text:
    STATE of Kansas, Appellee, v. Sameli G. ROBERTS, Appellant.
    Nos. 114 726 114,953
    Supreme Court of Kansas.
    Opinion filed July 12, 2019.
    Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, and Krystle M.S. Dalke, of the same firm, were on the briefs for appellant.
    Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, were on the brief for appellee.
   The opinion of the court was delivered by Johnson, J.:

In this consolidated appeal, Sameli G. Roberts petitions this court for review of the Court of Appeals' decision affirming the district court's summary denial of his motion to be discharged from custody, filed in his underlying criminal case, and his civil K.S.A. 60-1507 motion. With respect to the district court's denial of the motion to be discharged from custody filed in his underlying criminal case, Roberts does not dispute the Court of Appeals' findings. With respect to the district court's denial of his K.S.A. 60-1507 motion, Roberts argues that the district court violated his due process rights when it failed to appoint counsel to represent him after receiving the State's response to his pro se motion. He also contends that he should have been given an evidentiary hearing to make his case for relief. We affirm the lower courts on those issues.

FACTUAL AND PROCEDURAL OVERVIEW

In 2005, a jury found Roberts guilty of aggravated burglary, criminal restraint, kidnapping, aggravated assault on a law enforcement officer, criminal possession of a firearm, and four counts of aggravated robbery, and the district court sentenced him to 327 months in prison. The underlying facts of Roberts' case are set out in his direct appeal, State v. Roberts , No. 95,046, 2007 WL 2080373 (Kan. App. 2007) (unpublished opinion) ( Roberts I ).

On direct appeal, Roberts alleged insufficient evidence to support his convictions, ineffective assistance of counsel, and prosecutorial misconduct. The Court of Appeals remanded for a hearing on Roberts' ineffective assistance of counsel claims. On remand, the trial court held Roberts was not entitled to relief on his ineffective assistance of counsel claims. Roberts then filed an amended notice of appeal and the Court of Appeals affirmed Roberts' convictions. 2007 WL 2080373, at *2-4. This court denied review and the mandate issued in December 2007.

"In December 2008, Roberts, with the assistance of counsel, filed a K.S.A. 60-1507 motion in which he alleged, inter alia, that: (1) trial counsel provided ineffective assistance because he failed to inform Roberts of a plea offer from the State and (2) his overall sentence was erroneous ...." Roberts v. State , No. 102,916, 2011 WL 1814712, at *2 (Kan. App. 2011) (unpublished opinion) ( Roberts II ). The Court of Appeals' opinion affirming the denial of Roberts' 2008 motion notes that, "[a]fter appointing counsel for Roberts, the district court held a nonevidentiary hearing" and "ultimately denied the motion" because "the motions, files, and records conclusively showed Roberts was not entitled to the relief requested." 2011 WL 1814712, at *2. With respect to his ineffective assistance of counsel claim, the panel held that Roberts failed to allege sufficient facts to establish deficient performance by his appellate counsel; therefore, he failed to establish exceptional circumstances to allow him to raise his trial counsel's alleged failure to inform him of a plea offer. 2011 WL 1814712, at *3-4. This court denied review and the mandate issued in October 2011.

On December 30, 2013, Roberts filed the pro se 60-1507 motion now before us that included the following claims:

• "The State violated the petitioner's Statutory and Constitutional Rights to Due Process by denying him a Speedy Trial pursuant to K.SA. 22-3402."
• "The State violated the petitioner's Statutory and Constitutional Rights to Due Process by denying him the opportunity to be present at a hearing in Court in which counsel asked for a continuance without his knowledge and despite his being objective to a continuance, pursuant to K.S.A. 22-3208."
• "The petitioner's Constitutional Rights to Effective Representation of Trial Counsel was [sic ] violated when counsel, despite petitioner's objections continued petitioner's jury trial without petitioner being aware or present in the courtroom at the hearing, which resulted in a violation of petitioner's right to a speedy trial."

Roberts filed a separate motion asking the district court to appoint counsel to represent him in this 60-1507 proceeding.

On October 14, 2014, in both his underlying criminal case and his 60-1507 case, Roberts filed identical motions to be discharged from custody in which he again asserted a violation of his statutory right to speedy trial. In his 60-1507 case, on November 25, 2014, by motion minutes sheet, the district court denied what it classified as a "Miscellaneous Filing," noting "[t]he court lacks jurisdiction to address the issues raised in this motion." The court did not identify the motion it was denying. On December 22, 2014, Roberts filed a notice of appeal "against the final order," apparently appealing the denial of the "Miscellaneous Filing" but explicitly asking that his 60-1507 claims be a part of the appeal. In the meantime, on December 3, 2014, Roberts wrote to the "Chief of Judges" regarding the status of his 60-1507 motion.

On December 8, 2014, in his underlying criminal case, the district court denied Roberts' motion to be discharged from custody because of his pending 60-1507 motion. Roberts appealed that denial.

In January 2015, the State filed a response to Roberts' 60-1507 motion, arguing that the motion was untimely and successive and that Roberts had not shown the requisite manifest injustice or exceptional circumstances for an untimely, successive filing. The State also asserted that "the issues now raised were evident and actionable since the time of trial, yet movant failed to previously raise them." The next day, the district court issued its findings and order denying Roberts' motion because it was untimely and Roberts failed to establish an exception for the applicable time limit. Further, the court found the motion was successive and Roberts had not established any exceptional circumstances.

