State v. Hoge, 94,774.

• Decision Date: 09 February 2007
• Docket Number: No. 94,774.,94,774.
• Citation: 150 P.3d 905
• Parties: STATE of Kansas, Appellee, v. Joby M. HOGE, Appellant.
• Court: Kansas Supreme Court

150 P.3d 905

STATE of Kansas, Appellee, v. Joby M. HOGE, Appellant.

No. 94,774.

Supreme Court of Kansas.

February 9, 2007.

Bryan C. Hitchcock, of Maughan Hitchcock LC, of Wichita, argued the cause, and Carl F.A. Maughan, of the same firm, was with him on the brief for appellant.

Jeffrey E. Evans, assistant district attorney, argued the cause, and Nola Tedesco Foulston, district attorney, and Phill Kline, attorney general, were with him on the brief for appellee.

The opinion was delivered by LUCKERT, J.:

Defendant Joby Hoge appeals the district court's denial of his pro se motion for correction of an illegal sentence pursuant to K.S.A. 22-3504(1). He argues the district court's order failed to comply with Kansas Supreme Court Rule 183(j) (2006 Kan. Ct. R. Annot. 227), which requires a district court to make findings of fact and conclusions of law on all issues presented in an action filed pursuant to K.S.A. 60-1507. He also contends that the district court committed error by not appointing counsel and conducting a hearing on his motion to correct an illegal sentence.

This is the second appeal related to Hoge's convictions for first-degree murder and aggravated burglary. In State v. Hoge, 276 Kan. 801, 80 P.3d 52 (2003), he raised several issues, arguing: (1) the district court should have given an instruction for intentional second-degree murder as a lesser included offense (2) the district court improperly instructed the jury that it could rely on the combined theories of premeditated murder and felony murder rather than agreeing on a single theory, (3) the first-degree murder conviction must be reversed because Hoge was denied a unanimous verdict, (4) there was insufficient evidence of premeditation, (5) the district court improperly excluded evidence that the victim sold drugs, and (6) the district court improperly responded to the jury's question during deliberations. Hoge's convictions were ultimately affirmed.

On December 9, 2004, Hoge filed a pro se motion to correct an illegal sentence. In his pro se memorandum of support, Hoge asserted that the "thrust" of his motion related to "several errors" within the complaint/information, sufficiency of the evidence, erroneous jury instructions, jurisdiction, and "the sentence and conviction of [the] defendant." Hoge specified that the complaint and accompanying jury instruction were "jurisdictionally and fatally defective." According to Hoge, his due process rights were violated because certain language in the complaint and jury instruction was not identical to the applicable statutory language. He contended that the first-degree murder charge erroneously included the terms "unlawfully," "by shooting," and "inflicting injuries" and that this language was then erroneously omitted from the accompanying jury instruction. Hoge also essentially requested permission to proceed in forma pauperis.

The district court did not appoint counsel for Hoge and did not hear oral argument before denying Hoge's motion. The court rejected Hoge's claim of jurisdictional defect, finding that the language of which Hoge complained specifically explained the basis for the charge of premeditated first-degree murder and was consistent with K.S.A.2006 Supp. 22-3201(b), which requires the essential facts be included in the complaint. The district court further found that the first-degree murder jury instruction was not improper because the instruction mirrored PIK Crim.3d 56.01 (Murder in the First Degree). The district court determined: "As the defendant's current motion does not present a substantial issue of fact for this court, the defendant's request to proceed in forma pauperis will not be addressed."

It is from this ruling that Hoge appeals through his appellate counsel.

Compliance With Kansas Supreme Court Rule 183(j)

Hoge contends the district court's order denying the motion to correct an illegal sentence failed to comply with Kansas Supreme Court Rule 183(j) (2006 Kan. Ct. R. Annot. 227). This contention has no merit.

The interpretation of a Supreme Court rule is a question of law over which this court has unlimited review. Gerhardt v. Harris, 261 Kan. 1007, 1010, 934 P.2d 976 (1997).

Rule 183(j) requires a district court to "make findings of fact and conclusions of law on all issues presented" in addressing a K.S.A. 60-1507 motion. See State v. Moncla, 269 Kan. 61, 65, 4 P.3d 618 (2000) (district court's ruling did not comply with Rule 183[j]); Stewart v. State, 30 Kan.App.2d 380, 382, 42 P.3d 205 (2002) (boilerplate journal entries do not comply with Rule 183[j]; case remanded for compliance). Rule 183 does not mention motions to correct sentences; it relates solely to actions under K.S.A. 60-1507.

