Anderson v. BruceAnderson v. Bruce
- Reporters:
- , ,
- Before:
- Lockett
The opinion of the court was delivered by
Lockett, J.:
Joseph Anderson appeals the Court of Appeals’ affirmance of the district court’s denial of his
In January 1980, Anderson was sentenced to 5 to 20 years on one count of aggravated robbery committed in October 1979. His sentence commenced October 23, 1979. Prior to completing his sentence, Anderson was paroled on June 28,1984. In March 1986, Anderson was sentenced to a term of 3 to 10 years on two counts of forgery and one count of possession of cocaine committed in 1985 while he was on parole. Anderson was also sentenced to a term of 3 to 10 years for burglary and theft committed while he was on parole in 1986. Anderson was given 3 years, 6 months, and 22 days of prior penal credit, making his sentence begins date June 7,1982, on those convictions. These sentences were ordered to run consecutive to each other and consecutive to his sentence for the 1979 offense. At that time, Anderson’s controlling term was 11 to 40 years.
Anderson was again paroled. Because of events that occurred while on parole in 1993, Anderson was convicted and sentenced in July 1994 to a term of 1 to 2 years for aggravated false imprisonment and an aggravated weapons violation. Anderson was credited with 6 years, giving him a sentence begins date of February 2,1988, on this conviction. The 1994 sentence was ordered to run consecutive to the prior sentences. Anderson’s controlling term was 12 to 42 years.
Anderson filed a grievance with his Unit Team in November 1999, alleging his sentence had been illegally modified when it was aggregated. Anderson also claimed he had been denied jail credit and credit for time served on parole. The Unit Manager found Anderson’s sentence had been correctly calculated. The Warden concurred with the Unit Manager’s finding. In December 1999, Anderson appealed to the Secretary of Corrections. The Secretaiy of Corrections approved the findings of the Unit Team and the Warden.
The Court of Appeals affirmed the district court’s decision. The Court of Appeals found
Thomas v. Hannigan,
27 Kan. App. 2d 614, 6 P.3d 933 (2000), controlling and held that the failure to grant Anderson credit for time spent on parole did not violate the Ex Post Facto Clause. The Court of Appeals also found Anderson’s contention that his sentence for the 1979 offense had expired 20 years after his sentence date to be “nonsensical” and without merit. This court granted Anderson’s petition for review. Our jurisdiction is pursuant to
CREDIT FOR TIME SPENT ON PAROLE
Anderson contends the district court erred in finding that he was not entitled to credit for the time spent on parole for his 1979 offense. Determination of the amount of credit for time spent on parole is a matter of statutory interpretation. Interpretation of a statute is a question of law over which an appellate court’s review is unlimited. State v. Palmer, 262 Kan. 745, 748, 942 P.2d 19 (1997). In construing statutes and determining legislative intent, several provisions of an act, in pari materia, must be construed together with a view of reconciling and bringing them into workable harmony, if possible. Unrau v. Kidron Bethel Retirement Services, Inc., 271 Kan. 743, Syl. ¶2, 27 P.3d 1 (2001).
CONFLICT BETWEEN STATUTES
Pursuant to K.S.A.’ 21-4608(c), a person convicted and sentenced
“When indeterminate sentences are imposed to be served consecutively to sentences previously imposed in any other court or the sentencing court, the aggregated mínimums and máximums shall be computed from the effective date of the subsequent sentences which have been imposed as consecutive. For the purpose of determining the sentence begins date and the parole eligibility and conditional release dates, the inmate shall be given credit on die aggregate sentence for time spent imprisoned on the previous sentences, but not exceeding an amount equal to the previous minimum sentence less the maximum amount of good time credit that could have been earned on the minimum sentence. For the purposes of computing the maximum date, the inmate shall be given credit for all time spent imprisoned on the previous sentence. This method for computation of the maximum sentence shall be utilized for all sentences computed pursuant to this subsection after July 1, 1983.”K.S.A. 21-4608(f)(4) .
