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Kenneth William Blomeyer, Appellee, v. State of Kansas, by Paul J. Morrison, District Attorney, Tenth Judicial District; and Gary Stotts, Secretary of Corrections for the State of Kansas, Appellants

Kansas Court of Appeals1996-05-17No. No. 73,859
22 Kan. App. 2d 382915 P.2d 790

Summary

Holding. The court affirmed the district court's decision, holding that the Department of Corrections may not use sentence aggregation rules to extend the expiration date of an individual sentence or to render an inmate ineligible for conversion after the maximum term of that sentence has been served.

Kenneth Blomeyer was convicted of three crimes: conspiracy to deliver cocaine (1–5 years), felony theft (1–2 years), and felony burglary (2.5–8 years). The latter two sentences were imposed consecutively to each other and to the original conviction. After his parole was revoked, the Department of Corrections aggregated all three sentences to determine eligibility for sentence conversion under state law. Because the aggregated term had not been fully served, the DOC treated Blomeyer as still serving on the original cocaine conviction, which made him ineligible for conversion. Blomeyer challenged this determination, arguing that he had already served beyond the 5-year maximum of his original sentence, making that conviction expired and him eligible for conversion based on the remaining crimes.

The district court found that the DOC's aggregation rule was administrative rather than substantive and granted Blomeyer relief. The appellate court affirmed, holding that the statute governing sentence calculation applies only to determining the time to be served, sentence begin dates, and parole eligibility—not to changing the character of a sentence or extending eligibility determinations beyond the sentence's actual term. Once Blomeyer exceeded the maximum term of his original conviction, that sentence was complete for purposes of applying conversion eligibility, even though the aggregated sentences continued.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

  • Whether the DOC may aggregate consecutive sentences to determine eligibility for sentence conversion under the Kansas Sentencing Guidelines Act
  • Whether K.S.A. 21-4608(f)(4) permits administrative modification of sentence character or expiration dates
  • Whether the legislative intent behind consecutive sentencing provisions extends to limiting conversion eligibility through aggregation

Procedural posture

The Kansas Secretary of Corrections appealed a district court decision granting Blomeyer's petition for relief under K.S.A. 60-1507, which challenged the DOC's determination that aggregated sentences made him ineligible for conversion under the Kansas Sentencing Guidelines Act.

Authorities cited

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Opinion

majority opinion

•Luckert, J.:

The Kansas Secretary of Corrections appeals a decision granting relief to Kenneth William Blomeyer pursuant to K.S.A. 60-1507. The action arose when the Department of Corrections (DOC) aggregated three consecutive sentences and determined that all three sentences should be considered for purposes of determining whether Blomeyer was eligible for conversion under the Kansas Sentencing Guidelines Act (KSGA), K.S.A. 21-4701 et seq. Blomeyer argued that he had served his time on the earliest of the sentences, which was the crime which made him ineligible for conversion under K.S.A. 21-4724(b)(l). He requested a determination that the oldest of the three consecutive sentences had expired resulting in his eligibility for conversion under the KSGA. The district court granted Blomeyer’s requested relief. We affirm.

Of the convictions at issue, Blomeyer was first convicted of conspiracy to deliver cocaine. He was sentenced to an indeterminate sentence of not less than 1 and not more than 5 years. His sentence for this conviction began on May 22, 1984.

Blomeyer was later paroled on this conviction. While on parole Blomeyer received two additional convictions. In one case he was convicted of felony theft and sentenced to an indeterminate term of not less than 1 year and not more than 2 years. In another case he was convicted of felony burglary and sentenced to not less than 2 and Vz and not more than 8 years. Pursuant to K.S.A. 21-4608(c), the sentences for these new crimes were imposed consecutive to each other andconsecutive to the sentence imposed for his conviction of conspiracy to deliver cocaine. The last two sentences began on March 27, 1986.

Blomeyer’s parole was revoked by the Kansas Parole Board on or about October 27,1987. He was ordered to serve until his parole eligibility date on the time resulting from the aggregation of the three sentences. Applying K.S.A. 21-4608(f)(4) and giving Blomeyer credit for time served, the DOC determined Blomeyer’s controlling sentence in all three cases was 4 and Vz to 15 years.

