State v. Swafford – Johnson – Affirmed – Saline ( 2017 )

IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 114,534
STATE OF KANSAS,
Appellee,
v.
ARTIS SWAFFORD,
Appellant.
SYLLABUS BY THE COURT
1.
The time limit within which to appeal a ruling on a motion to correct an illegal
sentence, filed pursuant to K.S.A. 22-3504, is 30 days after the entry of judgment.
2.
A motion for additional findings of fact under K.S.A. 2016 Supp. 60-252 or a
motion for a rehearing under K.S.A. 2016 Supp. 60-259 is timely if filed within 28 days
of judgment, and the effect of such timely filed motions is to toll the time for filing an
appeal.
3.
When the sentencing judge announces that the current sentence is to run
consecutive to a sentence previously imposed in a case that the judge identifies by case
number only and the record reflects that there is only one case in the defendant's criminal
history assigned that announced case number, the resulting sentence is not ambiguous.
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4.
A sentencing judge is authorized to order the current sentence to be served
consecutive to a previously imposed underlying misdemeanor sentence upon which the
defendant is on probation at the time of sentencing notwithstanding that a revocation
proceeding in the misdemeanor case has not been completed.
5.
Without running afoul of due process, a district court has the authority to
summarily deny a K.S.A. 22-3504 motion to correct an illegal sentence without a hearing
and may summarily assess the adequacy of its findings of fact and conclusions of law
memorializing the summary denial without a hearing.
Appeal from Saline District Court; JARED B. JOHNSON, judge. Opinion filed June 2, 2017.
Affirmed.
Gerald E. Wells, of Jerry Wells Attorney-at-Law, of Lawrence, was on the brief for appellant.
Ellen Hurst Mitchell, county attorney, and Derek Schmidt, attorney general, were on the brief for
appellee.
JOHNSON, J.: Artis Swafford appeals the Saline County District Court's summary
dismissal of his fourth K.S.A. 22-3504 motion to correct an illegal sentence. Swafford
was sentenced in 1993 to life in prison for felony murder and a term of 15 years to life for
aggravated robbery; the sentences were ordered to be served consecutively to each other
and to sentences imposed in separate cases in Saline and Geary counties. Swafford
contends that the sentencing judge's pronouncement of consecutive sentencing was
ambiguous and that the judge was prohibited from ordering the sentence in this case to be
served consecutively to the underlying sentence in Geary County because a probation
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revocation proceeding was still pending in that county. Swafford's arguments are
unavailing; the district court is affirmed.
FACTUAL AND PROCEDURAL OVERVIEW
Swafford and two others brutally beat and killed a motel night clerk during an
armed robbery. In 1993, a jury convicted Swafford of felony murder and aggravated
robbery. District Judge Daniel Hebert imposed a life sentence for the felony murder, and
15 years to life for the aggravated robbery. See K.S.A. 21-4501(a) (Ensley 1988) (life
sentence for Class A felonies); K.S.A. 21-4501(b) (Ensley 1988) (sentencing range for
Class B felonies). The district court ordered the sentences to be served consecutive to
each other and consecutive to sentences previously imposed in separate cases in Saline
and Geary counties. Additionally, Judge Hebert recommended that authorities defer
consideration of parole beyond Swafford's initial date of parole eligibility.
Swafford's convictions and sentences were affirmed on direct appeal. State v.
Swafford, 257 Kan. 1023, 897 P.2d 1027 (1995). Since then, Swafford has been very
litigious, including the filing of K.S.A. 22-3504 motions to correct an illegal sentence in
2001, 2006, and 2010, all of which were denied. Swafford was unable on appeal to obtain
relief from those denials. See, e.g., State v. Swafford, No. 104,788, 2011 WL 5066936
(Kan. 2011) (unpublished opinion).
The current pro se motion to correct an illegal sentence was filed on August 5,
2014. Saline County District Judge Jared B. Johnson summarily denied the motion on
September 23, 2014. Then, Swafford filed a motion for additional findings and the
district court set a hearing date of November 3, 2014, on that motion. On October 31,
2014, however, the district court denied the motion for additional findings without a
hearing, specifically finding that the original order of denial contained sufficient findings
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of fact and conclusions of law. Consequently, the district court cancelled the scheduled
hearing. Swafford filed a notice of appeal on November 4, 2014.
Swafford contends that the district court erred in denying his motion to correct an
illegal sentence and that the district court denied Swafford due process when it cancelled
the scheduled hearing on the motion for additional findings. The State responds that this
court is without jurisdiction to hear Swafford's first issue because the notice of appeal
was untimely. We take the liberty of addressing the State's contention first.
