State v. Smith

• Decision Date: 31 May 2019
• Docket Number: No. 113,828,113,828
• Citation: 441 P.3d 1041
• Parties: STATE of Kansas, Appellee, v. Anthony S. SMITH, Appellant.
• Court: Kansas Supreme Court

441 P.3d 1041

STATE of Kansas, Appellee,

v.Anthony S. SMITH, Appellant.

No. 113,828

Supreme Court of Kansas.

Opinion filed May 31, 2019.

Angela Michelle Davidson, of Lawrence, argued the cause, and Samuel Schirer, of Kansas Appellate Defender Office, was on the brief for appellant.

Lance J. Gillett, assistant district attorney, argued the cause, and Marc Bennett, district attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.

Per Curiam:

Anthony Smith seeks the reversal of the district court's summary dismissal of his pro se Motion for Jail Credit. The district court held it lacked jurisdiction to consider Smith's motion, and the Court of Appeals affirmed. State v. Smith , 113,828, 2016 WL 2609643 (Kan. App. 2016) (unpublished opinion). Smith seeks review, arguing the district court and appellate courts have jurisdiction under the nunc pro tunc provision in K.S.A. 22-3504(2). That provision states: "Clerical mistakes in judgments, orders or other parts of the record and errors in the record arising from oversight or omission may be corrected by the court at any time and after such notice, if any, as the court orders." (Emphasis added.)

We conclude the words "at any time" means Kansas courts, with some exception, have jurisdiction to determine whether a clerical error occurred even after the time for an appeal has passed. Here, that means courts can consider Smith's motion. But Smith has the burden to allege facts supporting an allegation that a clerical error occurred. And he has not met this burden.

We therefore affirm the district court and the Court of Appeals.

FACTS AND PROCEDURAL HISTORY

In 1984, the State charged Smith with two counts of burglary and one count of felony theft in case number 84CR1626 (the '84 case). He pleaded guilty to one of the burglary counts and to the theft count. The district court subsequently sentenced Smith to 3 years of probation, with concurrent, underlying prison terms of 1-to-10 years on the burglary count and 1-to-5 years on the theft count. Neither the court nor the parties addressed jail credit at the sentencing hearing or in the journal entry of judgment.

A few months later, Smith also pleaded guilty to charges of burglary and theft in a separate case, 85CR133 (the '85 case). The record for this appeal in the '84 case includes some documents from the '85 case, and there are references in the '84 case's documents to the '85 case. We thus know that the district court placed Smith on probation in the '85 case as well.

In February 1986, Smith violated his probation in the '84 case. The district court revoked probation and imposed the underlying sentence. Smith successfully moved to modify his sentence, and the district court again placed Smith on probation. About three months later, he violated his probation again, and the court revoked his probation and imposed the prison sentence in both the '84 and the '85 cases. The journal entry entered in each case reflects that the district court granted Smith credit for time he spent in custody by adjusting the sentence begins dates. Later, the district court denied Smith's motion to modify his sentence. Smith did not appeal the revocation of his probation in the '84 case or the calculation of his jail credit.

About 30 years later, in August 2014, Smith filed a pro se motion for jail credit. He alleged he is entitled to credit for 14 months and 2 days for time spent in the Sedgwick County Community Correction Residential Facility and for 96 more days spent in jail. The parties and the district court have used the shorthand of "jail credit" for both types of custody, and we will do the same. The way in which jail credit is reflected in a journal entry is by the court setting a sentence begins date based on counting back in time from the sentencing date by the number of days' credit awarded. See K.S.A. 2018 Supp. 21-6615. According to Smith, his sentence begins date in the '84 case should have been December 23, 1984, rather than May 21, 1986. To support this computation, Smith sets out the dates he claims to have been in the residential facility and to have spent in jail.

The district court denied the motion, concluding: "Any jail credit issue [is] waived at this point." In support of its conclusion, the district court cited State v. Muldrow , No. 107,291, 2013 WL 1149704 (Kan. App. 2013) (unpublished opinion). The Muldrow panel held that a defendant must raise through a direct appeal any issue about the calculation of a sentence begins date; otherwise, the defendant waives the issue. Thus, under Muldrow 's holding, a court lacks jurisdiction over a motion for jail credit filed after the time for a direct appeal has expired. 2013 WL 1149704, at *2.

Smith appealed. Appellate counsel asked the Court of Appeals to interpret broadly Smith's pro se motion as a K.S.A. 60-1507 motion or a motion for a nunc pro tunc order under K.S.A. 22-3504(2). The Court of Appeals panel affirmed the district court, citing several reasons Smith could not succeed. Smith , 2016 WL 2609643, at *3-4.

