Opinion
No. 107,204.
2013-03-8
STATE of Kansas, Appellee, v. Dennis G. TRAUB, Appellant.
Appeal from Harvey District Court; Richard B. Walker, Judge. Korey A. Kaul, of Kansas Appellate Defender Office, for appellant. Jason R. Lane, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Harvey District Court; Richard B. Walker, Judge.
Korey A. Kaul, of Kansas Appellate Defender Office, for appellant. Jason R. Lane, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Before HILL, P.J., ATCHESON and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Eight years after Dennis G. Traub was convicted of possession of cocaine with intent to sell under a statute number that did not exist at the time, the district court entered a nunc pro tunc order that corrected the journal entry of sentencing to reflect the proper statute. Traub responded with a pro se motion that challenged his conviction because the same citation error occurred in the amended complaint. The district court summarily denied Traub's motion upon finding the record conclusively established that Traub was not prejudiced by the citation error in the amended complaint. Traub suggests this was error because the court should have first held a hearing to allow him to prove prejudice. Because we find that Traub's motion can best be described as a motion to arrest judgment, which is clearly untimely, we lack jurisdiction and are required to dismiss his appeal.
Factual and Procedural History
A traffic stop on August 17, 2002, led to the State charging Traub by amended complaint with five different crimes. Those crimes ranged in severity from the most serious offense of “Possession of Cocaine With Intent to Sell,” identified as a “Drug Severity Level 3 Felony,” to the least serious offense of driving with a suspended license, a misdemeanor. Traub ultimately entered a plea agreement with the State, under which he pled no contest to the charge of possession of cocaine with intent to sell and the State dismissed the remaining charges. The district court subsequently imposed a standard presumptive prison sentence of 40 months, which it ordered to run consecutive to Traub's prison sentence in another case.
This appeal concerns an error in the statutory citation for the crime of conviction. There is no dispute that when Traub committed the offense in August 2002, the correct statutory citation for the offense of possession of cocaine with intent to sell was K.S.A. 65–4161(a). See State v. Williams, 291 Kan. 554, 559, 244 P.3d 667 (2010) (stating fundamental rule in Kansas law that defendant is sentenced based on law in effect when crime was committed). From the time the amended complaint was filed up through the journal entry of sentencing, however, whenever a statute was cited in court filings for the offense of possession of cocaine with intent to sell, the citations were to “K.S.A. 65–4127a(b).” The problem is that our legislature repealed that statute in 1994 and recodified that specific subsection at K.S.A. 65–4161. See L.1994, ch. 291, secs. 86, 93; L.1994, ch. 338, sec. 2; K.S.A. 65–4127a, Revisor's Note.
This citation error apparently went unnoticed until it was corrected on February 23, 2011, in a nunc pro tunc order entered by the same district court judge who had accepted Traub's plea and sentenced him. That order, approved by both the State and Traub's plea counsel, stated that the citation in the journal entry of sentencing to “K.S.A. 65–4127a(b)” was “due to clerical mistake, oversight or omission” and was corrected to “K.S.A. 65–4161.”
Once Traub became aware of the nunc pro tunc order, he filed a pro se motion arguing his conviction should be set aside because the amended complaint contained the same citation error. Highly summarized, Traub argued the court was bound by that improper designation of the statute under which he was charged and, because that statute had been repealed, he was improperly convicted of an invalid crime.
The district court summarily denied Traub's motion on two grounds. First, the court found the record conclusively refuted his contentions that he had not been charged and convicted of a valid crime, which the court held were “matters of mere form, rather than substance.” In support, the court noted that it had complied with all provisions of K.S.A. 22–3210(a) in accepting Traub's no contest plea to the specific crime of possession of cocaine with intent to sell, a severity level 3 felony. The court further reasoned that the crime of possession of cocaine with intent to sell was never repealed, “but had instead been moved by the Revisor of Statutes over to K.S.A. 65–4161.” Second, the district court held that its correction of the statute number in the journal entry of sentencing via the nunc pro tunc order without prior notice to Traub was proper under K.S.A. 22–3504(2). Traub appeals from that decision.
Analysis
In his sole issue on appeal, Traub attacks only the first ground for the district court's denial of his pro se motion. That is, he argues he should receive an evidentiary hearing because the record does not conclusively establish that he was not prejudiced by the incorrect statutory citation in the amended complaint. Traub has, therefore, abandoned or waived any challenge to the propriety of the nunc pro tunc order correcting the journal entry of sentencing under K.S.A. 22–3504(2). See State v. McCaslin, 291 Kan. 697, 709, 245 P.3d 1030 (2011) (issue not briefed by appellant is deemed waived and abandoned). The State responds that the district court properly found the citation error was not prejudicial. Traub's motion is best interpreted as a motion to arrest judgment.
