State v. Clark

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NOT DESIGNATED FOR PUBLICATION

No. 112,794

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

TYRONE MAURICE CLARK, JR.,
Appellant.

MEMORANDUM OPINION


Appeal from Sedgwick District Court; WARREN M .WILBERT, judge. Opinion filed December 18,
2015. Appeal dismissed.

Michelle A. Davis, Kansas Appellate Defender Office, for appellant.

Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before POWELL, P.J., PIERRON and LEBEN, JJ.

Per Curiam: Tyrone Maurice Clark, Jr., appeals the district court's denial of his
request for jail time credit. The court found Clark was in custody on a Kansas
Department of Corrections (KDOC) hold after revocation of his postrelease supervision
in case No. 10-CR-3078 following new charges in case No. 12-CR-1392 and denied his
motion for jail time credit.

Clark was arrested on June 3, 2012, for multiple drug, firearm, and eluding
charges. He remained in custody. Clark pled guilty to several of the charges and the
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district court sentenced him on July 9, 2013. At the sentencing hearing, the State
informed the court it had actually postponed the case so that Clark would be off
postrelease supervision at the time of sentencing. The court sentenced Clark to a
controlling sentence of 37 months' incarceration, informed him that he was entitled to
receive credit for any time awaiting disposition of the current charges, and that he had 14
days to appeal his sentence. The sentencing journal entry of judgment declined to award
Clark jail time credit for 349 days, indicating "06/03/12 to 05/17/13: Defendant was held
on 12CR1392 and KDOC hold for Parole Violation in 10CR3078. This warrant was
pulled on 05/17/13 due to expiration of sentence." The sentencing journal entry was filed
on July 17, 2013.

On October 18, 2013, Clark filed a pro se motion for jail time credit. Clark argued
that his postrelease supervision in 10-CR-3078 was interrupted and had been suspended
by his reincarceration on June 2, 2012, in 12-CR-1392. Clark argued that since he was no
longer serving his postrelease supervision, his jail time should be credited against his
present case. The State responded that Clark had provided no documentation to support
his claim for jail time credit and he only made a conclusory claim that he was entitled to
credit in the present case because it could not go towards his postrelease supervision.
However, the State argued the KDOC revoked his postrelease in 10-CR-3078 on June 2,
2012, because of the new charges in 12-CR-1392 and ultimately the warrant was pulled
on May 17, 2013, due to the expiration of the sentence in 10-CR-3078. The State claimed
Clark should not be granted jail time credit in 12-CR-1392 because he was not being held
solely on account of the charges in that case. The district court summarily denied Clark's
motion by adopting the State's response as its findings of fact and conclusions of law.

Because jail time credit is controlled by statute, it involves a question of law
subject to unlimited review. See Hooks v. State, 51 Kan. App. 2d 527, 530, 349 P.3d 476
(2015). K.S.A. 2014 Supp. 21-6615(a) provides authority for jail time credit "computed
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as an allowance for the time which the defendant has spent incarcerated pending the
disposition of the defendant's case."

Clark cites State v. Prebble, 37 Kan. App. 2d 327, Syl. ¶ 2, 152 P.3d 1245 (2007),
where the court held: "The defendant in a criminal case is entitled to credit for time
which the defendant has spent incarcerated pending disposition of the defendant's case,
and the defendant shall not be denied jail time credit at sentencing simply because the
defendant has a detainer or warrant pending from another district." Although this is true,
Prebble does not stand for the proposition that a defendant should receive credit for the
same jail time in more than one case. See 37 Kan. App. 2d at 330-33. Clark is not
allowed double credit.

Initially, we question our jurisdiction to even consider Clark's claim. An appellate
court can make a sua sponte inquiry into whether it has jurisdiction over a question
presented to it on appeal. State v. Berreth, 294 Kan. 98, 117, 273 P.3d 752 (2012)
("appellate courts have a duty to question jurisdiction on their own initiative"). Clark's
appeal is an improper direct appeal to his sentence.

It is settled law that our appellate courts only have jurisdiction to consider appeals
taken in the manner prescribed by statute because the right to appeal is purely statutory.
State v. J.D.H., 48 Kan. App. 2d 454, 458, 294 P.3d 343, rev. denied 297 Kan. 1251
(2013). Under K.S.A. 2014 Supp. 22-3608(c), a criminal defendant has 14 days from
sentencing to file a notice of appeal. See Wahl v. State, 301 Kan. 610, 615, 344 P.3d 385
(2015) (noting 14-day period for appeal runs from sentencing date). If a notice of appeal
is not filed within the statutory time period, the appeal must be dismissed for lack of
jurisdiction. State v. Hemphill, 286 Kan. 583, 588, 186 P.3d 777 (2008).

This court has held that a trial court's determination of jail time credit is part of
imposing the sentence because the sentence start date depends upon the amount of time
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awarded. State v. Muldrow, No. 107,291, 2013 WL 1149704, at *2 (Kan. App.)
(unpublished opinion) (quoting the holding in State v. Denney, 278 Kan. 643, 648, 101
P.3d 1257 [2004], that under mandatory provisions of K.S.A. 21-4614 [now K.S.A. 2014
Supp. 21-6615(a)], a defendant who is sentenced to incarceration must be "'"given credit
for all time spent in custody solely on the charge for which he is being sentenced"'"), rev.
denied 297 Kan. 1253 (2013). Accordingly, this court has held that it lacks jurisdiction to
consider a challenge to the amount of jail time credit awarded after the time for direct
appeal has run because "defendants can only appeal the jail-time credit . . . as a direct
appeal of the sentence." State v. Walker, No. 109,309, 2014 WL 902153, at *1, 3-5 (Kan.
App. 2014) (unpublished opinion), rev. denied 301 Kan. ___ (March 12, 2015); see also
State v. Lakin, No. 111,060, 2014 WL 5313708, at *2 (Kan. App. 2014) (unpublished
opinion); Muldrow, 2013 WL 1149704, at *2-3; State v. Olson, No. 102,226, 2010 WL
2978044, at *2-3 (Kan. App. 2010) (unpublished opinion).

Clark's appeal involves a sentence that was imposed on July 9, 2013. Under
K.S.A. 2014 Supp. 22-3608(c), he had 14 days from that date to file a notice of appeal.
He filed his motion for jail time credit on October 18, 2013. Clark's failure to appeal
within 14 days of his sentencing hearing divested us of jurisdiction to consider this issue.
In any event, the evidence indicates Clark received jail time credit in 10-CR-3078 and is
not entitled to duplicative credit in 12-CR-1392. See State v. Lofton, 272 Kan. 216, 217-
18, 32 P.3d 711 (2001); State v. Calderon, 233 Kan. 87, 97-98, 661 P.2d 781 (1983).

The appeal is dismissed for lack of jurisdiction.