State v. Smith , 441 P.3d 1041 ( 2019 )

IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 113,828
STATE OF KANSAS,
Appellee,
v.
ANTHONY S. SMITH,
Appellant.
SYLLABUS BY THE COURT
1.
A criminal defendant's failure to raise the issue of jail credit on direct appeal does
not foreclose a motion under K.S.A. 22-3504(2).
2.
A court liberally construes pro se pleadings. That said, a pro se movant still bears
the burden to allege facts sufficient to warrant relief. Thus, a criminal defendant must
allege a clerical error in a motion filed under K.S.A. 22-3504(2).
Review of the judgment of the Court of Appeals in an unpublished opinion filed May 6, 2016.
Appeal from Sedgwick District Court; JOHN J. KISNER, JR., judge. Opinion filed May 31, 2019. Judgment
of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed.
Angela Michelle Davidson, of Lawrence, argued the cause, and Samuel Schirer, of Kansas
Appellate Defender Office, was on the brief for appellant.
Lance J. Gillett, assistant district attorney, argued the cause, and Marc Bennett, district attorney,
and Derek Schmidt, attorney general, were with him on the brief for appellee.
1
PER CURIAM: Anthony Smith seeks the reversal of the district court's summary
dismissal of his pro se Motion for Jail Credit. The district court held it lacked jurisdiction
to consider Smith's motion, and the Court of Appeals affirmed. State v. Smith, 113,828,
2016 WL 2609643 (Kan. App. 2016) (unpublished opinion). Smith seeks review, arguing
the district court and appellate courts have jurisdiction under the nunc pro tunc provision
in K.S.A. 22-3504(2). That provision states: "Clerical mistakes in judgments, orders or
other parts of the record and errors in the record arising from oversight or omission may
be corrected by the court at any time and after such notice, if any, as the court orders."
(Emphasis added.)
We conclude the words "at any time" means Kansas courts, with some exception,
have jurisdiction to determine whether a clerical error occurred even after the time for an
appeal has passed. Here, that means courts can consider Smith's motion. But Smith has
the burden to allege facts supporting an allegation that a clerical error occurred. And he
has not met this burden.
We therefore affirm the district court and the Court of Appeals.
FACTS AND PROCEDURAL HISTORY
In 1984, the State charged Smith with two counts of burglary and one count of
felony theft in case number 84CR1626 (the '84 case). He pleaded guilty to one of the
burglary counts and to the theft count. The district court subsequently sentenced Smith to
3 years of probation, with concurrent, underlying prison terms of 1-to-10 years on the
burglary count and 1-to-5 years on the theft count. Neither the court nor the parties
addressed jail credit at the sentencing hearing or in the journal entry of judgment.
2
A few months later, Smith also pleaded guilty to charges of burglary and theft in a
separate case, 85CR133 (the '85 case). The record for this appeal in the '84 case includes
some documents from the '85 case, and there are references in the '84 case's documents to
the '85 case. We thus know that the district court placed Smith on probation in the '85
case as well.
In February 1986, Smith violated his probation in the '84 case. The district court
revoked probation and imposed the underlying sentence. Smith successfully moved to
modify his sentence, and the district court again placed Smith on probation. About three
months later, he violated his probation again, and the court revoked his probation and
imposed the prison sentence in both the '84 and the '85 cases. The journal entry entered in
each case reflects that the district court granted Smith credit for time he spent in custody
by adjusting the sentence begins dates. Later, the district court denied Smith's motion to
modify his sentence. Smith did not appeal the revocation of his probation in the '84 case
or the calculation of his jail credit.
About 30 years later, in August 2014, Smith filed a pro se motion for jail credit.
He alleged he is entitled to credit for 14 months and 2 days for time spent in the
Sedgwick County Community Correction Residential Facility and for 96 more days spent
in jail. The parties and the district court have used the shorthand of "jail credit" for both
types of custody, and we will do the same. The way in which jail credit is reflected in a
journal entry is by the court setting a sentence begins date based on counting back in time
from the sentencing date by the number of days' credit awarded. See K.S.A. 2018 Supp.