It is undisputed that Blomeyer had served longer than the 5-year maximum on his original conviction by the time the DOC considered whether he was eligible for conversion under the KSGA. However, the DOC treated the three convictions as aggregated and, because Blomeyer had not exhausted the aggregated time, determined Blomeyer was still serving time on the conspiracy to deliver cocaine charge. This determination made Blomeyer ineligible for conversion. See State v. Lunsford, 257 Kan. 508, Syl. ¶ 1, 894 P.2d 200 (1995).

The DOC reached this determination by applying 21-4608(f)(4), which provides:

“(f) ... In calculating the time to be served on concurrent and consecutive sentences, the following rules shall apply:

(4) When indeterminate sentences are imposed to be served consecutively to sentences previously imposed in any other court or the sentencing court, the aggregated minimums and máximums shall be computed from the effective date of the subsequent sentences which have been imposed as consecutive. For the purpose of determining the sentence begins date and the parole eligibility and conditional release dates, the inmate shall be given credit on the aggregate sentence for time spent imprisoned on the previous sentences, but not exceeding an amount equal to the previous minimum sentence less the maximum amount of good time credit that could have been earned on the minimum sentence. For the purpose of computing the maximum date, the inmate shall be given credit for all time spent imprisoned on the previous sentence. This method for computation of the maximum sentence shall be utilized for all sentences computed pursuant to this subsection after July 1, 1983.

“Nothing in this subsection (f)(4) shall affect the authority of the Kansas parole board to determine the parole eligibility of inmates pursuant to subsection (d) of K.S.A. 22-3717 and amendments thereto.”

In considering Blomeyer s petition pursuant to 60-1507, the district court found that the provisions of 21-4608(f)(4) were administrative in nature and not substantive.

Our review of the ruling is unlimited; the interpretation of 21-4608(f)(4) is a question of law. See Foulk v. Colonial Terrace, 20 Kan. App. 2d 277, Syl. ¶ 1, 887 P.2d 140 (1994), rev. denied 257 Kan. 1091 (1995).

On appeal the DOC argues the district court’s ruling disregards the clear legislative intent of the statute. Relying upon prior case law, the DOC argues that the legislative intent behind 21-4608(f)(4) was to treat more harshly defendants who committed additional felony crimes after being released to a community corrections program or while on parole, probation, postrelease supervision, or conditional release. However, the cases cited by the DOC do not hold that the legislature intended harsh treatment through the aggregation provisions. Rather, the findings in these cases reflect that the legislative intent was to impose a harsher penalty by requiring consecutive sentences if a second crime is committed while a defendant is on probation, parole, conditional release, post-release supervision, or assignment to a community correctional services program. See, e.g., State v. Reed, 237 Kan. 685, 687, 703 P.2d 756 (1985) (K.S.A. 21-4608 enacted to require mandatory consecutive sentences in certain cases to deal with the concern of the public over felonies committed by persons who had previous felony charges); State v. Daniels, 18 Kan. App. 2d 338, 341, 853 P.2d 65, rev. denied 253 Kan. 861 (1993) (“K.S.A. 1992 Supp. 21-4608(4) reflects the clear intention of the legislature to deter crime by . . . requiring the judge to impose the harsher penalty of a consecutive sentence.”). Hence, these cases do not support the DOC’s construction of 21-4608(f)(4).

Additionally, the language of the statute does not support the interpretation suggested by the DOC. The stated purpose of 21-4608(f) is to allow determination of the time to be served on multiple sentences, the sentence begin date, and parole eligibility and conditional release dates. There is no language in the statute which would allow application of the aggregation rules to purposes other than those stated.

The statute does not allow an administrative conversion of a sentence of 1 to 5 years to a sentence which is not satisfied at the expiration of a 5-year term. The character of a sentence may not be changed in this manner. Once the district court has imposed the sentence, it may not be made harsher. See State v. Royse, 252 Kan. 394, 398, 845 P.2d 44 (1993). The harsh punishment intended by the legislature for Blomeyer’s failure to remain law abiding while on parole must be and was imposed through making the sentences on the last two convictions consecutive to each other and to the earlier conviction.

Blomeyer has served longer than the 5-year maximum term for his original conviction. For purposes of applying the KSGA, Blomeyer cannot be considered as still serving a sentence for the conspiracy to deliver cocaine. That crime has expired, and Blomeyer was eligible for conversion since the remaining convictions are not ones which fall under the exceptions to conversion found in K.S.A. 21-4724.

Affirmed.