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State v. Harmon

Court of Appeals of Kansas.
Mar 8, 2013
296 P.3d 1139 (Kan. Ct. App. 2013)

Opinion

No. 107,399.

2013-03-8

STATE of Kansas, Appellee, v. Jerry L. HARMON, Appellant.

Appeal from Montgomery District Court; Frederick William CULLINS, Judge. Philip J. Bernhart, of Coffeyville, for appellant. David Maslen, assistant county attorney, and Derek Schmidt, attorney general, for appellee.


Appeal from Montgomery District Court; Frederick William CULLINS, Judge.
Philip J. Bernhart, of Coffeyville, for appellant. David Maslen, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., McANANY, J., and KNUDSON, S.J.

MEMORANDUM OPINION


PER CURIAM.

Jerry L. Harmon II pled no contest to felony possession of drug distribution paraphernalia and to no drug tax stamp. In exchange, the State dismissed the remaining charges against him. The district court found Harmon guilty. In February 2010, the court sentenced him to 20 months in prison for felony possession of drug distribution paraphernalia and a consecutive sentence of 6 months for having no drug tax stamp. Harmon did not pursue a direct appeal of his convictions or sentences.

A year later, Harmon moved to correct an illegal sentence. He claimed that the district court did not have jurisdiction to convict and sentence him for felony charges because the factual bases presented at the time of his plea, taken from the information and the probable cause affidavit, showed that he was guilty only of misdemeanors. He claimed the marijuana the police found weighed less than the 28 grams required for a tax stamp and the drug paraphernalia found was consistent with use and not with distribution. The district court denied relief and Harmon appeals.

Under K.S.A. 22–3504(1), a court may correct an illegal sentence at any time. An illegal sentence is (1) a sentence imposed by a court without jurisdiction; (2) a sentence that does not conform to the statutory provision, either in the character or the 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. LaBelle, 290 Kan. 529, 532, 231 P.3d 1065 (2010).

Whether a sentence is illegal within the meaning of K.S.A. 22–3504(1) is a question of law over which we have unlimited review. State v. Jones, 292 Kan. 910, 914, 257 P.3d 268 (2011), cert denied132 S.Ct. 1097 (2012). The applicability of K.S.A. 22–3504(1) is very narrow. State v. Gayden, 281 Kan. 290, 293, 130 P.3d 108 (2006). “[T]he statute may not be used as a vehicle to breathe new life into appellate issues previously abandoned or adversely determined.” State v. Johnson, 269 Kan. 594, 602, 7 P.3d 294 (2000).

The essence of Harmon's complaint is that the facts presented at his plea hearing did not charge him with a felony, but only a misdemeanor. Thus, the district court convicted him on insufficient evidence.

A motion to correct an illegal sentence cannot be used to challenge a conviction. See State v. Sims, 294 Kan. 821, 825, 280 P.3d 780 (2012). In these proceedings Harmon has mounted a collateral attack on his convictions based on the insufficiency of the evidence. He has not challenged the legality of his sentences under the standards described earlier in LaBelle. Thus, the district court did not err in denying relief on Harmon's motion.

Affirmed.


Summaries of

State v. Harmon

Court of Appeals of Kansas.
Mar 8, 2013
296 P.3d 1139 (Kan. Ct. App. 2013)
Case details for

State v. Harmon

Case Details

Full title:STATE of Kansas, Appellee, v. Jerry L. HARMON, Appellant.

Court:Court of Appeals of Kansas.

Date published: Mar 8, 2013

Citations

296 P.3d 1139 (Kan. Ct. App. 2013)