Opinion
No. 107,655.
2013-08-29
Matthew C. DURBIN, Appellant, v. STATE of Kansas, Appellee.
Appeal from Sedgwick District Court; Anthony J. Powell, Judge. Joanna Labastida, of Kansas Appellate Defender Office, for appellant. Boyd K. Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Anthony J. Powell, Judge.
Joanna Labastida, of Kansas Appellate Defender Office, for appellant. Boyd K. Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before McANANY, P.J., Hill and LEBEN, JJ.
MEMORANDUM OPINION
PER CURIAM.
Matthew Durbin is serving a 432–month prison sentence on his 2008 convictions for attempted rape and kidnapping. In 2011, he filed a habeas corpus action under K.S.A. 60–1507 claiming that because the Kansas Department of Corrections isn't providing rehabilitative programs and treatment, his sentence is illegal and he is suffering cruel and unusual punishment. The district court summarily denied his claim, concluding that even if true, the lack of rehabilitation programs wouldn't make his sentence illegal and that any claims about the conditions of confinement must be made under a different statutory provision, K.S.A. 60–1501.
On appeal, Durbin renews his claims, but we agree with the district court that the lack of rehabilitation programs in prison wouldn't make his sentence subject to attack under K.S.A. 60–1507 as an illegal sentence, and a general lack of rehabilitation programming doesn't amount to cruel and unusual punishment. We therefore affirm the district court's judgment.
Factual and Procedural Background
In June 2008, Durbin was charged in Sedgwick County District Court with one count of rape in violation of K.S.A.2006 Supp. 21–3502(a)(1)(A). After being found competent to stand trial, Durbin entered into a plea agreement with the State. Durbin agreed to plead guilty to an amended complaint charging him with attempted rape and kidnapping. In exchange, the State agreed to dismiss the original charge and recommend concurrent sentences; furthermore, the State agreed to recommend a 456–month prison sentence based on the top number in the applicable grid box for the attempted-rape conviction and the doubling of the sentence that was required under the persistent-sex-offender statute. Under the agreement, Durbin would be free to seek a downward-durational-departure sentence of no less than 310 months, but he agreed not to seek a dispositional-departure sentence of probation. The court accepted Durbin's plea and found him guilty.
Prior to sentencing, Durbin was sent to the Larned State Security Hospital for a mental evaluation. Following this evaluation, Durbin filed several motions seeking either a durational- or dispositional-departure sentence. Although Durbin admitted he had agreed not to seek a dispositional-departure sentence, he claimed that either a durational- or dispositional-departure sentence was warranted because the prison system did not have the programs to help rehabilitate him. Durbin noted that Larned personnel determined that he suffered from a mental condition or personality disorder as well as addiction issues, even though he was not a candidate for placement in the security hospital. Finally, Durbin asserted that he had cooperated with law enforcement and accepted responsibility by pleading guilty.
During the sentencing hearing, Durbin's attorney provided documents from the Department of Correction's website and a letter from the Department reflecting that many of the programs necessary for any rehabilitation of Durbin would no longer exist after July 1, 2009. Durbin's attorney emphasized Durbin's acceptance of responsibility, the sexual abuse Durbin suffered when he was young, and his prior completion of sex-offender therapy. The attorney also pleaded with the court to grant Durbin a durational-departure sentence because of the lack of rehabilitation programs in prison based on budgetary constraints. In addition, in Durbin's written motion for a departure sentence, his counsel argued that budget cuts were effectively eliminating the rehabilitation programs Durbin would need, so that “there is no option but to seek a Dispositional Departure in this matter,” even though the plea agreement did not allow Durbin to ask for one.
The district court denied Durbin's motion for a departure sentence and sentenced him to a term of 432 months in prison on the attempted-rape conviction. The court also ordered a concurrent sentence of 59 months in prison for kidnapping. In pronouncing sentence, the trial judge agreed that there were few rehabilitation programs provided by the legislature to avoid the problems presented in Durbin's case.
Durbin filed a direct appeal from his sentence, but guideline criminal sentences are not appealable. So Durbin's appeal was dismissed on September 1, 2010, for lack of jurisdiction under K.S.A. 21–4721(c).
