State v. Blaurock

1
NOT DESIGNATED FOR PUBLICATION

No. 121,140

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

ROBERT D. BLAUROCK,
Appellant.


MEMORANDUM OPINION

Appeal from Wyandotte District Court; BILL KLAPPER, judge. Opinion filed February 7, 2020.
Affirmed.

Robert D. Blaurock, appellant pro se.

Lois Malin, assistant district attorney, Mark A. Dupree Sr., district attorney, and Derek Schmidt,
attorney general, for appellee.

Before WARNER, P.J., POWELL, J., and LAHEY, S.J.

PER CURIAM: Robert D. Blaurock was convicted of a number of sex crimes, and
his convictions and sentences were upheld on direct appeal. In 2018, Blaurock filed his
present motion to correct an illegal sentence, his principal claim being that the district
court erred by ordering some of his sentences to be served consecutively instead of
concurrently. He also challenged his convictions based upon trial and charging errors.
The district court summarily denied his motion. Blaurock now appeals, claiming the
district court erred by not construing his motion as one filed under K.S.A. 60-1507,
2
improperly denying his motion, and failing to declare his sentences as illegal. Our review
of the record fails to find any errors by the district court. Thus, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In June 2005, the State charged Blaurock with multiple felonies alleging the
repeated sexual assault of his then-girlfriend's 14-year-old daughter, C.S. Ultimately,
Blaurock was charged with the following: Counts I through VII, rape (alternatively
aggravated indecent liberties with a child) occurring between May 1 and May 25, 2005;
Count VIII, aggravated kidnapping occurring on May 25, 2005; Count IX, rape
(alternatively aggravated indecent liberties with a child) occurring on May 25, 2005;
Count X, rape (alternatively aggravated indecent liberties with a child) occurring on June
1, 2005; Count XI, aggravated criminal sodomy (alternatively criminal sodomy)
occurring on June 1, 2005; Count XII, rape (alternatively aggravated indecent liberties
with a child) occurring on May 25, 2005; and Count XIII, sexual exploitation of a child
occurring on June 1, 2005.

The case went to trial; the jury acquitted Blaurock on Counts I through VII but
found him guilty of the alternative charge of aggravated indecent liberties with a child in
Count X. The jury deadlocked on the remaining counts, so the district court ordered a
second trial on those counts.

Prior to the second trial, the State amended its information and ultimately charged
Blaurock with: Count I, rape (alternatively aggravated indecent liberties with a child)
occurring on May 25, 2005; Count II, aggravated criminal sodomy (alternatively criminal
sodomy) occurring on June 1, 2005; and Count III, sexual exploitation of a child,
occurring on June 1, 2005.

3
At the second trial, the State's case showed that on June 1, 2005, C.S. called the
police to report that Blaurock had pulled her into his bedroom and raped her earlier that
day. Her testimony revealed that a series of rapes and assaults had occurred prior to the
June 1 attack and that Blaurock had taken Polaroid photos of some of the acts. C.S.
alleged all of the crimes took place at the house where she lived with her mother and
Blaurock. Further evidence included witness testimony, including from C.S. and
Blaurock, DNA evidence, sexually explicit photographs recovered from Blaurock's
residence that he had taken of C.S., and letters from Blaurock to both his mother and
C.S.'s mother.

At the end of the second trial, the jury convicted Blaurock of the three remaining
counts. On May 12, 2006, the district court sentenced Blaurock to 317 months in prison,
with the rape, aggravated indecent liberties with a child, and sexual exploitation of child
sentences to be served consecutively and the aggravated criminal sodomy sentence
concurrently.

Blaurock appealed his convictions on four grounds: (1) error in admitting evidence
of prior crimes; (2) error in allowing the jury to review an unredacted video; (3) violation
of his speedy trial rights; and (4) cumulative error. Blaurock also attacked his sentences,
arguing the district court erred in using his criminal history to increase his penalty
because it had not been proven to a jury beyond a reasonable doubt. Another panel of this
court affirmed Blaurock's convictions and sentences, and the Kansas Supreme Court
denied subsequent review of Blaurock's appeal. State v. Blaurock, 41 Kan. App. 2d 178,
180-81, 201 P.3d 728, rev. denied 289 Kan. 1280 (2009).

