State v. Gilbert

• Decision Date: 06 June 2014
• Docket Number: No. 109,303.,109,303.
• Citation: 326 P.3d 1060,299 Kan. 797
• Parties: STATE of Kansas, Appellee, v. Terry L. GILBERT, Appellant.
• Court: Kansas Supreme Court

299 Kan. 797

326 P.3d 1060

STATE of Kansas, Appellee,

v.Terry L. GILBERT, Appellant.

No. 109,303.

Supreme Court of Kansas.

June 6, 2014.

Syllabus by the Court

1. An appellate court reviews a district court's summary denial of a motion to correct an illegal sentence under K.S.A. 22–3504 de novo because the reviewing court has the same access to the motions, records, and files. The reviewing court, like the district court, must determine whether the documents conclusively show the defendant is not entitled to relief.

2. K.S.A. 22–3504 only applies if a sentence is illegal. Whether a sentence is illegal is a question of law over which an appellate court has unlimited review. An illegal sentence under the statute is one: (a) imposed by a court without jurisdiction; (b) which does not conform to the statutory provisions, either in the character or the term of the punishment authorized; or (c) which is ambiguous with respect to the time and manner in which it is to be served.

3. K.S.A. 22–3504 is merely a vehicle to correct a sentence. It is not a mechanism to reverse a conviction.

4. Pro se pleadings are liberally construed, giving effect to the pleading's content rather than the labels and forms used to articulate the arguments. A defendant's failure to cite the correct statutory grounds for a claim is immaterial.

5. Whether the district court correctly construed a pro se pleading is a question of law subject to unlimited review.

Gerald E. Wells, of Lawrence, was on the brief for appellant.

Ellen Hurst Mitchell, county attorney, and Derek Schmidt, attorney general, were on the brief for appellee.

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

Terry L. Gilbert appeals the summary denial of a pro se motion entitled “Motion to Correct Illegal Sentence,” which was filed more than 10 years after he was sentenced for felony murder. Gilbert claims his sentence is illegal because the standard used at his trial for issuing lesser included offense instructions in felony-murder cases was overruled over a decade later. See State v. Berry, 292 Kan. 493, 513–14, 254 P.3d 1276 (2011) (overruling judicially created felony-murder instruction rule that had permitted lesser included offense instructions only when evidence of the underlying felony was weak, inconclusive, or conflicting), superseded by statute as stated in State v. Phillips, 295 Kan. 929, 934, 287 P.3d 245 (2012).

The district court treated the pro se motion as a motion to correct an illegal sentence, and Gilbert's appellate counsel argues the pro se motion should have been liberally construed as invoking K.S.A. 60–1507(a) (prisoner in custody may claim sentence imposed in violation of state or federal Constitution). Had this happened, Gilbert reasons, the district court should have determined whether Gilbert's untimely claim could be brought under the manifest injustice exception in K.S.A. 60–1507(f)(2) (court may extend 1–year time limitation in K.S.A. 60–1507[f][1] to prevent manifest injustice).

We affirm the district court's construction of Gilbert's pleading as a motion to correct an illegal sentence. We acknowledge pro se pleadings are to be liberally construed to give effect to their content rather than adhering to any labels and forms used to articulate the pro se litigant's arguments. State v. Kelly, 291 Kan. 563, 565–66, 244 P.3d 639 (2010) (based on allegations in the pleading, district court erred in construing pro se motion only under K.S.A. 60–1507, rather than as a motion to withdraw plea). But the content of Gilbert's motion specifically cites and applies rules governing motions to correct illegal sentences. It does not allege the manifest injustice required to bring an untimely motion under K.S.A. 60–1507. Liberal rules of construction cannot transform the reality of a pleading's content or the arguments being advanced, even when a litigant is pro se.

We also affirm the summary denial of the motion because Gilbert's jury instruction claim cannot be raised in a motion to correct an illegal sentence. Gilbert challenges his conviction, not the sentence imposed. See State v. Trotter, 296 Kan. 898, 902, 295 P.3d 1039 (2013).

Factual and Procedural Background

In 1999, a jury convicted Gilbert of first-degree felony murder, aggravated robbery, aggravated burglary, and criminal damage to property for crimes occurring on or around September 14, 1998. He was sentenced to life imprisonment for the murder conviction. In his direct appeal, Gilbert argued in part that he was prejudiced by the district court's failure to issue lesser included offense instructions for felony murder. The court held Gilbert was not entitled to lesser included offense instructions under the rule prevailing at that time that such instructions were only required if evidence of the underlying felony was weak, inconclusive, or conflicting. Gilbert's convictions were affirmed. State v. Gilbert, 272 Kan. 209, 213–15, 32 P.3d 713 (2001). In 2011, this court overruled that prevailing rule.

