State v. Horn ( 2021 )

NOT DESIGNATED FOR PUBLICATION
No. 123,213
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
JERRY ALLEN HORN,
Appellant.
MEMORANDUM OPINION
Appeal from Johnson District Court; JAMES F. VANO, judge. Opinion filed October 22, 2021.
Affirmed.
Jerry Allen Horn, appellant pro se.
Shawn E. Minihan, assistant district attorney, Stephen M. Howe, district attorney, and Derek
Schmidt, attorney general, for appellee.
Before ARNOLD-BURGER, C.J., SCHROEDER, J., and WALKER, S.J.
PER CURIAM: In 2006, Jerry Allen Horn pled guilty to three counts of aggravated
indecent liberties with a child, three counts of aggravated criminal sodomy, and one
count of sexual exploitation of a child. After the Kansas Supreme Court remanded his
case due to a sentencing error, Horn received a 246-month prison sentence, followed by
36 months' postrelease supervision. Prior to his resentencing, Horn filed a motion to
withdraw his pleas, which the district court denied. That denial was subsequently
affirmed by a panel of our court. Horn later filed a motion under K.S.A. 60-1507, which
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was likewise denied by the district court. Once again our court affirmed the district
court's refusal to grant relief to Horn.
In the appeal currently before us, Horn filed a motion to correct an illegal
sentence, which the district court summarily denied. He now appeals, arguing (1) his
sentence is illegal because his due process rights were violated during his plea hearing,
(2) his sentence is illegal because the district court failed to pronounce a period of
postrelease supervision from the bench, and (3) the district court erred in summarily
denying his motion without appointing counsel. After carefully reviewing Horn's
arguments and the record before us, we affirm the district court's denial of his motion.
FACTS AND PROCEDURAL BACKGROUND
In April 2005, the State charged Horn with three counts of aggravated indecent
liberties with a child, three counts of aggravated criminal sodomy, and one count of
sexual exploitation of a child. Horn pled guilty as charged.
The State filed a notice of intent to seek an upward durational departure, and the
district court impaneled a jury to consider the matter. The jury found Horn had a
fiduciary relationship with his 10-year-old victim, an applicable aggravating factor.
Based on that finding, the district court sentenced him to a controlling 468-month
sentence.
Horn appealed his convictions and his sentence. State v. Horn, 291 Kan. 1, 238
P.3d 238 (2010). The Kansas Supreme Court affirmed Horn's convictions, but due to a
sentencing error—the impaneling of the jury for the upward durational departure
proceeding—it vacated his sentence and remanded for resentencing without an upward
durational departure. 291 Kan. at 12.
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After his case was remanded, Horn moved to withdraw his plea, but the district
court denied his motion. Following that denial, Horn was resentenced in August 2012—
this time receiving a controlling 246-month sentence, followed by 36 months' postrelease
supervision. Horn then appealed the district court's denial of his motion to withdraw his
plea. A panel of our court affirmed the denial of Horn's motion. State v. Horn, No.
108,733, 2013 WL 5925963 (Kan. App. 2013) (unpublished opinion).
In March 2015, Horn filed a K.S.A. 60-1507 motion, which was summarily
denied. Horn appealed that decision, and our court affirmed. Horn v. State, No. 114,982,
2016 WL 7429319 (Kan. App. 2016) (unpublished opinion).
Most recently, in August 2019, Horn filed a pro se motion to correct an illegal
sentence, arguing he was not informed of the maximum potential sentence he faced when
he pled guilty in 2006 because he was not advised of the applicable period of postrelease
supervision. The district court summarily denied Horn's motion. Although the court noted
that during his 2006 plea hearing "[t]here was no mention of a postrelease supervision
prior to entry of the plea," it found Horn had already "tried multiple times unsuccessfully
to raise the issue concerning the failure to mention postrelease supervision as a
consequence of conviction prior to accepting his guilty plea to the multiple felony
offenses." The court concluded it was bound by these prior rulings on the issue, noting:
"If that issue was missed or erroneously addressed by original counsel, original appellate
counsel, counsel on the remand, the original sentencing Judge, the appointed counsel for
the 60-1507 case, this resentencing Judge, or the Court of Appeals on two different
occasions, it is a finished matter under the mandates by which this Court is controlled."
Additionally, the district court concluded that Horn's additional argument that he received
a sentence longer than the maximum he was advised of was unpersuasive because the
original sentencing court informed him that the maximum possible sentence he could
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receive was 492 months' imprisonment—far greater than the sentence of 246 months
Horn ultimately received. For these reasons, the court found the motion, files, and record
conclusively showed Horn was not entitled to relief.
Horn has timely appealed the denial of his motion.
DISCUSSION
We review the summary denial of a motion to correct an illegal sentence under
K.S.A. 22-3504 de novo, since we have the same access to the motions, records, and files
as the district court. On appeal, the question we must determine is whether these
documents conclusively show the defendant is not entitled to relief. An illegal sentence
may be corrected at any time while a defendant is serving their sentence. K.S.A. 2020
Supp. 22-3504(a). But the illegal sentence statute has very limited applicability. State v.
Alford, 308 Kan. 1336, 1338, 429 P.3d 197 (2018).
