Opinion
No. 108,532.
2013-07-5
STATE of Kansas, Appellee, v. Brady SULT, Appellant.
Appeal from Reno District Court; Joseph L. McCarville III, Judge. Branden A. Bell, of Sandage Bell, LLC, of Kansas City, Missouri, for appellant. Thomas R. Stanton, deputy district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Reno District Court; Joseph L. McCarville III, Judge.
Branden A. Bell, of Sandage Bell, LLC, of Kansas City, Missouri, for appellant. Thomas R. Stanton, deputy district attorney, and Derek Schmidt, attorney general, for appellee.
Before HILL, P.J., POWELL, J., and HEBERT, S.J.
MEMORANDUM OPINION
PER CURIAM.
Brady Sult was convicted of criminal threat, four counts of endangering a child, domestic violence battery, and numerous drug felonies. The district court sentenced Sult to an underlying prison term of 148 months but granted his dispositional departure and placed him on community corrections for 36 months with a 60–day jail sanction. Sult's probation was subsequently revoked, and the court imposed the underlying prison term. Sult timely filed a notice of appeal of his revocation of probation.
Thereafter, the State filed a motion to settle the journal entry from the probation revocation—whether Sult was entitled to jail time credit for the time he spent at Larned State Hospital. After a hearing, the district court denied Sult's request for jail time credit; Sult did not appeal this ruling. However, on appeal, Sult now contends that (1) because the district court initially sentenced him to court services probation, his 60–day jail sanction as a condition of his probation and revoking his probation and imposing the underlying sentence without first sending him to community corrections were illegal sentences, and (2) the district court improperly denied him jail time credit.
We hold that the district court's imposition of a 60–day jail sanction was lawful. We also hold that because Sult was already on community corrections probation, and because he was granted a dispositional departure at his sentencing, he was not entitled to another opportunity at probation. Finally, we hold that because Sult was ordered to Larned State Hospital, he was entitled to jail credit for the time he spent there.
Factual and Procedural History
On April 22, 2011, Sult pled guilty to one count of conspiracy to manufacture methamphetamine, possession of ephedrine or pseudoephedrine with intent to manufacture a controlled substance, possession of drug paraphernalia with the intent to manufacture a controlled substance, possession of methamphetamine, criminal threat, four counts of endangering a child, possession of drug paraphernalia, and domestic violence battery. The State joined Sult's request for a downward dispositional departure sentence to community corrections, and the district court agreed, sentencing Sult to a controlling prison term of 148 months but with probation under the supervision of Reno County Community Corrections for 36 months plus a 60–day jail sanction as a condition of his probation.
On November 17, 2011, the State moved to revoke Sult's assignment to community corrections. The State alleged Sult violated the conditions of community corrections by failing to report as directed on numerous occasions, failing to enter mental health counseling as directed, violating curfew, testing positive for methamphetamine, failing to obtain an alcohol/drug assessment as directed, failing to report once per week as directed, leaving the probation office without permission, and leaving crisis management intervention at Horizon without permission. A bench warrant for Sult's arrest was issued the next day. Sult was subsequently arrested and posted a $50,000 surety bond.
A month later, the district court ordered a competency evaluation. On January 12, 2012, after reviewing a mental health evaluation, the district court found Sult not competent to proceed with his probation revocation. The court directed Sult be admitted to Larned State Hospital for treatment to restore his competency. The record is not entirely clear, but it appears a bed was not available until March 30, 2012, so Sult was not admitted until then. Then, surprisingly, on May 22, 2012, the district court ordered Larned State Hospital to release Sult from its facility. However, the 90–day limitation on his commitment had not run, so we presume that Larned State Hospital found Sult competent. Again, the record is not clear on this point. At a status conference on May 30, 2012, the district court found Sult competent.
On June 22, 2012, the district court revoked Sult's probation based on stipulated violations, denied Sult's request for a modification of his sentence, and ordered him to serve his underlying prison sentence. At the conclusion of the hearing, Sult attempted to flee from the courtroom but was apprehended.
On June 25, 2012, Sult filed a notice of appeal of “all adverse ruling in this case.”
