State v. Denney

• Decision Date: 17 December 2004
• Docket Number: No. 90,454.,90,454.
• Citation: 101 P.3d 1257,278 Kan. 643
• Parties: STATE OF KANSAS, Appellee, v. DALE M.L. DENNEY, Appellant.
• Court: Kansas Supreme Court

278 Kan. 643

101 P.3d 1257

STATE OF KANSAS, Appellee, v. DALE M.L. DENNEY, Appellant.

No. 90,454.

Supreme Court of Kansas.

Opinion filed December 17, 2004.

Carl F.A. Maughan, of Law Offices of Carl Fredrick Alexander Maughan, L.L.C., of Wichita, argued the cause and was on the briefs for appellant.

Matt J. Maloney, assistant district attorney, argued the cause, and Nola Foulston, district attorney, and Phill Kline, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by

NUSS, J.:

Dale Denney appeals the denial of his motions for correction of an illegal sentence and for DNA testing. Our jurisdiction is under K.S.A. 22-3601(b)(1), maximum sentence of life imprisonment imposed.

We hold that the trial court did not err in denying Denney's motion to correct an illegal sentence but that it did err in denying his motion for DNA testing. Therefore, we affirm in part, reverse in part, and remand for further proceedings.

FACTS

Criminal acts and convictions

Case No. 87 CR 944

In 1987, Denney was convicted of rape and aggravated burglary. His sentences were of indeterminate length, and his sentence begin date was January 7, 1988. He was paroled on July 20, 1992, and was on parole at the times of the offenses described below.

Case No. 93 CR 1343

Among other things, Denney held a steak knife against the throat of his sister-in-law, P.D., and penetrated her anus with his penis. Because these offenses occurred in October 1992, the new Kansas Sentencing Guidelines Act (KSGA), K.S.A. 21-4701 et seq., did not yet apply. See K.S.A. 21-4723. Accordingly, Denney was charged with, and eventually convicted of a Class B felony, aggravated criminal sodomy; a Class D felony, aggravated sexual battery; and a Class E felony, aggravated weapons violation. The sentences for aggravated sexual battery (6-20 years) and aggravated weapons violation (2-10 years) were to run concurrent with each other but consecutive to the aggravated criminal sodomy sentence of 30 years to life.

Case No. 93 CR 1268

After beating and choking his former girlfriend, A.L., and placing a belt around her throat, Denney penetrated her anus with his penis. Because these offenses occurred on July 16, 1993, the KSGA did apply. See K.S.A. 21-4723. These charges were consolidated for trial with the charges in 93 CR 1343. Denney was convicted in 93 CR 1268 of aggravated criminal sodomy (severity level 2 person felony), aggravated battery (severity level 4 person felony), aggravated sexual battery (severity level 5 person felony), and aggravated weapons violation (severity level 9 nonperson felony). The accompanying sentences were to run consecutively, for a total of 228 months. They were also to run consecutive to the sentences in 93 CR 1343.

This court upheld the convictions from both 1993 cases in State v. Denney, 258 Kan. 437, 905 P.2d 657 (1995). Additionally, based upon these additional convictions, Denney's parole in 87 CR 944 was revoked on April 15, 1994.

Motion to correct illegal sentence

On February 15, 2001, Denney filed a motion in 87 CR 944 to correct an illegal sentence, i.e., to convert his indeterminate sentence to a determinate one because he had been on parole when he committed the crimes in 93 CR 1268 and 93 CR 1343. On April 1, 2001, the trial court denied this motion on the basis that he was not eligible for conversion because of the severity level of his crimes. Denney appealed, and the Court of Appeals held that K.S.A. 1993 Supp. 22-3717(f) entitled Denney "to have his prior sentences converted." State v. Denney, No. 87,755, unpublished opinion filed June 21, 2002, slip op. at 2.

On remand, the trial court reduced the sentences in 87 CR 944 from 5 to 20 years to a sentence of 36 months in accordance with K.S.A. 1993 Supp. 22-3717(f)(2). According to a letter from the Kansas Department of Corrections (DOC) to the trial court, since Denney had already served more than 36 months, it considered his sentence to be satisfied in that case. However, DOC considered that Denney was now serving a 36 years to life sentence in 93 CR 1343 and, once paroled from that sentence, he would begin serving the 228 month sentence in 93 CR 1268 in accordance with K.S.A. 2003 Supp. 22-3717(f). DOC believed that the Court of Appeals opinion did not convert the sentence in 93 CR 1343 because Denney was not on parole in that case when he committed the offense in 93 CR 1268.

On October 3, 2002, Denney filed a motion to correct an illegal sentence with the trial court. He argued that the Court of Appeals' decision had mandated his sentence to be converted not only in 87 CR 944 but also in 93 CR 1343 and that DOC had failed to convert his indeterminate sentence of 36 years to life in the latter case. He also requested credit for time served in excess of the 36 months in 87 CR 344. The trial court did not appoint counsel for Denney and did not hear oral arguments before denying the motion.

