Opinion
No. 107,875.
2013-05-17
STATE of Kansas, Appellee, v. Lionel A. SAULS, Appellant.
Appeal from Sedgwick District Court; Warren M. Wilbert, Judge. Joanna Labistida, 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; Warren M. Wilbert, Judge.
Joanna Labistida, 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., PIERRON and SCHROEDER, JJ.
MEMORANDUM OPINION
PIERRON, J.
Lionel A. Sauls appeals the district court's decision denying his motion to correct an illegal sentence based on jail time credit. We reverse and remand.
In No. 10CR98, Sauls pled guilty to criminal threat, misdemeanor criminal restraint, and misdemeanor battery. On January 12, 2011, the district court sentenced Sauls to a controlling term of 16 months' incarceration. The court ordered Sauls' sentence to run consecutive to the sentence in No. 92CR417 for which he was on parole when he committed the crimes in No. 10CR98. The court found Sauls was in the county jail from January 7, 2010, to January 11, 2010, and from January 21, 2010, to January 12, 2011, for a total of 362 days. However, the court denied Sauls any jail credit as applied against his sentence in 10CR98.
On April 28, 2011, Sauls filed a pro se motion for jail credit requesting the district court award him jail credit in No. 10CR98 for the 362 days he spent in jail awaiting disposition of No. 10CR98. The State responded that Sauls was not being held solely in custody for No. 10CR98 and he was under a Kansas Department of Corrections (KDOC) hold for No. 92CR417 when he was in jail. The court denied Sauls' motion stating, “Defendant was also being held on 92CR417 under a KDOC hold.”
Unsatisfied with the district court's holding, Sauls filed a motion to correct an illegal sentence pursuant to K.S.A. 22–3504. He claimed to be in jail at the time solely on the charges in No. 10CR98 until he was sentenced on January 12, 2011. He contends his parole was not revoked in No. 92CR417 until March 4, 2011, at a hearing at the prison. He argued he was not requesting jail time credit in No. 92CR417, only in No. 10CR98. The district court again denied Sauls' motion, stating, “[Defendant] was being held on a KDOC hold for which the case was ordered to run consecutive to the revocation.” Sauls appeals.
The parties essentially contend the other party failed in its burden of proof. Sauls contends the district court previously held he was under a KDOC hold for No. 92CR417, but the State failed to produce any journal entries or other evidence that any jail time credit had been awarded to Sauls in No. 92CR417. Sauls cites Wooderson v. Ortho Pharmaceutical Corp., 235 Kan. 387, 412, 681 P.2d 1038 (1984), cert. denied469 U.S. 965, where the court stated: “This follows the general rule that the burden of proof is upon the party asserting the affirmative of an issue.” On the other hand, the State argues Sauls has failed to designate a record showing he is entitled to the jail credit he seeks and consequently has failed in his burden to designate a record that affirmatively shows prejudicial error. See State v. Goodson, 281 Kan. 913, 919, 135 P.3d 1116 (2006). The State argues the record shows Sauls was being held on a parole hold in No. 92CR417 during the time in question and not solely on the charges in No. 10CR98.
Pursuant to K.S.A. 21–4614, a sentencing court is required to give a defendant credit for the time the defendant “spent incarcerated pending the disposition of the defendant's case.” This statutory language has been interpreted to mean that 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.’ “ (Emphasis added.) State v. Denney, 278 Kan. 643, 648, 101 P.3d 1257 (2004). Interpreting the statutory provisions of K.S.A. 21–4614 certainly involves an unlimited review. State v. Prebble, 37 Kan.App.2d 327, 328, 152 P.3d 1245 (2007) (statutory interpretation is a legal question over which the appellate court's review is unlimited). However, resolution of the issue before us involves a finding of fact and conclusions of law standard of review.
The district court made a factual finding that Sauls was “being held on 92CR417 under a KDOC hold.” Appellate courts do not make factual findings but review those made by district courts. See State v. Seward, 289 Kan. 715, 720, 217 P.3d 443 (2009). Under the findings of fact and conclusions of law standard of review, the appellate court must determine whether substantial competent evidence supports the district court's findings of fact and whether those findings are sufficient to support the district court's conclusions of law. The district court's ultimate conclusions of law are reviewed de novo. See Bellamy v. State, 285 Kan. 346, 354, 172 P.3d 10 (2007).
The only evidence we are able to glean from the appellate record is that a felony pickup order was issued for Sauls' arrest on January 5, 2010, pursuant to the charges in 10CR98. Sauls was arrested on January 7, 2010, when he arrived for a meeting with his parole officer. Sauls had his first appearance on January 11, 2010, at which time his preliminary hearing was set for January 25, 2010, and he could be released from custody upon execution of a $100,000 appearance bond. However, it is undisputed that Sauls was on parole at the time he committed the crimes in the present case.
We find there is no evidence in the appellate record to support the State's position. The only evidence presented by the State as to Sauls' status while in the county jail is an unsupported statement in the State's response that Sauls was under a KDOC hold for No. 92CR417 during the relevant time. The district court adopted this fact, but there is no evidence of any hold order by the KDOC in the record. Sauls argues in his motions that his parole was not revoked until March 4, 2011, after the jail time in question. We are further perplexed by the fact that Sauls was apparently released on bond on January 11, 2010 (as supported by the court's journal entry that Sauls was not in custody from January 12, 2010, to January 20, 2010), which would be contrary to the KDOC having a hold order in place.
We reverse and remand to the district court for further evidentiary findings regarding the State's position that Sauls was under a KDOC hold during the time period from January 7, 2010 to January 11, 2010, and from January 21, 2010, to January 12, 2011. If the State is unable to provide evidentiary support for the KDOC hold, Sauls is entitled to 362 days jail time credit in No. 10CR98.
Reversed and remanded with directions.