Opinion
No. 108,553.
2013-08-29
Daniel SEMOTUK, Appellant, v. STATE of Kansas, Appellee.
Appeal from Johnson District Court; Sara Welch, Judge. Daniel Semotuk, appellant pro se. Steven J. Obermeier, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Johnson District Court; Sara Welch, Judge.
Daniel Semotuk, appellant pro se. Steven J. Obermeier, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Before PIERRON, P.J., BRUNS and POWELL, JJ.
MEMORANDUM OPINION
PER CURIAM.
Movant Daniel Semotuk argues that the district court erred in summarily dismissing his request for relief under K.S.A. 60–1507. Specifically, Semotuk claims that he should have received jail credit for time spent on house arrest, and that his sentences should run concurrently rather than consecutively. We disagree and affirm the order of the district court.
Facts
On July 28, 2010, Semotuk pled guilty and was sentenced to probation for violating a protection order in two separate cases: 10DV459 and 10DV802.
Semotuk's plea and sentencing hearing occurred before a magistrate in Division M–3 of Johnson County District Court. Division M–3 is not a court of record, so no transcript of the sentencing proceedings is available for review. Consequently, the journal entries of sentencing and court file are the only record of Semotuk's sentencing hearing.
The plea agreement in 10DV459 asked that Semotuk be placed on probation for 1 year, that he be subject to a 360–day jail sentence if he violated his probation, and that his sentences run consecutively to his previous and forthcoming convictions. The plea agreement in 10DV802 was the same, except for its recommendation for an underlying jail sentence of 1 year rather than 360 days.
The journal entries of sentencing are entirely consistent with the recommendations made by the plea agreements and, most notably, specify that Semotuk's convictions would run consecutively to one another. Likewise, the appearance dockets in both cases specify that Semotuk's convictions would run consecutively to one another.
On March 24, 2011, the magistrate revoked Semotuk's probation in both cases because he had been charged with new crimes in 10DV1285 and 11DV80. Accordingly, each journal entry of revocation ordered Semotuk to serve his “[o]riginal sentence.”
After the probation revocations, Semotuk began to file a host of pro se motions which are often difficult to follow. Nonetheless, on October 24, 2011, Semotuk filed separate motions for the magistrate to credit him for jail time in 10DV459 and 10DV802. The motions claimed, in part, that Semotuk's probation officer unlawfully placed him on house arrest from September 22 to October 19, 2010. The magistrate, however, denied both motions, though a journal entry of this decision, if any, has not been included in the appellate record.
At about this time, Semotuk also submitted to the district court a K.S.A. 60–1501 petition which challenged the lawfulness of Semotuk's detention for his convictions in 10DV154, 10DV1285, and 11DV80. The district court again denied the petition. Semotuk appealed to this court, which ordered Semotuk to show cause on whether his claim could be reviewed because, at the time, he was on postrelease supervision and thus no longer incarcerated. Semotuk, however, did not respond to the show-cause order. Accordingly, on July 23, 2012, this court summarily affirmed the district court's decision.
Finally, Semotuk submitted a K.S.A. 60–1507 motion to the district court on March 22, 2012. This motion essentially echoed the same arguments specified in Semotuk's two previous jail-credit motions, including his claims that he was owed jail credit and that his sentences in 10DV459 and 10DV802 should run concurrently because the magistrate did not specify otherwise at his sentencing hearings. Semotuk also complained that he was unlawfully placed under house arrest.
The district court, however, summarily denied Semotuk's K.S.A. 60–1507 motion in a journal entry filed on May 1, 2012. With respect to the consecutive or concurrent sentences issue, the journal entries demonstrated that Semotuk received consecutive sentences for 10DV459 and 10DV802. “While Petitioner alleges that the sentences outlined in the journal entries are not sentences pronounced from the bench,” the court explained, “he offers no available witness or other source of evidence that would establish this.” Therefore, the court concluded, Semotuk failed to establish an evidentiary basis for his contention that the magistrate did not order him to serve consecutive sentences.
In its journal entry, the district court also rejected Semotuk's claim that he was unlawfully subjected to house arrest. The court reasoned that the claim was moot because Semotuk had been released from house arrest more than 1 year ago. Finally, the court rejected Semotuk's vague suggestion that he was illegally sentenced to both probation and incarceration in 10DV459 and 10DV802 because the record clearly demonstrated otherwise.
Afterward, the district court filed two additional journal entries that rejected Semotuk's motions for jail credit. The court thoroughly examined the time that Semotuk had spent in jail and observed that Semotuk had received proper credit for his respective convictions. The court also noted that Semotuk's house arrest could not qualify for jail credit under K.S.A. 21–6615(b). And, once again, the court noted that Semotuk was sentenced consecutively in 10DV459 and 10DV802.
