State v. Redding

• Decision Date: 12 July 2019
• Docket Number: No. 115,037,115,037
• Citation: 444 P.3d 989
• Parties: STATE of Kansas, Appellee, v. Jeffery S. REDDING, Appellant.
• Court: Kansas Supreme Court

444 P.3d 989

STATE of Kansas, Appellee,

v.Jeffery S. REDDING, Appellant.

No. 115,037

Supreme Court of Kansas.

Opinion filed July 12, 2019.

Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, argued the cause and was on the brief for appellant.

Steven J. Obermeier, assistant solicitor general, argued the cause, and Amanda G. Voth, assistant solicitor general, and Derek Schmidt, attorney general, were with him on the briefs for appellee.

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

Jeffery S. Redding seeks our review of the Court of Appeals' decision affirming the district court's summary denial of his motion to correct an illegal sentence. State v. Redding , No. 115,037, 2017 WL 462658 (Kan. App. 2017) (unpublished opinion). Redding claims that his pro se motion should have been liberally construed as a K.S.A. 60-1507 motion; that his sentence was illegal because the district court failed to follow proper statutory procedures for imposing a departure sentence; and that his due process rights were violated when the district court requested a response from the State before summarily denying the motion without appointment of counsel for Redding. We affirm the lower courts on all issues.

FACTUAL AND PROCEDURAL OVERVIEW

Redding was charged with multiple counts of rape and aggravated indecent liberties with a child based on allegations that he sexually abused his 4-year-old daughter and his girlfriend's 11-year-old daughter in 2010 and 2011. Pursuant to a signed plea agreement, Redding pled nolo contendere to one count of rape, K.S.A. 21-3502(a)(2), and one count of aggravated indecent liberties, K.S.A. 21-3504(a)(3)(A), in return for the State's agreement to recommend a departure from the "hard 25" off-grid sentences under Jessica's Law to the applicable on-grid sentences for his crimes, but to recommend that the on-grid sentences be imposed consecutively. The agreed-upon gridbox numbers translated to a 155-month sentence for the rape and 55-month sentence for the aggravated indecent liberties, for an aggregated sentence of 210 months, or 17.5 years.

Redding's counsel filed a motion for a departure from the Jessica's Law sentences, asserting that the substantial and compelling reasons to depart included his lack of criminal history, his age (33 years old), and his plea had spared the victims the trauma of testifying at a trial. The State concurred with the departure reasons. But Redding wrote a letter to the court in lieu of allocution in which he requested an even shorter sentence because he did not want to be away from his family, and he was concerned with his ability to resume employment in his chosen field if he were gone too long.

At sentencing, the district court imposed the Jessica's Law sentence for each count, but then departed to the jointly recommended total sentence of 210 months' imprisonment, citing as substantial and compelling reasons Redding's lack of criminal history, his family support, and his having spared the victims from having to testify.

Subsequently, Redding filed a motion to permit an untimely appeal, but quickly withdrew it. More than two years later, Redding filed this pro se "Motion to Correct An[ ] Illegal Sentence." Because Redding had not served the State with a copy of the motion, the district court sent a copy to the State along with a letter saying that the State had time to respond, and that the district court would wait for the State's response before reviewing the motion. The State filed a response on August 19, 2015, and on August 28, 2015, the district court entered a journal entry memorandum of decision in which it addressed Redding's claims and denied the motion to correct.

Redding filed a notice of appeal on September 14, 2015, and counsel was appointed. After filing his notice of appeal, Redding filed a second motion to correct, which was similar to the first motion. The district court denied the second motion because the district court lacked jurisdiction while the case was on appeal, but the court also noted that the second motion raised the same issues as the first motion that the court had denied.

The Court of Appeals affirmed the district court's summary denial. 2017 WL 462658, at *4. We granted Redding's petition for review.

LIBERALLY CONSTRUING THE MOTION

Redding commences his first stated issue—that the district court violated his due process rights by failing to appoint him counsel after receiving a written response from the State's attorney—by arguing that the district court should have construed his motion as a K.S.A. 60-1507 motion. We consider that argument as a separate issue.

Standard of Review

Whether a district court properly construed a pro se pleading is a question of law subject to unlimited review. State v. Ditges , 306 Kan. 454, 456, 394 P.3d 859 (2017) (citing State v. Gilbert , 299 Kan. 797, 802, 326 P.3d 1060 [2014] ).