On July 17, 2012, Sult filed a pro se motion asking the court to reconsider his probation revocation. The district court denied Sult's motion on the merits the same day but also noted that it did not have jurisdiction because Sult's motion was untimely.
On July 25, 2012, the State filed a motion to settle the journal entry to determine whether Sult should receive credit for the time he spent in Lamed State Hospital. At the August 3, 2012, hearing on the State's motion, Sult's attorney argued that he should receive credit for the time he spent at Lamed State Hospital because he was ordered to go, it was a locked facility, he was not free to do what he wished, and the court issued an order for Lamed State Hospital to release Sult when he was deemed competent. The State argued that Sult was not in custody when he was at Lamed State Hospital. The district court concluded that Sult went to Lamed State Hospital voluntarily while he was on bond and denied Sult's request for jail time credit for the time spent at Lamed State Hospital. After the court's pronouncement, the following exchange took place:
“THE COURT: So Mr. Sult, I know you filed a notice of appeal so this is reviewable, also.
“MS. DRISCOLL: Just for the record so it is clear so that State's aware of it, a notice of appeal has already been filed. The docketing statement has not been completed. I've been waiting until the issue of jail credit was decided so in the docketing statement I will be addressing, obviously, the original PV, the order denying the request for change of judge which for the record was filed August 1 by Judge Macke–Dick, as well as you Your Honor's denial of the jail credit, just so the record is clear.
“THE COURT: All right. It's not for me to determine whether the Court of Appeals has jurisdiction. They'll discern that.”
Sult did not file a second notice of appeal.
On August 15, 2012, Sult filed a motion to docket his appeal out of time. His motion was granted by this court on August 29, 2012, and Sult's notice of appeal of June 25, 2012, was docketed the same day.
Did the District Court Impose an Illegal Sentence by Revoking Sult's Probation and Ordering Him to Serve the Underlying Sentence Without First Sending Him to Community Corrections?
On appeal, Sult argues that the district court imposed an illegal sentence by imposing a 60–day jail sanction and by sending him to prison for his first probation violation. Sult contends that a district court cannot impose the underlying prison sentence without first assigning a court services probationer to community corrections. In response, the State alleges the district court originally sent Sult to community corrections.
Standard of review
Interpretation of a sentencing statute is a question of law, and the standard of review is unlimited. State v. Mason, 294 Kan. 675, 676, 279 P.3d 707 (2012). Analysis Illegal sentence can be raised for the first time on appeal.
The State argues that Sult did not appeal his sentence at the time it was imposed, nor did he file a motion to correct illegal sentence; therefore, the issue cannot be raised on appeal because it was not raised in the lower court. While it is generally true that if a party does not raise an issue before the district court it cannot be raised on appeal, an exception to the general rule is found in K.S.A. 22–3504(1), which allows this court to correct an illegal sentence at any time, including for the first time on appeal. State v. Petz, 27 Kan.App.2d 805, 809, 7 P,3d 1277 (2000). Therefore, this court has jurisdiction to consider Sult's allegation that the district court imposed an illegal sentence.
Sixty-day jail sanction was permissible.
Sult initially argues that because the sentencing court imposed court services probation and not community corrections probation, the district court cannot impose a jail sanction as a condition of such probation. In support, Sult argues K.S.A.2009 Supp. 21–4603d (a)(3) and (4) control the court's sentencing options. Sult is incorrect.
First, even if it were true—and it is not—that Sult was initially sentenced to court services probation, as the statutory language quoted below indicates, a 60–day sanction is specifically allowed as a condition of court services probation under K.S.A.2009 Supp. 21–4603d(a)(3).
Second, the record is clear that the district court placed Sult on community corrections probation—not court services probation—when it granted Sult a dispositional departure. Specifically, the court entered an order of intensive supervision probation, which stated: “[T]he defendant ... is hereby granted probation under the supervision of Reno County Community Corrections for a period of 36 months....” This order included a 60–day jail sanction as a condition of that probation.
