Opinion
112,026.
04-03-2015
Jeff D. MARSHALL, Appellant, v. KANSAS DEPARTMENT OF CORRECTIONS, Appellee.
Michael G. Highland, of Bonner Springs, for appellant. Sherri Price, special assistant attorney general, for appellee.
Michael G. Highland, of Bonner Springs, for appellant.
Sherri Price, special assistant attorney general, for appellee.
Before LEBEN, P.J., ARNOLD–BURGER, J., and BUKATY, S.J.
MEMORANDUM OPINION
PER CURIAM.
Following his conviction for indecent liberties with a child, Jeff D. Marshall was sentenced to a term of incarceration and placed on probation with one condition being that he complete a Sex Offender Treatment Program (SOTP). He apparently complied with this requirement. A couple of years later, the district court revoked his probation for his commission of a new offense and remanded him to the custody of the Secretary of Corrections. The Kansas Department of Corrections (KDOC) required that he complete another SOTP with which he again complied. Nevertheless, Marshall challenged the second requirement. KDOC staff denied the challenge, and the Secretary of KDOC affirmed that denial.
Marshall filed a petition for habeas corpus under K.S.A. 60–1501 alleging an on going injury because of the requirement he complete the second SOTP. However, he did not file the petition until several months after the Secretary had affirmed the requirement. The district court dismissed the petition as untimely following a hearing. Marshall brings this appeal arguing that the injury he suffered resulting from the second required SOTP is continuing and, consequently, the 30–day statute of limitations for filing his petition did not expire. We find there is no continuing injury and the action by the Secretary that Marshall complains of was a one-time occurrence. Accordingly, the district court properly found that the 30–day time period within which Marshall had to file his petition had passed several months prior to the date he filed it. We affirm.
Facts
In October 2008, Marshall entered into a plea agreement with the State that resulted in him being found guilty of indecent liberties with a child. As we stated, the district court placed Marshall on probation and required him to complete a SOTP. He finished in it June 2011. At some point during 2011, Marshall was arrested for driving under the influence. The district court revoked his probation and placed him in the custody of the KDOC. In May 2012, KDOC informed Marshall that he was required to complete another SOTP. An inmate program plan dated April 27, 2012, indicates that an evaluation of Marshall had been completed and that “Sex Abuser's Treatment” was recommended.
In the latter part of 2012, Marshall submitted a sex offender override request with KDOC which challenged the necessity for a second SOTP. The request was denied on February 14, 2013. Marshall appealed the denial to the Secretary who upheld that denial on October 7, 2013. Meanwhile, in May 2013, while he was in the process of challenging the second SOTP, he began attending SOTP classes in prison until he completed the program on October 3, 2013.
On January 29, 2014—3 months after the Secretary had denied his administrative appeal and he had actually completed the second SOTP—Marshall filed a petition in the Leavenworth County District Court pursuant to K.S.A. 60–1501, challenging the constitutionality of the second SOTP. On February 27, 2014, the district court issued a writ of habeas corpus, and the KDOC filed a motion to dismiss shortly thereafter. KDOC's motion asserted that the action requiring Marshall to attend a second SOTP became a final order on February 14, 2013, so his petition was beyond the 30 days required by K.S.A. 60–1501(b). It also argued that because he had completed his second SOTP before he filed his petition, his claim was moot. The district court held a hearing on the motion on May 20, 2014, at which Marshall testified. Ultimately, the court found it did not have jurisdiction over the matter because Marshall had filed his petition beyond the 30–day deadline. The court entered a journal entry containing that order on May 27, 2014. Marshall timely appeals. He has since been released from prison and placed on postrelease supervision.
Analysis
We first note that we review a district court's decision on a K.S .A. 60–1501 petition to determine whether the district court's factual findings are supported by substantial competent evidence and are sufficient to support the court's conclusions of law. We review the district court's conclusions of law de novo. Rice v. State, 278 Kan. 309, 320, 95 P.3d 994 (2004).