21-6615. According to Smith, his sentence begins date in the '84 case should have been
December 23, 1984, rather than May 21, 1986. To support this computation, Smith sets
out the dates he claims to have been in the residential facility and to have spent in jail.
3
The district court denied the motion, concluding: "Any jail credit issue [is]
waived at this point." In support of its conclusion, the district court cited State v.
Muldrow, No. 107,291, 2013 WL 1149704 (Kan. App. 2013) (unpublished opinion). The
Muldrow panel held that a defendant must raise through a direct appeal any issue about
the calculation of a sentence begins date; otherwise, the defendant waives the issue. Thus,
under Muldrow's holding, a court lacks jurisdiction over a motion for jail credit filed after
the time for a direct appeal has expired. 2013 WL 1149704, at *2.
Smith appealed. Appellate counsel asked the Court of Appeals to interpret broadly
Smith's pro se motion as a K.S.A. 60-1507 motion or a motion for a nunc pro tunc order
under K.S.A. 22-3504(2). The Court of Appeals panel affirmed the district court, citing
several reasons Smith could not succeed. Smith, 2016 WL 2609643, at *3-4.
The panel first noted a criminal defendant's challenge to jail credit does not fall
within a claim of an illegal sentence that a defendant can raise at any time under K.S.A.
22-3504(1). Smith, 2016 WL 2609643, at *3 (citing State v. Lofton, 272 Kan. 216, Syl. ¶
1, 32 P.3d 711 [2001]).
Second, the panel concluded both substantive and procedural deficiencies
prevented treating the motion as one filed under K.S.A. 60-1507. As to the substantive
reason, the panel cited caselaw holding jail credit motions do "not fall within the confines
of K.S.A. 60-1507 as a means of attacking an unconstitutional sentence." 2016 WL
2609643, at *3 (citing Muldrow, 2013 WL 1149704, at *3; State v. Chambers, No.
100,493, 2009 WL 2436683 [Kan. App. 2009] [unpublished opinion], rev. denied 289
Kan. 1281 [2010]). Addressing the procedural bar, the panel held Smith's motion was
untimely and Smith made no claim that manifest injustice excused the untimely filing.
Smith, 2016 WL 2609643, at *3.
4
Third, the panel rejected Smith's claim that he could pursue receiving more jail
credit through a nunc pro tunc motion filed under K.S.A. 22-3504(2). The panel agreed
with Smith that this court's opinion in State v. Guzman, 279 Kan. 812, 813-16, 112 P.3d
120 (2005), reached the merits of Jaime Guzman's nunc pro tunc motion for jail credit.
The panel noted, however, that the Guzman court did not discuss or rule on the question
of jurisdiction. The panel then addressed another decision of this court, Lofton, 272 Kan.
216. There, Jackie Lofton labeled his motion for jail credit as a nunc pro tunc motion. But
"the Supreme Court agreed with the district court that the motion was not properly before
the court. 272 Kan. at 217." Smith, 2016 WL 2609643, at *3. Finally, the panel concluded
Smith's motion "cannot be fairly construed as a nunc pro tunc motion authorized under
K.S.A. 22-3504(2). . . . Smith's motion requests almost 18 months of additional jail
credit, and he makes no claim that his failure to receive the credit was the result of a
clerical error." Smith, 2016 WL 2609643, at *3.
Fourth, the panel concluded Smith's challenge to the jail credit award was barred
by principles of res judicata and waiver, citing Muldrow, State v. Blazier, No. 110,070,
2014 WL 4916599 (Kan. App. 2014) (unpublished opinion), and State v. Olson, No.
102,226, 2010 WL 2978044 (Kan. App. 2010) (unpublished opinion). It also relied on
this court's description of res judicata in State v. Kingsley, 299 Kan. 896, 901, 326 P.3d
1083 (2014). The panel noted Smith had the opportunity to challenge the jail credit
awarded in the two journal entries following his probation revocations, but he did not.