TIMELINESS OF NOTICE OF APPEAL
The State's factual summary simply recites that "[n]o notice of appeal was filed
within fourteen days." But it does not support its contention with citation to specific
statutory authority or with any meaningful argument as to why a 14-day limit would
apply here. Normally an issue that is not supported by authority or is only mentioned in a
cursory manner is deemed waived or abandoned. State v. Sprague, 303 Kan. 418, 425,
362 P.3d 828 (2015).
But the question of whether an appeal is timely implicates this court's jurisdiction
because unless an appeal is brought in conformance with the applicable statutes appellate
jurisdiction is not established. State v. Shelly, 303 Kan. 1027, 1036-37, 371 P.3d 820
(2016). If jurisdiction may be implicated, this court has an independent duty to question
its jurisdiction. State v. J.D.H., 48 Kan. App. 2d 454, 458, 294 P.3d 343, rev. denied 297
Kan. 1251 (2013).
Presumably, the State lifted the 14-day limit from K.S.A. 2016 Supp. 22-3608(c),
which provides: "For crimes committed on or after July 1, 1993, the defendant shall have
14 days after the judgment of the district court to appeal." In context, the judgment to
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which the statute refers is the sentencing of a criminal defendant. Moreover, Swafford
committed his crime before July 1, 1993, making that subsection inapplicable by its own
terms.
The unique nature of K.S.A. 22-3504, allowing relief from an illegal sentence "at
any time," creates an ambiguity as to the time limit in which to appeal the result in such a
proceeding. On appeal, civil rules of procedure apply in criminal cases unless otherwise
specified. K.S.A. 22-3606. For procedural purposes, an appeal from a denial of a K.S.A.
22-3504 motion is treated the same as a denial of a K.S.A. 60-1507 motion. State v.
Hoge, 283 Kan. 219, 222, 150 P.3d 905 (2007) ("[I]n general, this court has treated
procedural aspects of motions attacking sentences filed under K.S.A. 22-3504 the same
as those filed under K.S.A. 60-1507."); State v. Barnes, 37 Kan. App. 2d 136, 138, 149
P.3d 543 (2007). Given that K.S.A. 60-1507 proceedings are deemed to be civil matters,
the movant has 30 days from the entry of judgment to file a notice of appeal. K.S.A. 2016
Supp. 60-2103(a); see Barnes, 37 Kan. App. 2d at 138. Accordingly, Swafford would
ordinarily have had 30 days from the September 23, 2014, entry of judgment denying the
motion in which to file an appeal.
Here, however, movant filed a pro se motion for additional findings within the 30-
day period, specifically 17 days following the district court's judgment on the motion.
That motion cited to K.S.A. 2016 Supp. 60-252, but its content also requested a
rehearing, which would implicate K.S.A. 2016 Supp. 60-259, as well. A motion for
additional findings of fact under K.S.A. 2016 Supp. 60-252 or a motion for a rehearing
under K.S.A. 2016 Supp. 60-259 are timely if filed within 28 days, and the effect of such
timely filed motions is to toll the time for filing an appeal.
Accordingly, when the district court denied the motion for additional findings, on
October 31, 2014, Swafford had 13 days left in which to appeal the denial of his motion
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to correct an illegal sentence. He filed his appeal 4 days later, on November 4, 2014. In
short, Swafford timely filed his notice of appeal and this court has jurisdiction to proceed.
Cf. State v. Edwards, No. 109,647, 2016 WL 3659639, at *4 (Kan. 2016) (unpublished
opinion) (finding jurisdiction under similar circumstances).
LEGALITY OF SENTENCE
While a sentence that is illegal under K.S.A. 22-3504 may be corrected at any
time, the circumstances under which a sentence is deemed illegal for K.S.A. 22-3504
purposes are narrowly and specifically defined. An illegal sentence is: (1) a sentence
imposed by a court without jurisdiction; (2) a sentence that does not conform to
applicable statutory provisions; or (3) a sentence that is ambiguous. State v. Trotter, 296
Kan. 898, 902, 295 P.3d 1039 (2013). Swafford contends that his sentences are vague and
ambiguous regarding the time and manner in which they are to be served and that they
fail to conform to applicable statutory provisions.
Standard of Review
Whether a sentence is illegal is a question of law subject to de novo review. State
v. Gilbert, 299 Kan. 797, 801, 326 P.3d 1060 (2014).
Analysis
Swafford's claim of ambiguity and vagueness rests upon the way that Judge Hebert
described the sentences to which the current sentence would be consecutive. In court, the
judge ordered the current sentence to be served consecutive to sentences "previously
imposed in case 92-CR-1286, [and] in Geary County Case 91-CR-1129." The written
journal entry identifies the first previous sentence as Saline County case 92-CR-1286.
