Opinion
No. 107,497.
2013-04-26
STATE of Kansas, Appellee, v. Mark E. HANEY, Appellant.
Appeal from Sedgwick District Court; Douglas R. Roth, Judge. Heather Cessna, of Kansas Appellate Defender Office, for appellant. Boyd K. Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Douglas R. Roth, Judge.
Heather Cessna, of Kansas Appellate Defender Office, for appellant. Boyd K. Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before PIERRON, P.J., BRUNS and POWELL, JJ.
MEMORANDUM OPINION
PER CURIAM.
After revoking Mark E. Haney's probation, the district court denied his pro se request for jail credit for time he spent on probation. He argues there is insufficient evidence in the record to determine whether he was in a residential facility at the time and the case should be remanded to the district court for factual findings on the issue and an evidentiary hearing if necessary. We agree and remand for additional findings.
Haney pled guilty to aggravated burglary and attempted theft. At a sentencing hearing on April 14, 2010, the district court “recessed” the proceedings and released Haney on bond for direct placement into a treatment program. This was Haney's opportunity to prove to the court that he was entitled to a probation departure sentence.
The district court reconvened Haney's sentencing hearing on June 9, 2010. The court learned that Haney had successfully completed the residential program at Options Adult Services (Options) and Options recommended that he enter their reintegration program. The court sentenced Haney to a total of 60 months' incarceration and then granted a dispositional departure to 36 months' community corrections probation. Haney's probation conditions included reporting to his intensive supervision officer (ISO) as directed and successfully completing the reintegration drug/alcohol treatment program at Options.
Four months into his probation, Haney failed to report to his ISO and was discharged from the Options reintegration drug and alcohol treatment program for not successfully completing the program. His whereabouts were unknown. At his probation revocation hearing on October 25, 2010, Haney admitted to the violations of his probation. Consequently, the district court revoked Haney's probation and ordered him to serve the original 60–month sentence. Haney received 120 days jail credit: 100 days from February 4, 2010, to May 14, 2010, and 20 days from October 6, 2010, to October 25, 2010.
On September 8, 2011, Haney filed a pro se motion for additional jail credit. He argued that he should receive jail credit for October 6, 2010, to November 8, 2010. He also argued that he should receive credit from May 15, 2010, to September 24, 2010, for the time that he was ordered to be in the Options reintegration program. The district court partially granted Haney's motion. The court granted jail credit for the court-ordered inpatient substance abuse treatment from May 15, 2010, to June 10, 2010. However, the court denied jail credit for the time Haney was on probation from June 11, 2010, to September 14, 2010, because the reintegration did not “qualify under statute or caselaw.” Haney appeals the denial of full jail credit.
The right to jail time credit is statutory. State v. Theis, 262 Kan. 4, 7, 936 P.2d 710 (1997). K.S.A. 21–4614a governs jail credit for time spent in a residential facility. Interpretation of a statute is a question of law over which this court has unlimited review. See State v. Storey, 286 Kan. 7, 9–10, 179 P.3d 1137 (2008). The general rule for jail time credit, as set out at K.S.A. 21–4614a(a), states in relevant part:
“In any criminal action in which probation, assignment to a conservation camp or assignment to community corrections is revoked and the defendant is sentenced to confinement, for the purpose of computing the defendant's sentence and parole eligibility and conditional release dates, the defendant's sentence is to be 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. Such 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.)
The term “residential facility” is not defined in our statutes. However, previous caselaw provides some guidance on whether a facility qualifies as a residential facility under K.S.A. 21–4614a. See State v. Brown, 38 Kan.App.2d 490, 492–94, 167 P.3d 367 (2007); State v. Taylor, 27 Kan.App.2d 539, 542–43, 6 P.3d 441 (2000).
In Brown, Brown was ordered to stay at a halfway house for 1 year. While there, he was to complete cognitive behavioral therapy, attend Alcoholics Anonymous meetings daily, perform community service, and maintain full-time employment. If he failed to maintain employment, he was required to do more community service work. Furthermore, Brown was required to go to school and obtain a high school diploma or GED. Brown was subject to arrest if he left the facility without permission.