In November 2011, Durbin filed a habeas claim under K.S.A. 60–1507. Durbin claimed that his sentence was illegal because the Department of Correction failed its legislatively mandated duty to provide rehabilitative programs and treatment. For the same reasons, Durbin asserted his sentence was cruel and unusual punishment. Finally, Durbin alleged his trial counsel was ineffective for failing to adequately raise these issues before the district court.
Following a written response by the State, the district court found that the allegations of Durbin's motion failed to establish his sentence was illegal within the meaning of K.S.A. 22–3504(1). The court found that any shortcomings in the operations of prisons by the Department of Corrections did not render Durbin's sentence illegal and that such challenges could only be raised in an action under a different statute, K.S.A. 60–1501. Thus, the court found Durbin was not entitled to relief and dismissed the claim.
Durbin has appealed to this court.
Analysis
On appeal, Durbin contends his motion stated a colorable claim—meaning a claim that could reasonably be valid—that his sentence was illegal under K.S.A. 22–3504 and that he was entitled to an evidentiary hearing. As he did below, Durbin asserts that his sentence was illegal because the Department of Corrections failed to comply with the rehabilitation requirements outlined in K.S.A. 75–5201 and K.S.A. 75–5210(a). Durbin also argues that his trial counsel was ineffective for failing to challenge the illegality of his sentence and that his sentence constitutes cruel and unusual punishment under the Eighth Amendment of the United States Constitution.
When a district court summarily denies a motion under K.S.A. 60–1507 or a motion to correct illegal sentence, the appellate court reviews the matter independently to determine whether the motions, files, and records of the case conclusively establish that the movant is not entitled to any relief. State v. Heronemus, 294 Kan. 933, 935, 281 P.3d 172 (2012) (motion to correct illegal sentence); Trotter v. State, 288 Kan. 112, 132, 200 P.3d 1236 (2009) ( K.S.A. 60–1507 motion.) Whether a sentence is illegal within the meaning of K.S.A. 22–3504 is a question of law, so we also review that question independently, without any required deference to the district court. See State v. Jones, 292 Kan. 910, 914, 257 P.3d 268 (2011), cert. denied132 S.Ct. 1097 (2012).
Illegal Sentence
Durbin's first argument is that his sentence is illegal because of the lack of rehabilitation programs. The district court concluded that Durbin hadn't shown that his sentence was actually illegal and that any claims regarding the administration of his punishment ( i.e., prison conditions) could be brought only under K.S.A. 60–1501, not K.S.A. 60–1507.
Even though both statutes allow habeas claims to be brought in court, the distinction between them is important. K.S.A. 60–1507 allows an inmate to challenge the validity of the conviction and sentence, and the action is filed in the court where the defendant was convicted. That court has the records underlying the conviction. K.S.A. 60–1501 allows an inmate to challenge the conditions of his or her confinement, and the action is filed in the court where the inmate is incarcerated. That court has ready access to evidence concerning the conditions of confinement within its geographical jurisdiction. See Safarik v. Bruce, 20 Kan.App.2d 61, Syl. ¶ 5, 883 P.2d 1211,rev. denied 256 Kan. 996 (1994).
A motion to correct an illegal sentence may be made independently under K.S.A. 22–3504, or it is sometimes brought as part of a K.S.A. 60–1507 motion. We need not discuss distinctions between those methods here, though, because our independent standard of review would be the same in either case where the trial court has summarily dismissed the claim. We must determine whether Durbin has a viable claim that his sentence is illegal. See Heronemus, 294 Kan. at 935.
An illegal sentence within the meaning of K.S.A. 22–3504(1) is a sentence imposed by a court without jurisdiction; a sentence that does not conform to the applicable statutory provision, either in the character or the term of authorized punishment; or a sentence that is ambiguous with respect to the time and manner in which it is to be served. State v. LaBelle, 290 Kan. 529, 532, 231 P.3d 1065 (2010). The Kansas Supreme Court has repeatedly emphasized that this statute applies only in very limited circumstances. State v. Davis, 288 Kan. 153, 155, 200 P.3d 443 (2009).
In his motion, Durbin complains about the conditions of his confinement—the alleged lack of rehabilitation programs available for him—and that those conditions render his confinement unconstitutional. Durbin fails, however, to cite any authority to establish that his sentence is illegal. The character and the term of his punishment—imprisonment for a term of 432 months—clearly fall within the statutory parameters for his convictions.
