State v. Sellers ( 2015 )

IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 109,080
STATE OF KANSAS,
Appellee,
v.
JERRY SELLERS,
Appellant.
SYLLABUS BY THE COURT
1.
Exceptions to K.S.A. 60-1507 as the platform for a criminal defendant's challenge
to his or her conviction or sentence exist in some circumstances, and the district courts
and appellate courts have jurisdiction to determine the procedural and substantive merit
of such a challenge.
2.
K.S.A. 22-3503 does not provide a procedural mechanism for a criminal defendant
to challenge the adequacy of a charging document on motion in the district court after a
direct appeal has been pursued and decided.
Review of the judgment of the Court of Appeals from an order filed October 28, 2013, dismissing
the appeal for lack of jurisdiction. Appeal from Harvey District Court; JOE DICKINSON, judge. Opinion
filed March 6, 2015. Judgment of the Court of Appeals dismissing the appeal is reversed, the appeal is
reinstated, and the judgment of the district court is affirmed.
1
Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, argued the cause and was
on the brief for appellant.
David E. Yoder, county attorney, argued the cause, and Derek Schmidt, attorney general, was with
him on the brief for appellee.
The opinion of the court was delivered by
BEIER, J.: This is an appeal arising from defendant Jerry Sellers' "Motion to Arrest
Judgment Pursuant to K.S.A. 22-3503." Sellers argued that the charging document in his
Jessica's Law case failed to include the essential element that he was age 18 or older at
the time of the alleged crimes, and he relied on language in this court's decision in State
v. Portillo, 294 Kan. 242, 256, 274 P.3d 640 (2012), which states that "K.S.A. 22-3503
allows the trial court to arrest judgment without a motion by defendant and without the
time constraints of K.S.A. 22-3502."
The district court judge denied Sellers' motion. Sellers appealed. The Court of
Appeals dismissed the appeal, apparently relying on State v. Mitchell, 297 Kan. 118, Syl.
¶ 1, 298 P.3d 349 (2013), in which we rejected a criminal defendant's attempt to use
K.S.A. 60-260(b)(4) as a procedural vehicle for collateral attack on a conviction. 297
Kan. at 125.
We hold that appellate jurisdiction exists to consider whether K.S.A. 22-3503 may
afford postconviction relief in a situation such as Sellers', and we ultimately conclude that
it does not.
2
FACTUAL AND PROCEDURAL BACKGROUND
In 2008, a jury convicted Jerry Sellers on two counts of aggravated indecent
liberties with a child. This court laid out the facts underlying Sellers' convictions when
his case was before us on direct appeal, see State v. Sellers, 292 Kan. 117, 253 P.3d 20(2011), as modified June 22, 2011, and a lengthy recitation of those facts is unnecessary
for the disposition today. Highly summarized, the 13-year-old daughter of Sellers'
girlfriend accused Sellers of touching her breast and pubic area on Thanksgiving morning
2007. 292 Kan. at 348-50.
Count 1 alleged:
"That on or about the 24th day of November, 2007, in Harvey County, Kansas, Jerry Dale
Sellers Jr, then and there being present did unlawfully, feloniously and intentionally
engage in lewd fondling or touching of MRC (DOB: 08/16/1994), a child under 14 years
of age, by fondling her breast, with the intent to arouse or to satisfy the sexual desires of
the victim, the defendant, or both, in violation of K.S.A. 21-3504(a)(3)(A), Aggravated
Indecent Liberties with a Child, an off-grid person felony, penalties include
imprisonment of life imprisonment with a mandatory minimum term of not less than 25
years, a fine not to exceed $300,000, and lifetime post-release supervision."
Count 2 was identical except for the target of Sellers' touch. Neither count alleged that
Sellers was 18 or older at the time of illegal conduct, but the charging document did list
Sellers' year of birth as 1971, making him well beyond 18 years old by Thanksgiving
2007.
At sentencing, the district court judge departed from the life sentence and
mandatory 25-year minimum of Jessica's Law, instead imposing a 72-month sentence for
3
Count 1 and a consecutive 59-month sentence for Count 2. Sellers did not file a motion to
arrest judgment in the district court before pursuing his direct appeal.