Roberts appealed the 60-1507 denial to the Court of Appeals, where he argued that the district court violated his due process rights when it failed to appoint counsel to represent him after receiving the State's response to Roberts' pro se motion. He argued that although he did not allege manifest injustice or exceptional circumstances in his 60-1507 motion, he should be afforded the opportunity to argue these factors on remand.

The Court of Appeals granted the State's motion to consolidate the appeals involving Roberts' motion to be discharged from custody filed in his underlying criminal case and Roberts' 60-1507 motion. The Court of Appeals first held the trial court did not err in summarily denying Roberts' motion to be discharged from custody because it was not the proper means for collaterally attacking his conviction when 60-1507 was available to him. State v. Roberts , No. 114,726, 2016 WL 6829472, at *2-4 (Kan. App. 2016) (unpublished opinion) ( Roberts III ).

Turning to his 60-1507 motion, the Court of Appeals held Roberts was not denied due process of law when he was not provided with counsel after the State filed a response to his motion. Further, the Court of Appeals held the district court did not err in summarily denying Roberts' motion because the motion was untimely and he failed to allege manifest injustice in his pro se 60-1507 motion or in his appellate brief beyond stating he should be allowed to argue manifest injustice on remand. Nevertheless, the panel considered the merits of Roberts' claim, alleging a violation of his statutory right to speedy trial and held it did not entitle Roberts to relief. The panel also held Roberts' motion was successive and Roberts failed to show exceptional circumstances prevented him from bringing his statutory speedy trial claim in his previous 60-1507 motion. Roberts III , 2016 WL 6829472, at *4-9.

Roberts petitioned this court for review. Although he identified the district court's denial of his motion to be discharged from custody as an issue, his petition for review states that he does not dispute the Court of Appeals' findings "as to his non-60-1507 motion." In other words, he conceded that the speedy trial issue in the motion to be discharged from custody should have been brought pursuant to K.S.A. 60-1507. Consequently, we deem that claim abandoned. See State v. Sprague , 303 Kan. 418, 425, 362 P.3d 828 (2015) (point raised incidentally but not argued deemed abandoned).

Likewise, Robert's petition for review summarily claims "the district court violated his due process rights by first denying his motion stating the court lacked jurisdiction to address the issues raised in [his] motion." In support of this argument, Roberts cites to the 60-1507 court's November 25, 2014 denial of a "Miscellaneous Filing" discussed above. In addressing this point, the Court of Appeals noted that the record did not indicate what the "Miscellaneous Filing" consisted of, but reasoned, "it seems that the [60-1507] court denied Roberts' 'Motion to be Discharged From Custody' in [his 60-1507 case] as a 'Miscellaneous Filing' over which the [60-1507] court did not have jurisdiction because he had filed the same motion in his underlying criminal case." 2016 WL 6829472, at *2. In his petition for review, Roberts does not discuss the Court of Appeals' reasoning or argue why it is erroneous. Accordingly, this argument is deemed abandoned.

The remaining issues are Roberts' assertion of a due process right to appointed counsel on his 60-1507 motion and his request that he have an evidentiary hearing on the motion.

DUE PROCESS RIGHT TO APPOINTED COUNSEL

Roberts argues that the district court erred in summarily denying his K.S.A. 60-1507 motion without appointing counsel to represent him. He claims the district court failed to follow the protocol established by this court in Lujan v. State , 270 Kan. 163, 170-71, 14 P.3d 424 (2000), and failed to accord him due process of law when it considered the State attorney's response without providing counsel for the movant.

Standard of Review

To the extent Roberts' claims involve his statutory right to counsel during a K.S.A. 60-1507 proceeding, we are presented with a question of law subject to unlimited review. Mundy v. State , 307 Kan. 280, 294, 408 P.3d 965 (2018) (quoting Robertson v. State , 288 Kan. 217, 227, 201 P.3d 691 [2009] ); see also Thompson v. State , 293 Kan. 704, 710, 270 P.3d 1089 (2011) (interpretation of statutes and Supreme Court rules raises questions of law reviewable de novo). Likewise, Roberts' due process claim raises a question of law over which we exercise unlimited review. See Hogue v. Bruce , 279 Kan. 848, 850, 113 P.3d 234 (2005).

Analysis

Roberts' appellate counsel raised the same issues, supported by the same arguments, in another case, Stewart v. State , 309 Kan. ----, 444 P.3d 955, 2019 WL 3047724 (2019) (No. 115,149, this day decided), which was on the same docket. In Stewart , we reiterated that a 60-1507 movant has no constitutional right to the effective assistance of counsel in the postconviction proceedings, but that, under some circumstances, a statutory right to counsel exists for such a collateral attack. Stewart , 309 Kan. at ---- - ----, slip op. at 7-9, 444 P.3d 955. Specifically, pursuant to K.S.A. 22-4506(b), "a district court has a statutory duty to appoint an attorney to represent an indigent 60-1507 movant whenever the motion presents substantial questions of law or triable issues of fact." Stewart , 309 Kan. at ----, slip op. at 9, 444 P.3d 955.

