Opinion
No. 106,929.
2013-03-8
STATE of Kansas, Appellee, v. Joyce L. PRICE, Appellant.
Appeal from Sedgwick District Court; Douglas R. Roth, Judge. Shawn E. Minihan, of Kansas Appellate Defender Office, for appellant. David Lowden, chief appellate attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Douglas R. Roth, Judge.
Shawn E. Minihan, of Kansas Appellate Defender Office, for appellant. David Lowden, chief appellate attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before LEBEN, P.J., PIERRON and STANDRIDGE, JJ.
MEMORANDUM OPINION
LEBEN, J.
Joyce Price was placed on probation after convictions in three separate cases for burglary, theft, possession of cocaine with intent to sell, and violation of drug tax-stamp laws. As a condition of her probation, she spent 120 days in a residential treatment center. But Price violated probation by committing several more drug crimes, and her probation was eventually revoked.
As part of a plea agreement in the new drug-crimes case, Price and the State agreed to recommend that one of her old cases—No. 07CR1567, where she had been convicted of burglary—be “closed.” At the hearing in which the district court revoked her probation, it did close case No. 07CR1567, and in doing so it credited the 120 days of jail-time credit for Price's time in the residential treatment center against the sentence in that case.
Price later filed a motion asking the court to credit those 120 days against the other sentences—which totaled 37 months—that she still had to serve after her probation was revoked. The district court denied that motion because Price's sentences were to run consecutively, so she was only entitled to credit in one of the three cases.
Price has appealed to this court, but we find no error. The district court essentially lessened Price's sentence in case No. 07CR1567 to the time she had served before her original sentencing plus the 120 days she served at the residential treatment center. She was entitled to no more than that since the 37–month sentence she is now serving was expressly made consecutive to the 11–month sentence she had received in case No. 07CR1567. So we affirm the denial of Price's motion for jail-time credit.
Factual and Procedural Background
Price's original convictions came in three separate cases: Nos. 07CR1567, 07CR3100, and 07CR3487. She received probation, with an underlying controlling sentence of 11 months for burglary in case No. 07CR1567, and a controlling sentence of 37 months for possession of cocaine with intent to sell in case No. 07CR3100 (which was consolidated with case No. 07CR3487). These two sentences were ordered to run consecutively. Thus, if Price failed to complete her probation successfully, she would have a 48–month prison sentence to serve.
Part of Price's probation required that she follow the recommendations of a drug-and-alcohol evaluation, including spending 120 days in a community corrections residential treatment center, and she did so. But she also committed probation violations, which caused her probation to be revoked twice—but reinstated—before she committed new drug crimes that led to a new prosecution. She pled guilty to several new crimes in case No. 10CR3128. In the plea agreement in that case, Price and the State agreed to a recommended sentence in the new case. The parties also agreed that Price's probation should be revoked and not reinstated, that the new sentence should be consecutive to the 37–month sentence in case No. 07CR3100, and that her oldest case, No. 07CR1567, should be “closed .”
The district court considered these matters in a single probation-revocation hearing for all of Price's 2007 cases. The court said that Price would receive credit for her time served, that case No. 07CR1567 would be closed, and that she would still serve the 37–month sentence in case No. 07CR3100, with the new sentence in case No. 10CR3128 to run consecutive to it (meaning that the new, 22–month sentence in case No. 10CR3128 would be added together with the 37–month sentence in case No. 07CR3100).
Written journal entries were entered in the separate case files. The journal entry in case No. 07CR3100 noted the 120 days in the residential-treatment center but marked the 120 days as not awarded toward Price's jail credit in that case. The parties have not provided a copy of the journal entry from case No. 07CR1567, but it appears that the 120 days were awarded as jail credit in that case. Price was awarded 228 days of jail-time credit in case No. 07CR3100 for the time she had spent in jail after her arrest on the new drug-crime charges.
A few months later, Price filed a motion for jail-time credit in case No. 03CR3100. She said the 120 days of credit should not have been applied to a closed case. The district court said that Price couldn't get credit in both of the cases in which she had been granted probation because the sentences in those cases were consecutive. The court said, based on the record, that it had “contemplated that any ... jail credit would go to the earlier closed case” when it made its sentencing decision. On those grounds, the court denied Price's motion.
Price has appealed to this court. She argues that the district court said at the probation-revocation hearing that she would receive jail credit for all time served and that she was entitled by law to full jail-time credit.
Analysis
When revoking probation, the district court has the authority to reduce the defendant's sentence to “any lesser sentence” or any sentence that “might originally have been imposed.” K.S.A. 22–3716(b). The parties' plea agreement was based on this authority—the parties essentially asked that the district court reduce the sentence in case No. 07CR1567 to the time Price had already served. At the time of Price's original sentencing, she had 123 days of jail-time credit. Thus, had the parties' plea agreement been followed, Price's 11–month sentence in case No. 07CR1567 would have been reduced to 123 days, allowing that case to be closed because Price had served her sentence.
But the district court is not bound by the parties' plea agreement. See State v. Chetwood, 38 Kan.App.2d 620, Syl. ¶ 5, 170 P.3d 436 (2007), rev. denied 286 Kan. 1181 (2008). So the court was free to reduce Price's sentence to any lesser sentence. By crediting the 120 days served in the community-corrections residential center against the sentence in case No. 07CR1567 and then “closing” that case, the district court essentially reduced Price's sentence in that case to the 123 days of jail-time credit she had when initially sentenced plus the 120 days she served at the residential center. Because the time served now equaled the sentence, the court could “close” the case because Price had served her sentence.
Price's controlling 37–month sentence in her other cases (Nos. 07CR3100 and 07CR3487) remained to be served because those sentences were expressly made consecutive to her sentence in case No. 07CR1567. And jail credit can only be counted against one of the sentences when the sentences are consecutive. See Price v. State, 28 Kan.App.2d 854, 858, 21 P.3d 1021,rev. denied 271 Kan. 1037 (2001).
The district court certainly had the authority to refuse to lower the sentence in case No. 07CR1567 to only 123 days, which is what would have been required to “close” the case as the parties had suggested. The district court plainly had the authority to lower the sentence to any lesser sentence, and it essentially chose 243 days—Price's time in residential corrections combined with her original jail credit—even though its ruling was not stated in those terms.
Neither party has suggested a way that the court could have “closed” case No. 07CR1567 unless the sentence in that case had been served. Except for the authority when revoking probation to modify' the sentence to a lesser one, the district court has no authority to change a sentence after it has been pronounced. See State v. Guder, 293 Kan. 763, 766–67, 267 P.3d 751 (2012). So, at least in Price's view, what the parties were urging through their plea agreement—though they did not use these terms either—was that the district court reduce the sentence in case No. 07CR1567 to a mere 123 days so that the case could be deemed closed because Price had served her sentence. The district court deemed the case closed, but only after it credited the 120 days in the residential-treatment center against the sentence in that case, effectively shortening that sentence from 11 months to 243 days. Price has not shown that this decision in any way exceeded the district court's legal authority or was an abuse of discretion. When the district court credited these 120 days against the sentence in case No. 07CR1567, the days were no longer available to be credited against the sentence in case No. 07CR3100 since the sentences in the two cases were consecutive.
The district court's judgment is affirmed.