On appeal, Sellers challenged his lifetime postrelease supervision, which is
required as part of a Jessica's Law sentence. See Sellers, 292 Kan. at 360. At sentencing,
the district court judge had initially ordered 36 months' postrelease supervision but, after
going off the record briefly, changed the postrelease term to life. Sellers argued that
lifetime postrelease was inappropriate because the State had failed to charge and prove
that he was 18 years or older. He did not, however, challenge the statutory adequacy or
constitutionality of the charging document to support his prosecution overall.
Our decision in Sellers' direct appeal recognized that a defendant's age of 18 or
older was an element of the off-grid Jessica's Law aggravated indecent liberties charges
but noted that we had excused the State from charging and ensuring jury instructions on
that element when evidence in the trial record "left no doubt that the omissions made no
practical difference in the verdict." Sellers, 292 Kan. at 362 (citing State v. Reyna, 290
Kan. 666, 234 P.3d 761 [2010]; State v. Colston, 290 Kan. 952, 235 P.3d 1234 [2010]).
When, on the other hand, there had been no such evidence, a defendant could receive
only the punishment consistent with the on-grid form of the offense. Sellers, 292 Kan. at
362. In Sellers' case, we acknowledged, the charging document failed to allege the age
element. Also, there was no express evidence of Sellers' age admitted at trial, and jurors
were not instructed that they had to agree that Sellers was 18 or older when he committed
the offenses. We nevertheless affirmed the postrelease supervision because it was
required under K.S.A. 22-3717(d)(1)(G) for offenders convicted of a "sexually violent
crime" committed after July 1, 2006. Aggravated indecent liberties under K.S.A. 21-
3504—whether off-grid or on-grid—qualified as a sexually violent crime.
4
Following his direct appeal, Sellers timely filed a motion challenging his
convictions under K.S.A. 60-1507. In the motion, Sellers alleged ineffective assistance of
his appointed trial counsel. The district court held an evidentiary hearing on the motion at
which Sellers and his trial counsel testified. The district court denied the motion, and the
Court of Appeals affirmed. See Sellers v. State, No. 109,537, 2014 WL 2589785, at *3
(Kan. App. 2014) (unpublished opinion).
Five days before the evidentiary hearing on his K.S.A. 60-1507 motion, Sellers
filed the motion that is the subject of this appeal. He argued that the charging document
had been fatally defective and had deprived the district court of jurisdiction to convict
him on either count. The district judge denied the motion, reasoning that "the Kansas
Supreme Court specifically was aware of the complaint's failure to include the 18 years
or older element in this case and effectively approved this omission in [its] opinion
dealing with the issue of [lifetime postrelease supervision]." The district court concluded
that this court would have "reversed for lack of jurisdiction on [its] own motion" on
Sellers' direct appeal if there had been a concern on that issue.
Sellers filed a timely appeal to the Court of Appeals. The Court of Appeals issued
a show cause order, which read in part:
"A review of the brief and the record on appeal suggests that the sole issue on
appeal is controlled by the Kansas Supreme Court's ruling in State v. Mitchell, 297 Kan.
118, 298 P.3d 349 (2013), where the Court made clear that K.S.A. 60-1507 provides the
exclusive remedy to collaterally attack a criminal conviction and sentence."
The Court of Appeals ordered Sellers to show cause why his case should not be
dismissed for lack of jurisdiction.
5
Sellers filed a response, arguing that his motion had been properly filed under
K.S.A. 22-3503 and that Mitchell's "'exclusiveness of remedy' holding has only ever been
applied by the Kansas appellate courts relating to challenges to inmates relying on K.S.A.
60-260(b), 'Grounds for relief from a final judgment, order or proceeding' under the civil
code."
On the same day that Sellers filed his response, the Court of Appeals dismissed the
appeal without further explanation. We accepted Sellers' petition for review.
DISCUSSION
Jurisdiction
The only issue listed in Sellers' petition for review is one of jurisdiction, i.e.,
whether the Court of Appeals erred in dismissing the appeal based on Mitchell, 297 Kan.
