Opinion
No. 105,018.
2012-07-27
STATE of Kansas, Appellee, v. Gerry A. BURDEN, Appellant.
Appeal from Sedgwick District Court; Warren M. Wilbert, Judge. Michael P. Whalen, of Law Office of Michael P. Whalen, 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; Warren M. Wilbert, Judge.
Michael P. Whalen, of Law Office of Michael P. Whalen, for appellant. Julie A. Koon, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before BRUNS, P.J., MARQUARDT and HILL, JJ.
MEMORANDUM OPINION
PER CURIAM:
Gerry Burden asks us to overturn the district court's summary denial of his second motion to correct an illegal sentence. We are not convinced and affirm the ruling of the district court because a motion to correct an illegal sentence cannot be used to collaterally attack a prisoner's conviction, which is what Burden tried to do here.
The procedural history is important here.
Burden was convicted of aggravated kidnapping and other serious felonies in 2000. The Supreme Court affirmed Burden's convictions in 2003. See State v. Burden, 275 Kan. 934, 69 P.3d 1120 (2003). Then, in 2009, Burden filed a pro se motion to correct illegal sentence under K.S.A. 22–3504, claiming the upward departure sentencing scheme was unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). The district court summarily denied Burden's motion, finding that Burden received a presumptive sentence with no upward departure.
Then, in 2010, Burden filed a second pro se motion to correct illegal sentence under K.S.A. 22–3504. Burden argued his sentence was illegal because the trial court should have given the jury an instruction on the lesser-included offense of domestic battery, his conviction was based on hearsay testimony, and the remedy in Carmichael v. State, 255 Kan. 10, 19, 872 P.2d 240 (1994), was applicable because the evidence at trial supported a conviction for the specific crime of domestic battery, not the general crime of rape. The district court summarily denied Burden's motion on April 19, 2010, finding that Burden had challenged his conviction, not an illegal sentence, and that Burden had not raised any new substantial issue of fact or law that warranted relief. Burden then filed a pro se motion to alter or amend judgment on May 4, 2010, asking the district court to reconsider its order denying his motion to correct illegal sentence. The district court denied Burden's motion, finding that Burden had not alleged any new legal basis for relief that the court had not already ruled on.
Burden now appeals the district court's denial of his second motion to correct illegal sentence.
We find no error in the ruling of the district court.
To us, Burden argues the district court should have construed his motion as a K.S.A. 60–1507 motion and held an evidentiary hearing to determine the issues he raised in his motion. We note that Burden's motion did not urge the district court to construe his motion as a motion under K.S.A. 60–1507, he only does so in this appeal.
Basically, in the district court, Burden sought relief from an illegal sentence. Under K.S.A. 22–3504(1), “[t]he court may correct an illegal sentence at any time.” Kansas courts have defined an illegal sentence as “a sentence imposed by a court without jurisdiction; a sentence that does not conform to the statutory provision, either in the character or the term of the punishment authorized; or a sentence that is ambiguous with respect to the time and manner in which it is to be served. [Citation omitted.]” State v. Gracey, 288 Kan. 252, 261, 200 P.3d 1275 (2009). The concept of “illegal sentence” is interpreted narrowly. State v. Gayden, 281 Kan. 290, 293, 130 P.3d 108 (2006).
Whether a sentence is illegal within the meaning of K.S.A. 22–3504 is a question of law over which the appellate court has unlimited review. Gracey, 288 Kan. at 261. Here, however, the relevant issue is whether the district court erred in summarily denying Burden's motion. Whether Burden's motion was brought under K.S.A. 22–3504 or K.S.A. 60–1507, both motions are treated similarly for purposes of review. See State v. Davis, 271 Kan. 892, 894, 26 P.3d 681 (2001). The district court may summarily deny either motion after a preliminary examination if it determines no substantial questions of law or fact are raised. The decision whether to grant an evidentiary hearing is subject to an abuse of discretion standard on appeal. 271 Kan. at 894. The weight of proving an abuse of discretion is on Burden. See State v. Moses, 280 Kan. 939, 945, 127 P.3d 330 (2006).
The district court's summary denial of Burden's motion appears proper. Burden did not use his motion to correct illegal sentence to seek a correction of his sentence; instead, he merely sought to collaterally attack his convictions. Although courts liberally construe pro se pleadings, State v. Kelly, 291 Kan. 563, 565, 244 P.3d 639 (2010), there is simply nothing in Burden's motion to suggest he wished to challenge the effectiveness of any of his prior counsels' conduct.
Burden's motion asserted that the district court lacked jurisdiction to impose his sentences because he “would show the Court that convictions in this case were obtained in violation of the laws of Kansas....” Burden's motion complained that hearsay evidence was used to convict him, the evidence regarding his relationship with the victim supported charges of domestic battery, not rape, and the trial court omitted a lesser-included jury instruction. Burden's claims are not within the limited definition of illegal sentence for K.S.A. 22–3504 purposes. K.S.A. 22–3504 is not a vehicle for a collateral attack on a conviction. State v. Williams, 283 Kan. 492, 495–96, 153 P.3d 520 (2007). Claims that the trial court erroneously instructed the jury involve trial errors, not sentencing errors. Trial errors do not deprive the court of jurisdiction and, therefore, do not support a claim that a sentence is illegal. State v. Brown, 280 Kan. 898, 901–02, 127 P.3d 257 (2006).
If this motion is construed as Burden asks, it would be his third K.S.A. 60–1507 motion.
Burden filed his first K.S.A. 60–1507 motion in 2004 and attacked his convictions as unconstitutional. See Burden v. State, No. 103,911, 2011 WL 1196924, at *1 (Kan.App.) (unpublished opinion), rev. denied 293 Kan. –––– (2011). A panel of this court affirmed the district court's detailed findings denying Burden relief. Burden v. State, No. 95,101, 2006 WL 2716073, at *1 (Kan .App.) (unpublished opinion), rev. denied 282 Kan. 788 (2006). In July 2009, Burden's second K.S.A. 60–1507 motion alleged errors by both his trial counsel and direct appeal counsel, as well as incompetent handling of his first 60–1507 motion. On March 25, 2011, another panel of this court affirmed the district court's summary dismissal of Burden's successive motion, finding that Burden did not demonstrate exceptional circumstances warranting a second motion or facts excusing his untimely motion filed nearly 3 years after this court denied him relief on the first 60–1507 motion. Burden, 2011 WL 1196924, at *2.
Therefore, given that on February 11, 2010, Burden appealed the district court's denial of his second K.S.A. 60–1507 motion, if we consider this to be a similar motion, that would mean Burden filed a third K.S.A. 60–1507 motion on March 11, 2010, before the outcome of the appeal of his second K.S.A. 60–1507 motion. That would be an abuse of remedy.
Burden does not assert exceptional circumstances or a change in the material law that would excuse his failure to raise these issues on direct appeal or warrant a third K.S.A. 60–1507 motion. Burden would have known the circumstances supporting all of the alleged trial errors at the time of his direct appeal and his first and subsequent K.S.A. 60–1507 motion. In short, Burden should have asserted his complaints of trial errors in his direct appeal. When Burden pursued his direct appeal from his conviction and subsequent sentence, the final judgment of the Kansas Supreme Court was res judicata as to all issues actually raised. Issues that could have been raised are deemed waived. See Drach v. Bruce, 281 Kan. 1058, 1079, 136 P.3d 390 (2006), cert. denied549 U.S. 1278 (2007). Thus, the district court did not abuse its discretion in summarily denying Burden's motion.
We affirm the district court's ruling.