Harris v. Roberts

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NOT DESIGNATED FOR PUBLICATION

No. 114,831

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

CHARLES E. HARRIS,
Appellant,

v.

RAY ROBERTS, Secretary of Corrections, and EMMALEE CONOVER, WCF Warden,
Appellees.


MEMORANDUM OPINION

Appeal from Cowley District Court; JAMES T. PRINGLE, judge. Opinion filed June 10, 2016.
Affirmed.

Ian T. Otte, of Herlocker, Roberts & Herlocker, L.L.C., of Winfield, for appellant.

Julie L. St. Peter, Kansas Department of Corrections, for appellees.

Before ARNOLD-BURGER, P.J., SCHROEDER, J., and JEFFREY E. GOERING, District Judge,
assigned.

Per Curiam: Charles E. Harris, an inmate at the Winfield Correctional Facility,
appeals the district court's denial of his petition for writ of habeas corpus pursuant to
K.S.A. 2015 Supp. 60-1501. Harris had an aggregated prison term arising out of three
separate cases. He contends that because he has fully completed his sentence for the first
crime in the series, that crime must be removed from his aggregated sentence and his
parole eligibility, conditional release, and sentence term recalculated. Because we are
duty bound to follow Kansas Supreme Court precedent and in Anderson v. Bruce, 274
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Kan. 37, 50 P.3d 1 (2002), the Kansas Supreme Court held that recalculation was not
appropriate under identical circumstances, we must affirm.

FACTUAL AND PROCEDURAL HISTORY

In February 1987, Harris was sentenced to a prison term of 4 to 20 years on five
counts of forgery. Harris was paroled in 1990 before completion of his prison sentence.
While on parole in April 1991, a jury convicted Harris of one count of theft. The district
court sentenced Harris to a prison term of 1 to 5 years, to run consecutive to his sentence
for the forgery convictions. Harris' aggregated prison term was 5 to 25 years.

In January 1992, Harris was paroled a second time before completion of his prison
sentence. Because of events that occurred while on parole, Harris was convicted and
sentenced to a prison term of 4 to 12 years on possession of cocaine and possession of
drug paraphernalia. At that point, Harris' controlling prison term was 9 to 37 years.

On December 29, 2014, Harris filed a grievance with his Unit Team, requesting
recalculation of his sentence, jail time credit, and immediate release. The Unit Team
determined Harris was not entitled to recalculation of his sentence, and the warden
concurred. Harris appealed to the Secretary of Corrections, who concluded the
determination was appropriate.

On March 30, 2015, Harris filed a petition for writ of habeas corpus in the district
court. In the petition, Harris argued that he had served the maximum prison term for each
of his cases and requested immediate release.

The district court denied Harris relief on October 7, 2015, finding Anderson was
controlling precedent on the issue presented by Harris' petition. Harris timely appealed.

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ANALYSIS

As his sole claim of error, Harris argues the district court erred in denying his
petition for writ of habeas corpus. Harris acknowledges that Anderson is controlling
under the facts of this case. Nonetheless, he contends Anderson was wrongly decided and
the Kansas Department of Corrections (KDOC) should have recalculated his parole
eligibility, conditional release, and sentence term based on Blomeyer v. State, 22 Kan.
App. 2d 382, 915 P.2d 790, rev. denied 260 Kan. 991 (1996).

We review a district court's decision on a K.S.A. 2015 Supp. 60-1501 petition to
determine whether the district court's factual findings are supported by substantial
competent evidence and whether those findings are sufficient to support the court's
conclusions of law. The district court's conclusions of law are subject to de novo review.
Rice v. State, 278 Kan. 309, 320, 95 P.3d 994 (2004).

In Anderson, the defendant committed crimes while on parole two different times.
The sentencing court ordered all the defendant's sentences, for the original crimes and
parole crimes, to run consecutive to each other. The defendant filed a petition for writ of
habeas corpus in the district court, pursuant to K.S.A. 2011 Supp. 60-1501. In the
petition, the defendant requested the district court order the KDOC to recalculate his
controlling prison term without considering his original offense because his sentence for
that offense had been satisfied by his time spent in jail and on parole. After a hearing, the
district court denied the defendant's petition, finding his sentence had been properly
computed.

On appeal, the defendant argued his original offense retained its individuality
despite aggregation of the sentences and, on serving his sentence for the original offense,
he was entitled to have the offense removed and his parole eligibility, conditional release,
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and sentence term recalculated. The Kansas Supreme Court rejected this argument,
distinguishing his case from Blomeyer. The Anderson court stated:

"[The defendant] 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 [the
defendant]'s sentences retains its individual identity, however, does not entitle
[the defendant] 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 [v. State], 28 Kan. App. 2d [854,] 858, [21 P.3d 1021,
rev. denied 271 Kan. 1037 (2001)]; Blomeyer, 22 Kan. App. 2d at 385. [The
defendant] is required to serve additional time by the inclusion of his [original]
offense in the calculation because that was the legislature's intent." Anderson, 274
Kan. at 50.

In his appellate brief, Harris asks us to overrule Anderson. However, we are duty
bound to follow Kansas Supreme Court precedent, absent some indication the court is
departing from its previous position. State v. Beck, 32 Kan. App. 2d 784, 788, 88 P.3d
1233, rev. denied 278 Kan. 847 (2004). The Kansas Supreme Court has shown no
indication that it is departing from its position in Anderson, and we are therefore bound
by its precedent. See Turner v. McKune, No. 108,428, 2013 WL 2936140, at *2-3 (Kan.
App.) (unpublished opinion) (citing several other cases in which this court has followed
the ruling in Anderson), rev. denied 298 Kan. 1208 (2013).

Accordingly, the district court did not err in denying Harris' petition for writ of
habeas corpus.

Affirmed.