be 

made consecutive to one another. Both parties shall jointly recommend that the Court 

grant a motion for an upward durational departure and impose a sentence of 105 months 

in prison. There shall be no request for probation or border box findings by the 

Defendant."

This was a recommendation for an upward durational departure sentence. Pursuant to the 

agreement, Masterson waived his right to have the upward departure factors proven to a 

jury. Masterson and the State further agreed on three aggravating factors to support the 

departure motion: (1) an agreement between the parties to impose a departure sentence; 

(2) the State's dismissal of six off-grid felonies in exchange for the plea and a promise to 

support a motion for an upward departure; and (3) the harm associated with the crime 

being greater than typical. 
3

The State filed a motion for upward durational departure along with the plea 

agreement. Masterson joined the State in recommending an upward durational departure 

and 105 months' imprisonment. 

At the plea hearing, the State informed the district court that the State expected to 

recommend that the first two counts run consecutively for "sixty-some months" and then 

the district court would have the authority to upwardly depart from there. After advising 

Masterson of his rights, the district court accepted Masterson's guilty pleas. 

At the sentencing hearing that followed, the State provided the three agreed-upon 

reasons for the upward durational departure. The State recommended that the district 

court impose standard sentences of 32 months' imprisonment on Count 1; 32 months'

imprisonment on Count 2, to be served consecutively; and 32-months' imprisonment 

sentence on Count 3, to be served concurrently with Counts 1 and 2. The State explained:

"If the Court were to follow this recommendation, then the sentence the Court 

would impose would be sixty-four months. If the Court were to then grant the State's 

Motion for an Upward Departure, it could increase the sentence by no more than double 

sixty-four months, and what we are asking for is under the terms of our plea agreement 

for the Court to impose a total sentence of 105 months in custody of the Secretary of 

Corrections."

Masterson's counsel confirmed the State's understanding as to how the sentences should 

be structured to conform to the plea agreement without the court having to upward depart 

"on each individual crime."

The district court confirmed that Masterson waived his right to a jury 

determination of the upward departure factors, found the three proposed factors were 
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substantial and compelling reasons to depart, and sentenced Masterson consistent with 

the plea agreement as follows:

Count 1—32 months' imprisonment;

Count 2—32 months' imprisonment, consecutive to the sentence in Count 1; and

Count 3—32 months' imprisonment, concurrent with the sentences in Counts 1 

and 2. 

These sentences were the standard guidelines sentences for these crimes. The district 

court then upwardly departed from the prison terms under Counts 1 and 2 of 64 months 

and imposed a total prison term of 105 months.

Masterson later moved to correct his illegal sentence, arguing that the sentencing 

court did not follow the proper sentencing procedure. He contended that in correcting the 

misapplication of the sentencing law the court could not alter the legal sentences for 

Counts 1 and 2. He argued that the controlling term of confinement, based on the 

consecutive guideline sentences in Counts 1 and 2, should be 64 months. 

At the hearing that followed, the prosecutor conceded that the parties had 

erroneously recommended that the Court "impose a departure that I don't believe was 

lawful because of the mechanics of it." The sentences imposed violated K.S.A. 2019 

Supp. 21-6819(c)'s procedures and limits on departure sentences because the district 

court upwardly departed on the entire sentence instead of each individual crime. The 

prosecutor explained:

"[B]ecause the parties asked the Court to impose a base sentence and then depart at the 

end, in terms of we asked the Court to impose a particular base sentence, and then a 

particular sentence on another count, but then double at the end and we didn't ask the 
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Court to impose a departure on the original base count. But what we did was lead the 

Court into error."

Masterson and the State agreed with the court's observation that

"what the Count should have done, was entered a sentence of let's say 32 months on 

Count I and then departed on Count I to up to 64 months then entered a sentence on 

Count II I think it was 32 or 64. The court could have departed on that up to 64 and they 

ran those two consecutive and could have resulted in a sentence of 128 months. Although 

the parties could have agreed to 105 so the Court could have still departed on Count II to 

an amount less than a total of 64, running those consecutive, and arriving at a sentence of 

105 months."

At the conclusion of the hearing the district court found that because both parties 

misunderstood the applicable sentencing law, the procedure they recommended at 

sentencing could not legally result in the agreed-upon sentence. The district court vacated 

the sentences on all three counts because they "defeated the terms of the plea agreement."

Masterson moved the court to reconsider, arguing that the district court only had 

jurisdiction to correct the illegal departure because all three sentences imposed were 

lawful guideline sentences. He argued that in correcting the misapplication of the 

sentencing law the court could not alter the legal sentences for Counts 1 and 2, so the 

controlling sentence should be 64 months. Thus, he contended, the district court must 

reinstate his 32-month sentences for each count and run Counts 1 and 2 consecutively for 

a total of 64 months. 