Stewart clarified that the protocol set forth in Lujan does not require the appointment of counsel when the district court discerns a potentially substantial issue, albeit the court has the discretion to do so. "In other words, the district court may, but is not required to, appoint an indigent 60-1507 movant an attorney during the period the court is making its determination of whether the motion, files, and record present a substantial question of law or triable issue of fact." Stewart , 309 Kan. at ---- - ----, slip op. at 11-12, 444 P.3d 955.

On the other hand, however, if the district court conducts an actual hearing to determine whether substantial issues are presented by the motion, files, and records, at which the State is represented by counsel, due process of law requires that the movant be represented by counsel unless he or she has waived the right to counsel. Stewart , 309 Kan. at ----, slip op. at 12, 444 P.3d 955. But Stewart specifically rejected Roberts' argument that the district court's consideration of the State's response, standing alone, is the functional equivalent of the court conducting a hearing at which the State is represented by an attorney. Stewart , 309 Kan. at ----, slip op. at 16, 444 P.3d 955.

In short, the district court did not determine that Roberts' motion, and the files and records of the case, presented a substantial question of law or triable issue of fact. Consequently, the district court was not statutorily required to appoint Roberts an attorney. Further, the district court did not conduct a hearing at which the State was represented by counsel, so as to trigger Roberts' due process right to appointed counsel. The Court of Appeals' holding on Roberts' appointment-of-counsel issue is affirmed.

SUMMARY DENIAL OF THE K.S.A. 60-1507 MOTION

The district court summarily denied Roberts' motion as untimely, noting that Roberts had failed to request or establish an exception to the applicable time limits. Alternatively, the district court denied the motion as being successive, and Roberts failed to establish any exceptional circumstances that would excuse his failure to previously raise the issues before the district court or on direct appeal. Roberts concedes that he did not allege that manifest injustice or exceptional circumstances warranted review of his current, untimely, and successive motion. But he contends that he should be able to argue those exceptions on remand because he has raised several claims concerning trial counsel's deficient representation that prejudiced his trial and violated his statutory speedy trial right.

Standard of Review

The district court denied Roberts' motion without conducting a hearing. "When the district court summarily denies a K.S.A. 60-1507 motion, an appellate court conducts de novo review to determine whether the motion, files, and records of the case conclusively establish that the movant is not entitled to any relief." Wimbley v. State , 292 Kan. 796, 804, 275 P.3d 35 (2011).

Analysis

Roberts does not dispute that his current K.S.A. 60-1507 motion was untimely, as well as successive. There is good reason for that tack. Roberts filed the subject motion six years after the conclusion of his direct appeal, which was also two years after the denial of his previous 60-1507 motion, i.e., well beyond the one-year limit of K.S.A. 60-1507(f). Both his direct appeal and previous 60-1507 motion claimed ineffective assistance of counsel, an issue that he again asserts in this proceeding. See K.S.A. 60-1507(c) ("The sentencing court shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner.").

Nevertheless, both procedural bars are subject to exceptions. The 60-1507(f) time limit "may be extended by the court only to prevent a manifest injustice." "[M]anifest injustice" in the context of habeas corpus means " ' "obviously unfair" ' " or " ' "shocking to the conscience." ' " Vontress v. State , 299 Kan. 607, 614, 325 P.3d 1114 (2014), superseded by statute as stated in White v. State , 308 Kan. 491, 421 P.3d 718 (2018). In White , this court held the 2016 legislative changes to 60-1507(f) do not apply retroactively. 308 Kan. at 498, 421 P.3d 718. Accordingly, this court's decision in Vontress , establishing a nonexhaustive list of factors, would apply here, to-wit:

"(1) the movant provides persuasive reasons or circumstances that prevented him or her from filing the 60-1507 motion within the 1-year time limitation; (2) the merits of the movant's claim raise substantial issues of law or fact deserving of the district court's consideration; and (3) the movant sets forth a colorable claim of actual innocence, i.e., factual, not legal, innocence." 299 Kan. at 616, 325 P.3d 1114.

In evaluating these factors, "courts consider all factors under the totality of the circumstances rather than balancing factors against each other, need not give the factors equal weight, and should not consider any single factor dispositive." White , 308 Kan. at 504, 421 P.3d 718. But "[a] defendant who files a motion under K.S.A. 60-1507 outside the 1-year time limitation in K.S.A. 60-1507(f) and fails to assert manifest injustice is procedurally barred from maintaining the action." State v. Trotter , 296 Kan. 898, Syl. ¶ 3, 295 P.3d 1039 (2013).

Roberts' pro se motion merely cited to K.S.A. 60-1507(f)(2) without explaining why failing to consider his motion would result in manifest injustice. Then, Roberts failed to explain to the Court of Appeals why the manifest injustice exception applied to him, prompting the panel to note that an issue not briefed is deemed waived and abandoned and failure to support a point with relevant authority or show why it is sound in light of an absence of authority is the same as failing to brief the issue. Roberts III , 2016 WL 6829472, at *7. And inexplicably, on review, Roberts continues to avoid making his case for manifest injustice, contending that he should be entitled to a remand to enable him to have another chance at arguing manifest injustice to the district court. That strategy is simply unavailing. It was incumbent on appellant to show why the district court erred in not applying the manifest injustice exception to extend the time limit on his 60-1507 motion. He has failed in that respect, especially in light of the panel's uncontested holding that this court's retroactive application of the 2012 amendments to K.S.A. 22-3402 would undermine Roberts' statutory speedy trial claim. Roberts III , 2016 WL 6829472, at *8.