Analysis

Courts are to interpret pro se pleadings based upon their contents and not solely on their title or labels. Gilbert , 299 Kan. at 802-03, 326 P.3d 1060. In construing pro se postconviction motions a court should consider the relief requested, rather than a formulaic adherence to pleading requirements. See, e.g., State v. Holt , 298 Kan. 469, 480, 313 P.3d 826 (2013) (motion for new trial treated as K.S.A. 60-1507 motion); State v. Kelly , 291 Kan. 563, 565-66, 244 P.3d 639 (2010) (pro se K.S.A. 60-1507 motion construed as motion to withdraw plea under K.S.A. 22-3210 ); State v. Randall , 257 Kan. 482, 486-87, 894 P.2d 196 (1995) (motion to convert sentence treated as 60-1507 motion).

But there are limits to a court's duty to liberally construe pro se pleadings. A court is not required to divine every conceivable interpretation of a motion, especially when a litigant repeatedly asserts specific statutory grounds for relief and propounds arguments related to that specific statute. Ditges , 306 Kan. at 457-58, 394 P.3d 859 (motion filed as one under K.S.A. 22-3504 and specifically requesting correction of sentence was properly treated as motion to correct illegal sentence, despite containing some requests for relief only available under 60-1507); Makthepharak v. State , 298 Kan. 573, 581-82, 314 P.3d 876 (2013) (despite erroneous language in order denying relief, district court properly construed pro se pleading as motion to correct illegal sentence and denied relief on that basis when litigant claimed sentence was rendered by court without jurisdiction).

Redding cites to State v. Harp , 283 Kan. 740, 744-45, 156 P.3d 1268 (2007), as establishing this court's ability to construe an improper motion to correct an illegal sentence as a K.S.A. 60-1507 motion. There, Harp filed a motion to correct an illegal sentence based upon a decision of this court in another case interpreting a portion of the same sentencing statute that was in question in Harp's case. After finding that the subsequent change in law did not fit within the narrow definition of an illegal sentence, this court considered whether relief was appropriate under K.S.A. 60-1507. "[A]lthough not required to do so, the district court could have construed Harp's pro se motion to correct an illegal sentence as a motion challenging his sentence under K.S.A. 60-1507." ( Emphasis added.) 283 Kan. at 744, 156 P.3d 1268. That discretionary language in Harp does not appear to benefit Redding's cause; if the district court was not required to construe a motion to correct an illegal sentence as a 60-1507 motion, then the declination to do so would not be reversible without a showing of an abuse of discretion. Redding makes no attempt at that showing.

Moreover, Harp held that the movant in that case was not entitled to relief under K.S.A. 60-1507 either, because "even construing the motion as a K.S.A. 60-1507 motion, the defendant must overcome procedural hurdles." 283 Kan. at 745, 156 P.3d 1268. Ironically, that fate would befall Redding as well. K.S.A. 60-1507(f) requires the motion to be filed within one year of the case becoming final unless the movant can show manifest injustice. Redding exceeded that time limit and provides no argument as to why the manifest injustice exception is applicable here. Instead, he argues that the case should be remanded for him to make a manifest injustice argument to the district court. That tack is unavailing.

More importantly, however, we are not convinced that construing the motion as it was filed—as a K.S.A. 22-3504 motion to correct an illegal sentence—was improper. In addition to labeling the pleading as a "Motion to Correct An[ ] Illegal Sentence," Redding filed it under the criminal case number. To the contrary, "a motion under K.S.A. 60-1507 to vacate, set aside, or correct a sentence is an independent civil action that must be docketed separately." Supreme Court Rule 183(a)(1) (2019 Kan. S. Ct. R. 228-29).

Further, the motion was not submitted on the Judicial Council forms for a 60-1507 and did not contain the information called for by the questions on that form. Supreme Court Rule 183(e) (2019 Kan. S. Ct. R. 230) (a 60-1507 motion "is sufficient if it is in substantial compliance with the judicial council form"). In Nguyen v. State , 309 Kan. 96, 104-05, 431 P.3d 862 (2018), we said that substantial compliance means " ‘compliance in respect to the essential matters necessary to assure every reasonable objective of the statute’ " and that "the reasonable objectives of Supreme Court Rule 183(e) are to provide the reviewing court with the information called for by the [Judicial Council] form's questions and to have that information presented in such a manner that the reviewing court can match the answers to their corresponding questions." Here, Redding's pleading did not substantially comply with Supreme Court Rule 183(e).

Even ignoring the noncompliance with Rule 183, the content of Redding's motion is consistent with its label. The motion begins by asking "this court to vacate this sentence [due] to it being [an] illegal...