Davis v. Cline

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NOT DESIGNATED FOR PUBLICATION

No. 119,144

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

MARVIN B. DAVIS JR.,
Appellant,

v.

SAM CLINE, WARDEN, et al.,
Appellees.


MEMORANDUM OPINION

Appeal from Leavenworth District Court; GUNNAR A. SUNDBY, judge. Opinion filed October 12,
2018. Affirmed.

Joseph A. Desch, of Law Office of Joseph A. Desch, of Topeka, for appellant.

Sherri Price, legal counsel and special assistant attorney general, of Lansing Correctional
Facility, for appellees.

Before BUSER, P.J., ATCHESON, J., and WALKER, S.J.

PER CURIAM: This is an appeal by Marvin B. Davis Jr. of the dismissal of his
petition for writ of habeas corpus brought under K.S.A. 60-1501. Davis contends the
Kansas Department of Corrections (KDOC) violated his due process rights by
aggregating the sentences from two criminal cases. Finding no error, we affirm the
district court.



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FACTUAL AND PROCEDURAL BACKGROUND

In 1996, Davis was convicted in Sedgwick County in case 96 CR 2192 (1996
case). After serving the incarceration portion of the sentence, the KDOC released Davis
to begin serving a period of postrelease supervision. While on postrelease supervision,
Davis committed a new offense. As a result, he pled no contest to the crime of attempted
offender registration violation in Sedgwick County in case 15 CR 2657 (2015 case).
Upon his conviction in the 2015 case, Davis was sentenced to 19 months in prison
followed by 12 months' postrelease supervision. This new sentence was ordered to run
consecutive to the sentence imposed in the 1996 case. The district court awarded Davis
350 days of jail credit for the time he spent incarcerated awaiting disposition in the 2015
case. Under terms of the new sentence, Davis had the opportunity to earn good time
credits to reduce his imprisonment by 20 percent.

About four months after being sentenced in the 2015 case, the Kansas Prisoner
Review Board (KPRB) revoked Davis' postrelease supervision status in the 1996 case
and ordered his reincarceration to serve a fixed term of imprisonment. The KDOC
aggregated Davis' sentence imposed in the 2015 case (19 months) with the term of
imprisonment imposed by the KPRB upon the revocation of his postrelease supervision
in the 1996 case (32 months and 29 days). After aggregation, the two sentences combined
for a controlling sentence of 51 months and 29 days. The KDOC then subtracted the 350
days of jail credit granted in the 2015 case from the aggregated sentence to reduce the
length of Davis' imprisonment on the controlling aggregated sentence.

Davis filed a grievance with the KDOC claiming it illegally computed his sentence
and that, given all jail credit and earned good time credits, he should have been
discharged from his 2015 sentence on December 17, 2016. The KDOC denied Davis'
request for relief stating that the sentence calculation was correct because his aggregated
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sentence did not allow release until September 16, 2019, at the earliest. Davis appealed
this decision to the warden, Sam Cline, and the Secretary of Corrections to no avail.

Davis filed a petition for writ of habeas corpus under K.S.A. 60-1501 contending
the KDOC violated his due process rights by aggregating the two sentences. At the
hearing on his motion, Davis appeared pro se by telephone. He asserted the KDOC's
records showed that he would first serve the remainder of his postrelease supervision in
the 1996 case and, after completion, he would begin serving his sentence in the 2015
case. Davis explained that the proper chronology should be that he first complete the
sentence in the 2015 case before serving the remainder of his postrelease supervision in
the 1996 case. Because of this reverse order, Davis asserted the KDOC wrongly applied
the 350 days of jail credit towards the previous sentence instead of the new sentence. The
district court took the matter under advisement.

The district court issued its memorandum decision on October 27, 2017. Relying
on Muir v. Bruce, 28 Kan. App. 2d 482, 18 P.3d 247 (2001), the district court found that
Davis did not meet the burden of proof to establish that his sentence was miscalculated or
that his due process rights were violated. Accordingly, the district court dismissed the
K.S.A. 60-1501 motion. Davis filed a motion to alter or amend the judgment which was
also denied. He filed a timely notice of appeal to our court.

