Christie v. McKune

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NOT DESIGNATED FOR PUBLICATION

No. 113,208

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

ROBERT F. CHRISTIE,
Appellant,

v.

DAVID R. MCKUNE,
Appellee.


MEMORANDUM OPINION

Appeal from Leavenworth District Court; DAN K. WILEY, judge. Opinion filed November 6,
2015. Affirmed.

Michael G. Highland, of Bonner Springs, for appellant.

Sherri Price, special assistant attorney general, for appellee.

Before ATCHESON, P.J., SCHROEDER, J., and HEBERT, S.J.

Per Curiam: In 1975, Robert F. Christie pled guilty to several crimes and was
given consecutive sentences. He was paroled in 1988, but in 1990 he pled guilty to first-
degree burglary in Minnesota and was sentenced to prison. A Kansas detainer was filed,
and when Christie was released from custody in Minnesota in 2003, he was returned to
Kansas, where his parole was revoked. In September 2011, Christie filed a K.S.A. 60-
1501 petition, arguing that he was entitled to immediate release. The district court denied
the petition.
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On appeal, Christie argues that his sentence was improperly calculated and that the
13-year delay between his Minnesota conviction and his Kansas parole hearing violated
his due process rights.

We find that the sentence has been correctly calculated and that Christie has not
established prejudice to any protected liberty interest. We, therefore, affirm the judgment
of the district court.

Factual and Procedural Background

Both parties rely on this court's recitation of the facts in State v. Christie, No.
109,861, 2014 WL 2224864 (Kan. App. 2014) (unpublished opinion). In Christie, this
court stated:

"In 1975, Christie pled guilty to aggravated burglary, attempted misdemeanor
theft, aggravated sodomy, and rape. Christie was sentenced to not less than 5 years nor
more than 20 years for the aggravated burglary charge; 6 months for the attempted theft
charge; not less than 15 years nor more than life for the aggravated sodomy charge; and
not less than 5 years nor more than 20 years for the rape charge. All sentences were to
run consecutively. The court later adjusted the 6 months for the attempted theft charge to
1 month. A motion for modification of sentence was filed, but there is no record or
journal entry to show if it was ever heard. Christie was released on parole in 1988.

"In 1990, Christie pled guilty to first-degree burglary in Otter Tail County,
Minnesota. The Minnesota district court sentenced Christie to 240 months in prison.
Upon Christie's arrest in Minnesota, Kansas authorities filed a detainer warrant against
Christie.
"Thirteen years later, Christie was released from the Minnesota prison, and
Christie was brought back to Kansas for a parole revocation hearing. Christie's parole
revocation hearing was held on September 3, 2003. At this hearing, the Board revoked
Christie's parole as a result of the Minnesota criminal conviction. Because Christie's
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parole was revoked previously, he has been passed over for parole on three separate
occasions. There is nothing in the record to indicate that Christie appealed any of his
parole denials." 2014 WL 2224864, at *1.

In September 2011, Christie filed a K.S.A. 60-1501 petition. The district court
denied Christie's petition in February 2013. Christie now appeals.

Christie’s sentence was correctly calculated.

Christie claims that the district court should have granted his 60-1501 petition
because his sentence was calculated incorrectly. Specifically, Christie claims that when
he was paroled in 1988, he had completed the first two of his three sentences, which
means he was paroled from his third sentence, the 5-to-20 year sentence for rape. Christie
believes that he has served that sentence and is entitled to immediate release.

When reviewing the denial of a K.S.A. 60-1501 petition, the applicable standard
of review is "whether the factual findings of the district court are supported by substantial
competent evidence and whether those findings are sufficient to support its conclusions
of law." Rice v. State, 278 Kan. 309, 320, 95 P.3d 994 (2004). To the extent that statutory
interpretation is required, this court's review is unlimited. State v. Bello, 289 Kan. 191,
193, 211 P.3d 139 (2009).

In denying Christie's petition, the district court explained in detail why, based on
various Kansas statutes and regulations, Christie is now serving his 15 years to life
sentence. But this issue can be resolved without reviewing any statutes or regulations. In
Aikins v. Werholtz, No. 108,619, 2013 WL 2992839, at *2 (Kan. App.) (unpublished
opinion), rev. denied 298 Kan. 1201 (2013), this court succinctly and persuasively stated:

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"With a life sentence, an inmate never really begins serving a consecutive
sentence for a term of years. The term of a life sentence really is the remainder of the
inmate's life, however long that might be. But the consecutive sentence does affect when
the inmate becomes eligible for parole or some other form of conditional release.
Likewise, were the life sentence reversed, vacated, or commuted, the inmate would still
serve the term of years on the other conviction."

