Opinion
No. 113,828.
05-06-2016
STATE of Kansas, Appellee, v. Anthony S. SMITH, Appellant.
Samuel Schirer, of Kansas Appellate Defender Office, for appellant. Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Samuel Schirer, of Kansas Appellate Defender Office, for appellant.
Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
MEMORANDUM OPINION
PER CURIAM.
Anthony S. Smith appeals the district court's summary denial of his motion for jail credit filed nearly 30 years after Smith's convictions. Smith argues that the district court “erred by refusing to consider the merits of [his] motion for jail credit.” We reject Smith's claim and affirm the district court's ruling.
We will try to piece together the factual and procedural history of this case based upon a sketchy record. On January 7, 1985, Smith pled guilty to one count of burglary, a class D felony, and one count of theft, a class E felony, in case 84CR1626. On March 29, 1985, the district court imposed a sentence of 1 to 10 years for the burglary conviction and 1 to 5 years for the theft conviction. The sentences were ordered to run concurrently. The district court granted Smith probation for a 3–year term. Jail credit was not mentioned at the sentencing hearing or in the journal entry of judgment.
The district court held a probation revocation hearing on March 20, 1986. At the hearing, Smith stipulated to violating the conditions of his probation. The district court revoked Smith's probation and ordered that he serve his underlying sentence. Jail credit was not mentioned at the hearing, however, the journal entry provided that Smith's sentence should be computed as beginning on March 4, 1986.
Smith filed a motion to modify the sentence, and the district court held a hearing on the motion on July 25, 1986. The district court granted Smith's motion to modify and placed him on probation for another 3–year term. Jail credit was not mentioned by either of the parties or the district court at the hearing or in the journal entry.
A warrant for Smith's arrest was issued on October 21, 1986, because Smith violated the conditions of his probation. The district court revoked Smith's probation and ordered him to serve his underlying sentence on October 29, 1986. It appears a hearing was held, however, a transcript of the hearing is not included in the record. The journal entry stated that Smith's sentence should be computed with a start date of May 21, 1986, i.e., the district court granted Smith 161 days' jail credit in 84CR1626.
Smith's probation in another case, 85CR133, also was revoked, and his underlying sentence was imposed on October 29, 1986. Although there is no transcript of the hearing in the record, a journal entry in 85CR133 is included in the record on appeal. The journal entry states that Smith's sentence in that case should be computed with a start date of September 24, 1986. Nothing else regarding jail credit was included in the journal entry.
On October 30, 1986, Smith filed another motion to modify his sentence in 84CR1626. The record shows that Smith's motion was “sustained” on July 7, 1988. However, the record does not contain a transcript of any hearing on the motion or any further ruling, nor does it make any mention of jail credit.
There is nothing in the record indicating how Smith became reincarcerated in either of his cases after July 7, 1988. However, on March 14, 1989, the district court held a hearing in both cases on another motion to modify. The motion is not included in the record nor is a transcript of the hearing. The district court overruled the motion. The journal entry does not mention jail credit.
Based on the record provided to this court, there was no further activity in Smith's cases for over 25 years. On August 21, 2014, Smith filed a pro se motion for jail credit in 84CR1626. In the motion, Smith alleged that he was entitled to receive an additional 14 months and 2 days of jail credit for time he was assigned to the Sedgwick County Community Corrections residential facility. He also claimed that he was entitled to receive an additional 96 days of jail credit for time he was held in the Sedgwick County jail for various probation violations. Smith claimed that had he received the proper jail credit, his sentence should have been computed with a start date of December 23, 1984. Smith requested that the district court grant him the jail credit to which he was entitled.
The State filed a response arguing that the motion should be summarily denied. The State argued that Smith waived a challenge to his jail credit award because he did not challenge the award on direct appeal making the issue res judicata. The State also asserted that Smith could not bring his claim through a K.S.A. 60–1507 motion unless he established manifest injustice. Finally, the State's response noted that Smith had been convicted in at least four other cases. Smith's motion asserted no claim that he was held in custody during the relevant time in question solely in connection with 84CR1626.