118, Syl. ¶ 1. Subject matter jurisdiction in the district court and appellate court raises a
question of law reviewable de novo by this court. See State v. Key, 298 Kan. 315, 318,
312 P.3d 355 (2013).
As Sellers points out, Mitchell dealt with a convicted defendant's attempt to
employ K.S.A. 60-260(b)—a provision of the Kansas civil code that may be invoked by a
civil litigant to obtain relief from a final judgment, order, or proceeding—as a procedural
vehicle for a collateral attack on a criminal conviction. 297 Kan. at 119. Sellers asserts
that Mitchell must be read narrowly, disallowing a criminal defendant's use of K.S.A. 60-
260(b) only.
We have already implicitly rejected Sellers' narrow reading of Mitchell in State v.
Kingsley, 299 Kan. 896, 326 P.3d 1083 (2014). In Kingsley, this court relied on Mitchell
6
to hold that neither K.S.A. 60-260(b) nor K.S.A. 60-2606, a different provision
discussing availability of relief in certain circumstances in civil proceedings, may be used
as a platform from which to mount a collateral attack on a criminal conviction and
sentence. 299 Kan. 896, Syl. ¶ 1.
But Sellers' argument focuses worthy attention on whether any earlier statement
about the exclusivity of the K.S.A. 60-1507 process should be clarified. He points out, for
example, that motions to correct illegal sentence have previously been recognized as
valid means to the end of attacking a criminal sentence. See State v. Gilbert, 299 Kan.
797, 801, 326 P.3d 1060 (2014) (K.S.A. 22-3504 motion provides vehicle to correct
illegal sentence); Makthepharak v. State, 298 Kan. 573, 577, 314 P.3d 876 (2013)
(district court properly considered motion to correct illegal sentence filed after direct
appeal).
In addition, we note that even Mitchell described a motion filed pursuant to K.S.A.
60-1507 as a "generally" exclusive remedy, thereby recognizing that exceptions to it
existed. 297 Kan. at 121. Indeed, both K.S.A. 60-1507(e) (exclusiveness of remedy) and
its implementing Supreme Court Rule 183(b) (2014 Kan. Ct. R. Annot. 286) explicitly
contemplate the possibility that there may be circumstances when a K.S.A. 60-1507
motion is "inadequate or ineffective to test the legality" of a movant's custody. In such
circumstances, another type of challenge would be appropriate.
Given these authorities, we hold that the Court of Appeals should not have
dismissed Sellers' appeal for lack of jurisdiction, relying only on our Mitchell decision.
The district court had subject matter jurisdiction over Sellers' motion, and the Court of
Appeals had appellate jurisdiction. It should have determined whether Sellers' motion
suffered from a fatal procedural or substantive flaw justifying its denial in district court.
7
Appropriateness of Reliance on K.S.A. 22-3503
Our jurisdictional ruling above leaves open the original question on appeal to the
Court of Appeals: Whether Sellers may raise a collateral challenge to the charging
document in a K.S.A. 22-3503 motion filed well after his direct appeal. Although we
could remand this case to the Court of Appeals for determination of this question of
statutory interpretation or construction in the first instance, see State v. Hilton, 295 Kan.
845, 852, 286 P.3d 871 (2012) (reinstating appeal after dismissal, remanding to Court of
Appeals for consideration of issue presented), we elect not to do so here. The underlying
factual and procedural history of this case is not in dispute, and the pure question of law
is as amenable to resolution before us as it would be before the Court of Appeals.
We begin by examining the language of the statute whose application Sellers seeks
to avoid; that statute, K.S.A. 2013 Supp. 22-3502, reads:
"The court on motion of a defendant shall arrest judgment if the complaint,
information or indictment does not charge a crime or if the court was without jurisdiction
of the crime charged. The 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."
Sellers plainly cannot avail himself of relief under K.S.A. 2013 Supp. 22-3502 because
he is years outside the time limit for filing his motion for arrest of judgment.
He has sought, instead, to bring his case under the protective umbrella of K.S.A.
22-3503, which reads: "Whenever 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." Sellers argues that his motion merely made the
court aware of the fatal defect in the charging document, and he emphasizes language in
8
our recent Portillo decision, 294 Kan. at 256, noting the absence of a time limit in K.S.A.
22-3503.