The panel concluded Smith waived his right to challenge his jail credit by waiting past
the time for a direct appeal to challenge the journal entries. Smith, 2016 WL 2609643, at
*4.
Alternatively, the panel concluded Smith failed to carry his burden to show he was
entitled to additional jail credit. The panel noted Smith concurrently served time on at
least two different cases, possibly more, during the relevant period. Smith failed to
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establish any jail credit sought was solely attributable to the '84 case. Smith, 2016 WL
2609643, at *4.
Smith petitioned for review "to resolve whether courts have jurisdiction to review
post-conviction jail credit motions." Smith asked this court to resolve a conflict among
Court of Appeals panels on this issue. Smith pursued no argument he was entitled to
relief under K.S.A. 60-1507 or under K.S.A. 22-3504(1) (correcting illegal sentences) in
his petition for review.
After his petition, Smith filed a Supreme Court Rule 6.09 (2019 Kan. S. Ct. R. 39)
letter alerting this court to State v. Storer, 53 Kan. App. 2d 1, 382 P.3d 467 (2016), which
also addresses jurisdiction to consider jail credit motions under K.S.A. 22-3504(2).
Although we received the Rule 6.09 letter, neither Smith nor the State addressed Storer at
oral argument.
ANALYSIS
Smith's pro se motion for jail credit ultimately puts into issue whether he received
appropriate credit for time spent in confinement or a community corrections residential
services program. K.S.A. 2018 Supp. 21-6615, formerly K.S.A. 21-4614, requires the
sentencing judge to award a defendant credit for time spent in custody while awaiting
disposition of his case. State v. Denney, 278 Kan. 643, 648, 101 P.3d 1257 (2004). But
"'[a] defendant is not entitled to credit on a sentence for time which he has spent in jail
upon other, distinct, and wholly unrelated charges.'" Denney, 278 Kan. at 648 (quoting
Campbell v. State, 223 Kan. 528, Syl. ¶ 2, 575 P.2d 524 [1978]). Summarizing the
applicable principles, the Denney court held: "'The provisions of K.S.A. 21-4614 are
mandatory and require that a criminal defendant sentenced to incarceration be given
credit for all time spent in custody solely on the charge for which he is being sentenced.'"
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(Emphasis added.) 278 Kan. at 648 (quoting State v. Calderon, 233 Kan. 87, 97, 661 P.2d
781 [1983]).
Before we can address the ultimate question of jail credit, however, we must
consider our jurisdiction. As noted, both the district court and the Court of Appeals
determined Smith failed to establish a jurisdictional basis for his motion for jail credit.
Smith argues those courts had—and now this court has—jurisdiction under K.S.A. 2018
Supp. 22-3504(2).
This issue becomes important because Kansas courts have only the judicial power
to hear those matters over which they have jurisdiction. That jurisdiction derives from
Article 3, sections 1, 3, and 6 of the Kansas Constitution, which generally grant the
State's judicial power through jurisdiction as provided by law. See State v. Dunn, 304
Kan. 773, 811, 375 P.3d 332 (2016). The usual mechanism for the law to define that
jurisdiction is through statutes. See State v. Dupree, 304 Kan. 43, 53, 371 P.3d 862
(2016) (addressing appellate jurisdiction); State v. Valladarez, 288 Kan. 671, 675,
206 P.3d 879 (2009) (addressing subject matter jurisdiction of district courts).
Generally, under the applicable statutes, once a district court enters a valid
judgment and the time for appeal has expired, a district court lacks jurisdiction to
consider a postconviction motion. See State v. Hemphill, 286 Kan. 583, 588, 186 P.3d
777 (2008). And Smith's time to take a direct appeal expired about 30 years before he
filed his motion for jail credit. But the Legislature has created a few exceptions to this
general rule. No exception explicitly mentions a motion to grant jail credit. The panel
thus discussed those statutes that might be general enough to incorporate a jail-credit
motion, including K.S.A. 60-1507 and K.S.A. 22-3504. The second of these statutes,
K.S.A. 22-3504, addresses two types of motions. The first, provided for in 22-3504(1),
relates to a motion to correct illegal sentence. The second, provided for in 22-3504(2),
7
allows for a nunc pro tunc order to correct a clerical error. The panel concluded none of
these exceptions applied to Smith's motion.
