Seward v. State

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NOT DESIGNATED FOR PUBLICATION

No. 115,841

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

ROY LEVERNE SEWARD,
Appellant,

v.

STATE OF KANSAS,
Appellee.


MEMORANDUM OPINION

Appeal from Saline District Court; RENE S, YOUNG, judge. Opinion filed March 10, 2017.
Affirmed in part and vacated in part.

Gerald E. Wells, of Jerry Wells Attorney-at-Law, of Lawrence, for appellant.

Ellen Mitchell, county attorney, and Derek Schmidt, attorney general, for appellee.

Before LEBEN, P.J., POWELL and SCHROEDER, JJ.

LEBEN, J.: Roy Leverne Seward appeals the district court's summary dismissal of
his postconviction, habeas corpus claim under K.S.A. 60-1507. Seward pled and was
found guilty of one count of rape and one count of aggravated criminal sodomy, both off-
grid offenses. The district court sentenced Seward to life in prison with no possibility of
parole for 25 years with a term of lifetime postrelease supervision. Seward appealed his
sentence on Eighth Amendment grounds, and the Kansas Supreme Court reversed and
remanded with instructions for the district court to conduct additional factual and legal
findings on Seward's constitutional claims. The district court ruled against Seward's
Eighth Amendment claims on remand, and Seward again appealed. The Kansas Supreme
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Court generally affirmed the district court in this second appeal, but it did vacate the
lifetime-postrelease-supervision portion of Seward's sentence.

After a convicted defendant has exhausted his or her direct appeals, the defendant
can raise some additional challenges through a habeas corpus motion brought under
K.S.A. 60-1507. Seward filed such a motion, seeking relief based on five different
claims. The district court summarily dismissed Seward's motion without conducting a
hearing. Seward has now appealed to our court, though he concedes that some of his
claims may lack merit based on past Kansas appellate decisions, statutes, or court rules.
Before we review those five claims, we will first review how the case got here.

FACTUAL AND PROCEDURAL BACKGROUND

In 2008, Seward entered a plea agreement with the State in which he would plead
guilty to committing one count of rape and one count of aggravated criminal sodomy,
both off-grid offenses, and the State would agree to dismiss five counts in exchange for
his plea. Additionally, the State agreed to permit Seward to request a downward-
durational departure at sentencing and to appeal his sentence.

At the plea hearing, the district court questioned Seward about his understanding
of the agreement. During the district court's questioning, Seward stated that he had had
sufficient time to discuss the plea and the lesser-included offenses with his attorney,
Pamela Sullivan. Additionally, Seward testified that he understood the potential sentences
that could result from convictions of the two off-grid felonies as a result of his guilty
plea: a maximum of life or a minimum of 25 years' imprisonment on each count. Later in
the hearing, the district court accepted Seward's plea; found him guilty of committing one
count of rape and one count of aggravated criminal sodomy, both off-grid offenses; and
dismissed the five remaining charges.

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Following the plea hearing, Seward filed a motion asking the court to impose a
shorter sentence. At sentencing, the district court denied Seward's motion. The district
court sentenced Seward to two life sentences to be served at the same time without the
possibility of parole for 25 years and to lifetime postrelease supervision. Additionally, the
district court sentenced Seward to lifetime electronic monitoring while on postrelease
supervision for life.

Seward appealed, and the Kansas Supreme Court affirmed the district court's
denial of Seward's motion for a shorter sentence but reversed and remanded to the district
court with instructions for additional factual and legal findings regarding Seward's
constitutional challenges to his sentences under Jessica's Law. State v. Seward, 289 Kan.
715, 720-21, 217 P.3d 443 (2009).

The district court conducted its remand hearing in February 2010. After making
factual and legal findings as required by caselaw, the district court found Seward's two
life sentences without the possibility for parole for 25 years were not disproportionate
and did not constitute cruel or unusual punishment.

Seward appealed again, and the Kansas Supreme Court affirmed the district court's
denial of Seward's constitutional challenges but vacated the postrelease portion of
Seward's sentence, finding that he could only be eligible for parole (rather than
postrelease). State v. Seward, 296 Kan. 979, 991-92, 297 P.3d 272 (2013).

In July 2013, the district court sentenced Seward to two concurrent hard-25 life
sentences, followed by lifetime parole.

