Opinion
Editorial Note:
This case does not have precedential value under Kansas supreme court rule 7.04 (f) and may only be cited as persuasive authority on a material issue not addressed by a published Kansas appellate court decision.
Appeal from Wyandotte District Court; R. Wayne Lampson, Judge.
Michael J. Bartee, of Michael J. Bartee, P.A., of Olathe, was on the brief for appellant.
Michael A. Russell, chief deputy district attorney, Jerome A. Gorman, district attorney, and Steve Six, attorney general, were on the brief for appellee.
OPINION
ROSEN, J.:
Michael A. Brown appeals the summary denial of his motion to correct an illegal sentence pursuant to K.S.A. 22-3504.
On December 24, 1998, Brown was charged with one count of aggravated battery. On May 25, 1999, the State filed an amended information charging Brown with first-degree murder and aggravated robbery. On July 15, 1999, a jury found Brown guilty of first-degree murder and acquitted him of aggravated robbery. On August 13, 1999, Brown was sentenced to life without eligibility for parole for 40 years. Brown pursued a direct appeal to this court, in which the court affirmed his conviction and sentence. State v. Brown, 272 Kan. 809, 37 P.3d 31 (2001). In July 2002, Brown filed a motion pursuant to K.S.A. 60-1507 alleging ineffective assistance of trial counsel, which was summarily denied by the trial court. The Court of Appeals affirmed the trial court's summary denial. Brown v. State, No. 90,900, unpublished opinion filed November 24.2004, rev. denied 279 Kan. 1005 (2005).
On August 2, 2005, Brown filed a pro se motion for correction of an illegal sentence pursuant to K.S.A. 22-3504. In January 2006, the motion was denied by the late Judge Cordell Meeks. There is no journal entry of this initial denial, apparently due to the intervening death of Judge Meeks on June 28, 2006. On August 7, 2006, Brown filed a notice of appeal and motion for appointment of appellate counsel. On December 8, 2008, this court issued a show cause order regarding the timeliness of this appeal. This court retained jurisdiction while the case was remanded to the trial court for the purpose of formally entering a judgment on the motion. On February 24, 2009, the trial court filed a formal journal entry denying Brown's motion to correct illegal sentence. On April 9, 2009, this court ordered that the appeal proceed.
DISCUSSION
" The question whether a sentence is illegal is a question of law over which this court has unlimited review." State v. Nash, 281 Kan. 600, 601, 133 P.3d 836 (2006).
Brown claims that his sentence is illegal because the amended information erroneously included the words " unlawfully" and " feloniously," which are not elements of first-degree murder pursuant to K.S.A. 21-3401. Further, Brown claims the jury instructions erroneously omitted these additional " elements." Finally, Brown claims that prior counsel was ineffective for failing to raise these issues.
The State points out that this court has consistently held that a motion pursuant to K.S.A. 22-3504 cannot be used to address a defendant's claim that the complaint was defective. State v. Deal, 286 Kan. 528, 530, 186 P.3d 735 (2008); State v. Hoge, 283 Kan. 219, 225-26, 150 P.3d 905 (2007); State v. Nash, 281 Kan. at 602, 133 P.3d 836.
In Deal, the defendant's argument was all but identical to Brown's arguments in this case. Deal challenged " the inclusion of the words ‘ unlawfully,’ ‘ feloniously,’ and ‘ by suffocation, drowning and/or strangulation’ " in the complaint charging first-degree murder. Deal, 286 Kan. at 529, 186 P.3d 735. Deal further argued that the jury instructions were erroneous because the instructions failed to include the complaint's additional " elements" and that trial counsel was ineffective for failing to object on these grounds. The trial court denied Deal's motion, finding " that the complaint ‘ was a plain and concise written statement of the essential facts constituting the crime charged following the language of the statute and was legally sufficient" ‘ and that the other arguments had been addressed in a previous K.S.A. 60-1507 motion. Deal, 286 Kan. at 529, 186 P.3d 735. This court ultimately concluded that the trial court reached the right result, albeit for the wrong reason. Deal, 286 Kan. at 530-31, 186 P.3d 735.
As in Deal, the trial court's summary denial of Brown's motion to correct an illegal sentence pursuant to K.S.A. 22-3504 was the proper result for the wrong reason. A motion to correct an illegal sentence cannot be used to collaterally attack the conviction. The trial court should have summarily denied Brown's motion on the basis that the relief sought is not available under K.S.A. 22-3504; however, when the trial court reaches the right result, albeit for the wrong reason, it will not be reversed.
Affirmed.