State v. Horn
| Decision Date | 22 October 2021 |
| Docket Number | No. 123,213,123,213 |
| Citation | 497 P.3d 576 (Table) |
| Parties | STATE of Kansas, Appellee, v. Jerry Allen HORN, Appellant. |
| Court | Kansas Court of Appeals |
Jerry Allen Horn, appellant pro se.
Shawn E. Minihan, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Before Arnold-Burger, C.J., Schroeder, J., and Walker, S.J.
In 2006, Jerry Allen Horn pled guilty to three counts of aggravated indecent liberties with a child, three counts of aggravated criminal sodomy, and one count of sexual exploitation of a child. After the Kansas Supreme Court remanded his case due to a sentencing error, Horn received a 246-month prison sentence, followed by 36 months' postrelease supervision. Prior to his resentencing, Horn filed a motion to withdraw his pleas, which the district court denied. That denial was subsequently affirmed by a panel of our court. Horn later filed a motion under K.S.A. 60-1507, which was likewise denied by the district court. Once again our court affirmed the district court's refusal to grant relief to Horn.
In the appeal currently before us, Horn filed a motion to correct an illegal sentence, which the district court summarily denied. He now appeals, arguing (1) his sentence is illegal because his due process rights were violated during his plea hearing, (2) his sentence is illegal because the district court failed to pronounce a period of postrelease supervision from the bench, and (3) the district court erred in summarily denying his motion without appointing counsel. After carefully reviewing Horn's arguments and the record before us, we affirm the district court's denial of his motion.
In April 2005, the State charged Horn with three counts of aggravated indecent liberties with a child, three counts of aggravated criminal sodomy, and one count of sexual exploitation of a child. Horn pled guilty as charged.
The State filed a notice of intent to seek an upward durational departure, and the district court impaneled a jury to consider the matter. The jury found Horn had a fiduciary relationship with his 10-year-old victim, an applicable aggravating factor. Based on that finding, the district court sentenced him to a controlling 468-month sentence.
Horn appealed his convictions and his sentence. State v. Horn , 291 Kan. 1, 238 P.3d 238 (2010). The Kansas Supreme Court affirmed Horn's convictions, but due to a sentencing error—the impaneling of the jury for the upward durational departure proceeding—it vacated his sentence and remanded for resentencing without an upward durational departure. 291 Kan. at 12.
After his case was remanded, Horn moved to withdraw his plea, but the district court denied his motion. Following that denial, Horn was resentenced in August 2012—this time receiving a controlling 246-month sentence, followed by 36 months' postrelease supervision. Horn then appealed the district court's denial of his motion to withdraw his plea. A panel of our court affirmed the denial of Horn's motion. State v. Horn , No. 108,733, 2013 WL 5925963 (Kan. App. 2013) (unpublished opinion).
In March 2015, Horn filed a K.S.A. 60-1507 motion, which was summarily denied. Horn appealed that decision, and our court affirmed. Horn v. State , No. 114,982, 2016 WL 7429319 (Kan. App. 2016) (unpublished opinion).
Most recently, in August 2019, Horn filed a pro se motion to correct an illegal sentence, arguing he was not informed of the maximum potential sentence he faced when he pled guilty in 2006 because he was not advised of the applicable period of postrelease supervision. The district court summarily denied Horn's motion. Although the court noted that during his 2006 plea hearing "[t]here was no mention of a postrelease supervision prior to entry of the plea," it found Horn had already "tried multiple times unsuccessfully to raise the issue concerning the failure to mention postrelease supervision as a consequence of conviction prior to accepting his guilty plea to the multiple felony offenses." The court concluded it was bound by these prior rulings on the issue, noting:
"If that issue was missed or erroneously addressed by original counsel, original appellate counsel, counsel on the remand, the original sentencing Judge, the appointed counsel for the 60-1507 case, this resentencing Judge, or the Court of Appeals on two different occasions, it is a finished matter under the mandates by which this Court is controlled."
Additionally, the district court concluded that Horn's additional argument that he received a sentence longer than the maximum he was advised of was unpersuasive because the original sentencing court informed him that the maximum possible sentence he could receive was 492 months' imprisonment—far greater than the sentence of 246 months Horn ultimately received. For these reasons, the court found the motion, files, and record conclusively showed Horn was not entitled to relief.
Horn has timely appealed the denial of his motion.
We review the summary denial of a motion to correct an illegal sentence under K.S.A. 22-3504 de novo, since we have the same access to the motions, records, and files as the district court. On appeal, the question we must determine is whether these documents conclusively show the defendant is not entitled to relief. An illegal sentence may be corrected at any time while a defendant is serving their sentence. K.S.A. 2020 Supp. 22-3504(a). But the illegal sentence statute has very limited applicability. State v. Alford , 308 Kan. 1336, 1338, 429 P.3d 197 (2018).
K.S.A. 22-3504 only applies if a sentence is illegal. Deal v. State , 286 Kan. 528, Syl. ¶ 1, 186 P.3d 735 (2008). Whether a sentence is illegal is a question of law over which we exercise unlimited review. Alford , 308 Kan. at 1338. A sentence is illegal when it (1) is imposed by a court without jurisdiction; (2) does not conform to the applicable statutory provision, either in character or punishment; or (3) is ambiguous with respect to the time and manner in which it is to be served. K.S.A. 2020 Supp. 22-3504(c)(1). Because the definition of an illegal sentence does not encompass violations of constitutional provisions, a defendant may not challenge a sentence on constitutional grounds under K.S.A. 22-3504. State v. Lee , 304 Kan. 416, 418, 372 P.3d 415 (2016) ; see also State v. Hankins , 304 Kan. 226, 230-31, 372 P.3d 1124 (2016) ().
On appeal, Horn first argues his sentence is illegal due to a violation of his due process rights during his plea hearing. While Horn appears to recognize that the grounds for relief under K.S.A. 22-3504 are limited, he nevertheless raises this due process challenge concerning his underlying convictions. In denying Horn's motion, the district court noted that Horn had previously raised these due process issues when he appealed from the denial of his motion to withdraw his plea and the denial of his K.S.A. 60-1507 motion. See Horn v. State , 2016 WL 7429319 ; State v. Horn , 2013 WL 5925963.
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