Semotuk filed a timely notice of appeal concerning the district court's rejection of his K.S.A. 60–1507 motion.
Did The District Court Err By Summarily Dismissing Semotuk's Request for Relief?
Standard of Review
In Lujan v. State, 270 Kan. 163, Syl. ¶ 3, 14 P.3d 424 (2000), the Kansas Supreme Court articulated the three different approaches that a district court can employ when faced with a K.S.A. 60–1507 motion:
“First, it may determine that the motion, files, and records of the case conclusively show that the petitioner is entitled to no relief, in which case it will summarily deny the petitioner's motion. Second, the court may determine from the motion, files, and record that a substantial issue or issues are presented, requiring a full evidentiary hearing with the presence of the petitioner. Third, the court may determine that a potentially substantial issue or issues of fact are raised in the motion, supported by the files and record, and hold a preliminary hearing after the appointment of counsel to determine whether in fact the issues in the motion are substantial.” (Emphasis added.)
See also Trotter v. State, 288 Kan. 112, 132, 200 P.3d 1236 (2009); K.S.A. 60–1507(b).
In a K.S.A. 60–1507 motion, the movant has the burden to establish the grounds for relief by a preponderance of the evidence. Supreme Court Rule 183(g) (2012 Kan. Ct. R. Annot. 274). Additionally, an appellate court is “in as good a position as” a district court to consider the merits when a district court denies relief under K.S.A. 60–1507 solely because of counsel's legal argument and the court's review of the files and case records. See Barr v. State, 287 Kan. 190, 196, 196 P.3d 357 (2008). Therefore, appellate review is de novo. See 287 Kan. at 196, 196 P.3d 357. Application
Semotuk's argument is two-fold. First, he argues that he should have received jail credit for the 27 days he spent on house arrest. Second, Semotuk argues that the district court erred by determining he received consecutive sentences in 10DV459 and 10DV802 and that, at the very least, he should have been afforded an evidentiary hearing on the matter.
In rebuttal, the State largely argues that Semotuk's sentences were not modified upon the district court's revocation of his probation, and, therefore, the sentences must remain consecutive to one another.
Did the District Court Err by Determining that Semotuk Was Not Entitled to Jail Credit for His Time Allegedly Spent on House Arrest?
Throughout his appellate brief, Semotuk cites to K.S.A. 21–4614 to support his argument that house arrest is a form of detention and therefore subject to jail credit. K.S.A. 21–4614, however, concerns awarding jail credit to a defendant who is confined pending his or her conviction. Therefore, this statute is not applicable here because Semotuk's cases were not pending when the alleged house arrest occurred. He had already pled guilty and was sentenced to probation in 10DV459 and 10DV802.
K.S.A. 21–4614a thus appears to be the appropriate statute. Under this statute, when a criminal defendant's probation is revoked and the defendant is sentenced to confinement, the defendant's sentence is computed “from a date, hereafter to be specifically designated in the sentencing order of the journal entry of judgment or the judgment form delivered with the defendant to the correctional institution.” K.S.A. 21–4614a(a). This date “shall be established to reflect and shall be computed as an allowance for the time which the defendant has spent in a residential facility while on probation, assignment to a conservation camp or assignment to community correctional residential services program.” (Emphasis added.)
This court has thoroughly examined the language of K.S.A. 21–4614a and concluded that house arrest does not qualify for jail credit under the statute. See State v. Williams, 18 Kan.App.2d 424, 856 P.2d 158 (1993). In Williams, this court determined that even though the defendant was “fitted with an electronic monitoring device, and confined to his own home,” his house arrest did not meet the definition of “residential facility” or “community correctional residential services program” under K.S.A. 21–4614a. 18 Kan.App.2d at 430–31, 856 P.2d 158. See also State v. Brasfield, 22 Kan.App.2d 623, Syl. ¶ 1, 921 P.2d 834 (1996) (in order to be entitled to jail credit under K.S.A. 21–4614a, the defendant must have resided in a facility owned and operated by a community corrections program operating under the Community Corrections Act, K.S.A. 75–5290 et seq.).
