State v. Smith

NOT DESIGNATED FOR PUBLICATION

No. 116,063

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

ANTHONY S. SMITH,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; JEFFREY E. GOERING, judge. Opinion filed March 9, 2018.
Affirmed.

Sam S. Kepfield, of Hutchinson, for appellant.

Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

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

LEBEN, J.: Anthony Smith appeals the district court's denial of his motion to order
the district court clerk to send his "criminal history information" to the Kansas
Department of Corrections. On appeal, he argues that a Kansas statute, K.S.A. 22-4709,
authorizes the district court clerk to make copies of those records and send them to the
Department of Corrections.

But the order he's asking for—ordering a public official to perform some specific
duty—is available only when the law clearly requires the official to act. Here, the statute
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Smith cites, K.S.A. 22-4709, provides only that criminal-history records held by state
officials may be inspected at their offices. That statute specifically says that the official is
not required to make copies of the record. Since this type of order is appropriate only
when the law clearly requires an official to act, the district court correctly denied Smith's
motion.

Smith wants the records because he contends the Department of Corrections has
miscalculated the time he must serve in prison. His situation is complicated because he
has been sent back to prison from parole more than once and he has received new prison
sentences over the same time period.

He first entered prison in the early 1980s and was granted parole in 1991. Smith v.
Roberts, No. 115,336, 2017 WL 1367053, at *1 (Kan. App. 2017) (unpublished opinion),
rev. denied 306 Kan. 1320 (2017). But in 1993, he absconded while on parole—and was
also arrested and charged with several new crimes. See Roberts, 2017 WL 1367053, at
*1. Smith pleaded guilty to his new charges and the court imposed a three- to ten-year
sentence on the new crimes. That term was added to his sentences from previous
convictions for a total sentence of 10 to 40 years. Roberts, 2017 WL 1367053, at *1.

Smith was granted parole in 1995, again absconded, and was rearrested in 1996. A
decade later, in November 2006, he was paroled again. But in 2010, he was charged and
convicted for aggravated battery. He was sentenced to 18 months in prison on this latest
conviction, to be served consecutive to his total sentence of 10 to 40 years. Roberts, 2017
WL 1367053, at *1.

Smith contends that the records available to the Department of Corrections don't
reflect the date he was arrested in 1993 after absconding. Without that information, he
contends, the Department of Corrections can't properly calculate the date he should be
released from prison. Smith argues that this error has resulted in his detention being
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prolonged by four years and that he is being held unlawfully. So Smith filed a "Motion to
the Court" in Sedgwick County, asking the court to order the court clerk to send "certified
Court documentation to reflect correct Criminal History Record Information" to the
Kansas Department of Corrections.

The district court denied Smith's motion. Smith then appealed to our court.

Smith seeks a court order requiring the court clerk to send certain records to the
Department of Corrections. On appeal, both parties recognize that Smith seeks what
courts call a writ of mandamus—an order that some public official or lower court
perform a specified legal duty. See K.S.A. 60-801; State ex rel. Morrison v. Sebelius, 285
Kan. 875, 907, 179 P.3d 366 (2008). Someone seeking an order (or writ) of mandamus
must show that the public official has a clear legal duty to act. See Kansas Medical Mut.
Ins. Co. v. Svaty, 291 Kan. 597, 620, 244 P.3d 642 (2010). Whether to issue a mandamus
order here depends on statutory provisions about the duties of the official involved; we
review statutory-interpretation issues independently, with no required deference to the
district court. State ex rel. Slusher v. City of Leavenworth, 285 Kan. 438, 443, 172 P.3d
1154 (2007); accord Svaty, 291 Kan. at 620.

In support of his position, Smith cites K.S.A. 22-4709. Under subsection (a), it
provides that "any person" or that person's attorney "may inspect and challenge criminal
history record information maintained by a criminal justice agency concerning
themselves." The district court is a criminal-justice agency under that statute, see K.S.A.
2017 Supp. 22-4701(c)(3), so Smith has shown a clearly established right for his attorney
to inspect records about him at the court clerk's office.

But what Smith seeks is an order that the clerk copy records and send them to the
Department of Corrections. And subsection (b) of K.S.A. 22-4709 shows that the clerk
does not have that duty—at least under this statute. Subsection (b) provides: "Nothing in
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this section requires a criminal justice agency to make a copy of any information or
allows a person to remove any document for the purpose of making a copy of it. A person
having the right of inspection may make notes of the information." So the law Smith has
cited does not require the clerk to do what he asks. And without a clearly defined duty,
courts will not issue a writ of mandamus.

We do not mean to suggest that Smith's need for accurate records of the time he
has spent in jail or prison on his sentences is unimportant. But mandamus is an
extraordinary remedy that's only available in very limited circumstances. See Bohanon v.
Werholtz, 46 Kan. App. 2d 9, 12, 257 P.3d 1239 (2011).

That leads us to another reason the district court may properly deny mandamus in
cases like this one: mandamus is not appropriate when the requesting party has other
adequate remedies available. Willis v. Kansas Highway Patrol, 273 Kan. 123, 128, 41
P.3d 824 (2002); Bohanon, 46 Kan. App. 2d at 13. Smith's ultimate claim is that the
Department of Corrections hasn't accurately calculated his sentence. As a general matter,
under K.S.A. 60-1501, inmates can challenge the Department of Corrections' sentence
calculation by filing a motion in the county where they are imprisoned. See, e.g., Hooks
v. State, 51 Kan. App. 2d 527, 528-29, 349 P.3d 476 (2015). Once an inmate files that
habeas corpus petition under K.S.A. 60-1501, the district court can order all court records
be supplied to the inmate at no charge. K.S.A. 22-4506(c).

In Smith's case, we cannot say whether a K.S.A. 60-1501 petition remains
available as a means for him to raise the underlying sentence-calculation issue. He has
brought such a habeas claim before. The district court denied relief, and we affirmed that
judgment. See Smith, 2017 WL 1367053, at *1. As our court noted in that appeal, Smith
had raised administrative claims in the Department of Corrections saying that he hadn't
been awarded credit for all the time he spent in custody after his arrest as an absconder.
But our court noted that he also was in custody for some of the time on federal charges.
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We also stated that the record then before us "contain[ed] ample evidence regarding [the]
dates" of his arrest on absconder warrants. 2017 WL 1367053, at *1. And we ultimately
concluded in that appeal that Smith had failed to exhaust (or take full advantage of) the
administrative procedures available to him within the Department of Corrections. 2017
WL 1367053, at *4. Given that history, we express no opinion as to whether Smith can
raise the underlying claim about his sentences by filing a new habeas claim under K.S.A.
60-1501.

We need not made that determination, however, to decide this appeal. Mandamus
is available only when the public official has a clearly defined legal duty to act. Smith has
not cited any authority clearly requiring the district court clerk to send records to the
Department of Corrections under the circumstances found here.

We therefore affirm the district court's judgment.