State v. Neal

• Decision Date: 05 August 2011
• Docket Number: No. 100,366.,100,366.
• Citation: 258 P.3d 365,292 Kan. 625
• Parties: STATE of Kansas, Appellee,v.Eric L. NEAL, Appellant.
• Court: Kansas Supreme Court

292 Kan. 625

258 P.3d 365

STATE of Kansas, Appellee,

v.Eric L. NEAL, Appellant.

No. 100,366.

Supreme Court of Kansas.

Aug. 5, 2011.

Syllabus by the Court

1. An appellate court applies a de novo standard of review to a district court's summary denial of a motion to correct an illegal sentence under K.S.A. 22–3504. 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 imposed by a court without jurisdiction, a sentence that does not conform to the statutory provision, either in the character or the term of the punishment authorized, or a sentence that is ambiguous with respect to the time and manner in which it is to be served.

3. A defendant may file a motion to correct an illegal sentence at any time. A defendant's failure to challenge an illegal sentence on direct appeal does not procedurally bar a subsequent motion to correct an illegal sentence.

4. A person accused of a misdemeanor has a Sixth Amendment right to counsel if the sentence to be imposed upon conviction includes a term of imprisonment, even if the jail time is suspended or conditioned upon a term of probation. The right to counsel arises at the stage of the proceedings where guilt is adjudicated, eligibility for imprisonment is established, and the prison sentence determined.

5. The evidence in the record must answer two critical questions in order to establish an effective knowing and voluntary waiver of counsel: first, whether the defendant was fully advised and properly informed of his or her right to counsel and second, whether, upon having been fully advised and properly informed, the defendant made a clear determination not to have counsel represent him or her before the court.

6. A defendant who through a postappeal motion to correct his or her illegal sentence collaterally challenges the constitutional validity of prior convictions used to enhance the present sentence has the burden to show their invalidity.

7. Under the facts of this case, the trial court's summary dismissal of defendant's motion to correct illegal sentence under K.S.A. 22–3504 significantly reduced his ability to meet his burden of proving the invalidity of his prior convictions used to enhance his present sentence. Accordingly, the case is reversed and remanded for evidentiary hearing.

Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, argued the cause and was on the briefs for appellant.Lesley A. Isherwood, assistant district attorney, argued the cause, and Nola Tedesco Foulston, district attorney, and Steve Six, attorney general, were with her on the brief for appellee.

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

This case arises out of the district court's summary denial of Eric Neal's motion to correct an illegal sentence under K.S.A. 22–3504 based upon his claims of an incorrect criminal history score. After the Court of Appeals affirmed, we granted Neal's petition for review; our jurisdiction is under K.S.A. 20–3018(b).

We hold the district court erred in denying Neal's 22–3504 motion without conducting an evidentiary hearing. Consequently, we reverse the decisions of the Court of Appeals and district court and remand to the district court for an evidentiary hearing.

FACTS

Neal was convicted in two separate cases in December 2000 of second-degree murder, aggravated battery, aggravated assault, endangering a child, and criminal possession of a firearm. At Neal's sentencing hearing, his counsel expressed concern that the presentence investigation (PSI) report showed his criminal history score to be worse than what she and the prosecutor had discussed. The district court granted Neal a 20–day stay to further investigate his criminal history. Nothing in the record on appeal, however, indicates that Neal lodged a formal objection to his criminal history, further challenged his PSI score, or that his history was later changed.

According to Neal's PSI, three municipal person misdemeanor convictions were aggregated pursuant to K.S.A. 21–4711(a) to form a single person felony for purposes of calculating his criminal history: his 1987 battery conviction, his 1988 battery conviction, and his 1998 conviction for violating a protective order. At the conclusion of his sentencing hearing, the State proffered certified copies of the disposition sheets/journal entries of two of these convictions. In accordance with that aggregation and resultant criminal history, Neal was eventually sentenced to 618 months for the murder conviction and to total incarceration of 653 months for all convictions.

Neal appealed, claiming an error in his criminal history score but not on the basis of the misdemeanors' aggregation. His convictions and sentences were affirmed by the Court of Appeals in State v. Neal, No. 86,756, –––Kan.App.2d ––––, 58 P.3d 756, unpublished opinion filed November 22, 2002.