See
At the time Anderson was convicted in 1979 and until 1982, when imposing consecutive sentences to run consecutive to sentences for which the prisoner had been on probation, parole, or conditional release, the prisoner received credit for the time spent on probation, parole, or conditional release. See
‘When consecutive sentences are imposed which are to be served consecutive to sentences for which a prisoner has been on probation, assigned to a community correctional services program, on parole or on conditional release, the amount of time served on probation, on assignment to a community correctional services program, on parole or on conditional release shall not be credited as service on the aggregate sentence in determining parole eligibility, conditional release and maximum dates, except that credit shall be given for any amount of time spent in a residential facility while on probation or assignment to a community correctional residential services program.”K.S.A. 21-4608(f)(5) (Emphasis added.).
K.A.R. 44-6-107(a) provides in part:
“The statutes constituting the substantive law in effect at the time tire crime is committed shall apply to compute the sentence term and the release dates. Nosubsequent change in the statute constituting substantive law shall be applied if that law adversely affects the inmate.”
Anderson asserts that
Anderson also asserts that
“An inmate shall be eligible for parole on the date provided by statute at the time the inmate committed the crime for which imprisoned unless subsequent amendment of the statute provides an earlier parole eligibility date.”
Anderson points out that the same legislature that amended
“The provisions of this subsection relating to parole eligibility shall be applicable to persons convicted of crimes prior to January 1,1979, but shall be applicable to persons convicted of crimes committed on or after that date only to the extent that the terms of this subsection are not in conflict loith the provisions of K S.A. 22- 3717 and amendments thereto.” (Emphasis added.)
We note that
The reasoning of
Hudson
also distinguishes
Additionally, Anderson also makes reference to the fact that the failure to grant him credit for time on parole violated the prohibition against double jeopardy. Hudson also addressed this issue and found that failure to grant credit for time on parole under such circumstances does not violate double jeopardy. 273 Kan. at 259.
Thus, there is no conflict between the statutes, and Anderson was not entitled to credit for the time spent on parole for his 1979 offense. We note that it is the law that applied at the time of the commission of a subsequent offense that controls whether an individual receives credit for time spent on parole. Cf. State v. Martin, 270 Kan. 603, 608, 17 P.3d 344 (2001). The law in effect in 1986 and subsequently does not grant credit for time spent on parole for individuals being sentenced for a crime committed while on parole. Anderson’s sentence was correctly calculated.
VIOLATION OF EX POST FACTO CLAUSE
Anderson also contends
The United States Constitution’s ex post facto prohibition forbids legislative enactment of any law which imposes a punishment for an act which was not punishable at the time the act was committed or which imposes punishment additional to what was prescribed. See
The United States Supreme Court stated in Weaver v. Graham, 450 U.S. 24, 30-31, 67 L. Ed. 2d 17, 101 S. Ct. 960 (1981):
“Critical to relief under the Ex Post Facto Clause is not an individual’s right to less punishment, but the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated. Thus, even if a statute merely alters penal provisions accorded by the grace of the legislature, it violates the Clause if it is both retrospective and more onerous than the law in effect on the date of the offense.”
See Stansbury, 265 Kan. 404, Syl. ¶ 3.
In reaching that conclusion, the
Weaver
Court recognized that the critical question in determining if there has been an ex post facto violation is whether the law changes the legal consequences of acts completed before its effective date. 450 U.S. at 31. Here, the subsequent aggregation and denial of credit for time spent on parole did not alter the legal consequences of acts completed prior to the 1983 amendment. No additional punishment was inflicted upon Anderson as a result of
The Court of Appeals previously addressed this issue in
Thomas.
As in this case, when Thomas committed his first crime,
The majority of the
Thomas
court overruled the district court’s finding that the failure to credit Thomas for the time spent on parole resulted in an ex post facto application of the law. The majority reasoned that the denial of the credits did not violate the Ex Post Facto Clause because the punishment Thomas received was
In Stansbury and Bankes, the regulation in effect at the time the petitioners committed the crimes for which they were convicted and sentenced provided that the petitioners would earn 100 percent of their authorized good time credits by remaining free of any prison offenses and by the discretionary grant of good time credits by the unit team manager. The regulation was subsequently amended and both petitioners were denied 100 percent of their good time credits upon their refusal to participate in a sexual abuse treatment program. The amendment had a detrimental effect upon the petitioners’ parole eligibility and conditional release dates. This court found that the application of the new regulation to the petitioners violated the Ex Post Facto Clause of the United States Constitution. See Stansbury, 265 Kan. 404, Syl. ¶ 7; Bankes, 265 Kan. 341, 353.
