Opinion
110,298.
10-24-2014
Terry F. WALLING, Appellant, v. James HEIMGARTNER, et al., Appellee.
Mark E. Fern, of Fern & Angermayer, L.L.C., of Pittsburg, for appellant. Whitney L. Casement, assistant attorney general, and Derek Schmidt, attorney general, for appellee.
Mark E. Fern, of Fern & Angermayer, L.L.C., of Pittsburg, for appellant.
Whitney L. Casement, assistant attorney general, and Derek Schmidt, attorney general, for appellee.
Before LEBEN, P.J., PIERRON and STEGALL, JJ.
MEMORANDUM OPINION
PER CURIAM.
Terry Walling was serving a life sentence when he was granted parole in 2004. Between December 2010 and January 2011, Walling was convicted of four misdemeanors in Johnson County. The Prisoner Review Board (Board) revoked his parole in January 2011 but placed him back on parole in September 2011. Over the next 18 months, Walling was convicted of two different felonies and failed a urinalysis. As a result of these parole violations, the Board revoked Walling's parole.
Walling then filed a petition for a writ of habeas corpus pursuant to K.S.A.2012 Supp. 60–1501. Ultimately, the district court dismissed Waiting's petition, finding that the Board had fully complied with the statutory requirements of K.S.A.2013 Supp. 75–5217. Walling appeals.
On appeal, Walling argues the district court erred when it found that K.S.A.2013 Supp. 75–5217 applies to inmates on parole. “While habeas corpus is the appropriate procedure for reviewing decisions of the Kansas Parole Board (Board), appellate review is limited to determining if the Board complied with the applicable statutes and whether its action was arbitrary or capricious.” McComb v. State, 32 Kan.App.2d 1037, Syl. ¶ 2, 94 P.3d 715 (2004), rev. denied 278 Kan. 846 (2004). The only question presented by Walling in this appeal is whether K.S.A.2013 Supp. 75–5217 is the controlling and applicable statute. Because resolution of this question depends on statutory interpretation, we exercise unlimited review. See Jeanes v. Bank of America, 296 Kan. 870, 873, 295 P.3d 1045 (2013).
K.S.A.2013 Supp. 75–5217(a) states: “At any time during release on parole, conditional release or postrelease supervision, the secretary of corrections may issue a warrant for the arrest of a released inmate for violation of any of the conditions of release, or a notice to appear to answer to a charge of violation.” K.S.A.2013 Supp. 75–5217(b) states in relevant part:
“Upon such arrest and detention, the parole officer shall notify the secretary of corrections, or the secretary's designee, within five days and shall submit in writing a report showing in what manner the released inmate had violated the conditions of release. After such notification is given to the secretary of corrections, or upon an arrest by warrant as herein provided, and the finding of probable cause pursuant to procedures established by the secretary of a violation of the released inmate's conditions of release, the secretary or the secretary's designee may cause the released inmate to be brought before the prisoner review board, its designee or designees, for a hearing on the violation charged, under such rules and regulations as the board may adopt, or may dismiss the charges that the released inmate has violated the conditions of release and order the released inmate to remain on parole, conditional release or postrelease supervision.... If the violation is established to the satisfaction of the board, the board may continue or revoke the parole or conditional release, or enter such other order as the board may see fit. The revocation of release of inmates who are on a specified period of postrelease supervision shall be for a six-month period of confinement from the date of the revocation hearing before the board or the effective date of waiver of such hearing by the offender pursuant to rules and regulations promulgated by the board, if the violation does not result from a conviction for a new felony or misdemeanor.”
An “inmate or released inmate” as used in this statute is defined as “an individual under the supervision of the secretary of corrections, including, but not limited to, an individual on parole, conditional release, [or] postrelease supervision....” K.S.A.2013 Supp. 75–5217(h).
When construing a statute we must first
“ ‘attempt to ascertain legislative intent through the statutory language enacted, giving common words their ordinary meanings. [Citation omitted.] When a statute is plain and unambiguous, an appellate court does not speculate as to the legislative intent behind it and will not read into the statute something not readily found in it. Where there is no ambiguity, the court need not resort to statutory construction. Only if the statute's language or text is unclear or ambiguous does the court use canons of construction or legislative history or other background considerations to construe the legislature's intent. [Citation omitted.]’ “ State v. Brooks, 298 Kan. 672, 685, 317 P.3d 54 (2014).
The language of K.S.A.2013 Supp. 75–5217 is plain and unambiguous. It clearly applies to persons such as Walling—parolees who have violated the conditions of their parole and are subject to revocation by the Board. Walling relies on Davis v. Simmons, 31 Kan.App.2d 556, 68 P.3d 160 (2003), rev. denied 276 Kan. 967 (2003), for the proposition that K.S.A.2013 Supp. 75–5217 applies only to individuals on postrelease supervision and not to parolees. The holding of Davis, however, applies only to the 6 month confinement limitation contained in the statute and made applicable to “ ‘inmates who are on a specified period of postrelease supervision.’ “ 31 Kan.App.2d at 562 ; See K.S.A.2013 Supp. 75–5217(b). In other words, parolees such as Walling cannot receive the benefit of the 6–month confinement limitation because that portion of the statute is expressly and exclusively reserved to inmates on a specific period of postrelease supervision. This does not mean, as Walling argues, that the remainder of the statute does not apply to parolees. By the plain language of the statute, it clearly does.
The district court did not err when it concluded that Waiting's revocation proceeding was controlled by K.S.A.2013 Supp. 75–5217. Because this was the only question Walling presented for appellate review, we affirm the district court's order of dismissal.
Affirmed.