State v. Nixon

• Decision Date: 06 December 2019
• Docket Number: Nos. 120,261, 120,262, 120,263,s. 120,261
• Citation: State v. Nixon, 453 P.3d 369(Table) (Kan. App. 2019)
• Parties: STATE of Kansas, Appellee, v. Grant Michael NIXON, Appellant.
• Court: Kansas Court of Appeals

453 P.3d 369 (Table)

STATE of Kansas, Appellee,

v.Grant Michael NIXON, Appellant.

Nos. 120,261

120,262

120,263

Court of Appeals of Kansas.

Opinion filed December 6, 2019

Steven D. Alexander, of Kansas City, for appellant.

Steven J. Obermeier, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.

Before Hill, P.J., Malone and Powell, JJ.

MEMORANDUM OPINION

Per Curiam:

Grant Michael Nixon appeals the district court's denial of his motion to correct illegal sentence filed in three separate cases. Nixon argues mainly that he was sentenced to penalties not in effect until 2006, even though he pled guilty to crimes occurring between November 2005 and June 2009. We agree with Nixon's claim in part, so we vacate in part and remand for resentencing as more fully explained in this opinion.

FACTUAL AND PROCEDURAL BACKGROUND

In May and June 2009, the State charged Nixon with multiple sex crimes in three cases: 09CR229, 09CR272, and 09CR273. On September 1, 2009, the State filed amended complaints in each case. In 09CR229, the State charged Nixon with one count of aggravated criminal sodomy occurring "at some time on or after November 7, 2005 and before June 14, 2009" and two counts of indecent liberties with a child. In 09CR272, the State charged Nixon with aggravated indecent solicitation of a child occurring "on or after November 7, 2005, but prior to June 1, 2009." In 09CR273, the State charged Nixon with one count of electronic sexual solicitation of a child occurring "on or after November 7, 2005, but before June 14, 2009" and one count of sexual exploitation of a child occurring "on or after November 7, 2005, but before June 14, 2009."

On the same day, Nixon agreed to plead guilty to aggravated criminal sodomy, aggravated indecent solicitation of a child, electronic solicitation of a child, and sexual exploitation of a child in exchange for the dismissal of two counts of indecent liberties with a child in 09CR229. The plea agreement stated Nixon pled to the charges as "set forth" in the complaint and there was sufficient evidence to support the crimes charged as "set forth" in the complaint.

Also on September 1, 2009, the district court held a plea hearing. Nixon agreed to waive the preliminary hearing on each case and stated he wanted to plead guilty. The district court went through each crime and read the charge verbatim from the amended complaint—including the time period as charged—then asked Nixon if he agreed that there was sufficient evidence to sustain a guilty verdict to which Nixon responded, "Yes." The district court accepted Nixon's guilty pleas and did not indicate that it considered any other documents or evidence in determining the factual basis for the pleas.

On November 3, 2009, the district court sentenced Nixon in all three cases. In 09CR229—aggravated criminal sodomy—the district court sentenced Nixon to life imprisonment with a mandatory minimum of 25 years. In 09CR272—aggravated indecent solicitation of a child—the district court sentenced Nixon to 136 months' imprisonment. In 09CR273, the district court sentenced Nixon to 228 months' imprisonment for count I, electronic sexual solicitation of a child, and to life imprisonment with a mandatory minimum of 25 years for count II, sexual exploitation of a child, with the two counts running concurrent with each other. The district court ordered the sentences in all three cases to run consecutive to each other.

Nixon appealed his sentences. On October 28, 2011, the Kansas Supreme Court determined that the challenged sentences were presumptive and fell within the statutory grid block, precluding appellate review. State v. Nixon , No. 103,659, 2011 WL 5142964, at *1 (Kan. 2011) (unpublished opinion).

On March 23, 2018, Nixon filed a motion to correct illegal sentence in each case. The district court held a hearing on the motion on October 2, 2018. At the hearing, the State called Chief of Cherryvale Police Jimmy Holt to testify. Nixon objected to his testimony and the State explained that "[t]his evidence goes specifically to the factual basis that these proceedings are here to determine, whether or not at the time of the plea Mr. Nixon had committed the offenses before or after [July 1, 2006]." Holt then testified that he reviewed the victim interviews and victim statements from the cases and the State moved to admit the victim interviews and statements as evidence. Nixon again objected, arguing that he pled guilty to the offenses occurring between November 2005 and June 2009, not to the dates reflected in the evidence the State was trying to admit.

