Love v. State, No. 92,361.

• Decision Date: 09 December 2005
• Docket Number: No. 92,361.
• Citation: 124 P.3d 32
• Parties: Levi LOVE, Jr., Appellant, v. STATE of Kansas, Appellee.
• Court: Kansas Supreme Court

124 P.3d 32

Levi LOVE, Jr., Appellant, v. STATE of Kansas, Appellee.

No. 92,361.

Supreme Court of Kansas.

December 9, 2005.

COPYRIGHT MATERIAL OMITTED

Kathleen Downey Ambrosio, of Law Office of John J. Ambrosio, Chtd., of Topeka, argued the cause.

Levi Love, Jr., was on the briefs pro se.

Robert D. Hecht, district attorney, argued the cause, and Amy M. Memmer, assistant district attorney, and Phill Kline, attorney general, were with him on the briefs for appellee.

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

Levi Love, Jr., appeals from the district court's denial of his pro se motion to correct an illegal sentence without appointing counsel or conducting a hearing. He contends the district court illegally imposed a harsher sentence upon him after sentencing by issuing a nunc pro tunc order stating that his sentence for crimes committed in the current case were to run consecutive to a previous felony conviction for which the defendant was serving parole on the date of the offenses in this case. We affirm.

On November 5, 1997, defendant, Levi Love, Jr. was convicted of first-degree murder and attempted murder. His convictions were affirmed by this court on appeal in State v. Love, 267 Kan. 600, 986 P.2d 358 (1999). At the December 19, 1997, sentencing hearing, the defendant was sentenced to life imprisonment for the murder conviction to run concurrent to an 816-month prison term for the attempted murder conviction. On December 24, 1997, the State filed a motion for an order nunc pro tunc asking the court to run the sentence in this case consecutive to an earlier felony sentence imposed in 90CR1488 for which the defendant was on parole on the date of the offenses in this case. See K.S.A.1996 Supp. 21-4603d.

After notice was given, a hearing was held on the State's motion with appointed defense counsel present. The State argued:

"I'm not sure if Nunc Pro Tunc is the right terminology to apply here but at the time of sentencing when the Court imposed sentence here the presentence report recited a prior [felony] conviction which had an unsatisfied sentence and it recites that a mandatory consecutive sentence is in order. Nobody brought that to the Court's attention on the record at the time of sentencing and so the record was silent as to whether the Court was imposing the sentence in this case consecutive to what the State suggested is the mandatory consecutive sentence for the old [offense]. So I brought it to the Court's attention and suggest the presentence report that is prepared accurately recite that the statute control 21-4608(b) and 21-4603(d)."

Defense counsel acknowledged that it was mandatory that the new offenses be run consecutive to the offense for which the defendant was on parole unless the court found that running the sentences consecutively would result in manifest injustice under K.S.A.1996 Supp. 21-4720(a). After stating that the difference was about a year, defense counsel told the court: "With the time he's got, I don't honestly — I don't know how I can even bring a manifest injustice with the time he already has." After hearing oral argument, the court ruled from the bench:

"I set this for a hearing to make sure it was properly a matter for Nunc Pro Tunc. The original presentence report indicated that he was on — the current offense was committed while he was on probation and parole and the sentence should run consecutive to the sentence in 90-CR-1488, which is shown in the criminal history for which he was on parole, postrelease supervision, whatever, when he went on parole, I believe. The Journal Entry entered here was — is our standard sentencing minutes. The sentences were imposed, his life sentence, and these other sentences would run concurrent and it says the foregoing sentence to run concurrent to sentence imposed to case number blank. Well, that number isn't in the Journal Entry, which should be 90-CR-1488. That's an omission in the forms. Like anything, it's a form, you got to have an idiot to fill it out and this one didn't so under K.S.A. 21-4608(c) he was on parole and that was an established fact and it's required to be consecutive unless the Court, pursuant to K.S.A. 21-4720(a), makes a finding of manifest injustice. I did not make that finding, could not make that finding, so the silence of the record under those circumstances should have, without the absence of the finding of manifest injustice, should have provided for a consecutive sentence. But I agree, the Journal Entry should be corrected and it's proper for a Nunc Pro Tunc and the district attorney be directed to prepare a correct Journal Entry."