Smith has not asked us to review the Court of Appeals' holdings that jurisdiction
did not arise under K.S.A. 60-1507 or K.S.A. 22-3504(1). He has thus waived any
objection to the panel's conclusions that he is not entitled to relief under these provisions.
State v. Fleming, 308 Kan. 689, 692-93, 423 P.3d 506 (2018). As a result, the only
jurisdiction question presented is whether the nunc pro tunc provision of K.S.A. 22-
3504(2) grants us jurisdiction to review the amount of jail credit given 30 years ago.
In determining whether the district court erred in summarily denying Smith's
motion based on the reasoning that K.S.A. 22-3504(2) does not allow courts to exercise
jurisdiction over Smith's motion, we apply an unlimited, de novo standard of review. See
Landrum v. Goering, 306 Kan. 867, 872-73, 397 P.3d 1181 (2017) (discussing standard
of review for statutory interpretation); State v. Neal, 292 Kan. 625, 629, 258 P.3d 365
(2011) (discussing standard of review when appeal concerns summary dismissal of
motion to correct illegal sentence under K.S.A. 22-3504[1]); State v. Ellmaker, 289 Kan.
1132, Syl. ¶ 6, 1147, 221 P.3d 1105 (2009) (discussing standard of review for issues of
jurisdiction); Bellamy v. State, 285 Kan. 346, 354, 172 P.3d 10 (2007) (discussing
standard of review when appeal concerns summary dismissal of K.S.A. 60-1507 motion);
see also State v. McCoin, 278 Kan. 465, 468, 101 P.3d 1204 (2004) ("If the district court's
order was entered without jurisdiction, then an appellate court does not acquire
jurisdiction on appeal. . . . [And if] the district court does not have jurisdiction to modify
a sentence [because] the sentence is not illegal . . . an appellate court lacks jurisdiction on
appeal.").
All statutory analysis begins with the fundamental principle of statutory
interpretation: Legislative intent governs. And the best and safest rule for determining
8
that intent is to apply the statute's plain and unambiguous language. When the statutory
language is clear, we do not move on to other methods for discerning statutory meaning.
Landrum, 306 Kan. at 872-73.
Clerical errors in judgments may be raised at any time, not only on direct appeal.
Applying these rules, we determine the district court and the Court of Appeals
erred in holding K.S.A. 22-3504(2) did not grant jurisdiction to resolve Smith's motion.
Those courts applied the general rule that district courts lose jurisdiction over a criminal
case once the judgment becomes final. In other words, the district court lost jurisdiction
over any complaints Smith had about the judgment when the time for his direct appeal
had passed. And the Court of Appeals lacked jurisdiction when Smith did not timely
present the issue on direct appeal. The district court cited Muldrow, 2013 WL 1149704,
to support this conclusion. The Court of Appeals panel added additional authorities,
noting Muldrow is consistent with the decisions of other Court of Appeals panels in State
v. Blazier, No. 110,070, 2014 WL 4916599 (Kan. App. 2014) (unpublished opinion), and
State v. Olson, No. 102,226, 2010 WL 2978044 (Kan. App. 2010) (unpublished opinion).
Smith, 2016 WL 2609643, at *4.
Stepping away from the Smith panel's reasoning for a moment, we note that other
cases not cited by the panel reach the same conclusion that a defendant must raise the
issue of jail credit through a timely direct appeal or the defendant waives any complaint
about the calculation. E.g., State v. Burnett, No. 112,681, 2016 WL 197787 (Kan. App.
