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State v. Smith

Supreme Court of Kansas

May 31, 2019

State of Kansas, Appellee,
v.
Anthony S. Smith, Appellant.

         SYLLABUS

         1. A criminal defendant's failure to raise the issue of jail credit on direct appeal does not foreclose a motion under K.S.A. 22-3504(2).

         2. A 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).

          Review of the judgment of the Court of Appeals in an unpublished opinion filed May 6, 2016.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.

          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 App. 2016) (unpublished opinion).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 ...


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