At Masterson's resentencing hearing the district court stated the original sentences 

imposed were the result of a mutual mistake. The court found some merit in the State's 

equitable estoppel argument and adopted the State's reasoning. The court resentenced 

Masterson as follows: 
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Count 1—an upward departure sentence of 53 months' imprisonment (up from the 

guideline 32 months previously imposed);

Count 2—an upward departure sentence of 52 months' imprisonment, consecutive 

to the sentence in Count 1 (up from the guideline 32 months previously imposed); 

and

Count 3—32 months' imprisonment, concurrent with sentences in Counts 1 and 2.

The court also ordered Masterson to serve lifetime postrelease supervision. 

Masterson appeals. He contends that the district court lacked jurisdiction to vacate 

his lawful sentences. According to Masterson, his sentences on Counts 1, 2, and 3 were 

legal sentences and, thus, the district court only had jurisdiction to set aside its attempted 

departure from his guideline sentences. He asks us to remand with instructions to set 

aside the court's resentencing and reinstate the guideline sentences which, as originally 

imposed, have a controlling term of 64 months. He also contends that the district court 

violated his constitutional rights by sentencing him to lifetime postrelease supervision 

without a jury finding that he was age 18 or older when he committed his crimes.

ANALYSIS

I.The Legality of the Court's Resentencing

Our review standard in interpreting our sentencing statutes and in determining 

whether Masterson's sentences are illegal is de novo. See State v. Jamerson, 309 Kan. 

211, 214, 433 P.3d 698 (2019).
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Preservation

The State contends that this issue has not been preserved for appeal because 

Masterson's sentences conform to the applicable statutory provisions, in both character 

and punishment. See K.S.A. 2019 Supp. 22-3504(c)(1). The State asserts Masterson's 

complaint is about the procedure the district court used, "which is not a component of an 

illegal sentence."

But Masterson's issue is with the district court's decision to vacate the entirety of 

his original sentences and to resentence him a second time. He claims that the court 

lacked jurisdiction to increase his sentences on Counts 1 and 2 because the court had 

already imposed legal sentences on those counts and could not change them, resulting in 

illegal sentences. A sentence is illegal if it is imposed by a court without jurisdiction to 

do so. K.S.A. 2019 Supp. 22-3504(c)(1). Masterson's illegal sentence argument has been

preserved for appeal.

Jurisdiction

The State also argues that we lack jurisdiction to hear this appeal because the 

sentence was the result of an agreement between the parties. The State relies on K.S.A. 

2019 Supp. 21-6820(c)(2), which provides: "On appeal from a judgment of 

conviction . . . the appellate court shall not review: . . . any sentence resulting from an 

agreement between the state and the defendant which the sentencing court approves on 

the record."

But, the procedures for imposing a departure sentence must be followed and 

cannot be ignored by the courts. State v. Jackson, 297 Kan. 110, 113, 298 P.3d 344 

(2013). The parties may not agree to an illegal sentence. See State v. Lehman, 308 Kan. 

1089, 1093, 427 P.3d 840 (2018). Thus, "a sentence that does not comply with required 
8

statutory procedures is an illegal sentence." Jackson, 297 Kan. at 114-15. Such a sentence 

may be corrected at any time. K.S.A. 2019 Supp. 22-3504(a). We have jurisdiction to 

consider this appeal.

Masterson's Claims

Masterson claims the individual sentences originally imposed for his separate 

crimes were legal sentences and the district court had no jurisdiction to vacate them and 

resentence him for those crimes. The district court had the authority to upwardly depart to 

twice his base guideline sentence of 32 months in Count 1 when it was originally 

imposed. That, together with his consecutive 32-month guideline sentence for Count 2,

would have yielded a controlling term of 96 months. But the court failed to do so. 

Instead, the court imposed two lawful consecutive sentences of 32 months and a third 

lawful concurrent sentence of 32 months, for a controlling term of 64 months in prison. 

He asserts that the upward departure the district court attempted to impose was unlawful, 

so the only jurisdiction the district court had was to set aside the separate departure order 

entered at his original sentencing.

The State's Claims

Aside from its preservation and jurisdiction issues, which we have already 

addressed, the State asserts the propriety of the district court's actions in resentencing 

Masterson. It also claims that by filing his motion to correct illegal sentence (and 

presumably by pursuing this appeal), Masterson has breached his contractual duty to act 

fairly and in good faith. The State also contends that Masterson is equitably estopped 

from advancing the arguments he makes today. We also note the district court's reasoning 

under the contract principle of mutual mistake. Before getting to that issue and the State's 

contract and equity arguments, we turn to the underlying issue of the propriety of the 

district court's actions.
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The Propriety of the District Court's Actions

We turn first to three key Kansas Supreme Court cases discussed by both parties.

Considered in chronological order, they are State v. Snow, 282 Kan. 323, 144 P.3d 729 

(2006); State v. Guder, 293 Kan. 763, 267 P.3d 751 (2012); and Jamerson, 309 Kan. 211.

