                           NOT DESIGNATED FOR PUBLICATION

                                              No. 121,141

               IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                          STATE OF KANSAS,
                                              Appellee,

                                                    v.

                                        TRENT L. ROBINSON,
                                            Appellant.


                                   MEMORANDUM OPINION

        Appeal from Jackson District Court; NORBERT C. MAREK, JR., judge. Opinion filed July 31,
2020. Affirmed in part and vacated in part.


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


        Michael J. Duenes, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.


Before ARNOLD-BURGER, C.J., STANDRIDGE and POWELL, JJ.


        PER CURIAM: Trent L. Robinson moved to withdraw his plea of guilty to rape of a
minor under the age of 14, arguing, in part, that he was not informed of the maximum
possible sentence he could receive as a result of his plea. The district court denied
Robinson's motion and sentenced him to life in prison with the possibility of parole in 25
years. Additionally, the court ordered lifetime postrelease supervision and lifetime
electronic monitoring on Robinson. Robinson timely appealed. We find that the district
court did not err in denying Robinson's motion to withdraw his guilty plea, but it did err
in ordering lifetime postrelease supervision and lifetime electronic monitoring.
Accordingly, we affirm in part and vacate the lifetime postrelease supervision portion of

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Robinson's sentence, as well as the district court's order for lifetime electronic
monitoring.


                            FACTUAL AND PROCEDURAL HISTORY


       In April 2012, the State charged Trent L. Robinson with rape of a child under 14
years of age while Robinson was over the age of 18.


       Because the alleged crime occurred on tribal land, Robinson's appointed counsel
sought a plea deal which would ensure that the federal government did not prosecute
Robinson for the same crime. A prosecutor with the United States Attorney's Office in
the District of Kansas sent Robinson's counsel a letter indicating that the federal
government would not prosecute Robinson if he met certain conditions. In part, Robinson
had to plead guilty as charged and agree to a "sentence of incarceration for a 'hard'
twenty-five years."


       At the plea hearing, Robinson agreed that he and his counsel discussed the letter
from the United States Attorney's Office. Robinson also acknowledged that his counsel
advised him that as a result of his plea he "could be confined . . . for a minimum of 25
years up to a maximum of life."


       Before accepting Robinson's plea, the district court reiterated that his crime was
"punishable by a 25—minimum 25 up to life imprisonment." Robinson also recognized
that he was agreeing to "the hard 25 years." Robinson then pleaded no contest.


       The State provided a factual basis for Robinson's plea stating, in part, that a child
under the age of 14 was pregnant and indicated that Robinson was the father. The court
accepted Robinson's plea.


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       Before being sentenced, Robinson expressed dissatisfaction with his counsel.
Robinson believed that his counsel did not adequately explain the consequences of his
plea. Robinson indicated that he wanted another attorney, but the district court denied his
request. The district court sentenced Robinson to "25 years to life without the possibility
of parole."


       Robinson appealed his sentence, arguing that the sentence was illegal. This court
agreed, holding that the district court "failed to sentence Robinson to a term of
imprisonment for life with a mandatory minimum term of imprisonment of not less than
25 years, followed by the possibility of parole, as required by K.S.A. 2017 Supp. 21-
6627(a)(1)." State v. Robinson, No. 117,173, 2018 WL 1545677, at *2 (Kan. App. 2018)
(unpublished opinion). This court remanded the case for resentencing.


       Before resentencing, Robinson's new defense counsel filed a motion to withdraw
plea. Robinson argued: (1) the district court explained his potential sentence using the
same language that led to the illegality of his original sentence, (2) he had issues with his
defense counsel at the time of the plea, (3) he did not understand the plea agreement, and
(4) he and his counsel at the time of the plea had not spoken much about the case.
Robinson later filed his own pro se motion for new counsel and a pro se motion to
withdraw plea. Robinson's pro se motion to withdraw his plea essentially argued that he
did not understand the consequences of his plea at the time he made it.


