Opinion
111,249.
04-10-2015
STATE of Kansas, Appellee, v. James F. SANDERFORD, Appellant.
Sean M.A. Hatfield and Carl F.A. Maughan, of Maughan Law Group LC, of Wichita, for appellant. Boyd K. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Sean M.A. Hatfield and Carl F.A. Maughan, of Maughan Law Group LC, of Wichita, for appellant.
Boyd K. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before ARNOLD–BURGER, P.J., POWELL, J., and MERLIN G. WHEELER, District Judge, assigned.
MEMORANDUM OPINION
PER CURIAM.
James F. Sanderford appeals from the district court's order denying his pro se motion to correct an illegal sentence. On appeal, Sanderford argues: (1) The district court should have appointed counsel and held an evidentiary hearing before denying his motion; and (2) he was illegally sentenced under a criminal history score of B. Finding no error, we affirm.
Factual and Procedural Background
Sanderford pled guilty to burglary and felony theft in 10 CR 516, felony theft in 10 CR 776, and various drug offenses in 10 CR 1058. In the plea agreement, the State agreed to consolidate 10 CR 516 and 10 CR 776 for sentencing, while 10 CR 1058 remained a separate case. Additionally, the State agreed to recommend probation. The district court sentenced Sanderford to probation with an underlying sentence of 114 months' imprisonment. The district court found Sanderford's criminal history score was C in the consolidated cases and B in 10 CR 1058. Sanderford's probation was later revoked, and the district court imposed a modified sentence of 90 months' imprisonment.
More than 1 year following his direct appeal, Sanderford filed a pro se motion entitled “Motion to Correct an Illegal Sentence,” alleging first that his sentence in 10 CR 1058 was illegal because he should have been sentenced in accordance with a criminal history score of C instead of B and, second, that his trial counsel was ineffective for leading him to believe he had a criminal history of C and for representing him while under a conflict of interest. The district court denied Sanderford's motion without a hearing, finding the motion was insufficient as to the relief sought and was untimely.
Sanderford timely appeals.
Did the District Court Err in Denying Sanderford's Motion to Correct an Illegal Sentence Without Appearance of Counsel or an Evidentiary Hearing?
When a district court summarily denies a pro se motion to correct an illegal sentence under K.S.A. 22–3504, we must determine whether the motion, records, and files conclusively show that the appellant is entitled to no relief under a de novo standard of review. State v. Jones, 292 Kan. 910, 913, 257 P.3d 268 (2011).
Sanderford argues the district court erred as a matter of law in denying his motion without first appointing counsel and conducting an evidentiary hearing. Specifically, he contends the plain language of K.S.A. 22–3504 unambiguously grants a defendant these rights and therefore bars any summary disposition. K.S.A. 22–3504(1) states:
“The court may correct an illegal sentence at any time. The defendant shall receive full credit for time spent in custody under the sentence prior to correction. The defendant shall have a right to a hearing, after reasonable notice to be fixed by the court, to be personally present and to have the assistance of counsel in any proceeding for the correction of an illegal sentence.”
However, the Kansas Supreme Court has previously rejected the same argument as Sanderford's on more than one occasion. See, e.g ., Makthepharak v. State, 298 Kan. 573, 576–77, 314 P.3d 876 (2013).
“For more than 20 years we have instructed district courts considering a motion to correct an illegal sentence to conduct an initial examination of the motion. See State v. Jones, 292 Kan. 910, 913, 257 P.3d 268 (2011) (citing State v. Duke, 263 Kan. 193, 194–96, 946 P.2d 1375 [1997], cert. denied 132 S.Ct. 1097 [2012] ; State v. Nunn, 247 Kan. 576, 584–85, 802 P.2d 547 [1990] ). Based on the district court's initial examination, it then ‘may dismiss a motion to correct an illegal sentence “ ‘without a hearing or appointment of counsel if ... the motion, files, and records of the case conclusively show the defendant is not entitled to relief.’ “ [Citations omitted.]' Jones, 292 Kan. at 913.” Makthepharak, 298 Kan. at 576.
Moreover, as a practical matter, we are unable to see the need to yield to Sanderford's request to remand this case for the appointment of counsel and an evidentiary hearing before the district court because Sanderford presents no argument or controverts any fact to persuade us that his criminal history score should have been C instead of B. Sanderford simply makes the conclusory allegation that his sentence in 10 CR 1058 was illegal because he should have been sentenced with a criminal history score of C instead of B. Therefore, we declare Sanderford's sentence a legal one and deny his request to remand this matter to the district court.
Alternatively, even if we were to liberally construe Sanderford's pro se pleading as a motion to withdraw plea under K.S.A.2014 Supp. 22–3210(d)(1) or as a motion asserting ineffective assistance of counsel under K.S.A. 60–1507, see Rice v. State, 278 Kan. 309, 320, 95 P.3d 994 (2004) (pro se pleadings to be construed liberally), more than 1 year has passed between Sanderford's direct appeal and his pro se motion. Therefore, his motion is untimely under either scenario absent a showing of excusable neglect or manifest injustice. Neither in Sanderford's motion before the district court nor in his briefing to us does he allege either circumstance. In fact, Sanderford's brief appears to abandon any claim of ineffective assistance of counsel. Parenthetically, we also note that Sanderford's original plea deal explicitly anticipated his criminal history score to be B or C, strongly suggesting Sanderford chose to plead guilty with the knowledge that being sentenced with a criminal history score of B was a possibility.
Affirmed.