Roberts' remand strategy is no more effective with respect to the successive motion bar. It was his burden to establish the exceptional circumstances necessary to justify a second or successive motion. See Beauclair v. State , 308 Kan. 284, 304, 419 P.3d 1180 (2018) ("To avoid having a second or successive K.S.A. 60-1507 motion dismissed as an abuse of remedy, the movant must establish exceptional circumstances."). Granted, we recently opined that "a plain reading of [Rule 183(d) on successive motions] would suggest that a district court is permitted to decline to consider a successive motion only 'when ... justice would not be served by reaching the merits of the subsequent motion.' " Nguyen v. State , 309 Kan. 96, 108, 431 P.3d 862 (2018). See Supreme Court Rule 183(d) (2019 Kan. S. Ct. R. 230). But in light of the panel's above-mentioned holding, Roberts fails to show how reaching the merits of his successive motion would serve justice.

In sum, Roberts' request for a remand to attempt to make his case to the district court for exceptions to the procedural bars to his untimely and successive K.S.A. 60-1507 motion, in lieu of establishing the existence of the exceptions on appeal, is denied. The holdings of the lower courts are affirmed.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Kansas, Appellee, v. Jeffery S. REDDING, Appellant.
    No. 115,037
    Supreme Court of Kansas.
    Opinion filed July 12, 2019.
    Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, argued the cause and was on the brief for appellant.
    Steven J. Obermeier, assistant solicitor general, argued the cause, and Amanda G. Voth, assistant solicitor general, and Derek Schmidt, attorney general, were with him on the briefs for appellee.
   The opinion of the court was delivered by Johnson, J.:

Jeffery S. Redding seeks our review of the Court of Appeals' decision affirming the district court's summary denial of his motion to correct an illegal sentence. State v. Redding , No. 115,037, 2017 WL 462658 (Kan. App. 2017) (unpublished opinion). Redding claims that his pro se motion should have been liberally construed as a K.S.A. 60-1507 motion; that his sentence was illegal because the district court failed to follow proper statutory procedures for imposing a departure sentence; and that his due process rights were violated when the district court requested a response from the State before summarily denying the motion without appointment of counsel for Redding. We affirm the lower courts on all issues.

FACTUAL AND PROCEDURAL OVERVIEW

Redding was charged with multiple counts of rape and aggravated indecent liberties with a child based on allegations that he sexually abused his 4-year-old daughter and his girlfriend's 11-year-old daughter in 2010 and 2011. Pursuant to a signed plea agreement, Redding pled nolo contendere to one count of rape, K.S.A. 21-3502(a)(2), and one count of aggravated indecent liberties, K.S.A. 21-3504(a)(3)(A), in return for the State's agreement to recommend a departure from the "hard 25" off-grid sentences under Jessica's Law to the applicable on-grid sentences for his crimes, but to recommend that the on-grid sentences be imposed consecutively. The agreed-upon gridbox numbers translated to a 155-month sentence for the rape and 55-month sentence for the aggravated indecent liberties, for an aggregated sentence of 210 months, or 17.5 years.

Redding's counsel filed a motion for a departure from the Jessica's Law sentences, asserting that the substantial and compelling reasons to depart included his lack of criminal history, his age (33 years old), and his plea had spared the victims the trauma of testifying at a trial. The State concurred with the departure reasons. But Redding wrote a letter to the court in lieu of allocution in which he requested an even shorter sentence because he did not want to be away from his family, and he was concerned with his ability to resume employment in his chosen field if he were gone too long.

At sentencing, the district court imposed the Jessica's Law sentence for each count, but then departed to the jointly recommended total sentence of 210 months' imprisonment, citing as substantial and compelling reasons Redding's lack of criminal history, his family support, and his having spared the victims from having to testify.

Subsequently, Redding filed a motion to permit an untimely appeal, but quickly withdrew it. More than two years later, Redding filed this pro se "Motion to Correct An[ ] Illegal Sentence." Because Redding had not served the State with a copy of the motion, the district court sent a copy to the State along with a letter saying that the State had time to respond, and that the district court would wait for the State's response before reviewing the motion. The State filed a response on August 19, 2015, and on August 28, 2015, the district court entered a journal entry memorandum of decision in which it addressed Redding's claims and denied the motion to correct.

Redding filed a notice of appeal on September 14, 2015, and counsel was appointed. After filing his notice of appeal, Redding filed a second motion to correct, which was similar to the first motion. The district court denied the second motion because the district court lacked jurisdiction while the case was on appeal, but the court also noted that the second motion raised the same issues as the first motion that the court had denied.

The Court of Appeals affirmed the district court's summary denial. 2017 WL 462658, at *4. We granted Redding's petition for review.

LIBERALLY CONSTRUING THE MOTION

Redding commences his first stated issue-that the district court violated his due process rights by failing to appoint him counsel after receiving a written response from the State's attorney-by arguing that the district court should have construed his motion as a K.S.A. 60-1507 motion. We consider that argument as a separate issue.