On April 16, 2003, the defendant filed a pro se motion to correct an illegal sentence and a motion for the personal presence of defendant at the sentencing hearing to correct the illegal sentence. The defendant argued that the district court intended to run the sentences in this case for murder and attempted murder concurrent with defendant's previous felony in case number 90CR1488 rather than consecutively at the time the court sentenced the defendant on the murder and attempted murder convictions. Thus, according to defendant the matter was not "inadvertently omitted" from the journal entry so as to be corrected by a nunc pro tunc order. The defendant argued that the nunc pro tunc order illegally imposed a harsher sentence than the original sentence imposed December 17, 1997.

The district court denied the defendant's motion in an August 15, 2003, memorandum opinion and order without holding a hearing or appointing counsel, reasoning that the matter raised was a question of law and the sentence was not illegal. The court explained in relevant part:

"In this case, the sentence in 90CR1448 was imposed by another court long previously and his status under it — prison or parole — was under the jurisdiction of the parole board, not this Court. Had this Court specifically ordered his new sentences imposed in the present case to run concurrent with 90CR1448 without a K.S.A. 21-4720(a) finding of `manifest injustice,' then truly an illegal sentence would have occurred."

The defendant timely appealed and appellate counsel was appointed.

The defendant contends on appeal: (1) that the trial court abused its discretion by denying his pro se motion to correct an illegal sentence without conducting a hearing or appointing counsel; and (2) the trial court failed to create an adequate and proper record for review.

(1) Denial of Motion

K.S.A. 22-3504(1) provides:

"(1) The court may correct an illegal sentence at any time. The defendant shall receive full credit for time spent in custody under the sentence prior to correction. The defendant shall have a right to a hearing, after reasonable notice to be fixed by the court, to be personally present and to have the assistance of counsel in any proceeding for the correction of an illegal sentence."

We recently discussed our standard of review concerning the right to a hearing and appointment of counsel under this statute in State v. Mebane, 278 Kan. 131, 138, 91 P.3d 1175 (2004):

"This court has interpreted K.S.A. 22-3504 not to require a full hearing upon the filing of every motion to correct an illegal sentence. Rather, when a defendant files such a motion, the district court has a duty to make a preliminary examination of the motion to determine if substantial issues of law or fact are raised. If there are none, the court may summarily dismiss the motion. Only if the court finds that the motion raises substantial issues of law or fact must the court then hold a hearing in the presence of the defendant with defense counsel."

Additionally, we note that motions attacking a sentence filed under K.S.A. 22-3504 are treated no differently than those filed under K.S.A. 60-1507. State v. Duke, 263 Kan. 193, 196, 946 P.2d 1375 (1997).

The provisions of K.S.A. 60-1507 require the sentencing court to set the prisoner's motion for hearing with notice and appointment of counsel "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." K.S.A. 60-1507(b). Procedurally, this court has approached 60-1507 motions as outlined in Lujan v. State, 270 Kan. 163, Syl. ¶ 3, 14 P.3d 424 (2000):

"There are three avenues of approach for the district court faced with a K.S.A. 60-1507 motion. First, it may determine that the motion, files, and records of the case conclusively show that the petitioner is entitled to no relief, in which case it will summarily deny the petitioner's motion. Second, the court may determine from the motion, files, and record that a substantial issue or issues are presented, requiring a full evidentiary hearing with the presence of the petitioner. Third, the court may determine that a potentially substantial issue or issues of fact are raised in the motion, supported by the files and record, and hold a preliminary hearing after the appointment of counsel to determine whether in fact the issues in the motion are substantial. In the event the court determines that the issue or issues are not substantial, the court may move to a final decision without the presence of the petitioner. If the issue or issues are substantial and involve events in which the petitioner participated, the court must proceed with a hearing involving the presence of the petitioner."

The question we must resolve is whether the defendant's motion, files, and records of his case conclusively show that the petitioner is entitled to no relief. The determination of whether to hold an evidentiary hearing on a motion to correct an illegal sentence is subject to an abuse of discretion standard. State v. Kirby, 272 Kan. 1170, 1194, 39 P.3d 1 (2002). Whether a sentence is illegal is a question of law providing an appellate court with unlimited review. State v. Jones, 272 Kan. 674, 677, 35 P.3d 887 (2001).

The offenses for which the defendant was sentenced in this case took place in ...