Opinion
No. 111,003.
2015-02-13
Steven Lloyd YANCEY, Appellant, v. STATE of Kansas, Appellee.
Appeal from Labette District Court; Robert J. Fleming, Judge.Timothy J. Grillot, of Parsons, for appellant.Stephen P. Jones, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Labette District Court; Robert J. Fleming, Judge.
Timothy J. Grillot, of Parsons, for appellant. Stephen P. Jones, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Before ARNOLD–BURGER, P.J., PIERRON and BURSER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Pursuant to K.S.A. 60–1507, Steven Lloyd Yancey filed a writ of habeas corpus in the Labette County District Court and argued that a recent good time credit statute, K.S.A.2013 Supp. 21–6821, conflicted with an existing Kansas administrative regulation, unconstitutionally affecting his liberty interests. The district court examined the claim, determined that it actually constituted a K.S.A.2013 Supp. 60–1501 action, and dismissed the petition for lack of jurisdiction. Yancey appeals. Because we find that the district court should have transferred the case to Norton County rather than dismissing it, we reverse the district court's order of dismissal and remand the case to it for transfer to the proper venue—Norton County. Reversed and remanded with directions.
Factual and Procedural Background
Yancey pled no contest to kidnapping and sexual battery in Labette County. In 2008, pursuant to the plea agreement, the district court sentenced him to 228 months in prison for the kidnapping charge and 12 months in the county jail for the misdemeanor sexual battery charge, resulting in a total term of 240 months. The district court also ordered 36 months of postrelease supervision. Yancey received full credit for the 12 months he served in the county jail on the sexual battery sentence, so that sentence is not at issue here. The trial court made a finding that both crimes were sexually motivated. Yancey did not appeal and has stipulated that there were no appealable issues that existed at that time.
In 2013, while at the Norton Correctional Facility in Norton County, Kansas, Yancey filed what he called a K.S.A. 60–1507 “Petition For Writ of Habeas Corpus” with the Labette County District Court. In his petition and memorandum of law, Yancey alleged that K.A.R. 44–6–115c (2013 Supp.) created a liberty interest that guaranteed him the right to have his sentence reduced by his good time credit without a corresponding increase in his postrelease supervision period. He alleged that the passage of the 2013 amendments to K.S.A.2012 Supp. 21–6821 violated that liberty interest. Yancey requested an evidentiary hearing on the merits of his petition.
The State responded, arguing both that Yancey's argument was not yet ripe (as he still had nearly 10 years of his sentence remaining before the issue of good time credit became relevant) and also that the petition named the wrong defendant and was filed in the wrong county. In his response, Yancey contended that his petition was not one for K.S.A.2013 Supp. 60–1501 relief, as the State appeared to argue, but rather a K.S.A. 60–1507 motion attacking a sentence made illegal by the operation of the new statute.
After reviewing the pleadings, the district court determined that Yancey did not attack the sentence imposed in Labette County but instead attacked the calculation and application of his good time credit—a calculation prepared by the Kansas Department of Corrections. As such, the district court determined that the claim needed to be brought pursuant to K.S.A.2013 Supp. 60–1501 in Yancey's county of incarceration. It therefore dismissed the motion. Importantly, the district court never considered the merits of Yancey's claim.
Yancey timely appealed this dismissal.
Analysis
On appeal, Yancey contends that the district court incorrectly dismissed the action. He argues both that the district court improperly construed his motion as a K.S.A.2013 Supp. 60–1501 petition and that the Kansas Code of Civil Procedure required the district court to transfer rather than dismiss the action. He also urges this court to consider the merits of his claim. In response, the State urges this court to affirm the dismissal on the ground that Yancey's claim is wholly meritless.
Whether jurisdiction exists is a question of law over which this court's scope of review is unlimited. Frazier v. Goudschaal, 296 Kan. 730, 743–44, 295 P.3d 542 (2013).
