criminal defendant's failure to raise the issue of jail
credit on direct appeal does not foreclose a motion under
court liberally construes pro se pleadings. That said, a pro
se movant still bears the burden to allege facts sufficient
to warrant relief. Thus, a criminal defendant must allege a
clerical error in a motion filed under K.S.A. 22-3504(2).
of the judgment of the Court of Appeals in an unpublished
opinion filed May 6, 2016. Appeal from Sedgwick District
Court; JOHN J. KISNER, JR., judge. Judgment of the Court of
Appeals affirming the district court is affirmed. Judgment of
the district court is affirmed.
Michelle Davidson, of Lawrence, argued the cause, and Samuel
Schirer, of Kansas Appellate Defender Office, was on the
brief for appellant.
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.
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(unpublished opinion).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.)
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.
therefore affirm the district court and the Court of Appeals.
and Procedural History
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.
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.
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
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.
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.
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.
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