Sellers also is urged upon his unconventional path by more than the mere promise
of escape from the 14-day time limit in K.S.A. 2013 Supp. 22-3502. He seeks application
of the standard for review of charging documents that governed in Kansas cases before
this court's decision in State v. Hall, 246 Kan. 728, 793 P.2d 737 (1990), overruled in
part on other grounds by Ferguson v. State, 276 Kan. 428, 78 P.3d 40 (2003). That
standard has traditionally been understood to be more generous to defendants, judging
omissions from a charging document strictly and declaring a conviction void as a remedy
for any perceived fatal flaw, including the absence of mention of an essential element.
See State v. Hurd, 298 Kan. 555, 565, 316 P.3d 696 (2013). Since the Hall decision, the
pre-Hall standard for review of charging documents has been applied only when a
convicted defendant has alerted a district court to the potential problem by means of a
motion to arrest judgment. If, instead, a defendant does not raise the issue until the case is
on direct appeal or later, the charging document is viewed less strictly and a remedy for
the defense is far less likely. See State v. Inkelaar, 293 Kan. 414, 434, 264 P.3d 81(2011).
As with the subject of jurisdiction, Sellers' argument counsels this court's renewed
effort to achieve clarity—in this instance, on the timing of arrests of judgment under
K.S.A. 22-3503.
We note first that, nearly 20 years before Portillo was decided, this court had
imported the time limit set out in K.S.A. 22-3502 into K.S.A. 22-3503. See State v. Sims,
254 Kan. 1, 10, 862 P.2d 359 (1993) (time limit then 10 days after verdict).
9
Portillo, on the other hand, employed the lack of a time limit in the plain language
of K.S.A. 22-3503 to allow relief to a defendant surprised by the State's postconviction
effort to amend a presentence investigation report to reflect a current conviction of an off-
grid rape subject to Jessica's Law rather than the current conviction of on-grid rape that
had been charged and prosecuted. Portillo, 294 Kan. at 256. We recognized that the 14-
day window from verdict for filing of a 22-3502 motion for arrest of judgment, as
required by Hall to justify invocation of the pre-Hall standard for review of a charging
document, had already closed by the time the State sought to amend the PSI. 294 Kan. at
256. The State argued that Portillo's challenge to the charging document should be
subject to the post-Hall analysis. We disagreed, holding that the Hall goal of timely
district court review of a challenge to the adequacy of the charging document would have
been met if the district judge had acted sua sponte under K.S.A. 22-3503. 294 Kan. at
256-57.
The procedural posture of this case bears no resemblance to that before us in
Portillo or in Sims, each of which contemplated district judge action before the district
court was divested of jurisdiction by the docketing of a direct appeal. They also
contemplated sua sponte district judge action, not action prompted by the filing of a
defense motion. This is in keeping with the plain language of the statute, which specifies
that the court may arrest judgment "without motion." K.S.A. 22-3503.
Were we to interpret or construe K.S.A. 22-3503 to apply when there has been a
defense motion, K.S.A. 2013 Supp. 22-3502 and its time limitation would be rendered a
nullity. Such a holding would not only contradict the plain language of K.S.A. 22-3503; it
also would run afoul of our usual presumption that the legislature does not enact
meaningless statutes. See State v. Frierson, 298 Kan. 1005, 1012-13, 319 P.3d 515(2014).
10
K.S.A. 22-3503 is not a procedural vehicle that supports a defense motion for
arrest of judgment long after a direct appeal has been pursued and decided. It is meant to
permit a district judge to arrest judgment sua sponte before a direct appeal is taken.
Before closing, we also note that the district court overread our holding in Sellers'
direct appeal. It was limited to the postrelease issue. See Sellers, 298 Kan. at 363. This
court did not decide whether the charging document conferred subject matter jurisdiction
on the district court. The import of our decision today is that, if Sellers still wishes to
challenge the adequacy of the charging document, he needs to employ a procedural
mechanism other than K.S.A. 22-3503. And, substantively, he will need to deal with any
legal effect of the inclusion of his birthdate, a birthdate that meant he had reached his
mid-30s on Thanksgiving 2007, the day of the crimes.
CONCLUSION
Because the Court of Appeals erred in dismissing this appeal, it is reinstated.
However, no relief is due the defendant on his motion under K.S.A. 22-3503, and the
judgment of the district court is therefore affirmed.
11