State v. Pittman

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NOT DESIGNATED FOR PUBLICATION

No. 117,255


IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

CRAIG PITTMAN,
Appellant.


MEMORANDUM OPINION

Appeal from Johnson District Court; THOMAS KELLY RYAN, judge. Opinion filed May 11, 2018.
Affirmed in part, vacated in part, and remanded with directions.

Gerald E. Wells, of Jerry Wells Attorney-at-Law, of Lawrence, for appellant, and Craig Pittman,
appellant pro se.

Shawn E. Minihan, assistant district attorney, Stephen M. Howe, district attorney, and Derek
Schmidt, attorney general, for appellee.

Before ATCHESON, P.J., PIERRON and STANDRIDGE, JJ.

PER CURIAM: This appeal reflects Defendant Craig Pittman's latest effort to
challenge his convictions and sentences for aggravated kidnapping, aggravated criminal
sodomy, and several other crimes—an ongoing endeavor that has regularly occupied him
since a Johnson County District Court jury found him guilty 18 years ago. We find the
district court incorrectly resentenced Pittman to 117 months in prison on the aggravated
criminal sodomy conviction in 2012 and, therefore, vacate that sentence and remand with
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directions to impose the original sentence of 109 months. We otherwise reject Pittman's
current challenges and affirm the district court's denial of them.

For purposes of resolving this appeal we need not recount the facts underlying the
criminal charges. Nor do we have to catalogue the numerous motions and other filings
Pittman has presented over the years. What follows is an abbreviated version sufficient to
place our review in context.

In 2000, a jury convicted Pittman of aggravated kidnapping, aggravated criminal
sodomy, aggravated burglary, criminal threat, battery, and violation of a protection from
abuse order. The district court sentenced Pittman to serve 272 months in prison for the
aggravated kidnapping conviction to be served consecutive to 109 months in prison for
the aggravated sodomy conviction. Pittman received concurrent sentences on the other
convictions, so he had a controlling term of imprisonment of 381 months. The 272-month
sentence for the aggravated kidnapping reflected a standard presumptive guidelines
sentence for a defendant with a criminal history category of C. The 109-month sentence
for aggravated sodomy was a mitigated presumptive sentence without taking into account
Pittman's criminal history. In a multiple conviction case, a defendant's criminal history
category is used to establish the "base sentence" for the "primary crime"—for Pittman
that was the aggravated kidnapping charge—and the presumptive sentences for the
remaining convictions are determined without considering a defendant's criminal history.

Pertinent here, in 2012, this court determined that Pittman's criminal history
category should have been G rather than C, thereby lowering the presumptive guidelines
sentence for the aggravated kidnapping conviction as the primary crime. State v. Pittman,
No. 104,214, 2012 WL 222950, at *6 (Kan. App. 2012) (unpublished opinion). As a
result of that mistake, Pittman received an illegal sentence. We remanded to the district
court with directions to resentence Pittman.

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On remand, the district court sentenced Pittman to 195 months on the aggravated
kidnapping conviction, reflecting the standard presumptive guidelines sentence for a
defendant in criminal history category G. The district court then imposed a standard
presumptive guidelines sentence of 117 months on the aggravated criminal sodomy
conviction—an eight-month increase over what Pittman had originally received. The
district court again required Pittman to serve those sentences consecutively, yielding a
controlling term of incarceration of 312 months.

Pittman then drafted and filed a series of motions in the district court challenging
the sentence, the aggravated kidnapping conviction, and other aspects of his criminal
history. After appointing counsel to represent Pittman, the district court denied the
motions. Pittman has appealed. Pittman's appointed appellate lawyer has filed a brief, and
Pittman has written and filed his own supplemental brief with additional issues. The State
has filed a brief responding to those submissions. We, of course, have considered all of
them.

Pittman argues that the increase in his sentence for the aggravated criminal
sodomy conviction from 109 months to 117 months was the product of judicial
vindictiveness by the district court and, therefore, must be reversed. Although the
appellate record doesn't indicate bad intent on the district court's part, the Kansas
Supreme Court presumes vindictiveness when faced with an otherwise unexplained
increase in a defendant's punishment on resentencing. State v. Cooper, 275 Kan. 823, Syl.
¶ 6, 69 P.3d 559 (2003). The district court offered no explanation for Pittman's increased
sentence. A benign (and reasonable) inference from the record suggests the district court
assumed it had originally imposed a midrange guidelines sentence on Pittman for the
aggravated sodomy conviction rather than a mitigated sentence and proceeded on that
mistaken assumption to impose the longer midrange term on resentencing. We need not
wade deeper into that morass to sort out the district court's intent or purpose.

