Opinion
110,904.
03-20-2015
STATE of Kansas, Appellee, v. Marion ELLIS, Appellant.
Adam D. Stolte, of Kansas Appellate Defender Office, for appellant. Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Adam D. Stolte, of Kansas Appellate Defender Office, for appellant.
Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before BUSER, P.J., LEBEN and STANDRIDGE, JJ.
MEMORANDUM OPINION
PER CURIAM.
Marion Ellis pled guilty to one count of aggravated escape from custody. The district court imposed a sentence of 21 months' imprisonment and 12 months' postrelease supervision. On appeal, Ellis argues that the district court erred by failing to grant his motion for jail credit.
Facts
On April 27, 2010, Ellis was sentenced in three different cases—case Nos. 08CR2385, 09CR3084, and 10CR26—for drug-related offenses Ellis committed in May 2008, October 2008, and June 2009. He began serving his prison sentence for these convictions on May 10, 2010.
On May 25, 2011, Ellis was paroled to a work-release facility in Wichita. On February 17, 2012, Ellis escaped from the facility. Law enforcement located him the next day, February 18, 2012, and he was returned to prison for violating the terms of his parole in the drug-related cases.
On January 24, 2013, Ellis pled guilty to one count of aggravated escape from custody, a severity level 8 nonperson felony. On March 6, 2013, the district court sentenced Ellis to 21 months' imprisonment and 12 months' postrelease supervision for the aggravated escape conviction. The court ordered that the sentence be served consecutively to that imposed in any other case. In the journal entry of judgment, the sentencing court calculated 382 days of jail credit. This calculation was based on the time Ellis spent in custody from February 18, 2012 (the day he returned to custody after his escape), to March 6, 2013 (the day he was sentenced for the escape from custody conviction). Notwithstanding the fact that such a calculation was made, the sentencing court did not actually award any jail credit to Ellis in the escape from custody case because Ellis “was also being held for a parole violation for Sedgwick County Case Nos: 08CR2385, 09CR3084 and 10CR26.”
On September 6, 2013, Ellis filed a motion for jail credit for the time period from November 28, 2012, to March 6, 2013, claiming he spent those 98 days in jail solely on the escape from custody charge. More specifically, Ellis argued that he completed the incarceration portion of the sentences imposed in the drug-related cases on November 28, 2012, but was required to remain in jail pursuant to a detainer that had been lodged against him on the escape from custody charge.
The district court conducted a hearing on Ellis' motion. At the hearing, Ellis offered a “Certificate of Release” prepared by the Kansas Prisoner Review Board (Board) to support his claim that he had completed the incarceration portion of the sentences in his drug-related cases. The document offered by Ellis, however, did not include any case numbers clarifying the cases to which it referred. The district court concluded that the documentation submitted was insufficient to establish that Ellis was held on the escape from custody charge as of November 28, 2012. The district court denied Ellis' motion, finding that the Kansas Department of Corrections (KDOC) would “have to be the entity that figures this out.” The district court advised Ellis to file a “60–1508 [sic ] motion” in the county where he was incarcerated to determine his jail credit.
Analysis
Ellis contends that the district court erred by failing to grant his motion for jail credit. The State counters that the appeal is moot because Ellis already has completed the incarceration portion of his sentence in the escape from custody case. Alternatively, the State contends that Ellis has failed to designate a record that affirmatively establishes error.
Mootness
As required by Supreme Court Rule 2.042 (2014 Kan. Ct. R. Annot. 18), the State notified this court on August 21, 2014, that Ellis had completed the incarceration portion of his sentence. In support of this fact, the State included documentation from the KDOC's Kansas Adult Supervised Population Electronic Repository (KASPER) showing that Ellis was placed on postrelease supervision on June 3, 2014. In light of this change in custodial status, the State contends Ellis' request for jail credit is moot because the relief he requests—credit against his sentence for the time he served in jail prior to sentencing on that charge—cannot be granted against the postrelease supervision period of his sentence.