ANALYSIS

We begin the analysis by stating our standard of review which is agreed upon by
both parties. An appellate court reviews a district court's decision on a K.S.A. 60-1501
petition to determine whether the district court's factual findings are supported by
substantial competent evidence and are sufficient to support the court's conclusions of
law. The district court's conclusions of law are subject to de novo review. Rice v. State,
278 Kan. 309, 320, 95 P.3d 994 (2004); Hooks v. State, 51 Kan. App. 2d 527, 530, 349
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P.3d 476 (2015). Additionally, to the extent an appellate issue requires interpretation of
the Kansas Sentencing Guidelines statutes, such review is a question of law under which
appellate courts have unlimited review. State v. Nguyen, 304 Kan. 420, 422, 372 P.3d
1142 (2016)

To state a claim for relief under K.S.A. 60-1501, a petition must allege "shocking
and intolerable conduct or continuing mistreatment of a constitutional stature." Johnson
v. State, 289 Kan. 642, 648, 215 P.3d 575 (2009). "[I]f, on the face of the petition, it can
be established that petitioner is not entitled to relief, or if, from undisputed facts, or from
uncontrovertible facts, such as those recited in a court record, it appears, as a matter of
law, no cause for granting a writ exists," then dismissal is proper. 289 Kan. at 648-49; see
K.S.A. 2017 Supp. 60-1503(a).

At the outset, Davis' petition and brief on appeal are unclear and inconsistent with
each other regarding the specifics of his due process claim. In his petition, Davis asserted,
"said imprisonment is wrongful due to deliberate and willful miscalculation of sentence."
In the petition, Davis contended the KDOC ordered him to serve and complete the
remainder of his postrelease supervision term prior to serving the sentence on the 2015
case. Davis claimed the KDOC then applied the 350 day jail credit to the postrelease
supervision portion, rather than the new sentence. Although at the hearing Davis did not
specifically identify any documentation to support his allegation, he stated the "statement
of the records themselves" showed that Davis would continue serving his postrelease
revocation term before beginning to serve his new sentence, which, in his estimation,
violated White v. Bruce, 23 Kan. App. 2d 449, 932 P.2d 448 (1997).

On appeal, Davis still relies on White, but he frames the issue differently than he
did in his petition. On appeal, Davis claims that instead of suspending his postrelease
supervision, the KDOC illegally aggregated the remaining portion of his postrelease
supervision with his sentence in the 2015 case and then further erred in applying his jail
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credit towards that aggregated sentence. Davis also asserts that, upon the application of
jail credit and earned good time credits, he completed the sentence in the 2015 case and,
as a result, there is no sentence left to aggregate with the postrelease supervision term of
imprisonment.

In response, Cline asserts that Davis' complaints are based on the fact that he
received an aggregated sentence instead of being discharged from one sentence to serve
another. Cline argues that Muir specifically holds that when prisoners are ordered to
serve consecutive sentences, they are not released from one sentence to serve a term of
postrelease supervision and then reincarcerated later to complete the other sentence. Cline
also argues that, despite Davis' claims, his due process rights were not impacted because
he received the full 350 days of jail credit ordered by the district court in the 2015 case.

Under K.S.A. 2017 Supp. 21-6606(c), a person convicted of a new crime while on
postrelease supervision shall first serve the remaining postrelease supervision term and
then serve the new sentence consecutively. However, past appellate courts have applied
this statute differently when the postrelease supervision term had not been revoked prior
to imposition of the new sentence.

In White, our court discussed whether jail credit for time spent incarcerated for
another crime may be applied towards an unrevoked postrelease supervision term. White
committed a new crime while on postrelease supervision and served seven months
incarceration awaiting disposition of the new crime. Because his postrelease supervision
had not yet been revoked, White argued that he could attribute those seven months to his
postrelease supervision term.

Our court determined that once a person is reincarcerated, they are no longer
considered "released to the community" as described by the postrelease supervision
statute. 23 Kan. App. 2d at 452. We reasoned that incarceration and postrelease
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supervision are mutually exclusive sentencing concepts that cannot be satisfied at the
same time, thus, "an inmate cannot logically remain on postrelease supervision if that
inmate is incarcerated." 23 Kan. App. 2d at 453. Our court determined that even though
the parole board had not yet revoked White's postrelease supervision, White was no
longer serving his postrelease supervision term and the time spent in prison could not vest
as credit against his postrelease supervision term. Finally, our court found that an
individual shall continue to serve the new sentence first and the postrelease supervision
status will be suspended until the new sentence is completed. 23 Kan. App. 2d at 455. In
summary, White stands for the proposition that an individual may not receive jail credit
against both the new sentence and postrelease supervision, and any awarded jail credit
will count towards the new sentence. In the case on appeal, the record is clear that the
KDOC applied 350 days of jail credit, and this credit was not duplicative.

From his appellant's brief, it appears that Davis' primary concern relates to the
KDOC's use of the term "aggregating." Davis argues that in aggregating the two
sentences, the KDOC applied the 350 days of jail credit to the sentence in the 1996 case,
rather than the 2015 case. Davis contends that, under White, sentences may not be
aggregated. However, White does not address aggregation, it only holds that time served
in prison should be counted towards the new sentence and may not be credited towards
an unrevoked postrelease supervision term.

