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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 115,657

STATE OF KANSAS,

Appellee,

v.

SKYLER LEE BROOK,

Appellant.

SYLLABUS BY THE COURT

1.

Imposition of an underlying prison term after a probation violation is not 

equivalent to "incarceration for a supervision violation" under K.S.A. 2018 Supp. 22-

3717(d)(3). The period of a person's postrelease supervision term may be modified while 

the person is serving his or her underlying prison sentence after probation revocation 

without running afoul of K.S.A. 2018 Supp. 22-3717(d)(3).

2.

K.S.A. 2013 Supp. 22-3717(d)(1)(D) applies only to persons convicted of a 

sexually violent crime on or after July 1, 1993, but before July 1, 2006. K.S.A. 2013 

Supp. 22-3717(d)(1)(G) applies to persons convicted of a sexually violent crime on or 

after July 1, 2006. There are no persons convicted of a sexually violent crime to whom 

both subparagraph K.S.A. 2013 Supp. 22-3717(d)(1)(D) and subparagraph (d)(1)(G) 

apply.
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Review of the judgment of the Court of Appeals in an unpublished opinion filed April 28, 2017. 

Appeal from Nemaha District Court; JOHN L. WEINGART, judge. Opinion filed May 10, 2019. Judgment 

of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed. 

Peter Maharry, of Kansas Appellate Defender Office, was on the briefs for appellant. 

Brad M. Lippert, county attorney, and Derek Schmidt, attorney general, were on the brief for 

appellee.

The opinion of the court was delivered by

BEIER, J.: Defendant Skyler Lee Brook appeals the district court's correction of 

his postrelease supervision term after his probation was revoked and he was ordered to 

serve his original sentence. He challenges the district court judge's statutory authority to 

change the term from two years to lifetime, and he argues the lifetime postrelease term 

constitutes cruel and unusual punishment.

We affirm the district judge's decision and our Court of Appeals' endorsement of 

it. 

FACTUAL AND PROCEDURAL BACKGROUND

Brook pleaded no contest to sexual exploitation of a child as a result of 

interactions with C.B. between May 6 and May 20, 2013. Brook was 22 years old at the 

time. He was sentenced to 36 months in prison and 2 years of postrelease supervision. 

The district court judge suspended imposition of Brook's sentence and ordered Brook to 

serve 36 months' probation. 
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Brook committed another crime, which resulted in revocation of his probation and 

imposition of his original sentence in this case. 

The Department of Corrections notified the court that Brook should have received 

a lifetime postrelease term because of his plea to a sexually violent crime. The district 

judge agreed that this portion of Brook's sentence was illegal and corrected the two-year 

postrelease term to lifetime. 

Brook challenged the lifetime term before the Court of Appeals. The panel 

rejected his arguments, State v. Brook, No. 115,657, 2017 WL 1535138, at *6 (Kan. App. 

2017) (unpublished opinion), and this court granted review. 

DISCUSSION

Whether a sentence is illegal and may be corrected at any time is a question of law 

subject to unlimited review. See K.S.A. 2018 Supp. 22-3504(1); State v. Horton, 308 

Kan. 757, 759, 423 P.3d 548 (2018). To the extent resolution of Brook's claims requires 

statutory interpretation, this court also is presented with a question of law subject to 

unlimited review. 308 Kan. at 759.

Statutory Arguments

Brook argues that his original two-year term of postrelease could not be corrected 

as an illegal sentence based on two different statutes.

The first statute is K.S.A. 2018 Supp. 22-3717(d)(3). That section states, "Persons 

serving a period of incarceration for a supervision violation shall not have the period of 

postrelease supervision modified until such person is released and returned to postrelease 

supervision." K.S.A. 2018 Supp. 22-3717(d)(3). Brook asserts that because he "violated 
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his supervision resulting in the revocation of his probation," K.S.A. 2018 Supp. 22-

3717(d)(3) should prohibit modification of his postrelease supervision term.

The Court of Appeals panel correctly analyzed and disposed of this argument. 

There is no support for the proposition that the imposition of an underlying prison term 

after a probation violation is equivalent to "incarceration for a supervision violation." The 

panel said:

"K.S.A. 2016 Supp. 22-3717 as a whole involves postrelease supervision. In K.S.A. 2016 

Supp. 22-3717(d)(3) the words 'supervision violation' clearly refers to a violation of 

postrelease supervision and not a probation violation. The subject of K.S.A. 2016 Supp. 

22-3717 is postrelease supervision and not probation. The statutory scheme for probation 

is set out in an entirely different statute. See K.S.A. 2016 Supp. 21-6604, K.S.A. 2016 

Supp. 21-6607, and K.S.A. 2016 Supp. 21-6608 (establishing the sentencing scheme for 

probation); K.S.A. 2016 Supp. 22-3716 (establishing procedures for probation 

violations). The plain reading of K.S.A. 2016 Supp. 22-3717 shows that the legislature 

did not intend a probation violation to prevent modification of postrelease supervision." 