       At a hearing on Robinson's motions, Robinson again asserted that his first attorney
did not explain things to his satisfaction. He also explained that, due to his age, there was
little difference between being convicted at trial and his sentence after his plea deal. The
district court granted Robinson's request for a new attorney and continued the hearing.


       Robinson filed a second motion to withdraw his plea. He reiterated that he did not
understand the consequences of his plea and his likely sentence.

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       Robinson declined to present evidence at the hearing on his motions. The district
court noted that it was required to determine whether: (1) Robinson was represented by
competent counsel; (2) Robinson was misled, coerced, mistreated, or unfairly taken
advantage of; and (3) the plea was fairly and understandingly made. After considering the
factors, the district court denied Robinson's motion to withdraw his plea.


       Robinson's counsel filed a motion for a dispositional departure. Before sentencing,
Robinson requested that his counsel withdraw because he was not doing what Robinson
asked him to do. The district court denied his request. The district court also denied
Robinson's motion for a dispositional departure and sentenced him to life imprisonment
with the possibility of parole in 25 years. The court also ordered lifetime postrelease
supervision and lifetime electronic monitoring.


       Robinson timely appeals.


                                         ANALYSIS


       Robinson raises three issues on appeal. First, he argues that the district court erred
by denying his motion to withdraw his plea. Second, he argues the district court erred by
ordering him to serve a lifetime term of postrelease supervision. Finally, he argues the
district court had no authority to order lifetime electronic monitoring.


The district court did not err by denying Robinson's motion to withdraw his plea.


       For his first issue on appeal, Robinson argues the district court erred in denying
his motion to withdraw his plea because he was not accurately informed of the potential
sentence he faced.




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       We review the district court's actions for an abuse of discretion.


       "A plea of guilty or nolo contendere, for good cause shown and within the
discretion of the court, may be withdrawn at any time before sentence is adjudged."
K.S.A. 2019 Supp. 22-3210(d)(1). On appeal, the defendant must establish that the trial
court abused its discretion in denying a presentence motion to withdraw plea. State v.
DeAnda, 307 Kan. 500, 503, 411 P.3d 330 (2018).


       A judicial action constitutes an abuse of discretion if (1) it is arbitrary, fanciful, or
unreasonable; (2) it is based on an error of law; or (3) it is based on an error of fact. State
v. Ingham, 308 Kan. 1466, 1469, 430 P.3d 931 (2018).


       The district court did not abuse its discretion.


       Under K.S.A. 2019 Supp. 22-3210(d)(1), a defendant may withdraw his or her
plea of guilty or no contest before sentencing "for good cause shown and within the
discretion of the court." The same standard applies when a defendant has been sentenced,
the sentence is vacated on appeal, and the appellate court remands the case for
resentencing. See DeAnda, 307 Kan. at 501, 503.


       Three factors (often referred to as the Edgar factors) generally guide a district
court's consideration of whether a defendant has demonstrated the good cause required by
K.S.A. 2019 Supp. 22-3210(d)(1) to withdraw a plea prior to sentencing: (1) whether the
defendant was represented by competent counsel; (2) whether the defendant was misled,
coerced, mistreated, or unfairly taken advantage of; and (3) whether the plea was fairly
and understandingly made. State v. Edgar, 281 Kan. 30, 36, 127 P.3d 986 (2006). These
factors should not be applied mechanically and to the exclusion of other factors. State v.
Fritz, 299 Kan. 153, 154, 321 P.3d 763 (2014). These factors establish "'viable
benchmarks'" for the district court when exercising its discretion, but the court should not

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ignore other facts that might exist in a particular case. State v. Schaefer, 305 Kan. 581,
588, 385 P.3d 918 (2016).


       On appeal, Robinson does not argue that he was not represented by competent
counsel or that he was misled, coerced, mistreated, or unfairly taken advantage of.
Instead, his only argument is that the plea was not fairly and understandingly made
because the district court did not inform him of the potential sentence he faced.