2016) (unpublished opinion); State v. Brown, No. 111,052, 2015 WL 1782643 (Kan.
App.) (unpublished opinion), rev. denied 302 Kan. 1012 (2015); State v. Arculeo, No.
110,974, 2015 WL 569396 (Kan. App.) (unpublished opinion), rev. denied 302 Kan.
1012 (2015); State v. Lakin, No. 111,060, 2014 WL 5313708 (Kan. App. 2014)
9
(unpublished opinion); State v. Walker, No. 109,309, 2014 WL 902153 (Kan. App. 2014)
(unpublished opinion), rev. denied 301 Kan. 1052 (2015).
But other panels have disagreed. In doing so, some panels cite Guzman, 279 Kan.
at 813-16, and State v. Harper, 275 Kan. 888, 69 P.3d 1105 (2003), in which this court
addressed jail credit issues without discussing jurisdiction. E.g., Storer, 53 Kan. App. 2d
at 7. Storer also rejected the Muldrow line of cases and held the plain language of K.S.A.
22-3504(2) allows courts to address a motion for jail credit at any time. 53 Kan. App. 2d
at 3-5. Yet another panel reasoned that "[b]ased on the mandatory language of K.S.A.
2014 Supp. 21-6615(a), a trial court has both the jurisdiction and the duty to correct
judgments relative to earned, but not awarded, jail credits." State v. Mitchell, No.
111,863, 2015 WL 5927041, at *4 (Kan. App. 2015) (unpublished opinion).
Returning to the reasoning of the Smith panel, in siding with those panels that have
held jurisdiction did not exist, it also observed that the Muldrow line of cases is consistent
with the doctrines of waiver and res judicata. To support this conclusion, the panel cited
Kingsley, in which this court held: "[W]here an appeal is taken from the sentence
imposed and/or a conviction, the judgment of the reviewing court is res judicata as to all
issues actually raised, and those issues that could have been presented, but were not
presented, are deemed waived." Kingsley, 299 Kan. at 901. Kingsley, however, did not
address application of K.S.A. 22-3504(2).
In fact, until today, this court has not considered if the general res judicata rule
stated in Kingsley applies when K.S.A. 22-3504(2) serves as the basis of a motion for jail
credit. Nor have we directly addressed the Muldrow line of cases. We have, however,
interpreted the similar language of K.S.A. 22-3504(1).
10
Both subsections (1) and (2) of K.S.A. 2018 Supp. 22-3504 state that the court
may make a sentence correction "at any time" if the other circumstances specified in the
subsection apply. Addressing 22-3504(1), we have held the State's similar reliance on the
res judicata doctrine as a bar to our consideration of a motion to correct an illegal
sentence is "unavailing" because of the "at any time" language. State v. Dickey, 305 Kan.
217, 222, 380 P.3d 230 (2016). But we have held this does not mean a defendant can
repeatedly raise the same issue. See State v. Conley, 287 Kan. 696, 698, 197 P.3d 837
(2008) (holding a motion for illegal sentence under 22-3504[1] "may not be used to
breathe new life into an appellate issue previously adversely determined"). Instead, the
Legislature simply intended to allow a defendant to raise an issue relating to the
correction of a sentence for the first time at any time—even beyond the time for filing a
direct appeal.
Here, Smith had not previously argued that the district court had improperly
credited his jail time when calculating the date on which his sentence began. Thus, we
conclude the doctrines of waiver and res judicata did not prevent the district court, the
Court of Appeals, or now this court from exercising jurisdiction over Smith's pro se
motion. See State v. Neal, 292 Kan. 625, 630, 258 P.3d 365 (2011) (rejecting argument
that motion to correct illegal sentence was procedurally barred when issue could have
been raised on direct appeal but was not); see also State v. Bailey, 306 Kan. 393, 394 P.3d
831 (2017) (concluding clerical error that triggered wrongful collection of prisoner's
money could be corrected under K.S.A. 22-3504[2]).