Mootness is a doctrine of court policy developed through court precedent; thus, appellate review of the issue is unlimited. State v. Hilton, 295 Kan. 845, 849, 286 P.3d 871 (2012). As a general rule, appellate courts do not decide moot questions or render advisory opinions. The mootness doctrine recognizes that the court's role is to determine real controversies relative to the legal rights of persons and properties that are actually involved in the particular case properly brought before it and to adjudicate those rights so that the determination will be operative, final, and conclusive. State v. Montgomery, 295 Kan. 837, 840, 286 P.3d 866 (2012). Nevertheless, an appeal will not be dismissed as moot unless “it is clearly and convincingly shown the actual controversy has ended, the only judgment that could be entered would be ineffectual for any purpose, and it would not impact any of the parties' rights.” McAlister v. City of Fairway, 289 Kan. 391, 400, 212 P.3d 184 (2009) ; see also Montgomery, 295 Kan. at 840.
In order to find the issue presented in this appeal is moot, we necessarily must accept as accurate the information gleaned by the State from the KASPER website. See K.S.A. 60–409(b)(4) (judicial notice may be taken of specific facts capable of immediate and accurate determination by resort to easily accessible sources of indisputable accuracy); K.SA. 60–412(c) (reviewing court in its discretion may take judicial notice of any matter specified in K.S.A. 60–409 whether or not judicially noticed by district court). But given the disclaimer set forth by the KDOC on the KASPER website, however, we are precluded from taking judicial notice of the fact that Ellis was placed on postrelease supervision on June 3, 2014. Before using the KASPER website, all users are required to first confirm the KDOC's explicit disclaimer that it “assumes no legal liability or responsibility for the accuracy, completeness, or usefulness of any information, product, or process disclosed, nor represents that its use would not infringe on privately owned rights .” See http:// www.dc.state.ks.us/kasper. In this disclaimer, the KDOC explicitly does not guarantee the accuracy of the information contained on the KASPER website. Given the KDOC's disclaimers, information found on the KASPER website could reasonably be the subject of dispute; thus, that information is not subject to judicial notice.
Jail time credit
The right to jail time credit is statutory. State v. Hopkins, 295 Kan. 579, 581, 285 P.3d 1021 (2012). K.S.A.2014 Supp. 21–6615(a) provides in relevant part:
“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.”
With regard to credit for time already served, a defendant is only entitled to credit for the time he or she was held in custody “solely on account of, or as a direct result of, those charges” for which he or she is now being sentenced. State v. Colderon, 233 Kan. 87, 98, 661 P.2d 781 (1983).
Ellis argues he is entitled to 98 days of credit for the time he spent in jail from November 28, 2012, to March 6, 2013, because he was being held during that time period solely on the charge of escape from custody. In support of this argument, Ellis repeatedly references in his brief the existence of a certificate of release from the Board verifying that he was released from the incarceration portion of his sentence and placed on postrelease supervision in his drug-related cases but was not released to the community because of a detainer that was lodged in the escape from custody case. But the document Ellis references was not included in the appellate record. Neither did Ellis provide journal entries from sentencing and revocation of parole in the drug-related cases to establish the amount of jail credit, if any, he received there.
An appellant has the burden to designate a record that affirmatively establishes the claimed error. Without such a record, an appellate court presumes the action of the trial court was proper. State v. Goodson, 281 Kan. 913, 919, 135 P.3d 1116 (2006). Furthermore, Supreme Court Rule 6.02(a)(4) (2014 Kan. Ct. R. Annot. 40) states that an appellant's statement of the facts must be keyed to the record on appeal. “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.” Supreme Court Rule 6.02(a)(4) (2014 Kan. Ct. R. Annot. 41). Without any documentation showing that Ellis did not receive the proper jail credit in the instant case, this court has no choice but to presume that the district court's action was proper.
Affirmed.
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LEBEN, J., concurring.
I agree that Ellis has not shown that he is entitled to jail credit, so he cannot succeed in this appeal on the merits. I express no opinion regarding whether our court can take judicial notice of information reported in the Kansas Adult Supervised Population Electronic Repository, the database available on the Kansas Department of Corrections website. We need not address that issue to rule on this appeal.