Frost v. Norwood

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NOT DESIGNATED FOR PUBLICATION

No. 119,975

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

KENNETH E. FROST,
Appellant,

v.

JOE NORWOOD, et al.
Appellees.


MEMORANDUM OPINION

Appeal from Ellsworth District Court; SCOTT E. MCPHERSON, judge. Opinion filed April 5, 2019.
Affirmed.

Bradley T. Steen, of Law Office of B. Truman Steen, LLC, of Ellsworth, for appellant.

Robert E. Wasinger, legal counsel, of Ellsworth Correctional Facility, for appellees.

Before BRUNS, P.J., MALONE and POWELL, JJ.

PER CURIAM: Kenneth E. Frost, an inmate at the Ellsworth Correctional Facility,
appeals the district court's dismissal of his petition for writ of mandamus. Frost argues
that the district court should not have summarily dismissed the petition and that he is
entitled to mandamus relief on the computation of his sentence. We conclude the district
court reached the correct result in dismissing Frost's petition for writ of mandamus, and
we affirm the district court's judgment.


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FACTS

In 1990, the district court sentenced Frost to an indeterminate prison term of 3 to
10 years in Jefferson County case 90CR118. A few years later, the district court
sentenced Frost to an indeterminate prison sentence of 5 to 20 years in Pawnee County
case 92CR111. The Kansas Department of Corrections (KDOC) aggregated both
sentences to an indeterminate term of 8 to 30 years.

Frost was initially paroled in February 2001. He violated his parole conditions
many times, was returned to custody, and was later released. Ultimately, the State filed
new charges against Frost in Johnson County case 05CR597. In that case, the district
court sentenced Frost to a determinate sentence of 204 months and ordered the sentence
to be served consecutive to his Jefferson County and Pawnee County cases.

On April 27, 2008, Frost was "paroled to his determinate sentence" by the KDOC.
While serving that sentence, Frost filed a K.S.A. 60-1507 motion challenging his Johnson
County conviction. The record does not reflect the status or the outcome of that case.

In March 2018, the KDOC notified Frost that if his determinate sentence was
overturned in the K.S.A. 60-1507 proceeding, his indeterminate sentence "will need to be
reviewed prior to release." He was also informed in a letter that cases 90CR118 and
92CR111 would remain inactive "unless Johnson County Case 05CR597 is overturned
prior to the original controlling max date associated with the 8-30 year sentence, April
27, 2023. If the Johnson County Case is overturned prior to April 27, 2023, the status of
the indeterminate sentences will need reviewed and may change."

Frost disagreed with the KDOC notice about the status of his indeterminate
sentence. He initiated the prison grievance process, asking for a declaration that his
indeterminate sentence had terminated and could not be reinstated. He argued that
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holding him on the indeterminate sentence would amount to illegal incarceration. Frost's
unit team supervisor responded to Frost's grievance by stating:

"When you paroled to your determinate sentence your prior indeterminate sentences were
made inactive and you are now serving 204 months on case # 05CR597. Comments only
stated that the old sentence would be reviewed if the new was overturned. As long as
there are no changes to your new term your status of only serving on the determinate
sentence remains in effect. Your projected release date is 12-03-2022."

Frost again submitted a grievance stating that his indeterminate sentence could not
be reviewed in the future because it had legally terminated. Frost's unit team supervisor
responded that his grievance "pertains to a classification decision-making process and as
such is not grievable." Frost appealed to the warden. The warden agreed with the unit
team supervisor but added that "it is impossible for you to receive any relief for
something that has not occurred." Frost appealed to the secretary of corrections (the
Secretary), who upheld the decisions made by the prison staff.

On May 21, 2018, Frost filed a pro se petition for writ of mandamus under K.S.A.
60-801 in the district court of Ellsworth County, naming the Secretary as the respondent.
In the petition, Frost asked the district court to order the Secretary to terminate his
indeterminate sentence. Noting that "a consecutive sentence is one which commences at
the termination of another term of imprisonment to which an accused has been
sentenced," he argued that his indeterminate sentence terminated on April 27, 2008, when
he was conditionally released to begin serving his determinate sentence. Frost also filed a
motion for appointment of counsel.