K.S.A. 22-3504 only applies if a sentence is illegal. Deal v. State, 286 Kan. 528,
Syl. ¶ 1, 186 P.3d 735 (2008). Whether a sentence is illegal is a question of law over
which we exercise unlimited review. Alford, 308 Kan. at 1338. A sentence is illegal when
it (1) is imposed by a court without jurisdiction; (2) does not conform to the applicable
statutory provision, either in character or punishment; or (3) is ambiguous with respect to
the time and manner in which it is to be served. K.S.A. 2020 Supp. 22-3504(c)(1).
Because the definition of an illegal sentence does not encompass violations of
constitutional provisions, a defendant may not challenge a sentence on constitutional
grounds under K.S.A. 22-3504. State v. Lee, 304 Kan. 416, 418, 372 P.3d 415 (2016); see
also State v. Hankins, 304 Kan. 226, 230-31, 372 P.3d 1124 (2016) (noting due process
based claim "does not fit within the limited definition of an illegal sentence for K.S.A.
22-3504 purposes").
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On appeal, Horn first argues his sentence is illegal due to a violation of his due
process rights during his plea hearing. While Horn appears to recognize that the grounds
for relief under K.S.A. 22-3504 are limited, he nevertheless raises this due process
challenge concerning his underlying convictions. In denying Horn's motion, the district
court noted that Horn had previously raised these due process issues when he appealed
from the denial of his motion to withdraw his plea and the denial of his K.S.A. 60-1507
motion. See Horn v. State, 2016 WL 7429319; State v. Horn, 2013 WL 5925963.
It is true that Horn has raised similar arguments previously. More importantly,
however, K.S.A. 22-3504 is not an appropriate vehicle for addressing the constitutional
claim Horn alleges. State v. Dickey, 305 Kan. 217, 220, 380 P.3d 230 (2016) ("'[T]he
definition of an illegal sentence does not include a claim that the sentence violates a
constitutional provision [and] a defendant may not file a motion to correct an illegal
sentence based on constitutional challenges to his or her sentence.'"). Accordingly, Horn
is not entitled to relief under K.S.A. 2020 Supp. 22-3504 for this claim because it is the
wrong procedural vehicle for his due process based claims.
Next, Horn appears to argue that his sentences are illegal because the district court
failed to announce a period of postrelease supervision when his case was remanded by
the Supreme Court and he was resentenced to 246 months. Despite this contention, the
journal entry of judgment from Horn's 2012 resentencing does include a period of
postrelease supervision of 36 months. And Horn has not included a transcript from the
resentencing hearing in the record on appeal, which was his burden to designate. Without
a sufficient basis to evaluate his claim that the district court failed to pronounce
postrelease supervision at the time of resentencing, we cannot adequately evaluate Horn's
claim. See Friedman v. Kansas State Bd. of Healing Arts, 296 Kan. 636, 644, 294 P.3d
287 (2013). Accordingly, based on the only record before us, there is no evidence that the
sentences Horn received on remand were not in conformity with K.S.A. 2020 Supp. 21-
6804(e)(2)(C), which mandates imposition of the postrelease supervision at the time of
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sentencing. Thus, Horn's claim of alleged error fails. To the extent Horn is attempting to
argue that his prior sentences (the sentences which were in place before the remand) are
illegal due to a failure to announce postrelease supervision, his argument also fails. Those
prior sentences were vacated by the Supreme Court and no longer exist. Horn's current
sentences, imposed by the district court following the remand, control and are in
conformity with K.S.A. 2020 Supp. 21-6804(e)(2)(C).
Horn also posits that the sentences he received on remand are illegal because they
exceeded the maximum penalty he had been previously advised of (again in violation of
his due process rights). Horn's argument fails for two reasons. First, as noted above, a
defendant may not challenge a sentence on constitutional grounds under K.S.A. 2020
Supp. 22-3504. Second, even if Horn had properly raised this argument under an
appropriate motion, the sentences he received on remand require service of less time than
the maximum penalty he was advised of at the plea hearing back in 2006. See State v.
Terning, 57 Kan. App. 2d 791, 795-97, 460 P.3d 382 (2020); State v. Barahona, 35 Kan.
App. 2d 605, 614, 132 P.3d 959 (2006).
At his plea hearing, the district court advised Horn that the maximum penalty he
could face was 492 months, and, after his case was remanded for resentencing, Horn was
ultimately resentenced to 246 months in prison followed by 36 months' postrelease
supervision. In other words, Horn's actual prison sentence and mandatory postrelease
supervision are less than the maximum penalty he was advised of at the plea hearing.
Finally, Horn contends the district court erred in failing to appoint him counsel to
represent him and argue his motion. But "K.S.A. 22-3504 does not automatically require
a full hearing upon the filing of a motion to correct an illegal sentence." State v. Hoge,
283 Kan. 219, 224, 150 P.3d 905 (2007). Our Kansas Supreme court has "consistently
rejected . . . that the plain language of K.S.A. 22-3504 requires a substantive proceeding
and the assistance of counsel in all cases. . . . [T]he statute's protections do not apply
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when a court summarily denies a motion to correct an illegal sentence." Makthepharak v.
State, 298 Kan. 573, 576, 314 P.3d 876 (2013). Because the district court appropriately
dismissed Horn's motion, he was not entitled to counsel.
Affirmed.
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