Opinion
No. 111,260.
2015-03-6
STATE of Kansas, Appellee, v. Trenten WAGES, Appellant.
Appeal from Sedgwick District Court; J. Patrick Walters, Judge.Samuel D, Schierer, of Kansas Appellate Defender Office, for appellant.Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; J. Patrick Walters, Judge.
Samuel D, Schierer, of Kansas Appellate Defender Office, for appellant. Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before ARNOLD–BURGER, P.J., PIERRON and BUSER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Trenten Wages appeals the denial of his motion for jail-time credit. We dismiss for lack of jurisdiction.
On November 5, 2012, Wages pled guilty to aggravated battery. On March 26, 2013, the district court sentenced Wages to a greatly reduced departure sentence and ordered it to be served consecutive to the sentence for which he was on felony parole. At the sentencing hearing, the district judge entered the following ruling regarding jail-time credit, “I'll make a finding that [Wages] has a right to receive credit for time served.” The journal entry of judgment was filed on April 1, 2013, and was signed by the judge and the assistant district attorney but not defense counsel. The journal entry divided the jail-time credit into two periods, December 22, 2011, to December 17, 2012, (361 days) and December 17, 2012, to March 26, 2013, (99 days). The trial court granted 99 days of jail-time credit. The journal entry noted: “[Wages] was serving a sentence for case no: Butler County 09CR594, therefore is not eligible for duplicate credit in the [instant] case from 12/22/11 to 12/17/12.”
On April 8, 2013, Wages' defense counsel filed a notice of appeal (No. 110, 910) covering “all pretrial and post-trial motions rendered adversely to [Wages] including the County's judgment overruling [Wages'] post-trial pro se Motion and Amended Motion to Withdraw Plea And Reset Preliminary Hearing.” Also on April 8, 2013, the appellate public defenders office was appointed as counsel for Wages.
In his direct appeal, this court rejected Wages' claims that the district court abused its discretion by applying an alleged incorrect legal standard in denying his motion to withdraw his guilty plea. This court also rejected Wages' claim the district court did not have jurisdiction to impose restitution and the district court violated his right to be present at a critical stage of the proceedings when it imposed restitution in the journal entry. State v. Wages, No. 110,910, 2014 WL 5801183 (Kan.App.2014) (unpublished opinion).
Meanwhile, on July 18, 2013, while his direct appeal was pending, Wages filed a pro se motion for jail-time credit: December 22, 2011, to December 17, 2012, (361 days) and March 27, 2013, to April 7, 2013, (11 days). The State responded that Wages was in custody for a Butler County case from December 22, 2011, to December 17, 2012, and was already receiving jail-time credit in that case. The State also explained that Wages was already in custody once the district court imposed his sentenced on March 27, 2013, and any complaint for time served after sentencing would be with the Kansas Department of Corrections. The district court set Wages' motion for hearing on August 15, 2013, but then denied the motion without any appearances based on the above reasons set forth in the State's written response. On August 15, 2013, the court mailed Wages a copy of the motion minute sheet detailing the denial of his motion for jail-time credit.
On August 29, 2013, Wages filed a pro se notice of appeal challenging the denial of his motion for jail-time credit. In his appellate brief, Wages argues the district court erred by summarily denying his motion for jail-time credit without conducting an evidentiary hearing concerning the factual dispute as to whether he was serving a prison sentence in the Butler County case from December 22, 2011, to December 17, 2012. Wages argues the record is unclear whether his postrelease was actually revoked. The State does not address the merits of Wages' appeal, but instead argues we are without jurisdiction to even consider the case because Wages did not file his pro se motion for jail-time credit within the 14–day period following sentencing.
The State has raised a jurisdictional issue which we must address. We have unlimited review when determining whether jurisdiction exists over an appeal. State v. Ellmaker, 289 Kan. 1132, 1147, 221 P.3d 1105 (2009), cert. denied 560 U.S. 966 (2010). Subject matter jurisdiction may be raised at any time, whether for the first time on appeal or even on the appellate court's own motion. State v. Sales, 290 Kan. 130, 135, 224 P.3d 546 (2010).
The district court, in its journal entry of sentencing filed April 1, 2013, determined that Wages was to only receive 99 days jail-time credit. The journal entry also noted: “[Wages] was serving a sentence for case no: Butler County 09CR594, therefore is not eligible for duplicate credit in the [instant] case from 12/22/11 to 12/17/12.” Wages filed his pro se motion for jail-time credit nearly 4 months after his sentencing hearing and closer to 3 months after the journal entry of judgment was filed in district court.
But at the time of his sentencing, Wages had only 14 days from judgment to file a notice of appeal. K.S.A.2013 Supp. 22–3608(c). The filing of a timely notice of appeal is jurisdictional. State v. Hemphill, 286 Kan. 583, 588, 186 P.3d 777 (2008). Judgment in a criminal case is sentencing, and the time to file a notice of appeal runs from oral pronouncement of the sentence. State v. Ehrlich, 286 Kan. 923, 925, 189 P.3d 491 (2008).
Wages raises various procedural due process arguments in hypothetical situations where the district court files the journal entry of judgment more than 15 days after the sentencing hearing. If the district court is generic in its ruling at sentencing on jail-time credit, as was the case here, and the journal entry is outside of 14 days, then Wages contends he would be without recourse to challenge the jail-time credit actually entered in the journal entry.