On November 21, 2014, the district court summarily denied Smith's motion for jail credit. The district court found that Smith had “waived” any jail credit issue and cited State v. Muldrow, No. 107,291, 2013 WL 1149704 (Kan.App.2013) (unpublished opinion), to support this finding. Smith filed a timely notice of appeal.
On appeal, Smith argues that the district court “erred by refusing to consider the merits of [his] motion for jail credit.” Specifically, Smith argues that his motion should have been construed as a K.S.A. 60–1507 motion and that such a motion is an appropriate vehicle to bring a claim for jail credit. In the alternative, Smith argues that a defendant can challenge jail credit through a nunc pro tunc motion, which the Kansas Supreme Court recognized in State v. Guzman, 279 Kan. 812, 813–816, 112 P.3d 120 (2005).
The State argues that the district court did not have jurisdiction over Smith's claim because he failed to file a direct appeal challenging his original jail credit award. The State argues that Smith is not entitled to any relief under K.S.A. 60–1507 and that his claim for jail credit cannot be brought through a nunc pro tunc motion. In the alternative, the State argues that even if this court has jurisdiction, the record does not show that Smith is entitled to additional jail credit because the record does not indicate that he was held in custody during the relevant time in question solely in connection with this case.
Whether jurisdiction exists is a question of law over which an appellate court's scope of review is unlimited. State v. Looney, 299 Kan. 903, 906, 327 P.3d 425 (2014). Also, an appellate court has unlimited review when deciding whether a district court was correct in summarily denying a postconviction motion. See Bellamy v. State, 285 Kan. 346, 354, 172 P.3d 10 (2007).
The Kansas Supreme Court has held that a claim challenging the amount of jail time credited to a sentence does not constitute a claim that the sentence itself was illegal within the purview of K.S .A. 22–3504(1). State v. Lofton 272 Kan. 216, Syl. ¶ 1, 32 P.3d 711 (2001). The court defined an illegal sentence as a sentence imposed by a court without jurisdiction, a sentence which does not conform to the statutory provision, either in character or the term of punishment authorized, or a sentence which is ambiguous with respect to the time and manner in which it is to be served. 272 Kan. at 217. Because a jail credit issue does not constitute an illegal sentence, a defendant's motion for jail credit is not subject to the statutory provision that the court may correct an illegal sentence “at any time.” See K.S.A. 22–3504(1).
Smith argues that his motion for jail credit should have been construed as a K.S.A. 60–1507 motion and that such a motion is an appropriate vehicle to bring a claim for jail credit. However, this court has previously ruled that a motion for jail credit does not fall within the confines of K.S.A. 60–1507 as a means of attacking an unconstitutional sentence. See Muldrow, 2013 WL 1149704, at *3; State v. Chambers, No. 100,493, 2009 WL 2436683 (Kan.App.2009) (unpublished opinion), rev. denied 289 Kan. 1281 (2010). In any event, even if the district court had construed Smith's motion for jail credit as a motion filed under K.S.A. 60–1507, Smith's motion was untimely and he failed to make any claim of manifest injustice to avoid the untimely filing. See K.S.A. 60–1507(f).
Smith also claims that a defendant can challenge jail credit through a nunc pro tunc motion filed under K.S.A. 22–3504(2). Smith is correct that in Guzman the defendant filed a nunc pro tunc motion for jail credit more than 2 years after his sentence, and the district court and our Supreme Court considered the merits of his motion. 279 Kan. at 813–14. However, we disagree with Smith that Guzman establishes that motions for jail credit can be treated as nunc pro tunc motions and heard at any time. In Guzman, the Supreme Court never addressed jurisdiction or the timeliness of the defendant's motion. The Supreme Court addressed the merits of the motion, i.e., whether time spent in house arrest qualified as jail credit, but neither party raised a procedural challenge to the motion. 279 Kan. at 813–16. We note that in Lofton, the defendant's motion for jail credit was labeled as a nunc pro tunc motion, and the Supreme Court agreed with the district court that the motion was not properly before the court. 272 Kan. at 217.
