State v. StorerState v. Storer
- Reporters:
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- Before:
- Leben, Standridge, Arnold-Burger
LEBEN, J.: When Andrew Storer was sentencеd in 2009 for aggravated robbery and marijuana possession, he no doubt focused on one key question: Will the judge give me probation?
The answer wasn‘t a foregone conclusion. Based on the serious nature of the offense and Storer‘s past convictions, Kansas sentencing guidelines provided a presumptive prison sentence, not probation. But the parties jointly recommended probation based on a plea agreement. The judge went along with the plea agreement, sentencing Storer to 36 months of probation with an underlying 216-month (18-year) prison sentence that Storer would have to serve if he didn‘t successfully complete his probation. We have not stood before a judge wondering whether we would get probation (for 3 years or less) or go to prison for 18 years, but we think that question wоuld be the main thing a defendant in that situation would be focused on.
What Storer—and apparently the judge and the attorneys—didn‘t pay as much attention to that day was how much credit against his sentence Storer was entitled to based on the days he‘d already spent in jail awaiting trial. At the sentencing hearing, the judge simply said, “You will receive credit for time served.”
The written sentencing order (called the Journal Entry of Judgment) dutifully noted that Storer had been in jail for 254 days before sentencing, but Storer wasn‘t awarded credit for any of those days. Neither the written ordеr nor any comments made at sentencing tell us why. And Storer remained in jail for another 78 days after sentencing until a spot was available in the residential-treatment program ordered as part of his probation; he also spent 92 days in that residential program.
All of this matters because Storer didn‘t successfully complete his probation. So he is now in prison to serve his sentence. (The district court has the option when it revokes probation to shorten a sentence; in Storer‘s case, the court used that discretion to lessen his sentеnce to 120 months [10 years].) And Storer filed a motion after his probation was revoked seeking additional credit for the time he had previously spent in jail (or confined in the residential-treatment program).
But the State argues—and the district court ruled—that whether or not Storer wаs given the jail-time credit he deserved, courts cannot hear the matter because Storer failed to file an appeal way back when—specifically, within 14 days of his sentencing, when the written sentencing order didn‘t give him the jail-time credit. Since Storer failed to aрpeal then, the State contends, we have no jurisdiction to hear the issue now.
The State argues that since whatever jail-time credit is being awarded is set out in the written order at sentencing, the defendant must appeal that decision within 14 days. (The State‘s appellate brief cites the 14-day period provided for appeals arising after July 1, 2010. At the time of Storer‘s sentencing in 2009, he actually had only 10 days to appeal. Compare
But Storer cites another unpublished case, State v. Mitchell, No. 111,863, 2015 WL 5927041, at *3-4 (Kan. App. 2015), in which our court determined that it had jurisdiction to consider a request for jail-time credit even though the defendant had not filed an initial appeal within 14 days of sentencing. We believe the result reached by the Mitchell court was correct—unless the district court has previously made a considered (and unappealed) ruling on the jail-time-credit issue after hearing the position of both sides on the matter, the jail-time-credit ruling can be amended on a motion under
That statute is part of the Kansas Code of Criminal Prоcedure. It provides that “[c]lerical mistakes in judgments . . . and errors in the record arising from oversight or omission may be corrected by the court at any time” on proper notice.
Black‘s Law Dictionary defines a “clerical error” as one “resulting from a minor mistake or inadvertence and not from judicial reasoning or determination.” Black‘s Law Dictionary 659 (10th ed. 2014). That‘s consistent with Kansas law. Under statutes applicable in both civil and criminal cases, the district court can enter an amended order (called a “nunc pro tunc” or “now for then” order) to correct a clerical error. But a nunc pro tunc order can‘t be used to correct a decision deliberаtely made by the court exercising its judicial discretion. See State v. Potts, 304 Kan. 687, 708-09, 374 P.3d 639 (2016); Book v. Everitt Lumber Co., Inc., 218 Kan. 121, 125, 542 P.2d 669 (1975) (citing Wallace v. Wallace, 214 Kan. 344, 348-49, 520 P.2d 1221 [1974]).