Motion for DNA testing

On September 12, 2002, Denney filed a pro se motion requesting that DNA testing be performed in 93 CR 1268 and 93 CR 1343 pursuant to K.S.A. 2003 Supp. 21-2512. The trial court denied the motion without appointing counsel and without oral argument, noting that the statute expressly limits testing to those cases in which an offender has been convicted of rape or murder and that Denney had been convicted of neither.

ANALYSIS:

ISSUE 1: Did the district court err in denying Denney's motion to correct an illegal sentence?

Denney argues that his sentence in 93 CR 1343 — like his sentence in 88 CR 744 — should have been converted to a determinate one. Accordingly, he claims it is an illegal sentence. The State responds that such a conversion is not allowed by statute.

The issue of whether a criminal sentence is illegal is a question of law. Our review of questions of law is unlimited. State v. Harper, 275 Kan. 888, 889, 69 P.3d. 1105 (2003). As K.S.A. 22-3504(1) states:

"The court may correct an illegal sentence at any time. The defendant shall receive full credit for time spent in custody under the sentence prior to correction. The defendant shall have a right to a hearing, after reasonable notice to be fixed by the court, to be personally present and to have the assistance of counsel in any proceeding for the correction of an illegal sentence."

Criminal statutes and penalties in effect at the time of a criminal offense are controlling. State v. Mayberry, 248 Kan. 369, Syl. ¶ 15, 807 P.2d 86 (1991). The statute which governs the issue of sentence conversion in the instant case is K.S.A. 1993 Supp. 22-3717(f). That statute, which was substantially amended in 1994, provided at subsection (f):

"If an inmate is sentenced to prison for a crime committed after July 1, 1993, while on parole or conditional release for a crime committed prior to July 1, 1993, the old sentence shall be converted into a determinate sentence and will run consecutive to the new sentence as follows:

(1) Twelve months for class C, D or E felonies or the conditional release date whichever is shorter;

(2) 36 months for class A or B felonies or the conditional release date whichever is shorter."

Denney was on parole in 87 CR 944 when he committed the crimes in 93 CR 1268 and 93 CR 1343. The statute requires that the old sentence, in 87 CR 944, be converted from an indeterminate sentence to a determinate one. While the crimes charged in 93 CR 1343 were indisputably committed prior to July 1, 1993 (in October 1992), Denney was not on parole or conditional release in that case when he committed the crimes in 93 CR 1268 (July 16, 1993). Therefore, K.S.A. 1993 Supp. 22-3717(f) does not provide for the sentence in 93 CR 1343 to be converted to a determinate one.

Moreover, K.S.A. 22-3504 does not automatically require a full hearing upon the filing of a motion to correct an illegal sentence. As we stated in State v. Mebane, 278 Kan. 131, 138, 91 P.3d 1175 (2004).

"Rather, when a defendant files such a motion, the district court has a duty to make a preliminary examination of the motion to determine if substantial issues of law or fact are raised. If there are none, the court may summarily dismiss the motion. Only if the court finds that the motion raises substantial issues of law or fact must the court then hold a hearing in the presence of the defendant with defense counsel. State v. Duke, 263 Kan. at 196."

Since the language in K.S.A. 1993 Supp. 22-3717(f) regarding conversion is clear, there were no substantial issues of law or fact raised by Denney's argument. Accordingly, the trial court was correct in summarily dismissing his motion.

Denney next contends that the trial court erred in refusing to apply his jail time credit earned in 87 CR 944 to his sentences in 93 CR 1343 and 93 CR 1268. He calculates this credit to be 6 years, 3 months, and 8 days. The DOC's Inmate Data Summary for Denney states:

"9/20/02 Sent. reviewed and recertified. The inmates [sic] sentence begins date on the 36-life was computed from court orders. The old indeterminate is considered to be satisfied per Mandate. Since old sentence is not aggragated [sic] with the new sentence (being satisfied) there is no Prior Penal Credit."

Denney relies on Payton v. State, 22 Kan. App. 2d 843, 923 P.2d 1059 (1996), to support his argument. Payton, while on parole for an aggravated battery committed in 1991, committed robbery and possessed narcotics after July 1, 1993. Pursuant to K.S.A. 1993 Supp. 22-3717(f), he had his old indeterminate sentence converted to 12 months, which was to run consecutive to his new sentence. As the court stated: "This gave Payton a new sentence of 69 months' incarceration [57 (new) + 12 (original then converted)]." 22 Kan. App. 2d at 844.

Payton argued in a motion under K.S.A. 60-1507 that he should receive 3 years' jail time credit against the converted 12-month sentence, which effectively meant his sentence had been fully served. The trial...