Opinion
No. 108,698.
2013-06-14
Tommy KINGYON, Appellant, v. Ray ROBERTS, Secretary of Corrections, Appellee.
Appeal from Leavenworth District Court; Dan K. Wiley, Judge. Charles J. Cavenee, of Legal Services for Prisoners, Inc., of Lansing, for appellant. Matthew J. Donnelly, legal counsel, of Lansing Correctional Facility, of Lansing, for appellee.
Appeal from Leavenworth District Court; Dan K. Wiley, Judge.
Charles J. Cavenee, of Legal Services for Prisoners, Inc., of Lansing, for appellant. Matthew J. Donnelly, legal counsel, of Lansing Correctional Facility, of Lansing, for appellee.
Before ATCHESON, P.J., GREEN and McANANY, JJ.
MEMORANDUM OPINION
PER CURIAM.
Tommy Kingyon appeals the decision of the Leavenworth County District Court rejecting his argument that the way the Kansas Department of Corrections treats his life sentence in determining his parole eligibility date also governs the amount of time he must actually serve on that sentence. In denying Kingyon's petition for habeas corpus filed under K.S.A. 60–1501, the district court correctly found that the statute and regulation related to calculating a parole eligibility date serve that purpose alone and have no effect on the length of a determinate life sentence. Kingyon's position simply dispenses with that distinction and is meritless. We affirm the district court.
In 1984, the Wyandotte County District Court imposed a life sentence on Kingyon for first-degree murder and consecutive sentences of 30 years to life for aggravated robbery and 10 to 40 years for aggravated battery. In 2012, Kingyon filed his 60–1501 petition that essentially contends he had served the determinate life sentence once he became parole eligible under the department of corrections regulations. To make that argument, Kingyon advanced two premises: (1) The version of the administrative regulation governing parole eligibility dates in effect in 1984 applies to him; and (2) under that regulation, his life sentence terminated when he reached his parole eligibility date.
We assume without deciding that Kingyon's first premise is correct. So we turn to the second premise.
In addressing the argument, we must construe K.A.R. 44–6–114, the regulation then applicable to parole eligibility dates, as it appeared in 1984. And we must consider how the regulation affected an inmate receiving a life sentence to be served consecutive to another sentence for a term of years. Because no disputed facts are involved, the issue is purely one of law over which an appellate court exercises unlimited review. See Village Villa v. Kansas Health Policy Authority, 296 Kan. 315, Syl. ¶ 2, 291 P.3d 1056 (2013) (construction of administrative regulation presents question of law affording unlimited review on appeal); Deeds v. Waddell & Reed Invst. Mgmt. Co., 47 Kan.App.2d 499, 502, 280 P.3d 786 (2012) (questions of law subject to unlimited review on appeal).
The version of K.A.R. 44–6–114 in effect in 1984 provided standards for determining parole eligibility on offenses under the criminal code in effect until July 1, 1994. The regulation refers to Class A felonies that carried life sentences under the old criminal code.
Basically, K.A.R. 44–6–114 (1984 Supp.) stated that an inmate serving a life sentence on a Class A felony became eligible for parole after 15 years. That plainly conforms to the sentencing statutes. See K.S.A. 22–3717(b)(2), (3). If the inmate were also serving a consecutive sentence for a term of years, he or she would first be credited with the 15 years on the life sentence for parole eligibility purposes and then would be credited with time on the other sentence. The parole eligibility periods for sentences other than life were based on the minimum length of incarceration imposed. So for Kingyon's aggravated robbery conviction, the period would be computed using the 30–year minimum sentence on that offense. After serving that combined time, the inmate would become eligible for parole. That is, the inmate could ask the parole board to consider his or her conditional release. The inmate might well be denied parole and would have to remain in prison awaiting another parole hearing.
With a life sentence, an inmate never really begins serving a consecutive sentence for a term of years. The term of a life sentence really is the remainder of the inmate's life, however long that might be. But the consecutive sentence does affect when the inmate becomes eligible for parole or some other form of conditional release. Likewise, were the life sentence reversed, vacated, or commuted, the inmate would still serve the term of years on the other conviction.
Kingyon seems to take no issue with the computation of parole eligibility under K.A.R. 44–6–114 (1984 Supp.). But he says the regulation means that he has served the full term of his life sentence once he reaches the 15–year threshold for parole eligibility. In effect, the regulation converts a life sentence to one for 15 years, according to Kingyon. The argument simply misconstrues K.A.R. 44–6–114 (1984 Supp.). The regulation governed only parole eligibility—the right to appear at a parole hearing—not the duration or termination of a sentence. Kingyon offers no cogent legal argument for his skewed reading of the regulation, a reading that is both divorced from the purpose of K.A.R. 44–6–114 (1984 Supp.) and its language.
There isn't much point in gilding the lily. Kingyon has advanced a position that is without legal or logical support. He cites neither a statute nor a case that backs his premise. And this court has twice rejected the same argument in the last year. See Butler v. Roberts, No. 108,370, 2013 WL 646509 (Kan.App.2013); Ash–Shahid v. Roberts, No. 108,143, 2012 WL 5869667 (Kan.App.2012), rev. denied 296 Kan. –––– (March 26, 2013). The district court correctly denied Kingyon's petition.
Affirmed.