Third, the statutory scheme governing this question supports the State's contention that the imposition of the 60–day sanction was lawful. The State argues that K.S.A.2009 Supp. 21–4603d and K.S.A. 21–4610(c) should be read together to determine what conditions the court can impose. K.S.A.2009 Supp. 21–4603d(a)(3) and (4) state:
“(3) release the defendant on probation if the current crime of conviction and criminal history fall within a presumptive nonprison category or through a departure for substantial and compelling reasons subject to such conditions as the court may deem appropriate. In felony cases except for violations of K.S.A. 8–1567, and amendments thereto, the court may include confinement in a county jail not to exceed 60 days, which need not be served consecutively, as a condition of an original probation sentence and up to 60 days in a county jail upon each revocation of the probation sentence, or community corrections placement;
“(4) assign the defendant to a community correctional services program as provided in K.S.A. 75–5291, and amendments thereto, or through a departure for substantial and compelling reasons subject to such conditions as the court may deem appropriate, including orders requiring full or partial restitution.” (Emphasis added.)
K.S.A. 21–4610(c) states:
“The court may impose any conditions of probation, ... or assignment to a community correctional services program that the court deems proper, including, but not limited to, requiring that the defendant:
....
(14) in felony cases ... be confined in a county jail not to exceed 60 days....”
When “ ‘construing statutes and determining legislative intent, several provisions of an act or acts, in pari materia, must be construed together with a view of reconciling and bringing them into workable harmony if possible.’ [Citations omitted.] ‘Effect must be given, if possible, to the entire act and every part thereof. To this end, it is the duty of the court, as far as practicable, to reconcile the different provisions so as to make them consistent, harmonious, and sensible.’ [Citations omitted.]” State ex rel Morrison v. Oshman Sporting Goods Co. Kansas, 275 Kan. 763, 768, 69 P.3d 1087 (2003).
K.S.A.2009 Supp. 21–4603d and K.S.A. 21–4610 must be read together to give effect to the legislation's intent. The sentencing court may impose probation with court services or through community corrections. When the court imposes probation through community corrections, the court may impose “such conditions as the court may deem appropriate.” K.S.A.2009 Supp. 21–4603d(a)(4). One of the conditions the court can impose is confinement to jail not exceeding 60 days. K.S.A. 21–4610(c). Here, the sentencing court imposed a 60–day jail sanction, which is authorized by K.S.A. 21–4610(c). The district court did not impose an illegal sentence by sentencing Sult to community corrections and ordering him to serve a 60–day jail sanction as a condition of probation.
The district court did not impose an illegal sentence.
Next, Sult argues that the district court erred by imposing the underlying prison sentence without first assigning him to community corrections. K.S.A.2009 Supp. 22–3716(b) provides that the district court must first assign a probation violator to community corrections before the court can order him to serve his underlying sentence.
As discussed above, Sult was on community corrections probation prior to his probation revocation and imposition of sentence. Sult's argument that he was on court services probation has no merit. The journal entry clearly shows that Sult was placed on community corrections probation, as does the order of intensive supervision probation previously noted. Additionally, the journal entry revoking Sult's probation states: “The court revokes the assignment to community corrections, and remands the defendant to serve his original sentence.” Even Sult's own pro se motion for reconsideration states: “I ask the court again for a motion to reconsider the revocation of my community corrections....” The record unmistakably establishes that Sult was on community corrections probation.
In State v. Grossman, 45 Kan.App.2d 420, 248 P.3d 776 (2011), the district court imposed an underlying prison term of 53 months but granted the defendant a downward dispositional departure and placed the defendant on community corrections probation for 36 months. Thereafter, the defendant violated his probation. The court revoked his probation and imposed the underlying prison sentence. On appeal, the defendant argued that the district court abused its discretion by failing to assign him to community corrections before revoking his probation. A panel of this court held that the defendant's argument failed based on the plain language of the statute: “[T]he district court is only required to assign a probation violator to community corrections before being ordered to serve his or her underlying sentence when the defendant has not already had a ‘prior assignment to a community correctional services program.’ “ Grossman, 45 Kan.App.2d at 428.
Grossman is analogous to this case. The district court originally placed Sult on community corrections probation, and Sult admitted to violating the terms of his probation. The court revoked Sult's probation and ordered him to serve the underlying prison term. The district court was not required to send Sult to community corrections again before ordering him to serve the underlying prison sentence because Sult was already on community corrections.
