Opinion
111,530.
04-17-2015
STATE of Kansas, Appellee, v. William Daniel DILLON, Appellant.
Joseph A. Desch, of Law Office of Joseph A. Desch, of Topeka, for appellant. Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Joseph A. Desch, of Law Office of Joseph A. Desch, of Topeka, for appellant.
Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Before HILL, P.J., GREEN and LEBEN, JJ.
MEMORANDUM OPINION
PER CURIAM.
William Daniel Dillon appeals the trial court's judgment denying his motion to correct an illegal sentence. On appeal, Dillon contends that the trial court erred in denying his motion to correct an illegal sentence in two ways. First, Dillon argues that the trial court incorrectly sentenced him under the 2007 amendments to the Kansas Offender Registration Act (KORA), K.S.A. 22–4901 et seq. , instead of under the 1999 amendments of KORA, K.S.A.1999 Supp. 22–4901 et seq. Second, Dillon argues that the 2007 amendments to KORA are unconstitutional and therefore his sentence under the 2007 KORA amendments is illegal. Finding no merit in Dillon's contentions, we affirm.
In 1999, the State charged Dillon with one count of aggravated indecent liberties with a child, a severity level 3 person felony. Dillon ultimately pled guilty to a reduced charge of attempted aggravated indecent solicitation of a child, a severity level 8 person felony, and was sentenced to 30 months' imprisonment. As a result of his conviction, Dillon was also required to register as a sex offender.
When Dillon was released from prison in 2003, he completed his initial KORA registration. Dillon completed his required offender registration from the date he was released from prison until February 2008. Under K.S.A. 22–4904(c), Dillon was required to report “once during the month of the [his] birthday and every four months thereafter.” Dillon was born in February; thus, under K.S.A. 22–4904(c), he was required to register in February, June, and October of each year. In June 2008, however, Dillon failed to update his registration information. Moreover, Dillon moved from Topeka to Lawrence without informing the police about his change of address as required under K.S.A. 22–4904(b).
In October 2008, the State charged Dillon with one count of violation of the offender registration act for failure to register under K.S.A. 22–4904(c), a severity level 5 person felony, or in the alternative, one count of violation of the offender registration act for failure to inform police of his change of address under K.S.A. 22–4904(b). The State and Dillon entered into a plea agreement, where the State agreed to dismiss the alternative count if Dillon pled to the first count. The State further agreed not to file additional KORA violation charges, recommend the mitigated presumptive sentence, and allow Dillon to move for a departure. At the plea hearing, Dillon pled no contest, and the trial judge found Dillon guilty of one count of violation of K.S.A. 22–4904(c).
Before the sentencing hearing, Dillon filed a durational and a dispositional departure motion. In the motion, Dillon argued that he had accepted responsibility for his actions by pleading no contest. Dillon also argued that the sentence he faced was disproportionate to the crime he had committed. Although at the plea hearing Dillon believed his criminal history score was E and he would serve anywhere from 46 to 51 months, the presentence investigation report revealed that Dillon's criminal history score was B. This meant that Dillon would serve 114 to 126 months in prison for his KORA violation. At the sentencing hearing, the trial judge denied Dillon's departure motion and sentenced him to the mitigated sentence of 114 months' imprisonment.
Dillon then filed a direct appeal to this court. This court held that it had jurisdiction to review Dillon's sentence. Moreover, this court held that the trial court had violated Dillon's due process rights by not considering whether the minimum presumptive guideline sentence was proportionate to the severity of the crime Dillon had committed and to Dillon's criminal history. State v. Dillon, 44 Kan.App.2d 1138, 244 P.3d 680 (2010). Based on State v. Huerta, 291 Kan. 831, 839, 247 P.3d 1043 (2011), which found that this court court had “substantially overread” its decision in State v. Johnson, 286 Kan. 824, 190 P.3d 207 (2008), in determining that there was jurisdiction to consider Dillon's presumptive sentence. In Dillon, our Supreme Court summarily reversed and remanded. On remand, this court dismissed for lack of jurisdiction. State v. Dillon, 45 Kan.App.2d 1075, 1075–76, 253 P.3d 383 (2011), rev. denied 293 Kan. 1109 (2012). (Dillon II ).
On January 18, 2013, Dillon filed a pro se “Motion for a Sentence Reduction and to Correct Sentence.” In this motion, it seemed that Dillon argued that his sentence for a KORA violation under K.S.A. 22–4904(c), a severity level 5 person felony, under K.S .A. 22–4903, was now an illegal sentence because the 2011 amendments of KORA made this same crime a severity level 6 person felony. See K .S.A.2014 Supp. 22–4903(c)(1)(A). Dillon asked the trial court to correct his illegal sentence because KORA applies retroactively and K.S.A. 22–3504(1) allows the court to correct an illegal sentence at anytime. Neither the State nor the trial court took any action regarding Dillon's original motion. On September 9, 2013, Dillon filed a pro se motion entitled “Motion to Correct an Illegal Sentence pursuant to K.S.A. 22–3504.” In this motion, Dillon argued that he was not adequately charged in the attempted aggravated indecent solicitation of a child case, that his sentence violated the Ex Post Facto Clause of the United States Constitution, and that his sentence violated Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).
