Opinion
No. 111736.
04-03-2015
Martin PRIEST, Appellant, v. Rex PRYOR, Appellee.
Rhonda K. Levinson, of Levinson & Levinson PA, of Basehor, for appellant. Sherri Price, legal counsel, Lansing Correctional Facility, for appellee.
Rhonda K. Levinson, of Levinson & Levinson PA, of Basehor, for appellant.
Sherri Price, legal counsel, Lansing Correctional Facility, for appellee.
Before BUSER, P J., LEBEN and STANDRIDGE, JJ.
MEMORANDUM OPINION
PER CURIAM.
Martin Priest appeals the decision of the Leavenworth County District Court rejecting his argument that the way the Kansas Department of Corrections (KDOC) treats his life sentence in determining his parole eligibility date also governs the amount of time he must actually serve on that sentence. In denying Priest's habeas corpus petition filed under K.S.A. 60–1501, the district court correctly found that the statute and regulation related to calculating a parole eligibility date serve that purpose alone and have no effect on the length of a determinate life sentence. Priest's argument fails to acknowledge this distinction and therefore is without merit. We affirm the district court.
The facts are not in dispute. On July 24, 1985, the district court imposed an indeterminate sentence of 1 to 5 years in prison after a jury convicted Priest of felony theft. On December 10, 1985, the court imposed a consecutive life sentence after a jury convicted Priest of a first-degree murder that he committed while awaiting trial on the theft charge. Because the two sentences were ordered to run consecutively, Priest's aggregated sentence was life in prison (for first-degree murder) plus 1 to 5 years (for felony theft).
In January 2012, after serving over 26 years in prison, Priest submitted a formal inquiry to prison officials seeking information regarding how his consecutive sentences were being calculated. This inquiry was written on a KDOC form commonly referred to as a Form 9. Priest posed two questions on that Form 9:(1) whether he was done serving his 1– to 5–year sentence and (2) why the Kansas Parole Board considered both of his sentences during a parole hearing conducted in October 2000 given he could not serve consecutive sentences at the same time. The prison officials responded that Priest would not begin serving his 1– to 5–year sentence until he was paroled from his life sentence.
On July 26, 2013, Priest filed a petition for a writ of habeas corpus under K.S.A. 60–1501 challenging the manner in which the KDOC was calculating his sentences. Specifically, Priest alleged the KDOC failed to automatically parole him to his nonlife indeterminate sentence after he had served 15 years of his life sentence. Arguing he already had reached the conditional release date on the nonlife indeterminate sentence, Priest claimed he was illegally incarcerated and entitled to automatic release on parole.
At a hearing on February 11, 2014, Priest clarified that he was challenging the accuracy of the information provided by prison officials on the Form 9, which stated that he could not begin serving his 1– to 5–year sentence until he was paroled to his life sentence. Priest also told the district court he wanted to clarify that he was not required to have one parole hearing for his life sentence and then another one for the 1– to 5–year sentence. Significantly, the warden conceded at the hearing that the Form 9 was wrong. More specifically, the warden told the court that after Priest filed a separate grievance challenging the accuracy of the information provided in the Form 9, the warden corrected the information to reflect that Priest already had finished serving the 1– to 5–year sentence and currently was incarcerated solely on his life sentence. Based on the evidence presented and the arguments of counsel, the district court ultimately denied Priest's petition for relief.
Standard of Review
An appellate court generally reviews a district court's decision on a K.S.A. 60–1501 petition to determine whether the district court's factual findings are supported by substantial competent evidence and are sufficient to support the court's conclusions of law. The district court's conclusions of law are subject to de novo review. Rice v. State, 278 Kan. 309, 320, 95 P.3d 994 (2004). To the extent that resolution of the issues requires interpretation of a statute or administrative regulations, this court's review is unlimited. See State v. Ernesti, 291 Kan. 54, 64, 239 P.3d 40 (2010).
Analysis
In his appeal from the district court's decision, Priest raises the same two arguments he raised below. First, he argues the information provided to him by the prison officials in the Form 9 was erroneous; therefore, remand is required for a full hearing to determine how the KDOC is computing his sentence. Second, he argues that the KDOC should have paroled him to his nonlife indeterminate sentence after he had served 15 years of his life sentence.
The KDOC's computation of an inmate's sentence generally involves consideration of numerous factors, including but not limited to the date of the crime, the sentence—begins date, and the availability of good time credits. See, e.g., K.A.R. 44–6–101 et seq. At the outset of its judgment, the district court duly noted that the only documentation it had concerning the computation of Priest's sentences was the Form 9. Without anything else, such as the journal entries of sentencing, the district court found it “impossible to determine the validity of [Priest's] assertion with regard to the [warden's] sentence calculation.” Nonetheless, the court went on to address both of Priest's contentions.