Moreover, Smith's motion for jail credit cannot be fairly construed as a nunc pro tunc motion authorized under K.S.A. 22–3504(2). This subsection provides: “Clerical mistakes in judgments, orders or other parts of the record and errors in the records arising from oversight or omission may be corrected by the court at any time and after such notice, if any, as the court orders .” Generally, a nunc pro tunc order is used to correct clerical errors; it is not a vehicle for litigating contested issues. See Book v. Everitt Lumber Co., Inc., 218 Kan. 121, 125, 542 P.2d 669 (1975). Smith's motion requests almost 18 months of additional jail credit, and he makes no claim that his failure to receive the credit was the result of a clerical error. We agree with the State that Smith cannot properly challenge his jail credit award through a nunc pro tunc motion.
Here, the district court found that Smith had “waived” any jail credit issue and summarily denied the motion for jail credit. The district court cited Muldrow to support this finding. In Muldrow, the defendant filed a pro se motion for jail time credit after his sentence had become final. This court determined that it lacked jurisdiction to consider the defendant's challenge to the sentencing court's calculation of jail time after the time for direct appeal had run because awarding jail credit is part of imposing the sentence. Muldrow, 2013 WL 1149704, at *2; see also State v. Blazier, No. 110,070, 2014 WL 4916599 (Kan.App.2014) (unpublished opinion); State v. Olson, No. 102,226, 2010 WL 2978044, (Kan.App.2010) (unpublished opinion).
The holdings in Muldrow, Blazier, and Olson are consistent with the general principles of res judicata and waiver. The doctrine of res judicata provides that “where an appeal is taken from the sentence imposed and/or a conviction, the judgment of the reviewing court is res judicata as to all issues actually raised, and those issues that could have been presented, but were not presented, are deemed waived.” State v. Kingsley, 299 Kan. 896, 901, 326 P.3d 1083 (2014). Here, Smith's original journal entry of judgment did not address jail credit. But his two subsequent journal entries of probation revocation expressly calculated the amount of jail credit Smith was entitled to receive. Smith could have challenged the jail credit issue in a direct appeal from his probation revocations, but he failed to do so. We agree with the district court that under the facts of this case Smith waived his right to contest jail credit by waiting over 25 years to challenge the journal entries awarding him credit for the amount of time he was held in custody.
In the alternative, the State argues that even if Smith's motion for jail credit is not procedurally barred, the record does not show that Smith is entitled to additional jail credit because the record does not indicate that he was held in jail solely in connection with this case. The State's argument has merit. Based on the record before us, we know that Smith was incarcerated in at least two different cases during the relevant time in question. In fact, the State's response to Smith's motion for jail credit asserted that Smith was incarcerated in at least four other cases in addition to 84CR1626.
A defendant is entitled only to credit for the time held in custody solely on account of, or as a direct result of, those charges for which he or she is being sentenced. See K.S.A.2015 Supp. 21–6615(b); State v. Calderon, 233 Kan. 87, 98, 661 P.2d 781 (1983). Here, Smith has the burden to show that he was entitled to additional jail credit. However, Smith's motion for jail credit makes no claim, much less establishes, that he was held in custody during the relevant time in question solely in connection with 84CR1626. Based on the record Smith provided in district court, he failed to establish that he was entitled to any relief on his motion for jail credit. Thus, we conclude that the district court did not err in summarily denying Smith's motion. See State v. Overman, 301 Kan. 704, 712, 348 P.3d 516 (2015) (district court's decision will be upheld if it is correct for any reason).
Affirmed.