Opinion
No. 107,338.
2013-03-15
STATE of Kansas, Appellee, v. Anthony S. SMITH, Appellant.
Appeal from Sedgwick District Court; Warren M. Wilbert, Judge. Carl F.A. Maughan and Catherine A. Zigtema, of Maughan & Maughan LC, of Wichita, 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.
Carl F.A. Maughan and Catherine A. Zigtema, of Maughan & Maughan LC, of Wichita, for appellant. Julie A. Koon, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before LEBEN, P.J., PIERRON and STANDRIDGE, JJ.
MEMORANDUM OPINION
PER CURIAM.
Anthony S. Smith appeals the district court's summary denial of his pro se motion for a sentencing transcript.
Smith pled guilty to aggravated battery in case No. 10CR3198. He committed the crime while on probation in other cases. On May 10, 2011, the district court sentenced him to 18 months' imprisonment, to run consecutive to his sentences in two state cases, Nos. 89CR1814 and 92CR2325, one federal case, and any other pending parole or postrelease cases. After pronouncing Smith's sentence, the judge made the following statements: “Since you have served eight months on this sentence, you only have ten months remaining”; and “He will get full credit for time served. As I said earlier, as he served eight months, he only has approximately ten months left on his sentence.”
The journal entry of judgment states that 0 days of jail time credit were actually awarded, and if Smith was not granted 223 days of jail time credit in his other cases, he should be credited in 10CR3198.
On August 15, 2011, Smith filed a pro se motion for a sentencing transcript. He filed a supporting affidavit on September 13, 2011, in which he claimed the following: “I need a copy of my sentencing transcripts that show that The Hororable [ sic ] Judge Waller grented [ sic ] the 223 days jail credit to me at my sentencing hearing.” Smith also claimed indigency in both filings. Two days later, the State filed a response, arguing that the district court need not supply the transcript because Smith (1) did not explain why he wanted the transcript and (2) was not entitled to a transcript to pursue a postconviction remedy.
The district court denied Smith's motion because “[he did] not state any reason that would require a post-conviction need for transcript.” Smith timely appeals.
Smith argues that the district court should have granted his motion for transcripts based on the information he provided in his affidavit. The State counters that this court lacks jurisdiction because Smith's motion was an unappealable discovery motion or the district court properly denied the motion because Smith did not file a K.S.A. 60–1507 motion.
Issues of statutory interpretation and construction of pro se pleadings are subject to unlimited review on appeal. State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010); see State v. Kelly, 291 Kan. 563, 565, 244 P.3d 639 (2010).
“Pro se pleadings are liberally construed, giving effect to the pleading's content rather than the labels and forms used to articulate the defendant's arguments.” Kelly, 291 Kan. at 565. Smith's motion and affidavit revealed that the real issue was not whether he was entitled to a copy of his sentencing transcript, but whether he received the jail time credit he was granted at sentencing. Therefore, the district court should have treated his motion for transcripts as one for jail time credit.
The right to jail time credit is statutory. State v. Hopkins, 295 Kan. 579, 581, 285 P.3d 1021 (2012). Jail time credit must be determined by the district court and included in the journal entry at the time of sentencing. State v. Theis, 262 Kan. 4, 7, 936 P.2d 710 (1997). Typically, a defendant confined pending his conviction and sentencing may receive credit for time served in confinement. This general rule is set out in K.S.A. 21–4614, which states:
“In any criminal action in which the defendant is convicted upon a plea of guilty ..., 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.”
Here, the district court clearly granted Smith 8 months of jail time credit for the time he served between his arrest and sentencing for aggravated battery. The journal entry of judgment erroneously states that Smith was granted no jail time credit and notes that he should be granted 223 days of credit if he was not granted the credit in his other cases. Smith obviously filed his pro se motion out of concern that he had not received the credit he was granted at sentencing. In this situation, the State should be required to present evidence that granting Smith jail time credit in this case would result in a duplication. See State v. Heil, No. 106,578, 2012 WL 5392115, at *3–4 (Kan.App.2012) (unpublished opinion) (reversing denial of motion for jail time credit because State failed to present evidence that defendant received credit in another case).
The district court erred by denying Smith's pro se motion for transcripts. Due to the inconsistency between the sentencing transcript and the journal entry, this case is reversed and remanded for factual findings regarding Smith's jail time credit.
Reversed and remanded with directions.