Opinion
110,070 110,071.
09-26-2014
STATE of Kansas, Appellee, v. Shawn M. BLAZIER, Appellant.
Korey A. Kaul, of Kansas Appellate Defender Office, for appellant. Ellen H. Mitchell, county attorney, and Derek Schmidt, attorney general, for appellee.
Korey A. Kaul, of Kansas Appellate Defender Office, for appellant.
Ellen H. Mitchell, county attorney, and Derek Schmidt, attorney general, for appellee.
Before ATCHESON, P.J., HILL and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Shawn M. Blazier appeals from the district court's denial of his motion for jail credit. The district court dismissed the motion for lack of jurisdiction but, alternatively, determined that Blazier was not entitled to the credit. Because Blazier failed to appeal at the time the jail credit was determined, the district court properly dismissed Blazier's later-filed motion. Accordingly, we must dismiss Blazier's appeal for lack of jurisdiction.
Factual and Procedural History
This case involves three separate cases spanning a 3–year period, with several probation revocations and reinstatements of probation on various combinations of the three cases. This resulted in some confusion over jail time credit. We will attempt to set forth only the facts necessary to reach a decision in this case.
Blazier was sentenced to an underlying prison term of 10 months for two felony convictions in case number 01CR1158 (2001 felony case). The sentence was subject to 18 months of probation. The journal entry of sentencing notes that Blazier was awarded 66 days of jail credit, thus leaving 234 days to serve in prison if his probation were to be revoked.
A few months later, Blazier faced a probation revocation on a 2001 misdemeanor theft case (misdemeanor theft case) as well as a motion to revoke his probation in his 2001 felony case. The record on appeal does not contain the file for the misdemeanor theft case, so any information about it comes from joint hearings in the two cases. But it appears that Blazier also received probation in the misdemeanor theft case, with an underlying 12–month jail sentence to be served in the Saline County jail if revoked. Blazier's probation in both cases was revoked and reinstated and Blazier was ordered to report to community corrections for intensive supervision probation. The probations were to run concurrently.
Six months later, following yet another probation violation hearing, Blazier's probation terms in both the 2001 felony case and the misdemeanor theft case were extended for 12 months. The district court also ordered Blazier to serve 60 days in jail, which the court stated would apply to both his misdemeanor and felony sentence. Thus leaving 174 days remaining in his 2001 felony case (234 days remaining minus 60 days) and 305 days on his misdemeanor theft case (365 days minus 60 days).
Blazier was again facing a probation revocation just 4 months later, in July 2003. A revocation hearing was held on both the 2001 felony case and the misdemeanor theft case. After hearing testimony from Blazier and his supervising probation officer, the district court found that Blazier violated the terms and conditions of his probation. The district court judge then advised Blazier that he was going to revoke Blazier's misdemeanor theft case probation, but he was going to continue his probation in the 2001 felony case and extend it for 12 months subject to Blazier “completing his jail term in the misdemeanor sentence.” Blazier would be required to serve the balance of 305 days in the county jail. A discussion took place in which the prosecutor attempted to clarify what the judge meant because the judge made a passing comment that since the 2001 felony case sentence was shorter than the 2001 misdemeanor theft sentence, “It may well be that when he completes that, he'll complete this sentence as well. If that's what happens, so be it, but that's going to be my order.” When asked for clarification, the district court judge noted that it was his understanding that the sentences were concurrent in the two cases. He continued with the following:
“Well, you know what's going to happen. I intend to have him serve his sentence in the misdemeanor case, which is longer than the felony sentence. It's a year in the county jail. It was 10 months felony probation. So I think what's going to happen is it's going to expire while he's serving his sentence in the county jail, and that's what I intend.”
The resulting journal entry of probation revocation in the 2001 felony case shows that on July 31, 2003, Blazier's probation was extended for 12 months, beginning on that date. The journal entry also stated that Blazier had earned 104 days of jail credit while on probation, which would leave 130 days on the 2001 felony case (234 days minus additional 104 days credit). Blazier did not appeal the sentencing order. He now contends it was because he believed the judge made his intentions clear—that his 2001 felony sentence would expire while he was serving his 1–year misdemeanor theft sentence in the county jail. We have no reason to doubt this contention, other than the clear expression otherwise in the actual journal entry of sentencing. But, we agree the sentencing judge's order from the bench was confusing.
On August 30, 2004, new felony charges were filed against Blazier in case number 04CR999 (2004 felony case). He was eventually convicted of several felonies.
On April 11, 2005, Blazier was sentenced in the 2004 felony case to 126 months' imprisonment, which the district court ordered to run consecutive to his sentence in the 2001 felony case. Blazier's probation in the 2001 felony case was revoked because he was still on probation in that case when he committed his crimes in the 2004 felony case, and he was ordered to serve his original sentence. The district court noted that Blazier had served his entire sentence in the misdemeanor theft case. Blazier had earned 135 days of jail credit in the 2004 felony case and he was awarded a total of 343 days of jail credit in the 2001 felony case, even though it was only a 10–month sentence. But, as the State points out in its brief, although the terms of the 2004 felony case and the 2001 felony case were to be consecutive, Blazier was given jail credit for the same 135 days on both cases. The journal entries on both cases were signed and filed on April 15, 2005. Although he argued the issue of the court's failure to appropriately apply his jail credit from the misdemeanor theft case to the 2001 felony case, Blazier did not appeal from his probation revocation in the 2001 felony case.
Blazier did appeal the 2004 felony case, and this court affirmed his convictions. See State v. Blazier, No. 94,677, 2007 WL 570178 (Kan.App.2007) (unpublished opinion), rev. denied 284 Kan. 947.
