Opinion
No. 110,615.
2014-10-17
Christopher A. GILLESPIE, Appellant, v. STATE of Kansas, Appellee.
Appeal from Sedgwick District Court; James R. Fleetwood, Judge.Janine Cox, Deputy Appellate Defender, for appellant.Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; James R. Fleetwood, Judge.
Janine Cox, Deputy Appellate Defender, for appellant. Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before HILL, P.J., STEGALL, J., and JOHNSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Christopher Gillespie appeals the district court's denial of his habeas corpus motion filed under K.S.A. 60–1507. He asks for an evidentiary hearing on his claim that his trial attorney provided inadequate assistance. Because Gillespie is not in custody serving the sentence in the case he is complaining about, we dismiss this appeal. Multiple prosecutions lead to multiple sentences.
Gillespie agreed to plead guilty in case No. 11–CR–1310 to one count of identity theft, three counts of identity fraud, one count of misdemeanor theft, and four counts of misdemeanor worthless check charges. In exchange, the State agreed to dismiss other charges. The State agreed to recommend the low number in the appropriate sentencing grid box for the controlling sentence, with all counts to run concurrently, and, as a special condition, Gillespie agreed to obtain drug, alcohol, and mental health evaluations and follow any recommendations therefrom. Gillespie signed an acknowledgement of rights and entry of plea, stating that his attorney advised him regarding the plea agreement and that he understood the consequences of entering his plea.
The district court subsequently discussed Gillespie's rights during his plea hearing. Gillespie acknowledged that he had signed the plea agreement, his attorney had explained the plea agreement to him, and he understood his rights he would be giving up and the possible sentences. The district court accepted Gillespie's pleas and found him guilty of all offenses.
At sentencing, the district court imposed a presumptive controlling term of 8 months' imprisonment and then suspended the sentence and placed Gillespie on probation for 18 months. Gillespie did not file a direct appeal in 11–CR–1310.
Then, Gillespie entered a plea of guilty in case No. 11–CR–1963 to charges of identity theft, forgery, and theft. A few months later, Gillespie violated the terms and conditions of his probation in 11–CR–1310 by allegedly possessing Lortab without a prescription, unlawful distribution of a controlled substance, and failure to complete inpatient drug and alcohol treatment.
In due course, the district court revoked Gillespie's probation in 11–CR–1310, ordering him to serve his underlying presumptive sentence of 8 months. The journal entry of the probation violation hearing, after calculating earned jail credit, reflected that Gillespie had already served his sentence in case No. 11–CR–1310 when his probation was revoked. On the same date, the district court imposed a 14–month presumptive controlling sentence in 11–CR–1963, to be served consecutively to the sentence imposed in 11–CR–1310. Gillespie did not appeal his revocation in 11–CR–1310, nor did he file a direct appeal in 11–CR–1963.
On November 29, 2012, Gillespie filed a pro se K.S.A. 60–1507 motion in the district court attacking 11–CR–1310. Specifically, Gillespie claimed he was innocent and that his counsel was ineffective for (1) coercing him “into taking a bogus plea,” (2) failing to investigate the case, (3) failing to follow his wishes to go to trial; (4) telling him the case was not winnable, (4) denying him the ability to go to trial, by stating he was “in an altered state of mind due to family problems and a pain killer addiction,” (5) telling him he would not file a notice of appeal on Gillespie's behalf, and (6) ignoring his requests to file a notice of appeal. We question jurisdiction.
While neither side has raised the question of jurisdiction either in the district court or on appeal, an appellate court has a duty to question jurisdiction on its own initiative. When the record discloses a lack of jurisdiction, it is the duty of the appellate court to dismiss the appeal. State v. J.D.H., 48 Kan.App.2d 454, 458, 294 P.3d 343, rev. denied 297 Kan. 1251 (2013).
Gillespie filed his motion under K.S.A. 60–1507(a) to collaterally attack a sentence imposed by the district court in case No. 11–CR–1310. But K.S.A. 60–1507 is a remedy for prisoners “in custody” under sentence of a court of general jurisdiction. K.S.A. 60–1507(a); see Supreme Court Rule 183(c)(1) (2013 Kan. Ct. R. Annot. 278), which provides that “[t]he provisions of K.S.A. 60–1507 may be invoked only by a person in custody claiming the right to be released.”
In Rawlins v. State, 39 Kan.App.2d 666, Syl. ¶ 2, 182 P.3d 1271, rev. denied 286 Kan. 1179 (2008), this court held that “[a] movant is in custody within the meaning of K.S.A. 60–1507 if he or she is subject to detention, confinement, or restraint on the sentence subject to challenge when the motion is filed.” (Emphasis added.) Moreover, this court has also held that K.S.A. 60–1507[a] “clearly contemplates that the sentence being attacked is the one resulting in present custody.” Johnson v. State, 4 Kan.App.2d 573, 574, 608 P.2d 1044 (1980). The statute only permits relief when the movant is in custody under the sentence he or she is attempting to challenge. 4 Kan.App.2d at 574, 608 P.2d 1044.
We note that Gillespie was not in custody for the sentence he was collaterally attacking when he filed his K.S.A. 60–1507 motion. The record indicates Gillespie filed his K.S.A. 60–1507 motion on November 29, 2012, while he was serving his 14–month sentence in 11–CR–1963. He had already served his 8–month sentence in 11–CR–1310. Moreover, at no point did Gillespie argue before the district court that his sentence in 11–CR–1963, to which the district court applied the special rule in K.S.A.2011 Supp. 21–6606(c), was based on an invalid prior conviction in 11–CR–1310. Issues not raised before the trial court cannot be raised on appeal. See Wolfe Electric, Inc. v. Duckworth, 293 Kan. 375, 403, 266 P.3d 516 (2011).
Thus, the district court lacked jurisdiction to hear Gillespie's motion under K.S.A. 60–1507 because he was not in custody within the meaning of K.S.A. 60–1507(a). See Rawlins, 39 Kan.App.2d 666, Syl. ¶ 2, 182 P.3d 1271; Johnson, 4 Kan.App.2d at 574–75, 608 P.2d 1044. Obviously, if the district court lacks jurisdiction to enter an order, an appellate court does not acquire jurisdiction over the subject matter on appeal. See State v. McCoin, 278 Kan. 465, 468, 101 P.3d 1204(2004).
Appeal dismissed.?