We affirm the district court on this point as it did not impose an illegal sentence by ordering Sult to serve the underlying prison sentence.
Did the District Court Err in Not Applying Time Spent in Larned State Hospital as Jail Time Credit?
The remaining issue on appeal is whether the district court erred in denying Sult's request for jail time credit. Before addressing this issue, we must determine whether this court has jurisdiction over Sult's claim.
Standard of review
Whether jurisdiction exists is a question of law over which this court exercises unlimited review. State v. Ellmaker, 289 Kan. 1132, 1147, 221 P.3d 1105 (2009).
Analysis
Under the general rule, this court normally would not have jurisdiction to address the district court's denial of Sult's request for jail time credit. The right to appeal is entirely statutory, and appellate jurisdiction is invoked only if the appeal is taken in the manner prescribed by the statutes. State v. Legero, 278 Kan. 109, 111, 91 P.3d 1216 (2004). In a criminal case, appellate jurisdiction may generally be invoked after a final judgment and, to be final, the defendant must be convicted and sentenced or have his or her sentence suspended. See K.S.A. 22–3602(a); State v. Rios, 19 Kan.App.2d 350, 352, 869 P.2d 755 (1994). “[A] criminal sentence is effective when pronounced from the bench.” Abasolo v. State, 284 Kan. 299, 304, 160 P.3d 471 (2007). “Awarding or calculating jail credit is part of imposing the sentence and is used to compute the sentence start date .” State v. Muldrow, No. 107,291, 2013 WL 1149704, at *2 (Kan.App.2013) (unpublished opinion). A defendant has 14 days from judgment to file a notice of appeal. K.S.A.2012 Supp. 22–3608(c). The filing of a timely notice of appeal is jurisdictional. State v. Hemphill, 286 Kan. 583, 588, 186 P.3d 777 (2008).
In State v. Shipley, No. 107,293, 2013 WL 1010337 (Kan.App.2013) (unpublished opinion), at the probation revocation hearing, the defendant alleged he was entitled to jail time credit for the time he spent on house arrest. The district court disagreed and denied the defendant's request for jail time credit. The defendant filed a notice of appeal of “all adverse rulings.” A few days after filing his notice of appeal, Shipley filed an addendum to his jail time credit claim seeking credit for time he spent at the Mirror, Inc., program. The district court never considered this new claim. On appeal, the defendant argued the district court erred in not awarding jail time credit for the time he spent at Mirror, Inc. A panel of this court dismissed that portion of the defendant's appeal, concluding that it had no jurisdiction to consider the issue because the defendant filed his notice of appeal before he raised the issue about credit for time spent at Mirror, Inc. The panel further noted that the district court never made an adverse ruling. Shipley, 2013 WL 1010337, at *1–2; see State v. Shields, No. 90,506, 2004 WL 1176627, at *2 (Kan.App.2004) (unpublished opinion) (appellate court does not have jurisdiction to hear an appeal where the defendant filed notice of appeal 1 week before he filed his motion to correct an illegal sentence and more than 1 month before the district court ruled on that motion).
In the present case, Sult never requested jail time credit prior to or during the probation revocation hearing. On June 22, 2012, the district court revoked Sult's probation and imposed the underlying prison term. The district court's sentence was effective when it was pronounced from the bench. See Abasolo, 284 Kan. at 304. While Sult timely appealed the June 22, 2012, probation revocation and the imposition of the underlying prison sentence, the issue of jail time credit was not before the district court when the notice of appeal was filed. The issue of jail time credit apparently arose when the parties were preparing the journal entry for the revocation, but Sult's sentence was already effective. If Sult wished to appeal the postsentencing denial of jail time credit, the better practice would have been for him to have filed another notice of appeal after the district court denied his jail time credit, but Sult failed to do so.