On March 14, 2013, Blazier filed motions for jail time credit in all three cases. In the motions, Blazier argued that he was not given jail credit in the 2001 felony case for time he spent in jail on the misdemeanor theft case despite the sentences in the two cases being concurrent. In other words, he argued that he should not have had any time remaining on the 2001 felony case when he was sentenced on the 2004 felony case and to do otherwise essentially modified the sentences in his 2001 felony case and his misdemeanor theft case from concurrent to consecutive.
On May 1, 2013, the district court held a hearing on Blazier's motion for jail time credit. The district court determined that it did not have jurisdiction to correct Blazier's jail credit that had been awarded in 2003 because Blazier failed to appeal that decision at the time it was made. The district court also determined, in the alternative, that Blazier was not entitled to the jail time credit he requested because his probation was revoked only in the misdemeanor theft case, so his time spent incarcerated on that case should not count as jail credit in the 2001 felony case.
On May 2, 2013, Blazier filed notices of appeal in the 2001 felony case and the 2004 felony case. This court consolidated the appeals.
Analysis
We lack jurisdiction to consider Blazier's appeal
Blazier argues that the district court erred in finding it did not have jurisdiction to consider his request to alter his jail credit. Whether a court has jurisdiction is subject to unlimited review. See State v. Berreth, 294 Kan. 98, 109, 273 P.3d 752 (2012).
Blazier argues that the district court erred in dismissing his motion for lack of jurisdiction because res judicata does not bar his request to alter his jail credit. Whether the doctrine of res judicata applies in a certain situation is an issue of law over which appellate courts exercise de novo review. In re Tax Appeal of Fleet, 293 Kan. 768, 777, 272 P.3d 583 (2012) ; Miller v. Glacier Development Co., 293 Kan. 665, 668, 270 P.3d 1065 (2011). An issue is barred by res judicata once that issue has been presented to the court and decided in a final judgment. Thereafter, a person may not raise that issue a second time. Upchurch v. State, 36 Kan.App.2d 488, 493, 141 P.3d 1175, rev. denied 282 Kan. 797 (2006).
Blazier argues that his jail credit issue is not barred by res judicata because the issue was never clearly decided against him. He relies on the district court's less-than-clear word choices at the probation revocation and sentencing hearings in 2003 to argue that he did not appeal the rulings previously because he thought the district court was awarding him credit in the 2001 felony case for his time spent incarcerated after his July 24, 2003, probation revocation.
Nevertheless, even if he did not realize the error after his 2003 hearing, he certainly was put on notice of it by the August 2005 hearing on both the 2001 felony case and the 2004 felony case. Moreover, the journal entry stating what jail credit he was receiving in the 2001 felony case was signed by the judge, the prosecutor, and defense counsel shortly after the hearing, and filed with the clerk of the district court on April 18, 2005. The journal entry clearly shows Blazier was not receiving jail credit for his time spent incarcerated after the July 24, 2003, probation revocation.
At the time, Blazier had only 10 days from the judgment to file a notice of appeal. K.S.A. 22–3608(c). Judgment in a criminal case is sentencing, and the time to file a notice of appeal runs from oral pronouncement of the sentence. State v. Ehrlich, 286 Kan. 923, 925, 189 P.3d 491 (2008) ; see also State v. Carr, 274 Kan. 442, 451, 53 P.3d 843 (2002) (distinguishing between judgment of sentence and judgment of probation revocation); State v. Tripp, 237 Kan. 244, Syl. ¶ 3, 699 P.2d 33 (1985) (stating original sentence may not be challenged in appeal of probation revocation). The filing of a timely notice of appeal is jurisdictional. State v. Hemphill, 286 Kan. 583, 588, 186 P.3d 777 (2008).
Awarding or calculating jail credit is part of imposing the sentence and is used to compute the sentence start date. See State v. Denney, 278 Kan. 643, 648, 101 P.3d 1257 (2004) (Under the mandatory provisions of K.S.A. 21–4614, a defendant who is sentenced to incarceration must be “ ‘given credit for all time spent in custody solely on the charge for which he is being sentenced.’ ”). Accordingly, Blazier should have challenged the district court's jail credit calculation within 10 days of its pronouncement. Because Blazier's motion for jail credit filed in 2013 was untimely, the district court did not err in dismissing it for lack of jurisdiction. See State v. Walker, No. 109,309, 2014 WL 902153, at *3 (Kan.App.2014) (unpublished opinion), petition for rev. filed April 7, 2014; State v. Muldrow, No. 107,291, 2013 WL 1149704, at *2 (Kan.App.2013) (unpublished opinion), rev. denied 297 Kan. 1253 (2013); State v. Olson, No. 102,226, 2010 WL 2978044, at *2–3 (Kan.App.2010) (unpublished opinion).
Relating this to Blazier's argument about res judicata, Blazier specifically argued at the April 11, 2005, hearing on his probation revocation in the 2001 felony case and sentencing in the 2004 felony case that he should have received jail credit for his incarceration after his July 24, 2003, probation revocation. And although the district court's oral pronouncement that “[w]hatever has been ordered is the order” is not the clearest pronouncement, the district court decided what jail credit Blazier would receive in the 2001 felony case and filed the journal entry on April 18, 2005. His attorney signed the journal entry on April 15, 2005. That decision was not appealed so it became a final decision, and res judicata bars further consideration of the issue. See Walker, 2014 WL 902153, at *3. Accordingly, we must dismiss Blazier's appeal for lack of jurisdiction.
We pause to note that due to the short amount of time to appeal the allocation of jail time credit, now 14 days under K.S.A.2013 Supp. 22–3608(c), defense counsel is advised to carefully discuss and examine the district court's allocation of jail credit in the case in order to raise it with the court or file a timely appeal, if necessary.
Dismissed for lack of jurisdiction.