Durbin relies on K.S.A. 75–5201 and K.S.A. 75–5210(a) to challenge the manner in which the Department of Corrections is requiring him to serve his sentence. K.S.A. 75–5201 provides that the general purpose of the statutes governing the Department of Corrections' operations is to establish a policy of treating inmates by placing maximum emphasis on rehabilitation of each person while in custody, consistent with the interests and safety of the public. K.S.A. 75–5210(a) requires that inmates be “dealt with humanely, with efforts directed to their rehabilitation and return to the community as safely and as promptly as practicable.” To that end, the Secretary of Corrections is directed to create various programs. K.S.A. 75–5210(a).
While Durbin contends the Department of Corrections is violating these statutes, these allegations only amount to a challenge to the conditions of confinement. Such allegations do not render a sentence illegal, see Carabali–Ruiz v. United States, 2012 WL 1372252, at *2 (E.D.N.Y.2012) (unpublished opinion) (claims of inadequate drug rehabilitation programs and inadequate medical care to not render a sentence illegal), and may only be raised in an action under K.S.A. 60–1501, which would be filed in the district court for the county in which Durbin is incarcerated.
Even if we were to treat it as if it had been filed under K.S.A. 60–1501, that would not keep Durbin's claim in court because this action was not filed in the county where Durbin is incarcerated. Claims under K.S.A. 60–1501 that are filed in the wrong court are properly dismissed for lack of jurisdiction. See McKinney v. State, 27 Kan.App.2d 803, 803–04, 9 P.3d 600 (2000); Markovich v. City of Manhattan, No. 106,567, 2012 WL 718975, at *3–4 (Kan.App.2012) (unpublished opinion).
Cruel and Unusual Punishment
Durbin also contends that the lack of appropriate rehabilitation programs in prison makes his prison sentence unconstitutional under the Eighth Amendment of the United States Constitution. However, prison inmates do not have a constitutional right to rehabilitation programs in the absence of deplorable prison conditions. Garza v. Miller, 688 F.2d 480, 486 (7th Cir.1982), cert. denied459 U.S. 1150 (1983); Madyun v. Thompson, 657 F.2d 868, 874 (7th Cir.1981). And Durbin has failed to raise any factual allegations supporting a claim that the lack of rehabilitation programs create intolerable prison conditions. See Higgason v. Farley, 83 F.3d 807, 809 (7th Cir.1996) (denial of access to “social and rehabilitative activities” in prison was not an “ ‘atypical and significant deprivation’ “ triggering constitutional implications). So Durbin cannot succeed on his claim of cruel and unusual punishment.
Ineffective Assistance of Counsel
Finally, Durbin contends that his trial counsel was ineffective for failing to raise the issues discussed above during his sentencing. To establish ineffective assistance of counsel, the defendant must establish two elements. First, the defendant must prove that his or her attorney made errors so serious that the attorney's performance was less than what is guaranteed by the Sixth Amendment to the United States Constitution. Second, the defendant must establish that his or her attorney's deficient performance was so severe as to deprive the defendant of a fair trial. Harris v. State, 288 Kan. 414, 416, 204 P.3d 557 (2009).
A claim of ineffective assistance of counsel presents mixed questions of fact and law. The appellate court will review the underlying factual findings to see if they are supported by substantial evidence and will then review the legal conclusions based on those facts independently. Boldridge v. State, 289 Kan. 618, 622, 215 P.3d 585 (2009).
In this case, Durbin's trial counsel vigorously advocated—both orally and in writing—for a dispositional- or durational-departure sentence, emphasizing the budgetary cuts limiting treatment and rehabilitation programs for inmates. Although his attorney did not assert that a prison sentence would be illegal under the circumstances or that any prison sentence would constitute cruel and unusual punishment, we have already concluded in this opinion that neither argument has merit based on the record before us. An attorney is not obligated to raise—and is not ineffective for failing to raise—issues that have no merit. Littlejohn v. State, 29 Kan.App.2d 506, 508, 28 P.3d 448 (2001). Durbin has not shown entitlement to an evidentiary hearing on a claim that his counsel was ineffective.
We therefore affirm the district court's judgment.