Opinion
Nos. 110,698 110,699.
2014-12-5
STATE of Kansas, Appellee, v. Gilberto OMAR–CRUZ, Appellant.
Appeal from Sedgwick District Court; Eric A. Commer and Warren M. Wilbert, Judges.Samuel Schirer, of Kansas Appellate Defender Office, for appellant.Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Eric A. Commer and Warren M. Wilbert, Judges.
Samuel Schirer, of Kansas Appellate Defender Office, for appellant. Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before McANANY, P.J., ARNOLD–BURGER, J., and LARSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
This appeal involves two separate cases which have been consolidated on appeal.
Gilberto Omar–Cruz appeals the revocation of his probation arising out of No. 11 CR 1168 and his sentence in No. 13 CR 248, contending the court below erred in determining his criminal history score.
We conclude the issues raised out of the appeal of No. 11 CR 1168 are moot and must be dismissed. We further hold the district court correctly computed Omar–Cruz' criminal history score in No. 13 CR 248, and his appeal to the contrary fails. Consequently, we affirm the district court in the appeal from No. 13 CR 248.
Factual and Procedural Background
The records presented to us reflect that on May 31, 2011, Omar–Cruz pled guilty to felony domestic battery in No. 11 CR 1168. It was a felony domestic battery because it was his third conviction of domestic battery within a 5–year period.
On July 15, 2011, the district court sentenced Omar–Cruz in No. 11 CR 1168 to 12 months in jail, but it suspended all but 90 days of the sentence and further placed Omar–Cruz “on a term of probation for 12 months from today's date.”
On August 17, 2011, an order was filed in No. 11 CR 1168 directing Omar–Cruz to appear due to several alleged violations of his probation. A warrant for these violations was filed on September 7, 2011, but there is no showing that it was served on Omar–Cruz or that he appeared on this warrant. A year later, a second warrant was filed on September 26, 2012, alleging additional violations of the probation in No. 11 CR 1168.
On October 31, 2012, the district court conducted a probation violation hearing. At this hearing, Omar–Cruz admitted all violations. The district judge ordered him to return to probation, stating, “I'm going to return you to probation, but that still requires, sir, that you serve 90 days in the county jail prior to being placed on probation.” The district court then modified some of the terms of Omar–Cruz' probation, but it did not state from the bench that it was extending his original term of probation. The journal entry from this hearing also did not extend the terms of Omar–Cruz' probation. However, on January 3, 2013, the district court filed an order nunc pro tunc extending Omar–Cruz' probation, adding the following corrected order to the disposition section of the journal entry: “Probation [e]xtended for 12 months from 10/31/12.”
On January 31, 2013, a warrant was filed in No. 11 CR 1168, alleging that Omar–Cruz had again violated his probation. The next day, February 1, 2013, Omar–Cruz was charged with aggravated battery in No. 13 CR 284. After this filing, another warrant was filed in No. 11 CR 1168 on April 12, 2013, alleging Omar–Cruz had violated his probation by committing the aggravated battery charged in No. 13 CR 284.
On May 20, 2013, the court conducted a plea hearing in No. 13 CR 284 and a probation violation hearing in No. 11 CR 1168. During this combined hearing, Omar–Cruz entered a plea of guilty to aggravated battery in No. 13 CR 284 and stipulated to violating his probation in No. 11 CR 1168.
On July 9, 2013, the district court held a hearing disposing of the probation violations in No. 11 CR 1168 and sentencing in No. 13 CR 284. The presentencing report in No. 13 CR 284 showed Omar–Cruz' criminal history score for that case was B. Entry 10 of his criminal history worksheet showed a person felony from the felony domestic battery conviction in No. 11 CR 1168. Entries two, three, and four show three person misdemeanors, two for domestic battery and one for battery of a law enforcement officer, were converted into an additional person felony. Therefore, since he then had two person felonies, his criminal history was scored as B.
At the sentencing hearing, Omar–Cruz' counsel admitted that the criminal history score was correct. However, Omar–Cruz made an oral motion for a departure sentence, telling the district court upon its noting that a departure requires a motion that “I did receive the PSI, but it was rather late, so I would ask [the court] to consider the oral motion to depart.” The district court denied the departure and sentenced Omar–Cruz to 29 months' imprisonment in No. 13 CR 248, with the sentence to run consecutive to No. 11 CR 1168. In No. 11 CR 1168, the district court revoked his probation and ordered him to serve the balance of his 12–month sentence.