1. Form 9
Because the warden conceded at the hearing that the Form 9 was wrong, Priest insists this court must remand for an evidentiary hearing on “how the KDOC is actually calculating the sentence.” But Priest's challenge to errors in the Form 9 is now moot. See State v. Montgomery, 295 Kan. 837, 840, 286 P.3d 866 (2012) (explaining mootness doctrine recognizes that court's role is to determine real controversies relative to persons' legal rights and properties that are actually involved in particular case properly brought before it and to adjudicate those rights so that its determination will be operative, final, and conclusive). As Priest acknowledges, the warden conceded at the hearing that the sentence calculation provided by prison authorities in response to Priest's inquiry on the Form 9 was wrong and that the KDOC already had corrected the calculation based on a separate grievance proceeding filed by Priest. To the extent that Priest is now attempting to argue some other sentencing computation error, this is not the proper place to do so. See State v. Kelly, 298 Kan. 965, 971, 318 P.3d 987 (2014) (issues not raised below cannot be raised on appeal).
In his second claim of error, Priest argues the KDOC erred by (1) failing to have him serve his life sentence before his nonlife sentence and (2) failing to automatically parole him to his nonlife sentence after he had served 15 years of his life sentence.
a. Sequence
Priest argues the KDOC should have calculated his sentence pursuant to K.A.R. 44–6–114c (1994 Supp.), which requires his class A felony life sentence for first-degree murder to be served before his nonlife sentence. Contrary to Priest's argument, however, the regulation which actually applied to him was K.A.R. 44–6–114 (1984 Supp). The version of K.A.R. 44–6–114 in effect in 1984 provided standards for determining parole eligibility on offenses under the criminal code in effect until July 1, 1994.
Basically, K.A.R. 44–6–114 (1984 Supp.) stated that an inmate serving a life sentence on a Class A felony became eligible for parole after 15 years. If the inmate was also serving a consecutive sentence for a term of years, he or she would first be credited with the 15 years on the life sentence for parole eligibility purposes and then would be credited with time on the other sentence. The parole eligibility periods for sentences other than life were based on the minimum length of incarceration imposed. Given the sentence imposed for the conviction of felony theft, the parole eligibility period would be computed using the 1–year minimum sentence. After serving that combined time, the inmate would become eligible for parole. That is, the inmate could ask the parole board to consider his or her conditional release. The inmate might well be denied parole and would have to remain in prison awaiting another parole hearing. Thus, fatal to Priest's claim here, the process set forth in K.A.R. 44–6–114 governs only parole eligibility—the right to appear at a parole hearing—and not the duration, sequence, or termination of a sentence.
“When a statute does not provide for the order of sentences, then the order of the terms is that designated by the trial court, and if not specified, then the order is that in which the convictions were rendered.” Price v. State, 28 Kan.App.2d 854, 858, 21 P.3d 1021 (discussing rules governing order of service of sentence for purposes of aggregation), rev. denied 271 Kan. 1037 (2001). The record on appeal in this case does not include the sentencing journal entries; thus, we do not know if the trial court designated the order in which Priest has to serve his sentences. Because our decision about the sequence of the sentences in this case is contingent upon the order in which the convictions were rendered, we necessarily find that Priest served his 1– to 5–year sentence first, because that was the conviction that was rendered first. Notably, our finding in this regard is consistent with the warden's testimony conceding that the sentence calculation provided by prison authorities in the Form 9 was wrong but the KDOC already had corrected the calculation based on a separate grievance proceeding filed by Priest.
Priest suggests on appeal that the district court's comment on the lack of sentencing journal entries was premature at a hearing on the warden's motion to dismiss. Accordingly, he asks this court to remand for an evidentiary hearing, so he can produce his journal entries of sentencing. But remand for admission of the sentencing journal entries is unnecessary because even if they reflect that the trial court ordered Priest to serve his life sentence first, the result would be the same, i.e., he would not be entitled to immediate release for reasons next explained.
b. Parole eligibility: life sentence
Priest also argues that the KDOC erred by failing to automatically parole him to his nonlife sentence after he had served 15 years of his life sentence. We are not persuaded by this argument because it effectively turns his class A felony life sentence into a 15–year determinate sentence. Such a holding is contrary to the directive from our Supreme Court that “a class A felony has no maximum or minimum that can be set by the court.” State v. Van Winkle, 256 Kan. 890, 899, 889 P.2d 749 (1995). As aptly explained by another panel of our court:
“With a life sentence, an inmate never really begins serving a consecutive sentence for a term of years. The term of a life sentence really is the remainder of the inmate's life, however long that might be. But the consecutive sentence does affect when the inmate becomes eligible for parole or some other form of conditional release.
Likewise, were the life sentence reversed, vacated, or commuted, the inmate would still serve the term of years on the other conviction.” Aikins v. Werholtz, No. 108,619, 2013 WL 2992839, at *2 (Kan.App.) (unpublished opinion), rev. denied 298 Kan. –––– (2013).
In sum, Priest is not done serving his life sentence, so he is not entitled to the immediate release he seeks.
Affirmed.