Opinion
No. 109,436.
2013-12-27
Daniel SEMOTUK, Appellant, v. DEPARTMENT OF CORRECTIONS, State of Kansas, Appellee.
Appeal from Johnson District Court; Sara Welch, Judge. Dan Semotuk, appellant pro se. Fred W. Phelps, Jr., legal counsel, of Kansas Department of Corrections, of Topeka, for appellee.
Appeal from Johnson District Court; Sara Welch, Judge.
Dan Semotuk, appellant pro se. Fred W. Phelps, Jr., legal counsel, of Kansas Department of Corrections, of Topeka, for appellee.
Before BUSER, P.J., SCHROEDER, J., and KNUDSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Daniel Semotuk appeals the summary dismissal of his petition for writ of habeas corpus filed pursuant to K.S.A.2012 Supp. 60–1501 for failing to state a claim for relief. Having reviewed the record on appeal and the briefs of the parties, we find no reversible error and therefore affirm the district court's ruling.
The State charged Semotuk with two counts of stalking in Johnson County Case No. 10DV1285 (2010 case) and two counts of stalking in Case No. 11DV80 (2011 case). After the district court consolidated Semotuk's cases for trial, pursuant to plea negotiations, Semotuk pled guilty to two counts of stalking in the 2010 case and one count of stalking in the 2011 case. Accordingly, on May 25, 2011, the district court ran the three sentences in the two cases concurrent with each other for a controlling prison term of 12 months. The district court then ordered the sentences to run consecutive to a prior felony sentence and two prior misdemeanor sentences.
After sentencing, Semotuk filed several motions challenging the lawfulness of his detention for his various felony and misdemeanor convictions—including a K.S.A.2012 Supp. 60–1501 petition and a K.S.A. 60–1507 motion—that were apparently related to jail time credit he believed he was owed. The majority of these motions were not included in the record on appeal. In response to one of Semotuk's motions, on January 6, 2012, the district court awarded him 126 days of credit for the time he spent in custody pending the disposition of the 2011 case. The journal entry nunc pro tunc was filed on June 27, 2012.
About 3 months later, Semotuk contacted the Kansas Department of Corrections (KDOC) regarding his newly awarded jail credit. On September 13, 2012, KDOC responded:
“As you have satisfied the prison portion of the sentence associated with [the 2011 case] there can be no adjustment to your sentence. You are currently serving a 12–month period of post-release supervision. Assuming you earn the good time available to you while on post-release supervision, you will be discharged from post-release on November 15, 2012.”
Shortly after receiving this response, on October 10, 2012, Semotuk filed a pro se petition for writ of habeas corpus, pursuant to K.S.A.2012 Supp. 60–1501, alleging that KDOC had violated the lawful orders of the district court by refusing to adjust his sentence. In his petition, Semotuk stated:
“On January 6, 2012[,] the Plaintiff was still under the prison portion of his sentence and at the time of this filing, is still under a sentence controlled by KDOC and ‘once a 60–1507 motion has been filed while prisoner is in custody a court will not lose jurisdiction because the prisoner is later released.’ [Citation omitted.] This is also true for post-release as the plaintiff is still under jurisdictional control of KDOC.”
On November 30, 2012, the district court summarily dismissed Semotuk's petition because it plainly appeared from “ ‘the face of the petition and any exhibits attached thereto that [Semotuk was] not entitled to [any] relief.’ “ The district court found that Semotuk's sole prayer for relief—an award of 126 days of jail credit—had already been provided to him by the sentencing court. Additionally, the district court found that Semotuk's petition was moot because he had served his sentence, and it appeared res judicata principles barred consideration of his petition due to his previously filed K.S.A.2012 Supp. 60–1501 petition.
Semotuk filed this timely appeal.
Analysis
On appeal, Semotuk contends the district court erred because his petition clearly established that KDOC had been “refusing to obey the Court[']s legal and lawful orders [by] detain[ing him] longer than the law allows for [the 2011 case].” Specifically, Semotuk claims the district court's ruling on his latest K.S.A.2012 Supp. 60–1501 petition that he already had received the relief sought was erroneous because KDOC refused to grant him his court-ordered jail credit. On the other hand, the State supports the district court's decision and asserts that Semotuk's appellate brief should be disregarded because he did not fully comply with the mandates of Supreme Court Rule 6.02 (2012 Kan. Ct. R. Annot. 38), which governs the form and content of the appellant's brief.
At the outset, our review of Semotuk's brief convinces us that he has failed to substantially comply with important rules of appellate practice. In particular, Rule 6.02(a)(4) requires that an appellant's brief must contain a “concise but complete statement, without argument, of the facts that are material to determining the issues to be decided in the appeal.” (Emphasis added.) (2012 Kan. Ct. R. Annot. 39.) A cursory review of Semotuk's factual statement includes phrases such as “in direct defiance and blatant disregard for the Court's legal and lawful order,” “[t]hese actions appear to be criminal,” and “a biased, partial and prejudicial ruling.” In sum, Semotuk's factual statement is short on facts necessary to review this matter and replete with impermissible argumentation.
Moreover, Rule 6.02(a)(4) also requires that “[t]he facts included in the statement must be keyed to the record on appeal by volume and page number. The court may presume that a factual statement made without a reference to volume and page number has no support in the record on appeal.” We agree with the State's assessment that Semotuk's “ ‘Statement of Facts' portion of the brief—in large part—fails to comply with ... Rule 6.02(a)(4).” Numerous important factual statements relevant to our review of this matter appear in Semotuk's brief without any reference to the record on appeal. In keeping with our appellate rules, we presume these facts are without support. Rule 6.02(a)(4); National Bank of Andover v. Kansas Bankers Surety Co., 290 Kan. 247, 283, 225 P.3d 707 (2010) (The burden is on the party making a claim to designate facts in the record to support that claim; without such a record, the claim of error fails.).
