NOT DESIGNATED FOR PUBLICATION
No. 123,015
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
JAMES JAMERSON,
Appellant,
v.
JAMES HEIMGARTNER,
Appellee.
MEMORANDUM OPINION
Appeal from Reno District Court; JOSEPH L. MCCARVILLE III, judge. Opinion filed June 11,
2021. Affirmed.
Shannon S. Crane, of Hutchinson, for appellant.
Jon D. Graves, legal counsel, Kansas Department of Corrections, of Hutchinson, for appellee.
Before ATCHESON, P.J., GARDNER and WARNER, JJ.
PER CURIAM: James Jamerson has challenged how the Kansas Department of
Corrections computed good time credit on his convictions for second-degree murder and
two other felonies. In this habeas corpus action under K.S.A. 60-1501, Jamerson says the
Department failed to follow its own regulations and deprived him of credit for 193 days
of good time "withheld" and 145 days of good time "forfeited" for disciplinary
infractions. The Reno County District Court dismissed the petition on procedural grounds
but also considered and rejected Jamerson's argument on its merits. In this appeal, we
focus on the merits and affirm the district court.
1
Jamerson filed this 60-1501 petition in Reno County in 2017, since he was then an
inmate at the prison in Hutchinson. He was serving sentences for 2001 convictions for
second-degree murder, conspiracy to commit aggravated robbery, and aggravated
robbery. In 2016, Jamerson was resentenced on those convictions because his criminal
history had been miscalculated, resulting in illegal sentences that were too long. See
K.S.A. 2020 Supp. 22-3504(a) (correction of illegal sentences).
Jamerson then sought restoration of the good time credit that had been "withheld"
or "forfeited" before his resentencing and cited part of K.A.R. 44-6-125(c) as supporting
his claim. The pertinent language states: "In cases of a new sentence conviction,
disciplinary offenses occurring before the effective date of the new sentence that result in
the forfeiture of good time or program credits shall not be applied to the computation."
K.A.R. 44-6-125(c). The Reno County District Court denied Jamerson relief on res
judicata grounds because he had litigated and lost the same claim in a 60-1501 action he
had filed in the Butler County District Court a year earlier when he was held at the prison
in El Dorado. The Reno County District Court also found the claim to be without legal
merit, essentially borrowing the rationale of the Butler County District Court.
Jamerson has appealed the Reno County District Court's ruling. As it has
throughout this litigation, the Department has interposed various procedural arguments
for dismissing this 60-1501 petition without reaching the merits. Most notably, perhaps,
Jamerson was released from prison late last year to begin a period of postrelease
supervision, mooting his claim for additional good time credit that would have shortened
his incarceration. The Kansas Supreme Court has recently cautioned that mootness
should be circumspectly applied to terminate litigation. See State v. Roat, 311 Kan. 581,
591-93, 466 P.3d 439 (2020). We reserve that circumspection for another day and reject
by rote mootness as a basis for affirming the district court. Rather than work our way
through the convoluted procedural history of the 60-1501 petitions Jamerson filed in
Butler County District Court and Reno County District Court to explore the preclusion
2
bars the Department has argued, we weigh the merits of the claim. We have that option
because the procedural defenses are jurisprudential rather than jurisdictional ones.
Judicial review of administrative regulations entails the same principles used to
consider and apply statutes. See Davis v. McKune, 28 Kan. App. 2d 14, 16, 11 P.3d 503
(2000); cf. Villa v. Kansas Health Policy Authority, 296 Kan. 315, 323, 291 P.3d 1056
(2013) (assessing constitutionality of administrative regulation "requires statutory
interpretation"). The meaning of an administrative regulation presents a question of law,
so we owe no particular deference to the district court's determination. Woessner v. Labor
Max Staffing, 312 Kan. 36, 45, 471 P.3d 1 (2020).
The fundamental rule of statutory review commands that the courts give effect to
the intent of the Legislature in enacting a statute or, here, the agency in promulgating a
regulation. And that intent should be drawn from the plain meaning of the measure's
language if at all possible. State v. Smith, 309 Kan. 929, 932-33, 441 P.3d 472 (2019). By
the same token, courts should avoid imputing an unreasonable meaning to the language
that would lead to an implausible or absurd result. State v. James, 301 Kan. 898, 903, 349
P.3d 457 (2015).