State v. Snow

In Snow, the defendant engaged in a string of burglaries of various businesses 

which led to him being convicted on 15 counts of nonresidential burglary, theft, and 

criminal damage to property and 4 counts of misdemeanor criminal damage to property.

At sentencing the court used one of Snow's burglary convictions as the base crime. Given 

his criminal history, the court invoked the Special Rule that allows a prison sentence 

without departure findings, rather than the guidelines' presumptive sentence, when the 

defendant was on probation at the time of his or her crimes. The court imposed the 

maximum presumptive sentence of 23 months for the base burglary conviction. The court 

then imposed the aggravated presumptive sentence for each of Snow's other 14 counts,

ordered that they run consecutively, and denied probation. Snow received concurrent 

sentences for his four misdemeanor convictions. The total of all of Snow's felony 

sentences was 187 months.

The district court did not depart on any of Snow's sentences. Under K.S.A. 2005

Supp. 21-4720(b)(4), Snow's total controlling sentence on these multiple convictions was 

limited to twice the base sentence of 23 months, which was 46 months. The Supreme 

Court vacated Snow's sentences and remanded to the district court for resentencing with 

the following guidance:
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"Sentences that do not conform to the statutory provisions are illegal and must be 

remanded to the district court to correct the illegal sentence. State v. Shaw, 259 Kan. 3, 

12, 910 P.2d 809 (1996). When a defendant is convicted on several counts, a single 

judgment should be pronounced declaring the full measure of punishment to be imposed 

for all of the offenses. State v. Woodbury, 133 Kan. 1, 2, 298 Pac. 794 (1931) (concluding 

that resentencing for all 10 counts was proper even though only 7 of the counts had been 

sentenced incorrectly). When the defendant's sentence violates the maximum consecutive 

sentence allowed by K.S.A. 2005 Supp. 21-4720, the district court can resentence the 

defendant for all counts and change the base sentence to reflect aggravated durational 

departure factors previously found to increase the total consecutive sentence pursuant to 

K.S.A. 2005 Supp. 21-4720." Snow, 282 Kan. at 342.

Snow relied on Woodbury as controlling authority. We will discuss the fate of 

Woodbury in connection with our next case, Guder.

State v. Guder

In Guder, the defendant pled guilty in 2001 to (1) illegally manufacturing a 

controlled substance, (2) cultivating marijuana, (3) possessing drug paraphernalia, and (4) 

four counts of criminal possession of a weapon. He was sentenced to prison in 2001 to 

serve:

(1) 162 months for illegal manufacturing;

(2) 15 months for cultivating marijuana, consecutive to (1);

(3) 8 months each on the 4 weapons convictions, concurrent with (2); and

(4) 11 months for possessing paraphernalia conviction, concurrent with (3).

Controlling term: 177 months in prison.

Guder appealed his sentence in 2001 but did not perfect the appeal.
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In 2004 our Supreme Court handed down State v. McAdam, 277 Kan. 136, 83 P.3d 161 

(2004). Four years later, the Court of Appeals granted Guder's request to docket his appeal out 

of time. On the merits, the Court of Appeals found that Guder was entitled to be resentenced on 

his illegal manufacturing conviction because of the holding in McAdam. At Guder's resentencing

the court imposed the following:

(1) An aggravated 32 months guideline sentence for illegal manufacturing (the 

McAdam issue);

(2) 15 months for cultivating marijuana, consecutive to (1);

(3) 11 months for possessing paraphernalia conviction, consecutive to (1); and

(4) 8 months each on the four weapons convictions, concurrent with (3).

Controlling term: 58 months in prison.

Guder appealed, contending that the district court had no authority to change his 

lawful paraphernalia sentence from concurrent to consecutive. The Supreme Court noted 

its early holding in Woodbury, in which the court found that "a sentence pronounced 

following conviction is a singular entity that cannot be subdivided into correct and 

erroneous counts, and the sentencing court therefore had the latitude on remand to modify 

its original sentence on all counts, including those for which no error had been found."

Guder, 293 Kan. at 765. But the Guder court stated: 

"Statutory changes to the jurisdiction of district courts to modify sentences have 

superseded the Woodbury rationale. In Anthony, 274 Kan. at 1001, this court framed the 

relevant question this way: 'Does statutory authority exist for the modification of legal 

sentences after imposition?' We concluded that a district court has no authority to modify 

a sentence unless plain statutory language provides such authority. [Citation omitted.]

. . . .
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"When it enacted the KSGA, our legislature explicitly addressed remands 

following reversal. [Citing K.S.A. 21-4720(b)(5).]

"Nothing in the statutory scheme, however, allows resentencing on other 

convictions following the vacating of a sentence on appeal. . . . We will not add words to 

the statute that would provide jurisdiction to resentence on other counts." Guder, 293 

Kan. at 766.

The Guder court vacated the modification of Guder's paraphernalia conviction 

from concurrent to consecutive and remanded for another resentencing. "In doing so, we 

disapprove of the holding in Snow to the extent that it is contrary to this opinion." 293 

Kan. at 767.