We hold Smith's failure to raise the issue of jail credit on direct appeal does not
foreclose a motion under K.S.A. 2018 Supp. 22-3504(2). The district court and the Court
of Appeals erred by holding Smith had waived his jail credit arguments by not raising
them on direct appeal and could not bring them under 22-3504(2). See State v. Vanwey,
262 Kan. 524, 528-29, 941 P.2d 365 (1997). Through this holding, we disapprove of the
11
contrary holdings in Smith, Muldrow, Blazier, Olson, Burnett, Brown, Arculeo, Lakin,
Walker, and any other Court of Appeals decision holding that a criminal defendant cannot
move for correction of his or her jail credit if the defendant failed to raise the issue in a
direct appeal.
Smith's motion does not present a clerical error.
The Smith panel addressed several alternative reasons for upholding the district
court's summary dismissal of Smith's claim, including whether the motion fit within
K.S.A. 2018 Supp. 22-3504(2). The panel held "Smith's motion for jail credit cannot be
fairly construed as a nunc pro tunc motion authorized under K.S.A. 22-3504(2)." Smith,
2016 WL 2609643, at *3. The panel noted: "Smith's motion requests almost 18 months
of additional jail credit, and he makes no claim that his failure to receive the credit was
the result of a clerical error." 2016 WL 2609643, at *3. Given those circumstances, the
panel concluded "Smith cannot properly challenge his jail credit award through a nunc
pro tunc motion." 2016 WL 2609643, at *3.
We, too, address this alternative argument because appellate courts may affirm a
district court as right for the wrong reason if an alternative basis exists for the district
court's ruling. See State v. Reid, 286 Kan. 494, 510, 186 P.3d 713 (2008) ("'"[T]he trial
court will not be reversed if it is right, albeit for the wrong reason."'").
So did Smith properly raise a nunc pro tunc motion to correct his illegal sentence?
By the plain language of K.S.A. 2018 Supp. 22-3504(2), it applies only to a clerical
mistake in the judgment, order, or other part of the record, or to an error in the record
resulting from oversight or omission. We have defined a clerical mistake to include
"'typographical errors, incorrect statute numbers, failure to include the statute number,
failure to state additional true matter, formal or clerical errors and entries concerning
12
matters of procedure.'" State v. Bailey, 306 Kan. 393, 398, 394 P.3d 831 (2017) (quoting
State v. Thomas, 239 Kan. 457, 460, 720 P.2d 1059 [1986]). When a court has made such
a mistake, the court can file an amended order, often called a nunc pro tunc order.
Thomas, 239 Kan. at 460. We have explained that "[t]he purpose of a nunc pro tunc order
is to provide a means of entering the actual judgment of the trial court which for one
reason or another was not properly recorded. The right to make the order is based on the
failure to accurately record the court's decision." Wallace v. Wallace, 214 Kan. 344, 348-
49, 520 P.2d 1221 (1974).
In State v. Mebane, 278 Kan. 131, 136, 91 P.3d 1175 (2004), we applied that
definition and considered the purpose of a nunc pro tunc order in the context of a motion
to correct the amount of jail credit. The application of that case to Smith's motion is not
straightforward, however. There, although Tyrone Mebane's written motion sought a
nunc pro tunc order accurately setting out the date on which his sentence began, that
argument changed during proceedings. After the district court denied the motion and
Mebane appealed, he used the motion as a vehicle to argue the Kansas Parole Board had
improperly computed his controlling sentence. Citing Vanwey, 262 Kan. 524, Syl. ¶ 2, we
held Mebane's argument was unrelated to correcting a clerical error and he, therefore,
could not use 22-3504(2) as a basis for resolving an issue that related to his parole
eligibility.