In August 2007, approximately 7 years after his convictions, Neal filed a 28–page pro se motion to correct an illegal sentence pursuant to K.S.A. 22–3504. He swore its contents were true and his “signature of affiant” was notarized. Of relevance to the present appeal, he generally contended the district court erred in aggregating the municipal misdemeanor convictions into one person felony. More specifically, he argued his 1987 and 1988 battery convictions resulted in suspended jail sentences and were uncounseled, rendering them constitutionally invalid. He claimed that he “was never advised [of], nor did he waive[ ], his rights to counsel.”

Neal contended that because of this district court aggregation error, the court erred in computing his criminal history and then in sentencing him with enhancements based upon that erroneous history. According to Neal, correcting this error would reduce the severity of his criminal history—from B to C—and correspondingly reduce his sentence to 258–285 months. Included in his motion's attachments were the disposition sheets from his 1987 and 1988 municipal misdemeanor convictions.

Without disputing Neal's factual allegations, the State essentially responded that his motion to correct an illegal sentence should simply be denied as a matter of law. Without conducting an evidentiary hearing, the district court dismissed Neal's motion on the grounds asserted by the State. First, the court held that the motion was procedurally barred because Neal had already challenged his criminal history on direct appeal, and he had full opportunity there to raise all issues attacking his convictions and sentence. Second, the court held that Neal received a legal sentence, i.e., it was imposed in conformity with the appropriate statutory provisions and was not ambiguous in either the time or manner in which it was to be served. The court did not address Neal's argument that the suspended jail sentences entitled him to counsel which was never provided nor waived.

The Court of Appeals concluded Neal's motion was procedurally barred as he was improperly using it as a substitute for a second appeal. State v. Neal, No. 100,366, ––– Kan.App.2d ––––, 2009 WL 1140329 (2009) (unpublished opinion).

The Court of Appeals panel also concluded that even if it addressed the merits, Neal's motion still failed. Citing State v. Delacruz, 258 Kan. 129, 899 P.2d 1042 (1995), the panel observed that an uncounseled misdemeanor conviction that does not result in incarceration may be included in a defendant' criminal history score, even though it has the effect of enhancing the sentence under the Kansas Sentencing Guidelines Act. Citing State v. Allen, 28 Kan.App.2d 784, 20 P.3d 747 (2001), it further observed that a defendant's right to counsel for a misdemeanor charge did not vest until actual imprisonment, i.e., the right is not triggered if the defendant receives a conditionally suspended sentence or probation. The panel additionally observed that neither Neal's 1987 nor 1988 convictions resulted in actual imprisonment; he was merely fined and given probation. It therefore concluded these convictions never triggered Neal's right to counsel.

The panel noted as an alternate basis for its holding that, should a record indicate that a misdemeanor conviction did result in jail time, it must then be shown that the defendant was either represented by counsel or that the State has proven, by a preponderance of the evidence, that defendant waived counsel before such a conviction can be included in the criminal history. 2009 WL 1140329, at *3 (citing Allen, 28 Kan.App.2d at 788, 20 P.3d 747). The panel opined that the disposition sheets in both the 1987 and 1988 battery convictions “reflect[ ] a waiver of counsel and indicate[ ] that ‘[d]efendant has been advised of his constitutional rights and enhancements.’ ” 2009 WL 1140329, at *3. Overall, because of the absence of Neal's incarceration, and the presence of his constitutional rights advisory and waiver, the panel held his misdemeanor convictions were ripe for aggregation under K.S.A. 21–4711.

Additional facts will be added as necessary to our analysis.

ANALYSIS

Issue: The district court erred in summarily denying Neal's motion to correct an illegal sentence.Standard of Review

The filing of a motion to correct an illegal sentence under K.S.A. 22–3504 does not automatically require the district court to conduct a full evidentiary hearing. See State v. Pennington, 288 Kan. 599, 601, 205 P.3d 741 (2009). The district court first conducts a preliminary examination of the motion. Based upon that examination, the motion can be denied “ ‘without a hearing or appointment of counsel if the district court determines the motion, files, and records of the case conclusively show the defendant is not entitled to relief.’ ” State v. Howard, 287 Kan. 686, 690, 198 P.3d 146 (2008) (quoting State v. Hoge, 283 Kan. 219, 224, 150 P.3d 905 [2007] ).

When, as here, the district...