In January 2010, Blaurock filed a pro se K.S.A. 60-1507 motion. The district court
appointed counsel to represent Blaurock, but Blaurock filed an amended pro se 60-1507
motion containing 41 issues. The district court held an evidentiary hearing on the
amended motion. The district judge denied all 41 claims. Another panel of our court
4
affirmed the denial of Blaurock's 60-1507 motion. Blaurock v. State, No. 108,591, 2015
WL 1122935, at *1 (Kan. App. 2015) (unpublished opinion).

On February 8, 2018, Blaurock filed a second pro se 60-1507 motion and a request
for postconviction DNA testing. While these motions were pending, on July 2, 2018,
Blaurock filed his present pro se motion to correct an illegal sentence in his original
criminal case. The district court summarily denied all three motions. As to Blaurock's
motion to correct an illegal sentence, the district court held that Blaurock "has done
nothing more than state conclusory remarks that his sentence is illegal. Defendant cites
no facts or legal ruling to support his motion." Yet another panel of this court affirmed
the denial of Blaurock's second 60-1507 motion. Blaurock v State, No. 120,858, 2019
WL 7207548, at *1 (Kan. App. 2019) (unpublished opinion), petition for rev. filed
January 28, 2020.

Blaurock timely appeals the denial of his motion to correct an illegal sentence.

ANALYSIS

On appeal, Blaurock raises six arguments: (1) The district court erred in failing to
liberally construe his motion to correct an illegal sentence as a K.S.A. 60-1507 motion;
(2) the district court erred in failing to grant him a hearing on his motion to an correct
illegal sentence; (3) the district court erred in ordering some of his sentences to run
consecutively; (4) his sentences are illegal because his convictions are unsupported by
substantial competent evidence and are multiplicitous; (5) the district court erred in
denying his claim of structural defects in the information; and (6) the district court erred
in denying his claim of structural defects in a jury instruction.

5
I. DID THE DISTRICT COURT ERR BY NOT CONSTRUING BLAUROCK'S MOTION TO
CORRECT AN ILLEGAL SENTENCE AS A 60-1507 MOTION?

Blaurock argues that the district court erred in not construing his motion to correct
an illegal sentence as a 60-1507 motion, claiming that fairness dictates that his motion, as
a pro se pleading, be liberally construed as a 60-1507 motion.

"Pro se pleadings are liberally construed, giving effect to the pleading's content
rather than the labels and forms used to articulate the defendant's arguments. A
defendant's failure to cite the correct statutory grounds for his or her claim is immaterial."
State v. Kelly, 291 Kan. 563, 565, 244 P.3d 639 (2010). "Whether the district court
correctly construed a pro se pleading is a question of law subject to unlimited review."
Kelly, 291 Kan. at 565.

In State v. Redding, 310 Kan. 15, 444 P.3d 989 (2019), our Supreme Court
considered the following facts when reviewing whether the district court properly
declined to construe Redding's pro se motion to correct an illegal sentence as a 60-1507
motion. First, Redding labeled the motion as a motion to correct an illegal sentence.
Second, he filed the motion in his criminal case as required for motions to correct an
illegal sentence, rather than as a separate civil action as required for 60-1507 motions.
Third, the motion was not submitted on the Judicial Council forms for a 60-1507, nor did
it contain the information required by the 60-1507 forms and, thus, failed to comply with
Supreme Court Rule 183(e) (2019 Kan. S. Ct. R. 228). Fourth, the content of the motion
was consistent with its label.

Redding relied on State v. Harp, 283 Kan. 740, 744, 156 P.3d 1268 (2007), which
held that "'although not required to do so, the district court could have construed Harp's
pro se motion to correct an illegal sentence as a motion challenging his sentence under
K.S.A. 60-1507.' (Emphasis added.)" Redding, 310 Kan. at 19. However, the Redding
6
court found that "there are limits to a court's duty to liberally construe pro se pleadings; a
court is not required to divine every conceivable interpretation of a motion, especially
when a movant repeatedly asserts specific statutory grounds for relief and propounds
arguments related to that specific statute." 310 Kan. at 18. "[I]f the district court was not
required to construe a motion to correct an illegal sentence as a 60-1507 motion, then the
declination to do so would not be reversible without a showing of an abuse of discretion."
310 Kan. at 19.

