Safarik v. Bruce

883 P.2d 1211, 20 Kan. App. 2d 61, 1994 Kan. App. LEXIS 114
CourtCourt of Appeals of Kansas
DecidedOctober 28, 1994
DocketNo. 71,157
StatusPublished
Cited by21 cases

This text of 883 P.2d 1211 (Safarik v. Bruce) 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
Safarik v. Bruce, 883 P.2d 1211, 20 Kan. App. 2d 61, 1994 Kan. App. LEXIS 114 (kanctapp 1994).

Opinion

Walker, J.:

The warden of the Ellsworth Correctional Facility, appeals from an Ellsworth County District Court order which ordered that the petitioner, Leslie Safarik, be released from custody. We reverse and remand with directions.

Petitioner is an inmate at the Ellsworth Correctional Facility serving a sentence imposed by the Sedgwick District Court of not less than 5 nor more than 20 years for aggravated battery. On October 13, 1993, petitioner received a copy of his Kansas Department of Corrections (KDOC) sentencing guidelines report, which concluded that he was not eligible for the retroactive application of the sentencing guidelines based upon his conviction of a severity level 7 offense and his prior criminal history of two person felonies.

On October 28, 1993, petitioner filed a motion in Sedgwick County District Court objecting to the KDOC report’s criminal history classification and requesting an evidentiary hearing regarding conversion of his sentence. The Sedgwick County District Court conducted a hearing on the motion via telephone on December 1, 1993, and subsequently denied petitioner’s motion for [63]*63conversion on the grounds that the court had not received a sentencing guidelines report from the KDOC. The court concluded that absent receipt of the KDOC report, petitioner’s motion to convert was not properly before the court.

Petitioner filed this action, a petition for writ of habeas corpus, in Ellsworth County District Court on January 3, 1994. A hearing was held on petitioner’s petition at the Ellsworth Correctional Facility on February 3, 1994. The Ellsworth County District Court granted petitioner’s request for a writ of habeas corpus, finding that petitioner

“did attempt to appeal his determination that he was not eligible for the retroactive provisions of the Sentencing Guidelines because of his criminal history and that the Appeal was denied because the Department of Corrections failed to send the Report to the Sentencing Court as required under the law.”

The court further found that

“because of this failure of the Department of Corrections to comply with the requirements of the law, the Plaintiff was denied his opportunity to challenge the criminal history and thus, the criminal history should be disallowed and with the disallowance of the criminal history, the Plaintiff is eligible for immediate release under the Retroactivity Provisions of the Sentencing Guidelines Act."

The Ellsworth County District Court’s February 3, 1994, journal entry concluded that petitioner should be released from custody immediately. Later, that same court issued an amended journal entry setting petitioner’s release date as February 18, 1994.

KDOC filed a motion for reconsideration and a motion for stay of execution in the Ellsworth County District Court. Shortly thereafter, on February 9, 1994, a hearing was held in Sedgwick County District Court in response to an oral request by an assistant district attorney. Neither petitioner nor his attorney of record in his underlying criminal case was notified of this hearing, but the journal entry indicates that petitioner was represented by a deputy public defender. As a result of this hearing, die Sedgwick County District Court issued the following order:

“That the defendant Leslie J. Safarik is not eligible for retroactive application of the Kansas Sentencing Guidelines Act in this matter based on the severity level of the offense of Aggravated Kidnapping, severity level one (1); and Aggravated Battery, a severity level four (4), and based on his criminal history category B.”

[64]*64On February 11, 1994, the Ellsworth County District Court conducted a hearing on KDOC’s motion for reconsideration in which KDOC introduced Sedgwick County District Court’s February 9 order finding that petitioner was not eligible for conversion. After examining the Sedgwick County order, the Ellsworth County District Court found that the Sedgwick County District Court journal entry was a nullity because Ron Svaty, the attorney for petitioner, was neither notified nor present. The Ellsworth County District Court further ordered petitioner to be released on February 18, 1994, as scheduled.

Here, KDOC appeals the Ellsworth County District Court’s denial of its motion for reconsideration. This court previously stayed the execution of the Ellsworth County District Court order pending resolution of this appeal.

In reaching its decision, the Ellsworth County District Court interpreted and applied the Kansas Sentencing Guidelines Act, K.S.A. 1993 Supp. 21-4701 et seq., and the Kansas habeas corpus statutes, K.S.A. 60-1501 et seq. Interpretation of statutes is a question of law, and this court’s review of questions of law is unlimited. Hutchinson Nat’l Bank & Tr. Co. v. Brown, 12 Kan. App. 2d 673, 674, 753 P.2d 1299, rev. denied 243 Kan. 778 (1988); see State v. Donlay, 253 Kan. 132, 134, 853 P.2d 680 (1993).

K.S.A. 1993 Supp. 21-4724(b)(l) allows for retroactive application of the Sentencing Guidelines Act to incarcerated individuals who would have been considered presumptive probation candidates had they been sentenced under the Sentencing Guidelines Act as well as to those who would have been placed in grid blocks 5-H, 5-1, or 6-G of the sentencing guidelines grid for nondrug crimes or in grid blocks 3-H or 3-1 of the sentencing guidelines grid for drug crimes, had they been sentenced under the Sentencing Guidelines Act.

K.S.A. 1993 Supp. 21-4724(c)(l) requires KDOC to review and determine inmate placement on the sentencing guidelines grid. The language of that provision is quite clear:

“Except as provided in subsection (f), the department of corrections shall conduct a review of all persons who committed crimes and were sentenced prior to July 1, 1993, and are imprisoned in the custody of the secretary of corrections [65]*65as of that date. The department shall prepare a sentencing guidelines report on all such imprisoned inmates except those who have convictions for crimes which, if committed on or after July 1, 1993, would constitute a severity level 1, 2, 3 or 4 felony on the sentencing guidelines grid for nondrug crimes or a severity level 1, 2 or 3 felony on the sentencing guidelines grid for drug crimes, but, including those in grid blocks 3-H or 3-1 of the drug grid, pursuant to the provisions of subsection (c) of K.S.A. 1993 Supp. 21-4705 and amendments thereto, which shall review and determine what the person’s sentence as provided by the crime severity and criminal history grid matrix established by the Kansas sentencing commission guidelines act would be as if the crime were committed on or after July 1, 1993.

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Cite This Page — Counsel Stack

Bluebook (online)
883 P.2d 1211, 20 Kan. App. 2d 61, 1994 Kan. App. LEXIS 114, Counsel Stack Legal Research, https://law.counselstack.com/opinion/safarik-v-bruce-kanctapp-1994.