The State responded, arguing that Dillon was procedurally barred from making those motions because a motion to correct an illegal sentence could not be used to challenge an underlying conviction. Moreover, the State argued that even if Dillon was not procedurally barred, his arguments would fail on the merits. Dillon then filed a pro se response to the State's response.
In February 2014, the trial court appointed counsel to represent Dillon. On March 5, 2014, the trial court held a nonevidentiary hearing on Dillon's second motion to correct an illegal sentence. The trial judge denied the motion. In denying Dillon's motion, the trial court determined that it had jurisdiction to impose Dillon's sentence, Dillon's sentence was authorized by the guidelines, and that the punishment the court imposed was unambiguous. The trial judge further held that it did not have jurisdiction to address Dillon's collateral constitutional challenges regarding his attempted aggravated indecent solicitation of a child conviction.
Did the Trial Court Err In Denying Dillon's Motion to Correct an Illegal Sentence?
On appeal, Dillon makes two arguments why the trial court erred in denying his motion to correct an illegal sentence. First, Dillon asserts that he should have been sentenced under the 1999 KORA amendments not the 2007 KORA amendments because his sentence under the 2007 KORA violates the Ex Post Facto Clause of the United States Constitution. Second, Dillon asserts that his sentence is illegal because the 2007 KORA amendments are unconstitutional. Additionally, Dillon argues that this court should consider his “pro se filing as a hybrid motion under K.S.A. 60–1507 and K.S.A. 22–3504,” even though he had filed his motions below as a motion to correct illegal sentence under K.S.A. 22–3504. As discussed below, however, Dillon's arguments fail under both K.S.A. 22–3504 and K.S.A. 60–1507.
Ex Post Facto Argument
First, Dillon maintains that the trial court erred in denying his motion to correct an illegal sentence because the 1999 KORA, not the 2007 KORA, was the applicable sentencing law in his case. Although Dillon does not explicitly state that his sentence under the 2007 KORA amendments violates the Ex Post Facto Clause, the substance of his argument is that KORA is penal. As a result, he contends that the 2007 KORA amendments cannot retroactively apply to him. Dillon supports his argument with conclusory statements that the language in the 2007 KORA amendments demonstrates that it is penal and must be applied prospectively. Nevertheless, Dillon's argument is invalid both under K.S.A. 22–3504 and K.S.A. 60–1507.
K.S.A. 22–3504(1) states that a “court may correct an illegal sentence at anytime.” “An illegal sentence is: (1) a sentence imposed by a court without jurisdiction; (2) a sentence that does not conform to the applicable statutory provision, either in character or term of authorized punishment; or (3) a sentence that is ambiguous with respect to the time and manner in which it is to be served.” State v. Lewis, 299 Kan. 828, 858, 326 P.3d 387 (2014) (citing State v. Taylor, 299 Kan. 5, 8, 319 P.3d 1256 [2014] ). “Whether a sentence is illegal is a question of law subject to de novo review.” Lewis, 299 Kan. at 858 (citing Taylor, 299 Kan. at 8 ). Additionally, whether this court has jurisdiction is a question of law subject to de novo review. State v. Charles, 298 Kan. 993, 1002, 318 P.3d 997 (2014).
A trial court only has jurisdiction to address an illegal sentence if the sentence is an illegal sentence. Consequently, if a trial court does not have jurisdiction, an appellate court does not have jurisdiction on appeal. State v. McCoin, 278 Kan. 465, 468, 101 P.3d 1204 (2004). Here, the trial court had jurisdiction to sentence Dillon because Dillon pled no contest to violating one count of the offender registration act under K.S.A. 22–4904(c). Dillon was given a presumptive sentence for someone convicted of a severity level 5 person felony with a criminal history score of B. Moreover, Dillon's sentence was not ambiguous. The time and manner of Dillon's sentence was clear as he was sentenced to serve 114 months in the custody of the Kansas Department of Corrections. In denying Dillon's motion, the trial court explained that it could not grant Dillon's motion for those exact reasons. Because Dillon's sentence was not an illegal sentence under K.S.A. 22–3504, the trial court properly denied his motion. As a result, this court does not have jurisdiction to address Dillon's sentence.
