State v. Bailey

• Decision Date: 19 May 2017
• Docket Number: No. 112,888,112,888
• Citation: 394 P.3d 831,306 Kan. 393
• Parties: STATE of Kansas, Appellee, v. Brian C. BAILEY, Appellant.
• Court: Kansas Supreme Court

306 Kan. 393

394 P.3d 831

STATE of Kansas, Appellee,

v.Brian C. BAILEY, Appellant.

No. 112,888

Supreme Court of Kansas.

Opinion filed May 19, 2017

Catherine A. Zigtema, of Law Office of Kate Zigtema LC, of Lenexa, argued the cause and was on the brief for appellant.

Steven J. Obermeier, senior deputy district attorney, argued the cause, and Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by Stegall, J.:

Brian C. Bailey is serving a life sentence for felony murder. He appeals the summary denial of three pro se motions, arguing restitution has been wrongfully collected from him and his sentence is illegal. We hold no enforceable restitution judgment exists against Bailey and the wrongful collection of restitution likely arises from a clerical error. We also hold Bailey's offenses were properly classified as person felonies and his sentence is not illegal. Therefore, we affirm and remand for a hearing and correction of the clerical mistake.

FACTUAL AND PROCEDURAL BACKGROUND

In December 1986, Bailey and Kohler Jeffries committed a series of armed robberies of gas stations and a liquor store in Johnson County. During one robbery, they killed a gas station attendant. Bailey was convicted of one count of first-degree felony murder, four counts of aggravated robbery, and sentenced to life imprisonment. The district court found restitution in the amount of $37,521.07.

This is the fifth time Bailey's case has come before this court. In 1990, we affirmed Bailey's convictions on direct appeal. State v. Bailey , 247 Kan. 330, 340, 799 P.2d 977 (1990), cert. denied 500 U.S. 920, 111 S.Ct. 2022, 114 L.Ed.2d 108 (1991). In 1992, we vacated Bailey's sentences and remanded the case for resentencing and consideration of the disparity between Bailey's and Jeffries' sentences. State v. Bailey , 251 Kan. 527, 531, 834 P.2d 1353 (1992). The district court resentenced Bailey to life imprisonment for felony murder and ordered three of his four aggravated robbery convictions to be served concurrently. The court again found restitution in the amount of $37,521.07.

In 1993, we remanded the case for computation of Bailey's Kansas Sentencing Guidelines Act (KSGA) sentence. State v. Bailey , No. 79,803, 1998 WL 982911 (Kan. 1998) (unpublished opinion). In 2005, we affirmed the summary denial of Bailey's third motion to correct an illegal sentence. State v. Bailey , No. 88,639, 2005 WL 991913, at *3 (Kan. 2005) (unpublished opinion).

The present appeal arises from three pro se motions. In 2013 and 2014, Bailey filed two motions for release of restitution, arguing the restitution judgment against him was dormant and seeking reimbursement for money already paid toward restitution. The district court summarily denied the motions, concluding there was no enforceable restitution judgment that could become dormant.

In 2014, Bailey also filed a pro se motion to correct an illegal sentence. He argued the district court incorrectly classified his pre–KSGA offenses as person felonies in violation of State v. Murdock , 299 Kan. 312, 323 P.3d 846 (2014), overruled by State v. Keel , 302 Kan. 560, 357 P.3d 251 (2015), cert. denied ––– U.S. ––––, 136 S.Ct. 865, 193 L.Ed.2d 761 (2016), and miscalculated his criminal history score as a result. The district court summarily denied the motion, concluding Murdock did not apply to Bailey's in-state offenses.

Bailey appeals the summary denial of these three motions pursuant to K.S.A. 2016 Supp. 22–3601(b)(3), which permits appeal from a district court judgment directly to the Supreme Court in "any [criminal] case in which a maximum sentence of life imprisonment has been imposed." See State v. Thomas , 239 Kan. 457, Syl. ¶ 2, 720 P.2d 1059 (1986) ("An appeal of a 22–3504 motion ... falls within the appellate jurisdiction of the appellate court that has jurisdiction to hear the original appeal.").

For the first time on appeal, Bailey now claims restitution has been wrongfully collected during his imprisonment because, according to the restitution statute in effect when Bailey committed his offenses, restitution cannot be collected until he is released if and when payment of restitution is made a condition of parole. Thus, Bailey argues the district court's restitution determination at sentencing and resentencing was an advisory finding of fact rather than an enforceable order.

