State v. Howard

• Decision Date: 19 December 2008
• Docket Number: No. 98,976.,98,976.
• Citation: 198 P.3d 146
• Parties: STATE of Kansas, Appellee, v. Carl E. HOWARD, Appellant.
• Court: Kansas Supreme Court

198 P.3d 146

STATE of Kansas, Appellee, v. Carl E. HOWARD, Appellant.

No. 98,976.

Supreme Court of Kansas.

December 19, 2008.

Matthew M. Dwyer, of Maughan & Maughan LC, of Wichita, argued the cause, and Carl F.A. Maughan, was with him on the brief for appellant.

Matt J. Maloney, assistant district attorney, argued the cause, and Nola Tedesco Foulston, district attorney, and Stephen N. Six, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by NUSS, J.:

Twenty years after Carl E. Howard was sentenced for convictions of aggravated kidnapping, two counts of rape, and six counts of aggravated criminal sodomy, he filed a motion to correct an illegal sentence. He now appeals the district court's denial of his motion. We have jurisdiction to review the denial because a life sentence had been imposed. See K.S.A. 22-3601(b)(1); State v. Thomas, 239 Kan. 457, Syl. ¶ 2, 720 P.2d 1059 (1986).

The sole issue on appeal is whether the district court erred in summarily denying Howard's motion. We hold the court did not err, and affirm.

FACTS

In 1987, a jury convicted Carl Howard of one count of aggravated kidnapping, two counts of rape, and six counts of aggravated criminal sodomy. The convictions arose out of a single episode involving the sister of his former girlfriend and were affirmed by this court in State v. Howard, 243 Kan. 699, 763 P.2d 607 (1988).

According to the 1987 journal entry of judgment, the court imposed a base sentence of life on Count I, the aggravated kidnapping charge; sentences of 20 years to life on Counts IV and VIII, the rape charges; and sentences of 15 years to life on Counts II, III, V, VI, VII, and IX, the aggravated criminal sodomy charges. The rape sentences were concurrent with each other, but consecutive to the aggravated kidnapping sentence. Similarly, the aggravated criminal sodomy sentences were concurrent with each other, but consecutive to the rape sentences. In short, according to the journal entry, Howard was to serve a life sentence, consecutive to two concurrent sentences of 20 years to life, which were in turn consecutive to six concurrent sentences of 15 years to life.

In 2007, Howard filed a pro se motion to correct an illegal sentence pursuant to K.S.A. 22-3504. He asserted that he was wrongly serving the journalized sentence because he had actually only been sentenced to life, plus 15 years to life. Howard's motion is based upon confusing statements of the trial judge made at sentencing hearings held on consecutive days.

According to the transcript of the sentencing hearing on July 29, 1987, the trial judge first imposed a sentence of life, plus 10 years to life. The State interrupted, pointing out that this sentence was illegal because the minimum sentence for aggravated criminal sodomy was 15 years, not 10. The court corrected the sentence to life, plus 15 years to life.

Later in the hearing, defense counsel asked for sentence clarification. After a lengthy exchange between the court and counsel for both sides, the following colloquy occurred:

"[DEFENSE COUNSEL]: Okay. So he has life plus fifteen [to life] plus twenty [to life]?

"THE COURT: Right.

"[DEFENSE COUNSEL]: Thank you.

"THE COURT: Anything further in this case?

"[DEFENSE COUNSEL]: No. Thank you, Your Honor." (Emphasis added.)

The proceedings then adjourned.

According to the transcript, the next day, July 30, the judge brought everyone back "on the court's own motion" to "clear up" its previous ruling. He stated, "So at this time the Court is going to restate the sentence which the Court intended to give, which this Court believed that it made in this case." (Emphasis added.)

The judge then described the sentence he believed he had imposed, which was life, plus 15 years to life. The prosecutor quickly pointed out that the judge had just pronounced a different sentence than the one he had previously imposed: "Yesterday in this courtroom you said that the sentence was life plus thirty-five to life. And now you've given us life plus fifteen to life."

The judge responded, "Well, it's not my intention to give [life] plus fifteen to life. It's my intention to give the same sentence today as I gave yesterday." (Emphasis added.) He reiterated, "I want it [the sentence] to be exactly as I gave it yesterday."

