1

NOT DESIGNATED FOR PUBLICATION

Nos. 121,218

 121,259

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellee,

v.

ERIC W. HARBACEK,

Appellant.

MEMORANDUM OPINION

Appeal from Reno District Court; TRISH ROSE, judge. Opinion filed April 17, 2020. Affirmed.

Shannon S. Crane, of Hutchinson, for appellant. 

Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.

Before POWELL, P.J., HILL and STANDRIDGE, JJ.

PER CURIAM: Eric W. Harbacek filed motions to correct an illegal sentence in two 

cases, arguing that his sentences in these cases were improperly aggregated by the Kansas 

Department of Corrections (KDOC), which effectively doubled his sentence and 

negatively affected his conditional release date. The district court summarily denied the 

motions as successive, and Harbacek now appeals. We affirm but for reasons different 

than those cited by the district court. 
2

FACTUAL AND PROCEDURAL BACKGROUND

In January 1991, a jury found Harbacek guilty of aggravated burglary and 

misdemeanor battery in case No. 90 CR 251. The district court sentenced Harbacek to an 

indefinite term of 5 to 20 years in prison for the aggravated burglary conviction and a 

concurrent 6-month jail sentence for the misdemeanor battery conviction.

In September 1991, Harbacek pled guilty to single counts of aggravated burglary, 

aggravated assault of a law enforcement officer, and aggravated assault in case No. 91 

CR 268. The district court sentenced Harbacek to indeterminate terms of 5 to 20 years in 

prison for the aggravated burglary and aggravated assault of a law enforcement officer 

convictions and 3 to 10 years in prison for the aggravated assault conviction. The court 

imposed the sentences consecutively, for a controlling indeterminate sentence of 13 to 50 

years in prison. The district court later modified the sentences to run concurrently, rather 

than consecutively, for a controlling indeterminate prison sentence of 5 to 20 years. The 

court ordered the sentence to be served consecutive to Harbacek's sentence in case No. 90 

CR 251, for a controlling prison sentence of 10 to 40 years. 

In the years since, Harbacek has continued to file numerous pro se motions with 

the district court in both cases, including a motion for modification of his sentence, 

motions for conversion of his sentence, a motion for habeas corpus relief under K.S.A. 

60-1507, and motions to correct an illegal sentence. 

Relevant to this appeal, in November 2018, Harbacek filed pro se motions to 

correct an illegal sentence in each case, arguing that the KDOC had improperly 

aggregated his sentences, which effectively doubled his sentence and negatively affected 

his conditional release date. The district court summarily denied the motions on grounds 

that they were successive. The district court denied Harbacek's motions to reconsider. 

Harbacek appeals. 
3

LEGAL ANALYSIS

Harbacek argues that the district court erred in summarily denying his motions to 

correct an illegal sentence. He claims that the motions raised substantial issues of law or 

fact that entitled him to a hearing on the merits.

A district court has the duty to examine a motion to correct an illegal sentence to 

determine if it raises substantial issues of law or fact. If the district court determines 

based on the motion, files, and records of the case that the defendant is not entitled to 

relief, the motion may be summarily denied without a hearing or appointment of counsel. 

K.S.A. 2019 Supp. 22-3504(a); State v. Moncla, 301 Kan. 549, 551, 343 P.3d 1161 

(2015). On appeal, we exercise unlimited review over the district court's decision of 

whether to hold an evidentiary hearing on a motion to correct an illegal sentence and 

whether a sentence is, in fact, illegal. See State v. Lee, 304 Kan. 416, 417, 372 P.3d 415 

(2016); State v. Howard, 287 Kan. 686, 690-91, 198 P.3d 146 (2008).

An illegal sentence under K.S.A. 2019 Supp. 22-3504 may be corrected at any 

time, but the circumstances under which a sentence is deemed illegal are "narrowly and 

specifically defined." State v. Swafford, 306 Kan. 537, 540-41, 394 P.3d 1188 (2017); see 

K.S.A. 2019 Supp. 22-3504(a). An illegal sentence is one that is "[i]mposed by a court 

without jurisdiction; that does not conform to the applicable statutory provision, either in 

character or punishment; or that is ambiguous with respect to the time and manner in 

which it is to be served at the time it is pronounced." K.S.A. 2019 Supp. 22-3504(c)(1). 

Relief under K.S.A. 2019 Supp. 22-3504 should be granted only in these very limited 

circumstances. State v. Davis, 288 Kan. 153, 155, 200 P.3d 443 (2009). Harbacek alleged 

in his motions that his sentence is illegal because the KDOC "aggregated the terms and 

made the sentence 10 to 40 years, doubling the term authorized and altering the character, 

which now does not conform to Statutory Provisions." But the KDOC's interpretation of 
4

Harbacek's sentence does not amount to an illegal sentence under the provisions of 

K.S.A. 2019 Supp. 22-3504(c)(1). 

We recognize that Harbacek's motions were filed pro se, and pro se motions are 

liberally construed. See Bruner v. State, 277 Kan. 603, 605, 88 P.3d 214 (2004). But no 

matter how we construe Harbacek's motions, he is not entitled to relief. 