Bailey concedes this argument is unpreserved but contends the collection of restitution in his case stems from a clerical error in the Johnson County District Court computer system and such mistake may be corrected at "any time" pursuant to K.S.A. 22–3504. The record indicates that in 2012 a restitution order was entered into the computer system. It also appears, however, that no such order from the district court exists. Thus, it appears at least likely that restitution is being collected from Bailey due to a clerical error. He now asks us to remand for fact-finding and correction of any clerical error.

ANALYSIS

In his two motions for release of restitution, Bailey argued his restitution order is dormant pursuant to K.S.A. 60–2403 and 60–2404 and any restitution collected under the dormant judgment should be reimbursed to him. However, the district court correctly concluded there is no restitution judgment to become dormant.

Whether Bailey is currently subject to the trial court's restitution finding is a question of law subject to unlimited review. State v. Alderson , 299 Kan. 148, 149, 322 P.3d 364 (2014).

The district court summarily denied Bailey's motions to release restitution, finding his case was "nearly identical" to Alderson . It ruled that the sentencing court did not enter an enforceable judgment against Bailey but instead provided an advisory calculation of restitution to be used by the Kansas Prisoner Review Board (formerly the Kansas Adult Authority) upon commencement of Bailey's parole. Thus, the court concluded, "There never being an actual judgment of restitution set by the district court, the judgment could not become dormant."

In Alderson , this court considered whether a defendant's restitution order was dormant under K.S.A. 2013 Supp. 60–2403. 299 Kan. at 149, 322 P.3d 364. The district court's order in Alderson stated: " ‘The Court finds that restitution is owed in this case, as set out below, and advises the Secretary of Corrections' Board of Pardon and Parole that defendant's release from incarceration should be made contingent upon defendant making restitution.’ " 299 Kan. at 150, 322 P.3d 364. We concluded this language was too ambiguous to subject the defendant to restitution collection during imprisonment and the district court did not have authority to impose parole conditions. 299 Kan. at 150–51, 322 P.3d 364. Therefore, we held that "the district court did not enter an enforceable restitution judgment when it sentenced Alderson. It instead provided an advisory calculation of damages for the benefit of the Kansas Prisoner Review Board. There being no judgment of restitution, the judgment could not become dormant." 299 Kan. at 151, 322 P.3d 364.

Likewise here, the sentencing court provided an advisory calculation of restitution for the parole board rather than an enforceable judgment of restitution. At Bailey's original sentencing in 1989 (and his resentencing in 1993) the district court found that restitution totaled $37,521.07. The 1993 sentencing journal entry stated, "For the benefit of the Kansas Adult Authority, restitution is found to be in the amount of $37,521.07." Thus, the plain language of the entry indicates the restitution calculation was advisory in nature—for the parole board's benefit when deciding the terms of Bailey's future probation.

Furthermore, the sentencing court did not have the statutory authority to impose restitution and imprisonment simultaneously on Bailey. Because Bailey committed his offenses in December 1986, K.S.A. 1986 Supp. 21–4603 governed the imposition of restitution orders at his sentencing and resentencing. See State v. Denney , 278 Kan. 643, 646, 101 P.3d 1257 (2004) ("Criminal statutes and penalties in effect at the time of a criminal offense are controlling."). K.S.A. 1986 Supp. 21–4603 states, in relevant part:

"(2) Whenever any person has been found guilty of a crime, the court may adjudge any of the following:

....

"(f) ... If the court commits the defendant to the custody of the secretary of corrections or to jail, the court may specify in its order the amount of restitution to be paid and the person to whom it shall be paid if restitution is later ordered as a condition of parole or conditional release. " (Emphasis added.)

This court interpreted identical provisions of K.S.A. 1991 Supp. 21–4603 in State v. DeHerrera , 251 Kan. 143, 834 P.2d 918 (1992), and held a sentencing court could not order a defendant to pay restitution during incarceration. 251 Kan. at 155, 834 P.2d 918. The DeHerrera decision relied upon a series of cases that interpreted similar versions of K.S.A. 21–4603 to arrive at the same conclusion. See State v. Bowers , 239 Kan. 417, 427, 721 P.2d 268 (1986) ; State v. McNaught , 238 Kan. 567, 588, 713 P.2d 457 (1986) ; State v. Chilcote , 7 Kan.App.2d 685, 690, 647 P.2d 1349 (1982). The restitution statutory scheme has since changed, allowing courts to order defendants to serve a sentence of imprisonment and pay restitution simultaneously. Alderson , 299 Kan. at 150, 322 P.3d 364.

According to the restitution law applicable to Bailey, the district court could not impose both incarceration and restitution. Instead, when the district court sentenced Bailey to imprisonment, it could only "specify in its order the amount of restitution to be paid and the person to whom it shall be paid if restitution is later ordered as a condition of parole or conditional...