On August 8, 2018, the district court summarily dismissed Frost's petition, finding
that it failed to state a claim for which he was entitled to relief. The district court ruled:

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"Frost argues that when he was paroled from his indeterminate sentences,
Jefferson County case 1990-CR-118 and Pawnee County case 1992-CR-111, to his
determinate sentence in Johnson County case 2005-CR-597, KDOC must declare his
indeterminate sentences terminated. He asserts that to not do so amounts to KDOC
illegally detaining him. In response, KDOC states that Frost's grievance is a 'non-
grievable issue' per K.A.R. 44-15-105(a)(2). Additionally, Warden Dan Schnurr correctly
points out that Frost is not currently being held on his indeterminate sentences and that he
cannot be given relief from something that has not occurred. The court agrees, and for
these reasons orders that Frost's Petition is dismissed."

Frost timely appealed the district court's judgment. The district court appointed
counsel for this appeal.

ANALYSIS

As a preliminary matter, we will address whether Frost's grievance is ripe even
though the KDOC will only review Frost's indeterminate sentence if his determinate
sentence is overturned in the future. The justiciability doctrine requires that issues be ripe
for decision. In other words, "issues must have taken shape and be concrete rather than
hypothetical and abstract." State ex rel. Morrison v. Sebelius, 285 Kan. 875, 892, 179
P.3d 366 (2008). Kansas courts do not have the power to give advisory opinions. State ex
rel. Schmidt v. City of Wichita, 303 Kan. 650, 659, 367 P.3d 282 (2016).

Frost complains that holding him on his indeterminate sentence would amount to
illegal incarceration because he has already served that sentence. The Secretary notes that
Frost is not currently serving his indeterminate sentence and will only be held on the
indeterminate sentence in the future if his Johnson County conviction is overturned. If
Frost's Johnson County conviction is never overturned, then the KDOC will never review
his indeterminate sentence. In that sense, Frost's grievance raises a hypothetical question.

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But Frost's appeal raises the question of whether the KDOC had a duty to declare
Frost's indeterminate sentence "terminated" when Frost was paroled to his consecutive
determinate sentence on April 27, 2008. The KDOC gave Frost notice that his
indeterminate sentence may be revived in the future. This issue presents a concrete legal
question that can be resolved by interpreting the sentencing statutes. As a result, we
conclude that Frost's grievance is ripe for review.

Turning to the merits, Frost argues that the district court should not have
summarily dismissed his petition and that he is entitled to mandamus relief on the
computation of his sentence. The Secretary no longer argues that this issue is "non-
grievable." Instead, the Secretary argues that mandamus relief is inappropriate because
Frost had no clear right to relief under K.S.A. 2018 Supp. 22-3717(f), the KDOC had no
clear duty to act in the manner Frost demanded, and Frost had an alternative remedy.

"Mandamus is a proceeding to compel some inferior court, tribunal, board, or
some corporation or person to perform a specified duty, which duty results from the
office, trust, or official station of the party to whom the order is directed, or from
operation of law." K.S.A. 60-801. In other words, mandamus is a remedy to compel a
public official to perform a clearly defined duty imposed by law and not involving the
exercise of discretion. State ex rel. Morrison, 285 Kan. at 907. Mandamus does not lie to
enforce a right in substantial dispute. Ambrosier v. Brownback, 304 Kan. 907, 911-12,
375 P.3d 1007 (2016).

"The only acts of public officials that the courts can control by mandamus are those
strictly ministerial, meaning the public officer or agent is required to perform based upon
a given set of facts, in a prescribed manner, in obedience to the mandate of legal
authority, and without regard to his own judgment or opinion about the propriety or
impropriety of the act to be performed." State ex rel. Stephan v. Kansas Racing Comm'n,
246 Kan. 708, 717, 792 P.2d 971 (1990).

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"Mandamus is not a common means of obtaining redress but is available only in
rare cases, and as a last resort, for causes which are really extraordinary. Mandamus is
not the correct action where a plain and adequate remedy at law exists." Bohanon v.
Werholtz, 46 Kan. App. 2d 9, Syl. ¶ 3, 257 P.3d 1239 (2011). Whether mandamus is an
appropriate form of relief requires the interpretation of statutes, over which this court has
unlimited review. State ex rel. Slusher v. City of Leavenworth, 285 Kan. 438, 443, 172
P.3d 1154 (2007).