Moreover, this court lacks jurisdiction on other grounds. In State v. Mitchell, 284 Kan. 374, 377, 162 P.3d 18 (2007), our Supreme Court held that the trial court correctly dismissed Mitchell's motion to correct illegal sentence for lack of jurisdiction because “the definition of an illegal sentence does not include a claim that the sentence violates a constitutional provision.” Thus, the Mitchell court held that a defendant could not challenge a sentence on constitutional grounds under K.S.A. 22–3504 because the definition of illegal sentence does not encompass constitutional challenges. 284 Kan. at 377. As a result, Dillon's constitutional ex post facto argument in his motion to correct an illegal sentence under K.S.A. 22–3504 is not properly before this court on appeal.
Turning to Dillon's K.S.A. 60–1507 argument, we note that Dillon contends that this court should construe his motions to correct an illegal sentence as hybrid K.S.A. 60–1507 and K.S.A. 22–3504 motions. Dillon asserts that this court should make this finding because the trial court “made the explicit finding that [his] subsequent filing related back to the initial filings on January 18, 2013, and was timely filed.” While it is true that the trial court stated that Dillon's motions to correct an illegal sentence were timely because his first motion was made within 1 year of our Supreme Court denying review of Dillon II, the trial court denied his motion using the K.S.A. 22–3504 standards not the K.S.A. 60–1507 standards. Moreover, it is worth mentioning that except for a single paragraph in his first motion noting that our Supreme Court may construe a motion to correct illegal sentence as a motion challenging a sentence under K.S.A. 60–1507, Dillon relied exclusively on K.S.A. 22–3504 to support his motions below.
Yet, “[p]ro se pleadings are liberally construed, giving effect to the pleading's content rather than the labels and forms used to articulate the arguments.” State v. Gilbert, 299 Kan. 797, Syl. ¶ 4, 326 P.3d 1060 (2014). Moreover, “[a] defendant's failure to cite the correct statutory grounds for a claim is immaterial.” 299 Kan. 797, Syl. 4. In the past, this court and our Supreme Court have construed motions to correct an illegal sentence under K.S.A. 22–3504 to be a motion challenging a sentence under K.S.A. 60–1507. Accord State v. Swisher, 281 Kan. 447, 449, 132 P.3d 1274 (2006) ; see State v. Singleton, 33 Kan.App.2d 478, 479–80, 104 P.3d 424 (2005) ; Love v. State, 280 Kan. 553, 557, 124 P.3d 32 (2005) ; In Singleton, this court construed Singleton's motion as a K.S.A. 60–1507 motion “despite the fact that no such language was present in the original motion.” 33 Kan.App.2d at 479. Thus, this court may construe Dillon's motion as a motion challenging his sentence under K.S.A. 60–1507.
All the same, Dillon's argument that his sentence under the 2007 KORA amendments violates the Ex Post Facto Clause fails even if this court construes his motion as a motion challenging his sentence under K.S.A. 60–1507. Under K.S.A. 60–1507, a defendant is entitled to relief if the court finds by a preponderance of the evidence that
“the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or is otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack.” K.S.A. 60–1507(b).
See Supreme Court Rule 183(g) (2014 Kan. Ct. R. Annot. 285).
An action under K.S.A. 60–1507, however, must be brought within 1 year of “[t]he final order of the last appellate court in this state to exercise jurisdiction on a direct appeal or the termination of such appellate jurisdiction.” K.S.A. 60–1507(f)(1)(i). An appellate court will review the trial court's denial of a K.S.A. 60–1507 motion following a preliminary hearing to determine if the trial court's factual findings are supported by substantial competent evidence and are sufficient to support its legal conclusions regarding the movant's right to relief under K.S.A. 60–1507(b). Holmes v. State, 292 Kan. 271, 274, 252 P.3d 573 (2011).
Under K.S.A. 60–1507, Dillon's arguments fail for two reasons. First, although Dillon's first motion to correct an illegal sentence was timely under K.S.A. 60–1507(f)(1)(i), his second motion to correct an illegal sentence was not. This is because it was filed in September 2013, 20 months after our Supreme Court denied Dillon's petition for review from Dillon II. Thus, for Dillon's second motion to be timely under K.S.A. 60–1507(f)(1)(i) it must relate back to his first motion. An untimely motion relates back to a timely motion if it arises “ ‘out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading.’ “ Thompson v. State, 293 Kan. 704, 714, 270 P.3d 1089 (2011).
In this case, however, Dillon's argument in his first motion completely contradicts the ex post facto argument that he raises in his second motion and on appeal. Again, in his first and timely motion to correct an illegal sentence, Dillon argued that the trial court should have retroactively applied the 2011 KORA amendments to him. Yet, in his second and untimely motion, Dillon argued that the trial court's retroactive application of the 2007 KORA amendments made his sentence illegal by violating the Ex Post Facto Clause. While it is true that both arguments challenged the legality of his sentence, the arguments are totally distinct. Thus, despite the trial judge's ruling, Dillon's second motion, in regards to his ex post facto argument, does not relate back to his first motion.