Standard of Review

Whether a district court properly construed a pro se pleading is a question of law subject to unlimited review. State v. Ditges , 306 Kan. 454, 456, 394 P.3d 859 (2017) (citing State v. Gilbert , 299 Kan. 797, 802, 326 P.3d 1060 [2014] ).

Analysis

Courts are to interpret pro se pleadings based upon their contents and not solely on their title or labels. Gilbert , 299 Kan. at 802-03, 326 P.3d 1060. In construing pro se postconviction motions a court should consider the relief requested, rather than a formulaic adherence to pleading requirements. See, e.g., State v. Holt , 298 Kan. 469, 480, 313 P.3d 826 (2013) (motion for new trial treated as K.S.A. 60-1507 motion); State v. Kelly , 291 Kan. 563, 565-66, 244 P.3d 639 (2010) (pro se K.S.A. 60-1507 motion construed as motion to withdraw plea under K.S.A. 22-3210 ); State v. Randall , 257 Kan. 482, 486-87, 894 P.2d 196 (1995) (motion to convert sentence treated as 60-1507 motion).

But 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 litigant repeatedly asserts specific statutory grounds for relief and propounds arguments related to that specific statute. Ditges , 306 Kan. at 457-58, 394 P.3d 859 (motion filed as one under K.S.A. 22-3504 and specifically requesting correction of sentence was properly treated as motion to correct illegal sentence, despite containing some requests for relief only available under 60-1507); Makthepharak v. State , 298 Kan. 573, 581-82, 314 P.3d 876 (2013) (despite erroneous language in order denying relief, district court properly construed pro se pleading as motion to correct illegal sentence and denied relief on that basis when litigant claimed sentence was rendered by court without jurisdiction).

Redding cites to State v. Harp , 283 Kan. 740, 744-45, 156 P.3d 1268 (2007), as establishing this court's ability to construe an improper motion to correct an illegal sentence as a K.S.A. 60-1507 motion. There, Harp filed a motion to correct an illegal sentence based upon a decision of this court in another case interpreting a portion of the same sentencing statute that was in question in Harp's case. After finding that the subsequent change in law did not fit within the narrow definition of an illegal sentence, this court considered whether relief was appropriate under K.S.A. 60-1507. "[A]lthough 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.) 283 Kan. at 744, 156 P.3d 1268. That discretionary language in Harp does not appear to benefit Redding's cause; if 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. Redding makes no attempt at that showing.

Moreover, Harp held that the movant in that case was not entitled to relief under K.S.A. 60-1507 either, because "even construing the motion as a K.S.A. 60-1507 motion, the defendant must overcome procedural hurdles." 283 Kan. at 745, 156 P.3d 1268. Ironically, that fate would befall Redding as well. K.S.A. 60-1507(f) requires the motion to be filed within one year of the case becoming final unless the movant can show manifest injustice. Redding exceeded that time limit and provides no argument as to why the manifest injustice exception is applicable here. Instead, he argues that the case should be remanded for him to make a manifest injustice argument to the district court. That tack is unavailing.

More importantly, however, we are not convinced that construing the motion as it was filed-as a K.S.A. 22-3504 motion to correct an illegal sentence-was improper. In addition to labeling the pleading as a "Motion to Correct An[ ] Illegal Sentence," Redding filed it under the criminal case number. To the contrary, "a motion under K.S.A. 60-1507 to vacate, set aside, or correct a sentence is an independent civil action that must be docketed separately." Supreme Court Rule 183(a)(1) (2019 Kan. S. Ct. R. 228-29).

Further, the motion was not submitted on the Judicial Council forms for a 60-1507 and did not contain the information called for by the questions on that form. Supreme Court Rule 183(e) (2019 Kan. S. Ct. R. 230) (a 60-1507 motion "is sufficient if it is in substantial compliance with the judicial council form"). In Nguyen v. State , 309 Kan. 96, 104-05, 431 P.3d 862 (2018), we said that substantial compliance means " 'compliance in respect to the essential matters necessary to assure every reasonable objective of the statute' " and that "the reasonable objectives of Supreme Court Rule 183(e) are to provide the reviewing court with the information called for by the [Judicial Council] form's questions and to have that information presented in such a manner that the reviewing court can match the answers to their corresponding questions." Here, Redding's pleading did not substantially comply with Supreme Court Rule 183(e).

Even ignoring the noncompliance with Rule 183, the content of Redding's motion is consistent with its label. The motion begins by asking "this court to vacate this sentence [due] to it being [an] illegal sentence." Then, the first allegation is that "the district court did not follow the proper departure procedure on the record." Arguing that a sentence did not strictly conform to the applicable statutory provisions is consistent with a motion to correct an illegal sentence. Moreover, the cases Redding cited in the motion concern the legality of a sentence: State v. Jones , 293 Kan. 757, 268 P.3d 491 (2012) (challenging legality of sentence); State v. Spencer , 291 Kan. 796, 248 P.3d 256 (2011) (party allowed to challenge legality of sentence during other party's appeal even if not raised previously); State v. Brown , No. 110,709, 2014 WL 7152331 (Kan. App. 2014) (unpublished opinion) (district court did not comply with statutory departure procedures and sentence therefore illegal).

