Opinion
No. 109,281.
2013-08-6
Randy J. COULTER, Jr., Appellant, v. Ray ROBERTS, Secretary of Corrections, Appellee.
Appeal from the Leavenworth District Court; Dan K. Wiley, Judge. Michael G. Highland, of Bonner Springs, for appellant. Fred W. Phelps, Jr., legal counsel, of Kansas Department of Corrections, for appellee.
Appeal from the Leavenworth District Court; Dan K. Wiley, Judge.
Michael G. Highland, of Bonner Springs, for appellant. Fred W. Phelps, Jr., legal counsel, of Kansas Department of Corrections, for appellee.
Before BRUNS, P.J., HILL, J., and ERNEST L. JOHNSON, District Judge Retired, assigned.
MEMORANDUM OPINION
PER CURIAM.
Randy Coulter appeals the denial of his petition for writ of habeas corpus filed pursuant to K.S.A. 60–1501. Coulter argues that the sentencing journal entry committing him to prison is ambiguous as to whether his multiple sentences were imposed to run concurrently or consecutively and, therefore, they must be deemed to have been imposed to run concurrently. Further, Coulter points out that the sentencing journal entry did not expressly commit him to the custody of the Secretary of Corrections which, he contends, makes his imprisonment unlawful. Because we find Coulter's arguments to be unpersuasive, we affirm.
Factual and Procedural Background
Coulter is currently incarcerated at the Lansing Correctional Facility in Lansing, Kansas.
On January 7, 2000, Coulter was sentenced in the District Court of Crawford County on four counts as follows: for Count 1, aggravated indecent liberties with a child under K.S.A. 21–3504(a)(3)(A) (Furse 1995), 49 months; for Count 2, aggravated criminal sodomy under K.S.A. 21–3506(A)(1) (Furse 1995), 146 months; for Count 3, criminal sodomy under K.S.A. 21–3506(a)(l) (Furse 1995), 146 months; and for Count 4, aggravated indecent liberties with a child under K.S.A. 21–3504(a)(3)(A) (Furse 1995), 49 months. The district court ordered that the sentences on Counts 1, 2, and 3 were to run concurrently. The district court ordered that the sentence on Count 4 was to run consecutively to Counts 1, 2, and 3. The court sentenced Coulter to a total term of imprisonment of 195 months. On the standard Kansas Sentencing Guidelines journal entry of judgment form the court checked the “Prison—DOC” box for each count.
As Coulter's time in prison approached 146 months he filed a grievance asserting, in essence, that he had completed his sentence. He argued that the respondent Secretary of Corrections could not legally require that he serve additional time under the 49 month consecutive sentence of Count 4. Coulter failed to obtain relief in the institutional grievance process.
On May 14, 2012, Coulter filed a petition for writ of habeas corpus. He first asserted that the journal entry of sentencing did not state when the concurrent sentences would end and the consecutive sentence would begin. Citing Biddle v. Hall, 15 F.2d 840 (8th Cir.1926), he argued that this lack of clarity required that all his sentences must be treated as running concurrently. He also asserted that the journal entry did not commit him to the custody of the Secretary of Corrections, making his incarceration illegal.
On January 9, 2013, the district court entered its order addressing the legal merits of Coulter's arguments but denying Coulter's petition for relief. The court concluded:
“The journal entry of sentencing clearly indicates that Count 4 is to be served consecutive to the sentence for the first three counts and that the total sentence to be served is 195 months which is the time imposed for the first three counts concurrent (146 months) and the fourth count consecutive to those counts (49 months). There is no other way that this journal entry of sentencing can be construed.... [T]he Plaintiff's sentence is certainly definite and ascertainable.”
The district court also rejected Coulter's argument that 1he journal entry did not comply with the statutory requirement that incarceration shall be with the Secretary of Corrections. The sentencing journal entry stated, “Sentence Imposed: Prison—DOC.” The court concluded: “Sentencing [Coulter] to confinement at DOC is a commitment to the custody of the secretary.” The court denied Coulter any relief on his petition. Coulter timely appeals.
