Opinion
No. 106,058.
2012-08-3
Ricky J. STEELE, Appellant, v. STATE of Kansas, Appellee.
Appeal from Sedgwick District Court; Anthony J. Powell, Judge. Janine Cox, of Kansas Appellate Defender Office, for appellant. Matt J. Moloney, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Anthony J. Powell, Judge.
Janine Cox, of Kansas Appellate Defender Office, for appellant. Matt J. Moloney, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before HILL, P.J., PIERRON and LEBEN, JJ.
MEMORANDUM OPINION
PER CURIAM.
Ricky J. Steele appeals the district court's denial of his K.S.A. 60–1507 petition without an evidentiary hearing, which, he argues, was necessary to determine whether the district court previously miscalculated his jail credit. We affirm.
The State filed two separate complaints against Steele, alleging that he drove a motor vehicle in 2006 under the influence of drugs or alcohol (DUI), and that he committed five acts of identity theft in 2008. On April 21, 2009, Steele pled guilty to all charges alleged in the complaints, and the district court accepted his plea.
The district court sentenced Steele on October 21, 2009, and credited him for time already spent in jail. For his DUI conviction, he received 27 days of credit for his detention at the Sedgwick County jail. For his identity theft convictions, Steele received 25 days of credit for his detention at the same jail. These dates are listed in chronological order: November 16 to 17, 2006 (2 days), for the DUI conviction; March 11 to 12, 2008 (2 days), for the DUI conviction; October 16 to November 9, 2008 (25 days), for the identity theft convictions; and March 30 to April 21, 2009 (23 days), for the DUI conviction.
The district court sentenced Steele to 18 months of probation with an underlying 27–month sentence, composed of 15 months in prison for the identity theft convictions and 12 months in county jail for the DUI conviction. The DUI sentence would run consecutive to the identity theft sentences, which would run concurrent with each other. As a condition of his probation, Steele had to spend 180 days in confinement, comprising 2 days in jail followed by 178 days of house arrest.
On February 24, 2010, Steele admitted he had violated his probation order. Consequently, the district court revoked and reinstated his probation order. But on July 28, 2010, Steele admitted to committing a host of new probation violations, and the court revoked his probation and ordered him to serve his underlying sentence. Afterward, Steele's defense counsel asked the court about jail credit:
“[DEFENSE COUNSEL]; “Your Honor, I'm not familiar with this case, but Mr. Steele has indicated he spent some time on house arrest—and I'm also not familiar with the Fresh Start Program, but I think it might be inpatient or residential. And he's asking if he can be given credit for that.
“THE COURT: “Well, on the house arrest [for the DUI conviction] ... he was given ... 170 days house arrest and 48 hours in confinement, so he'll get credit for that. As far as the Fresh Start Program goes, I have no way of determining whether or not it's acceptable for consideration as jail time or not. If you can
“[DEFENSE COUNSEL]: “Can we leave that issue open and I'll let [the other defense attorney] address it? Because I don't know anything about it either.
“[PROSECUTOR]: “Judge, I am objecting to the house arrest counting as jail credit. There's case law that house arrest does not count as jail credit.
“THE COURT: “Well, he'll get jail credit for whatever the law allows. We'll just leave it that way.”
The district court issued two journal entries of sentencing. In the journal entry pertaining to the identity theft convictions, the court denied Steele's request for 76 days of jail credit stemming from the following dates: October 24 to 27, 2009 (4 days); January 28 to March 25, 2010 (57 days); and July 14 to 28, 2010 (15 days). But in the DUI journal entry, the court credited Steele for the full 76 days.
Steele then filed two pro se motions. His first motion requested a show of cause and evidentiary hearing, claiming he spent 2 more days in jail than ordered by the district court in October 2009. More importantly, Steele filed a second motion that requested a correction to his jail credit and sentence. This motion included an excerpt of a journal entry for a Butler County conviction in which Steele was sentenced to 18 months of probation and awarded 114 days of jail credit for time served from November 30, 2008, to March 23, 2009. Steele argued the Butler County and Sedgwick County convictions should have run concurrent with each other.
