Opinion
No. 106,399.
2012-07-6
STATE of Kansas, Appellee, v. Keith L. CRAWFORD, Appellant.
Appeal from Sedgwick District Court; J. Patrick Walters, Judge. David Lowden, chief attorney appellate division, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee. Michael C. Brown, of Mulvane, for appellant.
Appeal from Sedgwick District Court; J. Patrick Walters, Judge.
David Lowden, chief attorney appellate division, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee. Michael C. Brown, of Mulvane, for appellant.
Before BRUNS, P.J., MARQUARDT and HILL, JJ.
MEMORANDUM OPINION
PER CURIAM.
Keith L. Crawford was convicted of rape in 1997, and the conviction was affirmed on direct appeal in 2000. State v. Crawford, No. 80,646, unpublished opinion filed February 18, 2000 (Kan.App.). More than 9 years later, Crawford filed a motion to correct an illegal sentence, claiming that he should have been sentenced under the aggravated incest statute rather than the rape statute. The district court summarily denied the motion, and Crawford's appeal was dismissed for failure to timely file a notice of appeal. In 2010, Crawford filed a second motion to correct an illegal sentence in which he raised arguments similar to those he had raised in his first motion. Again, the district court summarily denied the motion. This time, however, Crawford timely appealed. Because we conclude that Crawford is not entitled to relief as a matter of law, we affirm the district court's decision.
A motion to correct an illegal sentence can be raised at any time. K.S.A. 22–3504(1). Under K.S.A. 22–3504, a sentence is illegal if it (1) is imposed by a court without jurisdiction, (2) does not conform to the statutory provision, or (3) is ambiguous as to the time and manner it is to be served. State v. Neal, 292 Kan. 625, 630, 258 P.3d 365 (2011). Here, Crawford contends that his sentence did not conform to statutory provisions.
A district court may appropriately deny a motion to correct an illegal sentence without conducting a hearing or appointing counsel if “the motion, files, and records of the case conclusively show the defendant is not entitled to relief.” State v. Hoge, 283 Kan. 219, 224, 150 P.3d 905 (2007). When a district court summarily denies a motion to correct an illegal sentence under K.S.A. 22–3504, our review is unlimited. See Neat, 292 Kan. at 629.
In his second motion, Crawford contends that his sentence was illegal because he was sentenced for violating K.S.A. 21–3502—which criminalizes rape—instead of being sentenced for violating K.S.A. 21–3603—which criminalizes aggravated incest. In support of this contention, Crawford alleges that he was the common-law husband of his victim's mother, which made him his victim's stepfather at the time of the rape. Thus, Crawford argues that the holding in Carmichael v. State, 255 Kan. 10, 872 P.2d 240 (1994), is applicable in this case. In Carmichael, a defendant's sentence for raping his daughter was vacated and the case remanded for resentencing for aggravated incest because, statutorily, aggravated incest was the crime most specifically applicable to the case. 255 Kan. at 19–20.
We do not find the Carmichael decision to be applicable to the present case because the aggravated incest statute, K.S.A. 21–3603, was amended in 1993. Prior to the 1993 amendments, the aggravated incest statute encompassed rape of a stepchild. See K.S.A.1992 Supp. 21–3603(2); K.S.A.1992 Supp. 21–3501(4). After the 1993 amendments were enacted, however, the crime of aggravated incest only encompassed otherwise lawful sexual intercourse with or the lewd fondling of a stepchild—not rape. See State v. Sims, 33 Kan.App.2d 762, 763–64, 108 P.3d 1007 (2005), rev. denied 280 Kan. 990 (2005).
The record reflects that Crawford was charged with raping A.M.S. in 1996, well after the legislature amended K.S.A. 21–3603. On direct appeal, a panel of this court found that there was sufficient evidence to support Crawford's rape conviction. Specifically, this court found that an expert who had performed a physical examination of A.M.S. had rendered the opinion that there had been penetration. Moreover, this court found that A.M.S. had testified that Crawford had “put his penis inside her ‘just a little bit.’ “ Crawford, slip op. at 8.
Even if A.M.S. was Crawford's stepdaughter, we find that the aggravated incest statute did not encompass rape at the time Crawford raped her. As such, we find that Crawford was appropriately charged, convicted, and sentenced for rape in violation of K.S.A.1996 Supp. 21–3502. Furthermore, we find that the motion and the record conclusively show that Crawford is not entitled to relief. Therefore, we conclude that Crawford's sentence was not illegal and the district court did not err in summarily denying his motion.
Affirmed.