In State v. Ortiz, 230 Kan. 733, 640 P.2d 1255 (1982), our Supreme Court recognized three exceptions to the dismissal requirement for filing a late notice of appeal. “[F]undamental fairness would allow a late appeal if a defendant (1) had not been informed of his or her right to appeal, (2) had not been furnished an attorney to perfect an appeal, or (3) had been furnished an attorney who failed to perfect an appeal.” State v. Patton, 287 Kan. 200, 206, 195 P.3d 753 (2008) (quoting Ortiz, 230 Kan. at 735–36). Sult was represented by counsel who failed to properly raise the issue of jail time credit at the probation revocation hearing and who failed to perfect the appeal of the subsequent denial of jail time credit. Although the State has argued this court has no jurisdiction to hear the issue of jail time credit, the State has not alleged prejudice in granting Sult jail time credit. In the interest of fundamental fairness, this court will address the district court's denial of Sult's request for jail time credit under the Ortiz exception.
District court erred in not granting jail time credit for time spent in Larned State Hospital.
Sult contends that the district court erred in denying his request for jail time credit for the time he spent at Larned State Hospital. Sult argues that a defendant should receive credit for any time spent at a residential facility while on probation. The State contends that Sult is not entitled to jail credit because he was not in the custody of law enforcement.
Standard of review
Resolving Sult's claim involves interpretation of K.S.A. 21–4614a, which governs jail time credit. Interpretation and application of a statute is a question of law over which this court exercises unlimited review. State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010).
Analysis
K.S.A. 21–4614a provides:
“In any criminal action in which ... assignment to community corrections is revoked and the defendant is sentenced to confinement, for the purpose of computing the defendant's sentence ..., the defendant's sentence is to be computed from a date ... to be specifically designated.... Such date shall be established to reflect and shall be computed as an allowance for the time which the defendant has spent in a residential facility while on probation, assignment to a conservation camp or assignment to community correctional residential services program.”
The State filed a motion to revoke Sult's community corrections probation, and the court issued a warrant for his arrest. Officers arrested Sult, and he posted a surety bond. Thereafter, the district court held a competency hearing where the court found Sult incompetent to proceed with his probation violation. The February 7, 2012, journal entry reflects the court's order, stating: “Sult be admitted to Larned State Hospital State Hospital and that Larned State Hospital personnel continue to evaluate Mr. Sult and/or complete further testing and/or treatment to restore Mr. Sult's competency.” The court further ordered that “Sult shall be allowed to remain out of custody pending bed availability at Larned State Hospital State Hospital....” Sult was ultimately admitted to Larned State Hospital on March 30, 2012, when bed space became available.
However, on April 4, 2012, the district court filed an amended order regarding Sult's incompetency to proceed with his probation violation, which stated:
“[T]his Court hereby finds that Mr. Sult is not competent to proceed with his probation revocation violation and further orders Mr. Sult to be admitted to Larned State Hospital and that Larned personnel continue to evaluate Mr. Sult and/or complete further testing and/or treatment to restore Mr. Sult's competency, pursuant to K.S.A. 22–3203 [ sic ].
“This Court further orders that said commitment shall not exceed 90 days, pursuant to said statute. Within 90 days after the defendant's commitment to such institution, the chief medical officer of such institution shall certify to the court whether the defendant has a substantial probability of attaining competency to stand trial in the foreseeable future.”
K.S.A. 22–3203, cited by the district court in its amended order, governs the consolidation of separate indictments or complaints for trial. Since there were not multiple indictments or complaints pending before the district court in this case, it appears as though the district court cited the wrong statute. Given the nature of the amended order—finding Sult incompetent to proceed and admitting him to Larned State Hospital for not more than 90 days—it is likely that the district court meant to cite K.S.A. 22–3303, which governs commitment to state hospitals after being found incompetent. That statute states in relevant part:
“(1) A defendant who is charged with a felony and is found to be incompetent to stand trial shall be committed for evaluation and treatment to the state security hospital or any appropriate county or private institution.... Any such commitment shall be for a period of not to exceed 90 days....
....
“(4) A defendant committed to a public institution under the provisions of this section who is thereafter sentenced for the crime charged at the time of commitment may be credited with all or any part of the time during which the defendant was committed and confined in such public institution.”
According to defense counsel, Sult resided at Larned State Hospital beginning March 30, 2012, and ending May 22, 2012, or 53 days. Larned State Hospital released Sult only after the district court entered an order directing Larned State Hospital “to physically release Mr. Sult from its facility....”