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Another problem renders the 117-month sentence illegal. The Kansas Supreme
Court has held that K.S.A. 21-4720(b)(5), now codified at K.S.A. 2017 Supp. 21-
6819(b)(5), limits the district court's authority in resentencing a defendant with multiple
convictions when a sentence on one of those convictions has been vacated on appeal. On
remand, the district court may consider only the sentence that has been vacated; it cannot
alter any of the other sentences. State v. Guder, 293 Kan. 763, 766-67, 267 P.3d 751
(2012). That limitation applies to Pittman. The error in Pittman's criminal history
classification affected only the sentence for aggravated kidnapping as the primary crime.
In turn, Pittman's criminal history had no bearing on his sentence for aggravated criminal
sodomy. Accordingly, the district court, on remand, had the authority to modify only the
sentence for aggravated kidnapping. Under Guder, the district court had to leave the 109-
month sentence for aggravated criminal sodomy undisturbed.

The district court's increase in the term of incarceration from 109 to 117 months—
for whatever reason—resulted in an illegal sentence. K.S.A. 22-3504(1); State v. Hilt,
307 Kan. 112, 126, 406 P.3d 905 (2017) (illegal sentence "does not conform" to
applicable statutory requirements in either character or "term of . . . punishment"). We,
therefore, vacate the 117-month sentence the district court imposed on Pittman for the
aggravated criminal sodomy conviction and remand for resentencing on that conviction.

For his second issue on appeal, Pittman challenges the legal adequacy of his
conviction for aggravated kidnapping because the relevant jury instruction included an
alternative element of the offense in addition to what was charged in the complaint. At
this juncture, the claim fails for numerous reasons.

The additional element amounted to an amendment of the complaint by
implication during Pittman's trial. A complaint may be amended at any time before
verdict, so long as the change neither charges a new crime nor prejudices "substantial
rights of the defendant." K.S.A. 22-3201(e). The issue is one that could have and should
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have been raised on direct appeal. In any event, the jury instruction did not describe a
new crime, and Pittman has not pointed to any actual prejudice attributable to the
instruction.

Pittman also suggests he is entitled to relief based on the district court's authority
to arrest judgment on its own initiative, as provided in K.S.A. 22-3503. A judgment may
be arrested when the complaint fails to charge a crime or the district court lacks
jurisdiction over the crime charged. Neither was true as to the aggravated kidnapping
charge against Pittman. Moreover, a district court cannot act under K.S.A. 22-3503 to
arrest a judgment after a direct appeal. State v. Sellers, 301 Kan. 540, 547, 344 P.3d 950
(2015). A criminal defendant may move for an arrest of judgment promptly after the
jury's verdict. K.S.A. 22-3502. Pittman did not do so. All avenues for relief by way of an
arrest of judgment have long been closed to Pittman.

Pittman further seems to suggest he may upend the conviction by challenging the
resulting sentence as illegal. Although a motion to correct an illegal sentence may be
filed at any time, Pittman cannot attack an underlying conviction that way. See K.S.A.
22-3504(1) (correction of illegal sentence); State v. Cotton, 306 Kan. 156, 159, 392 P.3d
116 (2017) (motion to correct illegal sentence "wrong vehicle" to attack conviction).

In short, the conviction for aggravated kidnapping remains intact. Pittman has
failed to marshal a viable legal argument undermining its validity.

For his last issue on appeal, Pittman says his criminal history was overstated, at
least as we understand his somewhat diffuse argument, because a felony habitual violator
conviction was, in turn, based on uncounseled convictions for traffic offenses and,
therefore, should not have been scored. Until 1999, driving after being adjudicated a
habitual violator was a nonperson felony. See L. 1999, ch. 164, § 2; K.S.A. 8-287. For
purposes of addressing the issue, we assume the legal premise of Pittman's argument.
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That is, a felony habitual violator conviction in which the defendant was represented by
counsel should not be counted for criminal history purposes if the defendant had no legal
representation in one or more of the underlying convictions supporting the habitual
violator charge. See K.S.A. 8-285 (person may be adjudicated a habitual violator if
convicted of three or more specified offenses within preceding five years).

By challenging his criminal history classification at this point in his case, Pittman
bears the burden of proving the asserted error by a preponderance of the evidence. K.S.A.
2017 Supp. 21-6814(c). Pittman relies on municipal court records for three convictions
for driving with a suspended license that support his adjudication as a habitual violator.
Two of the records have places where the presiding judge or a court clerk is to indicate
specifically whether a defendant appeared with a lawyer or whether he or she did not.
The records for Pittman's convictions contain no indication one way or the other. The
third record simply establishes the conviction. Pittman offered no other evidence. Based
on what Pittman has submitted, he has failed to carry his burden of proof to show he was
not represented by a lawyer in any of the prosecutions for driving while suspended.
Accordingly, even accepting his legal theory, he has not presented facts to support it. We,
therefore, find no error in Pittman's criminal history on the grounds he has now asserted.

We vacate Pittman's sentence for aggravated criminal sodomy and remand to the
district court with directions that the original sentence of 109 months on that conviction
be reinstated. We otherwise affirm.