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State v. Muldrow

Court of Appeals of Kansas.
Mar 15, 2013
296 P.3d 1141 (Kan. Ct. App. 2013)

Opinion

No. 107,291.

2013-03-15

STATE of Kansas, Appellee, v. James L. MULDROW, Appellant.

Appeal from Sedgwick District Court; James R. Fleetwood, Judge. Karey A. Kaul, of Kansas Appellate Defender Office, for appellant. Julie A. Koon, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.


Appeal from Sedgwick District Court; James R. Fleetwood, Judge.
Karey A. Kaul, of Kansas Appellate Defender Office, for appellant. Julie A. Koon, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before HILL, P.J., ATCHESON and ARNOLD–BURGER, JJ.

MEMORANDUM OPINION


PER CURIAM.

James L. Muldrow appeals the district court's denial of his pro se motion for jail time credit. Because we find that we lack jurisdiction to consider his claim, we are required to dismiss his appeal.

Factual and Procedural History

The facts are not in dispute. Muldrow was arrested for possession of cocaine and criminal deprivation of a motor vehicle on March 5, 2009. He entered a plea of guilty and remained in the Sedgwick County jail until he was sentenced on October 29, 2009, or 239 days later. At the time of this offense, Muldrow was on parole on a prior possession of cocaine in case No. 01 CR 1449. The current offense was presumptive prison, with a mid-range sentence of 30 months in prison. Muldrow filed a motion for dispositional departure to probation, to which the State agreed. At sentencing, when explaining the reason for the departure request, Muldrow's attorney noted that Muldrow had been on parole at the time of the offense and because of this offense his parole had been revoked. He went on to explain:

“So he has, by his calculation, approximately nine months to go back and serve on that sentence. So he wanted probation on this case. But we were at a loss as to how we could put him on probation when ... he had his parole revoked and he was going to have his sentenced served on the other case.

“So we arrived at a compromise. The normal period of probation presumed for this type of offense is 12 months. We are agreeing to recommend to the Court that the Court place him on probation but make that term 24 months instead of 12 months; understanding, that once we get done here, Mr. Muldrow is not getting out; he's gonna be taken by the Secretary of Corrections to the Department, and he's gonna serve the balance of his sentence; approximately nine months.

“And then, when he gets out, he won't be on any post-release on that, because that's basically what he's doing. He'll have flattened that sentence, and he will have approximately 15 months left of this 24 months probation which in fact exceeds the presumptive expected term of probation on this charge, and he would be given a chance on probation on this charge.”

The State agreed that a dispositional departure was appropriate. The departure motion was granted, and Muldrow was sentenced to 24 months of probation with a 30–month underlying prison term and a 12–month county jail term. He was ordered to report for probation intake after his release from prison.

The district judge inquired whether the State had a calculation for the amount of time Muldrow had served on the present case, so he could apply the jail time credit. The State replied that it did not have such a calculation, “[b]ut, if he's being held on the parole hold, it would all apply to that.” Neither Muldrow nor his attorney objected to this comment. The judge replied, “That's true. Okay.” The sentencing journal entry noted that he was not to be awarded credit for the 239 days he had been in since his arrest on this charge. His sentence was ordered to run consecutive to the prior possession of cocaine charge, for which he had been on parole.

The record does not reflect when Muldrow was released from prison, but in early April 2010, 5 months after his sentencing on this case, the court issued its first warrant to revoke his probation which alleged probation violations beginning in early March 2010. Although those particular allegations did not result in Muldrow's probation being revoked, in November 2010, Muldrow was found to have violated the terms of his probation and the district court ordered him to serve his underlying sentence of 30 months. The journal entry of probation violation hearing again noted that Muldrow was not given credit for the 239 days he spent in custody between his initial arrest and sentencing.

Approximately 3 months later, Muldrow filed a pro se motion for jail time credit arguing that he was denied 239 days of credit for the time he spent in jail on this case. In the State's response opposing Muldrow's motion, it stated “[r]ecords indicate that while defendant was in jail from 3/5/09 to 10/9/09 the KDOC credited that time towards the sentence in 01 CR 1449. Because the instant case was ordered to run consecutively to 01 CR 1449, defendant was not entitled to duplicate credit in the instance case.” The district court denied Muldrow's motion without a hearing. Muldrow appeals.