However, in general, this court has repeatedly "recognized that meaningful appellate review is precluded where a trial court's findings of fact and conclusions of law are inadequate to disclose the controlling facts or basis for the court's findings." Blair Construction, Inc. v. McBeth, 273 Kan. 679, 688, 44 P.3d 1244 (2002). Also, in general, this court has treated procedural aspects of motions attacking sentences filed under K.S.A. 22-3504 the same as those filed under K.S.A. 60-1507. See Love v. State, 280 Kan. 553, 557, 124 P.3d 32 (2005). We, therefore, conclude that, even though Rule 183(j) does not apply to a motion to correct an illegal sentence filed pursuant to K.S.A. 22-3504, a district court is required to make findings of fact and conclusions of law on all issues presented by the motion and those findings and conclusions must be sufficient to allow meaningful appellate review.

Hoge observes that Kansas appellate courts have required cases to be remanded for findings of fact and conclusions of law where the district court's findings and conclusions were insufficient to allow meaningful review. See, e.g., Stewart, 30 Kan.App.2d at 382, 42 P.3d 205. Hoge relies upon Moncla, 269 Kan. at 61, 4 P.3d 618, where the district court denied a motion for new trial without analyzing the paper evidence presented regarding new information and made no findings of fact or conclusions of law in support of its denial. This court determined that the district court had not complied with Rule 183(j) and remanded the case for findings. In support of its conclusion, the Moncla court stated:

"The merits of Moncla's motion aside, the fundamental problem with the district court's approach here is that it impedes appellate review. How are we to review the decision, even under the abuse of discretion standard, when neither findings nor conclusions based on the findings are stated? Motions for new trials, like many 60-1507 motions, may be meritless and, thus, not entitled to evidentiary hearings. However, the district court must tell us what its findings are and why it concluded the motion to be without merit if we are to conduct any sort of meaningful appellate review." 269 Kan. at 65, 4 P.3d 618.

See State v. Bolden, 28 Kan.App.2d 879, 24 P.3d 163, rev. denied 271 Kan. 1038 (2001).

Hoge contends that the district court's findings of fact and conclusions of law on the issues presented in Hoge's motion were "insufficient," but he fails to couple any explanation to this contention. As the State points out in its brief, unlike the situation in Moncla, the district court in the present case made adequate findings of fact and conclusions of law to allow meaningful appellate review.

Failure to Appoint Counsel and Conduct an Evidentiary Hearing

Hoge also contends the district court erred in denying his pro se motion for correction of an illegal sentence without first appointing counsel and conducting an evidentiary hearing. He argues that the plain language of K.S.A. 22-3504(1) bars summary disposition of a motion to correct an illegal sentence. Hoge's contention is not persuasive.

Hoge's arguments, in part, require interpretation of K.S.A. 22-3504. The interpretation of a statute is a question of law over which this court has unlimited review. State v. Bryan, 281 Kan. 157, 159, 130 P.3d 85 (2006).

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

"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."

While Hoge recognizes that Kansas appellate courts have treated motions to correct illegal sentences like K.S.A. 60-1507 motions — where district courts may summarily deny the petitioner's motion if the motion, files, and records of the case conclusively show the petitioner is not entitled to relief — Hoge contends that the language in K.S.A. 22-3504(1) requires the district court to appoint counsel and hold an evidentiary hearing in instances involving a motion to correct an illegal sentence. This court, however, has rejected such a notion. In State v. Duke, 263 Kan. 193, 946 P.2d 1375 (1997), this court stated:

"Our decisions have been quite uniform in upholding the propriety of such preliminary examinations on all post-trial motions filed later than 10 days after trial. There is no indication that a motion to correct an illegal sentence was intended by the legislature to be treated differently from a K.S.A. 60-1507 attack upon a sentence. Logic does not require a different treatment. What purpose is served if, unlike another post-trial motion, the filing of a bare-bones conclusory motion to correct an allegedly illegal sentence triggers a full-blown hearing with defense counsel and the presence of the defendant? We believe the key words in K.S.A. 22-3504(1) relative to the issue before us are `any proceeding.' The district court should make the preliminary examination as to whether substantial questions of law or fact are raised. If the findings are in the negative, the...