Opinion
No. 107,155.
2013-02-15
STATE of Kansas, Appellee, v. Larry Dean BALLOU, Jr., Appellant.
Appeal from Shawnee District Court; Evelyn Z. Wilson, Judge. Gerald E. Wells, of Lawrence, for appellant. Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Shawnee District Court; Evelyn Z. Wilson, Judge.
Gerald E. Wells, of Lawrence, for appellant. Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Before ATCHESON, P.J., PIERRON, J., and LARSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Larry Dean Ballou, Jr. appeals from the district court's denial of his motion to correct an illegal sentence. He argues he should not have been given consecutive sentences, and his due process rights were violated by the delay in processing his post-conviction appeal. We affirm.
Ballou pled no contest to burglary in case No. 90–CR–2532. In June 1991, the district court suspended his sentence and placed him on probation for 3 years. While on suspended sentence, Ballou committed further crimes. He pled no contest to robbery in case Nos. 92–CR–2928 and 93–CR–210, and stipulated to probation violations in 90–CR–2532.
At sentencing on March 19, 1993, the mandatory nature of consecutive sentences was discussed. In arguing for the minimum term (1 to 5 years) in 90–CR–2532, Ballou's attorney stated, “[T]he other two cases will have to run consecutive to whatever time [Ballou] receives on the 90–CR case because he was on probation; as a matter of law, this Court would have to run it consecutive.” In arguing for the maximum term (3 to 10 years), the prosecutor agreed: “It is true that the sentence must run consecutive.” After weighing the statutory criteria for fixing minimum terms, the district court sentenced Ballou to a controlling term of 7 to 27 years' imprisonment—5 to 20 years in both 92–CR–2928 and 93–CR–210, to be served concurrent with each other but consecutive to the 2 to 7 years in 90–CR–2532.
On March 29, 1993, Ballou filed a motion to modify his sentence and the district court denied his motion. Ballou appealed this decision, and in State v. Ballou, Nos. 70, 267, 70, 268, 70, 269, unpublished opinion filed May 6, 1994, the appellate court affirmed the district court. Ballou's attorney, who was from the Appellate Defender Office (ADO), raised the following issue on appeal: Whether the district court abused its discretion by imposing more than the minimum sentence in 90–CR–2532 and by refusing to modify Ballou's controlling sentence. Ballou, Slip op. at 2.
In April 2008, Ballou filed a pro se motion to correct his sentence. In October 2009, an attorney filed a motion to correct an illegal sentence on his behalf. After a hearing on May 10, 2010, the district court held that Ballou's sentence in 90–CR–2532 was illegal because the sentencing court had failed to exercise its discretion to impose concurrent or consecutive sentences. Then, stepping into the shoes of the sentencing court, the district court ruled:
“If the Court issues an order that the sentence for 90–CR–2532 should be served concurrently to the sentence in the other two cases in effect there is very little consequence for such probation violation. In this Court's mind that is not the just result. There should be consequences for violating your probation, and the Court finds that it is appropriate that the sentences be served consecutively.”
Ballou filed a notice of appeal on May 11, 2010. On July 20, 2010, the district court appointed the ADO to represent him. The ADO filed a motion to withdraw due to a conflict of interest on August 15, 2011. The motion explained that because the ADO represented Ballou in his first appeal and the sole issue in his present appeal could have been raised in his first appeal, the ADO would have to argue “it was ineffective in not raising the issue to show exceptional circumstances why it can be raised in the present appeal.” The court granted the ADO's motion the next day and appointed Gerald E. Wells, Ballou's current attorney, as replacement counsel.
Ballou first argues the district court abused its discretion by imposing consecutive rather than concurrent sentences. The State counters that the court lacked jurisdiction to consider Ballou's illegal sentence motion.
Whether a sentence is illegal is an issue of statutory interpretation and subject to unlimited review as a question of law. State v. Cash, 293 Kan. 326, 327, 263 P.3d 786 (2011).
An illegal sentence is a sentence that (1) is imposed by a court without jurisdiction; (2) does not conform to the statutory provision, either in the character or term of the punishment authorized; or (3) is ambiguous with regard to the time and manner in which it is to be served. State v. Sims, 294 Kan. 821, 825, 280 P.3d 780 (2012). A court may correct an illegal sentence at any time. K.S.A. 22–3504(1). A defendant's failure to challenge an illegal sentence on direct appeal does not procedurally bar a subsequent motion to correct an illegal sentence. See State v. Neal, 292 Kan. 625, 630–31, 258 P.3d 365 (2011) (defendant who challenged his criminal history on direct appeal was permitted to challenge it on another basis in illegal sentence motion). Therefore, contrary to the State's position, Ballou's failure to raise the consecutive sentence issue on direct appeal does not prevent us from considering the merits of his illegal sentence motion.
At the district court level, Ballou claimed his sentence was illegal because the sentencing court was unaware that it had discretion to impose either concurrent or consecutive sentences. In State v. Edwards, 252 Kan. 860, 869–70, 852 P.2d 98 (1993), the defendant, like Ballou, was sentenced for his original crime and crimes he committed while on suspended sentence. The Kansas Supreme Court concluded that consecutive sentences were not mandatory under K.S.A.1992 Supp. 21–4608 because subsection (1) dealing with sentences imposed on the same date controls over subsection (3) describing when consecutive sentences are mandatory. Because the district court failed to exercise its discretion to determine whether Edwards' sentences should run concurrently or consecutively, our Supreme Court remanded for resentencing. 252 Kan. at 870.
