State v. Thomas, 58717

• Decision Date: 13 June 1986
• Docket Number: No. 58717,58717
• Citation: 239 Kan. 457,720 P.2d 1059
• Parties: STATE of Kansas, Appellee, v. Clyde THOMAS, Appellant.
• Court: Kansas Supreme Court

Page 1059

720 P.2d 1059

239 Kan. 457

STATE of Kansas, Appellee, v. Clyde THOMAS, Appellant.

No. 58717.

Supreme Court of Kansas.

June 13, 1986.

Syllabus by the Court

1. K.S.A. 60-1507(a) provides a prisoner claiming the right to be released a procedure under the Kansas Code of Civil Procedure to vacate, set aside or correct his sentence. K.S.A. 60-1507 actions are original civil cases and fall within the appellate jurisdiction of the court of appeals.

2. K.S.A. 22-3504 provides a method for correcting an illegal sentence or a clerical mistake in judgments, orders or other parts of the record. An appeal of a 22-3504 motion is a criminal appeal provided by the Code of Criminal Procedure and falls within the appellate jurisdiction of the appellate court that has jurisdiction to hear the original appeal.

3. The pronouncement of sentence or rendition of judgment is a judicial act of the sentencing judge, as distinguished from the entry of the judgment, which is a ministerial act of preparing the record of judgment.

4. An "illegal sentence" is either a sentence imposed by a court without jurisdiction; a sentence which does not conform to the statutory provisions, either in the character or the term of the punishment authorized; or a sentence which is ambiguous with respect to the time and manner in which it is to be served.

Melissa Kelly, Asst. Appellate Defender, argued the cause, and Benjamin C. Wood, Chief Appellate Defender, was with her on brief, for appellant.

Geary N. Gorup, Asst. Dist. Atty., argued the cause, and Clark V. Owens, Dist. Atty., and Robert T. Stephan, Atty. Gen., were with him on brief, for appellee.

LOCKETT, Justice:

Defendant appeals the district court's denial of his motion to correct his sentence pursuant to K.S.A. 22-3504.

The defendant, Clyde Thomas, was convicted of felony murder, K.S.A. 21-3401, and attempted aggravated robbery, K.S.A. 1985 Supp. 21-3301 and 21-3427, by a jury in Sedgwick County District Court. Four individuals had been charged. Separate trials were granted each defendant. Two of his three codefendants were convicted, while a third codefendant was acquitted at jury trial. Thomas' convictions were affirmed in an unpublished opinion, State v. Thomas, --- Kan. ---, 644 P.2d 998 (1982).

On March 20, 1985, Thomas filed a motion pursuant to K.S.A. 22-3504 to correct his sentences to reflect, under K.S.A. 21-4620(a)(2)(C), that he was merely an aider and abettor in the crimes. Although not an issue, Thomas is attempting to become immediately parole eligible if his convictions are found to be as an aider and abettor under K.S.A. 21-3205.

On at least three occasions during 1983 and 1984, Thomas had stated, by sworn affidavits and legal pleadings, that he was the triggerman in the death of the victim. The district court, being aware of the history of the case and Thomas' prior statements, refused to modify, alter or correct the sentence to declare that the defendant was merely an aider and abettor in the crime. The district court further found that, even if Thomas did not kill the victim, proof of the triggerman's identity in a felony-murder case was irrelevant, because each codefendant was charged and convicted as a principal. State v. Myrick & Nelms, 228 Kan. 406, 416, 616 P.2d 1066 (1980). The court further found that, even assuming Thomas was an aider or abettor during the attempted aggravated robbery, he would not be entitled to any relief because the sentence for such offense was ordered to run concurrently with the controlling sentence imposed for the felony murder. The defendant appeals from this decision.

Originally, the attorney appointed to represent Thomas on appeal docketed the appeal with the Kansas Supreme Court. Then the attorney determined that a motion to correct Thomas' sentence under K.S.A. 22-3504 was similar to a K.S.A. 60-1507 civil motion and should be heard by the court of appeals. The attorney moved to transfer the appeal to the court of appeals. Appellate jurisdiction was retained by this court, and the parties were instructed to brief the jurisdictional question raised by the defendant.

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."

K.S.A. 1985 Supp. 60-2101(a) and (b) define the separate appellate jurisdiction of the two appellate courts of Kansas. Under 60-2101(a), the court of appeals has jurisdiction to hear all appeals from the district courts, except where the appeal is to the supreme court by law. K.S.A. 60-2101(b) grants the supreme court original jurisdiction of an appeal where the district court has held a statute of this state or of the United States unconstitutional, or of an appeal in criminal cases as prescribed by K.S.A. 22-3601 and 22-3602.

K.S.A. 22-3601 defines the jurisdiction of the appellate courts for criminal appeals. All appeals, except where the defendant has been convicted of a class A or class B felony or in which a maximum sentence of life imprisonment has been imposed or in which a statute of this state or of the United States has been held unconstitutional, fall within the appellate jurisdiction of the court of appeals. Under K.S.A. 22-3602(d) criminal cases may be transferred from the court of appeals to the supreme court by order of the supreme court.

A motion to set aside a sentence pursuant to K.S.A. 60-1507 is a civil proceeding. Winter v. State, 210 Kan. 597, 604, 502 P.2d 733 (1972). In State v. Richardson, 194 Kan. 471, 473, 399 P.2d 799 (1965), this court cited Heflin v. United States, 358 U.S. 415, 79 S.Ct. 451, 3 L.Ed.2d 407 (1959), in which the federal court said that the federal statute (from which K.S.A. 60-1507 is composed) created a new case, not a criminal case, and the proceeding under that section was in the nature of a civil action.

K.S.A. 60-1507(a) provides a prisoner claiming the right to be released a procedure under the Kansas Code of Civil Procedure to vacate, set aside or correct his sentence. K.S.A. 60-1507 actions are original civil cases and fall within the appellate jurisdiction of the court of appeals.

K.S.A. 22-3504 provides a method for correcting an illegal sentence or a clerical mistake in judgments, orders or other parts of the record. K.S.A. 22-3504 is contained within the chapter of the Kansas statutes entitled "Criminal Procedure." The federal courts treat similar motions as part of the original criminal case. See Heflin v. United States, 358 U.S. at 418, 79 S.Ct. at 453. This is logical. An appeal of a 22-3504 motion is a criminal appeal provided by the Code of Criminal Procedure and falls within the appellate jurisdiction of the appellate court that has jurisdiction to hear the original appeal. This court has original jurisdiction to hear Thomas' appeal of the district court's denial of his motion to correct the class A felony sentence.

The defendant next contends that the trial court erred by (1) failing to conduct a hearing on his motion, and (2) failing to require his presence. The State argues that neither the hearing nor the defendant's presence at the hearing was required since the defendant was not entitled to relief.

K.S.A. 22-3504(1) states that "[t]he 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."

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