Opinion
111,734.
08-14-2015
STATE of Kansas, Appellee, v. Gary W. MILLER, Appellant.
Adam D. Stolte, of Kansas Appellate De fender Office, for appellant. Ellen Mitchell, county attorney, and Derek Schmidt, attorney general, for appellee.
Adam D. Stolte, of Kansas Appellate De fender Office, for appellant.
Ellen Mitchell, county attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., LEBEN, J., and HEBERT, S.J.
MEMORANDUM OPINION
PER CURIAM.
Gary W. Miller appe als from the district court's denial of his motion for postconviction relief. Miller filed his motion as one to correct an illegal sentence, but the district court construed the motion as an action under K.S.A. 60–1507 and determined that the motion was untimely filed and set forth no basis for relief. For the first time on appeal, Miller now argues that the district court erred by failing to construe his motion as a request to file an out-of-time appeal. In the alternative, Miller argues that the case should be remanded for resentencing under the identical offense doctrine.
For the reasons hereinafter set forth, we affirm the judgments of the district court.
Factual and Procedural Background
On February 11, 2011, Miller pled no contest to two counts of possession of ephedrine or precursor with intent for unlawful use, both of which were severity level 2 drug felonies. On March 29, 2011, the district court granted Miller's motion for a departure sentence and sentenced Miller to 36 months' probation with an underlying 108–month prison sentence. The district court ordered the sentence to run consecutive to a sentence in another Saline County case.
On October 17, 2012, the district court held a revocation hearing regarding Miller's probation. The district court revoked Miller's probation and ordered him to serve a modified sentence of 60 months' imprisonment.
On April 22, 2013, Miller filed a pro se motion to correct an illegal sentence pursuant to K.S.A. 21–3504(1). In the motion, Miller argued that his sentence was illegal because his conviction of the severity level 2 drug felony, possession of ephedrine as a precursor with intent to manufacture, was identical to the offense of possession of drug paraphernalia with intent to manufacture a controlled substance, which was only a severity level 4 drug felony. Miller argued that because the offenses were identical, he could only be sentenced under the one with a lesser penalty. Miller specifically argued that he was filing his motion to correct an illegal sentence to obtain relief under the Kansas Supreme Court's rulings in State v. Snellings, 294 Kan. 149, 273 P.3d 739 (2012), State v. Adams, 294 Kan. 171, 273 P.3d 718 (2012), and State v. Campbell, 279 Kan. 1, 106 P.3d 1129 (2005), and the Kansas Court of Appeal's ruling in State v. Frazier, 30 Kan.App.2d 398, 42 P.3d 188, rev. denied 274 Kan. 1115 (2002).
In the motion, Miller stated:
“The defendant also filed this motion requesting that the defendant should be allowed to file a direct appeal if the Court found that contention was correct, and further argues that under the applicable standards defendant['s] own conduct in not raising the issue at the time of sentencing and filing an appeal fell short of the requisite standard.”
(Emphasis added.)
Miller was appointed counsel who filed a second motion to correct illegal sentence on November 25, 2013, arguing only that the district court must correct Miller's sentence by imposing a sentence for a severity level 4 drug felony. On January 2, 2014, the State answered both motions. The State noted Miller admitted he had never filed a direct appeal but that he “seeks permission to file a direct appeal in his current motion if the Court denies him the sentencing relief he wants.” However, the State also noted Miller failed to allege any of the factors that allow an out-of-time appeal were present. Because Miller received a favorable plea agreement and failed to directly appeal his sentence, the State argued the district court should summarily deny Miller's petition.
On March 7, 2014, the district court held a preliminary hearing on Miller's motions. When the district court specifically asked Miller's counsel what type of motion he was proceeding on, counsel stated that Miller was only arguing this as a motion to correct an illegal sentence and Miller should be resentenced at severity level 4. The State pointed out that Miller had not requested to file an out-of-time appeal or alleged that any of the factors allowing one applied. Miller specifically argued again that his motion was not a K.S.A. 60–1507 motion but that his sentence was illegal and could be corrected at any time.
After the parties presented their arguments, the district court announced its ruling from the bench. The district court determined that despite Miller's argument he was requesting to correct an illegal sentence, he did not allege any of the illegal-sentence factors—that the district court did not have jurisdiction to sentence him, that his sentence did not conform to the relevant statutes at the time of sentencing, or that the term and character of his punishment was ambiguous. So, the district court denied his motion to correct an illegal sentence.
The district court also noted Miller's motion failed to allege any of the factors that would allow for consideration of an out-of-time appeal. The district court found that Miller had collaterally attacked his sentence, so the court treated it as a K.S .A. 60–1507 motion. The district court determined, however, that Miller's motion was untimely because he filed it more than 1 year after his sentence became final. Furthermore, the district court determined that it could not retroactively apply the caselaw that held the offense he was convicted of was identical to a severity level 4 drug felony, so Miller would not have been entitled to relief even if he had timely filed his motion.