This holding was reaffirmed by the Supreme Court six years later in State v. 

Warren, 307 Kan. 609, 613, 412 P.3d 993 (2018). As it stated in Syl. ¶ 1, "When 

multiconviction cases are remanded for resentencing, the Kansas Sentencing Guidelines 

Act prohibits district courts from modifying sentences that have not been vacated by the 

appellate court. An exception exists when the district court must alter such a sentence as a 

matter of law to avoid an illegal sentence." 307 Kan. 609, Syl. ¶ 1.

State v. Jamerson

In Jamerson, the sentencing court followed the terms of the parties' plea 

agreement and in 2001 imposed on Jamerson:

(1) a standard guidelines sentence of 253 months for second-degree murder'

(2) a downward departure sentence of 35 months for aggravated robbery, 

consecutive to (1); and

(3) a downward departure sentence of 35 months for conspiracy, concurrent with 

(1) and (2).
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Controlling term: 288 months in prison. 

In 2015, Jamerson moved to correct an illegal sentence. He claimed an incorrect 

criminal history score resulted in an illegal sentence on his second-degree murder 

conviction. The district court ordered a resentencing when it was shown that the court 

had used an incorrect criminal history score for Jamison and that score was used to 

calculate a non-base sentence.

The district court determined that Jamerson's aggravated robbery sentence was 

legal because the criminal history error did not affect his sentence for this crime. The 

downward departure sentence he received on his aggravated robbery conviction was the 

same as a guidelines sentence for a defendant with no criminal history. But the 

conspiracy sentence was illegal when applying the corrected criminal history score. The 

correct guideline presumptive sentence range was 31-32-34 months, and Jamison had 

been sentenced to 35 months. 

In 2015, the district court resentenced Jamerson on all the counts, though there 

was no error in the aggravated robbery sentence. In an apparent effort to "to keep the new 

sentence as close as possible to the one in 2001," 309 Kan. at 213, and as close as 

possible to the plea agreement, the district court imposed:

(1) an aggravated guidelines sentence of 186 months for the murder conviction 

(down from the 253 months previously imposed);

(2) a standard guideline sentence of 59 months for the aggravated robbery 

conviction (not the 35-month downward departure sentence previously 

imposed) consecutive to (1); and

(3) an aggravated guideline sentence of 34 months for the conspiracy conviction 

(down from the 35-month sentence previously imposed) consecutive to (1) and 

(2). 
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Controlling term: 279 months in prison.

Jamerson appealed. With respect to the sentence for his aggravated robbery 

conviction, he claimed the court had no authority to increase his original legal 35-month 

sentence to 59 months. The Court of Appeals agreed. The State petitioned our Supreme 

Court for review, and the court took up the case.

The State argued that the Supreme Court should reexamine Guder, which leads to 

an absurd result when the State and the defendant reach a plea agreement which is based 

on the entirety of the sentences to be imposed. "The State complains that under Guder a 

defendant can game the system and undermine a plea agreement by waiting until after 

sentencing to object to incorrect criminal history scores." Jamerson, 309 Kan. at 214. The

Supreme Court rejected this argument, finding that the Guder court had thoroughly 

analyzed legislative intent and the effect of the Kansas Sentencing Guidelines on the 

sentencing court's common law powers. 

The State also argued that Guder and its progeny should only apply to cases 

following a remand. The Jamerson court stated:

"Procedurally, we find no reason a district court's conclusion (that a sentence is illegal) is 

different in any legally significant way from the holding by this court that a sentence is 

illegal under K.S.A. 22-3504. In either scenario the sentence must be corrected to become 

one complying with the KSGA. On concluding one or more of the sentences in a 

multiconviction case to be illegal, the district court, like an appellate court, must vacate 

the illegal sentence and correct it by resentencing in accordance with the KSGA. See 

State v. Warren, 307 Kan. 609, 412 P.3d 993 (2018) (when multiconviction cases are 

remanded for resentencing, district courts may not modify sentences that have not been 

vacated and are not illegal). But this does not mean the district court has authority to 

resentence anew for all of the convictions in a multiple conviction case. Rather, as we 
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have held in cases directing resentencing of an illegal sentence on remand, the court may 

vacate and resentence only the illegal one in a multiconviction case. Guder, 293 Kan. 

763." Jamerson, 309 Kan. at 216.

The Supreme Court concluded that the district court erred in increasing the legal 

aggravated robbery sentence from 35 to 59 months. 309 Kan. at 218.

Turning to the State's arguments, the State cites from Jamerson the following to 

support the district court's authority to resentence Masterson by departing on prior 

imposed—and on their face lawful—sentences: "[T]his court has repeatedly held that the 

KSGA deprived district courts of the jurisdiction to modify sentences except to correct 

arithmetic or clerical errors, to consider or reconsider departures from presumptive 

sentences, or to modify sentences by reinstating previously revoked probations."