Edwards dictates that Ballou's sentence in 90–CR–2532 was illegal. The sentence did not conform to K.S.A.1992 Supp. 21–4608(1), given the district court's mistaken belief that consecutive sentences were mandatory. See Edwards, 252 Kan. at 870; see also Spencer v. State, 24 Kan.App.2d 125, 129–30, 942 P.2d 646 (1997), rev'd in part on other grounds264 Kan. 4, 954 P.2d 1088 (1998) (remanded for resentencing under Edwards); State v. Owens, 19 Kan.App.2d 773, 775–77, 875 P.2d 1007 (1994) (same); State v. Ervin, No. 93,143, 2006 WL 1379579, at *l–3 (Kan.App.2006) (unpublished opinion) (same). Therefore, the district court was right to vacate the sentence.
On appeal, Ballou argues the district court abused its discretion by resentencing him to consecutive sentences. The State disagrees.
“A sentence imposed within the statutory guidelines will not be disturbed on appeal if it is within the trial court's discretion and not a result of partiality, prejudice, oppression, or corrupt motive. [Citation omitted.] When a reviewing court determines that no reasonable person would agree with the triaf court's decision, then an abuse of discretion will be found. [Citation omitted.]” State v. McCloud, 257 Kan. 1, 9, 891 P.2d 324,cert. denied516 U.S. 837 (1995) (evaluating a pre-guidelines sentence).
In his brief, Ballou relies on the manifest injustice exception to consecutive sentencing. But that exception is inapplicable because K.S.A. 21–4720 did not become law until after his crimes were committed. Because Ballou was being sentenced for different crimes on the same date, it was within the district court's discretion to determine whether his sentences should run concurrently or consecutively. See K.S.A.1992 Supp. 21–4608(1) (“... shall run concurrently or consecutively as the court directs”); Edwards, 252 Kan. at 870 (consecutive sentences not mandatory because subsection [1] trumps [3] ). The record is devoid of any partiality, prejudice, oppression, or corrupt motive on the part of the district court. And reasonable persons would agree with the district court that Ballou should be punished for both his burglary and the two robberies he committed while on suspended sentence.
The district court did not err by granting Ballou's motion to correct an illegal sentence and resentencing him to consecutive sentences.
Ballou also argues his due process rights under the United States Constitution were violated by the 2–year delay between the filing of his notice of appeal and the filing of his appellate brief. The State counters that we should decline to address this issue because it is being raised for the first time on appeal.
Ballou concedes that the constitutional issue he now raises was never raised before the district court. Generally, constitutional grounds for reversal asserted for the first time on appeal are not properly before the appellate court for review. State v. Coman, 294 Kan. 84, 89, 273 P.3d 701 (2012). However, Ballou argues that consideration of his claim is necessary to serve the ends of justice or to prevent a denial of fundamental rights. See State v. Gomez, 290 Kan. 858, 862, 235 P.3d 1203 (2010).
The primary case on which Ballou relies is State v. Bussart–Savaloja, 40 Kan.App.2d 916, 198 P.3d 163 (2008), rev. denied 288 Kan. 833 (2009). In Bussart–Savaloja, the defendant was sentenced in July 2005 for driving under the influence of alcohol. She filed a timely pro se notice of appeal, and the district court stayed her sentence pending the appeal. For unknown reasons, the defendant's appellate counsel did not receive notice of appointment until January 2007. The defendant's appellate brief was filed in June 2008, and oral arguments were held in October 2008.
On appeal, the defendant argued that the unexplained delay in processing her direct appeal violated her due process rights under the United States Constitution. To address the defendant's due process claim, this court applied a modified version of the constitutional speedy trial balancing test articulated in Barker v.. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Under the Barker test, the four factors to be balanced in determining whether a defendant's due process right to a speedy trial has been violated are: (1) the length of the delay; (2) the reasons for the delay; (3) the defendant's assertion of his or her right; and (4) prejudice to the defendant. 407 U.S. at 530. Applying those factors to the defendant's claim, the Bussart–Savaloja court held that the defendant had failed to establish that the delay in her direct appeal had deprived her of due process. 40 Kan.App.2d at 926.
Ballou filed his notice of appeal in May 2010, the ADO was appointed to represent him in July 2010, and he was appointed a new attorney in August 2011. The length of the delay was just over 1 year, which may constitute “the passage of an inordinate amount of time.” 40 Kan.App.2d at 919–21.
The reason for the delay was that the ADO had a conflict of interest, having represented Ballou on direct appeal. Absent evidence that the ADO knew of but failed to report its conflict, it cannot be said that the delay was “purposeful.” 40 Kan.App.2d at 922–23.
Ballou filed no pleadings in the district court challenging the delay in processing his illegal sentence motion. He could have filed a petition under K.S.A. 60–1501 if he believed he was being unconstitutionally confined as a result of the delay. Assuming Ballou has a constitutional right to prompt resolution of his post-conviction proceedings, he did not assert his right in district court. See 40 Kan.App.2d at 925–26.
Finally, Ballou's only claim of prejudice is that throughout the delay, he has been “unjustly incarcerated” under consecutive sentences. This argument fails because, as determined above, the district court did not abuse its discretion by imposing consecutive sentences.
The delay in processing Ballou's post-conviction appeal did not violate his due process rights.
Affirmed.