Omar–Cruz timely appealed from both No. 11 CR 1168 and No. 13 CR 248. We consolidated the cases on appeal.
Analysis of Appellate Issues
Did the district court err by revoking Omar–Cruz' probation in No. 11 CR 1168 because it lacked subject matter jurisdiction, requiring Omar–Cruz to receive jail credit in No. 13 CR 248?
Omar–Cruz first argues the district court lacked jurisdiction to revoke his probation. Specifically, Omar–Cruz contends that since the district court did not announce from the bench that it was extending the length of his probation at the October 31, 2012, hearing, the journal entry filed on January 3, 2013, extending Omar–Cruz' probation for an additional 12 months was invalid. Therefore, Omar–Cruz claims that upon completion of the 90–day jail sentence imposed at the October 31, 2012, hearing, he had completed his probation which he argues ended on July 12, 2012. Omar–Cruz recognizes that at this time he has already served his entire underlying sentence in No. 11 CR 1168, but he asks this court to credit him the excess time he has served to his current sentence in No. 13 CR 248.
The State contends in response that the district court was within its rights to use a nunc pro tunc order to extend the length of Omar–Cruz' probation. However, without conceding the issue, the State also argues that even if Omar–Cruz is correct that the district court lacked jurisdiction to revoke his probation at the July 9, 2013, hearing, the point is moot as he has completed his sentence for that conviction, and it is impermissible to award jail credit from No. 11 CR 1168 to the sentence in No. 13 CR 248.
We will first determine whether Omar–Cruz' claim is moot.
As a general rule, appellate courts do not render advisory opinions or decide moot questions. State v. Montgomery, 295 Kan. 837, 840, 286 P.3d 866 (2012). Mootness is a court policy developed through court precedent, and our standard of review for mootness is unlimited. 295 Kan. at 841.
When determining mootness, the test is whether “ ‘it is clearly and convincingly shown the actual controversy has ended, the only judgment that could be entered would be ineffectual for any purpose, and it would not impact any of the parties' rights.’ “ 295 Kan. at 840–41 (quoting McAlister v. City of Fairway, 289 Kan. 391, 400, 212 P.3d 184 (2009). Here, the mootness issue is dependent on whether Omar–Cruz' requested relief, whether credit for time already served after his probation allegedly had run could be added to the time being served on his sentence for No. 13 CR 284, is an allowed remedy. If this is allowed, then finding that the district court had no jurisdiction to extend the probation would lessen his incarceration. However, if this is not permissible, then this question would be moot because he has already served his entire sentence, as the journal entry in No. 11 CR 1168 shows he was awarded 278 days of jail credit so his sentence was calculated as beginning on October 2, 2012, meaning that he fulfilled it on October 4,2013.
Omar–Cruz cites no statutory or caselaw authority requiring that he be given jail credit in a separate and different case for the claimed excessive time served in No. 11 CR 1168. This is because our Kansas law is contrary to his requested relief.
K.S.A.2013 Supp. 21–6615(a), which is a recodification without substantive change of K.S.A. 21–4614, states in relevant part:
“(a) In any criminal action in which the defendant is convicted, the judge, if the judge sentences the defendant to confinement, shall direct that for the purpose of computing defendant's sentence and parole eligibility and conditional release dates thereunder, that such sentence is to be computed from a date, to be specifically designated by the court in the sentencing order of the journal entry of judgment. Such date shall be established to reflect and shall be computed as an allowance for the time which the defendant has spent incarcerated pending the disposition of the defendant's case.” (Emphasis added.)
Our Supreme Court in Campbell v. State, 223 Kan. 528, 529–30, 575 P.2d 524 (1978), noted the statutory language which was important is the phrase “the time which the defendant has spent in jail pending the disposition of the defendant's case,” 223 Kan. at 529, and held: “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.” 223 Kan. 528, Syl. ¶ 2.
This holding has been followed by this court in State v. Richardson, 46 Kan.App.2d 801, 803, 264 P.3d 1048 (2011), rev. denied 294 Kan. 947 (2012), and State v. Davenport, 22 Kan.App.2d 683, 684, 920 P.2d 475, rev. denied 260 Kan. 997 (1996).