(Emphasis added.) Jamerson, 309 Kan. at 215; see Guder, 293 Kan. at 766.

The only case cited by the State as an example of the proper reconsideration of a 

departure sentence is State v. Peterson, 25 Kan. App. 2d 354, 358, 964 P.2d 695 (1998). 

In the applicable earlier appeal in that case, State v. Peterson, 22 Kan. App. 2d 572, 576, 

920 P.2d 463 (1996), a departure sentence was vacated and the case was remanded for 

resentencing in order for the court to state on the record its substantial and compelling 

reasons for departing—reasons which were absent when the departure sentence was 

originally imposed. On remand, the district court imposed the same sentence but provided 

the missing reasons for departing. Peterson, 25 Kan. App. 2d at 356. Obviously this is not 

the situation here.

In Guder, the court expressed the same exceptions to the rule excluding 

jurisdiction to modify KSGA sentences. 293 Kan. at 766. The Guder court cited four 

exemplars of that rule:
16

State v. McKnight, 292 Kan. 776, 257 P.3d 339 (2011). There, the district court 

revoked the defendant's probation, ordered him to serve 22 months in prison 

(reduced from the originally imposed 30 months), and mistakenly ordered no 

postrelease supervision. At a later hearing, the court uncovered its mistake and 

changed the sentence to include 24 months' postrelease supervision. The Supreme 

Court found that McKnight's 22-month prison sentence without postrelease 

supervision was a legal lesser sentence. "'A sentence is effective upon 

pronouncement from the bench, regardless of the court's intent at the time the 

sentence is pronounced.' [Citation omitted.] The trial court imposed a legal 

sentence; therefore, the court did not have jurisdiction to later modify that 

sentence by adding postrelease supervision. See McCoin, 278 Kan. at 468."

McKnight, 292 Kan. at 783. McKnight supports Masterson's argument that his 

legal guideline sentences were effective upon pronouncement, and that the district 

court had no jurisdiction to correct the sentencing mistake by modify the original 

sentences imposed.

State v. McDaniel, 292 Kan. 443, 254 P.3d 534 (2011). The defendant was 

sentenced to prison for aggravated battery. The presentence investigation report 

referred to $21,269.06 in restitution. The issue of restitution came up at the 

sentencing hearing. The defendant objected to the amount, and the court set the 

matter over for a separate hearing, at which the court ordered restitution in the 

amount of $7,744.26, an amount to which the defendant stipulated. The Supreme 

Court stated: "A district judge has no jurisdiction to change a sentence once it is 

pronounced." 292 Kan. at 445. But it determined the restitution order "altered 

nothing about McDaniel's sentence; it merely completed it." 292 Kan. at 448.

McDaniel also supports Masterson's position. At Masterson's resentencing, the 

district court did not "complete" his sentences, the court entered entirely new 

sentences that differed from those originally imposed.
17

State v. Ballard, 289 Kan. 1000, 218 P.3d 432 (2009). The syllabus states: "When 

a lawful sentence has been imposed, the sentencing court has no jurisdiction to 

modify that sentence except to correct arithmetic or clerical errors. However, an 

illegal sentence can be corrected at any time." 289 Kan. 1001, Syl. ¶ 10. Ballard

also supports Masterson's position.

State v. Miller, 260 Kan. 892, 926 P.2d 652 (1996). The defendant moved for 

downward durational and dispositional departures. At sentencing, the district court 

denied the motion and imposed a prison sentence. Over the following weekend, 

the district judge thought further about the sentence he had imposed and decided 

he should have granted a departure. He scheduled a second hearing at which he 

granted Miller five years' probation. On the State's appeal, the Supreme Court 

stated: "Despite defendant's arguments to the contrary, nothing in these statutes 

affords a district court continuing jurisdiction after a sentencing proceeding is

concluded. . . . We conclude the district court's modified sentence . . . and findings

relative to departure are void for lack of jurisdiction." 260 Kan. at 900. Miller, like 

the others cited in Guder, support Masterson's position.

Contrary to the State's position, we find that Masterson's original three sentences 

were lawful sentences. At the sentencing hearing, the district court stated:

"As a result in this case, the Court's gonna sentence you on Count 1 to thirty-two 

months in the Secretary of Corrections.

"On Count 2, the Court will also sentence you to a term of thirty-two months in 

the Secretary of Corrections. Those sentences will run consecutive to each other.

"The Court will sentence you on Count 3 to thirty-two months in the Secretary of 

Corrections, and that sentence will run concurrent to the sentence I imposed in Count 1 

and Count 2."
18

Only after imposing these lawful sentences did the court take up the issue of a 

departure. The court found substantial and compelling reasons to depart, "[s]o I will 

depart upward to 105 months on that sentence."

