                           NOT DESIGNATED FOR PUBLICATION

                                             No. 120,981

               IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                           BRETT WHEELER,
                                              Appellant,

                                                    v.

                                           STATE OF KANSAS,
                                               Appellee.


                                    MEMORANDUM OPINION

        Appeal from Wyandotte District Court; WESLEY K. GRIFFIN, judge. Opinion filed April 3, 2020.
Affirmed.


        William F. Dunn, of Kansas City, for appellant.


        Daniel G. Obermeier, assistant district attorney, Mark A. Dupree Sr., district attorney, and Derek
Schmidt, attorney general, for appellee.


Before BRUNS, P.J., MALONE and GARDNER, JJ.


        PER CURIAM: Inmate Brett Wheeler filed a habeas corpus petition in Wyandotte
County District Court. The district court construed the petition as seeking relief under
K.S.A. 60-1501 and summarily denied it for lack of jurisdiction because Wheeler was
imprisoned in Leavenworth County and K.S.A. 60-1501 petitions must be filed in the
county of imprisonment. Wheeler appeals, arguing that his petition sought relief available
under K.S.A. 60-1507 and he properly filed it in Wyandotte County because his argument
is based on his illegal imprisonment after completing his Wyandotte County sentence.



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We disagree and note that Wheeler is pursuing a substantively identical claim in
Leavenworth County District Court, so we affirm the district court.


                                          FACTS

      Wheeler has a long and complicated history with Kansas courts, and the facts and
procedural history leading to this appeal are well known to the parties and have been
detailed in previous opinions from this court. See Wheeler v. State, No. 120,189, 2020
WL 34552 (Kan. App. 2020) (unpublished opinion), petition for rev. filed February 3,
2020; Wheeler v. State, No. 121,146, 2019 WL 4891996 (Kan. App. 2019) (unpublished
opinion); Wheeler v. Kansas Prisoner Review Bd., No. 113,756, 2015 WL 9302902 (Kan.
App. 2015) (unpublished opinion); State v. Wheeler, No. 111,245, 2015 WL 1947196
(Kan. App. 2015) (unpublished opinion); Wheeler v. Kansas Prisoner Review Bd., No.
108,762, 2013 WL 1729276 (Kan. App. 2013) (unpublished opinion); Wheeler v. State,
No. 102,302, 2010 WL 1078469 (Kan. App. 2010) (unpublished opinion); Wheeler v.
Feleciano, No. 100,478, 2008 WL 5401493 (Kan. App. 2008) (unpublished opinion);
Wheeler v. State, No. 94,762, 2006 WL 2043190 (Kan. App. 2006) (unpublished
opinion); State v. Wheeler, No. 91,094, 2004 WL 1784544 (Kan. App. 2004)
(unpublished opinion).


      For this appeal, the pertinent facts are that in July 1987, the Shawnee County
District Court sentenced Wheeler to 4 concurrent terms of 10 years to life. Over the next
18 years, Wheeler was released on parole, returned to prison for violating the conditions
of his parole, and again released on parole. During some periods of parole, Wheeler
committed additional crimes.


      In May 2005, under a plea agreement, Wheeler pled no contest to a crime he
committed while on parole in Wyandotte County, and the Wyandotte County District
Court sentenced him to 24 months' imprisonment and 12 months' postrelease supervision.

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The journal entry of judgment ordered the sentence to run "[c]onsecutive to 86CR2627
from Shawnee County; however, it is the court's intention to give the defendant credit for
time spent incarcerated from October 11, 2002, to May 2, 2005, as time served on this
case." 2019 WL 4891996, at *1. Between August 2005 and April 2018, Wheeler was
again paroled, violated the terms of his parole, and was reincarcerated.


       On November 29, 2018, Wheeler filed a pro se motion in Wyandotte County
District Court. The form motion did not specify whether Wheeler sought relief under
K.S.A. 60-1501 or 60-1507, but it asserted that he was being illegally imprisoned at
Lansing Correctional Facility in Leavenworth County. Wheeler argued that because his
Wyandotte County sentence was ordered to run consecutive to his prior Shawnee County
sentence and his Wyandotte County sentence began on October 11, 2002, his Shawnee
County sentence must have ended by that date. He also alleged in the motion that his
counsel provided ineffective assistance by "fail[ing] to ensure that . . . the sentence
imposed in [Wyandotte County] was executed [sic] in accordance" with the law.


