Anderson v. Bruce, 85,952.

• Decision Date: 12 July 2002
• Docket Number: No. 85,952.,85,952.
• Citation: 50 P.3d 1,274 Kan. 37
• Parties: JOSEPH L. ANDERSON, Appellant, v. L.E. BRUCE, et al., Appellees.
• Court: Kansas Supreme Court

274 Kan. 37

50 P.3d 1

JOSEPH L. ANDERSON, Appellant, v. L.E. BRUCE, et al., Appellees.

No. 85,952.

Supreme Court of Kansas.

Opinion filed July 12, 2002.

Randall H. McEwen, of Hutchinson, argued the cause and was on the brief for appellant. Joseph L. Anderson, appellant, was on separate briefs pro se.

Jon D. Graves, special assistant attorney general, Kansas Department of Corrections, argued the cause and was on the briefs for appellees.

The opinion of the court was delivered by

LOCKETT, J.:

Joseph Anderson appeals the Court of Appeals' affirmance of the district court's denial of his K.S.A. 2001 Supp. 60-1501 petition. See State v. Bruce, No. 85,952, unpublished opinion filed October 12, 2001. Anderson claims (1) the district court erred in finding he was not entitled to credit for time spent on parole on a prior offense; (2) application of K.S.A. 21-4608(f)(5) to the prior offense violated the Ex Post Facto clause of the United States Constitution; and (3) the district judge erred in finding Anderson was not entitled to have his present sentence unaggregated for sentence computation purposes after serving the maximum time on his 1979 offense.

In January 1980, Anderson was sentenced to 5 to 20 years on one count of aggravated robbery committed in October 1979. His sentence commenced October 23, 1979. Prior to completing his sentence, Anderson was paroled on June 28, 1984. In March 1986, Anderson was sentenced to a term of 3 to 10 years on two counts of forgery and one count of possession of cocaine committed in 1985 while he was on parole. Anderson was also sentenced to a term of 3 to 10 years for burglary and theft committed while he was on parole in 1986. Anderson was given 3 years, 6 months, and 22 days of prior penal credit, making his sentence begins date June 7, 1982, on those convictions. These sentences were ordered to run consecutive to each other and consecutive to his sentence for the 1979 offense. At that time, Anderson's controlling term was 11 to 40 years.

Anderson was again paroled. Because of events that occurred while on parole in 1993, Anderson was convicted and sentenced in July 1994 to a term of 1 to 2 years for aggravated false imprisonment and an aggravated weapons violation. Anderson was credited with 6 years, giving him a sentence begins date of February 2, 1988, on this conviction. The 1994 sentence was ordered to run consecutive to the prior sentences. Anderson's controlling term was 12 to 42 years.

Anderson filed a grievance with his Unit Team in November 1999, alleging his sentence had been illegally modified when it was aggregated. Anderson also claimed he had been denied jail credit and credit for time served on parole. The Unit Manager found Anderson's sentence had been correctly calculated. The Warden concurred with the Unit Manager's finding. In December 1999, Anderson appealed to the Secretary of Corrections. The Secretary of Corrections approved the findings of the Unit Team and the Warden. On January 3, 2000, Anderson filed a petition for writ of habeas corpus in the district court, pursuant to K.S.A. 2001 Supp. 60-1501. Anderson requested that the court order the Department of Corrections (DOC) to grant him credit for time served on parole on his 1979 offense, asserting that the failure to grant him credit violated the Ex Post Facto Clause of the United States Constitution. Anderson also requested that the DOC be ordered to recalculate his controlling term without considering his 1979 offense because that sentence had been satisfied. The DOC filed a response and motion to dismiss. A hearing was held on February 22, 2000. The district court found that Anderson's sentence had been properly computed and denied Anderson relief. A timely notice of appeal was filed.

The Court of Appeals affirmed the district court's decision. The Court of Appeals found Thomas v. Hannigan, 27 Kan. App.2d 614, 6 P.3d 933 (2000), controlling and held that the failure to grant Anderson credit for time spent on parole did not violate the Ex Post Facto Clause. The Court of Appeals also found Anderson's contention that his sentence for the 1979 offense had expired 20 years after his sentence date to be "nonsensical" and without merit. This court granted Anderson's petition for review. Our jurisdiction is pursuant to K.S.A. 20-3018(b).

CREDIT FOR TIME SPENT ON PAROLE

Anderson contends the district court erred in finding that he was not entitled to credit for the time spent on parole for his 1979 offense. Determination of the amount of credit for time spent on parole is a matter of statutory interpretation. Interpretation of a statute is a question of law over which an appellate court's review is unlimited. State v. Palmer, 262 Kan. 745, 748, 942 P.2d 19 (1997). In construing statutes and determining legislative intent, several provisions of an act, in pari materia, must be construed together with a view of reconciling and bringing them into workable harmony, if possible. Unrau v. Kidron Bethel Retirement Services, Inc., 271 Kan. 743, Syl. ¶ 2, 27 P.3d 1 (2001).