Acting without a lawyer, Seward filed his habeas motion, titled "Petitioner's Pro
Se Petition for Writ of Habeas Corpus Motion Attacking Sentence," on May 2, 2014.
Seward argues he is entitled to relief on five claims: three of Seward's claims allege
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violations of his constitutional rights, one claim asserts that his attorney was ineffective
during plea negotiations, and one claim alleges the district court imposed an illegal
sentence. On July 24, 2014, the district court entered an order summarily dismissing
Seward's petition without conducting a hearing.

Seward then appealed to our court.

ANALYSIS

Seward concedes in his brief on appeal that many of the arguments he has raised
can be denied under existing Kansas caselaw, statutes, or court rules. Even so, he rightly
notes that an inmate needs to present claims to the state court so as to preserve any
potential habeas remedies in federal court. See O'Sullivan v. Boerckel, 526 U.S. 838, 842-
43, 119 S. Ct. 1728, 144 L. Ed. 2d 1 (1999). We will briefly review all of his claims to
provide a record of his attempts to seek state-court review.

When the district court summarily dismisses a motion for postconviction relief,
this court conducts an independent review of the motion and case file to determine
whether the documents do, in fact, conclusively show that the defendant isn't entitled to
relief. Sola-Morales v. State, 300 Kan. 875, 881, 335 P.3d 1162 (2014). Because Seward
acted without an attorney in filing his motion, we will liberally construe his arguments,
meaning that we will give effect to the motion's content rather than the labels and forms
the defendant used to state the arguments. See State v. Gilbert, 299 Kan. 797, 802, 326
P.3d 1060 (2014).

Seward claims that the district court committed three errors that resulted in
violations of his constitutional rights. Seward first alleges he suffered a violation of his
due process rights because the district court failed to follow the sentence-enhancement
procedures in K.S.A. 21-4718. Seward alleges two additional constitutional violations
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based on the district court's use of his age to increase his sentence without first proving it
to a jury beyond a reasonable doubt.

Seward concedes that Supreme Court Rule 183(c)(3) (2017 Kan. S. Ct. R. 222)
blocks his ability to raise constitutional claims in this habeas action. Rule 183(c)(3)
ordinarily prohibits a movant from using a habeas motion as a substitute for a direct
appeal or as a second appeal when the errors involved are normal trial errors. The rule
does have an exception: Movants may raise mere trial errors affecting constitutional
rights in a habeas motion provided that exceptional circumstances excuse his or her
failure to appeal. Exceptional circumstances have been defined to include unusual events
or intervening changes in the law, as well as claims of ineffective assistance of counsel.
State v. Mitchell, 297 Kan. 118, 123, 298 P.3d 349 (2013); Rowland v. State, 289 Kan.
1076, 1087, 219 P.3d 1212 (2009).

But in this case, Rule 183(c)(3) bars Seward's three constitutional claims. Seward
directly appealed his sentence to the Kansas Supreme Court. Moreover, Seward does not
assert an exceptional circumstance that excuses his failure to raise his three constitutional
claims in his previous direct appeals. The district court did not err in its summary
dismissal of these three claims.

Next, Seward argues that his trial attorney, Pamela Sullivan, was ineffective
during plea negotiations. In his habeas motion, Seward essentially argues that his
attorney's representation fell below an objective standard of reasonableness because she
did not negotiate a plea to on-grid crimes that would have resulted in a lesser sentence.
On appeal, Seward concedes that the district court correctly found that nothing in the
record supports his argument that Sullivan acted ineffectively or that she could have
obtained a better plea deal for him.

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To establish his attorney as ineffective at the plea-bargaining stage, Seward has to
show both that his trial attorney's performance fell below an objective standard of
reasonableness and that he suffered material legal prejudice as a result, meaning there's a
reasonable probability that the outcome would have been different had his attorney acted
differently. See Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 80 L.
Ed. 2d 674 (1984); Mattox v. State, 293 Kan. 723, Syl. ¶ 1, 267 P.3d 746 (2011).

We have done our own review of the case file and motion, and we find no error in
the district court's summary dismissal of Seward's claim that his counsel provided
substandard work in trying to get a better plea deal for him. The record contains no
evidence that the State offered Seward any different plea, and Seward makes no
allegation that a better plea existed. Moreover, a defendant does not have a right even to
be offered a plea deal. State v. Morris, 298 Kan. 1091, 1104, 319 P.3d 539 (2014);
Chavez-Aguilar v. State, No. 114,337, 2016 WL 7031922, at *2 (Kan. App. 2016)
(unpublished opinion) (citing Missouri v. Frye, 566 U.S. 133, 148, 132 S. Ct. 1399, 182
L. Ed. 2d 379 [2012]), petition for rev. filed January 3, 2017.

