State v. Gray
| Decision Date | 18 March 2016 |
| Docket Number | No. 109,912.,109,912. |
| Citation | 368 P.3d 1113 |
| Parties | STATE of Kansas, Appellee, v. Kevin E. GRAY, Appellant. |
| Court | Kansas Supreme Court |
Carl F.A. Maughan, of Maughan Law Group LC, of Wichita, was on the brief for appellant.
Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, were on the brief for appellees.
Kevin Gray appeals from the district court's summary denial of his motion to correct illegal sentence brought under K.S.A. 22–3504
. Our jurisdiction is proper under K.S.A. 2015 Supp. 22–3601. We affirm the summary denial.
In 1986, Kevin Gray pled guilty to four counts of rape and one count of attempted rape in exchange for the State dropping three counts of aggravated burglary, two counts of aggravated sodomy, two counts of aggravated robbery, and one count of aggravated battery. Twenty-six years after sentencing, Gray filed a motion to correct journal entry pursuant to K.S.A. 22–3504(1)
and (2). Following responses from both parties, the district court treated the motion as one to correct illegal sentence and summarily denied it, i.e., without appointing counsel or conducting a substantive hearing.
After receiving Gray's motion for reconsideration and the State's response, the district court also summarily denied that motion. Gray appeals.
More facts will be added as necessary to the analysis.
Gray first claims he was entitled to more than a mere summary disposition of his motion. He concedes our ample precedent against his position, e.g., State v. Duke, 263 Kan. 193, 946 P.2d 1375 (1997)
. But he asks us to reverse this caselaw, arguing that the plain language of K.S.A. 22–3504 and public policy dictate that all movants should be entitled to counsel and a hearing on such motions.
The State responds we should follow our precedent and only require district courts to conduct a preliminary examination before deciding whether to appoint counsel and hold a substantive hearing. It also argues Gray has failed to advance any arguments not previously rejected by this court.
Standard of review
Whether the existing interpretation of a statute should be changed is reviewed de novo. See Makthepharak v. State, 298 Kan. 573, 575, 314 P.3d 876 (2013)
(citing State v. Spencer, 291 Kan. 796, 804, 248 P.3d 256 [2011] ).
provides:
This court has consistently instructed district courts considering a motion to correct illegal sentence to conduct a preliminary examination of the motion. See Makthepharak, 298 Kan. at 576, 314 P.3d 876
; Duke, 263 Kan. 193, 946 P.2d 1375. Based on this preliminary examination, the district court " " 298 Kan. at 576, 314 P.3d 876 (quoting State v. Jones, 292 Kan. 910, 913, 257 P.3d 268 [2011] ).
Gray presents no convincing argument that a rule is now warranted for the automatic appointment of counsel or the conducting of a hearing in all motions to correct illegal sentence. And we reject his request to withdraw our longstanding rule. See, e.g., State v. Heronemus, 294 Kan. 933, 935–36, 281 P.3d 172 (2012)
. So we conclude the district court's preliminary examination procedure was appropriate under K.S.A. 22–3504.
Gray next asserts his sentence is illegal for two reasons. First, he argues that at the sentencing hearing, the court failed to identify the crimes he committed or the statutes he violated under counts eight, nine, or eleven—i.e., three of the four rape charges for which he was being sentenced. Second, he argues that while the later journal entry correctly identified the attempt statute for count six, it failed to identify the statute for the substantive crime—rape—underlying his attempt. Gray claims these failures leave the sentence open for misinterpretation or ambiguity. The State responds the sentence is not ambiguous and therefore is not illegal.
Standards of review and preliminary matters
Whether a sentence is illegal within the meaning of K.S.A. 22–3504
is a question of law over which the appellate court has unlimited review. State v. Taylor, 299 Kan. 5, 8, 319 P.3d 1256 (2014). And we review de novo a district court's summary denial of a motion to correct illegal sentence because we examine the same motion, records, and files as the district court. Makthepharak, 298 Kan. at 577, 314 P.3d 876. Like the district court, this court must determine whether these documents "conclusively show the defendant is not entitled to relief." State v. Gilbert, 299 Kan. 797, 801, 326 P.3d 1060 (2014).
The State points out that Gray did not raise these issues below and therefore cannot raise them now without an excuse. And Gray offers none. See Supreme Court Rule 6.02(a)(5)
(2015 Kan. Ct. R. Annot. 41) ("If the issue was not raised below, there must be an explanation why the issue is properly before the court.").
specifically authorizes a court to "correct an illegal sentence at any time," which we have interpreted to mean that "an illegal sentence issue may be considered for the first time on appeal." State v. Floyd, 296 Kan. 685, 690, 294 P.3d 318 (2013) ; see State v. Dickey, 301 Kan. 1018, 1027, 350 P.3d 1054 (2015)
. Accordingly, Gray's arguments are properly before the court.
only applies if the sentence in question is illegal. An illegal sentence is defined as " ‘(1) a sentence imposed by a court without jurisdiction; (2) a sentence that does not conform to the applicable statutory provision, either in the character or the term of the authorized punishment; or (3) a sentence that is ambiguous with respect to the time and manner in which it is to be served.’ " Makthepharak, 298 Kan. at 578, 314 P.3d 876 (quoting State v. Trotter, 296 Kan. 898, 902, 295 P.3d 1039 [2013] ). We have held that K.S.A. 22–3504(1) has "very limited applicability" and that a sentence is only illegal if it fits within the definition. 298 Kan. at 581, 314 P.3d 876.
As further discussed below, the district court articulated at the sentencing hearing and in the journal entry that Gray was to serve a specific amount of time—15 to life on each charge of rape (counts two, eight, nine, and eleven) and 5 to 20 years on the charge of attempted rape (count six)—and in a specific manner, i.e., in the custody of the Secretary of Corrections. Moreover, the judge clarified during the course of the hearing and in the journal entry those crimes for which Gray was sentenced.
We first observe that Gray's counsel began the hearing with a statement of the plea bargain regarding the four counts of rape and the attempted rape and their accompanying sentences:
(Emphasis added.)
The district court made clear the five charges contained in the plea agreement when it imposed sentences at the hearing as follows: count two—"not less than fifteen years nor more than life;" count six—"not less than five years nor more than twenty;" count eight—"not less than fifteen years nor more than life;" count nine—"not less than fifteen years nor more than life;" and count eleven—"not less than fifteen years nor more than life."
The court then clarified for the State that the four rape sentences were to run consecutively, not concurrently:
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