Opinion
No. 109,093.
2013-08-9
Anthony HEGWOOD, Appellant, v. Ray ROBERTS, Secretary of Corrections, Appellee.
Appeal from Leavenworth District Court; Dan K. Wiley, Judge. Anthony L. Hegwood, appellant pro se. Fred W. Phelps, Jr., of Kansas Department of Corrections, for appellee.
Appeal from Leavenworth District Court; Dan K. Wiley, Judge.
Anthony L. Hegwood, appellant pro se. Fred W. Phelps, Jr., of Kansas Department of Corrections, for appellee.
Before MALONE, C.J., LEBEN and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Anthony Hegwood appeals the district court's denial of his K.S.A. 60–1501 petition. Specifically, he asserts that the Kansas Department of Corrections (KDOC) misinterpreted and misapplied K.S.A.1992 Supp. 21–4608(1) to his sentences which resulted in an incorrect calculation of the length of time he is to remain in prison. Finding no error, we affirm.
Factual and Procedural History
In 1993, in three separate cases, Hegwood was convicted and sentenced on five counts of aggravated robbery, occurring on three separate dates. In two of the cases the dates overlapped, which seems to have been the source of later confusion regarding the sentences imposed. At sentencing the court clearly ordered all counts occurring on the same date to run concurrent with each other and the counts occurring on separate dates to run consecutive to each other, which resulted in an aggregated controlling sentence of 45 years to life (15–years–to–life sentence times three, representing the three separate dates of his offenses). But when the journal entry was completed, it contained language that resulted in an aggregated sentence of 60 years to life. Hegwood appealed and the Kansas Supreme Court agreed that his controlling sentence, as pronounced from the bench, was 45 years to life, and it remanded the case to correct the journal entry. See State v. Hegwood, 256 Kan. 901, 905–06, 888 P.2d 856 (1995). The journal entry was corrected as ordered. As required by K.S.A. 21–4614 (Ensley 1988), each case had a “sentence begins” date listed in the journal entry. No issues were raised in Hegwood's direct appeal regarding the fact that each case had a different “sentence begins” date. In 92 CR 1872B, the sentencing court determined Hegwood's sentence to have begun on September 27, 1992. In 92 CR 2194A, the sentencing court determined his sentence to have commenced on October 2, 1992. In 92 CR 1910A, the sentencing court determined his sentence to have started on November 13, 1992.
In 2012, Hegwood filed his K.S.A. 60–1501 petition in which he argued that K.S.A.1992 Supp. 21–4608(1) requires that when separate sentences are imposed on the same date, the sentences must run consecutively or concurrently as the court directs. When the record is silent, they must be served concurrently. He asserts that because there are separate “sentence begins” dates for each case, the order that they were consecutive was inconsistent and ambiguous. In other words, the first sentence began on September 27, 1992, and would proceed for 15 years before the next sentence would begin if they were truly consecutive. But the next sentence had a sentence begins date of October 2, 1992, and the third sentence had a sentence begins date of November 13, 1992. To comply with the sentencing journal entry, Hegwood argues that the court has actually directed the sentences to run concurrently beginning on the last sentence begins date of November 13, 1992. Accordingly, he concludes that the KDOC misapplied K.S.A.1992 Supp. 21–4608(1) to his sentences, resulting in Hegwood enduring a longer period of incarceration than intended.
The district court denied Hegwood's petition. Hegwood filed a notice of appeal that was timely per the prison mailbox rule.
Analysis
An appellate court reviews 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. The district court's conclusions of law are subject to de novo review. Rice v. State, 278 Kan. 309,320, 95 P.3d 994 (2004).
K.S.A.1992 Supp. 21–4608(1) states the following:
“When separate sentences of imprisonment for different crimes are imposed on a defendant on the same date, including sentences for crimes for which suspended sentences, probation or assignment to a community correctional services program have been revoked, such sentences shall run concurrently or consecutively as the court directs. Whenever the record is silent as to the manner in which two or more sentences imposed at the same time shall be served, they shall be served concurrently....”
The sole case upon which Hegwood relies is Biddle v. Hall, 15 F.2d 840 (8th Cir.1926). In Biddle the defendant was sentenced on two separate cases to 1 year and 1 day “from this date.” 15 F.2d at 840. The court indicated when ordering each sentence that it was not to run concurrent with the other. However, because the sentences were to begin on the same date and the sentencing court did not specifically state that the sentences were to be consecutive, the 8th Circuit panel found the sentence to be inconsistent and ambiguous. Because of the ambiguity, the panel held the sentences were to run concurrent with each other. 15 F.2d at 841. This is the conclusion that Hegwood asks us to reach here.
But “[s]entences in criminal cases should reveal with fair certainty the intent of the court and exclude any serious misapprehensions by those who must execute them. The elimination of every possible doubt cannot be demanded.” United States v. Dougherty, 269 U.S. 360, 363, 46 S.Ct. 156, 70 L.Ed. 310 (1926); see also Subas v. Hudspeth, 122 F.2d 85, 87 (10th Cir.1941) (suggesting that since the United States Supreme Court decision in Daugherty, Biddle would probably not be decided the same way). In this case, the sentencing court did specifically order the cases to run consecutive to each other. The sentencing court's corrected sentencing order states the following:
“The sentences imposed in 92CR1872B and Counts II and III of 92CR1910A are ordered to run concurrent to each other; and Count I of 92CR1910A is ordered to run consecutive to the three sentences in 92CR1872B and Counts II and III of 92CR1910A; and 92CR2194A is to run consecutive to 92CR1910A.”
The intent of the court was clear and was even confirmed by our Supreme Court on direct appeal. Hegwood's aggregate sentence is 45 years to life. Hegwood, 256 Kan. at 905–06. There is nothing uncertain about this sentence.
As discussed by the district court, the requirement in K.S.A. 21–4614 (Ensley 1988) that the court set forth a sentence begins date is, to some extent, a legal fiction with the sole purpose of properly accounting for jail credit earned prior to sentencing. “[S]uch date shall be established to reflect and shall be computed as an allowance for the time which the defendant has spent incarcerated pending the disposition of the defendant's case.” K.S .A. 21–4614 (Ensley 1988). The date is to be established “as though the defendant were actually incarcerated” at that time. K.S.A. 21–4614 (Ensley 1988). And finally, “[s]uch jail time credit is not to be considered to reduce the minimum or maximum terms of confinement as are authorized by law for the offence of which the defendant has been convicted.” K.S.A. 21–4614 (Ensley 1988). It was not part of the key portion of Hegwood's sentence, but was listed after the actual sentence pronouncement in an effort to comply with the statute. It does not create ambiguity where none exists.
Because the sentencing court specifically indicated, as required by K.S.A.1992 Supp. 21–4608(1), which sentences would run consecutive and which would run concurrent, the KDOC has not calculated Hegwood's sentences incorrectly. Accordingly, the district court's factual findings were supported by substantial competent evidence contained in the record and were sufficient to support the district court's conclusions of law. Moreover, the district court's conclusions of law were not made in error. The denial of Hegwood's K.S.A. 60–1501 petition is affirmed.