Analysis
Coulter does not challenge the terms of the sentences originally pronounced. He acknowledges in the Statement of Facts in his brief the following:
“On January 7, 2000, in case Number 99CR113G, the Crawford County District Court sentenced petitioner to a term of 49 months in count 1, a term of 146 months in count 2, and a term of 146 months in count 3. These counts were ordered to run concurrently. In count 4, petitioner was sentenced to a term of 49 nonths, ordered to run consecutively to counts 1, 2, and 3.”
Rather, Coulter contends that “because the sentencing court failed to delineate when the concurrent sentences would end and when the consecutive sentence [would] begin, all counts must run concurrent.” He argues that persuasive authority from Biddle, 15 F.2d 840, dictates that he be granted relief.
In Biddle, inmate Hall had entered guilty pleas in two separate cases. The Biddle court restated the terms of Hall's sentences as follows:
“In Case No. 2198 the sentence is this: that Robert Weaver [Hall] shall be confined in the United States Penitentiary at Leavenworth, Kansas, ‘for a period of one (1) year and one (1) day from this date, this sentence not to run concurrently with sentence in No. 2199 Criminal’; and in Case No. 2199 it is this: that Robert Weaver Hall be confined in the United States Penitentiary at Leavenworth, Kansas, ‘for a period of one (1) year and one (1) day from this date, this sentence not to run concurrent with sentence in No. 2198 Criminal.’ “ (Emphasis added.) Biddle, 15 F.2d at 840.
Each sentence was imposed on May 16, 1924, and each expressly ran for a year and a day “from this date.” On the other hand the sentence in one was “not to run concurrently” with the other. Since each sentence started on May 16, 1924, but neither sentence was expressly consecutive to the other, yet neither could be concurrent, the Biddle court found that the sentences were ambiguous and irreconcilable. The Biddle court held that the sentences must be construed as imposing concurrent terms.
Interestingly, the Biddle court also referred to this “well-settled principle of criminal law”:
“ ‘Where defendant is found guilty of more than one offense, if the court desires to have imprisonment under one sentence commence at the expiration of another, the sentence must so state, or else the two terms of imprisonment will run concurrently, and defendant will be discharged at the expiration of the longest term.’ 16 C.J. p. 1307; 25 Am. & Eng. Ency. of Law (2d Ed.) pp. 307, and 308, 309; 19 Ency. of [P]l. & Pr. p. 484; Kirkman v. McClaughry (C.C.) 152 F. 255, 258;Id., 160 F. 436, 90 C.C.A. 86.” 15 F.2d at 841.
Here, we do not need to resort to any ambiguity analysis because there is simply no ambiguity in the sentences. Nor do we need to determine if Biddle is of any value in such an analysis. Coulter was found guilty of more than one offense, the sentencing court desired to have imprisonment on Count 4 commence at the expiration of the concurrent sentences in Counts 1, 2, and 3, and the sentencing journal entry so states.
The district court found that “[t]he journal entry of sentencing clearly indicates that Count 4 is to be served consecutive to the sentence for the first three counts.... There is no other way that this journal entry of sentencing can be construed.” We agree with the district court. Coulter must serve his consecutive sentence.
Next, Coulter claims that he is unlawfully imprisoned because his sentencing journal entry remands him to “Prison—DOC” rather than, as provided in the applicable statutes, to the custody of the Secretary of Corrections. Coulter provides no authority to support his contention that the difference makes the sentence illegal. The sentencing court used the journal entry form approved by the Kansas Sentencing Commission pursuant to K.S.A.1998 Supp. 22–3426. The sentencing court marked the appropriate box on the form for a sentence of imprisonment.
The district court denied Coulter habeas corpus relief, finding, in essence, that “DOC” is the Department of Corrections operated by the Secretary of Corrections and, for sentencing purposes, a remand to Prison—DOC is the equivalent of a remand to the Secretary. We again agree with the district court. Coulter is in State custody lawfully.
The district court did not err in denying Coulter's K.S.A 60–1501 petition.
Affirmed.