In sum, the district court's construing Redding's motion consistent with its form and the substance of its content was not error.

DUE PROCESS RIGHT TO APPOINTED COUNSEL

Redding principally argues that he was entitled to the appointment of counsel from the perspective that his motion is construed as a K.S.A. 60-1507 motion. But he then claims that, even if we consider his motion as a K.S.A. 22-3504 motion to correct an illegal sentence, he is entitled to a remand to the district court for appointment of counsel to present his arguments that he should have received an additional departure from the length of his gridbox sentences. Having determined that Redding's motion is to be construed as a K.S.A. 22-3504 motion, we first consider whether to continue our precedent of treating such a motion the same as a K.S.A. 60-1507 motion with respect to the appointment of counsel and the granting of a hearing. Then, if so, we will consider whether Redding had the right to an appointed counsel when the district court received a response from the State's attorney.

Standard of Review

The interpretation of statutes and Supreme Court rules involves questions of law reviewable de novo. Thompson v. State , 293 Kan. 704, 710, 270 P.3d 1089 (2011). Redding's due process claim is a question of law over which we exercise unlimited review. See Hogue v. Bruce , 279 Kan. 848, 850, 113 P.3d 234 (2005).

Analysis

K.S.A. 60-1507(b) provides that the district court is to grant a prompt hearing on a 60-1507 motion unless "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." K.S.A. 22-4506(b) mandates the appointment of counsel for an indigent 60-1507 movant "[i]f the court finds that the ... [60-1507] motion presents substantial questions of law or triable issues of fact."

K.S.A. 22-3504 does not contain those provisions with respect to motions to correct an illegal sentence. But cf. K.S.A. 2018 Supp. 22-3504(1) ("Unless the motion and the files and records of the case conclusively show that the defendant is entitled to no relief, the defendant shall have a right to a hearing ... and to have the assistance of counsel."). Nevertheless, at least since the decision in State v. Duke , 263 Kan. 193, 196, 946 P.2d 1375 (1997), this court has treated those motions alike for purposes of determining whether a hearing and appointment of counsel are required. See, e.g., State v. Sims , 294 Kan. 821, 824, 280 P.3d 780 (2012) (holding this court has consistently declined to overrule Duke based upon the argument that the district court lacked authority to summarily deny motion to correct an illegal sentence). And in 2017, this court reiterated that "[c]onstruing the language [of K.S.A. 22-3504 ] as previously written, this 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). Redding propounds no persuasive argument for our discontinuing that long-time practice.

The issue of whether the district court's consideration of a written response from an attorney for the State mandated the appointment of counsel for an indigent 60-1507 movant was presented to us in Stewart v. State , 309 Kan. ----, 444 P.3d 955, 2019 WL 3047724 (2019) (No. 115,149, this day decided), which was heard on the same oral argument docket with Redding . We determined that the district court's review of the State's response to a 60-1507 motion did not trigger a movant's right to counsel. Stewart , 309 Kan. ----, Syl. ¶ 3, 444 P.3d 955.

Stewart reiterated that a 60-1507 movant has no constitutional right to the effective assistance of counsel in the postconviction proceedings, but that, under some circumstances, a statutory right to counsel exists for such a collateral attack. Stewart , 309 Kan. at ----, slip op. at 8, 444 P.3d 955. Specifically, pursuant to K.S.A. 22-4506(b), "a district court has a statutory duty to appoint an attorney to represent an indigent 60-1507 movant whenever the motion presents substantial questions of law or triable issues of fact." Stewart , 309 Kan. at ----, slip op. at 9, 444 P.3d 955.

Further, Stewart clarified that the protocol set forth in Lujan v. State , 270 Kan. 163, 170-71, 14 P.3d 424 (2000), does not require the appointment of counsel when the district court discerns a potentially substantial issue, albeit the court has the discretion to do so. "In other words, the district court may, but is not required to, appoint an indigent 60-1507 movant an attorney during the period the court is making its determination of whether the motion, files, and record present a substantial question of law or triable issue of fact." Stewart , 309 Kan. at ---- - ----, slip op. at 11-12, 444 P.3d 955.

On the other hand, however, if the district court conducts an actual hearing to determine whether substantial issues are presented by the motion, files, and records, at which the State is represented by counsel, due process of law requires that the movant be represented by counsel unless he or she has waived the right to counsel. Stewart , 309 Kan. at ----, slip op. at 12, 444 P.3d 955. But Stewart specifically rejected the argument that the district court's consideration of the State's response, standing alone, is the functional equivalent of the court conducting a hearing at which the State is represented by an attorney. Stewart , 309 Kan. at ----, slip op. at 16, 444 P.3d 955.

In short, the district court did not determine that Redding's motion, and the files and records of the case, presented a substantial question of law or triable issue of fact. Consequently, the district court was not statutorily required to appoint Redding an attorney under K.S.A. 22-3504. Further, the district court did not conduct a hearing at which the State was represented by counsel, so as to implicate Redding's due process right to appointed counsel. Consequently, the lower courts' holdings on the appointment-of-counsel issue is affirmed.

