State v. Love ( 2020 )

NOT DESIGNATED FOR PUBLICATION
No. 121,964
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
TONY LOVE,
Appellant.
MEMORANDUM OPINION
Appeal from Wyandotte District Court; R. WAYNE LAMPSON, judge. Opinion filed July 31, 2020.
Affirmed.
Joseph A. Desch, of Law Office of Joseph A. Desch, of Topeka, for appellant.
Daniel G. Obermeier, assistant district attorney, Mark A. Dupree Sr., district attorney, and Derek
Schmidt, attorney general, for appellee.
Before ARNOLD-BURGER, C.J., BRUNS and SCHROEDER, JJ.
PER CURIAM: Tony Love appeals the district court's summary denial of his pro se
K.S.A. 60-1507 motion. Originally, Love's attorney filed this appeal before the Kansas
Supreme Court, which found Love's appeal was based on the denial of his K.S.A. 60-
1507 motion before the district court. The Supreme Court transferred the appeal to us to
resolve. On appeal, Love changed from requesting relief under K.S.A. 60-1507 to
claiming his sentence for 15 years to life imprisonment was an illegal sentence. Upon
examining Love's brief on appeal, we find no reviewable argument to address. We affirm.
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FACTS
In 1980, Love was sentenced to serve 15 years to life imprisonment after a jury
convicted him of aggravated robbery. His conviction was affirmed by the Kansas
Supreme Court on direct appeal. State v. Love, No. 51,999 (Kan. 1981) (unpublished
opinion). In July 1993, Love was granted parole; however, it appears his parole was
revoked after he was convicted of aggravated assault in 1995. But the record is unclear.
See State v. Love, No. 114,537, 2016 WL 7324382, at *1 (Kan. App. 2016) (unpublished
opinion) (affirming district court's summary denial of Love's motion to correct illegal
sentence based on aggravated assault conviction).
Love filed a pro se postconviction motion in 2017 using a stock form for habeas
corpus relief under K.S.A. 60-1507. The form Love used was incomplete and was
missing pages 3 and 4 which generally contain the sections asking the movant to explain
why he or she is seeking relief. The only ground for relief stated in the motion appeared
in section 20, where Love briefly challenged the constitutional effectiveness of his
counsel. He titled the document "Motion to Correct Illegal Sentences" and referenced the
illegal sentence statute, K.S.A. 22-3504. Along with his motion, Love attached the
district court's journal entry of judgment from his 1980 aggravated robbery conviction.
The district court summarily denied Love's motion on October 30, 2017. It found
although Love referenced K.S.A. 60-1507 and K.S.A. 22-3504 in his motion, he failed to
support his motion with a legal or factual basis for relief.
Originally, the attorney appointed to represent Love on appeal docketed the appeal
with the Kansas Supreme Court. But the Supreme Court issued an order directing the
parties to show cause why the appeal should not be transferred to our court. The Supreme
Court explained it had jurisdiction to hear the appeal only if the district court treated the
motion as a request for relief under K.S.A. 22-3504. After both parties responded, the
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Supreme Court issued an order on December 9, 2019, finding the district court treated the
motion as a request for K.S.A. 60-1507 relief and "[t]he initial appeal of a district court's
ruling on a K.S.A. 60-1507 motion goes to the Court of Appeals." The appeal was
transferred to us under K.S.A. 20-3018(a).
ANALYSIS
For the first time on appeal, Love claims his sentence is illegal because the district
court sentenced him to the maximum sentence provided under K.S.A. 1979 Supp. 21-
4501(b) without considering the statutory criteria under K.S.A. 21-4606 (1973 Weeks).
But we have no jurisdiction over whether Love's sentence is illegal, and the issue over
which we do have jurisdiction—whether he is entitled to K.S.A. 60-1507 relief—Love
fails to brief on appeal.
In a criminal case, the jurisdiction of the Kansas Supreme Court and Court of
Appeals is limited to the instances provided in K.S.A. 2019 Supp. 22-3601 and K.S.A.
2019 Supp. 22-3602. See K.S.A. 60-2101(a), (b). Under K.S.A. 2019 Supp. 22-3601(a),
all criminal appeals fall within the appellate jurisdiction of the Court of Appeals unless
the law requires the defendant to directly appeal to the Supreme Court. One of these
exceptions to our court's original jurisdiction is found in K.S.A. 2019 Supp. 22-
3601(b)(3), which requires a defendant sentenced to a maximum of life imprisonment to
directly appeal to the Supreme Court. If the Supreme Court has jurisdiction over the
defendant's direct appeal, then it also has jurisdiction over the defendant's motion to
correct an illegal sentence under K.S.A. 2019 Supp. 22-3504. See State v. Pennington,
288 Kan. 599, 601, 205 P.3d 741 (2009). Love received a maximum life imprisonment
sentence for his aggravated robbery conviction, so only the Supreme Court has
jurisdiction to consider whether his sentence was illegal, assuming the district court
construed Love's motion as a request for relief under K.S.A. 2019 Supp. 22-3504.
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The Kansas Supreme Court, however, declared "the district court treated
Appellant's motion as one for relief under K.S.A. 60-1507." Because K.S.A. 60-1507
actions are original civil cases and fall within the jurisdiction of the Court of Appeals, the
Supreme Court transferred the appeal to us. See K.S.A. 2019 Supp. 60-1507(d); Kirtdoll
v. State, 306 Kan. 335, 337, 393 P.3d 1053 (2017). Based on the Supreme Court's order,
we must treat Love's appeal as an appeal from the summary denial of his K.S.A. 60-1507
motion. But in his brief on appeal, rather than requesting relief under K.S.A. 2019 Supp.
60-1507, Love only challenges the legality of his sentence. Because he fails to brief or
argue why he is entitled to relief under K.S.A. 2019 Supp. 60-1507, he has abandoned
any claim for relief under that statute. See State v. Arnett, 307 Kan. 648, 650, 413 P.3d
787 (2018) (issue not briefed deemed waived or abandoned).
Love claims we have jurisdiction to hear his illegal sentence claim for the first
time on appeal because K.S.A. 2019 Supp. 22-3504(a) directs: "The court may correct an
illegal sentence at any time." Kansas appellate courts have interpreted this provision to
allow a defendant to challenge the legality of his or her sentence for the first time on
appeal. See, e.g., State v. Sartin, 310 Kan. 367, 375, 446 P.3d 1068 (2019). The ability of
a defendant to raise a claim for the first time on appeal, however, differs from a court's
jurisdiction to hear an appeal. "Appellate jurisdiction defines our power to consider an
appeal at all, regardless of the issues raised." State v. McCroy, 57 Kan. App. 2d 643, 458
P.3d 988, 992 (2020). K.S.A. 2019 Supp. 22-3504 itself does not vest an appellate court
with jurisdiction. Rather, under K.S.A. 2019 Supp. 22-3601(b)(3), Love can only
challenge the legality of his sentence before the Supreme Court.
Because Love abandoned his claim for relief under K.S.A. 60-1507, we affirm the
district court's summary denial of his motion.
Affirmed.
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