Opinion
111,245.
04-24-2015
STATE of Kansas, Appellee, v. Brett WHEELER, Appellant.
Gerald E. Wells, of Jerry Wells Attomey–at–Law, of Lawrence, for appellant. Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Gerald E. Wells, of Jerry Wells Attomey–at–Law, of Lawrence, for appellant.
Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Before McANANY, P.J., ATCHESON, J., and HEBERT, S.J.
MEMORANDUM OPINION
PER CURIAM:
Defendant Brett Wheeler filed a motion to correct illegal sentences imposed on him for two counts of aggravated criminal sodomy more than 25 years after a jury sitting in Shawnee County District Court convicted him of those offenses and two counts of rape. The district court hearing the motion treated it as one for habeas corpus relief under K.S.A. 60–1507 and denied it as untimely. Although the motion sits amidst a legal thicket, Wheeler has presented no sound basis for relief. We, therefore, affirm the district court's ultimate ruling.
We set out background facts and some case history necessary for an understanding of the motion, recognizing the parties are familiar with that terrain. In late 1986, Wheeler was charged with a count of rape and a count of aggravated sodomy stemming from an incident involving J.T. and with precisely the same offenses for a separate incident involving D.T. A jury convicted Wheeler of all four charges in a trial in mid–1987. Under the criminal code in effect then, the district court imposed a sentence of 10 years to life for each conviction and ordered Wheeler to serve the sentences concurrently. Wheeler filed a direct appeal. The Kansas Supreme Court affirmed the convictions, and the appeal became final in Mayl989. See State v. Wheeler, No. 61,437, unpublished opinion filed April 14, 1989, slip op. at 7.
In December 1989, the Kansas Supreme Court ruled in State v. Moppin, 245 Kan. 639, Syl. ¶ 1, 783 P.2d 878 (1989), that the aggravated sodomy statute under which Wheeler had been convicted criminalized fellatio but not cunnilingus. In that case, the court reversed Moppin's conviction for aggravated sodomy. 245 Kan. at 644. Based on Moppin, Wheeler filed his motion to correct illegal sentences in August 2013 on the grounds he could not properly have been sentenced for aggravated sodomy. See K.S.A. 22–3504(1). The district court dismissed the motion in a four-sentence order without receiving a response from the State. The district court found the motion to be filed “out of time.” So the district court concluded it “lacks jurisdiction to act.” Wheeler has appealed that ruling.
On appeal, Wheeler argues the district court improperly treated his motion as one brought under K.S.A. 60–1507 for habeas corpus relief. He says if his motion were properly considered as one to correct illegal sentences—what he actually filed—the district court should be reversed and the matter remanded for a hearing in conformity with K.S.A. 22–3504(1).
Given the district court's finding of untimeliness, we suppose the motion was treated as one for 60–1507 relief. A 60–1507 motion must be filed within 1 year after any direct appeal has become final—a deadline that has long passed for Wheeler. The 1–year time limit may be excused “to prevent a manifest injustice.” K.S.A. 60–1507(f). Conversely, a motion to correct an illegal sentence may be filed “at any time,” so there is no deadline for seeking relief. K.S.A. 22–3504(1). A district court may construe a filing from an unrepresented party in keeping with the apparent purpose or objective of the filer rather than in strict conformity with its title or format. See State v. Kelly, 291 Kan. 563, 565–66, 244 P.3d 639 (2010) (filing captioned as K.S.A. 60–1507 motion should have been treated as motion to withdraw plea based on requested relief). But a district court should not recharacterize a pro se filing to facilitate dismissal.
As we explain, however, Wheeler is not entitled to relief whether his filing is treated as a motion to correct an illegal sentence under K.S.A. 22–3504(1) or one for habeas corpus under K.S.A. 60–1507.
Relevant here, the trial record establishes J.T. testified Wheeler forced her to have sexual intercourse and to fellate him. There was no act of cunnilingus. D.T. testified Wheeler coerced her to participate in sexual intercourse, fellatio, and cunnilingus with him. The district court instructed the jury that either fellatio or cunnilingus would support a conviction for aggravated sodomy. Accordingly, the two rape convictions and the aggravated sodomy conviction related to J.T. are legally unassailable, even considering the ruling in Moppin. Only the aggravated sodomy conviction involving D.T. could be questioned. Because the jury returned a general verdict on each count, it is possible Wheeler was convicted for an act of cunnilingus rather than fellatio involving D.T.
