STATE OF KANSAS, Aрpellee, v. JEFFERY S. REDDING, Appellant.
No. 115,037
IN THE SUPREME COURT OF THE STATE OF KANSAS
Opinion filed July 12, 2019.
1. Courts are to interpret pro se pleadings based upon their contents and not solely on their title or labels. But there are limits to a court‘s duty to liberally construe pro se pleadings; a court is not required to divine every conceivable interpretation of a motion, especially when a movant repeatedly asserts specific statutоry grounds for relief and propounds arguments related to that specific statute.
2. Appellate courts treat motions under
3. If the district court determines that a
4. If the district сourt conducts a hearing to determine whether a
5. When a district court accepts the recommendation of a plea agreement to depart from an off-grid Jessica‘s Law hard-25 life sentence to a specific on-grid sentence, the court‘s failure to consider a second departure to an even shorter sentence does not render the agreed-upon sentence illegal.
Review of the judgment of the Court of Apрeals in an unpublished opinion filed February 3, 2017. Appeal from Rice District Court; MIKE KEELEY, judge. Opinion filed July 12, 2019. Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed.
Steven J. Obermeier, assistant solicitor general, argued the cause, and Amanda G. Voth, assistant solicitor general, and Derek Schmidt, attorney general, were with him on the briefs for appellee.
The opinion of the court was delivered by
JOHNSON, J.: Jeffery S. Redding seeks our review of thе Court of Appeals’ decision affirming the district court‘s summary denial of his motion to correct an illegal sentence. State v. Redding, No. 115,037, 2017 WL 462658 (Kan. App. 2017) (unpublished opinion). Redding claims that his pro se motion should have been liberally construed as a
court failed to follow proper statutory procedures for imposing a departure sentence; and that his due process rights were violated when the district court requested a response from the State before summarily denying the motion without appointment of counsel for Redding. We affirm the lower courts on all issues.
FACTUAL AND PROCEDURAL OVERVIEW
Redding was charged with multiple counts of rape and aggravated indecent liberties with a child based on allegations that he sexually abused his 4-year-old daughter and his girlfriend‘s 11-year-old daughter in 2010 and 2011. Pursuant to a signed plea agreement, Redding pled nolo contendere to one count of rape,
Redding‘s counsel filed a motion for a departure from the Jessica‘s Law sentences, asserting that the substantial and compelling reasons to depart included his lack of criminal history, his age (33 years old), and his plea had spared the victims the trauma of testifying at a trial. The State concurred with the departure reasons. But Redding wrote a letter to the court in lieu of allocution in which he requested an even shorter sentence because he did not want to be away from his family, and he was concerned with his ability to resume employment in his chosen field if he were gone too long.
At sentencing, the district court imposed the Jessica‘s Law sentencе for each count, but then departed to the jointly recommended total sentence of 210 months’
imprisonment, citing as substantial and compelling reasons Redding‘s lack of criminal history, his family support, and his having spared the victims from having to testify.
Subsequently, Redding filed a motion to permit an untimely appeal, but quickly withdrew it. More than two years later, Redding filed this pro se “Motion to Correct An[] Illegal Sentеnce.” Because Redding had not served the State with a copy of the motion, the district court sent a copy to the State along with a letter saying that the State had time to respond, and that the district court would wait for the State‘s response before reviewing the motion. The State filed a response on August 19, 2015, and on August 28, 2015, the district court entered a journal entry memorandum of decision in whiсh it addressed Redding‘s claims and denied the motion to correct.
Redding filed a notice of appeal on September 14, 2015, and counsel was appointed. After filing his notice of appeal, Redding filed a second motion to correct, which was similar to the first motion. The district court denied the second motion because the district court lacked jurisdiction while the case was on appeal, but the court also noted that the second motion raised the same issues as the first motion that the court had denied.
The Court of Appeals affirmed the district court‘s summary denial. 2017 WL 462658, at *4. We granted Redding‘s petition for review.
Redding commences his first stated issue—that the district court violated his due process rights by failing to appoint him counsel after receiving a written response from the State‘s attorney—by arguing that the district сourt should have construed his motion as a
Standard of Review
Whether a district court properly construed a pro se pleading is a question of law subject to unlimited review. State v. Ditges, 306 Kan. 454, 456, 394 P.3d 859 (2017) (citing State v. Gilbert, 299 Kan. 797, 802, 326 P.3d 1060 [2014]).