Brook, 2017 WL 1535138, at *2.

Moreover, the language of subsection (d)(3) itself indicates that the "supervision" 

referred to is postrelease supervision. The limitation to modifying a period of postrelease 

continues "until such person is released and returned to postrelease supervision." 

(Emphasis added.) K.S.A. 2018 Supp. 22-3717(d)(3). 

Brook's second statutory argument is based on what he perceives to be conflicting 

subsections within K.S.A. 2013 Supp. 22-3717(d)(1). That statute provides in pertinent 

part:

"(d)(1) Persons 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, 
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but will be released to a mandatory period of postrelease supervision upon completion of 

the prison portion of their sentence as follows:

. . . .

(B) Except as provided in subparagraphs (D) and (E), persons sentenced for 

nondrug severity levels 5 and 6 crimes, drug severity level 3 crimes committed on or after 

July 1, 1993, but prior to July 1, 2012, and drug severity level 4 crimes committed on or 

after July 1, 2012, must serve 24 months on postrelease supervision.

. . . .

(D) Persons sentenced to a term of imprisonment that includes a sentence for a 

sexually violent crime as defined in K.S.A. 22-3717, and amendments thereto, a sexually 

motivated crime in which the offender has been ordered to register pursuant to subsection 

(d)(1)(D)(vii) of K.S.A. 22-3717, and amendments thereto, electronic solicitation, K.S.A. 

21-3523, prior to its repeal, or K.S.A. 2013 Supp. 21-5509, and amendments thereto, or 

unlawful sexual relations, K.S.A. 21-3520, prior to its repeal, or K.S.A. 2013 Supp. 21-

5512, and amendments thereto, shall serve the period of postrelease supervision as 

provided in subsections (d)(1)(A), (d)(1)(B) or (d)(1)(C) plus the amount of good time 

and program credit earned and retained pursuant to K.S.A. 21-4722, prior to its repeal, or 

K.S.A. 2013 Supp. 21-6821, and amendments thereto, on postrelease supervision.

. . . .

(G) Except as provided in subsection (u), 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."

Brook argues that his original postrelease term was legal under subparagraphs 

(d)(1)(B) and (D). The Court of Appeals panel disagreed with this argument, relying on 
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State v. Herrmann, 53 Kan. App. 2d 147, 384 P.3d 1019 (2016), rev. denied 306 Kan. 

1324 (2017). In Herrmann, another Court of Appeals panel had thoroughly analyzed the 

issue Brook raised: 

"[Defendant Jon T.] Herrmann claims the district court erred in granting the 

State's motion to correct an illegal sentence because his original sentence of 24 months' 

postrelease supervision was legal and not subject to modification when the court granted 

the State's motion. The trial court does not have jurisdiction to modify a legal sentence 

once it is pronounced from the bench. State v. Hall, 298 Kan. 978, 983, 319 P.3d 506 

(2014). The court does, however, have jurisdiction to modify an illegal sentence and can 

do so at any time. K.S.A. 22-3504(1). . . . 

. . . .

"Herrmann argues the sentence of lifetime postrelease supervision is illegal . . . 

because it does not conform to subparagraph (D) of K.S.A. 2015 Supp. 22-3717(d)(1), 

which he asserts is the applicable statutory provision. Herrmann contends the post-2013 

version of subparagraph (D) retroactively eliminates the statutory requirement that courts 

impose lifetime postrelease supervision for those convicted of sexually violent crimes. In 

response to Herrmann's argument, the State argues lifetime postrelease supervision 

readily conforms to the applicable statutory provision, which it asserts is subparagraph 

(G) of K.S.A. 2015 Supp. 22-3717(d)(1). . . . Given the dispute between the parties, we 

first must decide which statutory provision within K.S.A. 2015 Supp. 22-3717(d)(1) is 

applicable to Herrmann's case for purposes of imposing postrelease supervision before 

we can decide whether the lifetime postrelease supervision ordered conformed to that 

applicable statutory provision.

. . . .

"Generally, the crime and penalty in existence at the time of the offense are 

controlling, except where the legislature has given retroactive effect to statutory changes 

made after the commission of the crime. State v. Van Cleave, 239 Kan. 117, 122, 716 
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P.2d 580 (1986). At the time of Herrmann's offense, K.S.A. 2011 Supp. 22-3717(d)(1)(G) 

required that persons who committed a sexually violent crime after July 1, 2006, be 

sentenced to lifetime postrelease supervision. Attempted aggravated indecent liberties 

with a child was defined as a sexually violent crime under K.S.A. 2011 Supp. 22-

3717(d)(2)(C) and (d)(2)(K). Herrmann does not contest that under K.S.A. 2011 Supp. 