In Vanwey, the court had entered a nunc pro tunc order changing consecutive
sentences, which the court had orally announced, to concurrent sentences. This court held
the substantive change in the court's ruling was not the correction of a clerical error. In
other cases, we have distinguished clerical errors from judicial errors:
"'A nunc pro tunc order may not be made to correct a judicial error involving the merits,
or to enlarge the judgment as originally rendered, or to supply a judicial omission, or an
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affirmative action which should have been, but was not, taken by the court, or to show
what the court should have decided, or intended to decide, as distinguished from what it
actually did decide. The power of the court is limited to making the journal entry speak
the truth by correcting clerical errors arising from oversight or omission and it does not
extend beyond such function.'" In re Marriage of Leedy, 279 Kan. 311, 315, 109 P.3d
1130 (2005) (quoting Book v. Everitt Lumber Co., Inc., 218 Kan. 121, 125, 542 P.2d 669
[1975]).
Consistent with these statements, we have repeatedly denied criminal defendants
relief when they request a nunc pro tunc order to correct a lower court's substantive or
merits determination. E.g., State v. Potts, 304 Kan. 687, 708-09, 374 P.3d 639 (2016)
(refusing to grant nunc pro tunc motion when challenged journal entry reflected sentence
pronounced from bench); Thomas, 239 Kan. at 462 (rejecting Thomas' argument that
nunc pro tunc order could change judgment to reflect his liability as an aider and abettor
rather than as a principal).
The Court of Appeals decision affirming the district court tracks with these
holdings. The panel succinctly stated: "Smith's motion requests almost 18 months of
additional jail credit, and he makes no claim that his failure to receive the credit was the
result of a clerical error." 2016 WL 2609643, at *3. Certainly, this court liberally
construes pro se pleadings. "Nevertheless, a pro se movant still bears the burden to allege
facts sufficient to warrant" relief. Mundy v. State, 307 Kan. 280, 304, 408 P.3d 965
(2018). Here, the record establishes that Smith was in custody on at least one other case
during some of the time he claims should be credited in this case. This means that to
grant Smith's motion we would have to make a substantive ruling and perhaps even
overrule a long line of cases under which he can get credit only if he was solely held on
the '84 case. See, e.g., Denney, 278 Kan. at 648. Further, a criminal defendant must allege
a factual basis supporting an allegation of a clerical error if seeking relief under K.S.A.
2018 Supp. 22-3504(2). Here, Smith makes conclusory statements, presents no
14
evidentiary support, and provides nothing in the record that reveals relief is warranted.
Thus, we agree that summary dismissal was warranted.
Decision of the Court of Appeals affirming the district court is affirmed. The
district court is affirmed.
***
LUCKERT, J., concurring in part and dissenting in part: I agree with the majority's
conclusion that Anthony Smith's failure to raise the issue of jail credit on direct appeal
did not result in a waiver of the issue if relief is sought under K.S.A. 22-3504(2). But I
disagree with the majority's conclusion that the district court can be affirmed because
Smith failed to allege a jurisdictional basis for his motion.
Smith set out a detailed explanation of his calculation of the jail credit he believes
the district court should have awarded. The State responded, raising only the legal
argument that Smith had waived his ability to challenge the calculation of jail time by not
appealing on that issue. Thus, the parties have not yet argued about whether Smith's
allegations fall within the category of a clerical error or whether Smith's calculation has
merit. Nor have the parties developed arguments about whether this court should adopt
the Court of Appeals decision in State v. Storer, 53 Kan. App. 2d 1, 382 P.3d 467 (2016).
Under that holding, Smith certainly said enough in his motion for a court to have
jurisdiction under K.S.A. 22-3504(2).
In Storer, the Court of Appeals panel held that "unless the district court has
previously made a considered (and unappealed) ruling on the jail-time-credit issue after
hearing the position of both sides on the matter, the jail-time-credit ruling can be
amended on a motion under K.S.A. 22-3504(2) 'at any time.'" 53 Kan. App. 2d at 3. The
15
Storer panel noted: "Black's Law Dictionary defines a 'clerical error' as one 'resulting
from a minor mistake or inadvertence and not from judicial reasoning or determination.'