It was this departure on already imposed lawful sentences that was improper 

because the district court upwardly departed on the entire sentence instead of each 

individual crime, contrary to K.S.A. 2019 Supp. 21-6819(c). Rather than simply curing 

the improper departure, the district court resentenced Masterson for Counts 1 and 2 and 

imposed sentences which were different from the lawful sentences previously imposed. 

The principle applied in Woodbury and Snow that in a multiconviction case the 

court can resentence all counts, whether lawful or not, is no longer valid. As the Supreme 

Court stated in in Warren, 

"When multiconviction cases are remanded for resentencing, the Kansas 

Sentencing Guidelines Act prohibits district courts from modifying sentences that have 

not been vacated by the appellate court. An exception exists when the district court must 

alter such a sentence as a matter of law to avoid an illegal sentence." 307 Kan. 609, Syl. ¶

1.

In Masterson's case, there was no imposition of a series of consecutive sentences that 

violated the maximum aggregated duration set in K.S.A. 2019 Supp. 21-6819(b)(4). And 

when Masterson was resentenced, the court did not reduce a previously imposed 

departure sentence in order to comply with K.S.A. 2019 Supp. 21-6819(c)(3). Rather, at 

Masterson's original sentencing the district court imposed guideline sentences on each of 

Masterson's convictions but did not impose any departure consistent with K.S.A. 2019 

Supp. 21-6819(c)(3). At resentencing the court did not need to depart from previously 

imposed legal sentences "to avoid an illegal sentence." 307 Kan. 609, Syl. ¶ 1. The 

exception described in Warren does not apply.
19

But what about the language in Warren and other cases noted above that refers to 

these resentencing limitations coming into play when a sentence has been vacated on 

appeal and the case remanded for resentencing? The answer is found in Jamerson where 

the court stated:

"Procedurally, we find no reason a district court's conclusion (that a sentence is illegal) is 

different in any legally significant way from the holding by this court that a sentence is 

illegal under K.S.A. 22-3504. In either scenario the sentence must be corrected to become 

one complying with the KSGA. On concluding one or more of the sentences in a 

multiconviction case to be illegal, the district court, like an appellate court, must vacate 

the illegal sentence and correct it by resentencing in accordance with the KSGA."

Jamerson, 309 Kan. at 216.

Thus, these resentencing rules apply not only following an appellate remand, but also 

following a ruling by the district court vacating an illegal sentence.

Here, the problem is twofold. The district court vacated legal sentences, and then 

the court changed those legal sentences at the resentencing hearing. We find no case—

and the State cites none—which permits the sentencing court to set aside legal guideline 

sentences and resentence a defendant in the manner employed in Masterson's case.

McKnight serves as a good example. There, the district court revoked the 

defendant's probation, sent him to prison, but mistakenly did not order postrelease 

supervision. Upon uncovering the mistake, the court could not correct its error by 

changing the defendant's legal sentence to include postrelease supervision. Here, the 

district court mistakenly failed to depart on the individual sentences it imposed on 

Masterson. Because Masterson's sentences were legal sentences, the court could not later 

change them by departing from the standard guideline sentences previously imposed. The 

district court did not have jurisdiction to increase Masterson's sentences from 32 months 

to 53 months on Count 1, and from 32 months to 52 months on Count 2.
20

Mutual Mistake

The district court at Masterson's resentencing relied on the principle of mutual 

mistake to justify setting aside Masterson's sentences and resentencing him.

Masterson's plea agreement was the contract entered into by the parties. As the 

district court found, it is clear and complete on its face. It contains the mutual agreements 

of the parties which constitute the consideration supporting it. Masterson agreed to enter 

certain pleas, agreed to recommend to the court that the sentences on two counts be 

consecutive, agreed to recommend to the court departure sentences for a controlling term 

of up to 105 months, and agreed to stipulate to the departure factors. In exchange, the 

State agreed to dismiss other charges. Both parties did what they contracted to do at the 

sentencing hearing.

Masterson's plea agreement does not address the mechanics of how the sentencing 

court could properly arrive at the sentences the parties agreed to request. There is no 

evidence that entering into the written plea agreement was predicated upon the district 

court sentencing Masterson in the manner employed at Masterson's original sentencing.

We find no mutual mistake in the written plea agreement. 

Besides, if there had been "a mutual mistake, either of law or fact, on the terms of 

the contract, the contract is not binding on the parties." Albers v. Nelson, 248 Kan. 575, 

580, 809 P.2d 1194 (1991). If there was a mutual mistake of law, the remedy would have 

been to void the settlement agreement, allow Masterson to set aside his pleas which were 

premised on the agreement, and set the matter for trial. This the district court did not do.

If we look to the statements of the attorneys at the sentencing hearing, Masterson 

certainly was not so well versed in the law as to understand the statutory technicalities of 
21

sentencing. That is what his attorney was for. There was no mutual mistake between the 

contracting parties—Masterson and the State. Masterson would have no idea whether the 

proposed sentencing procedure was proper. 