After another lengthy discussion between the court and all counsel about the actual sentence imposed, the following colloquy occurred:

"[PROSECUTOR]: Your Honor, probably five, ten minutes into the sentencing yesterday, at some point you said the controlling term was life plus twenty to life. You clarified that later on, and that was no longer true. The version's changed. At the end of the hearing yesterday, the final word was life plus twenty plus fifteen. That was your final sentencing at the end of the hearing yesterday. And that's what you just repeated here today. Yesterday there were any number of different versions, but that's what the bottom line was at the end of the hearing yesterday. And I don't believe there's a change been made.

"THE COURT: Well, it's still life plus twenty to life plus fifteen [to life.]. It's still the sentence of this Court." (Emphasis added.)

The colloquy immediately following concerned preparation of the journal entry. It confirmed that the prosecutor had correctly recited the judge's actual sentence:

"[DEFENSE COUNSEL]: Your Honor, would it be improper for me to request that this Court do the journal entry on this so that—and of course, I don't mean—

"THE COURT: Well, I think that it's proper for the State to do the journal entry. I will be glad to listen to any arguments over that. It seems to me like [the prosecutor] understands exactly what the sentence is at this time." (Emphasis added.)

As mentioned, the journal entry signed by the judge and counsel and filed 2 weeks later reflected the judge's clarification of the sentence and its reiteration. Among other things, it provided:

"Thereafter, on the 30th day of July, 1987, this case comes on for further hearing on the Court's own motion for clarification of sentence, all parties appearing as aforesaid. Whereupon, the court reiterates the sentences imposed herein on the 29th day of July, 1987." (Emphasis added.)

Twenty years later when Howard filed his motion to correct an illegal sentence, a different judge summarily denied it. That judge held that the sentence was not illegal; the journal entry accurately reflected the original judge's actual sentence.

ANALYSIS

Issue: The district court did not err in summarily denying Howard's motion to correct an illegal sentence.

Howard claims the district court erred by improperly denying him a full evidentiary hearing and appointment of counsel, as well as in its ruling on the merits. Specifically, he claims his sentence became ambiguous because the sentencing judge articulated multiple sentences over the course of 2 days. Howard argues that the journal entry does not control and must be corrected to reflect the sentence purportedly pronounced from the bench: life, plus 15 years to life.

The State responds that the sentence was unambiguous because the court's final oral pronouncement was life, plus 20 years to life, plus 15 years to life. That pronouncement was correctly memorialized in the journal entry. The State argues that because the sentence was unambiguous, it clearly was not illegal, and that the district court was therefore correct in summarily denying Howard's motion.

Standard of Review

We first acknowledge that K.S.A. 22-3504 does not automatically require a full hearing upon the filing of a motion to correct an illegal sentence. State v. Hoge, 283 Kan. 219, 224, 150 P.3d 905 (2007). The district court first makes a preliminary examination of the motion. Based upon that examination, the court can deny the motion "without a hearing or appointment of counsel if the district court determines the motion, files, and records of the case conclusively show the defendant is not entitled to relief." Hoge, 283 Kan. at 224, 150 P.3d 905. Here, the district court summarily denied Howard's motion.

Howard contends that the district court's decision is reviewed de novo because statutory interpretation is required. The State responds that an abuse of discretion standard should instead be applied. We agree with Howard but for a different reason.

Howard correctly notes that this court has traditionally treated motions under K.S.A. 60-1507 in the same manner as it has treated motions to correct an illegal sentence. See State v. Davis, 271 Kan. 892, 894, 26 P.3d 681 (2001) ("In both cases, the district court is to make a preliminary examination to determine whether substantial questions of law or fact are raised, and, if the findings are in the negative, the court may summarily deny the motion."); see also Hoge, 283 Kan. at 224, 150 P.3d 905.

Accordingly, the K.S.A. 60-1507 case of Bellamy v. State, 285 Kan. 346, 172 P.3d 10 (2007), provides guidance on our standard of review. There, the defendant argued that the Court of Appeals applied the wrong standard-abuse of discretion-in reviewing the district court's denial of his habeas corpus motion. 285 Kan. at 350, 172 P.3d 10. In clarifying that the de novo standard of review for 1507 motions is limited to those cases involving summary denial, the Bellamy court reasoned that in those circumstances deference need not be given to the district court's factual findings because appellate courts have the same access to the motion, records, and files as the district court. 285 Kan. at 350, 172 P.3d 10; see Laymon v. State, 280 Kan. 430, 437, 122 P.3d 326 (2005).

Because this court has treated K.S.A. 60-1507 motions in the same manner as it has treated motions to correct an illegal sentence, we conclude that whether a district court erred in summarily denying the latter is also reviewed de novo.

Discussion

Like the district court, we must determine whether Howard's motion,...