Opinion
111,052.
04-10-2015
STATE of Kansas, Appellee, v. Alfred R. BROWN, Appellant.
Carl F.A. Maughan, of Maughan Law Group LC, of Wichita, for appellant. Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Carl F.A. Maughan, of Maughan Law Group LC, of Wichita, for appellant.
Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before McANANY, P.J., BRUNS, J., and JOHNSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Alfred Brown appeals the district court's ruling denying him jail time credit for the time he was held in the Sedgwick County jail pending disposition of his case. The procedural history reveals that the district court lacked jurisdiction to consider Brown's request for jail time credit. Thus, we also have no jurisdiction to consider the district court's ruling and dismiss Brown's appeal for lack of jurisdiction.
In April 2009, Brown pled guilty to criminal sodomy and attempted criminal sodomy. Brown was on parole at the time he committed these crimes. The district court sentenced Brown to a controlling prison term of 82 months to run “consecutive to any parole sentence which the defendant is required to serve.”
In addressing jail time credit at sentencing, the district court stated:
“Some other findings that I'm required to make under the law would be that all the time that Mr. Brown served in the county jail, it either goes towards this sentence or it goes towards his parole sentence. Because the cases are consecutive, you don't—you do not get duplicative credit....”
The journal entry reflected that Brown was not awarded any jail time credit in the present case. The note on the journal entry stated: “Defendant was in custody on the instant case and a KDOC hold from 2/8/07 to 5/28/09. Defendant is not allowed duplicate credit. Therefore, no credit is awarded in the instant case.” Brown appealed, but did not raise the issue of jail time credit in his direct appeal.
Four months later, Brown filed a motion for jail time credit. The district court denied relief. Brown did not appeal.
In May 2013, Brown filed a second motion for jail time credit. The court appointed counsel for Brown and conducted a hearing on the motion. Brown argued that he was being held solely on the charges in the present case and was therefore wrongly denied jail time credit. Brown presented a copy of an order to arrest and detain from the Kansas Department of Corrections. The order was issued on February 9, 2007, and expired on March 11, 2007. But there was no evidence presented that the order was actually executed and that the defendant was detained on the prior cases. Defense counsel argued that the order was an order to detain solely for the purpose of determining whether Brown's sentence should be revoked. The district court disagreed. This appeal followed.
On appeal, Brown argues that the district court erred in denying his request for jail time credit by erroneously relying on the arrest and detain order to determine whether Brown was in custody on prior criminal cases. He contends that he should receive full credit for the time he spent in jail and that there is no evidence in the record to show that he was in custody for the prior cases.
The sole issue in this case involves the award of jail time credit. But before we reach the merits of the issue, we must determine whether we have jurisdiction over Brown's claim. The State argues that this court does not have jurisdiction to consider Brown's appeal and that Brown's sentence became final when he did not raise the issue in his direct appeal.
Whether a court has jurisdiction is subject to unlimited review. State v. Charles, 298 Kan. 993, 1002, 318 P.3d 997 (2014).
Under K.S.A.2014 Supp. 21–6615(a), an incarcerated defendant must be credited for all time spent in custody solely for that case:
“In any criminal action in which the defendant is convicted, the judge, if the judge sentences the defendant to confinement, shall direct that for the purpose of computing defendant's sentence and parole eligibility and conditional release dates thereunder, that such sentence is to be computed from a date, to be specifically designated by the court in the sentencing order of the journal entry of judgment. Such 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.”
In its journal entry memorializing Brown's April 2009 sentence, the district court determined that Brown was to receive no credit for any time he spent in jail while his case was pending due to the fact that he was not being held solely for the charges in this case. Brown filed an appeal challenging his sentence, but he did not appeal the court's ruling denying jail time credit. State v. Brown, No. 102,940, 2012 WL 6634348 (Kan.App.2012) (unpublished opinion), rev. denied 297 Kan. 1248 (2013).
Four months after sentencing, Brown filed a motion requesting jail time credit, and the district court denied his request. Again, Brown did not appeal from this order.
The right to appeal is purely statutory, and Kansas appellate courts have jurisdiction to consider only those appeals taken in the manner prescribed by statute. State v. J.D.H., 48 Kan.App.2d 454, 458, 294 P.3d 343, rev. denied 297 Kan. 1251 (2013). In Kansas, the filing of a timely notice of appeal is jurisdictional. State v. Gill, 287 Kan. 289, 294, 196 P.3d 369 (2008). Judgment in a criminal case is sentencing, and the time to file a notice of appeal runs from oral pronouncement of the sentence. State v. Ehrlich, 286 Kan. 923, 925, 189 P.3d 491 (2008). When the record discloses a lack of jurisdiction, we have the duty to dismiss the appeal. State v. Denney, 283 Kan. 781, 787, 156 P.3d 1275 (2007).
Several panels of our court have determined that we lack jurisdiction to consider a jail time credit challenge if the time for direct appeal has run. State v. Arculeo, No. 110,974, 2015 WL 569396, at *3 (Kan.App.2015) (unpublished opinion), petition for rev. filed February 27, 2015; State v. Lakin, No. 111,060, 2014 WL 5313708, at *2 (Kan.App.2014) (unpublished opinion); State v. Blazier, No. 110,070, 2014 WL 4916599, at *3–4 (Kan.App.2014) (unpublished opinion); State v. Muldrow, No. 107,291, 2013 WL 1149704, at *2–3 (Kan.App.) (unpublished opinion), rev. denied 297 Kan. 1253 (2013).
Awarding or calculating jail credit is part of imposing the sentence and is used to compute the sentence start date. See State v. Denney, 278 Kan. 643, 648, 101 P.3d 1257 (2004). At the time of sentencing, Brown had only 10 days from judgment to file a notice of appeal. K.S.A. 22–3608(c). Brown filed a notice of appeal with this court challenging his sentence, but he failed to raise the issue of jail time credit. Brown is not entitled to a second direct appeal for us to consider this issue. When he failed to raise the issue in his direct appeal, both the district court and our court lost jurisdiction to consider the claim.
Appeal dismissed for lack of jurisdiction.