But the State argues that Masterson is bound by the statements his attorney/agent 

made. Thus, the prosecutor's statements at sentencing and the concurrence of defense 

counsel, even though made without conferring with Masterson, constituted a contract. 

But defense counsel's concurrence with the prosecutor's proposed sentencing procedure 

does not constitute a contract. There was no bargained-for exchange. There was no 

consideration. The statements made by counsel at the sentencing hearing do not 

constitute a contract. The contract principle of mutual mistake does not apply to these 

facts.

We have examined cases dealing with the statutory right of a defendant to 

withdraw a plea after sentencing upon a showing of manifest injustice. But we find no 

case—and the parties cite none—in which the State was permitted to set aside lawful 

sentences previously imposed and to let the defendant's pleas stand on the grounds that it 

was the court's intention at the sentencing hearing to impose more severe sentences.

Good Faith and Fair Dealing

The State argues that Masterson's plea agreement under principles of contract law 

contains implied covenants of good faith and fair dealing. Thus, Masterson's duty to 

recommend to the court a total departure sentence of 105 months as set forth in the plea 

agreement did not end upon his original sentencing but continued and was in force when 

the district court set aside his sentences and imposed new ones. In other words, to fulfill 

this contractual duty Masterson would have had to recommend at resentencing that the 

district court impose new departure sentences, which our analysis shows it no longer had 

authority to do. On its face we find this contention to be beyond any reasonable 
22

application of the contractual covenants of good faith and fair dealing. We do not agree 

that the duties of good faith and fair dealing require that Masterson urge the district court 

at his resentencing to perform an act for which the court had no jurisdiction. 

Equitable Estoppel

The State argued, and the district court found persuasive, that Masterson was 

equitably estopped from challenging the district court's action in vacating Masterson's 

sentences and imposing a new 105-month sentence.

The elements of equitable estoppel are set forth in Steckline Communications, Inc. 

v. Journal Broadcast Group of Kansas, Inc., 305 Kan. 761, Syl. ¶ 3, 388 P.3d 84 (2017):

"A party asserting equitable estoppel bears the burden of proving that another 

party, by acts, representations, admissions, or silence when that other party had a duty to 

speak, induced the party asserting estoppel to believe certain facts existed. The party 

asserting estoppel must also show that the party reasonably relied and acted upon such 

belief and would now be prejudiced if the other party were permitted to deny the 

existence of such facts."

Though not concisely stated, it appears that the State's equitable estoppel is based 

on the concurrence of Masterson's counsel at the original sentencing hearing with the 

State's proposed sentencing protocol vis-à-vis Masterson's position when the court 

vacated his sentences and imposed new ones instead.

Equitable estoppel as defined above requires the State, as the party asserting 

estoppel, to show that Masterson induced the State "to believe certain facts existed" and 

that the State "reasonably relied and acted upon such belief" to its prejudice. At 

Masterson's original sentencing, the State advised the court that the legal way to sentence 

Masterson was to impose individual guideline sentences on each count and, after those 
23

sentences were imposed, to apply the departure factors to achieve an upward controlling 

sentence of 105 months. When asked, Masterson's counsel agreed. The State did not rely 

on Masterson's agreement with the sentencing procedure because the sentencing 

procedure was not Masterson's idea, but the State's. (The State apparently had this 

sentencing procedure in mind as early as Masterson's plea hearing.) After the prosecutor 

explained the State's proposed sentencing method, the court simply asked Masterson's 

counsel if she agreed with the procedure described by the State. Masterson's counsel 

replied, "Yes." The district court asked, "I wouldn't have to do that on each individual 

crime, then?" Again, Masterson's counsel replied, "Right. Yes." The State was hardly led 

down the primrose path by Masterson. The State was well along that path before 

Masterson's counsel said one word. We find no evidence to support the notion that the 

State had been induced by Masterson to come up with the sentencing protocol it 

recommended to the court.

Moreover, Masterson's counsel had no duty to educate the State on the proper 

sentencing procedure. In Jamerson, the State argued that the decision in Guder leads to 

an absurd result because "under Guder a defendant can game the system and undermine a 

plea agreement by waiting until after sentencing to object to incorrect criminal history 

scores." Jamerson, 309 Kan. at 214. The Supreme Court rejected the State's argument. 

The State's proposed method of imposing departure sentences was improper, and 

both parties later conceded that fact to the district court. But the State contends that 

Masterson was equitably estopped from opposing the district court's actions in 

resentencing him. The State argues, based on State v. Hargrove, 48 Kan. App. 2d 522, 

548-49, 293 P.3d 787 (2013), that judicial estoppel applies here in order to preserve the 

essential integrity of the judicial process.

But Masterson did not resist resentencing. He is the one who discovered the 

sentencing error and brought it to the court's attention when he moved to correct illegal 
24

sentence. His opposition came when the district court sought to impose new sentences 

which it had no jurisdiction to impose. The notion of preserving the essential integrity of 

the judicial process is not furthered by gagging a defendant to keep him or her from 

bringing to the court's attention the fact that the court has no authority to take the action 

the court is about to undertake.