With that factual context, we first consider the legal implications of the motion as one to correct an illegal sentence in keeping with Wheeler's own characterization of his filing. A sentence is illegal for purposes of K.S.A. 22–3504(1) if it: (1) is imposed by a court without jurisdiction; (2) fails to conform to the sentencing statute, either in character or term of punishment; or (3) is ambiguous as to the time and manner required for serving the punishment. State v. Sims, 294 Kan. 821, Syl. ¶ 3, 280 P.3d 780 (2012). But a motion to correct an illegal sentence may not be used to attack the legal propriety of the underlying conviction. 294 Kan. at 825. Wheeler effectively deploys his motion for that impermissible purpose.
Here, the district court had jurisdiction over the aggravated sodomy count in which D.T. was the victim. The complaint described the offense in the language of the statute, charging an act of “oral copulation.” The evidence—D.T.'s statement to law enforcement officers and her later testimony about forced fellatio—supported the charge and the district court's jurisdiction. The sentence Wheeler received for that crime conformed to the statutory penalties at the time, and the punishment was not otherwise ambiguous. Accordingly, Wheeler has not demonstrated the sentence to be illegal under K.S.A. 22–3504(1). There may be a factual ambiguity about the basis for the conviction. But consistent with Sims, Wheeler cannot successfully attack the sentence as a means of indirectly challenging the conviction itself. His motion fails on that score.
We also consider the motion as one for habeas corpus relief, since the district court seems to have done so. First, the district court erred in holding it had no jurisdiction to consider a 60–1507 motion filed past the 1–year deadline. The time limit is not jurisdictional and operates more like a statute of limitations that may be excused in specific circumstances, most notably to avoid a manifest injustice. See State v. Mitchell, 297 Kan. 118, 123, 298 P.3d 349 (2013) (“1–year limitations period on 1507 motions is not a per se bar”); State v. Bush, No. 107,935, 2014 WL 1302607, at *4 (Kan.App.2014) (unpublished opinion) (collecting cases finding time limit in K.S.A. 60–1507 [f] to be an affirmative defense subject to waiver). The district court did not discuss possible manifest justice permitting an otherwise untimely 60–1507 motion from Wheeler.
Under the circumstances, however, we are in as good a position as the district court to make such a determination from Wheeler's motion and a review of the record in the underlying criminal case. Having completed that review, we cannot find manifest injustice warranting a 60–1507 motion premised on Moppin. There are a number of considerations that underlie that conclusion. First, Moppin was decided 25 years ago, and Wheeler waited until 2013 to claim any relief. Second, Wheeler's controlling sentence would be unaffected by any ruling on the single aggravated sodomy conviction that might be affected. He must still serve the concurrent 10–years–to–life sentences on the other three convictions. And should Wheeler be granted parole, he will be subject to the full range of civil disabilities because of those convictions.
The disputed aggravated sodomy conviction is not of a substantially different or more heinous character than the other convictions, so as to adversely affect Wheeler's chances for conditional release. The Kansas Prisoner Review Board may consider the nature of that conduct in weighing Wheeler's suitability for parole, even if the act did not meet the definition of aggravated sodomy. At the time, nonconsensual cunnilingus still constituted a criminal act—it very likely was a form of rape and certainly would have been a battery.
Under the circumstances, Wheeler cannot show manifest injustice excusing a remarkably late 60–1507 motion. In that respect, the district court's ultimate decision to dismiss the filing as a 60–1507 motion was correct. Rose v. Via Christi Health System, Inc ., 279 Kan. 523, 525, 113 P.3d 241 (2005) (district court may be affirmed if it reaches the right result for the wrong reason). Having considered Wheeler's filing both as a motion to correct an illegal sentence and as one for relief under K.S.A. 60–1507 in light of the full record, we see no legal basis for upsetting any part of the judgment entered against him in the criminal case.
Affirmed.
State v. Schreiner, 46 Kan.App.2d 778, 783–84, 264 P.3d 1033 (2011) (criminal code effectively defines rape as the “nonconsensual penetration of the female genitalia with something[,]” i.e., any object), rev. denied 296 Kan. 1135 (2013); Cadillac Mayor v. Blackburn, 306 Mich.App. 512, 516, 857 N.W.2d 529 (2014) (words of statute to be given their common meaning unless legislature provides specific definition). In 1990, the legislature amended the definition of criminal sodomy to clearly include cunnilingus, thereby legislatively overruling Moppin. See L.1990, ch. 149, sec. 14(2); K.S.A. 21–3501(2). Since then, nonconsensual cunnilingus has been prosecuted as aggravated sodomy based on that specific definition. See K.S.A. 21–3506(a)(3). When Wheeler abused J.T. and D.T., battery included “physical contact with another person done in a rude, insulting or angry manner.” K.S.A. 21–3412 (Ensley 1981). The definition unquestionably encompassed nonconsensual oral sex.