State v. Ward

1

State of Kansas, Appellee, v. Khalil Shakor Ward, Appellant.

No. 125,421

Court of Appeals of Kansas

November 9, 2023

NOT DESIGNATED FOR PUBLICATION

Submitted without oral argument.

Appeal from Sedgwick District Court; ERIC WILLIAMS, judge.

Kasper Schirer, of Kansas Appellate Defender Office, for appellant.

Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Kris W. Kobach, attorney general, for appellee.

Before GREEN, P.J., SCHROEDER and CLINE, JJ.

MEMORANDUM OPINION

PER CURIAM:

The district court revoked Khalil Shakor Ward's probation and ordered that he serve his original sentence based on Ward's commission of new crimes. On appeal, Ward challenges the district court's jail credit assignment and its refusal to modify his sentence on the revocation of his probation.

Ward's argument-that the district court abused its discretion when it refused to modify its revocation of his probation-is unconvincing because Ward cannot show that the district court's decision to impose his original sentence without modification was unreasonable. We affirm. Nevertheless, Ward's jail credit argument is persuasive because under the facts of this case one could argue that he had a right to jail credit for time served. Thus, we reverse the district court's award of jail credit and remand this case to the district court to account for each day Ward was incarcerated pending the disposition in case No. 18CR2153. We affirm in part, reverse in part, and remand with directions.

FACTS

While serving probation in 2018, the State charged Ward with five drug-related crimes in a new case, 18CR2153. Ward entered an Alford plea to possession of marijuana with the intent to distribute, proceeds derived from violations of drug laws, and possession of controlled substances. See North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160 27 L.Ed.2d 162 (1970).

Before sentencing, Ward moved for a dispositional departure to probation. The district court considered Ward's motion at the sentencing hearing, where it also heard arguments on Ward's probation violation in a separate case, No 17CR1753. In case 17CR1753, the district court revoked and reinstated Ward's probation, ordered that he serve a quick-dip, awarded jail credit, and ordered Ward to complete the community corrections residential program. Turning to case 18CR2153, the district court sentenced Ward to 68 months' imprisonment but granted Ward's motion for a dispositional departure and ordered that he serve 36 months' probation.

Three months later, Ward admitted to violating the terms of his probation at a violation hearing. The district court ordered that Ward serve a 120-day sanction in both cases and ordered that his probation be revoked and reinstated in both cases on completion of the sanctions. The district court also extended Ward's probation in case 17CR1753 for 18 months.

Seven months after his first violation hearing, a warrant alleged Ward violated the terms of his probation by committing new offenses. And a couple months later, a second warrant alleged Ward violated the terms of his probation by failing to contact his intensive supervision officer (ISO).

The district court held an evidentiary hearing on the alleged violations contained in both warrants. The State's evidence showed that a law enforcement officer stopped Ward's vehicle because Ward was not wearing a seatbelt. As the officer approached Ward's vehicle, he smelled the odor of marijuana from the open window. Ward was "very polite as well as compliant" and "very honest from the beginning." The officer confronted Ward about the marijuana smell, and Ward admitted to smoking marijuana in the vehicle "recently." Ward also admitted to having a firearm in the vehicle. On these admissions, the officer searched Ward's vehicle and located a "fairly big bag" of oxycodone pills, 3.5 grams of marijuana, drug paraphernalia, and a handgun.

In his defense, Ward proffered evidence showing that he was shot eight times in June 2020 when he attempted to pick up his son from the child's mother. One of his doctors testified that the gunshot wounds did damage to multiple organs. And Ward testified that he was in a coma for "[t]hree weeks or a month" after the shooting.

Ward also testified to receiving death threats from the mother of his son after he had awakened from his coma and was released from the hospital. A screenshot of a message making such threat was admitted into evidence. And photos depicting Ward as "a rat" were "posted all over Facebook" and "spread out all over town." Ward testified that he believed, and continued to believe, the threats against his life were valid.

Ward testified that he was prescribed oxycodone after the shooting to manage his pain. And his social worker testified that Ward was diagnosed with posttraumatic stress disorder with a panic disorder as a result of the shooting. Ward's social worker also testified that he "appeared to be functioning at a heightened state of fight or flight, [and] this likely influenced his decision to carry a firearm." In his testimony, Ward agreed and stated that he felt the need to defend himself considering the threats made against his life.

Relevant to the issues on appeal, Ward's ISO also testified at the evidentiary hearing. Notably, she testified to currently supervising Ward on solely the 18CR2153 case-"[t]he 17 CR case has closed." And while she testified to multiple failures to report, Ward's ISO also testified that he was amenable to probation.

The district court found that the State met its burden of proving that Ward had violated his probation. The parties then presented arguments on disposition. The State argued that Ward's probation should be revoked and that he should serve his underlying sentence. Ward, however, requested the reinstatement of his probation, arguing that he was meeting the terms of his probation and contending that he had a need to defend himself. Alternatively, Ward requested the district court impose a modified sentence, arguing that it "would be a horrible injustice" to send him to prison "after everything he has been through."

After noting that "[t]his is a difficult case," the district court revoked Ward's probation based on the commission of new crimes. The district court denied Ward's request for a modified sentence and imposed the original underlying 68 months' imprisonment term. The district court awarded two days of jail credit toward his sentence.

Ward appeals.

ANALYSIS

Did the district court err in awarding jail credit?

In his first issue on appeal, Ward argues that the district court erred in awarding jail credit when it assigned 282 days of jail credit to his previous case, 17CR1753, rather than the instant case. The State argues that Ward did not preserve this claim for appellate review, or alternatively, Ward failed to show that the assignment of the 282 days was legally required.

Ward did not preserve this claim for appellate review.

Ward admits that he failed to object to the assignment of jail credits at sentencing. Generally, issues not raised before the district court cannot be raised on appeal. See State v. Kelly, 298 Kan. 965, 971, 318 P.3d 987 (2014). Even so, he contends that this court should review his claim on multiple grounds.

First he contends that we can reach this issue because it meets two exceptions to the general rule against raising new issues for the first time on appeal. See State v. Johnson, 309 Kan. 992, 995, 441 P.3d 1036 (2019) (delineating exceptions). Ward contends that his newly asserted theory involves only a question of law arising out of proved or admitted facts. He also contends that consideration of his new theory is necessary to prevent the denial his fundamental right to liberty. Second, he contends that we should correct the jail credit award as a clerical error. And third, he argues that we should correct the jail credit as an illegal sentence.

The State argues that no exception should apply because the issue does not arise out of proved or admitted facts. Our Supreme Court has warned, "[a]n appellate court abuses its discretion when invoking an exception to the general rule against addressing an issue for the first time on appeal if consideration of the unpreserved issue would require the court to make factual findings." State v. Allen, 314 Kan. 280, Syl. ¶ 5, 497 P.3d 566 (2021).

The State does not benefit us with a defense against Ward's arguments contending that we should correct his jail credit as a clerical error or illegal sentence. Yet, in neither case are the arguments sound.

The weight of Ward's argument cuts against his suggestion that the district court's action of assigning jail credit was a "[c]lerical mistake" that permits correction at any time under K.S.A. 22-3504(b). See K.S.A. 2022 Supp. 22-3504(b) ("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."). Our Supreme Court has defined 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 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]).

Notably our Supreme Court has "repeatedly denied criminal defendants relief when they request a nunc pro tunc order [under K.S.A. 22-3504(b)] to correct a lower court's substantive or merits determination." State v. Smith, 309 Kan. 977, 987, 441 P.3d 1041 (2019). In Smith, our Supreme Court affirmed this court's finding that "'Smith's motion requests...