The record confirms Steele had pled guilty in Butler County on February 10, 2009, to one count of forgery committed while on felony bond. He spent 114 days in jail there, beginning the day after he committed the offense and ending on the day of his sentencing hearing. Also, Steele's presentence investigation report for his Sedgwick County cases made note of the forgery conviction.
In response to the first motion, the State correctly observed the Sedgwick County District Court properly credited Steele for the 4 days he served in county jail from October 24 to 27, 2009. In response to the second motion, the State argued that Steele was not entitled to duplicate credit in Sedgwick County for the 114 days he served in the Butler County jail. The district court thus denied both of Steele's motions and adopted the State's responsive motion to serve as the court's findings.
Steele did not directly appeal these findings. Instead, he filed three more pro se motions on three consecutive days. The third motion, dated October 13, 2010, does not appear in the record submitted for appellate review. The fourth motion essentially argued the district court erred by revoking his probation and ordering him to serve his underlying sentence because he had endured various personal hardships and was not a threat to society. The fifth and final motion reiterated much of second motion already rejected by the court, in that Steele believed he should have received jail credit in Sedgwick County for the 114 days spent in confinement in Butler County.
In response, the State observed that Steele's new motions essentially asked the district court to reconsider its decisions denying the first two motions. The district court rejected Steele's new motions and based its decision on the State's responsive pleading.
Steele then filed a K.S.A. 60–1507 motion on January 7, 2011, within the 1–year time limit required by the statute. The district court, however, denied the petition: “[Defendant] merely restates his claims from his underlying criminal case which were denied. His remedy was to appeal, and since he apparently did not do so, his claims are waived. Therefore Mr. Steele's petition is denied.” (Emphasis added.) We presume from the context, the court meant the claims were successive and were, therefore, waived. Steele filed a timely notice of appeal to this ruling.
In Lujan v. State, 270 Kan. 163, Syl. ¶ 3, 14 P.3d 424 (2000), the Kansas Supreme Court articulated the three different approaches that a district court can employ when faced with a K.S.A. 60–1507 motion:
“ First, it may determine that the motion, files, and records of the case conclusively show that the petitioner is entitled to no relief, in which case it will summarily deny the petitioner's motion . Second, the court may determine from the motion, files, and record that a substantial issue or issues are presented, requiring a full evidentiary hearing with the presence of the petitioner. Third, the court may determine that a potentially substantial issue or issues of fact are raised in the motion, supported by the files and record, and hold a preliminary hearing after the appointment of counsel to determine whether in fact the issues in the motion are substantial.” (Emphasis added.)
See also Trotter v. State, 288 Kan. 112, 132, 200 P.3d 1236 (2009); K.S.A. 60–1507(b),
Additionally, when a district court denies relief under K.S.A. 60–1507 based solely on counsel's legal arguments at a nonevidentiary hearing and the court's review of the files and record of the case, the appellate court is in as good of a position as the district court to consider the merits. Barr v. State, 287 Kan. 190, 196, 196 P.3d 357 (2008). Therefore, appellate review is de novo. 287 Kan. at 196.
Steele argues the district court erred by not holding an evidentiary hearing to resolve whether he should have received credit in Sedgwick County for the 114 days he spent at the Butler County jail. He largely cites the court's colloquy with him at his final probation revocation hearing as evidence of this assertion. Accordingly, the State's arguments are discussed below.
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.’ “ (Emphasis added.) State v. Denney, 278 Kan. 643, 648, 101 P.3d 1257 (2004).
In the present case, the record strongly suggests Steele received proper credit for all time spent in Butler and Sedgwick County jails. Most importantly, the Butler County District Court journal entry of sentencing shows the district court awarded Steele 114 days of jail credit applicable to his forgery conviction, beginning the day after he committed the forgery and ending the day of his sentencing hearing. Moreover, Steele's sentencing hearing and release from the Butler County jail occurred on the exact same date, March 23, 2009—7 days before he was detained in Sedgwick County for the third and final time concerning his DUI charge.