K.S.A. 60–1501(b) states that an inmate must file a petition for a writ within 30 days of the date that the action became final and that “such time is extended during the pendency of the inmate's timely attempts to exhaust such inmate's administrative remedies.” Without a timely filing, courts lack jurisdiction to consider the merits of a prisoner's constitutional claims. Corter v. Cline, 42 Kan.App.2d 721, 724, 217 P.3d 991 (2009). Marshall acknowledges that his filing was beyond the 30–day time limit. His sole argument, however, is that K.S.A. 60–1501(b) is inapplicable because the SOTP is a “continual unlawful prison condition.” Even though he has been released from incarceration and is on postrelease supervision, he claims his SOTP is ongoing during this time. He fails to cite to the record, however, to support his claim. The party claiming an error occurred has the burden of designating a record that affirmatively shows prejudicial error. Without such a record, an appellate court presumes that the action of the district court was proper. State v. Bridges, 297 Kan. 989, 1001, 306 P.3d 244 (2013).
We might add that the record actually shows the KDOC certified that Marshall had completed his second SOTP on October 3, 2013, and that second requirement was not an on-going condition after that date. Also, the hearing transcript reveals that Marshall was merely seeking an assurance from the KDOC that he would never be required to complete another SOTP in the future:
“Q. Okay. After—after they denied the override, did you take SOTP at the prison?
“A. It was presented.
“Q. Did you go?
“A. I was forced to take it and coerced to take it, yeah.
“Q. But you went, right?
“A. I had no choice to take it.
....
“Q. And when did you start taking the program at the prison?
“A. Approximately May, 2014.
“Q. And when did you complete it?
“A. Sorry, 2013.
“Q. And when did you complete it?
“A. I have not completed it yet.
“Q. Okay. Can you explain to the Court what you mean by that? The department of corrections is verifying that you did complete it?
“A. Well, ... the department of corrections verify that I have completed it? I guess that would be a relevant question.
“Q. The question is, ... what do you mean by that you didn't complete it?
“A. Can they
“Q. Did they kick you out of the program?
“A. Well, ... I guess what I'm asking, is ... does ... the department of corrections say that I completed it and then I will further endure no more SOTP punishment?
“Q. Do you have any reason to believe that you will?
“A. I have a question—yes, I do.
“Q. And why is that?
“A. Well, it's a question for the KDOC to answer, I believe, because they have said that I have completed it. Can they prove that I have completed it and that I will bear ... no more further punishment of SOTP?
“Q. All right. So
“[Counsel for Plaintiff]: ... I have no further questions, Judge.”
Marshall cites Tonge v. Simmons, 27 Kan.App.2d 1048, 11 P.3d 77, rev. denied 270 Kan. 904 (2000), for the proposition that the 30–day time limit is inapplicable when an unlawful prison condition is continual. In Tonge, inmates challenged the reoccurring garnishment of their prison accounts. The Tonge court found that even if the petitions were untimely, the prisoners could bring their claims to the extent that it prevented them from obtaining products necessary to maintain personal hygiene and health. 27 Kan.App.2d at 1050. Tonge, however, is distinguishable from the present case because Marshall's claim arises from a distinct and single act—the requirement to complete a subsequent SOTP—rather than a reoccurring action like regular garnishments. When an alleged legal injury is the result of a distinct act, courts do not usually find a continuing violation. See Knittel v. Kansas Prisoner Review Board, No. 111,552, 2014 WL 6777450, at *5 (Kan.App.2014) (unpublished opinion) (citing Delaware State College v. Ricks, 449 U.S. 250, 258–59, 101 S.Ct. 498, 66 L.Ed.2d 431 [1980] ). We conclude the district court properly found that it lacked jurisdiction to consider Marshall's petition because it was untimely filed.
Based upon the above ruling, we need not address the issue raised by KDOC that Marshall's appeal is moot.
Affirmed.