Whether Sult is entitled to postsentence jail time credit for time spent in a state hospital is a case of first impression. Prior decisions focus on whether a defendant is entitled to jail time credit for time spent at a residential facility before or during trial.
The State cites State v. Kramer, No. 104,744, 2011 WL 4031555 (Kan.App.2011) (unpublished opinion), as dealing with a substantially similar issue. After police arrested Kramer, they took him to Horizon's Mental Health Center and then to Larned State Hospital for a mental health evaluation. The court granted Kramer probation, which was later revoked after he was arrested for new charges. Kramer requested jail credit for the time he spent at Larned State Hospital. The district court denied Kramer's request, and he appealed. A panel of this court could not determine whether the district court properly denied Kramer's request because it was unclear whether he was civilly committed to Larned State Hospital or whether he was released from State custody before he was committed. As the State points out, this court remanded the case because the record was not clear. The panel stated if Kramer never posted bond and was taken directly to Larned State Hospital, then State v. Mackley, 220 Kan. 518, 552 P.2d 628 (1976) would apply and Kramer would be entitled to jail credit for the time spent at Larned State Hospital. “However, if Kramer was released or posted bond and then went to Larned State Hospital voluntarily, his freedom was not restricted, and he does not deserve jail time credit for that period of time. Also, the record is silent as to whether Kramer was free to leave Larned State Hospital during his stay or was actually ‘in custody.’ “ Kramer, 2011 WL 4031555, at *3.
Kramer reiterates the holding of Mackley, 220 Kan. at 519 .While Mackley was in custody, law enforcement transferred and committed him to a state hospital to determine his competency to stand trial. Mackley was later held at another state hospital for further mental evaluations. The district court denied Mackley's request for jail time credit for the days he spent at both state hospitals undergoing mental evaluations. Our Supreme Court reversed the trial court and held:
“The physical place of confinement is not important as the appellant technically continued to be in jail while held in custody at the hospitals. He was not free on bail, had no control over his place of custody and was never free to leave the hospitals. For all practical intents and purposes, he was still in jail. The court takes judicial notice that the state mental hospitals have the facilities to enforce confinement of their patients, which brings them within the dictionary definition of a ‘jail.’ “ 220 Kan. at 519.
In State v. Palmer, 262 Kan. 745, 753, 942 P.2d 19 (1997), our Supreme Court held the critical inquiry is whether a defendant is under the actual or constructive control of jail or prison officials and the circumstances surrounding placement of the defendant in the facility. Further, this court has denied jail time credit for the time a defendant spent in a community residential facility as a condition of his bond. See State v. Parks, 27 Kan.App.2d 544, Syl. ¶ 2, 6 P.3d 444 (2000) (defendant is not entitled to jail time credit for time spent under house arrest with electronic monitoring which was a condition of his appeal bond); State v. Srader, No. 96,397, 2007 WL 2580500, at *2–4 (Kan.App.2007) (unpublished opinion) (defendant was not entitled to jail time credit for time spent in treatment which was a condition of his bond).
Although the district court released Sult on bond, unlike Palmer, Parks, and Srader, admission to Larned State Hospital was not a condition of Sult's bond. After the district court found Sult incompetent to proceed with his probation revocation hearing, it ordered him to be admitted to Larned State Hospital for competency evaluation and treatment. Sult did not voluntarily commit himself. Moreover, the district court entered an amended order regarding Sult's competency, which ordered Sult to be admitted to Larned State Hospital for no more than 90 days. As Sult's attorney alleged at the jail time credit hearing, Sult was not free to leave Larned State Hospital; he was released only after the district court entered an order directing Larned State Hospital to release him. Sult's freedom was restricted and he did not voluntarily commit himself to Larned State Hospital as the State and district court allege.
We therefore must reverse the district court's denial of credit for the days Sult spent at Larned State Hospital. Sult is entitled to 53 days jail time credit. The case is remanded to the district court with directions to modify the journal entry to reflect credit for the days spent at Larned State Hospital.
Affirmed in part, reversed in part, and remanded with directions.