Full Opinion

No. 128,660 IN THE COURT OF APPEALS OF THE STATE OF KANSAS STATE OF KANSAS, Appellee, v. KENNETH ALAN SOCHA, Appellant. SYLLABUS BY THE COURT 1. A criminal sentence is effective when pronounced from the bench at the sentencing hearing. 2. A district court has jurisdiction to correct an illegal sentence while the criminal defendant is serving the illegal sentence. 3. When correcting an illegal sentence, the district court should pronounce the new sentence from the bench with the defendant present and represented by counsel. The court should then issue a journal entry of resentencing that reflects the new sentence. A sentencing court should refrain from using a nunc pro tunc order to record the new sentence. 4. A nunc pro tunc order is appropriate to correct clerical errors arising from oversight or omission. When correcting a clerical error in the defendant's sentence, the district court should correct the error through the issuance of a nunc pro tunc order . 1 5. A district court does not have jurisdiction to modify a sentence if the sentence is not illegal. Appeal from Reno District Court; TRISH ROSE, judge. Submitted without oral argument. Opinion filed November 6, 2026. Sentence vacated and case remanded with directions. Emily Brandt, of Kansas Appellate Defender Office, for appellant. Bach T. Hang, assistant district attorney, and Kris W. Kobach, attorney general. Before CLINE , P.J., COBLE and PICKERING, JJ. PICKERING, J.: This case addresses when a district court does—and does not— have jurisdiction to modify a defendant's sentence. Additionally, this case illustrates what is required when a district court resentences a criminal defendant who has received an illegal sentence. Kenneth Alan Socha appeals the imposition of lifetime postrelease supervision following a resentencing hearing. He claims the district court lacked jurisdiction to modify his sentence in 2024 because he was no longer serving his complete sentence. After a careful review, we find the district court properly corrected Socha 's illegal sentence in 2014, while Socha was serving his prison sentence. As a result, the district court did not have jurisdiction to modify his sentence in 2024 because Socha 's sentence was no longer illegal. Therefore, we vacate Socha's sentence and remand the case with directions. 2 FACTUAL AND PROCEDURAL BACKGROUND In March 2009 in Reno County, Socha entered a no-contest plea to one count of indecent liberties with a child, a severity level 5 person felony, for a crime that occurred in July 2008. See K.S.A. 2008 Supp. 21-3503. According to the journal entry of sentencing, the district court sentenced Socha to 38 months' imprisonment, suspended the sentence, and placed Socha on 36 months' probation with 24 months' postrelease supervision. The district court ordered Socha to register as a sex offender. In August 2009, the district court filed a nunc pro tunc journal entry of sentencing correcting a clerical error regarding probation. Socha struggled with probation and had his probation revoked, reinstated, and extended multiple times. In May 2014, the district court revoked Socha 's probation and imposed his underlying prison sentence, which included 24 months' postrelease supervision. The Kansas Department of Corrections (KDOC) noticed that Socha was incorrectly sentenced to 24 months' postrelease supervision—not lifetime postrelease supervision—and made the parties aware of the error. Accordingly, on July 14, 2014, the State filed a "Motion to Settle Journal Entry," asking "the Court to schedule a hearing to settle the journal entry of sentencing of June 26, 2009." The district court set the hearing for August 8, 2014, and ordered Socha to appear for the hearing by issuing an order for transport requiring Socha's presence. At the August 8, 2014 hearing, Socha appeared in person and with counsel. The prosecutor told the district court, "[T]his court['s] sentence at the time was illegal and needs to be corrected and I sent [defense counsel] a nunc pro tunc journal entry. He refused to sign it and asked for this to be set for hearing." Defense counsel argued the district court had no authority to change the sentence from what was pronounced from the 3 bench. The State countered, "If the sentence was wrong at the time because it says shall be mandatory life[time] post release, it is what it is. I mean, I think we have to be, it has to be corrected, Judge. You have to follow the law." The district court concluded: "Well, it appears to me that at the time that I announced 24 months which I'm sure that I did because I wrote 24 months, that that was not an option that I had so I will find that that was an illegal sentence and it needs to be corrected. I'll provide for lifetime post release. Mr. Socha, I'm sure that [defense counsel] has talked to you about your right to appeal this." The district court then filed a "Second Nunc Pro Tunc 2008 Kansas Sentencing Guidelines Journal Entry of Judgment" reflecting lifetime postrelease