At least two cases subsequent to Williams, however, have questioned what constitutes a residential facility or community correctional residential services program under K.S.A. 21–4614a(a). See State v. Theis, 262 Kan. 4, 936 P.2d 710 (1997) (defendant placed in inpatient drug-treatment facility could qualify for jail credit); State v. Brown, 38 Kan.App.2d 490, 167 P.3d 367 (2007) (defendant placed in halfway house could qualify for jail credit). Nonetheless, Kansas appellate courts continue to recognize that house arrest does not qualify for jail credit under K.S.A. 21–4614a. See State v. Gaudina, 284 Kan. 354, 364, 160 P.3d 854 (2007) (citing Williams ); State v. Abildgaard, No. 102,905, 2010 WL 3662966 (Kan.App.2010) (unpublished opinion) (prohibiting defendant, under both K.S.A. 21–4614 and 21–4614a, from receiving jail credit for house arrest subsequent to conviction for driving under the influence of alcohol) rev, dismissed September 14,2012.
Although not expressly adopted by our Supreme Court, Williams has nonetheless withstood 2 decades of debate and continues to remain good law for the point at hand, in that house arrest does not qualify for jail credit under K.S.A. 21–4614a. Therefore, though not binding on this court, Williams is highly persuasive and should be applied here. Semotuk fails to explain how his case is distinguishable from Williams or whether the holding in Williams is now in error. Therefore, the district court did not err by determining his alleged house arrest would not qualify for jail credit.
Did the District Court Err in Determining that Semotuk Was Sentenced Consecutively in 10DV489 and 10DV802?
The law on consecutive and concurrent sentencing is well settled. K.S.A.2008 Supp. 21–4608(a) states:
“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, except as provided in subsections (c), (d) and (e).” (Emphasis added.)
Semotuk thus contends that the magistrate did not order him to serve consecutive sentences in 10DV459 and 10DV802, and, therefore, his sentences must run concurrent to one another. Admittedly, resolution of this argument is hindered by the fact that no transcript of the sentencing hearing exists. As the district court later noted, Division M–3, at which Semotuk pled guilty and was sentenced, is not a court of record. But all available evidence demonstrates that Semotuk received consecutive sentences. First, the initial journal entries of sentencing—as well as the journal entries of the probation revocations—all specify that Semotuk's sentences would run consecutively. Second, as the State observes, both plea agreements specify the same. Third and finally, the appearance docket entries for July 28, 2010, specify that Semotuk received consecutive sentences. Although these three types of documents might not carry the same evidentiary weight as a transcript, they are consistent with one another and strongly suggest that the magistrate expressly ordered Semotuk to serve consecutive sentences if he violated his probation. Therefore, the district court did not err in determining that Semotuk's K.S.A. 60–1507 allegations for relief were conclusory and devoid of any meaningful assertion to the contrary.
Semotuk, however, argues that the appearance docket entries for May 19, 2011, suggest that he was sentenced concurrently. On that day, the magistrate remanded 10DV459 “to complete sentence on this case.” The docket entry of 10DV802 states the same. But, at best, these docket entries leave open the question of whether Semotuk received concurrent or consecutive sentences. More importantly, the entries are congruent with the plea agreements and journal entries of sentencing because they each specify Semotuk was ordered to serve his sentence “on this case.” Therefore, in light of the evidence strongly suggesting that Semotuk received consecutive sentences, the May 19, 2011, appearance docket entries fail to further Semotuk's claim of error.
Semotuk also suggests that the magistrate was required to specify at the probation revocation hearing that Semotuk's sentences would run consecutively, and that the magistrate's silence on the matter necessitates that his sentences run concurrently instead. In support of his proposition, Semotuk cites Abasolo v. State, 284 Kan. 299, 160 P.3d 471 (2007). There, the district court, under K.S .A.2006 Supp. 22–3716(b), reduced the defendant's sentence at her probation revocation hearing but, in its journal entry, ordered the defendant to serve her original prison sentence. Our Supreme Court held that this was error because a sentence is effective upon pronouncement, and, therefore, the district court did not have authority to reinstate the original prison sentence in its journal entry after having reduced the sentence at the probation revocation hearing. 284 Kan. at 303–11, 160 P.3d 471.
Semotuk's reliance on Abasolo is misplaced. Initially, Semotuk's original sentence was not modified at his probation revocation hearing; hence, the magistrate ordered Semotuk to serve his original jail sentences. Therefore, Abasolo is inapplicable. See State v. Beatty, No. 102,725, 2010 WL 5490732 (Kan.App.2010) (unpublished opinion) (district court did not state a new sentence upon revoking defendant's probation, but instead ordered that defendant “ ‘serve his sentence imposed.’ ”). Moreover, Abasolo does not suggest that an oral pronouncement of sentencing must occur at a probation revocation hearing. Semotuk's interpretation of the case runs too far astray from its limited holding.
The district court is affirmed.