Black's Law Dictionary 659 (10th ed. 2014)." 53 Kan. App. 2d at 4. It then observed:
"[T]here's no indication in our record that the parties ever presented differing views to the
district court about how much jail-time credit should be awarded. Nor is there any
indication in our record that the district court deliberately made some decision on the jail-
time-credit issue. If the judge has not made any deliberative decision, the hallmark of the
judicial function, then entering numbers on the form for jail-time credit is a clerical
function, even though it was a judge who ultimately signed that written order." 53 Kan.
App. 2d at 5.
See State v. Floyd, No. 115,699, 2016 WL 7179332 (Kan. App. 2016) (unpublished
opinion) (adopting Storer's holding and analysis).
Valid reasons exist for rejecting this approach. But until we settle whether we
adopt this holding or adopt some other standard, I do not see how we can evaluate
Smith's motion. Both his motion and the record before us suggest the court made no
"deliberative decision" about the calculation of Smith's jail credit. Further, the majority
seems to demand that a pro se litigant use the magical words of "clerical error" and meet
an evidentiary standard of some sort when using 22-3504(2) as a jurisdictional basis. But
this court's caselaw regarding 22-3504(2) is sparse and has never stated pleading or
evidentiary standards for establishing a clerical error. The statute is also silent about the
procedure to be used when applying the statute. Smith should not be held to an undefined
standard. While the law may develop to impose specific pleading requirements, those
requirements are not settled. And as of yet, this court has not eliminated a Storer-like
approach. At a minimum, Smith has done as much as Andrew Storer.
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Further, the merits of Smith's motion cannot be determined on the record before
us. As the majority suggests, it appears a change in caselaw may be necessary before
Smith could be given all the jail credit he seeks. But the record does not establish that he
was being held on multiple cases at all times. Thus, it does not eliminate the possibility
that Smith is entitled to a credit for some of the time he sets out. He has presented factual
questions that should be resolved before the district court. See State v. Alford, 308 Kan.
1336, 1338, 429 P.3d 197 (2018) (on appeal of summary denial of motion to correct an
illegal sentence, an appellate court must determine whether the motions, records, and
files conclusively show the defendant is not entitled to relief). Smith's motion and the
record on appeal do not conclusively foreclose the possibility of relief.
Finally, although Smith has not preserved the issue of whether he received an
illegal sentence, on remand that issue might be rejuvenated. Here, the Court of Appeals
cited State v. Lofton, 272 Kan. 216, 32 P.3d 711 (2001), to hold a challenge to a sentence
begins date is not a claim that a sentence is illegal under K.S.A. 22-3504(1). 2016 WL
2609643, at *3. But Lofton addressed a sentence imposed in 1984. And another case
often cited for the same holding, State v. Cockerham, 266 Kan. 981, 985, 975 P.2d 1204
(1999), addressed a sentence imposed in 1988. Both decisions interpret and apply statutes
that predate the effective date of the Kansas Sentencing Guidelines Act (KSGA), K S.A.
21-4701 et seq., in 1993. Changes in the law and our decisions in State v. Gaudina, 284
Kan. 354, 358-59, 160 P.3d 854 (2007), and State v. Harper, 275 Kan. 888, 69 P.3d 1105
(2003), suggest the need to examine the relevance of Lofton, Cockerham, and similar
cases to KSGA sentences. Compare K.S.A. 2018 Supp. 22-3717 (d)(1), (q) (applying to
sentences for crimes committed after July 1, 1993, and providing that calculations of
distinct portions of sentences are keyed to sentence begins date and stating, "Inmates
shall be released on postrelease supervision upon the termination of the prison portion of
their sentence. Time served while on postrelease supervision will vest.") with K.S.A. 22-
3722 (time "served on parole . . . shall be deemed service of the term of confinement").
17
I would remand to allow the parties to develop their procedural, factual, and legal
arguments about whether a clerical error occurred.
18