Opinion
No. 107,253.
2013-03-8
STATE of Kansas, Appellee, v. Buddy A. JONES, Appellant.
Appeal from Sedgwick District Court; Clark V. Owens II, Judge. Sean M.A. Hatfield and Carl F.A. Maughan, of Maughan & Maughan LC, of Wichita, for appellant. Julie A. Koon, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Clark V. Owens II, Judge.
Sean M.A. Hatfield and Carl F.A. Maughan, of Maughan & Maughan LC, of Wichita, for appellant. Julie A. Koon, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before BRUNS, P.J., GREEN and BUSER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Buddy A. Jones filed two motions after being convicted of involuntary manslaughter. In one motion, he argued that the restitution portion of his sentence was illegal. In another motion, he sought to compel the production of documents from various governmental entities. On appeal, Jones contends that the district court abused its discretion in ordering restitution and that it erred in denying his motion to compel production of documents. Because we find that neither of these arguments have merit, we affirm the district court's denial of the postconviction motions.
Facts
On January 30, 2009, the district court sentenced Jones to 122 months in prison following an involuntary manslaughter conviction. The district court found at the sentencing hearing that restitution was owed, and it gave the parties 30 days to attempt to agree upon the appropriate amount. On February 27, 2009, an order—which was signed by both the prosecutor and defense counsel—was entered by the district court, establishing the amount of restitution to be $5,000. Although Jones filed a direct appeal, it was dismissed by this court for lack of jurisdiction.
Nearly two years later, on January 10, 2011, Jones filed a motion to compel the production of documents, requesting that the district court order the State to produce various documents from the Kansas Department of Corrections (KDOC), the Kansas Attorney General, the Sedgwick County District Attorney, the Wichita Police Department, and the Kansas Bureau of Investigation. Jones also requested the State to produce any information on the Attorney General's website concerning him. The district court denied the motion, and Jones filed a motion for reconsideration.
On May 16, 2011, Jones filed a motion to correct his sentence and/or vacate the order of restitution, arguing that the order for $5,000 in restitution was illegal. In response, the State argued that Jones was not entitled to relief under K.S.A. 22–3504 because the district court did not impose an illegal sentence by ordering restitution at the sentencing hearing and then setting the amount later. The State also argued that the motion was untimely.
On June 23, 2011, the district court ruled on both the motion for reconsideration and the motion to correct sentence. The district court denied the motion to reconsider, finding it had already ruled on the issue. The district court stated that it did “not have the jurisdiction to consider any issues as to his current placement within KDOC. That [issue] should be addressed to the court where he is held.” Likewise, the district court denied Jones' motion to correct sentence, finding that Jones was not entitled to the relief requested because the restitution order did not impose an illegal sentence. Thereafter, Jones timely appealed both rulings.
Analysis
Restitution
On appeal, Jones contends that the district court abused its discretion by determining the amount of restitution without holding a hearing. We note, however, that this argument is different than the one he presented to the district court. A review of the record reveals that Jones argued to the district court that the restitution order was illegal because the court failed to impose restitution at the sentencing hearing. Thus, we will not consider an argument raised for the first time on appeal. See State v. Leshay, 289 Kan. 546, 553, 213 P.3d 1071 (2009).
We also note that this is an issue that Jones could have raised on direct appeal. See Trotter v. State, 288 Kan. 112, 124–26, 200 P.3d 1236 (2009); State v. Dexter, 276 Kan. 909, 912–13, 80 P.3d 1125 (2003). But Jones did not timely appeal from the district court's entry of the restitution order. Moreover, even if we were to consider Jones' argument on the merits, we find that he has failed to show that his sentence was illegal.
Whether a sentence is illegal within the meaning of K.S.A. 22–3504 is a question of law over which the appellate court has unlimited review. State v. Jones, 292 Kan. 910, 914, 257 P.3d 268 (2011), cert. denied132 S.Ct. 1097 (2012). A sentence is illegal if it is imposed by a court without jurisdiction; if it does not conform to the statutory provision in the character or term of the punishment authorized; or if it is ambiguous regarding the time and manner in which it is to be served. State v. LaBelle, 290 Kan. 529, 532, 231 P.3d 1065 (2010).
The Kansas Supreme Court has found that imposing restitution at sentencing and determining the amount later does not constitute an illegal sentence. See State v. Cooper, 267 Kan. 15, 18, 977 P.2d 960 (1999); see also State v. McDaniel, 292 Kan. 443, 254 P .3d 534 (2011) (finding district court had jurisdiction to enter restitution amount after sentencing hearing).
Here, Jones concedes that restitution was clearly contemplated at the sentencing hearing, and this is confirmed by our review of the record. Further, it was reasonable for the district court to conclude that the parties agreed on the amount because it was presented with an order of restitution signed by both the prosecutor and the defense attorney. Accordingly, we conclude that the order of restitution should be affirmed. Motion to Compel
Jones also contends that the district court erred in denying his postconviction motion to compel the production of documents and his subsequent motion for reconsideration. On appeal, Jones argues for the first time that the district court erred in failing to liberally construe his motion as a request for documents under the Kansas Open Records Act (KORA), K.S.A. 45–215 et seq. Whether the district court correctly construed a pro se pleading is a question of law over which this court has unlimited review. State v. Kelley, 291 Kan. 563, 565, 244 P.3d 639 (2010).
Unfortunately, Jones cites nothing in his brief to support his argument that his motion should be construed as a KORA request. He argues only that we should either remand the case to the district court for review under KORA or grant his request because the State failed to show the documents were not subject to KORA. We decline this invitation, finding that the district court had no obligation to treat the motion to compel or the motion for reconsideration as a KORA request. Furthermore, if Jones wants to make a KORA request, he should follow the procedure set forth in K.S.A. 45–220.
Affirmed.