State v. Terrell

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NOT DESIGNATED FOR PUBLICATION

No. 117,741

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

DAMIEN M. TERRELL,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; WARREN M. WILBERT, judge. Opinion filed August 10,
2018. Affirmed.

Carl F.A. Maughan, of Maughan Law Group LC, of Wichita, for appellant.

Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before BUSER, P.J., MALONE and STANDRIDGE, JJ.

PER CURIAM: Damien M. Terrell appeals the district court's decision denying his
motions to correct an illegal sentence. For the reasons stated herein, we affirm the district
court's judgment.

In 2011, Terrell pled guilty to possession of cocaine and marijuana, a drug tax
stamp violation, and two offender registration violations. The district court imposed a
120-month underlying prison sentence, although the court granted a dispositional
departure to probation. Terrell filed no appeal.
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In 2013, Terrell admitted to violating the terms of his probation. The district court
revoked his probation and ordered him to serve the original 120-month sentence.

In 2013, Terrell filed several pro se motions, some of which were motions to
correct an illegal sentence. In the motions to correct an illegal sentence, Terrell claimed
that he was convicted of crimes in violation of the Ex Post Facto Clause of the United
States Constitution and that his convictions were accorded incorrect severity levels for
sentencing purposes. The district court summarily denied the motions.

Terrell appealed the denial of his motions to correct an illegal sentence, filing
three separate docketing statements. This court consolidated the three cases under case
No. 111,197. After briefings, show-cause orders, and responses, this court summarily
affirmed the district court's judgment by order dated June 24, 2016, finding that the issue
on appeal was controlled by State v. Petersen-Beard, 304 Kan. 192, 377 P.3d 1127
(2016). Following the denial of Terrell's petition for review, the appellate clerk issued the
mandate on June 29, 2017.

Meanwhile, on May 10, 2016, Terrell filed another motion to correct an illegal
sentence. And on August 19, 2016, Terrell filed a "motion for reclassifying severity
level," which amounted to another motion to correct an illegal sentence. These motions
are the subject of this appeal. The 2016 motions covered the same subject matter as the
2013 motions. Specifically, Terrell argued that, with respect to his offender registration
convictions, retroactive application of the 2011 amendments to the Kansas Offender
Registration Act (KORA) violated the Ex Post Facto Clause. The State filed responses to
the motions and argued that the district court lacked jurisdiction to consider Terrell's
motions because his appeal on the same subject matter was still pending. On September
9, 2016, the district court summarily denied Terrell's motions, adopting the State's
responses as its findings of fact and conclusions of law. Terrell timely appealed.

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On appeal, Terrell claims the district court erred in summarily denying his motions
to correct an illegal sentence. Terrell renews his argument that his offender registration
convictions violated the Ex Post Facto Clause and because the convictions are null and
void, the resulting sentences are illegal. Terrell acknowledges that the Kansas Supreme
Court has held that a motion to correct an illegal sentence is not a proper vehicle to
challenge an underlying conviction. He goes on to argue, for the first time on appeal, that
the district court should have liberally construed his motions to correct an illegal sentence
as motions for an arrest of judgment under K.S.A. 22-3503.

The State argues that the district court did not err in denying Terrell's motions on
jurisdictional grounds. The State raises no procedural objection to Terrell's argument for
the first time on appeal that his motions to correct an illegal sentence should have been
liberally construed as motions for an arrest of judgment under K.S.A. 22-3503. But the
State argues this statute does not apply and provides Terrell with no relief. Alternatively,
the State argues that Terrell's underlying ex post facto claim is without merit.

K.S.A. 2017 Supp. 22-3504(1) provides that the court may correct an illegal
sentence at any time. Our Supreme Court has defined an "illegal sentence" as "(1) a
sentence imposed by the court without jurisdiction; (2) a sentence that does not conform
to the applicable statutory provision, either in the character or the term of authorized
punishment; or (3) a sentence that is ambiguous with respect to the time and manner in
which it is to be served." State v. Trotter, 296 Kan. 898, 902, 295 P.3d 1039 (2013); see
K.S.A. 2017 Supp. 22-3504(3). Whether a sentence is illegal within the meaning of
K.S.A. 22-3504 is a question of law over which an appellate court has unlimited review.
State v. Lee, 304 Kan. 416, 417, 372 P.3d 415 (2016).

We will first address the State's argument that the district court lacked jurisdiction
to consider Terrell's 2016 motions to correct an illegal sentence. The State argues that
because the district court lacked jurisdiction to address the motions, this court lacks
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jurisdiction as well. Whether jurisdiction exists is a question of law over which an
appellate court's scope of review is unlimited. State v. Smith, 304 Kan. 916, 919, 377
P.3d 414 (2016).

