Opinion
No. 108,428.
2013-06-7
Nathaniel TURNER III, Appellant, v. David McKUNE, et al., Appellees.
Appeal from Leavenworth District Court; Dan K. Wiley, Judge. Michael G. Highland, of Bonner Springs, and Rhonda L. Levinson of Levinson & Levinson, P.A., of Basehor, for appellant. Matthew J. Donnelly, of Lansing, for appellees.
Appeal from Leavenworth District Court; Dan K. Wiley, Judge.
Michael G. Highland, of Bonner Springs, and Rhonda L. Levinson of Levinson & Levinson, P.A., of Basehor, for appellant. Matthew J. Donnelly, of Lansing, for appellees.
Before BUSER, P.J., McANANY and POWELL, JJ.
MEMORANDUM OPINION
PER CURIAM.
Nathanial Turner III appeals the district court's denial of his petition under K.S.A. 60–1501. Turner is currently serving his lengthy sentence for eight felony convictions, among which are convictions for rape and criminal sodomy. He argues that the Kansas Department of Corrections (KDOC) incorrectly calculated his parole eligibility date and that the district court incorrectly applied Anderson v. Bruce, 274 Kan. 37, 50 P.3d 1 (2002), to deny his petition. We disagree and affirm the district court.
Factual and Procedural History
The district court sentenced Turner in three different cases on September 21, 1992. In the first case, 92 CR 11, Turner received concurrent sentences of 5–20 years for one count of robbery and one count of aggravated robbery. In the second case, 92 CR 16, Turner received four consecutive terms of 15 years to life for one count of rape, one count of criminal sodomy, and two counts of aggravated robbery. In the third case, 92 CR 90, the court ordered 5 to 20 years for one count of robbery to run concurrently with a sentence of 15 to life for one count of aggravated robbery. The sentences in each case were to be served consecutively with the sentences in the other two cases.
KDOC calculated Turner's aggregate sentence as 80 years to life with parole eligibility due to good time served after 40 years. Turner exhausted his administrative remedies alleging that the KDOC impermissibly aggregated his sentences and that he was entitled to a conditional release date. Turner then filed this case under K.S.A. 60–1501, and the district court denied Turner's petition.
Turner timely appeals.
Did The District Court Correctly Deny Turner's Petition for Writ of Habeas Corpus?
Standard of Review
“Interpretation of a statute is a question of law over which appellate courts exercise unlimited review. [Citation omitted.] Additionally, in cases involving habeas corpus relief pursuant to [K .S.A. 60–1501], an appellate court's review of the district court's conclusions of law is unlimited. [Citation omitted.]” Cooper v. Werholtz, 277 Kan. 250,252, 83 P.3d 1212 (2004). Analysis Statutory Interpretation of K.S.A.1991 Supp. 22–3717(c) for Parole Eligibility
Turner argues that the KDOC incorrectly used K.S.A.1991 Supp. 22–3717(c) in calculating his parole eligibility. K.S.A.1991 Supp. 22–3717 governs eligibility, required notices, and hearings for parole or postrelease supervision. K.S.A.1991 Supp. 22–3717(c) states:
“(c) Except as provided in subsection (d), if an inmate is sentenced to imprisonment for more than one crime and the sentences run consecutively, the inmate shall be eligible for parole after serving the total of:
(1) The aggregate minimum sentences, as determined pursuant to K .S.A. 21–4608 and amendments thereto, less good time credits for those crimes which are not class A felonies; and
(2) an additional 15 years, without deduction of good time credits, for each crime which is a class A felony.”
Turner contends that K.S.A.1991 Supp. 22–3717(c) does not apply to him. He claims the statutory language “except as provided in subsection (d)” means that subsection (c) is only applicable to those who fall under subsection (d). Subsection (d) applies to those inmates who are “sentenced to imprisonment for a crime committed while on parole or conditional release.” Turner argues he was not on parole or conditional release when he committed his crimes so subsection (d) does not apply and, therefore, subsection (c) is inapplicable as well. This interpretation is incorrect.
“The fundamental rule of statutory construction is to ascertain the legislature's intent. The legislature is presumed to have expressed its intent through the language of the statutory scheme.” State v. Bryan, 281 Kan. 157, 159, 130 P.3d 85 (2006). “If the language is plain and unambiguous, the court must give effect to the language as written without determining what the law should or should not be.” State v. de la Cerda, 279 Kan. 408, 411, 109 P.3d 1248 (2005).
