Opinion
No. 107,729.
2013-03-8
STATE of Kansas, Appellee, v. Tommy MAY, Appellant.
Appeal from Sedgwick District Court; Gregory L. Waller, Judge. Michael P. Whalen and Krystle M.S. Dalke, of Law Office of Michael P. Whalen, of Wichita, for appellant, and Tommy May, appellant pro se. Julie A. Koon, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Gregory L. Waller, Judge.
Michael P. Whalen and Krystle M.S. Dalke, of Law Office of Michael P. Whalen, of Wichita, for appellant, and Tommy May, appellant pro se. Julie A. Koon, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before BRUNS, P.J., GREEN and BUSER, J.J.
MEMORANDUM OPINION
PER CURIAM.
In 1984, Tommy May was found guilty by a jury of two counts of aggravated robbery. On appeal, our Supreme Court affirmed his convictions and sentences. State v. May, No. 58,710, unpublished Supreme Court opinion filed July 18, 1986. This is the third appeal May has taken after filing a motion to correct illegal sentences in Sedgwick County. For the reasons articulated below, we affirm the district court's dismissal of May's latest motion.
On appeal from his first motion, May unsuccessfully argued before our Supreme Court that he was denied allocution at sentencing and also appointment of counsel and a hearing on the motion itself. See State v. May, No. 98,708, unpublished Supreme Court opinion filed January 30, 2009. On appeal to our court from the denial of his second motion, May reprised his argument regarding denial of counsel and a hearing, and he also asserted that his sentences were ambiguous. Mays' appeal was unsuccessful. See State v. May, No. 104,169, unpublished Court of Appeals opinion filed July 22, 2011.
With regard to the third motion which is now on appeal, the district court summarily denied May's motion: “[May's] motion is successive. The sentencing is not illegal and any other arguments have been abandoned or adversely ruled upon by the appellate courts.” On appeal, our standard of review is well established: “An appellate court applies a de novo standard of review to a district court's summary denial of a motion to correct illegal sentence under K.S.A. 22–3504.” State v. Heronemus, 294 Kan. 933, Syl. ¶ 1, 281 P.3d 172 (2012).
In his latest appeal, for the first time, May now argues his sentences were illegal because the sentencing court lacked jurisdiction for not considering K.S.A. 21–4606(b) and because his sentences did not conform to that statute. As the State notes, May did not raise these arguments in the district court. We will, however, consider them for the first time on appeal because, in part, they implicate jurisdiction. See State v. Sales, 290 Kan. 130, 135, 224 P.3d 546 (2010). Of course, any arguments May raised below which are not briefed are deemed waived or abandoned on this appeal and in any subsequent litigation. See State v. DuMars, 37 Kan.App.2d 600, 603, 154 P.3d 1120,rev. denied 284 Kan. 948 (2007).
Kansas law applicable to the determination of whether a sentence is illegal was recently restated by our Supreme Court: “A sentence is illegal if it is a sentence imposed by a court without jurisdiction; a sentence that does not conform to statutory provisions ...; or a sentence that is ambiguous with respect to the time and manner in which it is to be served.” Heronemus, 294 Kan. at 935.
May's claim that his sentences are illegal is predicated on a Kansas statute. K.S.A. 21–4606(b) sets out seven factors which “shall be considered by the court in fixing the minimum term of imprisonment” for crimes—like Mays'—which were committed prior to July 1, 1993. May claims that because the sentencing court did not specifically state that it considered these statutory factors, his sentencing was illegal because the court lost jurisdiction to impose the sentences.
May candidly acknowledges that in State v. Rojas, 280 Kan. 931, 933, 127 P.3d 247 (2006), our Supreme Court held that “a sentencing court's failure to make findings pursuant to K.S.A. 21–4606(b) did not render the sentence an ‘illegal sentence’ under K .S.A. 22–3504.” May attempts to distinguish Rojas based on jurisdictional and statutory arguments, but as stated earlier, an illegal sentence includes sentences imposed by a court without jurisdiction or which do not conform to statutory provisions. May cites no Kansas precedent distinguishing Rojas on either of these grounds, and we are unaware of any such cases. We hold, consistent with Rojas, that the district court did not impose an illegal sentence under K.S.A. 22–3504 when it did not specifically state on the record that it had considered the statutory factors listed in K.S.A. 21–4606(b). See State v. Ottinger, 46 Kan.App.2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. –––– (May 4, 2012) (binding nature of Supreme Court precedent).
Next, May argues that his appellate counsel on his first motion to correct illegal sentence was ineffective. May bases his argument on counsel's failure to raise the K.S.A. 21–4606(b) issue just analyzed. We see no merit in the argument, but in any event, we will not consider it because his raised for the first time on appeal. See Trotter v. State, 288 Kan. 112, Syl. ¶ 10, 200 P.3d 1236 (2009).
May also argues that he was “prejudiced and denied fair treatment required by Due Process” because the district court did not appoint defense counsel after the prosecutor had filed a written response to May's third motion to correct illegal sentences. We do not know how the State could have responded to May's motion other than through legal counsel. May generally cites State v. Taylor, 266 Kan. 967, 975, 975 P.2d 1196 (1999), in support of his contention, but the right to defense counsel occurs at a hearing where the State is represented by a prosecutor. In the present case, May's motion was summarily denied and no hearing was held by the district court on May's motion. May has not shown undue prejudice or a due process violation.
Finally, in his pro se brief, May raises two more arguments. First, he claims the district court erroneously dismissed his motion which alleged that the Kansas Department of Corrections improperly calculated his parole and conditional release dates. But the sentencing court lacked jurisdiction over May's arguments concerning his parole and conditional release dates, and these were properly dismissed. See State v. Golston, 269 Kan. 345, 7 P.3d 1132 (2000); Safarik v. Bruce, 20 Kan.App.2d 61, 883 P.2d 1211,rev. denied 256 Kan. 996 (1994).
Second, May contends the sentencing court misapplied K.S.A. 21–4618, which imposed a mandatory minimum sentence for certain crimes committed with a firearm prior to July 1, 1993. This issue is subject to our unlimited review. See State v. Dale, 293 Kan. 660, 662, 267 P.3d 743 (2011).
May contends the sentencing court could impose no more than the mandatory minimum sentence, but the statute required a sentence “not less than the minimum sentence.” K.S.A. 21–4618(a). Way received a minimum sentence of 10 years for Count 1, aggravated robbery with a firearm, which was not less than the minimum sentence of 5 years for that crime. See K.S.A. 21–3427 (Ensley 1981); K.S.A. 21–4501(b) (Ensley 1981). In short, May's sentence did not violate K.S.A. 21–4618(a).
Affirmed.