Here, Seward was offered and accepted a plea bargain to plead guilty to two off-
grid offenses in exchange for the dismissal of the remaining five counts. Based on the
district court's comprehensive plea colloquy with Seward, the district court found Seward
voluntarily and knowingly pled to the two off-grid offenses. During the plea colloquy,
Seward said that Sullivan had sufficiently discussed the lesser offenses with him and that
he understood the sentences attached to pleading guilty to the off-grid crimes. The district
court did not err in summarily dismissing Seward's ineffective-assistance-of-counsel
claim.

In his final claim, Seward asserts that the district court erred in ordering him to be
subject to lifetime electronic monitoring while on parole.

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Based on the record on appeal, the district court ordered from the bench at the
original sentencing hearing that Seward be subject to lifetime electronic monitoring. The
journal entry includes the district court's sentence of Seward to lifetime electronic
monitoring on each count.

Since that original sentence, Seward has directly appealed to the Kansas Supreme
Court twice. The first Supreme Court mandate affirmed the district court's decision in
part but explicitly reversed and remanded to the district court for additional factual and
legal findings concerning Seward's Eighth Amendment constitutional challenges.
Seward, 289 Kan. at 721. The second Supreme Court mandate specifically vacated
Seward's lifetime postrelease supervision. Seward, 296 Kan. at 991-92. The journal entry
on remand makes no reference to lifetime electronic monitoring.

From our review of the record, there's potentially some uncertainty as to whether
the district court's lifetime electronic monitoring sentence from the bench was also
vacated following the 2013 Supreme Court mandate. That's because Kansas law provides
that "'[a] criminal sentence is effective upon pronouncement from the bench; it does not
derive its effectiveness from the journal entry.'" State v. Mason, 294 Kan. 675, 677, 279
P.3d 707 (2012) (quoting Abasolo v. State, 284 Kan. 299, Syl. ¶ 3, 160 P.3d 471 [2007]).
Additionally, once a district court pronounces a legal sentence from the bench, it does not
have jurisdiction to modify the sentence, State v. McKnight, 292 Kan. 776, 779, 257 P.3d
339 (2011), except with respect to an illegal sentence. See K.S.A. 22-3504(1).

As we noted previously, the Kansas Supreme Court found that Seward would be
eligible for parole but not subject to separate statutory provisions covering postrelease
supervision. Seward, 296 Kan. 979, Syl. ¶ 2. While K.S.A. 22-3717(u) describes lifetime
electronic monitoring as a condition of parole, parole conditions are imposed
administratively when the inmate is paroled. As a result, the Kansas Supreme Court has
held that a district court lacks authority to impose parole conditions. State v. Waggoner,
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297 Kan. 94, 100, 298 P.3d 333 (2013). So it was improper here for the district court to
include an order for lifetime electronic monitoring in the event Seward is paroled. But the
district court orally made that order from the bench at Seward's initial sentencing, and we
find no later order of the district court or an appellate court vacating that portion of
Seward's sentence. The 2013 Supreme Court mandate specifically vacated Seward's
sentence to lifetime postrelease but made no mention of lifetime electronic monitoring.
296 Kan. at 991-92.

Consequently, the district court's pronouncement from the bench imposing lifetime
electronic monitoring as a condition of Seward's parole arguably remains in effect. See
Waggoner, 297 Kan. at 100 (vacating district court's sentence from the bench to lifetime
electronic monitoring); see also State v. Clark, 298 Kan. 843, 851-52, 317 P.3d 776
(2014) (vacating district court's sentences to lifetime postrelease and lifetime electronic
monitoring separately). To prevent any later ambiguity, we now formally vacate the
lifetime-electronic-monitoring portion of Seward's sentence. See Waggoner, 297 Kan. at
100. We do so because even though that is a mere trial order that we ordinarily do not
address in a habeas proceeding, we find that an exception to that general rule applies
here: addressing it in this case serves the ends of justice by promoting judicial economy,
preventing Seward from having to file any further actions. In addition, we note that the
authority to correct an illegal sentence remains available. See State v. Sewell, No.
101,973, 2011 WL 1196893, at *4 (Kan. App. 2011) (unpublished opinion).

The district court's order that Seward be subject to lifetime electronic monitoring if
paroled is vacated, and the district court's judgment is otherwise affirmed.