22-3717(d)(1)(G), as it existed at the time of his crime, he was subject to lifetime 

postrelease supervision.

"Rather, Herrmann argues that the 2013 amendments to K.S.A. 22-3717(d)(1) 

changed the law regarding postrelease supervision as it applies to persons sentenced for 

sexually violent crimes and that those changes apply retroactively to his case. He 

contends that new language in subparagraph (D) expressly applies to persons convicted 

of sexually violent crimes and directs the court to impose a term of postrelease 

supervision based on the severity level of the offense. Herrmann notes that the new 

language in subparagraph (D) requires 24 months' postrelease supervision for severity 

level 6 offenders like him, plus any good-time or program credit earned and retained.

"Herrmann acknowledges that the 2013 amendments to subparagraph (D) 

directing a term postrelease supervision based on severity level of the sexually violent 

crime committed did not modify subparagraph (G), which requires lifetime postrelease 

supervision for persons convicted of sexually violent crimes after July 1, 2006. 

Nevertheless, Herrmann asserts this fact is not fatal to his claim that the current 

subparagraph (D) controls his term of postrelease supervision. In support of this 

assertion, Herrmann claims the 2013 amendments to subparagraph (D) effectively created 

an option for courts to choose between when imposing postrelease supervision for 

persons convicted of sexually violent crimes: subparagraph (D) provides a term of 

months depending on the severity level of the crime, plus any good-time or program 

credits accrued while in prison, while subparagraph (G) requires lifetime postrelease 

supervision. In light of these two options, Herrmann asserts the original 24-month term of 

postrelease supervision imposed was legal after the 2013 amendments became effective 

because it conformed to one of the two applicable statutory provision options.

. . . .
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"We find the plain language of the [2013 amended] statute clearly decides the 

issue presented. Subsection (d)(1) explains 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. Notably, 

however, this subsection (d)(1) expressly states that the mandatory postrelease 

supervision provided in the subparagraphs that follow do not apply to 'persons subject to 

subparagraph (G).' Subparagraph (G) provides that '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.' Herrmann was convicted of attempted aggravated indecent liberties 

with a child, which is a sexually violent crime under subsection (d)(5)(C) and (d)(5)(M). 

His conviction occurred after July 1, 2006. Because Herrmann is subject to subparagraph 

(G), no other subparagraph following subsection (d)(1) applies to him—including 

subparagraph (D).

"As an alternative to the 'two option' argument above, Herrmann asserts K.S.A. 

2015 Supp. 22-3717(d)(1) is ambiguous because the provisions of subparagraphs (D) and 

(G) directly conflict with each other on the proper term of postrelease supervision to 

impose: one provides for a term of months based on severity level of the sexually violent 

crime and the other requires a lifetime term. Herrmann argues that the rule of lenity 

should resolve the ambiguity in his favor by imposing the lesser of the two postrelease 

supervision terms. We disagree. The provisions in each subparagraph apply to a distinct 

class of persons. K.S.A. 22-3717 as a whole applies to all persons convicted of a crime 

after July 1, 1993. See L. 1992, ch. 239, sec. 270 ('Persons sentenced for crimes 

committed on or after July 1, 1993, 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.'). Subparagraph (G) was added to the statute in 2006 to create an explicit 

exception applicable only for 'persons convicted of a sexually violent crime committed 

on or after July 1, 2006.' See L. 2006, ch. 212, sec. 19 (also adding language to [d][1] 

excepting 'persons subject to subparagraph [G]'). Reading subparagraph (D) in pari 

materia, it falls under subsection (d)(1) and so applies to all persons but those expressly 

excluded: persons sentenced for off-grid crimes committed on or after July 1, 1993, and 
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persons committing a sexually violent crime on or after July 1, 2006, as stated in 

subparagraph (G). Therefore, subparagraph (D) only applies to persons convicted of a 

sexually violent crime after July 1, 1993, but before July 1, 2006. Thus, there are no 

persons convicted of a sexually violent crime to whom both subparagraph (D) and 

subparagraph (G) apply. Construing the statute as a whole and giving effect to all of the 

statutes, as this court must, there is no conflict or ambiguity in amended subsection 

(d)(1).

