Opinion
No. 107,307.
2013-03-8
STATE of Kansas, Appellee, v. Leonard E. DUNCAN, Appellant.
Appeal from Shawnee District Court; Evelyn Z. Wilson, Judge. Wayne French, of French Law Office, LLC, of Topeka, for appellant, and Leonard E. Duncan, appellant pro se. Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Shawnee District Court; Evelyn Z. Wilson, Judge.
Wayne French, of French Law Office, LLC, of Topeka, for appellant, and Leonard E. Duncan, appellant pro se. Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Before BRUNS, P.J., GREEN and BUSER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Leonard E. Duncan appeals from the district court's denial of his motion to correct an illegal sentence. The district court denied the motion because it determined that Duncan failed to allege an illegal sentence. In so holding, the district court also noted that Duncan's claims were more suited for a habeas corpus petition under K.S.A. 60–1501. On appeal, Duncan argues pro se that the district court erred in finding he had failed to allege an illegal sentence. In addition, Duncan's appointed counsel argues that the motion should have been transferred to Leavenworth County. Because the district court appropriately denied the motion and had no obligation to transfer venue, we affirm.
Facts
On October 4, 1996, the Shawnee County District Court sentenced Duncan to 134 months' imprisonment—and to 36 months' postrelease supervision—in Case No. 96–CR–1866. While Duncan was on postrelease supervision in 96–CR–1866, he pled nolo contendere to one count each of theft, burglary of a motor vehicle, and criminal damage to property in Case No. 09–CR–1706. On December 16, 2009, the district court sentenced Duncan to 10 months' imprisonment, which he must serve consecutive to his remaining sentence in 96–CR–1866.
On November 30, 2010, Duncan filed identical pro se motions to correct illegal sentence in both 96–CR–1866 and 09–CR–1706. In the motions, Duncan argued that the Kansas Department of Corrections (KDOC) erroneously determined that he had 29 months left on his postrelease supervision in 96–CR–1866 instead of 22 months. According to Duncan, the KDOC erred by adding the 29 months to his 10–month sentence in 09–CR–1706 to arrive at a 39–month aggregated sentence. Duncan filed the same motions again on February 15, 2011.
The district court entered a memorandum decision and order in both cases on July 18, 2011, finding that Duncan's sentences were legal. The district court went on to explain that because Duncan was actually challenging the calculation of his aggregated sentence by the KDOC, a K.S.A. 60–1501 petition would be an appropriate way to address his grievance. The district court noted that Leavenworth County—as the county of Duncan's incarceration—would be the appropriate venue for the filing of a K.S.A. 60–1501 petition rather than Shawnee County.
Duncan filed timely notices of appeal in both cases, but he only docketed his appeal from 09–CR–1706. In addition to the brief filed by Duncan's appointed counsel, Duncan filed a supplemental pro se brief. We will address both briefs in this opinion.
Analysis
Issues Presented
There are two issues presented in this appeal. First, whether the district court erred in denying the motion to correct illegal sentence. Second, whether the district court erred in failing to transfer the motion to Leavenworth County. Motion to Correct Illegal Sentence
Whether a sentence is illegal within the meaning of K.S.A. 22–3504 is a question of law over which we have unlimited review. See State v. Jones, 292 Kan. 910, 914, 257 P.3d 268 (2011), cert. denied132 S.Ct. 1097 (2012). A district court renders an illegal sentence if the court is without jurisdiction; if the sentence does not conform to the statutory provisions authorizing the punishment; or if the sentence is ambiguous regarding the time and manner of service. See State v. LaBelle, 290 Kan. 529, 532, 231 P.3d 1065 (2010). Here, none of these factors are present.
On appeal, Duncan argues only that the KDOC wrongly determined the number of months he had already served or had yet to serve on postrelease supervision. Even if this is true, it does not constitute an illegal sentence. See Gibson v. Cummings, 31 Kan.App.2d 957, 959, 78 P.3d 1174,rev. denied 216 Kan. 968 (2003). Thus, we find that the district court did not err in finding that Duncan failed to allege that his sentence was illegal. Failure to Transfer Motion
Duncan's appointed counsel admits that the district court correctly found that the motion should have been brought as a habeas corpus petition under K.S.A. 60–1501. But he argues that the district court “could have easily transferred this matter to the proper district court in the interests of justice and judicial economy.” Although this may be true, we do not find that the district court was required to transfer venue in this case. See Fredricks v. Foltz, 221 Kan. 28, 33, 557 P.2d 1252 (1976) (A decision to transfer venue is a matter of judicial discretion.).
A similar issue was considered by this court in State v. Evans, No. 105,185, 2011 WL 3444348 (Kan.App.2011) (unpublished opinion), rev. denied 293 Kan. –––– (February 17, 2012). Evans, who was incarcerated at the El Dorado Correctional Facility in Butler County, filed a motion in the Sedgwick County District Court, arguing that the KDOC erroneously applied jail-time credit to the wrong case. In response, the State suggested that the district court transfer Evans' motion to Butler County. The district court denied the motion for lack of venue, but it did not transfer the motion to Butler County. On appeal, the majority found that the district court did not abuse its discretion in choosing to dismiss the motion rather than transferring venue to another county. 2011 WL 3444348, at *3.
Although Evans provides us with guidance in the present case, it is important to remember that Duncan filed a motion to correct an illegal sentence—not a habeas corpus petition. Moreover, the primary reason the district court denied Duncan's motion was because he did not allege an illegal sentence. The district court merely attempted to assist Duncan by explaining that he may be able to challenge the KDOC's calculation of his period of confinement by filing a K.S.A. 60–1501 petition in the county of his incarceration. See Safarik v. Bruce, 20 Kan.App.2d 61, 66–67, 883 P.2d 1211,rev. denied 256 Kan. 996 (1994); see also State v. Chambers, No. 100,493, 2009 WL 2436683 (Kan.App.2009) (unpublished opinion) (“A K.S.A. 60–1501 petition is the proper mechanism for challenging the mode or conditions of an inmate's confinement, including administrative decisions made by the KDOC, and such a petition is to be filed in the county of confinement”), rev. denied 289 Kan. 1281 (2010).
Accordingly, we conclude that the district court was not required to transfer Duncan's motion to the Leavenworth County District Court.
Affirmed.