State v. Bailey

Citation394 P.3d 831,306 Kan. 393
Decision Date19 May 2017
Docket NumberNo. 112,888,112,888
Parties STATE of Kansas, Appellee, v. Brian C. BAILEY, Appellant.
CourtUnited States State Supreme Court of Kansas

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.

394 P.3d 833

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.:

306 Kan. 393

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.

306 Kan. 394

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 ...

306 Kan. 395

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.

394 P.3d 834

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...

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7 cases
  • State v. Smith
    • United States
    • Kansas Supreme Court
    • May 31, 2019
    ...illegal sentence was procedurally barred when issue could have been raised on direct appeal but was not); see also State v. Bailey , 306 Kan. 393, 394 P.3d 831 (2017) (concluding clerical error that triggered wrongful collection of prisoner's money could be corrected under K.S.A. 22-3504 [2......
  • State v. Davis
    • United States
    • Kansas Supreme Court
    • May 19, 2017
  • State v. Bailey
    • United States
    • Kansas Supreme Court
    • July 30, 2021
    ...or as a defendant who prevailed on appeal by having his conviction reversed. Nor does he assert a due process argument. Thus, in the Bailey line of cases, the most applicable is the Colorado Supreme Court decision holding a court needs authority to reimburse a defendant in a criminal case. ......
  • State v. Bailey
    • United States
    • Kansas Supreme Court
    • July 30, 2021
    ...Bailey has filed several motions to correct an illegal sentence, and those motions have led to multiple appeals. See State v. Bailey , 306 Kan. 393, 394, 394 P.3d 831 (2017) (recounting history of appeals).This appeal relates to one of Bailey's pro se motions to correct an illegal sentence.......
  • Request a trial to view additional results
3 books & journal articles
  • Kansas Sentencing Guidelines
    • United States
    • Kansas Bar Association KBA Bar Journal No. 86-7, August 2017
    • Invalid date
    ...J., dissenting). [164] H.B. 2053, L. 2015, ch. 5, § 1, amending K.S.A. 2014 Supp. 216810. [165] See, e.g., State v. Bailey, ____Kan. ____, 394 P.3d 831, 833 (May 19, 2017); State v Crawford, 2017 WL 1197996 (unpublished, Kan. App. 2017); State v. Piercy, 2014 WL 7152316, *11-13 (unpublished......
  • Kansas Sentencing Guidelines
    • United States
    • Kansas Bar Association KBA Bar Journal No. 86-7, August 2017
    • Invalid date
    ...J., dissenting). [164] H.B. 2053, L. 2015, ch. 5, § 1, amending K.S.A. 2014 Supp. 21-6810. [165] See, e.g., State v. Bailey, ___ Kan. ___, 394 P.3d 831, 833 (May 19, 2017); State v Crawford, 2017 WL 1197996 (unpublished, Kan. App. 2017); State v. Piercy, 2014 WL 7152316, *11-13 (unpublished......
  • Appellate Decisions
    • United States
    • Kansas Bar Association KBA Bar Journal No. 90-5, October 2021
    • Invalid date
    ...Kansas Supreme Court remanded the motion to district court to decide whether any clerical error required correction. State v. Bailey, 306 Kan. 393 (2017). On remand, district court found error in clerk's office notation in the case management system of a restitution judgment. It ordered ces......

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