Finally, Semotuk has provided us with 17 pages of documents which he has included as an appendix to his brief. These documents are repeatedly referenced throughout Semotuk's brief. Supreme Court Rule 6.02(b) (2012 Kan. Ct. R. Annot. 38.) specifically provides that an appendix should consist of “limited extracts from the record on appeal.” (Emphasis added). See State v. Valladarez, 288 Kan. 671, 686, 206 P.3d 879 (2009) (“[A]n appendix to a brief is limited to extracts from the record on appeal; it cannot serve as a substitute for the record itself.”).
We have attempted to locate in the record on appeal, without success, many of the documents that Semotuk included in the appendix to his brief. In keeping with our appellate rules, we have disregarded any document appended to Semotuk's brief which is not a part of the record on appeal. See In re Gershaterz, 270 Kan. 620, 633, 17 P.3d 929 (2001) (“Material which is annexed to an appellate brief by way of an appendix is not a substitute for the record itself and cannot be considered on appeal.”).
Considered in its totality, Semotuk's failure to comply with our appellate rules has resulted in his failure to meet the burden imposed on all appellants to provide a verifiable factual basis to prove their claim. This failure is fatal to Semotuk's appeal. Nevertheless, even with an inadequate record, we are persuaded that Semotuk's appeal is without merit.
When determining whether a K.S.A.2012 Supp. 60–1501 petition states a claim for relief, district courts examine the allegations in the petition and the contents of any attachments to determine if the petition alleges “shocking and intolerable conduct or continuing mistreatment of a constitutional nature.” Schuyler v. Roberts, 285 Kan. 677, 679, 175 P.3d 259 (2008). The district court is entitled to summarily dismiss a K.S.A.2012 Supp. 60–1501 petition “[i]f it plainly appears from the face of the petition and any exhibits attached thereto that the plaintiff is not entitled to relief in the district court.” K.S.A.2012 Supp. 60–1503(a). Appellate courts apply de novo review to a district court's summary denial of a K.S.A.2012 Supp. 60–1501 claim. Johnson v. State, 289 Kan. 642, 649, 215 P.3d 575 (2009).
The district court had three independent bases for dismissing Semotuk's K.S.A.2012 Supp. 60–1501 petition. Other than passing references to the district court's ruling, however, Semotuk fails to address on appeal why his petition was not moot and/or barred by res judicata. While res judicata principles may apply, Semotuk's failure to address the issue of mootness is particularly important, as his petition indicated that he had served his prison sentence in the 2011 case.
In State v. Gaudina, 284 Kan. 354, 358–68, 160 P.3d 854 (2007), our Supreme Court held that a defendant is not entitled to credit against a postrelease supervision period for the amount of time served in excess of the prison time imposed. In so holding, the court explained that “postrelease supervision is a separate segment of the sentence and any credit for time spent in confinement is credited against time spent incarcerated, not against postrelease supervision.” (Emphasis added.) 284 Kan. at 360.
Semotuk seemingly considers KDOC's response of September 13, 2012, that “there can be no adjustment to your sentence” as KDOC's refusal to implement the district court's order granting him 126 days credit. But KDOC explained in its response that Semotuk had “satisfied the prison portion of the sentence associated” with the 2011 case. Given that Semotuk was no longer incarcerated as a result of the 2011 case, there was no way to adjust the sentence. He had already served his time. This is the basis for the district court's finding that the matter was moot. As an appellate court, we are also attentive to the mootness doctrine. See State v. Torres, 293 Kan. 790, 792, 268 P.3d 1197 (2012).
Additionally, Semotuk's K.S.A.2012 Supp. 60–1501 petition also suggests that he has completed his postrelease supervision in the 2011 case, and according to our Supreme Court, “[a] defendant is not entitled to credit on a sentence for time which he or she has spent in jail upon other, distinct, and wholly unrelated charges.” State v. Denney, 278 Kan. 643, Syl. ¶ 1, 101 P.3d 1257 (2004). In other words, a defendant is only entitled to credit for time spent in custody on the charge(s) for which he or she was sentenced; jail credit does not apply to sentences in other cases.
Semotuk's failure to brief the district court's finding of mootness is important. Issues not briefed by the appellant are generally deemed waived and abandoned, and an appellant's failure to support a point with pertinent authority or show why it is sound despite a lack of supporting authority or in the face of contrary authority is akin to failing to brief the issue. State v. McCaslin, 291 Kan. 697, 709, 245 P.3d 1030 (2011); State v. Berriozabal, 291 Kan. 568, 594, 243 P.3d 352 (2010). Moreover, findings and conclusions made by the district court which an appellant fails to address on appeal are conclusive. See Greenwood v. Blackjack Cattle Co., 204 Kan. 625, 627, 464 P.2d 281 (1970) (findings and conclusions made by the district court which an appellant fails to address on appeal are conclusive).
Accordingly, after thoroughly reviewing the record and the parties' briefs, we find that Semotuk has failed to comply with our appellate rules and, as a result, has failed to establish the facts necessary to show error by the district court. We also hold that Semotuk has waived or abandoned his claim on appeal. Nevertheless, we have considered Semotuk's arguments, and we conclude that the district court did not err in finding that the issue raised was moot and without merit. Finally, the district court did not err in summarily dismissing the petition because Semotuk had failed to show shocking and intolerable conduct or continuing mistreatment of a constitutional nature which would have merited relief.
Affirmed.