SUMMARY DENIAL OF THE MOTION TO CORRECT AN ILLEGAL SENTENCE

Redding creatively argues that his sentence is illegal because, after granting his written motion to depart from the Jessica's Law off-grid hard 25 life sentence to an on-grid determinate sentence, the district court did not consider his written allocution as a second motion to further depart from the gridbox numbers to a still shorter sentence. The argument is factually and legally infirm.

Standard of Review

Whether a sentence is illegal is a question of law subject to de novo review. State v. Lee , 304 Kan. 416, 417, 372 P.3d 415 (2016). When the district court summarily denies a K.S.A. 22-3504 motion, review is unlimited because the appellate court has access to the same material that the district court had. State v. Gray , 303 Kan. 1011, 1013-14, 368 P.3d 1113 (2016).

Analysis

Under K.S.A. 22-3504, a sentence is illegal if it is imposed by a court without jurisdiction, if it does not comply with statutes, or if it is vague and ambiguous. Gray , 303 Kan. at 1014, 368 P.3d 1113. The only basis for Redding's challenge is a claim that his sentence did not comply with statutes. We note that Redding's case predates 2017 and 2019 legislative amendments to K.S.A. 22-3504, but those amendments would not impact our analysis here.

Pursuant to the plea agreement, Redding pled nolo contendere to two off-grid felonies that each carried a sentence of a life sentence without parole eligibility for 25 years. In other words, if the district court had exercised its discretion to impose consecutive hard 25 sentences, Redding would have been imprisoned for life without the possibility of parole for 50 years. Instead, the plea agreement recommended a departure to on-grid sentences that totaled 17.5 years. The record reflects that Redding knowingly, willingly, and voluntarily contracted for that reduced sentence with full understanding of the terms of the plea agreement. Moreover, he did not complain when his attorney requested the sentence that the court ultimately imposed, to-wit:

"Your Honor, we are also asking the Court to follow the plea agreement. As [Assistant Attorney General] Karrer indicated, this was a lengthy negotiation process, with all sides putting forth everything that both sides had as to why they felt the sentence should end up where it ultimately ended up. So it is not just a quick, knee-jerk reaction, but it is a thoughtful process of the parties. So we are asking the Court to follow it.
"We have filed-in addition to the departure factors that are set forth in the plea agreement, Your Honor, we did also file ... a specific defendant's motion for a departure sentence, where we listed those, as well as a few additional factors which the Court could consider. It would be our position that those individually or together would justify the departure that the parties have proposed to the Court."

Redding attempts to crawfish on his attorney's statements by arguing that his counsel's departure motion requested a "durational departure," which he claims is different than a mere "departure." But the record is clear that Redding's attorney was advocating for the court to follow the plea agreement that Redding had signed and that Redding had acknowledged to the court that he had read and understood.

Redding also attempts to characterize his written allocution as a pro se motion for additional durational departure. Again, that after-the-fact creativity is belied by the record. At the sentencing hearing, Redding's counsel stated:

"Mr. Redding has indicated to me that he would ask the Court to consider [the letter] as his allocution for his right of allocution at the time of sentencing and is submitted for that purpose. But we would ask the Court to follow the plea agreement ." (Emphasis added.)

When the district court then asked Redding if he had anything additional he wanted to say, he declined comment.

In short, the district court properly considered Redding's initial departure motion as a request to depart from the hard 25 Jessica's Law sentence to an on-grid sentence, the district court followed statutory procedures for doing so, and the district court was under no obligation to consider any further departures that were obliquely referenced in allocution. Although a district court can further depart and impose a shorter sentence, there is nothing to say the district court must do so, and there is no authority to support the argument that failure to do so renders the sentence illegal.

Affirmed.


text:
    In the Matter of the PATERNITY OF S.M.J., a Minor, BY AND THROUGH Her Mother and Next Friend Whitney D. JACOBS, Appellee, v. David Roy OGLE, Appellant.
    No. 115,776
    Supreme Court of Kansas.
    Opinion filed July 19, 2019.
    Marc H. Berry, of Olathe Legal Clinic, of Olathe, argued the cause, and was on the briefs for appellant.
    David J. Brown, of Law Office of David J. Brown, LC, of Lawrence, argued the cause, and was on the briefs for appellee.
   The opinion of the court was delivered by Beier, J.:

Whitney D. Jacobs challenges the Court of Appeals' decision to vacate the judgment of the district court and remand this case for reconsideration of David Roy Ogle's indirect contempt of court and resulting sanctions. See In re Paternity of S.M.J. v. Ogle , 54 Kan. App. 2d 618, 402 P.3d 607 (2017).

We granted Jacobs' petition for review to address the sole issue of whether Ogle's absence from the contempt hearing should have prevented the district judge from proceeding. We conclude that the district judge should not have conducted the hearing on Jacobs' contempt motion until Ogle was present. We therefore affirm the Court of Appeals' decision to vacate the district court's judgment and remand.

A concise history of the parties' relationship and Ogle's repeated, open behavior inconsistent with the district judge's orders in this paternity and custody proceeding appears in the Court of Appeals' opinion and need not be repeated or substantially expanded upon here. It is enough to introduce our legal discussion to say just four things: (1) The gist of the district judge's orders was that Ogle must cease widespread slander of Jacobs; (2) Jacobs moved the court to hold Ogle in indirect contempt after his contacts with her employer finally led her to leave her teaching job; (3) the district judge held Ogle in contempt and imposed sanctions after a hearing at which neither Ogle nor his counsel appeared, despite notice of the hearing's time and place; and (4) the judge rejected Ogle's motion to rescind the contempt order, relying on Bond v. Albin , 29 Kan. App. 2d 262, 28 P.3d 394 (2000), to support her position that the contempt hearing could be held in Ogle's absence.

