Opinion
No. 111065.
2015-02-6
DeRon McCOY, Appellant, v. STATE of Kansas, Appellee.
Appeal from Sedgwick District Court; James R. Fleetwood, Judge.Michael P. Whalen and Krystle M.S. Dalke, of Law Office of Michael P. Whalen, of Wichita, for appellant.Matt J. Moloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; James R. Fleetwood, Judge.
Michael P. Whalen and Krystle M.S. Dalke, of Law Office of Michael P. Whalen, of Wichita, for appellant. Matt J. Moloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before ARNOLD–BURGER, P.J., PIERRON and BUSER, JJ.
MEMORANDUM OPINION
PER CURIAM.
DeRon McCoy appeals the district court's summary denial of his habeas corpus motion under K.S.A. 60–1507. McCoy asks for an evidentiary hearing on his claim that he should have been convicted and sentenced as a juvenile. Because McCoy was not in custody serving the sentence in the case he is complaining about when he filed his K.S.A. 60–1507 motion, we must dismiss the appeal. We also note it appears that McCoy is not under any state supervision for this case.
On July 13, 2001, the State charged McCoy in an amended complaint with aggravated battery with a deadly weapon and aggravated assault with a deadly weapon. The charges stemmed from an altercation on August 14, 2000. At the time, McCoy was 17 years old. Therefore, the State initially charged him as a juvenile in case No. 01–JV–47.
The State filed a motion for adult prosecution. This motion does not appear in the record. On February 8, 2001, the district court held an evidentiary hearing on the State's motion. At the hearing, the State presented testimony from McCoy's Department of Corrections (DOC) officer, two witnesses to the altercation, and McCoy's victim in the incident. Because the facts of the underlying case are irrelevant to this appeal, they are heavily summarized.
Witnesses testified at the hearing that two men were involved in a street fight late at night on August 14, 2000. Multiple people were in the street watching the fight, including Michael Brown. Many of the individuals were members of street gangs. During the fight, an individual approached the fight with an automatic gun. The individual came from around a house and fired six shots into the crowd, five of which hit Brown. Brown suffered serious injuries from the bullets. Brown and the other witnesses identified the shooter as McCoy.
The DOC officer assigned to McCoy's case testified the available juvenile facilities and programs were not likely to rehabilitate McCoy. The officer testified McCoy had five previous juvenile adjudications and he had worked with McCoy on some of those cases. McCoy's previous cases included convictions for battery, burglary, criminal deprivation of property, and two theft convictions. Throughout those cases, at least two juvenile placement programs kicked McCoy out and a foster home requested his removal. The foster home requested McCoy's removal for the “well being, safety and welfare of the other siblings” residing in the home. The officer testified that in 1998 and on a different case he tried placing McCoy with his grandparents, but that also did not work out.
Based on the testimony presented, the district court determined McCoy should be prosecuted as an adult. The court noted McCoy's prior contacts with the juvenile system and the offense with which he was charged. The court felt it would be inappropriate to keep McCoy in the juvenile system. The State filed an amended complaint charging McCoy as an adult.
On July 13, 2001, McCoy pled no contest to one count of aggravated battery in violation of K.S.A. 21–3414(a)(1)(B), a severity level 7 nondrug person felony, and one count of aggravated assault in violation of K.S.A. 21–3410, a severity level 7 nondrug person felony.
On October 18, 2001, the district court sentenced McCoy. Based on his criminal history and the severity level of the charges, his sentence was presumptive probation. McCoy received a total sentence of 18 months' probation with a 36–month underlying prison term and 12 months of postrelease supervision. The court ordered McCoy to serve his probation at a community corrections residential center.
On June 14, 2002, corrections staff noticed McCoy had left the residential center in violation of his probation. As a result, the State charged McCoy with aggravated escape from custody in case No. 02–CR–2192. McCoy was convicted of the charge, though nothing from that case is included in the record on appeal. On January 30, 2003, the district court revoked McCoy's probation and ordered him to serve his prison sentence based on the new conviction.