Analysis

The sole issue in this case involves the application of jail credit. But before we reach this issue we must determine whether we have jurisdiction over Muldrow's claim. This court has unlimited review when determining whether jurisdiction exists over an appeal. State v. Ellmaker, 289 Kan. 1132, 1147, 221 P.3d 1105 (2009), cert. denied130 S.Ct. 3410 (2010).

The district court, in its journal entry of sentencing determined that Muldrow was to receive no credit for any time he spent in jail while his case was pending, the 239 days previously mentioned. Moreover, at Muldrow's final probation revocation hearing, the district court again determined that he would not receive jail credit for the 239 days. Muldrow filed his pro se motion for jail credit nearly 3 months after his probation was revoked.

But at the time of his sentencing, Muldrow had only 10 days from judgment to file a notice of appeal. K.S.A. 22–3608(c). The filing of a timely notice of appeal is jurisdictional. State v. Hemphill, 286 Kan. 583, 588, 186 P.3d 777 (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).

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) (Under the mandatory provisions of K.S.A. 21–4614, a defendant who is sentenced to incarceration must be “ ‘given credit for all time spent in custody solely on the charge for which he is being sentenced.’ ”). Accordingly, Muldrow should have challenged the district court's calculation within the required 10 days.

That being said, in the past, this court has routinely addressed motions for jail credit as either motions to correct an illegal sentence or motions filed under K.S.A. 60–1507. See State v. Dunbar, No. 101,919, 2010 WL 2044939, at *2 (Kan.App.2010) (unpublished opinion), rev. denied 290 Kan. 1097 (2010). As such, even untimely motions for jail credit could be reviewed by this court.

But our court soon recognized that based on our Supreme Court's decision in State v. Lofton, 272 Kan. 216, 217, 32 P.3d 711 (2001), when a defendant is merely attacking the district court's computation of jail time credit, this does not constitute a claim of an illegal sentence. A panel of this court recently addressed a virtually identical set of facts in State v. Olson, No.102,226, 2010 WL 2978044, at *2 (Kan.App.2010) (unpublished opinion). Olson was not given the jail credit to which he felt he was entitled at sentencing. However, he did not appeal the sentencing order. After his probation was revoked, he raised the same jail credit issue. The district court found that his claim was untimely because he had not appealed the jail credit issue at the time of sentencing. A panel of this court affirmed, finding that Olson should have appealed within 10 days of his original sentence and failure to do so divested the district court and the appellate court of jurisdiction over his claim. 2010 WL 2978044, at *3.

In his motion for jail credit, Muldrow merely argues that he should have received 239 days of credit. Because Muldrow's motion only questions the district court's computation of jail time credit and never insists that his sentence was illegal, then we cannot interpret Muldrow's motion as a motion to correct an illegal sentence.

The second alternative for this court to review Muldrow's motion is to deem it a motion filed under K.S.A. 60–1507. However, the above analysis pertaining to a motion to correct an illegal sentence also applies in this scenario. Muldrow's assertions do not fall within the confines contemplated by K.S.A. 60–1507 as an illegal or unconstitutional sentence. See State v. Chambers, No. 100,493, 2009 WL 2436683 (Kan.App.2009) (unpublished opinion), rev. denied 289 Kan. 1281 (2010). Therefore, because Muldrow does not challenge the legality or constitutionality of his sentence, this court cannot interpret Muldrow's motion for jail credit as a motion filed under K.S.A. 60–1507.

In sum, regardless of which theory is used, we lack jurisdiction over this case.

Appeal dismissed.


Summaries of

State v. Muldrow

Court of Appeals of Kansas.
Mar 15, 2013
296 P.3d 1141 (Kan. Ct. App. 2013)
Case details for

State v. Muldrow

Case Details

Full title:STATE of Kansas, Appellee, v. James L. MULDROW, Appellant.

Court:Court of Appeals of Kansas.

Date published: Mar 15, 2013

Citations

296 P.3d 1141 (Kan. Ct. App. 2013)

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