Due process is a flexible concept rather than a technical one, and it requires only such procedural protections as each particular situation demands. Whether due process under the Fourteenth Amendment to the United States Constitution exists in a particular situation is a question of law subject to unlimited review. In re Habeas Corpus Application of Pierpoint, 271 Kan. 620, 627, 24 P.3d 128 (2001). “Procedural due process concerns appropriate mechanisms to protect against government action erroneously stripping persons of rights or interests derived from some other legal source.” Clark v. Sullivan, No. 110,394, 2014 WL 4627587, at *3 (Kan.App.2014) (unpublished opinion). Procedural due process requires that a person be afforded a right to be heard in a meaningful way before being irrevocably deprived of “life, liberty, or property.” State v. Robinson, 281 Kan. 538, 548, 132 P.3d 934 (2006) (“The basic elements of procedural due process are notice and an opportunity to be heard at a meaningful time and in a meaningful manner.”).
The court in State v. Walker, No. 109,309, 2014 WL 902153 (Kan.App.2014) (unpublished opinion), addressed Wages' due process claim. The inconsistency in Walker's jail-time credit did not appear until the journal entry was filed 2 weeks after sentencing. The Walker court noted the following appeal-time exceptions:
“Because the journal entry was filed 2 weeks after sentencing, Walker arguably did not immediately know that there was a jail-time issue to appeal. As a result, his 14 days to appeal might not have started running until he received a copy of the journal entry. But Walker did not appeal his sentence at any time. He has only appealed the court's ruling on his motion to correct an illegal sentence. Because he didn't appeal his sentence within 2 weeks of sentencing or receiving the journal entry, the sentencing court's jail-time determination became a final judgment and res judicata bars further consideration of the issue.” 2014 WL 902153, *4
Awarding or calculating jail-time credit is part of imposing the sentence and is used to compute the sentence start date. See State v. Denney, 278 Kan. 643, 648, 101 P.3d 1257 (2004) (Under the mandatory provisions of K.S.A. 21–4614, a defendant who is sentenced to incarceration must be “ ‘given credit for all time spent in custody solely on the charge for which he is being sentenced.’ ”). Here, trial counsel filed a timely direct appeal of Wages' convictions. The journal entry of judgment was filed 6 days after sentencing. Trial counsel timely filed the notice of appeal 7 days thereafter. Accordingly, Wages should have challenged the district court's calculation within the required 14 days just as his trial counsel timely challenged his convictions. We are confident all due process concerns have been met in this case.
While motions for jail-time credit have been considered to be motions to correct an illegal sentence or motions filed under K.S.A. 60–1507 in the past, the Kansas Supreme Court has now decided otherwise. In State v. Lofton, 272 Kan. 216, 217, 32 P.3d 711 (2001), the court held that when a defendant is merely attacking the district court's computation of jail-time credit, this does not constitute a claim of an illegal sentence. In State v. Olson, No .102,226, 2010 WL 2978044, at *2 (Kan.App.2010) (unpublished opinion), the defendant was not given the jail-time credit to which he felt he was entitled at sentencing. However, he did not appeal the sentencing order. After his probation was revoked, he raised the same jail-time credit issue. The district court found that his claim was untimely because he had not appealed the jail-time credit issue at the time of sentencing. The Olson court affirmed, finding that Olson should have appealed within 10 days of his original sentence and failure to do so divested the district court and the appellate court of jurisdiction over his claim. 2010 WL 2978044, at *3.
Similar to Olson, Wages is simply asking for more jail-time credit. In his motion for jail-time credit, he argues he should have received 361 days of credit. Because Wages' motion only questioned the district court's computation of jail-time credit and Lofton informs us that improper computation of jail credit does not constitute an illegal sentence, any claim regarding an illegal sentence must necessarily fail.
The second alternative for us is to review Wages' motion as a motion filed under K.S.A. 60–1507. However, the above analysis pertaining to a motion to correct an illegal sentence also applies in this scenario. Wages' assertions do not fall within the confines contemplated by K.S.A. 60–1507 as an illegal or unconstitutional sentence. See State v. Chambers, No. 100,493, 2009 WL 2436683 (Kan.App.2009) (unpublished opinion), rev. denied 289 Kan. 1281 (2010). Because Wages does not challenge the legality or constitutionality of his sentence, we cannot interpret his motion for jail-time credit as a motion filed under K.S.A. 60–1507.
Wages also maintains we have the power to address his claim as a motion nunc pro tunc. “The purpose of a nunc pro tunc order is to provide a means of entering the actual judgment of the trial court which for one reason or another was not properly recorded. The right to make the order is based on the failure to accurately reflect the court's decision.” Wallace v. Wallace, 214 Kan 344, 348–49, 520 P.2d 1221 (1974). “K.S.A. 60–260(a), however, is limited to clerical mistakes by its plain language as well as by statutory history and case law. In other words, to instances where the order fails to accurately reflect the judgment actually rendered .” In re Marriage of Leedy, 279 Kan. 311, 315, 109 P.3d 1130 (2005). Wages alleges he should be awarded more jail-time credit. He does not allege the journal entry incorrectly reflected the trial court's actual judgment.
In sum, regardless of which theory is used, we lack jurisdiction over this case. We repeat the admonition given by the court in State v. Blazier, No. 110,070, 2014 WL 4916599, at *4 (Kan.App.2014) (unpublished opinion):
“We pause to note that due to the short amount of time to appeal the allocation of jail credit, now 14 days under K.S.A.2013 Supp. 22–3608(c), defense counsel is advised to carefully discuss and examine the district court's allocation of jail-time credit in the case in order to raise it with the court or file a timely appeal, if necessary.”
See State v. Muldrow, No. No. 107,291 2013 WL 1449704 *2 (Kan.App.) (unpublished opinion), rev. denied 297 Kan. 1253 (2013).
Dismissed for lack of jurisdiction.