The district court relied on Muir in ruling that aggregating Davis' sentences did not
violate his due process rights. Davis asserts that White and Muir are contradictory and
that the district court erred as a matter of law in relying on our court's opinion in Muir
which he characterizes as "an outlier."

In Muir, our court held that, despite the language of K.S.A. 21-4608(c)—the
predecessor to K.S.A. 2017 Supp. 21-6606(c), upon postrelease supervision revocation,
the defendant shall finish serving his or her new sentence before serving the remaining
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postrelease supervision term. 28 Kan. App. 2d at 486. Thus, a postrelease supervision
term is suspended while the defendant is incarcerated for a new crime. In our view, Muir
and White do not conflict but complement each other. Muir specifically provides that its
interpretation of the issue is consistent with the White holding that when a prisoner's
postrelease supervision is revoked after a new sentence is imposed, the defendant should
serve the new sentence first followed by the remaining postrelease supervision term.
Muir, 28 Kan. App. 2d at 485-86.

Of particular relevance to the case on appeal, Muir also discussed a Kansas
sentencing guidelines directive that required the new sentence to be aggregated with time
remaining on the postrelease supervision sentence to establish the overall controlling
sentence to be served. 28 Kan. App. 2d at 486. As we explained, sentences are aggregated
in order to determine the total length of the term, guideline release dates, and final
discharge dates. 28 Kan. App. 2d at 486. The Muir court held that "when prisoners are
ordered to serve consecutive sentences, they are not released after the completion of one
sentence to postrelease supervision then reincarcerated later to complete the other
sentence. The sentences are aggregated, and the good time is subtracted at the end from
the guidelines release date." 28 Kan. App. 2d at 486.

According to both Muir and White, a defendant's postrelease supervision term is
suspended while the defendant is serving a new sentence. Under Muir, the new sentence
must be aggregated with the remaining postrelease supervision portion from the old
sentence. Credits are then applied to that aggregated total. This also complies with
K.A.R. 44-6-140a(b), which states: "To obtain the controlling guidelines release date for
consecutive guidelines sentences, all prison portions of the terms shall be added, and the
resulting sum of months shall be added to the sentence begins date."

Muir's use of the term "aggregating" simply means that a prisoner will serve a
continuous prison term when, as in this case, the defendant is ordered to serve two
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consecutive prison sentences. Thus, upon Davis receiving jail credit and good time
credits and completing his sentence in the 2015 case, he was mandated to serve the
remaining portion of his postrelease supervision term in the 1996 case immediately
thereafter. Contrary to Davis' assertion, under Kansas law and administrative guidelines,
Davis may not be discharged from prison until he completes both sentences.

Finally, Davis claims for the first time on appeal the KDOC violated his due
process rights by eliminating his ability to earn good time credits on his remaining
postrelease supervision prison term. As pointed out by Cline, Davis did not raise this
issue in the district court, nor on appeal does he invoke an exception to the general rule
that issues not raised in the district court are generally not preserved for appellate review.
See State v. Godfrey, 301 Kan. 1041, 1043, 350 P.3d 1068 (2015); Kansas Supreme
Court Rule 6.02(a)(5) (2018 Kan. S. Ct. R. 34). In this regard, our Supreme Court has
admonished that litigants need to comply with Supreme Court Rule 6.02(a)(5) "or risk a
ruling that an issue improperly briefed will be deemed waived or abandoned." State v.
Williams, 298 Kan. 1075, 1085, 319 P.3d 528 (2014). We conclude this particular issue is
waived.

We pause to note, however, that Davis' argument is not supported by Kansas law:

"For offenders who are serving a sentencing guidelines sentence and whose
postrelease supervision is revoked due to commission of a new crime, good time credits
shall not be available to reduce the period of the incarceration penalty. Offenders whose
postrelease supervision is revoked due to commission of a new felony shall serve the
entire remaining balance of postrelease supervision in prison." K.A.R. 44-6-115c(c).

Davis is not eligible for good time credits to reduce the period of incarceration
imposed due to the revocation of his postrelease supervision. However, Davis may
receive up to 20 percent of good time credits awarded under the sentence imposed in the
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2015 case. Thus, under K.A.R. 44-6-115c, the district court did not err in assessing the
KDOC's handling of earned good time credits on the 2015 case.

In conclusion, we are persuaded that Davis' claim that KDOC willfully and
deliberately miscalculated his aggregated sentence is not supported by Kansas law or the
facts in the record. The district court found that Davis did not show that his sentence was
improperly calculated or that his due process rights had been violated. We agree. The
district court's factual findings are supported by substantial competent evidence and are
sufficient to support the court's conclusions of law in dismissing the petition.

Affirmed.