The plain meaning of the phrase “except as provided in subsection (d)” shows the exact opposite of what Turner is arguing. It simply means subsection (c) applies to inmates with sentences of imprisonment for more than one crime and whose sentences run consecutively, unless the inmate meets the requirements under subsection (d). In his brief, Turner admits he does not meet the subsection (d) requirements; therefore, because Turner meets the other requirements under subsection (c), subsection (c) does apply and the KDOC correctly used it to calculate Turner's parole eligibility.
Price & Anderson cases
The second argument made by Turner in his brief is unclear. Turner appears to claim that under Price v. State, 28 Kan.App.2d 854, 21 P.3d 1021,rev. denied 271 Kan. 1037 (2001), his “aggregate consecutive sentencing of his three consecutive sentences permits him to serve his conditional release time on the first and second sentences while serving the confinement portion of the third sentence, thus entitling him to immediate parole.” Turner argues the Price court held that “a consecutive sentence ‘is one which commences at the termination of another term of imprisonment to which [an] accused has been sentenced. A prisoner serving the first of several consecutive sentences is not serving the other sentences ... the prisoner serves only one sentence at a time.” ’ 28 Kan.App.2d at 858 (quoting 24 C.J.S., Criminal Law § 1582).
Turner might be arguing that in order to maintain the integrity of each individual sentence, the sentences should be unaggregated for the calculation of his parole eligibility and his conditional release date. The district court addressed this argument in its order denying Turner's petition by relying on Anderson, 274 Kan. 37, which significantly limited the Price holding relied upon by Turner. Turner argues that the district court incorrectly relied on Anderson because Turner's case is distinguishable from Anderson.
In Anderson v. Bruce, Anderson committed crimes while on parole two different times. The court ordered all sentences, for the original crime and the parole crimes, to run consecutively to each other. Anderson filed a petition for writ of habeas corpus and asked that the court order the Department of Corrections to recalculate his sentence without considering the original offense because that offense had been satisfied by Anderson's time spent in jail and on parole.
The Anderson court pointed out that although the Price court had emphasized the individual nature of each sentence, the Price court examined only the applicability of the sentence aggregation rules in K.S.A. 21–4608 to retroactive sentence conversion under the Kansas Sentencing Guidelines Act. 274 Kan. at 49–50; see Price, 28 Kan.App.2d at 854. Therefore, the reasoning in Price is limited to retroactive sentence conversion cases and does not affect applicability of K.S.A. 21–4608 to parole eligibility calculation in its designated sections. Anderson, 274 Kan. at 49.
“The fact that each of Anderson's sentences retains its individual identity ... does not entitle Anderson to have his sentence unaggregated for the purpose of sentence recalculation. Neither the statutes nor the regulations provide for such a recalculation. The legislature intended the aggregation rules to be used in making [the parole eligibility] calculation.” 274 Kan. at 50.
This court, relying on Anderson, has held multiple times that the KDOC is not required to recalculate parole eligibility, conditional release, and maximum dates after the inmate has served the maximum time on each individual sentence. See, e.g., Hinderliter v. Werholtz, No. 103,344, 2010 WL 3665017, at *5–6 (Kan.App.2010) (unpublished opinion), rev. denied 292 Kan. 964 (2011); Brownfield v. Feleciano, No. 102,259, 2010 WL 174073, at *2 (Kan.App.2010) (unpublished opinion), rev. denied 290 Kan. 1092 (2010); Holloway v. State, No. 100,907, 2009 WL 2436689, at *3 (Kan.App.2009) (unpublished opinion); Verstynen v. Bruce, No. 92,046, 2004 WL 2238830, at *1 (Kan.App.2004) (unpublished opinion), rev. denied 219 Kan. 1010 (2005).
Turner argues that his case is distinguishable from Anderson in that it involved the commission of crimes while on parole, but Anderson addresses the same argument proffered by Turner: that he had served his first sentence, which entitled him to recalculation of his parole eligibility, conditional release, and sentence term. Therefore, the district court correctly relied on Anderson in this case.
Sentence Calculation
McKune's brief goes through the process of how the KDOC correctly applied the sentence aggregation statutes and calculated Turner's aggregate sentence. Turner does not argue that the KDOC incorrectly calculated his sentence term, parole eligibility, or conditional release dates outside of the arguments addressed above which fail. Therefore, there is no need to analyze the step-by-step aggregate sentence calculation here.
The district court correctly determined that the KDOC properly applied Kansas statutes in calculating Turner's parole eligibility and in refusing to recalculate sentence term, parole eligibility, and conditional release date.
Affirmed.