Tеrry L. Gilbert appeals the summary denial of a pro se motion entitled “Motion to Correct Illegal Sentence,” which was filed more than 10 years after he was sentenced for felony murder. Gilbert claims his sentence is illegal because the standard used at his trial for issuing lesser included offense instructions in felony-murder cases was overruled over a decade later. See State v. Berry,
The district court treated the pro se motion as a motion to correct an illegal sentence, and Gilbert’s аppellate counsel argues the pro se motion should have been liberally construed as invoking K.S.A. 60-1507(a) (prisoner in custody may claim sentence imposed in violation of state or federal Constitution). Had this happеned, Gilbert reasons, the district court should have determined whether Gilbert’s untimely claim could be brought under the manifest injustice exception in K.S.A. 60-1507(f)(2) (court may extend 1-year time limitation in K.S.A. 60-1507[f][l] to prevent manifest injustice).
We affirm the district court’s сonstruction of Gilbert’s pleading as a motion to correct an illegal sentence. We acknowledge pro se pleadings are to be liberally construed to give effect to their content rather than adhering tо any labels and forms used to articulate the pro se litigant’s arguments. State v. Kelly,
We also affirm the summary denial of the motion because Gilbert’s jury instruction claim cannot be raised in a motion to correct an illegal sentence. Gilbert challenges his conviction, not the sentence imposed. See State v. Trotter,
Factual and Procedural Background
In 1999, a juiy convicted Gilbert of first-degree felony murder, aggravated robbery, aggravated burglary, and criminal damage to property for crimes occurring on or around Sеptember 14, 1998. He was sentenced to life imprisonment for the murder conviction. In his direct appeal, Gilbert argued in part that he was prejudiced by die district court’s failure to issue lesser included offense instructions for felony murdеr. The court held Gilbert was not entitled to lesser included offense instructions under the rule prevailing at that time that such instructions were only required if evidence of the underlying felony was weak, inconclusive, or conflicting. Gilbert’s convictions were affirmed. State v. Gilbert,
In Berry, this court held that felony murder should no longer be treated differently tiran other crimes for the purposes of lesser included offense instructions, noting K.S.A. 22-3414’s requirement that lesser included offense instructions should be issued if there is some evidence that would reasonably justify the conviction of the lesser included crime also applied to felony-murder instructions. Berry,
But Berry’s impаct was short-lived. The legislature modified the statute governing lesser included offenses to explicitly state there are no lesser included offenses to felony murder. K.S.A. 2013 Supp. 21-5109(b)(l) (effective July 1, 2012). Gilbert filed his pro se motion entitled “Motion to Correct Illegal Sentence” on August 24, 2012.
Citing Berry, Gilbert argued the district court committed structural error in 1999 and deprived him of his defense theory by failing to instruct the jury on lesser included offenses of felony murder. And recognizing Berry applied to pеnding cases not yet final, Gilbert argued there is no finality to an illegal sentence because an illegal sentence can be corrected at any time under K.S.A. 22-3504(1) (“The court may correct an illegal sentence at any time.”). Gilbert argued his sentence was illegal because his felony-murder sentence was “a product of [the district] court’s failure to conform to the statutory provision K.S.A. 22-3414(3) and K.S.A. 22-2103 as a consequence.” K.S.A. 22-2103 provides: “This code is intended to provide for the just determination of eveiy criminal proceeding. Its provisions shall be construed to secure simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay.”
Thе State responded that Gilbert’s sentence was not illegal. It noted the trial court had jurisdiction and that the sentence both conformed to the applicable statutory provisions and was not ambiguous. The State also addressed the merits of Gilbert’s claim that Berry should apply to his collateral attack on the judgment. It recited the general principle that new rules of criminal procedure apply only to cases not yet final. It also argued Berry was inapplicable because Gilbert’s convictions were final, i.e., his direct appeal to this court was concluded. The State further argued that any limited exceptions to that rule did not apply, citing Hollingsworth v. State, No. 106,357,
The district court summarily denied Gilbert’s motion, finding it raised no genuine factual or legаl issues. It addressed the substance of Gilbert’s Berry argument “[notwithstanding the fact that Mr. Gilbert raises alleged trial errors in a Motion to Correct Illegal Sentence.” It held Gilbert’s case was
Gilbert appealed. This court’s jurisdiction arises under K.S.A. 2013 Supp. 22-3601(b)(3); see State v. Pennington,
Summary Denial of Motion to Correct Illegal Sentence
The first issue is whether the district court erred by summarily denying Gilbert’s motion.
Standard of Revieio
An apрellate court reviews a district court’s summary denial of a motion to correct an illegal sentence under K.S.A. 22-3504 de novo because the reviewing court has the same access to the motions, records, and files. Trotter,
Whether a sentence is illegal is a question of law over which this court has unlimited review. This court has defined an “illegal sentence” under K.S.A. 22-3504 as: (1) a sentence imposed by a court without jurisdiction; (2) a sentence that does not conform to the applicable statutoiy provision, either in character or the term of authorized punishmеnt; or (3) a sentence that is ambiguous with respect to the time and manner in which it is to be served.
Discussion
Gilbert argues his instructional error claim fits within the second category—his sentence does not conform to applicable statutory provisions—because failure to issue lesser included offense instructions on the felony-murder charge violated K.S.A. 22-3414(3), which requires lesser included offense instructions “where there is some evidence which would reasonably justify a conviction of some lesser included crime.”
As the district court stated, Gilbert’s instructional error claim is a challenge to his conviction, not his sentence, This is evident because the proper remedy for the failure to issue a lesser included offense instruction is to reverse Gilbert’s conviction—not impose a different sentence. See State v. Qualls,
K.S.A. 22-3504 is solely a vehicle to correct a sentence. It is not a mechanism to reverse a conviction. Trotter,
Construing Pleading as a K.S.A. 60-1507 Motion
Gilbert also arguеs the district court erred by treating his motion as a motion to correct an illegal sentence. He contends tire district court should have treated it as a K.S.A. 60-1507 motion.
Standard of Review
“Pro se pleadings are liberally construed, giving effect to thе pleading’s content rather than the labels and forms used to articulate the defendant’s arguments. A defendant’s failure to cite the correct statutory grounds for his or her claim is immaterial.” Kelly,
K.S.A. 60-1507(f) requires a motion under the statute to be brought within 1 year of the final order of the last appellate court or the denial of a petition for writ оf certiorari to the United States Supreme Court. But that time limitation may be extended “to prevent a manifest injustice.” K.S.A. 60-1507(f)(2). Gilbert recognizes the 1-year time limit expired years ago, so he necessarily argues the district court should have determined whether resolving his motion was necessary to prevent manifest injustice—assuming the pleading may properly be construed as being brought under K.S.A. 60-1507.
Under this court’s rules of construction, the pleading’s content governs. Makthepharak v. State,
The substance of his pleading is that of a motion to correct an illegal sentence. There is nothing in it that can reasonably be read as raising a K.S.A. 60-1507 motion. Most noticeably, Gilbert claimed his motion was timely because it was a motion to correct an illеgal sentence, which carries no time restriction, as opposed to a K.S.A. 60-1507 motion, which does. K.S.A. 60-1507(f). And he did not argue the manifest injustice necessary to permit an untimely K.S.A. 60-1507 motion.
In State v. Holt,
In his motion, Gilbert did not assert manifest injustice, much less facts supporting such a contention. We hold that the failure to allege manifest injustice not only weighs against construing the motion as one falling under K.S.A. 60-1507, but it also supports a conclusion that any K.S.A. 60-1507 argument was insufficiently raised to warrant review by the district court.
Affirmed.