In applying those principles to K.A.R. 44-6-125(c), we assume the correctness of
the factual predicate for Jamerson's 60-1501 petition: The Department deprived him of
about 338 days of good time credit before 2016 as punishment for rules infractions and
but for that loss of good time he would have been placed on postrelease supervision
sooner. Jamerson contends that when he was resentenced in 2016 to correct his original
illegal sentences, he got "a new sentence conviction" within the meaning of K.A.R. 44-6-
125(c). So, his argument goes, the earlier disciplinary losses of good time credit should
not count against the new sentences he received for the 2001 convictions.
3
As a matter of judicial review, we see the argument turning on the meaning of the
phrase "a new sentence conviction." It is neither a defined term nor one of art in the
sentencing statutes or the Department's regulations. As far as we can tell, the phrase
appears only in K.A.R. 44-6-125(c). We see the language as an administrative or
bureaucratic shorthand for the idea that a prisoner with a new conviction and sentence
cannot have existing reductions of good time counted against that sentence. In other
words, prisoners with new convictions will receive full good time credit against those
sentences, assuming they otherwise abide by the Department's rules and regulations and
incur no disciplinary infractions going forward.[*]
[*]At least two obvious scenarios would result in that sort of "new sentence
conviction" for someone already in prison. In the first, the inmate is convicted of a crime
he or she has committed while incarcerated and serving a sentence on an earlier
conviction. The second would be a recent prosecution and conviction of an inmate for a
crime he or she committed outside prison distinct from the crime and conviction resulting
in his or her incarceration. The proverbial "cold case" prosecution would be an example.
Those circumstances would result in "new sentence convictions" under K.A.R. 44-6-
125(c).
A more complicated scenario would arise if an inmate's conviction were reversed
(and the sentence vacated, as a result) and he or she were then convicted in a retrial or
following a guilty plea. The result would be both a new conviction and a new sentence.
We offer no opinion on that situation or how it would be treated under the Department's
regulations generally or K.A.R. 44-6-125 specifically. Jamerson's circumstance is legally
and factually different, since his 2001 convictions remained in effect, only the sentences
were modified.
In looking at only K.A.R. 44-6-125, we concede we fail to see what linguistic or
legal work the word "sentence" does as an adjunct to "new conviction" in subsection (c).
That is, the phrase "a new conviction" would seem to be synonymous with "a new
sentence conviction." At first blush, a new conviction would necessarily result in a new
sentence. If the regulation referred to only "a new conviction," Jamerson's argument
would have absolutely no traction. He had no new convictions.
4
A canon of construction recognizes that words of a statute (or a regulation) should
not be rendered surplusage. See Fisher v. Kansas Crime Victims Comp. Bd., 280 Kan.
601, 613, 124 P.3d 74 (2005); State v. Van Hoet, 277 Kan. 815, 826-27, 89 P.3d 606
(2004) ("The court should avoid interpreting a statute in such a way that part of it
becomes surplusage."). But that is a secondary rule of statutory review that must yield to
avoid unreasonable outcomes. See KPERS v. Reiner & Koger Assocs., Inc., 262 Kan.
635, 644, 941 P.2d 1321 (1997) (clear legislative intent given effect even if statutory
words or phrases omitted as result); State v. Schreiner, 46 Kan. App. 2d 778, 784, 264
P.3d 1033 (2011) (canon against surplusage "one aid" rather than "cardinal" rule in
reviewing statutory language).
On examination, Jamerson's interpretation of K.A.R. 44-6-125(c) neither
obviously follows from the language he relies on nor advances an arguably reasonable
application of that language. Nothing about the admittedly odd phrase "a new sentence
conviction" supports the idea that an inmate resentenced to correct an originally unlawful
sentence should also receive a dispensation for good time credit lost as punishment for
disciplinary violations in prison. The two—correction of an original sentence and
restoration of good time credit taken to punish a rules infraction in prison—have no direct
or even indirect connection. A new lawful sentence provides a criminal defendant with a
fair and complete remedy for an illegal original sentence. Reversing an otherwise proper
loss of good time for a violation of prison rules would be wholly gratuitous to remedying
an illegal sentence. Doing so would serve no readily apparent penological purpose or
public policy interest. In short, we see nothing to suggest the Department had the intent
Jamerson would impute to it with his reading of K.A.R. 44-6-125(c). And the language of
K.A.R. 44-6-125(c) does not ineluctably require that otherwise seemingly inexplicable
result.
5
The district court correctly assessed Jamerson's argument as lacking any
substantive merit. We affirm the dismissal of the 60-1501 petition on that basis.
Affirmed.
6