In Berry, this court held that felony murder should no longer be treated differently than other crimes for the purposes of lesser included offense instructions, noting K.S.A. 22–3414's requirement that lesser included offense instructions should be issued if there is some evidence that would reasonably justify the conviction of the lesser included crime also applied to felony-murder instructions. Berry, 292 Kan. at 513–14, 254 P.3d 1276. Pertinent to this appeal, the Berry court also held its ruling should be applied to all pending cases not yet final. 292 Kan. 493, Syl. ¶ 7, 254 P.3d 1276.

But Berry 's impact was short-lived. The legislature modified the statute governing lesser included offenses to explicitly state there are no lesser included offenses to felony murder. K.S.A. 2013 Supp. 21–5109(b)(1) (effective July 1, 2012). Gilbert filed his pro se motion entitled “Motion to Correct Illegal Sentence” on August 24, 2012.

Citing Berry, Gilbert argued the district court committed structural error in 1999 and deprived him of his defense theory by failing to instruct the jury on lesser included offenses of felony murder. And recognizing Berry applied to pending cases not yet final, Gilbert argued there is no finality to an illegal sentence because an illegal sentence can be corrected at any time under K.S.A. 22–3504(1) (“The court may correct an illegal sentence at any time.”). Gilbert argued his sentence was illegal because his felony-murder sentence was “a product of [the district] court's failure to conform to the statutory provision K.S.A. 22–3414(3) and K.S.A. 22–2103 as a consequence.” K.S.A. 22–2103 provides: “This code is intended to provide for the just determination of every criminal proceeding. Its provisions shall be construed to secure simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay.”

The State responded that Gilbert's sentence was not illegal. It noted the trial court had jurisdiction and that the sentence both conformed to the applicable statutory provisions and was not ambiguous. The State also addressed the merits of Gilbert's claim that Berry should apply to his collateral attack on the judgment. It recited the general principle that new rules of criminal procedure apply only to cases not yet final. It also argued Berry was inapplicable because Gilbert's convictions were final, i.e., his direct appeal to this court was concluded. The State further argued that any limited exceptions to that rule did not apply, citing Hollingsworth v. State, No. 106,357, 2012 WL 718971, at *7 (Kan.App.2012) (unpublished opinion) (declining to apply Berry retroactively in collateral attack on conviction because conviction was final in 2009), rev. denied 297 Kan. 1245 (2013).

The district court summarily denied Gilbert's motion, finding it raised no genuine factual or legal issues. It addressed the substance of Gilbert's Berry argument “[n]otwithstanding the fact that Mr. Gilbert raises alleged trial errors in a Motion to Correct Illegal Sentence.” It held Gilbert's case was not pending at the time Berry was decided, rendering Berry inapplicable.

Gilbert appealed. This court's jurisdiction arises under K.S.A. 2013 Supp. 22–3601(b)(3); see State v. Pennington, 288 Kan. 599, 599, 205 P.3d 741 (2009) (jurisdiction over appeal of motion to correct illegal sentence lies with court that had jurisdiction to hear original appeal).

Summary Denial of Motion to Correct Illegal Sentence

The first issue is whether the district court erred by summarily denying Gilbert's motion.

Standard of Review

An appellate court reviews a district court's summary denial of a motion to correct an illegal sentence under K.S.A. 22–3504 de novo because the reviewing court has the same access to the motions, records, and files. Trotter, 296 Kan. at 901, 295 P.3d 1039. This court, like the district court, must determine whether the documents conclusively show the defendant is not entitled to relief. 296 Kan. at 901–02, 295 P.3d 1039.

Whether a sentence is illegal is a question of law over which this court has unlimited review. This court has defined an “illegal sentence” under K.S.A. 22–3504 as: (1) a sentence imposed by a court without jurisdiction; (2) a sentence that does not conform to the applicable statutory provision, either in character or the term of authorized punishment; or (3) a sentence that is ambiguous with respect to the time and manner in which it is to be served. 296 Kan. at 902, 295 P.3d 1039.

Discussion

Gilbert argues his instructional error claim fits within the second category—his sentence does not conform to applicable statutory provisions—because failure to issue lesser included offense instructions on the felony-murder charge violated K.S.A. 22–3414(3), which requires lesser included offense instructions “where there is some evidence which would reasonably justify a conviction of some lesser included crime.”

As the district court stated,...