On August 8, 2013–12 years after his plea and 11 years after his probation was revoked—McCoy filed a pro se K.S.A. 60–1507 motion challenging case No. 01–CR–266. In his motion, McCoy alleges the aggravated escape charge was a part of case No. 01–CR–266. However, the record indicates McCoy was charged with aggravated escape in a separate case. McCoy alleged his sentence in 01–CR–266 was an illegal sentence in violation of K.S.A. 22–3504 because he should have been sentenced as a minor pursuant to K.S.A. 38–1636(i). He also alleges he was illegally housed at the residential center. McCoy admitted he had already completed the sentence for 01–CR–266 and the aggravated escape conviction. Nonetheless, he asked the district court to correct his illegal sentence because it would “serve a purpose as to criminal history scoring and to what criminal history [McCoy] would have to disclose to potential employers and the such.”
The district court summarily denied McCoy's motion stating: “The [McCoy] fails to assert any grounds justifying reconsideration of his sentence. The court finds the original sentence to be legal.” McCoy filed a timely notice of appeal.
McCoy alleges the following errors in the district court's summary denial of his K.S.A. 60–1507: the court failed to follow the law and failed to make all required findings of facts; the court made no finding of timeliness, successiveness, manifest injustice, or exceptional circumstances; and the court failed to comply with Supreme Court Rule 183 (2014 Kan. Ct. Rule Annot. 285). McCoy also argues the State waived the affirmative defense of the untimeliness of his pro se K.S.A. 60–1507 motion because the court denied the motion before the State raised the defense.
In response, the State first claims McCoy is not entitled to relief because he filed his 60–1507 motion after he completed the sentence his motion attacked and the motion was untimely. The State also argues the district court properly summarily denied McCoy's 60–1507.
McCoy did not file a reply addressing the State's claim that we lack jurisdiction.
Whether jurisdiction exists is a question of law over which our scope of review is unlimited. State v. Charles, 298 Kan. 993, 1002, 318 P.3d 997 (2014).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 (2013).
McCoy filed his K.S.A. 60–1507 motion to collaterally attack a sentence imposed by the district court in case No. 01–CR–266. But 60–1507 is a remedy for prisoners in custody under sentence of a court of general jurisdiction. K.S.A. 60–1507(a). Supreme Court Rule 183(c)(1) (2014 Kan. Ct. R. Annot. 286), further provides: “The 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, 670, 182 P.3d 1271, rev. denied 286 Kan. 1179 (2008), the court held: “[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 by the K.S.A. 60–1507 motion when the motion is filed.” This court has also held that K.S.A. 60–1507 “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 clearly 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.
Here, McCoy was not in custody for the sentence he was collaterally attacking when he filed his K.S.A. 60–1507 motion. The record indicates McCoy filed his motion on August 8, 2103, while serving a sentence on another case. Both parties agree McCoy was not in custody in connection with the underlying criminal sentence he challenges in his 60–1507 motion. McCoy acknowledged he had already completed the sentence in his 60–1507 motion at the time he filed that motion. In its brief, the State argues we lack jurisdiction because McCoy has already fully served his sentence. McCoy did not respond to this argument.
It is our duty to dismiss an appeal when the record discloses a lack of jurisdiction. J.D.H., 48 Kan.App.2d at 458. McCoy failed to raise his attack on his conviction in 01–CR–266 while still in custody on that case. K.S.A. 60–1507 gives courts jurisdiction to hear a collateral attack on a conviction only while the prisoner is in custody on the sentence subject to the challenge when the motion is filed. See K.S.A. 60–1507(a); Rawlins, 39 Kan.App.2d 666, Syl. ¶ 2. Therefore, the district court lacked jurisdiction to hear McCoy's 60–1507 motion because he was not in custody within the meaning of K.S.A. 60–1507(a). See Rawlins, 39 Kan.App.2d at 670; Johnson v. State, 4 Kan.App.2d at 574. We do not acquire jurisdiction over the subject matter on appeal. See State v. McCoin, 278 Kan. 465, 468, 101 P.3d 1204 (2004). Therefore, we must dismiss this appeal.
Dismissed.