       Construing the motion as seeking relief on ineffective assistance of counsel
grounds, the State responded on January 3, 2019, arguing that Wheeler's motion was
moot and that the Wyandotte County District Court lacked jurisdiction to consider the
motion because Wheeler's Wyandotte sentence "has already been executed and served."
Wheeler then filed a pleading entitled "Petitioner's Additional Authority," in which he
asked the district court "to issue an authoritative command directing the [State] to execute
the 12 months post-release supervision sentence" in the Wyandotte County case.


       The district court issued its written order denying Wheeler's motion on January 9,
2019. Among other things, the district court construed Wheeler's petition as seeking relief
under K.S.A. 60-1501 because it challenged his continuing confinement and, as such, the
district court held that it should have been filed in Leavenworth County, the county of
Wheeler's imprisonment. Citing Safarik v. Bruce, 20 Kan. App. 2d 61, 66-67, 883 P.2d
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1211 (1994), the district court also noted that "if the KDOC is failing to follow a statutory
requirement an action is to be reviewed in the county where the movant is being confined
via a writ of mandamus." Thus, the district court ruled that it lacked jurisdiction to
consider Wheeler's motion, and it denied the motion. Wheeler timely appealed and the
district court appointed counsel to represent him on appeal.


                                         ANALYSIS

       On appeal, Wheeler contends that his petition sought relief under K.S.A. 60-1507,
so the district court erred in finding that he sought relief only available through K.S.A.
60-1501 or a petition for a writ of mandamus. Without fully explaining how his petition
arises under K.S.A. 60-1507, Wheeler directs our attention to K.S.A. 2019 Supp. 22-
3427(a), which requires county sheriffs "to cause" anyone criminally convicted and
sentenced to confinement "to be confined in accordance with the sentence." He argues
that "[w]here that is not occurring, . . . [Wheeler] may petition the Wyandotte County
District Court to address and correct the situation." And he contends that "[a] plain
reading of K.S.A. 60-1507 appears to countenance his motion."


       In response, the State argues that this court's October 2019 opinion in Wheeler v.
State renders the present appeal moot. In the alternative, the State argues that the district
court correctly found that it lacked jurisdiction to consider Wheeler's motion, which
should have been brought as a K.S.A. 60-1501 motion in Leavenworth County.


       As the State points out, in October 2019, this court considered a similar appeal
involving Wheeler. Wheeler, 2019 WL 4891996, at *1. That case concerned a petition for
habeas corpus relief Wheeler had filed in December 2018 in Leavenworth County
District Court. Like the Wyandotte County motion underlying this appeal, Wheeler's
Leavenworth County petition argued that he was being wrongfully imprisoned because
the consecutive nature of the sentence in the Wyandotte County case meant that "his

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indeterminate life sentence imposed in the Shawnee County case necessarily 'had to be
terminated before [he] could serve his sentence for the Wyandotte County case." 2019
WL 4891996, at *1. The Leavenworth County District Court construed the petition as
"arising under K.S.A. 60-1507 and dismissed it for lack of jurisdiction, finding that
Wheeler filed the proceeding in an improper venue." 2019 WL 4891996, at *2.


       On appeal, we reversed the district court's judgment and remanded for further
proceedings with the following analysis:


               "Although K.S.A. 60-1501 petitions and K.S.A. 60-1507 motions both start civil
       habeas corpus proceedings, they serve different purposes. A prisoner seeking to
       collaterally attack his or her sentence must file a motion under K.S.A. 60-1507, while a
       K.S.A. 60-1501 petition is for challenging the conditions of confinement. White v.
       Shipman, 54 Kan. App. 2d 84, 91, 396 P.3d 1250 (2017). A person must file a K.S.A. 60-
       1507 motion in the county of the court that sentenced the person, while a person must file
       a K.S.A. 60-1501 petition in the county in which the person is confined. See K.S.A. 2018
       Supp. 60-1501(a); K.S.A. 2018 Supp. 60-1507(a).
               "When Wheeler filed his habeas corpus petition in Leavenworth County, he was
       an inmate at Lansing Correctional Facility in Leavenworth County. But the courts that
       imposed the sentences germane to his current claims were in Shawnee County and
       Wyandotte County. The district court construed Wheeler's petition as a motion arising
       under K.S.A. 60-1507 and dismissed it for lack of jurisdiction, finding that Wheeler filed
       the proceeding in an improper venue.
               "'Courts are to interpret pro se pleadings based upon their contents and not solely
       on their title or labels. In construing pro se postconviction motions a court should
       consider the relief requested, rather than a formulaic adherence to pleading requirements.'
       State v. Redding, 310 Kan. 15, 444 P.3d 989, 993 (2019). This court exercises unlimited
       review over whether a district court properly construed a pro se pleading. 444 P.3d at
       993. Likewise, whether jurisdiction exists is a question of law over which this court's
       scope of review is unlimited. State v. Smith, 304 Kan. 916, 919, 377 P.3d 414 (2016).
               'In a K.S.A. 60-1507 proceeding, an inmate is challenging the criminal
       proceedings which resulted in his or her confinement. . . . In the case of a K.S.A. 60-1501


                                                    5
      petition, however, an inmate is challenging the conditions of his or her current
      confinement.' White, 54 Kan. App. 2d at 91; see also Beard v. Maynard, 223 Kan. 631,
      634, 576 P.2d 611 (1978) (holding K.S.A. 60-1507 'has no application' where 'the
      petitioner is not attacking the validity of a sentence').
              "Wheeler's habeas corpus petition did not allege that the district courts illegally
      imposed the sentences or that there was some defect in the proceedings that led to the
      imposition of his sentences. Rather, he claimed that he is being illegally confined despite
      having completed his sentences of imprisonment. This court has recognized that
      '[c]hallenges to the mode or condition of confinement, including administrative actions of
      the correctional institution—like calculating the end date for indeterminate sentences that
      are aggregated—should be brought under K.S.A. 60-1501.' Holloway v. State, No.
      100,907, 2009 WL 2436689, at *2 (Kan. App. 2009) (unpublished opinion). See also
      [Safarik, 20 Kan. App. 2d at 67] ('[A] 1501 petition is a procedural means through which
      a prisoner may challenge the mode or conditions of his or her confinement, including
      administrative actions of the penal institution.').
              "Wheeler's petition raises an issue properly brought under K.S.A. 60-1501, not
      K.S.A. 60-1507. See Davis v. Simmons, 31 Kan. App. 2d 556, 558-59, 68 P.3d 160
      (2003) (addressing merits of K.S.A. 60-1501 petition that argued the KDOC had
      impermissibly extended incarceration); Muir v. Bruce, 28 Kan. App. 2d 482, 483-87, 18
      P.3d 247 (2001) (same). We find the district court erred as a matter of law by construing
      Wheeler's petition as seeking relief under K.S.A. 60-1507. Wheeler properly filed his
      habeas corpus petition in the county of his imprisonment, and the district court erred by
      dismissing it for lack of jurisdiction." Wheeler, 2019 WL 4891996, at *2-3.


      The reasoning we applied in 2019 WL 4891996 remains sound and applies here.
Wheeler's Wyandotte County motion alleged that he is being illegally confined despite
having completed his sentences of imprisonment—an issue properly brought under
K.S.A. 60-1501, not K.S.A. 60-1507—and K.S.A. 60-1501 proceedings must be filed in
the county of imprisonment. Because Wheeler was incarcerated in Leavenworth County
when he filed his motion, Wyandotte County lacked jurisdiction to consider the motion.




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      The mandate in 2019 WL 4891996 was issued on November 12, 2019, meaning
that case has been remanded to Leavenworth County District Court to address the merits
of Wheeler's claim. As we have discussed, the argument Wheeler made in his prior case
concerning the consecutive nature of his sentences is the same as the argument he makes
here. Thus, Wheeler is not without an avenue to pursue the merits of his claim.


      Affirmed.




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