Here, Blaurock labeled his motion as "Motion for Correction of an Illegal
Sentence Pursuant to K.S.A. 22-3504," and he filed the motion in his criminal case.
Blaurock did not use the Judicial Council forms for a 60-1507 motion nor does his
motion contain the information required by those forms. All of these facts support a
conclusion that the district court properly declined to construe Blaurock's motion as a 60-
1507 motion.

Perhaps most striking here is the fact that Blaurock clearly knew how to file a 60-
1507 motion. He has previously filed two pro se 60-1507 motions, both of which were
hundreds of pages in length. Moreover, his second 60-1507 motion was filed merely four
months before this motion and was denied by the district court in the same order as his
motion to correct an illegal sentence. Blaurock is no stranger to the requirements and
intricacies of the creation and filing of a 60-1507 motion.

These factors aside, the body of the motion itself is a blend of issues that are the
fodder for a motion to correct an illegal sentence, a direct appeal, and a 60-1507 motion.
For example, Blaurock argues his sentence does not conform to the applicable statutory
provisions because the district court incorrectly ordered sentences to run consecutively
rather than concurrently, then he raises error with the information and jury instructions,
and he argues his convictions are multiplicitous and lacking proper evidentiary support.
7
In light of the entirety of Blaurock's filings, however, we hold the district court did not
err in refusing to construe the motion as a 60-1507 motion.

II. DID THE DISTRICT COURT PROPERLY DENY BLAUROCK'S MOTION TO CORRECT AN
ILLEGAL SENTENCE?

Blaurock's remaining issues on appeal generally argue that the district court erred
in denying his motion to correct an illegal sentence: (1) The district court made
insufficient findings of fact in its denial of the motion; (2) the district court erred in
ordering some of his sentences to run consecutively; (3) his sentence is illegal because he
was sentenced to crimes for which there was insufficient evidence and the convictions are
multiplicitous; (4) his sentence is illegal because of alleged errors in the charging
document; and (5) his sentence is illegal because of alleged errors in the jury instructions.
We address these arguments in order.

"Whether a sentence is illegal under K.S.A. 22-3504 is a question of law" over
which the appellate court has unlimited review. State v. Lee, 304 Kan. 416, 417, 372 P.3d
415 (2016). When a district court summarily denies a motion to correct an illegal
sentence, as is the case here, we apply a de novo standard of review because we have the
same access to the motion, records, and files as the district court. State v. Gray, 303 Kan.
1011, 1013-14, 368 P.3d 1113 (2016).

A. Did the district court make sufficient findings of fact?

First, Blaurock asserts that the district court erred in failing to grant him a hearing
on his motion to correct an illegal sentence. Yet the body of his brief argues that the
district court's denial of the motion is "so insufficient" that "it impedes effective appellate
review" because the decision issued by the district court is "devoid" of any findings of
8
fact. The State argues that findings of facts are unnecessary for appellate review because
of the standard of review.

Blaurock cites two cases to support his position: Makthepharak v. State, 298 Kan.
573, 314 P.3d 876 (2013), and Harris v. State, 31 Kan. App. 2d 237, 62 P.3d 672 (2003).
These cases are unpersuasive and do not support the proposition for which Blaurock cites
them. First, Makthepharak does not require a district court to make findings of facts
regarding dismissal.

"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. . . . [I]t then
'may dismiss [the] motion . . . "'without a hearing or appointment of counsel if . . . the
motion, files, and records of the case conclusively show the defendant is not entitled to
relief.'" [Citations omitted.]'" 298 Kan. at 576.

Similarly, Harris does not support Blaurock's proposition that a district court must
make detailed findings of facts when summarily denying a motion to correct an illegal
sentence. First, Harris involves the denial of a 60-1507 motion, not the denial of a motion
to correct an illegal sentence. Second, the district court in Harris did not summarily deny
the motion as did the district court here; rather, the district court denied Harris' 60-1507
motion after an evidentiary hearing. Harris does not apply and does not support
Blaurock's position.