Thus, Christie is, in fact, serving his 15 years-to-life sentence. His two 5-to-20-
year consecutive sentences were presumably used to calculate his parole date in 1988, but
he has not begun serving either of those sentences. The end result is that because one of
his consecutive sentences is 15 years to life, Christie will spend the rest of his life in
prison unless he is paroled in the future.

Christie misplaces his appellate reliance on United States v. Randall, 472 F.3d 763
(10th Cir. 2006). First of all, the issue in Randall involved application of federal
sentencing guidelines and is, thus, clearly distinguishable. Further, the Kansas Supreme
Court has determined that 10th Circuit decisions are not binding precedent is Kansas
courts. See State v. Thompson, 284 Kan. 763, 801, 166 P.3d 1015 (2007).

The district court did not err in determining Christie’s sentence.

Christie’s procedural due process rights have not been violated.

Christie also claims that the district court should have granted his petition because
his procedural due process rights were violated. Specifically, Christie contends that his
parole revocation hearing did not take place within a reasonable amount of time because
it did not occur until 13 years after the detainer was filed.

This court has already addressed this claim, albeit in dicta, in Christie's previous
appeal. In Christie, this court found Christie's procedural due process claim procedurally
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barred. But this court did briefly note that the Supreme Court had already rejected an
argument similar to Christie's in State v. Hall, 287 Kan. 139, 195 P.3d 220 (2008). 2014
WL 2224864, at *4.

As stated above, when reviewing the denial of a K.S.A. 60-1501 petition, the
applicable standard of review is "whether the factual findings of the district court are
supported by substantial competent evidence and whether those findings are sufficient to
support its conclusions of law." Rice, 278 Kan. at 320. An appellate court's review of
whether an inmate's procedural due process rights have been violated is unlimited.
Jamerson v. Heimgartner, No. 112,623, 2015 WL 3875374, *2 (Kan. App. 2015)
(unpublished opinion) (citing In re Pierpoint, 271 Kan. 620, Syl. ¶ 4, 24 P.3d 128 [2001];
Swafford v. McKune, 46 Kan. App. 2d 325, 328, 263 P.3d 791 [2011], rev. denied 294
Kan. 948 [2012]).

The United States Supreme Court has held that a "revocation hearing must be
tendered within a reasonable time after the parolee is taken into custody." Morrissey v.
Brewer, 408 U.S. 471, 488, 92 S. Ct. 2593, 33 L. Ed. 2d 484 (1972). The Kansas
Supreme Court, relying on Moody v. Daggett, 429 U.S. 78, 97 S. Ct. 274, 50 L. Ed. 2d
236 (1976), has held that in order for petitioners to succeed, they must also establish
prejudice. Hall, 287 Kan. at 151-52. Our court also noted that the U.S. Supreme Court
found that any adverse impact on a petitioner's possibility of early release or parole date
was not a liberty interest. 287 Kan. at 152 (citing Moody, 429 U.S. at 88).

Here, Christie argues that Hall is inapplicable because he was prejudiced in that
had his revocation hearing been held immediately, he would have been released from
prison already, which is a form of harm not possible in Hall. Specifically, Christie states
that had his revocation hearing not been delayed, his parole would have likely been
revoked and then he would have been placed "in the queue for new parole hearings, any
at which he could have been paroled to serve his Minnesota sentence and upon
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completion released from incarceration." But what Christie is essentially arguing is that
the 13-year delay had an adverse impact on his possibility of early release and his parole
date, which the U.S. Supreme Court has held is not a liberty interest. 287 Kan. at 152
(citing Moody, 429 U.S. at 88). Christie's claim is also based on the belief that he would
have been paroled to serve his Minnesota sentence, which seems unreasonable because
since being reincarcerated in 2003 he has been passed over for parole three times.
Christie, 2014 WL 2224864, at *1.

Christie has failed to establish that he was prejudiced by the delay between his
1990 conviction in Minnesota and his parole revocation hearing because the prejudice he
claims is not a liberty interest recognized by the U.S. Supreme Court. Thus, Christie's
procedural due process rights were not violated.

Affirmed.