We are persuaded that equitable estoppel does not apply here.

II.The Imposition of Lifetime Postrelease Supervision

For his second issue, Masterson asserts the district court imposed an illegal 

sentence when it ordered him to receive lifetime postrelease supervision under K.S.A. 

2017 Supp. 22-3717(d)(1)(G)(i). He claims the district court violated the holding in

Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000),

because the court engaged in judicial fact-finding when it found Masterson was over the 

age of 18. Masterson argues the question of his age should have been submitted to a jury,

and he did not waive that right. The State argues that the version of K.S.A. 22-3717 in 

effect when Masterson committed his crimes did not limit lifetime postrelease 

supervision to only those who were age 18 or older.

Standard of Review

We review de novo constitutional challenges under Apprendi. State v. Anthony, 

273 Kan. 726, 727, 45 P.3d 852 (2002). We apply the same review standard to questions

of statutory interpretation. Nauheim v. City of Topeka, 309 Kan. 145, 149, 432 P.3d 647 

(2019).

Analysis
25

Masterson raises his challenge under Apprendi. "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 proved beyond a reasonable doubt." 530 U.S. 

at 490. Masterson argues the district court violated Apprendi by ordering lifetime 

postrelease supervision without submitting the question of Masterson's age to the jury. 

Masterson relies on the 2017 version of K.S.A. 22-3717, which provides that a 

person sentenced to imprisonment for a sexually violent crime shall be subject to 

mandatory lifetime postrelease supervision when the offender is "18 years of age or 

older." K.S.A. 2017 Supp. 22-3717(d)(1)(G)(i). But, Masterson's crimes were committed 

in December 2016. At the time of his crimes, K.S.A. 2016 Supp. 22-3717(d)(1)(G)

provided as follows:

"Except as provided in subsection (u) [which does not apply], persons convicted 

of a sexually violent crime committed on or after July 1, 2006, and who are released from 

prison, shall be released to a mandatory period of postrelease supervision for the duration 

of the person's natural life."

The fundamental rule of sentencing is that a person convicted of a crime is sentenced in 

accordance with the sentencing provisions in effect at the time the crime was committed.

See State v. McLinn, 307 Kan. 307, 337, 409 P.3d 1 (2018). The version of the statute in 

effect when Masterson committed his crimes contains no age requirement. See K.S.A. 

2016 Supp. 22-3717(d)(1)(G).

In his reply brief, Masterson concedes that he cited the incorrect version of the 

statute and that the 2016 version which contains no age limit applies. But he still argues 

the State was required to prove his age to a jury before he could be sentenced to lifetime 

postrelease supervision. He relies on several cases holding that lifetime postrelease
26

supervision violated the prohibition on cruel and unusual punishment of the Eighth

Amendment to the United States Constitution. 

In State v. Dull, 302 Kan. 32, 61, 351 P.3d 641 (2015), the Kansas Supreme Court 

held mandatory lifetime postrelease supervision is categorically unconstitutional when 

applied to a juvenile convicted of aggravated indecent liberties with a child under 

Graham v. Florida, 560 U.S. 48, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010). A panel of 

this court later expanded Dull's prohibition on lifetime postrelease supervision as 

categorically unconstitutional to all juveniles convicted of a sex offense. State v. Medina, 

53 Kan. App. 2d 89, 97, 384 P.3d 26 (2016).

Masterson argues that the 2017 amendments to K.S.A. 22-3717(d)(1)(G), which 

require the offender be 18 or older, "simply brought [the statute] in line with what the 

Constitution already required."

There was no jury trial in Masterson's case because the case was settled. In his 

plea agreement, Masterson states: "My date of birth is 04/30/1980." Thus, he was age 36 

when he committed his crimes.

The text of K.S.A. 2016 Supp. 22-3717(d)(1)(G) is clear. The text contains no age 

requirement before lifetime postrelease supervision can be imposed. So a jury need not 

decide Masterson's age in order for the court to determine that lifetime postrelease 

supervision should be imposed. While lifetime postrelease supervision cannot be imposed 

on juveniles under the holdings in Dull and Medina, there is no issue here whether 

Masterson was a juvenile at the time he committed his crimes.

To summarize, we conclude that the district court was without jurisdiction to 

resentence Masterson from 32 months in prison to 53 months on Count I, and from 32 

consecutive months in prison to a consecutive 52 months on Count 2. Accordingly, those 
27

sentences are vacated and the case is remanded for the district court to reimpose 

Masterson's original guideline sentences of 32 months in prison on Count 1 and a 

consecutive 32 months on Count 2, for a controlling term of 64 months. We find no merit 

in Masterson's Apprendi claim and affirm the district court on that issue. 

Affirmed in part, sentences vacated, and remanded with directions.