In Gamer, as a result of disciplinary violations, the petitioner had suffered an extension of his conditional release date under the amended regulation. The Court of Appeals applied tire reasoning in Stansbury and Bankes to find an ex post facto violation in the application of a regulation concerning the earning, withholding, and forfeiting of good time credits that was amended after the petitioner committed his crime. 25 Kan. App. 2d at 395-400, 404.
The
Thomas
court distinguished
Stansbury
and
Bankes,
reasoning that Thomas, unlike the petitioners in those cases, was not required to earn credit he was entitled to under the old law in order to obtain an earlier conditional release or parole eligibility
However, if the petitioner in Gamer would not have committed disciplinary violations, the amended regulation would not have detrimentally affected his conditional release date. This is similar to the reasoning that if Thomas had not committed a new crime while on parole, he would not have suffered the loss of credit for the time spent on parole. Thus, the Thomas court’s basis for distinguishing Stan sbury and Bankes does not work to distinguish Garner.
Gamer is, however, distinguishable. In Garner, the extension of the petitioner’s conditional release date as a result of disciplinary violations goes directly toward the punishment for the crime committed prior to the enactment of the regulation. In Thomas, as in this case, the denial of credit for time spent on parole does not increase the penalty on the previous crime but, instead, affects the punishment for the crime committed while the petitioner was on parole.
As was recognized in
Blomeyer v. State,
22 Kan. App. 2d 382, 385, 915 P.2d 790,
rev. denied
260 Kan. 991 (1996), the legislative intent of
This same reasoning is used in determining the intent of the legislature in disallowing credit for time spent on parole in calculating parole eligibility, conditional release, and maximum dates. The credit for time spent on parole is denied in calculating the aggregate sentence and does not increase punishment on the prior
In reaching its decision, the Thomas court relied upon Wishteyah v. Kansas Parole Board, 17 Kan. App. 2d 480, 838 P.2d 371 (1992). In Wishteyah, the Kansas Parole Board had an unwritten policy regarding conditions placed on individuals released from prison at the time Wishteyah committed the crimes for which he was incarcerated. The unwritten policy required that the individuals not violate state or federal law while on parole. During Wishteyah’s incarceration, the policy was revised, placing conditions and requirements on individuals regarding such things as use of narcotics and alcohol, associating with others engaged in illegal activity, and counseling and aftercare. Wishteyah was conditionally released 6 years after the revised policy went into effect. His conditional release was subsequently revoked for violating these conditions. Wishteyah alleged die application of the revised policy was an ex post facto violation. The Wishteyah court held that application of the revised policy to Wishteyah was not an ex post facto violation because the revisions did not apply retrospectively to conduct occurring before the imposition of the conditions. The revisions applied only to Wishteyah’s future conduct. 17 Kan. App. 2d at 483.
The
Thomas
court also relied upon
United States v. Glover,
153 F.3d 749 (D.C. Cir. 1998), which addressed an ex post facto challenge to the reclassification of prior crimes that resulted in a harsher sentence upon commission of additional offenses. At the time Glover committed his prior crimes, the offenses were considered misdemeanors, even though they carried the possibility of imprisonment for more than 1 year after taking into account Glover’s criminal history. Until 1994, these offenses were also considered misdemeanors for the purpose of enhancing a federal sentence. However, in 1994, the law was amended to define these offenses as felony offenses. Because Glover’s prior offenses were considered felony offenses, Glover received a harsher sentence upon a new conviction than he would have if the prior offenses
“Despite Glover’s characterization, the 1994 ‘reclassification’ of his prior crimes did not add a new penalty for those crimes themselves. Like other repeat offender statutes, it did nothing more than prospectively define new, more drastic consequences if Glover committed a further crime . . . Because the provision expanding the category of prior offenses that would prospectively be considered ‘felony drug offenses’ was passed in 1994, a year before the first drug transaction at issue here, Glover had ‘fair warning,’ see Miller v. Florida, 482 U.S. 423, 430, 107 S. Ct. 2446, 96 L. Ed. 2d 351 (1987), that he would face stiffer penalties as a repeat offender if he committed another drug-related offense. Those penalties were punishments for his 1995 crimes, not for his prior crimes, and therefore do not violate the Ex Post Facto Clause even though tire federal statute labeled the prior convictions differently than did the states.” 153 F.3d at 757-58.