Citing State v. Neal, 292 Kan. 625, 629, 258 P.3d 365 (2011), both parties seem to interpret Traub's motion challenging the nunc pro tunc order as a motion to correct an illegal sentence under K.S.A. 22–3504(1). But the heart of Traub's complaint challenges the validity of his conviction based on an error in the amended complaint, not the validity of his sentence. The relief available under K.S.A. 22–3504(1) is the correction of a sentence, not reversal of a conviction, so that statute cannot be used to collaterally attack a conviction. State v. Davis, 283 Kan. 767, 770, 156 P.3d 665 (2007); see also State v. Sims, 294 Kan. 821, 825, 280 P.3d 780 (2012) (recognizing “a motion to correct an illegal sentence is an inappropriate vehicle to dispute whether a complaint was defective because such a claim challenges the conviction, not the sentence”). So we must first decide what statute governs the relief Traub seeks.
Traub cited to K.S.A. 60–259 and K.S.A. 60–260(b) as the statutory authority for his motion. But in Smith v. State, 199 Kan. 132, 427 P.2d 625 (1967), our Supreme Court suggested K.S.A. 60–260(b) is only available as a remedy to challenge judgments in civil matters, based in part upon the language limiting the scope of the code of civil procedure still found in K.S.A.2012 Supp. 60–201(b). The court further reasoned that because our legislature expressly abolished writs of error coram nobis in that same statute and enacted K.S.A. 60–1507, K.S.A. 60–1507 was exclusive statutory remedy under which a prisoner in custody could collaterally attack his criminal sentence. 199 Kan. at 133–35.
But even if Traub's arguments could be interpreted as a collateral attack of his sentence, K.S.A. 60–1507 would still not be a remedy available to him. Traub's motion does indicate he was in prison when he filed it. But he also admits that he has fully served his sentence and postrelease period in this case, so he is apparently serving a sentence in a separate case. In Johnson v. State, 4 Kan.App.2d 573, 574, 608 P.2d 1044 (1980), this court held that K.S.A. 60–1507 governs only where the sentence being attacked is one resulting in defendant's present custody.
So it seems Traub's pro se motion is best interpreted as a motion for arrest of judgment. See K.S.A.2012 Supp. 22–3502 (“court on motion of a defendant shall arrest judgment if the complaint ... does not charge a crime”). This interpretation is supported by Traub's citation to K.S.A. 22–3201(b) as the only authority to support his argument. That statute governs the content of charging documents, providing that an “[e]rror in the citation or its omission shall be not ground for dismissal of the complaint, information or indictment or for reversal of a conviction if the error or omission did not prejudice the defendant.” K.S.A. 22–3201(b).
But a motion for arrest of judgment is obviously time-barred under K.S.A.2012 Supp. 22–3502 or K.S.A. 22–3503. K.S.A.2012 Supp. 22–3502 provides that a “motion for arrest of judgment shall be made within 14 days after the verdict or finding of guilty, or after a plea of guilty or nolo contendere, or within such further time as the court may fix during the 14–day period.” Obviously, 8 years is outside that timeframe. K.S.A. 22–3503 does not contain a similar deadline, providing simply that “[w]henever the court becomes aware of the existence of grounds which would require that a motion for arrest of judgment be sustained, if filed, the court may arrest the judgment without motion.” In State v. Sims, 254 Kan. 1, 10, 862 P.2d 359 (1993), however, our Supreme Court interpreted K.S.A. 22–3502—which is virtually the same as K.S.A.2012 Supp. 22–3502 except for a 10–versus 14–day deadline—and held, “the motion for arrest of judgment must be filed by the defendant, and a court's arrest of judgment without motion must be ordered, within 10 days after the verdict or finding of guilty.” The Kansas Supreme Court has also held that neither a district court nor an appellate court has jurisdiction to consider a motion to arrest judgment that is filed after the deadline in K.S.A. 22–3502. See State v. McCoin, 278 Kan. 465, 467–68, 101 P.3d 1204 (2004). So the district court lacked jurisdiction to hear this matter and so do we. Accordingly, the appeal must be dismissed.
However, even if we were to consider Traub's claim of prejudice, it fails.
Traub's sole argument on appeal is that, without an evidentiary hearing, “there is no way of knowing what prejudice [he] may have suffered.” In support, Traub raises an “example” of possible prejudice. Specifically, Traub argues that “K.S.A. 65–4127a was under the old indeterminate sentencing scheme, whereas the correct statute, K.S.A. 65–4161, was a guidelines crime. [He] may well have understood the old sentencing scheme applied which affected his decision to plea.”
