Davis v. Simmons

68 P.3d 160, 31 Kan. App. 2d 556, 2003 Kan. App. LEXIS 394
CourtCourt of Appeals of Kansas
DecidedMay 2, 2003
DocketNo. 89,712
StatusPublished
Cited by1 cases

This text of 68 P.3d 160 (Davis v. Simmons) is published on Counsel Stack Legal Research, covering Court of Appeals of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Davis v. Simmons, 68 P.3d 160, 31 Kan. App. 2d 556, 2003 Kan. App. LEXIS 394 (kanctapp 2003).

Opinion

Lewis, J.:

Petitioner Joey Davis appeals the district court’s denial of his K.S.A. 2002 Supp. 60-1501 action.

We affirm.

Petitioner was originally convicted in case No. 85CR309 and received a sentence of 13 years to life in prison. After he was placed on parole in that case, he was convicted of a new crime in No. 00CR398. He was sentenced to 12 months’ imprisonment in that case, and this sentence was made to run consecutive to the sentence he received in No. 85CR309.

Petitioner was ultimately released by order of the Kansas Parole Board (KPB) under the “postrelease heading,” but also under the parole release section “until life.” In a relatively short time, petitioner’s parole or postrelease was revoked for various violations, none of which constituted a new crime. In December 2001, the KPB issued a final action notice, which stated that petitioner’s post-release was revoked and he was to serve 6 months’ imprisonment for violations of the conditions of his release.

The KPB’s order was incorrect insofar as the 6 months’ imprisonment was concerned. The Kansas Department of Corrections sent petitioner a notice showing that a file review showed a mistake and was applied to his sentence. The notice stated:

“Due to your existing maximum term of life K.S.A. 22-3717(f) stipulates that except that those offenders whose old sentence is a term of imprisonment of life or an indeterminate sentence with a maximum term of life shall remain on post release supervision of life or until discharge from supervision by the Kansas Parole Board. The error that was made did not adhere to this sentencing law. Your sentence has been corrected and you have been advised accordingly.”

The KPB again saw petitioner in February 2002 and issued an order revoking his parole and passing on him until December 2002. Petitioner has exhausted all his administrative remedies.

Petitioner filed the instant 60-1501 action in the district court, arguing that under the law, he could not be made to serve 6 months’ imprisonment because he was on postrelease. The district [559]*559court concluded that petitioner was not entitled to the 6-month limitation on imprisonment because the postrelease revocation provisions under K.S.A. 2002 Supp. 75-5217(b) were not applicable to him. This appeal followed.

We agree with the district court and affirm.

Petitioner first submits that the district court erred in finding he was excluded from the 6-month imprisonment limitation under K.S.A. 2002 Supp. 75-5217(b). This requires an interpretation of statutory provisions; these are questions of law, and our review is unlimited. State v. Lewis, 263 Kan. 843, 847, 953 P.2d 1016 (1998). We conclude that K.S.A. 2002 Supp. 22-3717(f) supports the decision of the district court. That 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 and amendments thereto, 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 Kansas parole 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. 1993 Supp. 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 post-release supervision for life or until discharged from supervision by the Kansas parole board.” (Emphasis added.)

K.S.A. 2002 Supp. 75-5217(b), upon which petitioner relies, states in pertinent part that if a violation of parole, conditional release, or postrelease supervision

“is established to the satisfaction of the Kansas parole board, the board may continue or revoke the parole or conditional release, or enter such other order as the board may see fit. The revocation of release of inmates who are on a specified period of postrelease supervision shall be for a six-month period of confinement from the date of the revocation hearing before the board or the effective date of waiver of such hearing by the offender pursuant to rules and regulations prom[560]*560ulgated by the Kansas parole board, if the violation does not result from a conviction for a new felony or misdemeanor. Such period of confinement may be reduced by not more than three months based on the inmate’s conduct, work and program participating [participation] during the incarceration period.” (Emphasis added.)

In construing statutes and determining legislative intent where there are several provisions of an act involved, we will construe those acts together with a view of reconciling and bringing them into workable harmony if possible. State v. Bolin, 266 Kan. 18, 24, 968 P.2d 1104 (1998). In Geren v. Geren, 29 Kan. App. 2d 565, 571-72, 29 P.3d 448 (2001), we said:

“The fundamental rule of statutoiy interpretation is that the intent of the legislature governs if that intent can be ascertained. [Citation omitted]. This court will presume that a statute was not intended to produce absurd consequences and that it has the most reasonable operation its language permits. [Citation omitted]. Furthermore, this court will not give a statute an arbitrary construction but will instead construe it in a manner to ‘advance the sense and meaning fairly deducible from the context.’ [Citation omitted.]”

In essence, petitioner, who is serving an indeterminate sentence in which life is the maximum, is arguing if his parole is violated, he is entitled to the 6-month limitation provision for technical violators.

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Cite This Page — Counsel Stack

Bluebook (online)
68 P.3d 160, 31 Kan. App. 2d 556, 2003 Kan. App. LEXIS 394, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davis-v-simmons-kanctapp-2003.