Liberal’s Charles Callaway spent more than 15 years behind bars while challenging a sentence he felt was illegal. On Aug. 20, his challenge to be free was granted. Daily Leader photo illustration/Larry Phillips
By LARRY PHILLIPS
• Daily Leader
Selling drugs out of a house less than 1,000 feet of a school is a serious offense, and Liberal’s Charles Callaway discovered that in early 1995.
He knew he had done something stupid, however, he didn’t think he would spend five additional years in jail with what would later become designated in Aug. 20, 2010, court papers* as an “illegal sentence.”
“I was charged with selling drugs within 1,000 feet of a school in January of 1995 – and manufacturing with intent to sell,” Callaway said. “I was also charged with the same crime in both February and March. I was arrested and, eventually, convicted on the testimony of witnesses who informed on me. I was guilty, and I was ready to do my time.”
The Seward County Attorney’s office charged Callaway first with the crime in January, but then the two identical crimes of selling within 1,000 feet of a school in February and March were combined in another complaint. The charges of manufacturing with intent to sell somehow got deleted later from all the charges. All three crimes were identical and they were classified as Level 2 felony crimes, meaning he had no prior convictions on drug charges. This is an important classification when sentencing guidelines are used by a judge after a conviction, according to Callaway.
In October of 1995, Callaway was convicted of the two counts of selling drugs within 1,000 feet of a school, a Level 2 felony crime for the February and March charges and sentenced to 64 to 72 months in prison.
His next trial was a jury trial on Jan. 16 and 17, 1996, on his first charge, which occurred in January 1995 and prior to his crimes in February and March.
He was found guilty on Jan. 28, and his sentencing hearing was conducted Feb. 16, 1996.
Callaway’s 15-year battle with the “system” started when after his conviction, the Kansas Court Services Officer Robert Arheart increased the severity of sentencing for the January crime to Level 1 severity felony – even though he had no other drug convictions prior to the January 1995 crime. Arheart’s reasoning was the way Kansas sentencing statutes are written
“In the pre-sentence report, we do put what severity the case is,” Arheart said. “However, that’s determined by statute.”
Arheart is the local Kansas Court Services Officer of the Kansas Court Services Division of the Kansas Supreme Court. He is a state employee and is responsible for the pre-sentence reports that district judges use to determine sentences.
“Back when that happened, the guidelines were pretty new,” he continued. “There wasn’t any case law to show that what happened in the district court was in error.”
Arheart said the statutes then said if a person has two or more felony drug convictions, the severity level rises from Level 2 to Level 1. He said the two convictions on the February and March crimes constituted two “prior” felony drug convictions.
“The case that reversed that didn’t come out of the court system until 2008,” Arheart said.
Instead of 64 to 72 months for the January crime, Callaway was now looking at 169 to 187 months – on top of the 64 to 72 months for the Level 2 convictions.
After heading off to state prison, Callaway, soon initiated a series of appeals that continued for the next 14 years.
Arheart claimed Callaway’s early appeals never dealt with the chronology of the events.
“The particular issues that finally reversed the court’s original decision were never brought up in his early appeals – the timing of the conviction as opposed to the timing of the date of the offense.”
Callaway said that is not correct, and the court order of Aug. 20 does spell out his basis for all his appeals by his attorney.*
In 1997, Callaway had a local attorney appeal the Level 1 designation on the January crime.
“My attorney told (the district court) that they were mis-reading the statute, and they were manipulating the statute in order to enhance my severity level,” Callaway said.
Callaway also appealed the part of his sentence that restricted his “good time” reduction in sentence at 15 percent.* The court did grant his request to increase his good time reduction to 20 percent of time served, which was the statute when he was sentenced, but the court never explained why that had been in error.
However, Callaway’s appeal against his severity level increase was denied.
It would be the first of many.
He again appealed, and it was passed to the Kansas Court of Appeals, which upheld his conviction – mainly on procedural grounds and defferred to the district court. In November of 1997, he appealed again, but it was denied by the district court here in Liberal.
Callaway appealed – he was representing himself during most of these appeals and motions – again in December 1999. Again, it was denied.
