Opinion
Nos. 110,732 110,733.
2014-12-5
STATE of Kansas, Appellee, v. Derrick D. DAVIS, Appellant.
Appeal from Wyandotte District Court; R. WAYNE LAMPSON, judge. Opinion filed December 5, 2014. Affirmed.Gerald E. Wells, of Jerry Wells Attorney–at–Law, of Lawrence, for appellant.Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Wyandotte District Court; R. WAYNE LAMPSON, judge. Opinion filed December 5, 2014. Affirmed.
Gerald E. Wells, of Jerry Wells Attorney–at–Law, of Lawrence, for appellant. Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Before HILL, P.J., McANANY, J., and BURGESS, S.J.
MEMORANDUM OPINION
PER CURIAM.
Twenty years after his convictions for nine counts of aggravated robbery, Derrick D. Davis now contends that he is serving an ambiguous sentence because the judge did not pronounce from the bench the specific commencement date for his sentence. The court did insert a specific sentence commencement date, December 3, 1991, in the sentencing journal entry. We agree with the district court—the records clearly show that Davis is not serving an illegal sentence and the district court properly dismissed his motion alleging an illegal sentence. We give a briefcase history to establish context.
A jury convicted Davis of nine counts of aggravated robbery in two cases consolidated for trial. The court sentenced Davis to a term of 15 years to life on each of the nine counts, with three of the counts to run consecutive to one another. Davis' controlling sentence is 45 years to life. The journal entries indicated that the combined sentences would begin December 3, 1991.
Davis has availed himself of the appellate courts over the years. His convictions and sentences were affirmed on direct appeal. State v. Davis, 256 Kan. 1, 883 P.2d 735 (1994). The Supreme Court rejected Davis' assertion of various trial errors. In addition, the court considered his sentences and rejected his arguments that the district court: (1) failed to consider K.S.A. 21–4601 (Ensley 1988) and K.S.A. 21–4606 (Ensley 1988) in sentencing him; (2) erred in failing to modify his sentences; and (3) imposed a disparate sentence based on the sentences he was given compared to the sentences given to his codefendants. 256 Kan. at 25–35.
Then, in 2004, Davis filed a motion to correct an illegal sentence, alleging the trial judge acted vindictively and failed to properly consider all of the factors that had to be considered at that time concerning placement in a community corrections program. The district court denied that motion, and a panel of this court affirmed, holding that the issues raised had been previously considered and denied in his direct appeal. State v. Davis, No. 95,889, 2007 WL 570263, at * 1–2 (Kan.App.) (unpublished opinion), rev. denied 284 Kan. 947 (2007).
In 2012, Davis filed this motion to correct an illegal sentence, claiming: (1) The district court failed to conform his sentence to the requirements in K.S.A.1991 Supp. 21–4608 and K.S.A.1991 Supp. 21–4620, and (2) the sentence is ambiguous as to the time and manner in which it is to be served. Davis contended that the sentencing judge was inconsistent when he ordered consecutive sentences on three counts but also stated that December 3, 1991, was the commencement date for each sentence. Davis asserted that because the definition of “consecutive sentences” is that they must run one after another, the court should not have given the same commencement date for all sentences.
The district court summarily denied Davis' motion without an evidentiary hearing or appointment of counsel. In denying the motion, the district court stated: (1) The sentence was not contrary to Kansas law; (2) the appellate courts have previously ruled that Davis' sentence is legal; (3) the motion is outside of the time limitations for such matters; and (4) this is a second or subsequent motion attacking the defendant's sentence.
To us, Davis contends his sentence is illegal because it is ambiguous with respect to the time and manner in which it is to be served. Davis contends the district court's pronouncement of the sentence was “confusing and ambiguous.” What is an illegal sentence?
According to K.S.A. 22–3504(1), an illegal sentence is a sentence imposed by a court without jurisdiction; a sentence that does not conform to the statutory provision, either in the character or the term of authorized punishment; or a sentence that is ambiguous with respect to the time and manner in which it is to be served. State v. Taylor, 299 Kan. 5, 8, 319 P.3d 1256 (2014). K.S.A. 22–3504(1) has very limited applicability. State v. Davis, 288 Kan. 153, 154–55, 200 P.3d 443 (2009). K.S.A. 22–3504(1) allows a court to correct an illegal sentence at any time. See State v. Neal, 292 Kan. 625, 630, 258 P.3d 365 (2011).
Davis cites two cases for support, both dealing with the pronouncement of sentence in the courtroom. In State v. Royse, 252 Kan. 394, Syl. ¶¶ 2, 3, 845 P.2d 44 (1993), the Supreme Court ruled that the court's judgment and sentence in a criminal case are effective when announced from the bench. Then, in State v.. Hegwood, 256 Kan. 901, Syl. ¶ 3, 888 P.2d 856 (1995), the court stated that a sentencing journal entry at variance with the sentence pronounced from the bench must be corrected to reflect the actual sentence imposed. So, when it comes to criminal sentences, what the judge announces in court controls if there is any question later arising from the journal entry. These two commonsense holdings provide us with a firm base to stand on when dealing with the various issues that arise when sentences are the center of a dispute between the State and the defendant. But they provide scant help for Davis because his issue concerns the date when his sentences were to begin.
The sentence commencement date is important for many reasons but is not really a part of the sentence. Twenty years ago, when Davis was sentenced, K.S.A. 21–4614 (Ensley 1988) provided that the sentence commencement date should be “specifically designated by the court in the sentencing order of the journal entry of judgment or the judgment form,” and should take into account the time the defendant spent in custody pending the disposition of the case. It is a clerical matter that is reflected in the journal entry of judgment.
Also, the commencement date in the journal entry is the date the Secretary of Corrections is to use when computing and applying good-time credits toward a defendant's sentence. See K.S.A. 21–4614 (Ensley 1988) (now codified at K.S.A.2013 Supp. 21–6615). Finding the exact number of days a defendant has spent in jail is not so easy to determine, such as when a defendant has been incarcerated, released on bond, and then re-incarcerated or held on charges for another jurisdiction. The sentence commencement date is a fill-in-the-blank answer that is often a subject upon which the parties agree. Obviously, if a dispute arises about what day should be inserted, the matter can be litigated and the judge can decide the issue as any contested matter can be decided. We note that Davis does not contend that the date used by the court, December 3, 1991, is improper.
Davis' complaint regarding the proper sentence commencement date is similar to a challenge to jail-time credit. Neither challenge is appropriate under a motion to correct an illegal sentence. See Taylor, 299 Kan. at 8. Davis fails to show how his sentence is ambiguous with respect to the time and manner it is to be served. The district court clearly articulated a sentence for each count and pronounced whether the sentences were to be served consecutively or concurrently. The sentence commencement date for the controlling sentence was provided in the journal entry. Thus, Davis' challenge to his sentence is without merit.
We do not consider this to be a K.S.A. 60–1507 motion as the district court suggested because this was clearly a motion to correct an illegal sentence which can be filed at any time. Therefore, we disregard the district court's erroneous alternative ruling that the motion was untimely.
Affirmed.