supervision. Socha's counsel filed a notice of appeal six days later. The following year, the district court dismissed the appeal for failure to timely docket the appeal. After serving his 38-month prison sentence, Socha began serving his postrelease supervision. In October 2024, Socha moved to docket his appeal out of time. The case was assigned to a different district court judge and assistant county attorney. The district court's October 24, 2024 order on the motion to docket appeal out of time did not rule on Socha's motion. Instead, it noted that there were two nunc pro tunc journal entries of sentencing filed in the case. The first addressed the probation duration issue and "was properly corrected by nunc pro tunc." The second involved "changing the post release period from 24 months, as ordered from the bench and reflected on all subsequent journal entries prior to the nunc pro tunc, to lifetime post release ." 4 The district court found the sentencing court improperly filed a nunc pro tunc order changing the length of postrelease supervision and ordered the case "be reheard before the district court for a lawful sentence to be imposed." The district court did not appear to be aware that, in 2014, the district court imposed lifetime postrelease supervision in a hearing with Socha and his defense counsel present. In response to the court's order, in December 2024, the State moved to correct an illegal sentence. The motion stated that a nunc pro tunc journal entry was filed changing the length of postrelease to lifetime postrelease. It also stated: "The defendant was not in the courtroom for the post release change. No motion to correct an illegal sentence was filed." The next day, the district court held a hearing on the State's motion to correct an illegal sentence. Socha was present and represented by new defense counsel. The State requested the district court impose lifetime postrelease supervision as was required when Socha was originally sentenced in 2009. At no time did Socha advise the court that he has been previously sentenced to lifetime postrelease supervision in 2014. Instead, Socha again argued that "a sentence pronounced from the bench should be the sentence pronounced from the bench and not be modified." Although he acknowledged lifetime postrelease supervision was a statutory requirement, he asserted that "a judge has discretion in what they impose at sentencing, and the judge could have imposed something other than lifetime postrelease and certainly did." The district court concluded, "I will order the sentence changed to lifetime postrelease from the original 24 months ordered, and that should take care of the hearing today." 5 Socha appealed. ANALYSIS In 2014, the District Court Had Jurisdiction to Correct Socha's Sentence On appeal, Socha argues the district court lacked jurisdiction to modify his sentence in 2024 because he was no longer serving his sentence. Standard of Review Issues involving subject matter jurisdiction or an illegal sentence may be raised at any time. State v. Johnson, 309 Kan. 992, 995, 441 P.3d 1036 (2019). Whether jurisdiction exists "'is a question of law, subject to unlimited appellate review.'" State v. Hillard, 315 Kan. 732, 775, 511 P.3d 883 (2022). Similarly, 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). Finally, "[w]hether a double jeopardy violation occurs under either the United States or Kansas Constitutions is a question of law subject to unlimited review." State v. Lehman, 308 Kan. 1089, 1094, 427 P.3d 840 (2018). Discussion Socha acknowledges he was subject to lifetime postrelease based on his crime of conviction but argues that the State had to correct the illegal sentence before he finished serving the sentence. Citing Lehman, 308 Kan. 1089, Syl. ¶ 5, Socha explains that once a sentence is completed—even an illegal sentence—the district court no longer has jurisdiction over the defendant. He also contends imposition of lifetime postrelease 6 supervision violated the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution because it was imposed after he completed his sentence. The State argues that, in 2014, the State promptly moved to correct the postrelease supervision issue when made aware of the issue, and thus Socha was lawfully ordered to serve postrelease supervision before he completed his sentence. Lehman is distinguishable because, in the State's view, the State did not ask the district court to impose the illegal sentence. The district court's 2009 sentence requiring Socha to serve 24 months' postrelease supervision was illegal. 