The panel first noted a criminal defendant's challenge to jail credit does not fall within a claim of an illegal sentence that a defendant can raise at any time under K.S.A. 22-3504(1). Smith , 2016 WL 2609643, at *3(citing State v. Lofton , 272 Kan. 216, Syl. ¶ 1, 32 P.3d 711 [2001] ).

Second, the panel concluded both substantive and procedural deficiencies prevented treating the motion as one filed under K.S.A. 60-1507. As to the substantive reason, the panel cited caselaw holding jail credit motions do "not fall within the confines of K.S.A. 60-1507 as a means of attacking an unconstitutional sentence." 2016 WL 2609643, at *3 (citing Muldrow , 2013 WL 1149704, at *3 ; State v. Chambers , No. 100,493, 2009 WL 2436683 [Kan. App. 2009] [unpublished opinion], rev. denied 289 Kan. 1281 [2010]). Addressing the procedural bar, the panel held Smith's motion was untimely and Smith made no claim that manifest injustice excused the untimely filing. Smith , 2016 WL 2609643, at *3.

Third, the panel rejected Smith's claim that he could pursue receiving more jail credit through a nunc pro tunc motion filed under K.S.A. 22-3504(2). The panel agreed with Smith that this court's opinion in State v. Guzman , 279 Kan. 812, 813-16, 112 P.3d 120 (2005), reached the merits of Jaime Guzman's nunc pro tunc motion for jail credit. The panel noted, however, that the Guzman court did not discuss or rule on the question of jurisdiction. The panel then addressed another decision of this court, Lofton , 272 Kan. 216, 32 P.3d 711. There, Jackie Lofton labeled his motion for jail credit as a nunc pro tunc motion. But "the Supreme Court agreed with the district court that the motion was not properly before the court. 272 Kan. at 217, 32 P.3d 711." Smith , 2016 WL 2609643, at *3. Finally, the panel concluded Smith's motion "cannot be fairly construed as a nunc pro tunc motion authorized under K.S.A. 22-3504(2).... Smith's motion requests almost 18 months of additional jail credit, and he makes no claim that his failure to receive the credit was the result of a clerical error." Smith , 2016 WL 2609643, at *3.

Fourth, the panel concluded Smith's challenge to the jail credit award was barred by principles of res judicata and waiver, citing Muldrow , State v. Blazier , No. 110,070, 2014 WL 4916599 (Kan. App. 2014) (unpublished opinion), and State v. Olson , No. 102,226, 2010 WL 2978044 (Kan. App. 2010) (unpublished opinion). It also relied on this court's description of res judicata in State v. Kingsley , 299 Kan. 896, 901, 326 P.3d 1083 (2014). The panel noted Smith had the opportunity to challenge the jail credit awarded in the two journal entries following his probation revocations, but he did not. The panel concluded Smith waived his right to challenge his jail credit by waiting past the time for a direct appeal to challenge the journal entries. Smith , 2016 WL 2609643, at *4.

Alternatively, the panel concluded Smith failed to carry his burden to show he was entitled to additional jail credit. The panel noted Smith concurrently served time on at least two different cases, possibly more, during the relevant period. Smith failed to establish any jail credit sought was solely attributable to the '84 case. Smith , 2016 WL 2609643, at *4.

Smith petitioned for review "to resolve whether courts have jurisdiction to review post-conviction jail credit motions." Smith asked this court to resolve a conflict among Court of Appeals panels on this issue. Smith pursued no argument he was entitled to relief under K.S.A. 60-1507 or under K.S.A. 22-3504(1) (correcting illegal sentences) in his petition for review.

After his petition, Smith filed a Supreme Court Rule 6.09 (2019 Kan. S. Ct. R. 39) letter alerting this court to State v. Storer , 53 Kan. App. 2d 1, 382 P.3d 467 (2016), which also addresses jurisdiction to consider jail credit motions under K.S.A. 22-3504(2). Although we received the Rule 6.09 letter, neither Smith nor the State addressed Storer at oral argument.

ANALYSIS

Smith's pro se motion for jail credit ultimately puts into issue whether he received appropriate credit for time spent in confinement or a community corrections residential services program. K.S.A. 2018 Supp. 21-6615, formerly K.S.A. 21-4614, requires the sentencing judge to award a defendant credit for time spent in custody while awaiting disposition of his case. State v. Denney , 278 Kan. 643, 648, 101 P.3d 1257 (2004). But " ‘[a] defendant is not entitled to credit on a sentence for time which he has spent in jail upon other, distinct, and wholly unrelated charges.’ "

Denney , 278 Kan. at 648, 101 P.3d 1257 (quoting Campbell v. State , 223 Kan. 528, Syl. ¶ 2, 575 P.2d 524 [1978] ). Summarizing the applicable principles, the Denney court held: " ‘The provisions of K.S.A. 21-4614 are mandatory and require that a criminal defendant sentenced to incarceration be given credit for all time spent in custody solely on the...