The Kansas Supreme Court "has consistently directed district courts considering a
motion to correct an illegal sentence to conduct a preliminary examination of the motion
to determine whether substantial questions of law or fact are raised by a motion." State v.
Campbell, 307 Kan. 130, 137, 407 P.3d 240 (2017). Here, the district court did just that
and held it was "clear from review of the record and the motion [Blaurock] is not entitled
to relief."

9
Further, even if we were to agree that the district court's factual findings were
somehow lacking, our review is not hindered in any way because we review the motions,
records, and files de novo. See Gray, 303 Kan. at 1014. The district court did not err in
not failing to make more extensive findings of fact or in ruling without a hearing.

B. Did the district court err in ordering some sentences to run consecutively?

Next, Blaurock argues that the district court erred in ordering some of his
sentences to run consecutively. Specifically, he argues that running his sentences
consecutive to each other was a manifest injustice negatively affecting his liberty
interests. The State responds that the district court did not abuse its discretion when it
sentenced Blaurock.

Under K.S.A. 2018 Supp. 22-3504(1), an illegal sentence is one "[i]mposed by a
court without jurisdiction; that does not conform to the applicable statutory provision,
either in character or punishment; or that is ambiguous with respect to the time and
manner in which it is to be served at the time it is pronounced." Blaurock does not assert
under which of these scenarios he is alleging his sentence is illegal. It appears to us that
Blaurock is arguing his sentence did not conform to the applicable statutory provisions.

Blaurock was sentenced as follows:

 Rape: 226 months' imprisonment, the aggravated presumptive sentence;
 Aggravated indecent liberties with a child: 59 months' imprisonment, the
standard presumptive sentence;
 Aggravated criminal sodomy: 117 months' imprisonment, the standard
presumptive sentence; and
 Sexual exploitation of a child: 32 months' imprisonment, the standard
presumptive sentence.
10
The rape, aggravated indecent liberties with a child, and sexual exploitation of child
sentences were ordered to be served consecutively; the sentence for the aggravated
criminal sodomy conviction was ordered to be served concurrently.

The statute in effect at the time of Blaurock's sentencing—K.S.A. 2005 Supp. 21-
4720(b)—gave the district judge discretion to impose concurrent or consecutive
sentences in a multiple conviction case. Thus, our review of the district court's decision to
impose consecutive sentences is for an abuse of discretion. A district court abuses its
discretion when its action is based on an error of law or fact or if the action is arbitrary,
fanciful, or unreasonable. See State v. Ross, 295 Kan. 1126, 1138, 289 P.3d 76 (2012).
Blaurock bears the burden of establishing such an abuse of discretion. See State v.
Corbin, 305 Kan. 619, 622, 386 P.3d 513 (2016).

Blaurock also bears the burden of providing some evidentiary basis to support a
motion to correct an illegal sentence—conclusory assertions are not enough. See State v.
Patterson, 262 Kan. 481, 485-86, 939 P.2d 909 (1997). On appeal, Blaurock does not
allege any errors of fact or law and only argues that imposition of the consecutive
sentences was a manifest injustice negatively affecting his liberty interests. This
argument is unpersuasive.

Before imposing consecutive sentences, the district court considered that Blaurock
was convicted of multiple "horrific" sexual assaults of C.S. that occurred on two separate
dates and began just a week after she turned 14 years old. Based on the record before us,
we easily conclude a reasonable person could have agreed with the district court that
consecutive sentences were appropriate. There was no abuse of discretion by the district
court, and it did not impose an illegal sentence by ordering some sentences to be served
consecutively.

11
III. WERE BLAUROCK'S SENTENCES ILLEGAL?

Blaurock's remaining issues assert that the district court erred in denying his
motion to correct an illegal sentence for three reasons: (1) His sentence is illegal because
he was sentenced to crimes for which there was insufficient evidence and the convictions
are multiplicitous; (2) his sentence is illegal because of alleged errors in the charging
document; and (3) his sentence is illegal because of alleged errors in the jury instructions.

