Opinion
No. 108,401.
2013-08-23
STATE of Kansas, Appellee, v. Lamar R. STEELE, Appellant.
Appeal from Sedgwick District Court; Terry L. Pullman, Judge. Samuel D. Schirer, of Kansas Appellate Defender Office, for appellant. Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Terry L. Pullman, Judge.
Samuel D. Schirer, of Kansas Appellate Defender Office, for appellant. Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before PIERRON, P.J., McANANY and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Lamar R. Steele appeals from the denial of his motion to correct an illegal sentence and to reduce or reconsider his sentence. The district court determined that Steele's motion constituted an abuse of process and denied the motion. On appeal, Steele argues that the district court erred in failing to recognize his motion as a K.S.A. 60–1507 motion. We disagree because the content of the motion clearly shows that Steele was merely seeking a reduction of his sentence. Further, if the district court had considered Steele's motion under K.S.A. 60–1507, it would have been untimely and he would not be entitled to relief. Thus, we affirm.
On May 19, 2008, Steele pled guilty to criminal discharge of a firearm at an occupied vehicle. He received a departure sentence of probation for 36 months with community corrections and an underlying 72–month prison sentence.
On October 12, 2008, Steele absconded from the community corrections residential facility. He was captured and, on July 1, 2009, he stipulated to violating probation. The district court sent him to Larned State Hospital for a psychological and drug/alcohol abuse evaluation.
On February 11, 2010, the district court revoked Steele's probation and sent him to Larned for psychiatric care and treatment under K.S.A. 22–3430. At the hearing, the court commented on Steele's underlying 72–month prison sentence and the time he was likely to spend at Larned receiving treatment. The court stated, “I would be stunned if that 72 months is even approached. I'm thinking a lot, lot, lot less than that.” The court ordered Steele to be returned to court at the end of his treatment for a hearing pursuant to K.S.A. 22–3431(c).
Steele finished his treatment at Larned and was returned to court. At a hearing on September 10, 2010, the court ordered Steele to serve a modified 58–month prison sentence. Having apparently misunderstood the court's comments at the February 2010 hearing, Steele recounted that the court previously stated that it would “give [Steele] something a lot, a lot, a lot less” than 72 months. The court stood by its decision to impose the 58–month sentence but reserved the right to modify the sentence “to be in conformity to whatever I might have said at a previous proceeding, if confirmed” by the transcript.
On September 16, 2010, Steele moved the court to modify his sentence based on his mistaken belief that the court indicated it would order him to serve a sentence significantly less than 72 months. The district court denied relief, but Steele did not appeal.
On July 22, 2011, the district court received a letter from Steele asking the court to modify his sentence. Steele complained about the fact that his codefendant received a shorter sentence. The district court appointed counsel, held a nonevidentiary hearing, and denied the motion on the basis that Steele had already received a sentence modification and that the court was without jurisdiction to modify the sentence again. Again, Steele did not appeal.
On February 13, 2012, Steele again moved for a modification of his sentence. He complained about his counsel's inadequacies. The district court summarily denied relief, noting that Steele had previously filed “similar motions seeking relief on the same grounds” and found it was without jurisdiction to modify his sentence. The order notified Steele that additional motions on these grounds would be considered an abuse of process and would be summarily dismissed. The court denied Steele's request for the appointment of new counsel. Again, there was no appeal.
In an apparent effort to test the court's resolve, Steele again moved on April 9, 2012, to correct an illegal sentence and to reduce/reconsider his sentence. He alleged similar grounds to those raised in the previous motions, and he also argued that his attorney was ineffective for a variety of reasons. Steele suggested that his attorney's inadequate representation resulted in Steele receiving a longer sentence than his codefendant. Steele did not seek to withdraw his plea, but rather requested that the court reduce his sentence to 36 months so that it was equal to his codefendant's sentence.
The district court summarily denied relief, finding that the motion was repetitive and its filing was an abuse of process. Steele finally appealed.
Steele argues that the district court should have treated his motion as a K.S.A. 60–1507 motion because of his reference in the motion to his counsel having been ineffective. Whether the district court correctly construed Steele's motion is a question of law over which our review is unlimited. See State v. Kelly, 291 Kan. 563, 565, 244 P.3d 639(2010).
If the district court had treated Steele's motion as a K.S.A. 60–1507 motion, it would have been untimely under K.S.A. 60–1507(f)(1), which establishes a 1–year limitation period for any such motion. Under K.S.A. 60–1507(f)(2), the court may excuse the 1–year time limitation to prevent manifest injustice. Steele makes no effort to establish manifest injustice.
The district court imposed the modified 58–month sentence in September 2010. Steele did not appeal. In April 2012, Steele filed the motion he now wishes us to treat as a K.S.A. 60–1507 motion. Under K.S.A. 60–1507(f)(2), his motion was too late. Treating Steele's motion as a motion under K.S.A. 60–1507 would be for Steele to no avail.
Steele's motion clearly indicated that he was seeking modification of his sentence. K.S.A. 22–3716(b) authorizes a district court revoking a defendant's probation to “require the defendant to serve the sentence imposed, or any lesser sentence.” At Steele's probation revocation hearing, the district court imposed a legal lesser sentence of 58 months' imprisonment. Having imposed a legal sentence, the district court did not have jurisdiction to later modify that sentence. See State v. McKnight, 292 Kan. 776, 783, 257 P.3d 339 (2011). The district court did not have jurisdiction to grant Steele's request to further modify his sentence. It is apparent that the district court correctly decided the matter.
Affirmed.