More motions were filed, appeals made. Actions taken in April 2004 were dismissed. A motion filed in March of 2005 was received by the district court but was never forwarded to the appellate court. A December 2005 motion to discharge his illegal sentence was denied in February 2006 by the appeals court with an unpublished opinion. Several of his appeals were never “docketed,” according to his attorney’s motion that finally got him freed, meaning they were never forwarded to the appeals court.
Callaway even filed a petition for review with the Kansas Supreme Court, but it was denied.*
In 2004, a case in Ford County entitled State vs. Ruiz-Reyes got Callaway’s attention. It was nearly identical to his circumstances. Ruiz-Reyes had won the judgement of the court of appeals that severity level is determined by what convictions were on the books at the time of the crime.
With new hope, Callaway filed another motion with the Seward County District Court requesting the court to “correct his illegal sentence.”
District Judge Kim Schroeder denied his motion and wrote that several appeals had been denied and that Callaway’s sentence had been upheld in district court and by the appellate court two times.
He also wrote in his denial, “There is no basis for the decision in the Ruiz-Reyes to be retroactively applied.”
Callaway was astounded, mainly because the statute had been on the books for 15 years.
He appealed the denial, he filed another motion “to correct manifest injustice.” All were denied without being docketed to the appeals court.*
Because Ford County continued to fight the appellate decision in Ruiz-Reyes, the matter was finally brought before the Kansas Supreme Court in 2008.*
The Kansas Supreme Court finally defined “prior convictions.” The court “had no difficulty in reaching the ‘inescapable conclusion” what the “plain language” of the statute meant.*
“A person has to have prior convictions at the time of the crime.”
Callaway finally got an attorney involved, one who filed his last motion,* entitled “Order Granting Defendant’s Motion to Correct Illegal Sentence.”
On Aug. 20, 2010, Callaway walked out of the Seward County District Court a free man – after spending 15 years and eight months total behind bars.
Callaway still feels he was let down by a system that never looked out for his rights in any way. He also feels it stems from the way it all originated in Seward County.
“If I had been tried on the January charge first, none of this would have happened,” Callaway said. “At sentencing, I told them, ‘I don’t mind doin’ the time for the crime – I don’t have no problem with that.’ I said, ‘The problem I have is why y’all are giving me so much time.’”
He said those were the only words he ever said in his two trials.
“The only way they could raise my severity level was by holding that January case back and then take me to trial first on the February and March cases,” he continued. “Because if I had went to trial on that January case first, there would have been only one charge prior.
“They had it planned,” he added. “It doesn’t take a rocket scientist to figure that out. They knew what they were doing.”
Seward County Attorney Don Scott doesn’t recall it that way at all.
“I don’t remember how it happened or why those were combined. I really don’t remember now why those cases happened to be tried in that particular order. That was a long time ago,” Scott said.
“My memory is they ruled on Charles’ case – the court of appeals did – and then the Ruiz case came down and, basically, it cleared up an interpretation of the statute,” he continued. “The Ruiz case said that you had to have a conviction before you committed the other crime. Prior to that time, the way that had been interpreted is if you had convictions at the time of sentencing, they counted.
“So, we brought him back and released him,” Scott said.
One of the ironies of Callaway’s fight with the system is he is still on post release supervision, even after spending five to six more years in jail than what he was supposed to serve.
“I can’t cite the case, but there’s a case that says, ‘No, even if they’ve already done their time – or more than what they were supposed to have done – they still have to serve post release,” Scott explained.
Callaway is appealing to the governor’s clemency board to eliminate that 24 months of post release supervision with the state. And though Callaway has been able to find a job locally, he is more than $13,000 in debt with attorney fees, but it was a lawyer – and not his own filings, appeals and motions – that finally got him freed.
In Judge Schroeder’s order he signed Aug. 20,* Schroeder noted, “It is adjudged and ordered that Charles Callaway’s motion to correct his illegal sentence is granted and the sentence of 176 months imposed on Charles Callaway on Feb. 16, 1996, is hereby vacated as an illegal sentence.”
*SOURce: State vs. Charles Callaway, Case No. 95-CR-359, (Seward County District Court, August 11, 2010)