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 . . . ." K.S.A. 22-3504(c)(1); State v. Mitchell, 315 Kan. 156, 158, 505 P.3d 739 (2022). An illegal sentence may be corrected "at any time while the defendant is serving such sentence." K.S.A. 22-3504(a). "[L]ifetime postrelease supervision is undeniably part of a defendant's sentence." State v. Mossman, 294 Kan. 901, 907, 281 P.3d 153 (2012). Both parties acknowledge that, when Socha was sentenced in 2009, the only statutorily authorized term of postrelease supervision was lifetime postrelease supervision. See K.S.A. 2008 Supp. 22 - 3717(d)(1)(G), (d)(2)(B). Socha's 2009 sentence was illegal. Socha's illegal sentence, however, was corrected in 2014. That year, after Socha 's probation was revoked and he was sentenced to prison, the KDOC noticed that Socha's postrelease supervision was not for lifetime supervision and alerted the parties. The State took steps to correct the sentence and ultimately filed a motion to settle journal entry. The 7 district court ordered that Socha be present at the hearing and issued an order to transport Socha from prison to the hearing. At the hearing, with Socha present and represented by counsel, the State informed the district court that Socha's sentence contained an illegal period of postrelease supervision and that it needed to be corrected. After hearing argument from Socha, the district court found: "Well, it appears to me that at the time that I announced 24 months which I'm sure that I did because I wrote 24 months, that that was not an option that I had so I will find that that was an illegal sentence and it needs to be corrected. I'll provide for lifetime post release." Thereafter, the district court filed a "Second Nunc Pro Tunc 2008 Kansas Sentencing Guidelines Journal Entry of Judgment." This journal entry correctly identified Socha as subject to lifetime postrelease supervision. K.S.A. 22-3504 distinguishes between illegal sentences and clerical mistakes in the judgment. Under K.S.A. 22-3504(a), on a motion to correct an illegal sentence, "the defendant shall have a right to a hearing, after reasonable notice to be fixed by the court, to be personally present and to have the assistance of counsel in any proceeding for the correction of an illegal sentence." In Johnson, 309 Kan. at 998, our Supreme Court differentiated between substantive errors—which typically require a remand for resentencing—and clerical errors, which may be corrected via a nunc pro tunc order. In contrast to illegal sentences, clerical mistakes may be corrected at any time, including without notice; the statute does not identify any procedural safeguards required when correcting a clerical error. See K.S.A. 22-3504(b). Our Supreme Court held: "K.S.A. 22-3504(2) [(Furse 1995)] [now K.S.A. 22-3504(b)] does not require a hearing and appointment of counsel for motions for nunc pro tunc orders." State v. Mebane, 278 Kan. 131, 139, 91 P.3d 1175 (2004). 8 In State v. Potts, 304 Kan. 687, 374 P.3d 639 (2016), the defendant requested a nunc pro tunc order reflecting that he was subject to lifetime parole for felony murder and 36 months' postrelease for his other crimes instead of lifetime postrelease supervision for all of his convictions. But our Supreme Court concluded that a nunc pro tunc order under K.S.A. 22-3504(2) (Torrence 2007) was inappropriate because "the journal entry of judgment reflect[ed], in part, the sentence . . . pronounced from the bench at sentencing." 304 Kan. at 709. Citing K.S.A. 22-3504(1) (Torrence 2007)—now K.S.A. 22-3504(a)— the Potts court found that "the appropriate remedy is to vacate the lifetime postrelease supervision period that the district court imposed and remand the case for resentencing with instructions that the district court impose lifetime parole for the felony -murder conviction and 36 months of postrelease supervision" for Potts' remaining convictions. 304 Kan. at 709. Here, the district court had jurisdiction to correct Socha's illegal sentence in 2014. See K.S.A. 2014 Supp. 22-3504(1) ("The court may correct an illegal sentence at any time."). With no change in our analysis, this subsection was modified in 2019 to read: "The court may correct an illegal sentence at any time while the defendant is serving such sentence." (Emphasis added.) K.S.A. 22-3504(a). Additionally, a criminal sentence is effective when pronounced from the bench at the sentencing hearing. State v. Peterson, 321 Kan. 189, 194, 574 P.3d 400 (2025). As such, the district court complied with the statutory requirements for correcting an illegal sentence by pronouncing Socha's new sentence from the bench with Socha present and represented by counsel. See K.S.A. 2014 Supp. 22-3504(1). The district court appropriately resentenced Socha on only the illegal part of his sentence. See State v. Jamerson, 309 Kan. 211, 217, 433 P.3d 698 (2019). In 2014, the district court correctly followed all the procedures for addressing a motion to correct an illegal sentence under K.S.A. 2014 Supp. 22-3504(1). The district court's 2014 journal entry of sentencing was titled a "Second Nunc Pro Tunc" journal entry of sentencing, although this was not the type of correction that could be made using 9 a nunc pro tunc. See K.S.A. 2014 Supp. 22-3504(2) ("Clerical mistakes in judgments, orders or other parts of the record and errors in the record arising from oversight or omission may be corrected by the