Steele's sole piece of evidence to the contrary is the Sedgwick County District Court's statement at the end of Steele's final probation revocation hearing, “Well, he'll get jail credit for whatever the law allows. We'll just leave it that way.” But this statement had nothing to do with the Butler County jail credit because Steele never hinted at that issue during the hearing. Rather, Steele sought jail credit solely for time spent at the Fresh Start program. Additionally, the court's journal entries of sentencing show that Steele received credit as far back as 2006 for time spent in jail, thus suggesting the court did not overlook the jail credit issue. Likewise, his presentence investigation report also accounts for his Butler County conviction. Furthermore, the court found no error after reviewing the Butler County journal entry following Steele's first two pro se challenges to his sentence in the wake of his probation revocation. Therefore, because the record conclusively shows Steele is not entitled to relief, the district court did not err by denying his request for an evidentiary hearing. See Trotter, 288 Kan. at 132.
Steele also challenges the district court's ruling that his K.S.A. 60–1507 motion was waived because it was successive. Moreover, he argues, even if the motion was successive, exceptional circumstances would require the court to review his motion.
K.S.A. 60–1507(c) states, “The sentencing court shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner.” (Emphasis added.) Unless the movant has shown the existence of exceptional circumstances, the district court can dismiss a second or successive motion on the basis that it is an abuse of remedy. State v. Kelly, 291 Kan. 868, 872, 248 P.3d 1282 (2011). “ ‘Exceptional circumstances are unusual events or intervening changes in the law which prevent a movant from reasonably being able to raise all of the trial errors in the first postconviction proceeding.’ [Citation omitted.]” Woodberry v. State, 33 Kan.App.2d 171, 175, 101 P.3d 727,rev. denied 278 Kan. 853 (2004).
Steele argues exceptional circumstances exist here because the district court failed to determine his jail credit. The State, however, turns its attention to the district court's use of the term “waived” in its summary denial of Steele's K.S.A. 60–1507 petition. Thus, the State argues the court really meant to say the doctrine of res judicata—more specifically, collateral estoppel—effectively prohibits Steele from relitigating the jail credit issue. As a corollary to this argument, the State suggests Steele should have directly appealed the district court's initial finding that he was not entitled to the 114 days of jail credit.
In State v. Chatagnier, 27 Kan.App.2d 307, 310, 3 P.3d 586,rev. denied 269 Kan. 935 (2000), this court observed:
“ “ ‘The doctrine of collateral estoppel may be invoked as a bar to litigating an issue when the following is shown: (1) a prior judgment on the merits which determined the rights and liabilities of the parties on the issue based upon ultimate facts as disclosed by the pleadings and judgment, (2) the parties must be the same or in privity therein and (3) the issue litigated must have been determined and necessary to support the judgment.’ “ [Citation omitted.]” 27 Kan.App.2d at 310.
All three of these factors have been satisfied in the present case and, therefore, collateral estoppel effectively precludes Steele from relitigating the jail credit issue. First, the district court reached a prior final judgment on the merits when it determined Steele's second pro se motion had no merit because the record showed Butler County properly credited Steele for time spent in jail there for forgery. Second, the parties—Steele and the State—have remained the same throughout the proceedings. Third, the previously litigated jail credit issue was necessary, if not determinative, to the court's ruling against Steele's second pro se motion. Steele then relitigated the same issue before the court in both his subsequent pro se motions—particularly the fifth—and in his K.S.A. 60–1507 petition. Consequently, collateral estoppel precludes Steele from arguing the same issue again before this court. See Collins v. State, No. 99,462, 2009 WL 196194, at *3–4 (Kan . App.2009) (unpublished opinion), rev. denied 289 Kan. 1277 (2009) (collateral estoppel precluded review of defendant's challenge to his sentence that was previously litigated on a motion to correct an illegal sentence, then on a motion to reconsider, then on a K.S.A. 60–1507 petition again raising the same challenge to his sentence).
Ultimately, the district court did not err by summarily denying Steele's K.S.A. 60–1507 petition, because the facts conclusively show he is not entitled to relief and the doctrine of collateral estoppel precludes him from relitigating his challenge to his jail credit.
Affirmed.