Analysis
Courts are to interpret pro se pleadings based upon their contents and not solely on their title or labels. Gilbert, 299 Kan. at 802-03. In construing pro se postconviction motions a court should consider the relief requested, rather than a formulaic adherence to pleading requirements. See, e.g., State v. Holt, 298 Kan. 469, 480, 313 P.3d 826 (2013) (motion for new trial treated as
But there are limits to a court‘s duty to liberally construe pro se pleadings. A court is not required to divine every conceivable interpretation of a motion, especially when a litigant repeatedly asserts specific statutory grounds for relief and propounds arguments related to that specific statute. Ditges, 306 Kan. at 457-58 (motion filed as one under
Redding cites to State v. Harp, 283 Kan. 740, 744-45, 156 P.3d 1268 (2007), as establishing this court‘s ability to construe an improper motion to correct an illegal sentence as a
Moreover, Harp held that the movant in that case was not entitled to relief under
More importantly, however, we are not convinced that construing the motion as it was filed—as a
to vacate, set aside, or correct a sentence is an independent civil action that must be docketed separately.” Supreme Court Rule 183(a)(1) (2019 Kan. S. Ct. R. 228-29).
Further, the motion was not submitted on the Judicial Council forms for a 60-1507 and did not contain the information called for by the questions on that form. Supreme Court Rule 183(e) (2019 Kan. S. Ct. R. 230) (a 60-1507 motion “is sufficient if it is in substantial compliance with the judicial council form“). In Nguyen v. State, 309 Kan. 96, 104-05, 431 P.3d 862 (2018), we said that substantial compliance means “‘compliance in respect to the essential matters necessary to assure every reasonable objective of the statute‘” and that “the reasonable objectives of Supreme Court Rule 183(e) are to provide the reviewing court with the information called for by the [Judicial Council] form‘s questions and to have that information presented in such a manner that the reviewing court can match the answers to their corresponding questions.” Here, Redding‘s pleading did not substantially comply with Supreme Court Rule 183(e).
Even ignoring the noncompliance with Rule 183, the content of Redding‘s motion is consistent with its label. The motion begins by asking “this court to vacate this sentence [due] to it being [an] illegal sentence.” Then, the first allegation is that “the district court did not follow the proper departure procedure on the record.” Arguing that a sentence did not strictly conform to the applicable statutory provisions is consistent with a motion to correct an illegal sentence. Moreover, the cases Redding cited in the motion concern the legality of a sentence: State v. Jones, 293 Kan. 757, 268 P.3d 491 (2012) (challenging legality of sentence); State v. Spencer, 291 Kan. 796, 248 P.3d 256 (2011) (party allowed to challenge legality of sentence during other party‘s appeal even if not raised previously); State v. Brown, No. 110,709, 2014 WL 7152331 (Kan. App. 2014) (unpublished opinion) (district court did not comply with statutory departure procedures and sentence therefore illegal).
In sum, the district court‘s construing Redding‘s motion consistent with its form and the substance of its content was not error.
DUE PROCESS RIGHT TO APPOINTED COUNSEL
Redding principally argues that he was entitled to the appointment of counsel from the perspective that his motion is construed as a
Standard of Review
The interpretation of statutes and Supreme Court rules involves questions of law reviewable de novo. Thompson v. State, 293 Kan. 704, 710, 270 P.3d 1089 (2011). Redding‘s due process claim is a question of law over which we exercise unlimited review. See Hogue v. Bruce, 279 Kan. 848, 850, 113 P.3d 234 (2005).
Analysis
appointment of counsel for an indigent 60-1507 movant “[i]f the court finds that the . . . [60-1507] motion presents substantial questions of law or triable issues of fact.”
The issue of whether the district court‘s consideration of a written response from an attorney for the State mandated the appointment of counsеl for an indigent 60-1507 movant was presented to us in Stewart v. State, 309 Kan. ___, ___ P.3d ___ (2019) (No. 115,149, this day decided), which was heard on the same oral argument docket with Redding. We determined that the district court‘s review of the State‘s response to a 60-1507 motion did not trigger a movant‘s right to counsel. Stewart, 309 Kan. ___, Syl. ¶ 3.