In determining whether the halfway house in Brown qualified as a residential facility, the court cited Taylor and found that an inpatient reintegration program qualified as a residential facility because participating offenders were required to maintain full-time employment, attend weekly individual and group counseling, and perform community service. Comparing the facts in Brown with those in Taylor, the Brown court found that the orders imposed on Brown were more restrictive than those imposed on Taylor, and the halfway house where Brown stayed qualified as a residential facility. Therefore, the time Brown spent in the halfway house qualified for jail time credit. 38 Kan.App.2d at 493.
In Brown, the court considered the facility's “rehabilitative component,” such as required therapy, education, and employment, as well as the “degree of liberty” granted to the offender. 38 Kan.App.2d at 493–94. The court noted that “[t]ime spent in the more restrictive facility should be given credit.” 38 Kan.App.2d at 494.
The critical inquiry in this case is whether there is sufficient evidence in the record on appeal to determine if Haney was actually living at Options or just attending the reintegration program there, and what were his obligations and restrictions. We are without sufficient findings to answer those questions here.
Haney states that Kansas Supreme Court Rule 165(a) (Kan.Ct. R. Annot.262) requires the district court to state the controlling facts and caselaw for its decision. See State v. Seward, 289 Kan. 715, 719–20, 217 P.3d 443 (2009). However, our courts have also recognized that a litigant who fails to object to inadequate Rule 165 findings and conclusions in the district court is foreclosed from making an appellate argument that would depend upon what is missing. See Blair Constr., Inc. v. McBeth, 273 Kan. 679, 688, 44 P.3d 1244 (2002). This rule applies equally to pro se litigants. See Guillory v. State, 285 Kan. 223, 229, 170 P.3d 403 (2007) (a pro se K.S.A. 60–1507 movant is in the same position as all other pro se civil litigants and is required to be aware of and follow the rules of procedure that apply to all civil litigants, pro se or represented by counsel). These competing obligations ultimately give way to a determination of whether the district court's findings impede our review.
In denying Haney credit, the district court held “credit denied for reintegration from 6–11–10 to 9–14–10—does not qualify under statute or caselaw.” The question is whether there is substantial competent evidence to support the district court's finding. The evidence in the record is confusing at best as to Haney's involvement at Options from June 11, 2010, through September 14, 2010, as demonstrated by portions of the sentencing and probation revocation hearings.
At Haney's sentencing hearing on June 9, 2010, the prosecutor inquired of the district court, “Your, Honor I just want to be clear, is the Court granting the defendant's request to do the aftercare at Options as opposed to the residential facility?” The court replied, “Yes.” The prosecutor had one additional question, “Is the Court making the specific finding that the Options program is in lieu of the residential program so that should in the unfortunate instance that we may be back here again on a violation, we don't need to go through the residential path?” The court again replied in the affirmative. It is unclear from these comments by the prosecutor whether Haney was a resident at Options since the prosecutor was arguing that residential should not be an option later.
At Haney's probation revocation hearing on October 25, 2010, the prosecutor commented, “The defendant—the Court gave the defendant a chance with Options instead of Residential. If the Court recalls, back on his sentencing date in June, we were requesting that the Residential not be considered. The Options reintegration served as that program.” However, defense counsel in commenting as to the successes of Haney's probation stated, “Second of all, he's had an apartment here in Wichita where he's maintained stable residence.” Yet, defense counsel also stated, “If you don't decide to reinstate back to Community Corrections, we would ask for Residential, being as that is a good program, before him being sent back to prison.”
Haney also testified at the revocation hearing as to his situation, “The folks that I've been there [Options] with for four months were released and were going to Oxford House. That's what I wanted to do, was try to get into Oxford House, to continue around stable, sober people. And that's what I know I need to do.” It appears Haney had an apartment, but that Options was the alternative to residential placement.
A reversal and remand for further findings of fact and conclusions of law is only necessary when the “court's approach ... impedes appellate review.” State v. Moncla, 269 Kan. 61, 65, 4 P.3d 618 (2000). We find that to be the case here. We have examined the record, motions, and Haney's allegations concerning jail time credit. We are unable to determine Haney's status at Options from June 11, 2010, through September 14, 2010.
We reverse and remand for additional findings pursuant to this opinion.