In order to fully understand the jurisdictional issue at play here, an understanding of K.S.A.2013 Supp. 60–1501 and K.S.A. 60–1507 actions is required. Both are habeas corpus proceedings and are civil rather than criminal actions. K.S.A.2013 Supp. 60–1501; K.S.A. 60–1507; Smith v. State, 22 Kan.App.2d 922, 923, 924 P.2d 662 (1996) (“A proceeding under K.S.A. 60–1507 is civil in nature and is governed by the rules of civil procedure.”). However, the two actions serve two different purposes. Generally speaking, a K.S.A.2013 Supp. 60–1501 petition allows a prisoner to challenge “the mode or conditions of his or her confinement.” Safarik v. Bruce, 20 Kan.App.2d 61, Syl. ¶ 5, 883 P.2d 1211 (1994). As such, it is “properly filed in the county of confinement .” 20 Kan.App.2d 61, Syl. ¶ 5. A K.S.A. 60–1507 motion, on the other hand, allows a prisoner to “challenge his or her conviction or sentence” and “is properly filed in the sentencing court.” 20 Kan.App.2d 61, Syl. ¶ 5. These jurisdictional rules are codified in their respective statutes, as well. See K.S.A.2013 Supp. 60–1501(a) (a person “may prosecute a writ of habeas corpus in ... the district court of the county in which such restraint is taking place ”); K.S.A. 60–1507(a) (a person may “move the court which imposed the sentence to vacate, set aside or correct the sentence”).
A review of Yancey's pleadings at the district court level reveals that he is challenging the constitutionality of a new statute concerning good time credit due to that statute's conflict with an existing administrative regulation. Good time credit is defined as “a method of behavior control or sanctions utilized by the department of corrections.” K.S.A.2013 Supp. 21–6803(j). Such credits are controlled and awarded by the Department of Corrections and “the sentencing court plays no role in the process.” State v. Colston, 269 Kan. 345, 348, 7 P.3d 1132 (2000). As such, issues concerning good time credit are properly brought in an action pursuant to K.S.A.2013 Supp. 60–1501, not K.S.A. 60–1507. See McKinney v. State, 27 Kan.App.2d 803, 9 P .3d 600 (2000) (holding that a petition regarding the Department of Corrections' calculation of sentences “must be filed in the county of incarceration rather than with the sentencing court”); Wallace v. State, No. 90,811, 2004 WL 2977467, at *2 (Kan.App.2004) (unpublished opinion) (rejecting defendant's argument that good time credit issue could be brought as part of K.S.A. 60–1507 action). Because Yancey's initial pleading before the district court concerns his good time credit, his date of release, and the duration of his postrelease supervision, he is challenging not the legality of his sentence itself but rather the potential length of his confinement. Accordingly, this action implicates the Department of Corrections and belongs in the county of confinement—that is, Norton County—rather than the county of sentencing. See McKinney, 27 Kan.App.2d at 803.
Yancey attempts to rescue his improperly filed action in two ways. First, Yancey insists that his pleading before the district court is a K.S.A. 60–1507 motion because the amended good time credit statute and its effect on postrelease supervision renders his sentence unlawful. However, Yancey fails to explain how exactly his sentence is now unlawful or illegal. Failure to support a point with pertinent authority or to show why it is sound despite a lack of supporting authority is akin to failing to brief the issue. State v. Tague, 296 Kan. 993, 1001, 298 P.3d 273 (2013). An issue not briefed is deemed waived and abandoned. Superior Boiler Works, Inc. v. Kimball, 292 Kan. 885, 889, 259 P.3d 676 (2011).
Second, Yancey claims that even if his pleading was more properly construed as a K.S.A.2013 Supp. 60–1501 petition, K.S.A. 60–609 required the district court to transfer the case to the appropriate county rather than dismissing it. Although K.S.A. 60–609 is not precisely on point, another civil procedure statute, K.S.A. 60–611, provides that an action that is commenced in the wrong venue is to be transferred rather than dismissed. See Cansler v. State, 234 Kan. 554, 573, 675 P.2d 57 (1984) (noting that improper venue results not “in dismissal of the action, but merely transfer”). The decision of whether to transfer venue generally rests within the district court's sound discretion. See Fredricks v. Foltz, 221 Kan. 28, 33, 557 P.2d 1252 (1976).
This court has previously held that because an action pursuant to K.S.A. 60–1501 must be prosecuted in the county of incarceration, a petition filed in the county of sentencing is properly dismissed for lack of jurisdiction. McKinney, 27 Kan.App.2d at 803–04; Burch v. Lynch, No. 106,612, 2012 WL 718991, at *2 (Kan.App.2012) (unpublished opinion). But in one case similar to this one—where a single issue regarding the length of the prisoner's sentence was improperly raised as a K.S.A. 60–1507 motion in the county of sentencing—this court elected to remand the case for transfer to the correct county. Hobson v. State, No. 90,841, 2004 WL 2047545, at *1–2 (Kan.App.2004) (unpublished opinion). There, this court recognized that the sentencing court lacked jurisdiction but determined that remand served “the interest of administrative and judicial economy.” 2004 WL 2047545, at *2. That said, this court has also affirmed a district court's decision not to transfer in a number of other cases involving improperly labeled K.S.A. 60–1501 actions. See State v. Duncan, No. 107,307, 2013 WL 1010342, at *2 (Kan.App.2013) (unpublished opinion) (affirming denial of motion to correct illegal sentence filed with sentencing court when challenge was more properly a K.S.A. 60–1501 action); State v. Evans, No. 105,185, 2011 WL 3444348, at *2–3 (Kan.App.2011) (unpublished opinion) (affirming denial of motion for nunc pro tunc filed with sentencing court when challenge was more properly a K.S.A. 60–1501 action), rev. denied 293 Kan. 1109 (2012); but see Evans, 2011 WL 3444348, at *3–4 (Atcheson, J., dissenting) (reasoning that, as per K.S.A. 60–611, the district court should have simply transferred the action when the State failed to move for dismissal in its responsive pleading).