court at any time and after such notice, if any, as the court orders."). As a result, the district court substantively complied with Johnson, 309 Kan. at 998, and Potts, 304 Kan. at 709. It simply mistitled the journal entry of sentencing as a nunc pro tunc journal entry of sentencing instead of a journal entry of resentencing. In 2024, the District Court Did Not Have Jurisdiction to Modify Socha's Corrected 2014 Sentence In 2024, in ruling on the motion to docket appeal out of time, the district court found: "A very generic motion was filed by the State on July 14, 2014 seeking to 'settle' the journal entry. The result of the hearing is the nunc pro tunc changing post release. "Our Supreme Court has ruled that a nunc pro tunc order is not the appropriate remedy given that the original journal entry aligned with the sentence pronounced from the bench regarding the post release period. . . . The appropriate remedy was to have a hearing to correct an illegal sentence and file an amended journal entry to reflect a lawful sentence if required. That was not done here." As a result, the district court ordered the case "to be reheard before the district court for a lawful sentence to be imposed." Our review of the record indicates that the district court in 2024 did not have access to the transcript of the 2014 hearing to settle the journal entry, although the record does contain the court's order of transport. As discussed above, in 2014 the district court held a hearing on the motion to settle the journal entry that fully complied with K.S.A. 10 2014 Supp. 22-3504(1) and resentenced Socha to lifetime postrelease supervision. In 2014 the district court imposed a lawful sentence, albeit with a mistitled journal entry. In State v. McCoin, 278 Kan. 465, 468, 101 P.3d 1204 (2004), the Kansas Supreme Court explained the limits of a district court's jurisdiction regarding modifying a defendant's sentence: "[T]he district court does not have jurisdiction to modify a sentence if the sentence is not illegal." In this case, Socha's sentence after the 2014 hearing was no longer illegal. Therefore, the district court had no jurisdiction in 2024 to order resentencing or to modify Socha's sentence. The Record Contains No Evidence to Suggest Socha Had Been Released from Postrelease Supervision, so Double Jeopardy Was Not Violated Socha again relies on Lehman to argue imposition of lifetime postrelease violates double jeopardy and must therefore be vacated. Lehman pled guilty to a sexual crime, was sentenced to prison, and—despite being subject to lifetime postrelease supervision— was sentenced to 24 months' postrelease supervision. Nearly four years later, the State moved to correct Lehman's illegal sentence. The KDOC, however, released Lehman from postrelease supervision before the district court heard the State 's motion. The district court concluded it had jurisdiction to resentence Lehman and resentenced him to lifetime postrelease supervision. On appeal, the Lehman court held: "[W]hen Lehman completed his original sentence—even if illegal—without a court order that superseded the judgment of the sentencing judge, he was no longer subject to the jurisdiction of the criminal justice system. Any additional sentence imposed on him fo r the same offense after completing the original sentence constitutes a multiple punishment proscribed by the double jeopardy provisions of our federal and state constitutions." 308 Kan. at 1099. 11 Lehman is distinguishable. First, unlike Socha, Lehman had completed both his prison sentence and his entire postrelease period before the district court resentenced him. Here, Socha was serving the prison portion of his sentence in the custody of the KDOC when he was resentenced, and the district court had complied with K.S.A. 2014 Supp. 22- 3504(1) by having Socha present and represented by counsel when it corrected Socha's illegal sentence in 2014. Second, Lehman was discharged from postrelease supervision more than six months before the hearing on the State's motion to correct an illegal sentence. Nothing in the record suggests Socha was ever discharged from lifetime postrelease supervision, particularly as the KDOC—which was in charge of monitoring his postrelease supervision—was aware that Socha had been ordered to serve lifetime postrelease in 2014. The appellant has the burden of designating a record that establishes the claimed error. "[W]ithout such a record, an appellate court presumes [the district court's action] was proper." State v. Valladarez, 288 Kan. 671, 686, 206 P.3d 879 (2009). As explained above, Socha was properly sentenced in 2014, although the sentencing journal entry was mistitled. Because the district court lacked jurisdiction to resentence him in 2024, we vacate the 2024 sentencing journal entry and remand this matter to the district court for the entry of a properly-titled sentencing journal entry reflecting the district court's legal 2014 sentence. Sentence vacated and case remanded with directions. 12