On March 18, 2014, Miller filed a premature notice of appeal, which became timely on March 27, 2014, when the district court filed its journal entry memorializing its decision announced at the hearing. See Kansas Supreme Court Rule 2.03(a) (2014 Kan. Ct. R. Annot. 12). As previously announced at the preliminary hearing, the district court stated in its journal entry that it was construing Miller's motion as a K.S.A. 60–1507 motion and finding that it was untimely filed because Miller failed to allege, and there were no facts to support, the manifest injustice necessary to extend the time for filing a K.S.A. 60–1507 motion. Moreover, the district court found that even if Miller had timely filed the motion, he was not entitled to retroactive application of caselaw that was decided after his sentence became final.
The District Court Did Not Err by Not Construing Miller's Motion as a Request for an Out–of–Time Appeal.
Miller first argues that the district court erred by failing to construe his postconviction motion as a request for an out-of-time appeal. Miller contends this court has unlimited review when deciding whether a district court correctly construed a pro se pleading. See State v. Kelly, 291 Kan. 563, 565, 244 P.3d 639 (2010). Be that as it may, Miller seems to conveniently forget that here the district court was not construing a pro se pleading. Although Miller filed his initial motion pro se, he was appointed counsel who filed a subsequent motion which was the subject of the proceedings herein. Neither motion referred to State v. Ortiz, 230 Kan. 733, 640 P.2d 1255 (1982), nor alleged any of the Ortiz factors allowing for an out-of-time appeal. When questioned by the district court, Miller's counsel specifically and unequivocally characterized the motion as only a motion to correct an illegal sentence.
It is clear from the record that Miller failed to raise the issue of out-of-time appeal in the district court. More simply put, he is now requesting that this court grant relief which was specifically not requested below. Generally, issues cannot be asserted for the first time on appeal although there are several exceptions to the general rule. However litigants relying on such exceptions have been put on notice that they must “[explain] why an issue is properly before the court if it was not raised below—or risk a ruling that an issue improperly briefed will be deemed waived or abandoned.” State v. Williams, 298 Kan. 1075, Syl. ¶ 4, 319 P.3d 528 (2014) ; see Kansas Supreme Court Rule 6.02(a)(5) (2014 Kan. Ct. R. Annot. 40).
Miller's appellate brief was filed on January 7, 2015, some 10 months after the Supreme Court's succinct and emphatic warning in Williams. Yet he wholly fails to discuss how his claim falls into any recognized exception to the general rule or even suggest why this court should consider his argument for the first time on appeal. Additionally, the State put Miller on notice of the situation by arguing in its appellate brief that this court should deny his appeal for failure to allege any exception to the general rule that issues cannot be raised for the first time on appeal. Miller again failed to acknowledge any infirmity by failing to file a reply brief or other response.
We find that Miller has failed to preserve for appeal any issue of alleged error by the district court in failing to construe his motion as a request for an out-of-time appeal. Accordingly, we affirm the ruling of the district court. See State v. Godfrey, 301 Kan. 1041, 1043–44, 350 P.3d 1068 (2015).
The District Court Did Not Err by Not Resentencing Miller at the Probation Revocation Hearing.
Alternatively, Miller argues that this court should remand this case to the district court because Snellings was the controlling law when the district court “resentenced” him after his probation violation. Again, Miller did not raise this issue below. Unlike the previous argument, however, the State does not take issue with Miller's failure to raise the issue below in its appellate brief.
Even if Miller was entitled to an out-of-time appeal of his probation revocation, Miller provides no support for his position that the district court should have resentenced him to a severity level 4 drug felony sentence after revoking his probation. First, Miller never requested to have his sentence modified to that of a severity level 4 drug felony. Issues not raised before the trial court cannot be raised on appeal. See State v. Kelly, 298 Kan. 965, 971, 318 P.3d 987 (2014) ; but see State v. Jones, 302 Kan.––––, 351 P.3d 1228, 1232–33 (2015) (proceeding on merits when State did not object to failure to comply with Rule 6.02 [a][5] ). Second, the district court could not resentence Miller after his probation was revoked. When Miller's probation was revoked, the district court could have imposed the original prison sentence or any lesser sentence under K.S.A.2012 Supp. 22–3716(b). Although the district court may modify a sentence after a probation revocation and impose a lesser prison sentence than what was originally imposed, which the district court did in fact impose for Miller, the district court does not have authority to resentence a defendant. See State v. McGill, 271 Kan. 150, 154, 22 P.3d 597 (2001). Therefore, Miller's argument that the district court should have applied the identical offense doctrine and resentenced Miller after revoking his probation fails.
Affirmed.