"The legislative history of the 2013 amendments confirms that the new language 

in subparagraph (D) was not intended to create a conflict with subparagraph (G). Instead, 

the changes were actually meant to maintain the same term of postrelease supervision for 

certain offenders, including persons who committed a sexually violent offense between 

July 1, 1993, and June 30, 2006, despite changes to reduce postrelease supervision 

generally. Prior to 2013, subparagraphs (A)-(C) assigned either 36, 24, or 12 months' 

postrelease supervision, respectively, 'plus the amount of good time and program credit 

earned and retained.' See, e.g., K.S.A. 2012 Supp. 22-3717(d)(1)(A)-(C). The 2013 

amendments deleted the language pertaining to good-time and program credits from 

subparagraphs (A)-(C)—in effect, reducing the length of postrelease supervision 

sentences by not requiring those credits to be added to a person's postrelease term. But 

the legislature did not want to provide that same benefit for persons convicted of certain 

crimes, including sexually violent crimes. So, the legislature also amended subparagraph 

(D) to provide an exception for persons convicted of sexually violent crimes so that 

earned good-time and program credits continued to be added to their postrelease 

supervision period. L. 2013, ch. 133, sec. 13. In a nutshell, the postrelease supervision 

calculation for persons convicted of a sexually violent crime between July 1, 1993, and 

June 30, 2006, remained the same as it was prior to the 2013 amendments.

"The analysis above is a straightforward reading of K.S.A. 2015 Supp. 22-

3717(d)(1) as a whole in which subparagraphs (D) and (G) are read in a workable 

harmony, without assuming the legislature intended to enact contradictory or meaningless 

provisions. See Keel, 302 Kan. at 574. The plain language of subsection (d)(1) provides 

an exception for persons convicted of a sexually violent crime for an offense after July 1, 

2006, in subparagraph (G). Herrmann committed his sexually violent offense after July 1, 
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2006; therefore, he is subject only to subparagraph (G). Because subparagraph (D) does 

not apply to him, there is no need to determine whether the amended provision would 

apply retroactively to his case." Herrmann, 53 Kan. App. 2d at 149-54.

The Legislature confirmed the Herrmann panel's interpretation of the statute two 

years ago by amending subparagraph (d)(1)(D) to apply to "[p]ersons sentenced to a term 

of imprisonment that includes a sentence for a sexually violent crime as defined in K.S.A. 

22-3717, and amendments thereto, committed on or after July 1, 1993, but prior to July 1, 

2006." (Emphasis added.) See K.S.A. 2018 Supp. 2018 22-3717(d)(1)(D). 

Brook's original two-year term of postrelease was imposed after his probation was 

revoked. See State v. Sandoval, 308 Kan. 960, Syl., 425 P.3d 365 (2018) (upon probation 

revocation, judge may impose original sentence or sentence anew; when original sentence 

illegal, imposed upon revocation, illegality persists). It was illegal because it did not 

conform to applicable statutory requirements; it was therefore subject to later correction 

under K.S.A. 22-3504(1). 308 Kan. at 965; State v. Roth, 308 Kan. 970, 971-72, 424 P.3d 

529 (2018). 

Constitutional Argument

On petition for review, Brook also mounts a federal constitutional challenge to his 

lifetime postrelease term, arguing that it qualifies categorically as cruel and unusual 

punishment. He acknowledges that this court rejected this argument in State v. Williams, 

298 Kan. 1075, 319 P.3d 528 (2014).

In Williams, this court held that "[l]ifetime postrelease supervision for a first-time 

offender over age 18 convicted of sexual exploitation of a child for crimes involving 

possession of pornographic images of children under age 18 is not categorically 
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disproportionate under the Eighth Amendment to the United States Constitution." 298 

Kan. 1075, Syl. ¶ 8.

Brook urges us to jettison Williams because of this court's more recent decision in 

State v. Dull, 302 Kan. 32, 351 P.3d 641 (2015). 

In Dull, we held that "[m]andatory lifetime postrelease supervision is categorically 

unconstitutional under Graham v. Florida, 560 U.S. 48, 130 S. Ct. 2011, 176 L. Ed. 2d 

825 (2010), when imposed on a juvenile who committed and was later convicted of 

aggravated indecent liberties with a child." Dull, 302 Kan. 32, Syl. ¶ 8. 

As the Court of Appeals panel in this case noted, the Dull opinion explicitly 

distinguished juvenile offenders, such as the defendant in Dull, from adult offenders, 

such as Brook: 

"While we have found mandatory lifetime postrelease supervision constitutional for 

adults, the same factors that result in a diminished culpability for juveniles, i.e.,

recklessness, immaturity, irresponsibility, impetuousness, and ill-considered decision 

making, along with their lower risks of recidivism, all diminish the penological goals of 

lifetime supervision for juvenile sex offenders." 302 Kan. 32, Syl. ¶ 7. 

We still hold this distinction to be valid and dispositive. Brook's categorical 

challenge to his lifetime postrelease term fails. 

CONCLUSION

The district court judge did not err in correcting Brook's two-year postrelease term 

to lifetime. We affirm his judgment and the decision of the Court of Appeals upholding 

it.