CONFLICT BETWEEN STATUTES

Pursuant to K.S.A. 21-4608(c), a person convicted and sentenced for a crime committed while on parole for a felony is required to serve the new sentence consecutive to the term or terms for which the person was on parole. See K.S.A. 1992 Supp. 21-4608(3) and K.S.A. 1986 Supp. 21-4608(3).

"When indeterminate sentences are imposed to be served consecutively to sentences previously imposed in any other court or the sentencing court, the aggregated minimums and maximums shall be computed from the effective date of the subsequent sentences which have been imposed as consecutive. For the purpose of determining the sentence begins date and the parole eligibility and conditional release dates, the inmate shall be given credit on the aggregate sentence for time spent imprisoned on the previous sentences, but not exceeding an amount equal to the previous minimum sentence less the maximum amount of good time credit that could have been earned on the minimum sentence. For the purposes of computing the maximum date, the inmate shall be given credit for all time spent imprisoned on the previous sentence. This method for computation of the maximum sentence shall be utilized for all sentences computed pursuant to this subsection after July 1, 1983." K.S.A. 21-4608(f)(4).

See K.S.A. 1992 Supp. 21-4608(6)(d).

At the time Anderson was convicted in 1979 and until 1982, when imposing consecutive sentences to run consecutive to sentences for which the prisoner had been on probation, parole, or conditional release, the prisoner received credit for the time spent on probation, parole, or conditional release. See K.S.A. 1979 Supp. 21-4608(3)(e); K.S.A. 1982 Supp. 21-4608(6)(e). This statute was amended in 1983 to no longer allow credit for time spent on probation, parole, or conditional release under such circumstances. See L. 1983, ch. Ill, sec. 1; K.S.A. 1983 Supp. 21-4608(6)(e).

"When consecutive sentences are imposed which are to be served consecutive to sentences for which a prisoner has been on probation, assigned to a community correctional services program, on parole or on conditional release, the amount of time served on probation, on assignment to a community correctional services program, on parole or on conditional release shall not be credited as service on the aggregate sentence in determining parole eligibility, conditional release and maximum dates, except that credit shall be given for any amount of time spent in a residential facility while on probation or assignment to a community correctional residential services program." K.S.A. 21-4608(f)(5) (Emphasis added.).

K.A.R. 44-6-107(a) provides in part:

"The statutes constituting the substantive law in effect at the time the crime is committed shall apply to compute the sentence term and the release dates. No subsequent change in the statute constituting substantive law shall be applied if that law adversely affects the inmate."

Anderson asserts that K.S.A. 22-3722 conflicts with K.S.A. 21-4608(f)(5). This court recently held in Hudson v. State, 273 Kan. 251, 42 P.3d 150 (2002), that K.S.A. 21-4608(f)(5), which disallows credit for time spent on parole when calculating parole eligibility, conditional release, and maximum dates, does not conflict with K.S.A. 22-3722, which states that a period served on parole is deemed service of confinement. In reaching this conclusion, the Hudson court reasoned that K.S.A. 21-4608(f)(5) involves the event of consecutive sentencing for a sentence to which the prisoner has been on parole, while K.S.A. 22-3722 deals with satisfaction of release. 273 Kan. at 258. The court held that credit for time on parole is a matter of legislative grace and is not a constitutional right. See 273 Kan. 251, Syl. ¶ 2.

Anderson also asserts that K.S.A. 1983 Supp. 22-3717(1) conflicts with the provisions of K.S.A. 21-4608(f)(5). K.S.A. 1983 Supp. 22-3717(1) stated:

"An inmate shall be eligible for parole on the date provided by statute at the time the inmate committed the crime for which imprisoned unless subsequent amendment of the statute provides an earlier parole eligibility date."

Anderson points out that the same legislature that amended K.S.A. 21-4608 to deny prisoner's credit for time spent on parole did not amend K.S.A. 22-3717 to deny credit. K.S.A. 1983 Supp. 21-4608(6) provided:

"The provisions of this subsection relating to parole eligibility shall be applicable to persons convicted of crimes prior to January 1, 1979, but shall be applicable to persons convicted of crimes committed on or after that date only to the extent that the terms of this subsection are not in conflict with the provisions of K.S.A. 22-3717 and amendments thereto." (Emphasis added.)

We note that K.S.A. 1979 Supp. 22-3717 contained no provision similar to K.S.A. 1983 Supp. 22-3717(1). This language was not added until 1982. L. 1982, ch. 137, sec. 3. It...