Based on these principles, Frost would be entitled to mandamus relief only if he
can establish: (1) he has a clear right to relief; (2) the KDOC's duty is clearly defined;
and (3) he has no other adequate remedy. Sperry v. Lansing Correctional Facility, No.
116,269, 2017 WL 1534852, at *3 (Kan. App. 2017) (unpublished opinion), rev. denied
307 Kan. 988 (2018). Frost contends that K.S.A. 21-4608(c) (now K.S.A. 2018 Supp. 21-
6606[c]) and K.S.A. 2018 Supp. 22-3717(f) create a duty on the KDOC to declare his
indeterminate sentence terminated and release him if and when his determinate sentence
is overturned. We will address these statutes in turn.

K.S.A. 2018 Supp. 21-6606(c)

Frost committed his Johnson County crime in 2001 while on parole from his
indeterminate sentence. It was mandatory that his Johnson County sentence be served
consecutive to his prior sentences under K.S.A. 21-4608(c) (now K.S.A. 2018 Supp. 21-
6606[c]), which reads:

"Any person who is convicted and sentenced for a crime committed while on
probation, assigned to a community correctional services program, on parole, on
conditional release or on postrelease supervision for a felony shall serve the sentence
consecutively to the term or terms under which the person was on probation, assigned to
a community correctional services program or on parole or conditional release."

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A "consecutive sentence" is

"a series of two or more sentences imposed by the court in which the minimum terms and
the maximum terms, respectively, are to be aggregated, or a series of two or more
sentencing guidelines sentences in which the prison terms are to be aggregated pursuant
to K.S.A. 2011 Supp. 21-6819 and amendments thereto." K.A.R. 44-6-101(b)(3).

In other words, a consecutive sentence is a series of two or more sentences that are
aggregated; and the rules of aggregation vary depending on whether the sentences being
aggregated are indeterminate or determinate sentences.

K.S.A. 2018 Supp. 22-3717(f)

The parties agree that K.S.A. 2018 Supp. 22-3717(f) applies (which has not
substantially changed since Frost committed his crime). This subsection reads:

"(f) If a person is sentenced to prison for a crime committed on or after July 1,
1993, while on probation, parole, conditional release or in a community corrections
program, for a crime committed prior to July 1, 1993, and the person is not eligible for
retroactive application of the sentencing guidelines and amendments thereto pursuant to
K.S.A. 21-4724, prior to its repeal, the new sentence shall not be aggregated with the old
sentence, but shall begin when the person is paroled or reaches the conditional release
date on the old sentence. If the offender was past the offender's conditional release date at
the time the new offense was committed, the new sentence shall not be aggregated with
the old sentence but shall begin when the person is ordered released by the prisoner
review board or reaches the maximum sentence expiration date on the old sentence,
whichever is earlier. The new sentence shall then be served as otherwise provided by law.
The period of postrelease supervision shall be based on the new sentence, except that
those offenders whose old sentence is a term of imprisonment for life, imposed pursuant
to K.S.A. 21-4628, prior to its repeal, or an indeterminate sentence with a maximum term
of life imprisonment, for which there is no conditional release or maximum sentence
expiration date, shall remain on postrelease supervision for life or until discharged from
supervision by the prisoner review board." (Emphasis added.)
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In other words, K.S.A. 2018 Supp. 22-3717(f) coordinates the old indeterminate
sentence with the new determinate sentence, but "the old and new sentences are not
aggregated, or run consecutively." Turner v. Kansas Department of Corrections, No.
102,954, 2010 WL 3063172, at *5 (Kan. App. 2010) (unpublished opinion). The Turner
court cautioned that the statute

"determines only the start of the new sentence, leaving the term of the old indeterminate
sentence untouched and unaffected. To hold otherwise would read into the statute
something not readily found therein. [Citation omitted.] The current provision delays the
running of a new sentence while an inmate is incarcerated on an old indeterminate
sentence. Upon parole or conditional release, or upon reaching the maximum sentence
expiration date for the old indeterminate sentence, the new sentence begins." 2010 WL
3063172, at *5.