Second, Dillon cannot establish that his sentence was not authorized by law or otherwise open for collateral attack as required by K.S.A. 60–1507. Again, Dillon argues that his sentence violates the Ex Post Facto Clause. He bases his argument on his assertion that KORA is penal and that it is an ex post facto violation for him to be sentenced under the 2007 KORA amendments when he was originally required to register under the 1999 KORA amendments. Regarding Dillon's assertion that the 2007 KORA amendments are penal, our Supreme Court in State v. Myers, 260 Kan. 669, 671, 923 P.2d 1024 (1996), cert. denied 521 U.S. 1118 (1997), held that the Kansas Sex Offender Registration Act registration requirements were remedial and constitutional. Furthermore, in Smith v. Doe, 538 U.S. 84, 105–06, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003), the United States Supreme Court held that Alaska's sex offender registration act was not penal and did not violate the Ex Post Facto Clause.
Regarding Dillon's specific argument that he should have been sentenced under the 1999 version of KORA, our Supreme Court has held that the date a defendant violated KORA, not the date of the defendant's conviction requiring KORA registration, controls in determining whether an Ex Post Facto violation exists. See State v.. Cook, 286 Kan. 766, 774–76, 187 P.3d 1283 (2008) ; State v. Amburst, 274 Kan. 1089, 1091, 59 P.3d 1000 (2002). A statute violates the Ex Post Facto Clause of the United States Constitution only if the statute increases the punishment for a crime after its commission. Ambrust, 274 Kan. at 1091. Dillon violated K.S.A. 22–4904(c) in June 2008 and was sentenced under the 2007 KORA amendments which were in effect at the time of his violation. As a result, he was sentenced under the proper statute and his sentence cannot violate the Ex Post Facto Clause. Absent some indication that our Supreme Court is departing from its position, this court is duty bound to follow our Supreme Court precedent. State v. Ottinger, 46 Kan.App.2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. 946 (2012). Accordingly, Dillon cannot establish that his sentence was illegal even under K.S.A. 60–1507 because his sentence did not violate the Ex Post Facto Clause.
Constitutionality of 2007 KORA Amendments
Dillon contends that the trial court's application of K.S.A. 22–4901 et seq. was unconstitutional. In this section of his brief, Dillon does not suggest that the trial court misapplied the statute during sentencing, but that the entirety of the 2007 KORA is unconstitutional. To support his argument, Dillon alleges that the 2007 KORA violates his procedural due process rights, substantive due process rights, interstate travel rights, and equal protection rights.
As the State correctly asserts in its brief, Dillon raises these issues for the first time on appeal. Dillon never raised these issues in his original motion to correct an illegal sentence, his second motion to correct illegal sentence, his response to the State's response motion, or at the motion hearing. Consequently, the State contends that Dillon did not properly preserve this issue for review.
Under K.S.A. 22–3504, an appellate court may correct an illegal sentence sua sponte. State v. Rogers, 297 Kan. 83, 93, 298 P.3d 325 (2013). Nevertheless, Dillon's argument that the 2007 KORA amendments are unconstitutional fails for the same reasons that his ex post facto argument fails. Again, Dillon's sentence was not illegal under K.S.A. 22–3504 because the trial court had jurisdiction to sentence him; he received a presumptive sentence for his conviction and criminal history score; and his sentence was not ambiguous. Accordingly, this court is without jurisdiction to consider this argument because this court only has jurisdiction to address a sentence under K.S.A. 22–3504 if it is illegal. McCoin, 278 Kan. at 468. Furthermore, his argument that the 2007 KORA amendments are unconstitutional is a constitutional argument not properly before this court under K.S.A. 22–3504. Mitchell, 284 Kan. 374.
Moreover, Dillon is barred from arguing that the 2007 KORA amendments are unconstitutional under K.S.A. 60–1507. As stated earlier, K.S.A. 60–1507(f)(1)(i) requires that a defendant bring an action under K.S.A. 60–1507 within 1 year of “[t]he final order of the last appellate court in this state to exercise jurisdiction on a direct appeal or the termination of such appellate jurisdiction.” Our Supreme Court denied Dillon's petition for review in Dillon II on January 20, 2012, meaning Dillon would have needed to file his 60–1507 motion within 1 year of that date. Because Dillon never argued that the 2007 amendments to KORA violated his procedural due process rights, substantive due process rights, interstate travel rights, or equal protections rights below, it is obvious that Dillon did not raise these arguments within the 1–year–time limitation in K .S.A. 60–1507(f)(1)(i). As a result, Dillon is procedurally barred from raising this issue on appeal.
Affirmed.