       The district court may accept a defendants plea after, among other requirements,
the court has "informed the defendant of the consequences of the plea, including the
specific sentencing guidelines level of any crime . . . and of the maximum penalty
provided by law which may be imposed upon acceptance of such plea." K.S.A. 2019
Supp. 22-3210(a)(2). While the district court is required to inform the defendant of the
maximum penalty, the failure to do so can be deemed harmless if the record shows that
the defendant was advised of the maximum penalty through some other means. See State
v. Johnson, 307 Kan. 436, 445-46, 410 P.3d 913 (2018).


       As a result of his plea, the maximum possible conviction Robinson faced was life
imprisonment. See K.S.A. 2017 Supp. 21-6627(a)(1)(B). The question facing this court is
whether the district court informed Robinson that he was facing life imprisonment as a
result of his plea. It did.


       At his plea hearing, the district court informed Robinson that his crime was
"punishable by a 25—minimum 25 up to life imprisonment." This was a correct
statement of the law and complied with the requirement that the district court inform the
defendant of the maximum penalty that could result as a consequence of his plea. See
K.S.A. 2019 Supp. 22-3210(a)(2). The district court's statement was not the most artful
way of informing Robinson of the consequences of his plea, but the court was correct
because it informed Robinson that the penalty could be "life imprisonment." Moreover, at

                                              6
his plea hearing, Robinson acknowledged that he "could be confined . . . for a minimum
of 25 years up to a maximum of life."


       Kansas law requires no more than that the district court inform a defendant of the
maximum possible penalty the defendant faces as a result of their plea. Here, the district
court informed Robinson that he could face life in prison as a result of his plea. And
Robinson was obviously aware that he could face life in prison.


       Robinson argues that none of the statements made by the court, his counsel, or the
prosecutor "accurately reflected" his potential sentence because the statements were not
clear that he would receive a life sentence with a possibility of parole after 25 years. But
Robinson offers no case law supporting his argument. Under K.S.A. 2019 Supp. 22-
3210(a)(2), the district court is only required to inform the defendant of the maximum
possible penalty, which the court did in this case.


       Robinson fails to meet his burden to prove that the district court abused its
discretion in denying his presentence motion to withdraw plea. The district court's
decision was not based on an error of law or an error of fact. Nor was the district court's
decision unreasonable under the circumstances.


The district court erred by ordering Robinson to serve a lifetime term of postrelease
supervision.


       For his second issue on appeal, Robinson argues that the district court erred by
ordering him to serve a lifetime term of postrelease supervision. The State agrees with
Robinson. Whether a sentence is illegal within the meaning of K.S.A. 2019 Supp. 22-
3504 is a question of law over which the appellate court has unlimited review. See State
v. Lee, 304 Kan. 416, 417, 372 P.3d 415 (2016).


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       While sentencing Robinson, the district court ordered lifetime postrelease
supervision. However, the district court had "'no authority to order a term of postrelease
supervision in conjunction with an off-grid indeterminate life sentence.'" State v.
Newman, 311 Kan. 155, 160, 457 P.3d 923 (2020). Robinson received an off-grid
indeterminate life sentence for his rape conviction. See K.S.A. 2017 Supp. 21-
6627(a)(1)(B). Therefore, the district court erred when it imposed lifetime postrelease
supervision and that portion of Robinson's sentence must be vacated.


The district court did err by including lifetime electronic monitoring as part of
Robinson's sentence.


       For his final issue, Robinson argues the district court erred when it imposed
lifetime electronic monitoring as part of his sentence. Again, whether a sentence is illegal
within the meaning of K.S.A. 2019 Supp. 22-3504 is a question of law over which the
appellate court has unlimited review. See Lee, 304 Kan. at 417. Likewise, interpretation
of a sentencing statute is a question of law, and the standard of review is unlimited. State
v. Warren, 307 Kan. 609, 612, 412 P.3d 993 (2018).


       Robinson argues that the district court does not have the authority to impose
lifetime electronic monitoring on a defendant because Kansas statute gives the parole
board that power. Under K.S.A. 2019 Supp. 22-3717(u), an inmate "sentenced to
imprisonment pursuant to . . . K.S.A. 2019 Supp. 21-6627, and amendments thereto . . .
shall be placed on parole for life." If the board orders "the parole of an inmate pursuant to
this subsection, the board shall order as a condition of parole that the inmate be
electronically monitored for the duration of the inmate's natural life." K.S.A. 2019 Supp.
22-3717(u).