In our case—and in most that we have come across—the jail-credit question is treated at sentencing as a clerical matter. The parties don‘t present competing positions as to how many dаys of credit the defendant is entitled to. Rather, usually with the agreement of the attorneys, somebody fills in some blanks on the form used to record a Kansas criminal sentencing order, and the judge signs it.
In Storer‘s case, as we‘ve already noted, all the judge said at sentencing was thаt Storer “will receive credit for time served.” Similarly,
We have seen the same thing in other cases. For example, in Walker, 2014 WL 902153, at *4, the district court told the defendant at sentencing that he would receive jail credit, but the journal entry of sentencing wasn‘t filed then. Contrary to the court‘s statement, the journal entry filed 2 weeks later didn‘t award credit for 24 days of the time the defendant had been in custody before sentencing. Moreover, the defendant‘s attorney didn‘t sign the journal entry, so it was not at all clear in our record on appeal how the order camе to be filled out—and signed by the district court judge—with that discrepancy.
What Walker and Storer‘s case have in common is that there‘s no indication in our record that the parties ever presented differing views to the district court about how much jail-time credit should be awarded. Nor is therе any indication in our record that the district court deliberately made some decision on the jail-time-credit issue. If the judge has not made any deliberative decision, the hallmark of the judicial function, then entering numbers on the form for jail-time credit is a clerical function, even though it was a judge who ultimately signed that written order.
Under
Once such a motion is properly before the district court, that court may summarily dismiss the motion only if it is absolutely clear from review of the court record and the motion that there is no potential merit to the motion. See Makthepharak v. State, 298 Kan. 573, 576, 314 P.3d 876 (2013) (holding that a motion to correct illegal sentence under
We cannоt determine on our record how these days—and others—should have been treated. It may well be that Storer wasn‘t entitled to credit for these days against his sentence in this case. That‘s because he‘s generally only entitled to credit against his sentence in this case for time he spent in custody solely due to the charges in this case. See
Before we close our opinion, we address two other matters—one of policy, the other of precedent.
From the standpoint of policy, our interpretation of
From the standpoint of precedent, we would note that there are at least two Kansas Supreme Court opinions that support the result we reach: State v. Guzman, 279 Kan. 812, 813-16, 112 P.3d 120 (2005); and State v. Harper, 275 Kan. 888, 69 P.3d 1105 (2003). In each of these cases, that court ruled on a jail-credit issue raised in a motion filed well after the time for appealing the original conviction and sentence. While the court did not specifically mention the jurisdiction question, appellate courts of course have a duty to question thеir own jurisdiction, so the existence of these cases squarely ruling on a jail-credit issue in these circumstances supports our conclusion. See also State v. Cockerham, 266 Kan. 981, 985, 975 P.2d 1204 (1999) (granting a defendant more jail-time credit doesn‘t modify sentence). And while the Kansas Supreme Court has said that a jail-credit error doesn‘t make a sentence illegal—and thus a motion for jail credit isn‘t a motion to correct an illegal sentence under subsection (1) of
As we have explained in this decision, we find that a motion for jail credit may be properly considered under that section as long as the mаtter was not previously and specifically presented to the court and ruled upon at an earlier time and no appeal was taken (or an appeal was lost) from the earlier ruling. In that limited circumstance, further litigation of the matter would be barred under the doctrine of res judicata (Latin for “a thing adjudicated“), which provides that once an issue has been presented to the court and decided in a final judgment, the issue may not be raised a second time. See Upchurch v. State, 36 Kan. App. 2d 488, 493, 141 P.3d 1175, rev. denied 282 Kan. 797 (2006).
The district court‘s judgment is reversed, and this case is remanded for further proceedings consistent with this opinion.