Opinion
No. 107,663.
2013-02-8
Kenneth LANE, Appellant, v. STATE of Kansas, Appellee.
Appeal from Sedgwick District Court; Anthony J. Powell, Judge. Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellant. Julie A. Koon, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Anthony J. Powell, Judge.
Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellant. Julie A. Koon, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before ATCHESON, P.J., PIERRON, J., and LARSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Kenneth Lane appeals the dismissal of his motion, made under K.SA. 60–1507, challenging the sentence he received on a plea to a charge of aggravated battery. The Sedgwick County District Court judge assigned the motion dismissed it as successive and untimely. We affirm without considering timeliness. Lane's motion plainly asserts a claim he has already raised and lost. And a review of the record on appeal also shows the claim to be without substantive merit.
On December 18, 2003, Lane pled guilty to one count of aggravated battery, a severity level 4 person felony, in violation of K.S.A. 21–3414, with a recommendation from the State for a dispositional departure to probation. The district court records establish the plea was entered that morning. A “minutes report” indicates the plea hearing was held at 10:27 a.m., consistent with a separate docket entry showing the case set for a bench trial that morning and resolved through a plea. Both the written plea agreement and the transcript of the plea hearing show that Lane was pleading to a severity level 4 crime. For reasons that are not entirely clear from the record, the assistant district attorney assigned to the case filed an amended information that afternoon charging Lane with a severity level 7 aggravated battery under K.S.A. 21–3414. The amended information was stamped as filed at 3:19 p.m. on December 18, 2003. The aggravated battery statute defined the offense in various ways, some of which had different severity levels and, in turn, carried different punishments under the sentencing guidelines.
On January 27, 2004, Lane was sentenced for a severity level 4 aggravated battery. The district court imposed a guideline sentence of 154 months and followed the plea agreement by placing Lane on probation for 36 months. Lane did not question the charged offense at either the plea hearing or the sentencing.
On February 4, 2004, the assistant district attorney filed a motion to withdraw the amended information that had been filed the afternoon of December 18, 2004. The motion stated that the amended information resulted from “a mental lapsed [ sic ] on the part of the prosecutor.” A bench note in the court record shows the motion was heard and granted on February 13, 2004, with counsel for both the State and Lane present.
About 13 months later, the district court revoked Lane's probation and ordered he serve a reduced sentence of 144 months.
In late November 2006, Lane filed a motion to correct an illegal sentence arguing, among other things, that he actually pled to the amended information and should have been sentenced for a severity level 7 aggravated battery rather than a severity level 4 aggravated battery. The district court denied the motion. Lane filed a notice of appeal from that ruling but never perfected the appeal.
In January 2008, Lane filed a motion to withdraw his plea in which he argued his trial counsel was ineffective and coerced him into pleading, there was no factual basis for the plea, and he was not fully informed about the charged crime and the plea. The district court denied that motion. Lane again appealed but dismissed that appeal.
In August 2008, Lane filed a 60–1507 motion challenging his conviction and sentence on grounds substantially similar to those raised in his 2008 motion to withdraw his plea. The district court appointed counsel for Lane and held a nonevidentiary hearing. The district court denied the motion as untimely and found the claims of ineffective assistance of counsel to have been adjudicated in Lane's earlier motion to withdraw his plea. Lane appealed that ruling, and this court affirmed in an unpublished opinion. Lane v. State, No. 102,314, unpublished opinion filed September 24, 2010 (Kan.App.2d).
On January 4, 2012, Lane filed his second motion under K.S.A. 60–1507 challenging his conviction on a number of grounds that largely replicated issues raised in his earlier 60–1507 motion or the other attacks he has made on his conviction and sentencing. The district court denied the motion as successive and untimely without appointing counsel for Lane or holding any hearing. Lane has appealed the dismissal of his second 60–1507 motion, and that is what we have before us.
The district court may summarily dismiss a 60–1507 motion after reviewing it and the contents of the case file. Bellamy v. State, 285 Kan. 346, 353, 172 P.3d 10 (2007). The motion should be dismissed without a hearing only if the allegations and the case records “conclusively show that the prisoner is entitled to no relief.” K.S.A. 60–1507(b); Supreme Court Rule 183(f) (2012 Kan. Ct. R. Annot. 274). If a district court dismisses a 60–1507 motion on the papers without a hearing, as happened here, the appellate courts review that determination anew and without any deference. 285 Kan. at 354.
On appeal, counsel for Lane argues that the district court lacked jurisdiction to accept a plea from Lane and then to sentence him for a severity level 4 aggravated battery because the amended information charged a severity level 7 aggravated battery. In part, Lane premises his argument on the notion the record is ambiguous as to whether the amended information was filed before or after he entered his plea on December 18, 2003. But the record establishes the plea came first. A docket entry shows the plea having been entered at a morning setting for a bench trial, and a clerk's report shows the plea hearing to have begun about 10:30 a.m. The amended information was not filed until after 3 p.m. So Lane's factual premise is wrong.
As we have noted, the plea agreement and the discussion at the plea hearing well establish that Lane was pleading as originally charged—to a severity level 4 aggravated battery—the benefit to him being the State's recommendation for a departure to probation. Upon his plea and the conclusion of the plea hearing, Lane had been convicted of a severity level 4 aggravated battery. The filing of the amended information later didn't change that circumstance. Lane would have had to move to set aside his plea and plead to the amended information. That never happened.
The Kansas Supreme Court has recognized that “a defendant cannot be sentenced for a crime for which he or she has not been convicted.” State v. McCarley, 287 Kan. 167, 176, 195 P.3d 230 (2008). So Lane could not have been sentenced for a severity level 7 aggravated battery any more than he could have been sentenced for an attempted first-degree murder had the assistant district attorney inadvertently filed an amended information upping the offense after the plea hearing.
We needn't plumb what effect the order granting the withdrawal of the amended information had on these proceedings. A good argument could be made that because the amended information was filed inadvertently in the first place and was withdrawn upon notice to defense counsel and a hearing, it never had any actual legal effect or that upon withdrawal any legal effect it might have had was vitiated. Nobody relied upon the amended information for anything until Lane tried to raise it when his probation went south and he was headed to prison. Nor do we need to speculate about the legal effect the amended information might have had if it were filed before Lane's plea hearing.
In short, Lane's argument on appeal fails on the merits. In addition, however, it is functionally duplicative of the argument Lane raised and lost in his 2006 motion to correct an illegal sentence. To that extent, the present 60–1507 motion is successive or precluded because Lane has already litigated and lost the issue. More broadly, this is Lane's second 60–1507 motion, and he has failed to show some exceptional circumstance for getting another shot at relief, especially given the breadth of the issues he had previously raised. See Wimbley v. State, 292 Kan. 796, Syl. ¶ 1, 275 P.3d 35 (2011). Lane certainly could have raised the issue in his first 60–1507 motion, since it reprises what he had argued in his earlier motion to correct an illegal sentence. He did not.
We find Lane's secondary argument that the district court made insufficient findings and conclusions to be unworthy of relief. We have not been impeded in reviewing the issues and deciding Lane's appeal. Even if the findings and conclusions were too abbreviated, there would be no point to remanding in this case.
The district court did not err.
Affirmed.