                                              8
       Robinson relies on this statute, and the Kansas Supreme Court's statements in
State v. Beaman, 295 Kan. 853, 869-70, 286 P.3d 876 (2012), to argue that only the
parole board can impose lifetime electronic monitoring in situations such as this.


       In Beaman, the Kansas Supreme Court was tasked with determining whether the
sentence imposed by the district court included lifetime electronic monitoring. The court
noted that if it did, the district court's sentence was illegal because "the sentencing court
does not have authority to impose such parole conditions." 295 Kan. at 869. But the
Kansas Supreme Court did not reach the issue because it accepted the State's argument
that the district court was merely informing Beaman that if he were paroled he would be
required to undergo lifetime electronic monitoring. 295 Kan. at 869-70. While discussing
Beaman's arguments the court referred to its prior decision in State v. Mason, 294 Kan.
675, 677, 279 P.3d 707 (2012), where the court held "the sentencing court does not have
the authority to impose parole conditions." Beaman, 295 Kan. at 869.


       The State argues the Kansas Supreme Court opinions are inapplicable here
because those opinions did not discuss K.S.A. 21-6604(r)—which was not adopted until
2012—requiring the court to order that the defendant be electronically monitored upon
release from imprisonment for the defendant's natural life; or amendments to K.S.A. 22-
3717(v)—again, not adopted until 2012—which limited a district court's authority to
order electronic monitoring of a defendant. L. 2012, ch. 32, § 1; L. 2012, ch. 150, § 43.


       Beaman and Mason both involved crimes that occurred in 2009, well before the
adoption of K.S.A. 2012 Supp. 21-6604(r) and amendments to K.S.A. 2012 Supp. 22-
3717(v). Likewise, here, Robinson's crimes were committed in April 2012, before the
July 1, 2012 effective date of K.S.A. 2012 Supp. 21-6604(r) and amendments to K.S.A.
2012 Supp. 22-3717(v). While those statutes clearly require a district judge to order a
defendant in Robinson's situation to be released onto electronic monitoring upon release
from imprisonment, "[c]riminal statutes and penalties in effect at the time of the criminal

                                              9
act are controlling." State v. Rice, 308 Kan. 1510, 1512, 430 P.3d 430 (2018). Moreover,
the general rule is that statutes operate only prospectively unless there is clear legislative
language to the contrary. State v. Todd, 299 Kan. 263, 274, 323 P.3d 829 (2014). An
exception to this rule has been employed when the statutory change is merely procedural
or remedial in nature and does not prejudicially affect the substantive rights of the parties.
The prescription of a punishment for a criminal act is substantive, not procedural, law.
State v. Hutchison, 228 Kan. 279, 287, 615 P.2d 138 (1980).


       There is no indication in K.S.A. 2012 Supp. 21-6604(r) and the amendments to
K.S.A. 2012 Supp. 22-3717(v) that they were intended to apply retroactively. And the
State does not argue that they were. It merely assumes that because Robinson was
sentenced in March 2019, the amendments apply. But the State, also through counsel
with the Attorney General's office, conceded in State v. Peterman, No. 111,159, 2015
WL 8587505, at *15 (Kan. App. 2015) (unpublished opinion), that a district court does
not have authority to impose lifetime electronic monitoring under K.S.A. 2012 Supp. 21-
6604(r) for crimes committed before July 1, 2012. The Attorney General's office provides
no explanation or argument as to why or if its position has changed. As noted, our
Supreme Court has held that the prescription of punishment for a criminal act is
substantive, not procedural. When Robinson committed his crime, the statutory
punishment provisions did not allow the district court to order lifetime electronic
monitoring, only the parole board. So, the district court erred in making such an order.


       Affirmed in part. The lifetime postrelease supervision portion of Robinson's
sentence, as well as the district court's order for lifetime electronic monitoring, are
vacated.




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