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Swafford argues that because the oral pronouncement failed to specify that case
no. 92-CR-1286 was a Saline County case, there would be no way to know to which case
the judge was referring and, therefore, the sentence is illegally ambiguous. The only
authority cited by Swafford is Abasolo v. State, 284 Kan. 299, 304-05, 160 P.3d 471
(2007), which held that a sentence is effective when it is pronounced from the bench and
that a sentence cannot be corrected by a subsequent journal entry. There, the sentencing
court announced a 36-month sentence, but the journal entry reflected a 52-month
sentence. The remedy in that case was to correct the journal entry to reflect the
pronounced sentence, but Abasolo did not find that the discrepancy rendered the sentence
illegal. 284 Kan. at 310.
The factual distinction here is that the journal entry does not conflict with the oral
pronouncement. Both refer to the same previous case, 92-CR-1286. Swafford does not
allege, and the record would refute, that there was another prior case in his criminal
history with the same case number as the Saline County case no. 92-CR-1286. In other
words, describing the sentence to which the current sentence was to run consecutive as
the one "previously imposed in case 92-CR-1286" clearly and unambiguously
communicated to the parties, their counsel, and to this court the precise sentence that was
being imposed. In short, there is no ambiguity here.
Swafford's claim that his sentences do not conform to statutory provisions centers
on his Geary County case. Apparently, when Swafford was sentenced in this case, a
motion to revoke his probation in the Geary County misdemeanor case was pending.
According to the State, Geary County subsequently dismissed the misdemeanor case and
discharged Swafford from probation as unsuccessful.
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Swafford argues that State v. Bell, 6 Kan. App. 2d 573, 574, 631 P.2d 254 (1981),
prohibited the district court from running his sentence consecutive to a probation
violation. Bell says no such thing. In that case, the district court imposed a sentence
"consecutive to any parole violation and consecutive to any sentence which may be
imposed upon the defendant in any pending case." 6 Kan. App. 2d at 573. The Court of
Appeals held that the district court's sentence was partially in error. A sentencing court
cannot impose a sentence to run consecutive to a case in which the defendant has not yet
been convicted or has never been sentenced. 6 Kan. App. 2d at 574; see also State v.
Reed, 237 Kan. 685, 690, 703 P.2d 756 (1985).
On the other hand, Bell noted that K.S.A. 1980 Supp. 21-4608(2) granted the
district court discretionary power to impose a sentence consecutively to the underlying
sentence in any case in which Bell was on parole. 6 Kan. App. 2d at 574. The distinction
being that a person on parole has already been sentenced to the term of incarceration
underlying the parole. The same is true for a person on probation. A probationer has been
sentenced to a term of incarceration underlying the probation, and that underlying
sentence is amenable to consecutive sentencing. Indeed, K.S.A. 21-4608(f)(3) would
have required consecutive sentencing if the Geary County case had involved a felony.
Swafford has failed to show that his consecutive sentencing illegally fails to
conform to statutory provisions or that his sentences are illegally vague or ambiguous.
The district court's summary denial of the motion to correct an illegal sentence was
correct.
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CANCELLATION OF HEARING
Swafford claims that when the district court summarily denied his motion for
additional findings and cancelled the previously scheduled hearing on that motion, it
violated Swafford's right to due process. His argument is unpersuasive.
Standard of Review
The question of what process is due is a question of law over which the court
exercises unlimited review. Hogue v. Bruce, 279 Kan. 848, 850, 113 P.3d 234 (2005).
Analysis
A person filing a K.S.A. 22-3504 motion to correct an illegal sentence is not
automatically entitled to a hearing. See Makthepharak v. State, 298 Kan. 573, 576, 314
P.3d 876 (2013) ("For more than 20 years we have instructed district courts considering a
motion to correct an illegal sentence to conduct an initial examination of the motion."). A
district court may summarily deny a K.S.A. 22-3504 motion if the motion, files, and
records conclusively show defendant is not entitled to relief. Hoge, 283 Kan. at 224.
Here, we were presented with sufficient findings to adequately review the district court's
summary denial and affirm the ruling below.
If a district court is imbued with the authority to summarily deny a K.S.A. 22-
3504 motion without running afoul of due process, the court can likewise assess the
adequacy of its findings of fact and conclusions of law that memorialize the summary
denial without conducting a hearing. Although Swafford repeatedly claims to have been
denied the opportunity to be heard on his objections to the district court's findings, he set
forth specific objections in his motion for additional findings, which the district court
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addressed. Swafford fails to explain how a hearing would have enhanced his opportunity
to be heard on the legal issue of the adequacy of findings. In short, we discern no due
process violation in canceling the hearing the court determined to be moot.
Affirmed.
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