Therefore, given that jail credit cannot be applied from one case to a wholly unrelated case, Omar–Cruz' appeal of his probation revocation is moot and is dismissed. There is no judgment this court can enter that would affect his rights as applied to No. 11 CR 1168 because the State has no authority to further punish Omar–Cruz for his conviction in No. 11 CR 1168, rendering any action taken by this court regarding that conviction meaningless. See Montgomery, 295 Kan. at 844 (when sanction for probation violation has been completely served, any action taken on matter would constitute advisory opinion). Did the district court err in calculating Omar–Cruz' criminal history score?
Omar–Cruz next claims the district court erred in calculating his criminal history score in No. 13 CR 248. Specifically, he claims that two person misdemeanor domestic battery convictions were impermissibly used twice, once to elevate his third domestic battery charge to a person felony, and again counted with a third person misdemeanor to aggregate the three into an additional person felony, giving him two person felonies in No. 13 CR 248. He argues that this impermissibly raised his criminal history score from D to B.
It is noted that Omar–Cruz' attorney stipulated that his criminal history score of B was correct at sentencing. Generally, a criminal defendant cannot stipulate to a criminal history at sentencing and challenge the same on appeal as that runs afoul of the invited error doctrine. State v. Hankins, 49 Kan.App.2d 971, 975, 319 P.3d 571 (2014). However, Omar–Cruz is not disputing the existence of his prior convictions, but rather their legal effect. As such, this falls into an exception of the invited error doctrine as no party can stipulate to an incorrect application of law. State v. Donaldson, 35 Kan.App.2d 540, 543–44, 133 P.3d 154 (2006). Thus, we turn to the merits of Omar–Cruz' claim.
Determining a defendant's criminal history score requires interpretation of statutes and, as such, presents a question of law reviewed de novo. State v. Murdoch, 299 Kan. 312, 314, 323 P.3d 846 (2014).
K.S.A.2013 Supp. 21–6810(a) provides that a prior conviction is
“any conviction, other than another count in the current case which was brought in the same information or complaint or which was joined for trial with other counts in the current case pursuant to K.S.A. 22–3203, and amendments thereto, which occurred prior to sentencing in the current case regardless of whether the offense that led to the prior conviction occurred before or after the current offense or the conviction in the current case.” (Emphasis added.)
K.S.A.2013 Supp. 21–6810(d)(9) provides:
“Prior convictions of any crime shall not be counted in determining the criminal history category if they enhance the severity level, elevate the classification from misdemeanor to felony, or are elements of the present crime of conviction. Except as otherwise provided, all other prior convictions will be considered and scored.” (Emphasis added.)
Here, the presentence investigation report for No. 11 CR 1168 shows that Omar–Cruz had two prior convictions of domestic battery which were used to elevate his conviction of domestic battery in that case to a felony pursuant to K.S.A.2011 Supp. 21–5414(b)(3). The district court acted properly in No. 11 CR 1168 as it did not also use those convictions to aggregate with his prior conviction of battery of a law enforcement officer to create an additional person felony as they were used to elevate the crime of his conviction per K.S.A.2011 Supp. 21–6810(d)(9) (same as 2013 Supp.).
However, his conviction in No. 11 CR 1168 was final in July 2011. This made it a prior conviction when he was sentenced in No. 13 CR 248. There, the two misdemeanor battery charges were aggregated with the battery of a law enforcement officer to convert to a person felony, while his person felony conviction of K.S.A.2011 Supp. 21–5414(b)(3) was also used, raising his criminal history score to B. This was not improper because at the time he was sentenced in No. 13 CR 248, none of these convictions were used to elevate the current crime of conviction as is forbidden by K.S.A.2013 Supp. 21–6810(d)(9). Further, K.S.A.2013 Supp. 21–6810(a) provides that a prior conviction encompasses “any conviction other than another count in the current case.” Thus, because No. 11 CR 1168 and No. 13 CR 248 were two separate cases and the convictions of No. 11 CR 1168 were final before Omar–Cruz was sentenced in No. 13 CR 248, it is clear that all of these convictions were available to be used in No. 13 CR 248, as none of them elevated his current crime of conviction. Therefore, under the plain language of the statutes, the district court did not err in finding Omar–Cruz' criminal history score was B. See State v. Temmen, No. 104,326, 2011 WL 1878141 (Kan.App.2011) (unpublished opinion), rev. denied 293 Kan. 1113 (2011); State v. Smith, No. 92,312, 2005 WL 1089054 (Kan.App.2005) (unpublished opinion), rev. denied 280 Kan. 990 (2005).
Affirmed in part and dismissed in part.