The State argues that the district court lacked jurisdiction to consider Terrell's
2016 motions because his appeal on the same subject matter was still pending. We
disagree. The district court lost jurisdiction to modify its orders denying Terrell's 2013
motions to modify an illegal sentence once Terrell docketed his appeals in those cases.
See State v. McDaniel, 255 Kan. 756, 761, 877 P.2d 961 (1994). But this does not mean
that the district court lacked jurisdiction to address Terrell's 2016 motions, even though
the motions covered the same subject matter as the motions on appeal. Granted, Terrell's
2016 motions were successive and probably barred by res judicata, but the district court
at least had jurisdiction to dispose of the motions on those grounds. Because the district
court had jurisdiction to address Terrell's 2016 motions to correct an illegal sentence, this
court has jurisdiction to address the issue raised in this appeal.

Although we agree with Terrell that we have jurisdiction over his appeal, we
nonetheless find that the district court did not err in summarily denying his motions to
correct an illegal sentence. If a district court reaches the correct result, its decision will be
upheld even though it relied on the wrong ground or assigned erroneous reasons for its
decision. See State v. Overman, 301 Kan. 704, 712, 348 P.3d 516 (2015).

First, as Terrell acknowledges in his brief, our Supreme Court has held in many
cases that a motion to correct an illegal sentence is not a proper vehicle for a defendant to
challenge his or her underlying conviction, which is what Terrell is doing here. See, e.g.,
State v. Sims, 294 Kan. 821, Syl. ¶ 1, 280 P.3d 780 (2012). We are duty bound to follow
Kansas Supreme Court precedent, absent some indication the Supreme Court is departing
from its previous position. State v. Meyer, 51 Kan. App. 2d 1066, 1072, 360 P.3d 467
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(2015). There being no such indication, we find that Terrell may not properly raise this
issue under K.S.A. 2017 Supp. 22-3504.

Recognizing this procedural barrier, Terrell argues that the district court should
have liberally construed his motions to correct an illegal sentence as motions for an arrest
of judgment. There are two applicable statutes governing arrest of judgment. K.S.A. 2017
Supp. 22-3502 provides that the court on motion of a defendant shall arrest judgment if
the complaint, information, or indictment does not charge a crime or if the court lacks
jurisdiction over the crime charged. But a motion for arrest of judgment under K.S.A.
2017 Supp. 22-3502 must be filed within 14 days after the verdict or finding of guilt, and
Terrell acknowledges that his motions failed to meet this deadline.

Terrell argues that the district court should have liberally construed his motions as
motions for an arrest of judgment under K.S.A. 22-3503, as this statute does not have the
same time limits as those specified in K.S.A. 2017 Supp. 22-3502. But as the State points
out, K.S.A. 22-3503 does not apply because that statute applies only to sua sponte relief
granted by the district court; the statute does not apply to motions filed by a defendant. In
other words, there is no such thing as a defense motion to arrest judgment under K.S.A.
22-3503, and our Supreme Court has so held. See State v. Sellers, 301 Kan. 540, 547, 344
P.3d 950 (2015) (holding that K.S.A. 22-3503 is not a procedural vehicle supporting a
defense motion for arrest of judgment). Thus, Terrell's argument that the district court
should have liberally construed his motions to correct an illegal sentence as motions for
an arrest of judgment under K.S.A. 22-3503 provides him with no relief.

Finally, as the State points out in its brief, Terrell's underlying ex post facto claim
has been rejected by the Kansas Supreme Court. In State v. Redmond, 304 Kan. 283, Syl.
¶ 5, 371 P.3d 900 (2016), State v. Buser, 304 Kan. 181, Syl. ¶ 5, 371 P.3d 886 (2016),
and Doe v. Thompson, 304 Kan. 291, Syl. ¶ 7, 373 P.3d 750 (2016), a majority of the
Kansas Supreme Court held that KORA, as amended in 2011, is punitive in effect, and
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the amended statutory scheme cannot be applied retroactively to any sex offender who
committed the qualifying crime before July 1, 2011. This is the exact argument Terrell
made in his motions to correct an illegal sentence with respect to his offender registration
convictions, only as applied to his requirements to register as a drug offender.

Unfortunately for Terrell, the holdings in Redmond, Buser, and Thompson were all
overruled by the Kansas Supreme Court on the same day these opinions were filed by the
majority's decision in Petersen-Beard, 304 Kan. 192, Syl. ¶ 1. In Petersen-Beard, our
Supreme Court reasoned that the Legislature intended KORA to be a regulatory scheme
that is civil and nonpunitive, so KORA's lifetime sex offender registration requirements
are not punishment for purposes of applying either the United States Constitution or the
Kansas Constitution. See 304 Kan. at 194, 209. In a later decision, State v. Meredith, 306
Kan. 906, Syl. ¶ 1, 399 P.3d 859 (2017), our Supreme Court held that the Legislature
intended KORA to be civil and nonpunitive for all classes of offenders, including drug
offenders such as Terrell. So even if Terrell could overcome the procedural obstacles that
bar his motions to correct an illegal sentence, he still loses on the merits of his underlying
claim that, with respect to his offender registration convictions, retroactive application of
the 2011 amendments to KORA violated the Ex Post Facto Clause.

Affirmed.