In Turner, the defendant remained subject to his old indeterminate sentence
though serving time on a new Missouri sentence. The court held that the Kansas parole
board retained authority to act on parole violations. 2010 WL 3063172, at *5-6. Here,
Frost was paroled to his determinate sentence. If Frost's determinate sentence is
eventually overturned, it does not follow that he would necessarily be free from
supervision. And a parolee "is subject to serving out the remainder of his or her prison
sentence upon a violation and subsequent revocation of parole status." McGann v.
McKune, 21 Kan. App. 2d 798, 801, 911 P.2d 811 (1995).

K.S.A. 2018 Supp. 22-3717(f) does not create a clearly defined duty on the KDOC
to declare Frost's indeterminate sentence terminated. And the provision does not say what
happens if the determinate sentence is overturned on appeal. Instead, it determines only
the start of the new sentence. Thus, the law Frost has cited does not require the KDOC to
do what he asks. Mandamus is an extraordinary remedy. Without a clearly defined duty,
courts will not issue a writ of mandamus. See Kansas Medical Mut. Ins. Co. v. Svaty, 291
Kan. 597, 620, 244 P.3d 642 (2010). Mandamus relief is not appropriate here. If Frost
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believes the KDOC has not accurately calculated his sentence, he can challenge the
sentence calculation under K.S.A. 2018 Supp. 60-1501. State v. Smith, No. 116,063, 2018
WL 1247181, at *2 (Kan. App.) (unpublished opinion), rev. denied 308 Kan. 1600
(2018).

Frost cites Price v. Simmons, 31 Kan. App. 2d 631, 632, 71 P.3d 1164 (2002)
(Price II), for the contention that "a consecutive sentence 'is one which commences at the
termination of another term of imprisonment to which [an] accused has been sentenced.'"
He argues this statement supports his view that his indeterminate sentence "terminated"
when he was paroled to serve his determinate sentence.

Some background is useful. In Price v. State, 28 Kan. App. 2d 854, 855, 21 P.3d
1021 (2001) (Price I), Price argued that he was eligible for conversion of his
indeterminate sentence because he had served the maximum 20-year sentence for rape
and so the rape conviction should not count against him in determining eligibility for the
conversion of his aggravated burglary sentence. The KDOC treated Price's convictions as
aggregated and, because he had not exhausted the aggregated time, the KDOC said Price
was still serving time on the rape charge and his sentence was ineligible for conversion.
28 Kan. App. 2d at 855-56. This court held that the aggregation rules in K.S.A. 21-
4608(f) were used to determine the time served on multiple sentences, the sentence begin
date, and parole eligibility and conditional release dates, but the aggregation rules were
not applicable to determining whether Price's sentence was eligible for conversion. 28
Kan. App. 2d at 858. The court then added:

"Moreover, the State's suggestion that Price is simultaneously serving his
sentences for aggravated burglary and rape is erroneous. '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
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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, on July 1,
1993, Price was either on conditional release for aggravated burglary or for rape, but not
for both offenses." 28 Kan. App. 2d at 858.

In Price II, using "selected terms taken from the text of [Price I]," Price claimed
that, because this court had said consecutive sentences may not be treated collectively,
the KDOC had miscalculated his maximum discharge date. 31 Kan. App. 2d at 633. But
the court held that for the purpose of establishing Price's maximum discharge date, the
two convictions remained aggregated. 31 Kan. App. 2d at 634. Thus, which rules apply
depends on the issue. The Price I analysis is limited to conversion determinations. See
Anderson v. Bruce, 274 Kan. 37, 50, 50 P.3d 1 (2002) (holding that the fact that an
inmate's sentences retained their individual identities for conversion purposes did not
entitle the inmate to have his sentences unaggregated to determine parole eligibility,
conditional release dates, and time served on multiple sentences).

To sum up, K.S.A. 2018 Supp. 22-3717(f) states that "the new sentence . . . shall
begin when the person is paroled." That provision does not say the old sentence is
"terminated." Frost has not shown that the KDOC has a clearly defined duty to say so. As
a result, we conclude the district court did not err in summarily dismissing Frost's petition
for writ of mandamus. See Gannon v. State, 302 Kan. 739, 744, 357 P.3d 873 (2015)
(finding that if a district court reaches the correct result, its decision will be upheld even
though it relied on the wrong ground or assigned erroneous reasons for its decision).

Affirmed.