The federal courts’ reasoning regarding the version of the sentencing guidelines to apply in cases involving crimes committed over a span of years is also persuasive. See United States v. Kimler, 167 F.3d 889 (5th Cir. 1999) (at time of commission of latest offense, defendant had “adequate notice” that his previous offenses would be grouped with his latest offense; thus, defendant’s decision to continue illegal activities after revision of guidelines allowed guidelines in effect at commission of latest offense to be applied without ex post facto violation), and United States v. Bailey, 123 F.3d 1381 (11th Cir. 1997) (defendant had fair notice that additional crimes would subject him to guidelines in effect at time the latest crime for which he was convicted was committed; no ex post facto violation).
The 1983 amendment denying credit for time on parole went into effect while Anderson was in prison and was in effect for more than 2 years before Anderson committed the new crimes. Anderson had adequate notice that commission of a new offense would result in the denial of credit for time spent on parole. Anderson was not receiving an increased punishment on his prior offense, but an increased punishment on his new offenses because they were committed while he was on parole. Thus, there was no ex
UNAGGREGATING THE SENTENCE
Anderson contends his 1979 offense retains its individuality despite aggregation of sentences and, therefore, upon serving his sentence for the 1979 offense he was entitled to have the offense removed and his parole eligibility, conditional release, and sentence term recalculated. Anderson cites Price v. State, 28 Kan. App. 2d 854, 21 P.3d 1021, rev. denied 271 Kan. 1037 (2001), and Blomeyer for support.
In
Price,
the issue was whether the petitioner was entitled to retroactive conversion under the Kansas Sentencing Guidelines Act (KSGA),
In
Blomeyer,
the Court of Appeals was also faced with a claim that a prisoner was entitled to conversion of his sentence under the KSGA. Blomeyer had been convicted and sentenced initially to 1 to 5 years for conspiracy to deliver cocaine. While on parole, Blomeyer was convicted of two additional offenses. He was convicted of felony theft, receiving a sentence of 1 to 2 years, and felony burglary, receiving a sentence of
2Vz
to 8 years. Pursuant to
At first blush, Price and Blomeyer seem to support Anderson’s contention that after serving the maximum time on his initial offense the sentence on that offense is deemed to have been served. However, upon closer examination, the facts in those cases differ from those in this case and support the DOC’s assertion that Anderson is not entitled to recalculation of parole eligibility, conditional release, and maximum dates without inclusion of his 1979 offense.
In
Price
and
Blomeyer,
the issue was conversion of a sentence under the KSGA. Both courts recognized that the legislature intended the aggregation rules under
The DOC contends that after aggregation, sentences lose their individual identities and become one sentence. This argument was specifically rejected by the Court of Appeals in Price, which stated:
“ ‘Consecutive sentences may not be treated collectively as one for the aggregate term of all, and the identity of the punishment for each must be preserved.’ 24 C.J.S., Criminal Law § 1582. In other words, a consecutive sentence ‘is one which commences at the termination of another term of imprisonment to which [an] accused has been sentenced. A prisoner serving the first of several consecutive sentences is not serving the other sentences . . . the prisoner serves only one sentence at a time.’ 24 C.J.S., Criminal Law § 1582. See State v. Bell, 6 Kan. App. 2d 573, 574, 631 P.2d 254 (1981) (defining ‘consecutive sentences’ as sentences ‘following in a train, succeeding one another in a regular order.’). As a result, onJuly 1, 1993, Price was either on conditional release for aggravated burglaiy or for rape, but not for both offenses.” 28 Kan. App. 2d at 858.
Anderson is essentially urging this court to create a mechanism for recalculation of parole eligibility, conditional release, and maximum dates after service of the maximum time on the first offense. The fact that each of Anderson’s sentences retains its individual identity, however, does not entitle Anderson to have his sentence unaggregated for the purpose of sentence recalculation. Neither the statutes nor the regulations provide for such a recalculation. The legislature intended the aggregation rules to be used in making this calculation. See Price, 28 Kan. App. 2d at 858; Blomeyer, 22 Kan. App. 2d at 385. Anderson is required to serve additional time by the inclusion of his 1979 offense in the calculation because that was the legislature’s intent.
The judgments of the Court of Appeals and the district court are affirmed.