The State suggests that we treat Harbacek's motions as if they were filed under 

K.S.A. 2019 Supp. 60-1507. An appellate court may construe an improper motion to 

correct an illegal sentence as a K.S.A. 60-1507 motion. See, e.g., State v. Swisher, 281 

Kan. 447, 449, 132 P.3d 1274 (2006); State v. Barnes, 37 Kan. App. 2d 136, 138, 149 

P.3d 543 (2007). But a K.S.A. 60-1507 motion is not the proper vehicle for Harbacek's 

claims. K.S.A. 2019 Supp. 60-1507 allows a prisoner to challenge the propriety of his or 

her conviction or sentence. "Challenges 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 Safarik v. Bruce, 20 Kan. App. 2d 61, 67, 883 P.2d 1211 

(1994) ("[A K.S.A. 60-]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."). But even if we were to review Harbacek's motions 

under K.S.A. 2019 Supp. 60-1507, his claims would be untimely and successive. See 

K.S.A. 2019 Supp. 60-1507(f)(1) (setting forth one-year time limitation for bringing an 

action under K.S.A. 60-1507); K.S.A. 2019 Supp. 60-1507(c) ("The sentencing court 

shall not be required to entertain a second or successive motion for relief on behalf of the 

same prisoner."). 

As noted, K.S.A. 2019 Supp. 60-1501 is the appropriate vehicle for a claim that 

the KDOC has improperly aggregated a prisoner's sentence. Woodberry v. State, 33 Kan. 
5

App. 2d 171, 173, 101 P.3d 727 (2004); McKinney v. State, 27 Kan. App. 2d 803, 803, 9 

P.3d 600 (2000). But Harbacek's claims cannot be advanced under K.S.A. 2019 Supp. 60-

1501 because they are procedurally barred. A K.S.A. 60-1501 petition must be filed in 

the county where the prisoner is incarcerated. K.S.A. 2019 Supp. 60-1501(a). Harbacek's 

motions were filed in Reno County, where he was convicted and sentenced. And the 

motions suggest at the time Harbacek filed his motions, he was incarcerated in El 

Dorado, which is in Butler County. The filing of a K.S.A. 60-1501 petition in the wrong 

county is a basis for dismissal of the motion. See Woodberry, 33 Kan. App. 2d at 173-74 

(declining to reach merits of claims regarding aggregation and conversion of sentence 

because motion was not filed in county of incarceration and previous K.S.A. 60-1501 

petition on same issue had been denied); McKinney, 27 Kan. App. 2d at 803-04 

(dismissing claim of improper sentence aggregation because argument challenging 

KDOC action should be filed in county of incarceration, not with sentencing court). 

In addition to filing the pleading in the wrong county, it appears Harbacek also has 

failed to exhaust administrative remedies. Before filing a civil action naming the state of 

Kansas, the secretary of corrections, the warden, or other KDOC employees as the 

defendant, an inmate is required to exhaust administrative remedies through procedures 

established by the secretary of corrections. K.S.A. 75-52,138; Sperry v. McKune, 305 

Kan. 469, Syl. ¶ 5, 384 P.3d 1003 (2016). Nothing in the record suggests that Harbacek 

has exhausted his administrative remedies. Absent proof that those remedies have been 

exhausted, we lack subject matter jurisdiction to consider Harbacek's claims. See Dean v. 

State, 250 Kan. 417, 427-28, 826 P.2d 1372 (1992); Lynn v. Simmons, 32 Kan. App. 2d 

974, 978-79, 95 P.3d 99 (2003). And without evidence that administrative remedies have 

been pursued, we cannot evaluate the timeliness of Harbacek's motions. See K.S.A. 2019 

Supp. 60-1501(b).

Finally, we note that even if we overlooked the procedural hurdles that Harbacek 

faces, he is not entitled to relief on the merits of his argument that his sentences for each 
6

crime are distinct and should not be aggregated to determine his conditional release date. 

Our Supreme Court has held that although an inmate's sentences retain their individual 

identities for conversion purposes, an inmate is not entitled to have his or her sentences 

unaggregated to determine parole eligibility, conditional release dates, and time served on 

multiple sentences. Anderson v. Bruce, 274 Kan. 37, 50, 50 P.3d 1 (2002). We are duty 

bound to follow Kansas Supreme Court precedent, absent some indication the court is 

departing from its previous position. State v. Rodriguez, 305 Kan. 1139, 1144, 390 P.3d 

903 (2017). The Kansas Supreme Court has shown no indication that it is departing from 

its position in Anderson, and we are therefore bound by its precedent. 

For the reasons stated above, the district court did not err in summarily denying 

Harbacek's motions to correct an illegal sentence. See State v. Overman, 301 Kan. 704, 

712, 348 P.3d 516 (2015) (if district court reaches correct result, its decision will be 

upheld even though it relied on wrong ground or assigned erroneous reasons for its 

decision).

Affirmed.