The district court never ruled on whether it would admit the evidence. Instead, after hearing arguments from the parties, the district court stated that it was taking judicial notice of the court files and the information in those files, including the probable cause affidavits which reflected the exact dates of the criminal acts. The district court denied Nixon's motion, finding the court files established that the crimes occurred after July 1, 2006, and that the time period stated in the complaints must have been an error. The district court filed a journal entry denying the motion to correct illegal sentence on March 26, 2019. Nixon timely filed a notice of appeal in each case, and this court consolidated the cases on appeal.

NIXON'S SENTENCES FOR AGGRAVATED CRIMINAL SODOMY AND SEXUAL EXPLOITATION OF A CHILD

Nixon claims his two sentences of hard 25 life imprisonment for his aggravated criminal sodomy conviction and his sexual exploitation of a child conviction were illegal. He argues that because the amended complaints, which he pled guilty to, stated that the offenses occurred on or after November 7, 2005, but before June 14, 2009, and there were two penalties in effect during that time period—due to a statutory amendment effective July 1, 2006—he should have been sentenced to the less severe penalty.

The State argues that Nixon's motion to correct illegal sentence was properly denied in each case because he is essentially challenging his convictions or arguing that the complaints were defective, both of which are impermissible arguments in a motion to correct illegal sentence. In the alternative, the State argues that the district court did not err because the probable cause affidavits show that the criminal acts occurred in 2009.

An appellate court has jurisdiction to correct an illegal sentence even if the sentence was agreed to in a plea agreement. State v. Quested , 302 Kan. 262, 264, 352 P.3d 553 (2015). The court may correction an illegal sentence at any time. K.S.A. 2018 Supp. 22-3504(1). An illegal sentence is one that (1) is "[i]mposed 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. 2018 Supp. 22-3504(3) ; see State v. Hayes , 307 Kan. 537, 538, 411 P.3d 1225 (2018). Whether a sentence is illegal is a question of law subject to de novo review. State v. Lee , 304 Kan. 416, 417, 372 P.3d 415 (2016).

Nixon raises a proper illegal sentence claim.

The State argues that Nixon fails to raise a proper illegal sentence claim. The State points to the rule that a motion to correct illegal sentence cannot be used to challenge a conviction. See State v. Sims , 294 Kan. 821, 825, 280 P.3d 780 (2012). The State also points out that a motion to correct illegal sentence cannot be used to challenge a defective charging document. See State v. Robertson , 309 Kan. 602, 605-06, 439 P.3d 898 (2019). But the cases the State relies on and the arguments raised in those cases are distinguishable from Nixon's claim.

In Sims , the defendant argued that his charges did not list all the required elements under the statute to charge the crime. The court determined that Sims' arguments were challenges to the validity of his conviction and were improper in a motion to correct illegal sentence. 294 Kan. at 825. In Robertson , the defendant argued that his convictions were improper because the charging document used an incorrect version of his name. The court determined that Robertson's argument did not entitle him to relief because he was arguing for reversal of his convictions based on a defective charging document. 309 Kan. at 605-06.

Nixon is not using his motion to correct illegal sentence to attack his convictions or to challenge the sufficiency of the complaints on the charges of aggravated criminal sodomy and sexual exploitation of a child. Nixon makes it clear that he is not trying to set aside his conviction of aggravated criminal sodomy. Instead, he is arguing that because of the time frame set forth in the complaint, he is subject to two separate penalties and under the rule of lenity, he must receive the lesser of two possible sentences. Nixon makes the same argument on his sentence for sexual exploitation of a child. Thus, Nixon raises a proper illegal sentence claim because he is claiming that his sentences for aggravated criminal sodomy and sexual exploitation of a child do not "conform to the applicable statutory provision, either in character or punishment." K.S.A. 2018 Supp. 22-3504(3).

When Nixon's sentences were imposed, it was unclear whether the criminal acts occurred before or after July 1, 2006.

Turning to the merits of Nixon's claim, the penalties in effect at the time of the criminal acts are controlling. See State v. Rice , 308 Kan. 1510, 1512, 430 P.3d 430 (2018). Nixon pled to aggravated criminal sodomy and sexual exploitation of a child for acts occurring on or after November 7, 2005, but before June 14, 2009. For the time period alleged in the complaint, there were two possible penalties in effect for aggravated criminal sodomy and for sexual exploitation of a child due to statutory amendments effective July 1, 2006. Before July 1, 2006, aggravated criminal sodomy was a severity level 2 person felony. K.S.A....