The instant case closely mirrors Hobson in that Yancey filed the wrong habeas corpus action in the wrong county, and the district court correctly determined that it lacked jurisdiction to consider the case. Moreover, we agree with the Hobson panel and Judge Atcheson's legal analysis in Evans, that in the absence of a motion to dismiss by the State, the appropriate action for improper venue is to transfer the case to the proper venue. In this case, the State argued in its response to Yancey's petition that venue was not proper in Labette County and argued that the case should be transferred to Norton County, where Yancey was being held. The State never contended that the action should be dismissed. Accordingly, the appropriate action of the district court would have been to transfer the action to Norton County, not dismiss it.
Yancey's claim fails on the merits.
On appeal, Yancey also requests this court consider the merits of his claim regarding K.S.A.2013 Supp. 21–6821. The State also argues that the motion should be denied on its merits. In fact, that State does not address the jurisdiction issue at all in its appellate brief. Because the issue will come up on remand and because Yancey's claim clearly fails on the merits, we will address it briefly here.
In May 2008, at the time of sentencing, Yancey was subject to earning good time credit of up to 15% of the prison part of his sentence. See K.S.A. 21–4722(a)(2)(A). Yancey claims he would be eligible for up to 1,031 days of good time credit, and that calculation has not been disputed. The same statute provided that a prisoner would not have to serve the time in prison equivalent to his or her good time credit, but instead the time would be added to the prisoner's period of postrelease supervision. K.S.A. 21–4722(b); see also K.S.A.2006 Supp. 21–4722(b) (similar provision in effect at time crime was committed in May 2007).
According to Yancey's original motion, the Department of Corrections amended its administrative regulations concerning good time credit at K.A.R. 44–6–115c (2013 Supp.) to provide:
“ ‘[On] or after January 1, 2013 good time credits awarded during the period of service of the incarceration penalty, which serve to shorten the period of the incarceration, SHALL NOT APPLY to the overall period of postrelease supervision.’ “
However, contrary to Yancey's position, the referenced regulation was simply a proposed regulation and was never adopted. See 31 Kan. Reg. 1219 (2012). It was subsequently abandoned. See 32 Kan. Reg. 66–67 (2013) (final regulations as adopted); K.A.R. 44–6–115c (2013 Supp.). This makes sense because such a regulation would be contrary to K.S.A.2012 Supp. 21–6821, which still provided:
“(c) Any time which is earned and subtracted from the prison part of the sentence of any inmate pursuant to good time calculation shall be added to such inmate's postrelease supervision term.” (Emphasis added.)
Effective July 1, 2013, the Kansas Legislature amended K.S.A.2012 Supp. 21–6821(c) to provide that only persons sentenced for certain crimes, including those designated as sexually motivated, were required to have their postrelease supervision period increased by the amount of good time credit. L.2013, ch. 76, sec. 4; see K.S.A.2013 Supp. 22–3717(d)(1)(D) (same rule). Because Yancey's crimes were designated as sexually motivated, the same rule that applied at the time of his sentencing continues to apply to him; his period of good time credit is to be added to his term of postrelease supervision.
Accordingly, Yancey's claim is based on two erroneous premises. First he claimed in his original motion that a nonexistent administrative regulation changed the application of his good time credit. Second, in his brief on appeal he claims that K.S.A.2013 Supp. 21–6821 somehow changed the law as it existed at the time of his sentencing, to his detriment. Because the statutes have always required, given the designation of Yancey's crimes as sexually motivated, that Yancey's good time credit be applied to his postrelease supervision period and there has never been a statute to the contrary, his claim is wholly lacking in merit.
In sum, the district court incorrectly dismissed Yancey's petition for lack of jurisdiction, and accordingly we reverse and remand the case for the district court to transfer the case to Norton County for consideration of the merits of his claim.
Reversed and remanded with directions.