Stewart reiterated that a 60-1507 movant has no constitutional right to the effective assistance of counsel in the postconviction proceedings, but that, under sоme
circumstances, a statutory right to counsel exists for such a collateral attack. Stewart, 309 Kan. ___, slip op. at 8. Specifically, pursuant to
Further, Stewart clarified that the protocol set forth in Lujan v. State, 270 Kan. 163, 170-71, 14 P.3d 424 (2000), does not require the appointment of counsel when the district court discerns a potentially substantial issue, albeit the court has the discretion to dо so. “In other words, the district court may, but is not required to, appoint an indigent 60-1507 movant an attorney during the period the court is making its determination of whether the motion, files, and record present a substantial question of law or triable issue of fact.” Stewart, 309 Kan. at ___, slip op. at 11-12.
On the other hand, however, if the district court conducts an actual hearing to determine whether substantial issues are presented by the motion, files, and rеcords, at which the State is represented by counsel, due process of law requires that the movant be represented by counsel unless he or she has waived the right to counsel. Stewart, 309 Kan. ___, slip op. at 12. But Stewart specifically rejected the argument that the district court‘s consideration of the State‘s response, standing alone, is the functional equivalent of the court conducting a hearing at which the State is represented by an attorney. Stewart, 309 Kan. at ___, slip op. at 16.
In short, the district court did not determine that Redding‘s motion, and the files and records of the case, presented a substantial question of law or triable issue of fact. Consequently, the district court was not statutorily required to appoint Redding an attorney under
right to appointed counsel. Consequently, the lower courts’ holdings on the appointment-of-counsel issue is affirmed.
Redding creatively argues that his sentence is illegal because, after granting his written motion to depart from the Jessica‘s Law off-grid hard 25 life sentence to an on-grid determinate sentence, the district court did not consider his written allocution аs a second motion to further depart from the gridbox numbers to a still shorter sentence. The argument is factually and legally infirm.
Standard of Review
Whether a sentence is illegal is a question of law subject to de novo review. State v. Lee, 304 Kan. 416, 417, 372 P.3d 415 (2016). When the district court summarily denies a
Analysis
Under
Pursuant to the plea agreement, Redding pled nolo contendere to two off-grid felonies that each carried a sentence of a life sentence without parоle eligibility for 25 years. In other words, if the district court had exercised its discretion to impose consecutive hard 25 sentences, Redding would have been imprisoned for life without the possibility of parole for 50 years. Instead, the plea agreement recommended a departure to on-grid sentences that totaled 17.5 years. The record reflects that Redding knowingly, willingly, and voluntarily contraсted for that reduced sentence with full understanding of the terms of the plea agreement. Moreover, he did not complain when his attorney requested the sentence that the court ultimately imposed, to-wit:
“Your Honor, we are also asking the Court to follow the plea agreement. As [Assistant Attorney General] Karrer indicated, this was a lengthy negotiation process, with all sides putting forth everything that both sides had as to why they felt the sentence should end up where it ultimately ended up. So it is not just a quick, knee-jerk reaction, but it is a thoughtful process of the parties. So we are asking the Court to follow it.
“We have filed—in addition to the departure factors that are set forth in the plea agreement, Your Honor, we did also file . . . a specific defendant‘s motion for a departure sentence, where we listed those, as well as a few additional factors which the Court could consider. It would be our position that those individually or together would justify the departure that the parties have proposed to the Court.”
Redding attempts to crawfish on his attorney‘s statements by arguing that his counsel‘s departure motion requested a “durational departure,” which he claims is differеnt than a mere “departure.” But the record is clear that Redding‘s attorney was advocating for the court to follow the plea agreement that Redding had signed and that Redding had acknowledged to the court that he had read and understood.
Redding also attempts to characterize his written allocution as a pro se motion for additional durational departure. Again, that after-the-fact creativity is belied by the record. At the sentencing hearing, Redding‘s counsel stated:
“Mr. Redding has indicated to me that he would ask the Court to consider [the letter] as his allocution for his right of allocution at the time of sentencing and is submitted for that purpose. But we would ask the Court to follow the plea agreement.” (Emphasis added.)
When the district court then asked Redding if he had anything additional he wanted to say, he declined comment.
In short, the district court propеrly considered Redding‘s initial departure
Affirmed.
JOHNSON, J.