A. Was Blaurock sentenced to multiplicitous crimes unsupported by sufficient
evidence?

The title of Blaurock's third issue on appeal asserts that the district court erred in
imposing only the greater crimes' punishments when there were lesser included offenses
he could and should have been sentenced to instead. But a deeper examination of his brief
reveals that Blaurock is essentially arguing his sentence is illegal because his convictions
are unsupported by substantial competent evidence and are multiplicitous.

Regardless of semantics, Blaurock is seeking to set aside his convictions via a
motion to correct an illegal sentence. Standing in the way of Blaurock's claims is K.S.A.
22-3504, which does not create a vehicle for a defendant to challenge a conviction
collaterally. "This court has repeatedly stated that the relief available under K.S.A. 22-
3504 is correction of a sentence, not reversal of a conviction." State v. Trotter, 296 Kan.
898, 902, 295 P.3d 1039 (2013). Any claim that a conviction is unsupported by sufficient
evidence or is multiplicitous cannot be challenged in a motion to correct an illegal
sentence. See State v. Edwards, 281 Kan. 1334, 1341, 135 P.3d 1251 (2006) (holding
claim of multiplicitous convictions does not establish jurisdictional defect and cannot be
challenged in motion to correct illegal sentence); State v. Simmons, No. 95,096, 2007 WL
316788, at *3 (Kan. 2007) (unpublished opinion) (holding claim of illegal convictions
supported by insufficient evidence not "within the limited definition of illegal sentence"
12
and cannot be brought through K.S.A. 22-3504). Thus, Blaurock's attempt to use K.S.A.
22-3504 to challenge the validity of his convictions is improper.

B. Were there errors in the charging document?

Next, Blaurock argues that the district court erred in summarily denying his
motion to correct an illegal sentence because errors in the information filed in this case
created structural defects. Specifically, he argues that the alleged errors in the information
created a lower burden of proof for the State.

Again, Blaurock is seeking to set aside his convictions via a motion to correct an
illegal sentence, which is improper. See Trotter, 296 Kan. at 902. In his brief, Blaurock
claims State v. Sims, 294 Kan. 821, 825, 280 P.3d 780 (2012), supports his proposition
that "a motion to correct an illegal sentence is an appropriate vehicle to dispute whether a
complaint was defective because such a claim challenges the conviction." However,
Blaurock misquotes Sims. The holding in Sims is actually to the contrary: "[A] motion to
correct an illegal sentence is an inappropriate vehicle to dispute whether a complaint was
defective because such a claim challenges the conviction, not the sentence." (Emphasis
added.) 294 Kan. at 825 (quoted in Trotter, 296 Kan. at 902); see State v. Deal, 286 Kan.
528, 530, 186 P.3d 735 (2008).

Under K.S.A. 2018 Supp. 22-3208(4),

"[a] plea of guilty or a consent to trial upon a complaint, information or indictment shall
constitute a waiver of defenses and objections based upon the institution of the
prosecution or defects in the complaint, information or indictment other than it fails to
show jurisdiction in the court or to charge a crime."

13
When Blaurock consented to and proceeded with a jury trial on the charges in the
information, he waived any objection to his conviction based on alleged errors in the
information. As before, Blaurock's attempt to use K.S.A. 22-3504 to challenge the
validity of his convictions is both improper and lacks merit.

C. Were there errors in the jury instructions?

Finally, Blaurock argues there were structural defects with his jury instructions,
specifically that Instructions 27 and 28 from the first trial and 10 and 11 from the second
trial were legally inappropriate and prejudicial.

Again, we need not reach the merits of Blaurock's argument. A "jury instruction
claim cannot be raised in a motion to correct an illegal sentence" because it challenges
the defendant's conviction, not the sentence imposed. State v. Gilbert, 299 Kan. 797, 798,
326 P.3d 1060 (2014). Blaurock's attempt to raise this issue in his motion to correct an
illegal sentence is improper.

Accordingly, the district court did not err in summarily denying Blaurock's motion
to correct an illegal sentence because the motion, files, and records of the case
conclusively show that Blaurock was not entitled to relief.

Affirmed.