Traub's example of possible prejudice due to the varying sentencing provisions overlooks an important fact: the specific statute referenced in the amended complaint— i.e., “K.S.A. 65–4127a(b)”—was to a crime punishable under the sentencing guidelines, not the indeterminate sentencing structure. Prior to its repeal in 1994, K.S.A. 65–4127a was amended to provide that, when, as charged here, the possession of cocaine is with the intent to sell, it is a drug severity level 3 felony under the Kansas Sentencing Guidelines Act enacted in 1993. See K.S.A.1993 Supp. 65–4127a(b). Granted, the amended complaint did not reference the 1993 supplement in citing K.S.A. 65–4127a(b). Nonetheless, that reference was obviously to the 1993 supplement for at least three reasons. First, the crime of possession of cocaine with intent to sell did not appear in subsection (b) of K.S.A. 65–4127a until the 1993 supplement. See L.1993, ch. 291, sec. 234.
Second, immediately below the statutory reference to “K.S.A. 65–4127a(b),” the amended complaint includes a “[c]lassification” of the crime as a “Drug Severity Level 3 Felony.” Such classifications are necessary only for determining where on the sentencing guidelines grid a crime falls. See K.S.A.2002 Supp. 21–4705(a) (setting forth guidelines sentencing range for drug offenses).
Third, the amended complaint referenced a recommended period of postrelease supervision, which applies only in guidelines sentences. The State even had to amend that provision at the plea hearing to reflect the proper period of 24 months. In sum, the record refutes any suggestion that Traub might have entered his plea based on the wrongful belief that he was subject to an indeterminate sentence.
As pointed out by the State, our Supreme Court rejected a somewhat similar claim of prejudice stemming from a citation to a repealed statute in a charging document in State v. Salters, 214 Kan. 860, 522 P.2d 436 (1974). In that case, the defendant was charged by a complaint filed on January 9, 1973, with the unlawful possession of marijuana. He moved to dismiss the complaint because it cited to two statutes that had been repealed in 1972. In affirming the district court's denial of the defendant's motion to dismiss, our Supreme Court noted that the repealed statutes and the proper statutes classified the crime the same, i.e., as a class A misdemeanor. 214 Kan. at 860. The court then found:
“Reference to a repealed statute [in the complaint] amounts to the same thing as ‘omission’ of reference to any statute [under K.S.A.1973 Supp. 22–3201(2) ], in view of the circumstances of this case. The crime charged was the same under the new statute as under the old; hence, appellant was not misled.” 214 Kan. at 861.
Likewise, the crime of possession of cocaine with intent to sell that Traub was charged with in the amended complaint was both defined and classified the same under K.S.A.1993 Supp. 65–4127a(b) as it was under K.S.A. 65–4161(a). In other words, despite the wrong statutory reference, the amended complaint charged the same crime as K.S.A. 65–4161(a).
Finally, although this court owes no deference to the district court, we agree that the remainder of the record also conclusively refutes any finding that Traub was prejudiced as a result of the citation error in the amended complaint. See State v. McElroy, 281 Kan. 256, 261, 130 P.3d 100 (2006) (the sufficiency of a charging document is subject to unlimited review on appeal). The plea agreement signed by Traub did not contain a statutory citation. Rather, it referred to the crime to which Traub had agreed to enter a plea as “Possession of Cocaine with intent to sell.” The transcript of the plea hearing further refutes any finding that Traub may not have had notice of the crime with which he was charged and to which he had agreed to enter a no contest plea. That transcript reveals that Traub, who holds an associate's degree, openly admitted he understood that he was charged in the amended complaint with the crime of “possession of cocaine with intent to sell, a drug Level 3 felony,” which carried a penalty range of “anywhere between 14 months and 51 months.” And that is the crime and potential sentence to which Traub entered a no contest plea.
In sum, Traub is unable, under any theory, to show that the citation error in the amended complaint prejudiced him in any way. The complaint substantially followed the language of K.S.A. 65–4161(a) in equivalent words or others of the same import, Traub was fully informed of the particular offense charged, and we can readily determine under which statute the charge was founded. Neither can Traub show that the citation error in the amended complaint prejudiced him in preparation of his defense, impaired his ability to plead the conviction in any subsequent prosecution, or limited his substantial rights to a fair trial. See State v. Hall, 246 Kan. 728, 764–65, 793 P.3d 737 (1990) (adopting standards for reviewing challenges to charging documents).
Appeal dismissed.