DISCUSSION

Resolution of the issue before us requires interpretation or construction of a statute. This means that we exercise de novo review of the decisions in the district court and Court of Appeals. Neighbor v. Westar Energy, Inc. , 301 Kan. 916, 918, 349 P.3d 469 (2015). Our pattern for interpretation and construction is often repeated:

"When a statute is plain and unambiguous, a court must give effect to its express language, rather than determine what the law should or should not be. The court will not speculate on legislative intent and will not read the statute to add something not readily found in it. If the statute's language is clear, there is no need to resort to statutory construction." Graham v. Dokter Trucking Group , 284 Kan. 547, Syl. ¶ 3, 161 P.3d 695 (2007).

In addition,

"The most fundamental rule of statutory construction is that the intent of the legislature governs. Reliance on the plain and unambiguous language of a statute is the best and only safe rule for determining the intent of the creators of a written law. The plain language selected by the legislature, when it does not conflict with constitutional mandates, trumps both judicial decisions and the policies advocated by the parties." State v. Spencer Gifts , 304 Kan. 755, Syl. ¶ 2, 374 P.3d 680 (2016).

If, after a plain reading of a statute, a lack of clarity or an ambiguity persists, then this court examines legislative history and substantive background considerations and employs canons of construction to determine the intent of the Legislature. State v. Raschke , 289 Kan. 911, 914, 219 P.3d 481 (2009). We also "must consider various provisions of an act in pari materia with a view toward reconciling and bringing them into harmony if possible." 289 Kan. at 914, 219 P.3d 481.

K.S.A. 2018 Supp. 20-1204a, whose language is identical to the version of the statute in effect at the time of the contempt hearing in this case, controls the procedure a judge must follow to rule on an allegation of indirect contempt. The statute's pertinent provisions read:

"(a) When an order in a civil action has been entered, the court that rendered the same may order a person alleged to be guilty of indirect contempt of such order to appear and show cause why such person should not be held in contempt ....
"(b) ... the order to appear and show cause shall be served upon the party allegedly in contempt .... Such order shall state the time and place where the person is to appear .... The court shall hear the matter at the time specified in the order .... If the court determines that a person is guilty of contempt such person shall be punished as the court shall direct.
"(c) If, after proper service of the order to appear and show cause, the person served shall not appear in court as ordered, ... the court may issue a bench warrant commanding that the person be brought before the court to answer for contempt. When such person is brought before the court, the court shall proceed as provided in subsection (b)."

In the view of the Court of Appeals panel, "the statute doesn't specifically prohibit holding a contempt hearing without the person accused of contempt. But it also doesn't specifically authorize proceeding without that person." In re Paternity of S.M.J, 54 Kan. App. 2d at 621, 402 P.3d 607.

We agree that the statute is not precisely literal on today's issue. But it comes very close, when the three subsections quoted above are given a natural, harmonious reading. We are also mindful that, to the extent there is silence or ambiguity, "[t]he procedure for holding a party in indirect contempt ... must be strictly construed against the movant." Cyr v. Cyr , 249 Kan. 94, Syl. ¶ 5, 815 P.2d 97 (1991).

As provided in the statute's subsection (a), the district judge here was empowered to find a person in contempt of her orders. Under subsection (b), Ogle was served with her order to show cause why he should not be held in contempt. That order, again, as required by the statute, informed him of the time and place he must appear. We note that this information would be unnecessary for one not expected to appear and participate. Under subsection (c), when Ogle did not appear, the judge could have issued a bench warrant for his arrest. The statute's use of the word "may" permitted but did not require her to do so. Regardless of her chosen method for securing Ogle's attendance, subsection (c) then plainly states: "When [a person in Ogle's position] is brought before the court," the district judge "shall proceed" with the hearing described in subsection (b).

Our natural, harmonious reading of the three subsections together leads us to hold that a district judge is allowed to proceed with a contempt hearing once the person accused is present, but not before. We expressly overrule the contrary implication in the Bond case cited by the district judge in support of her ruling on the dispensability of Ogle's presence. See 29 Kan. App. 2d at 264, 28 P.3d 394. That 2000 Court of Appeals decision focused only on subsection (c)'s permissive language regarding issuance of a bench warrant, overlooking its command that the contempt hearing "shall" proceed only "[w]hen [a person in Ogle's position] is brought before the court."

Before closing, we note that we need not depend upon the Court of Appeals panel's additional rationale that our shared result "aligns with basic concepts of fairness and due process." See In re Paternity of S.M.J. , 54 Kan. App. 2d at 622, 402 P.3d 607. Although that may be both true and admirable, it is not strictly necessary. We rule as we do today because of the statute's language and the legislative intention we draw from it. Strictly speaking, K.S.A. 2018 Supp. 20-1204a provides more than the minimum notice and opportunity to be heard required to uphold civil contempt sanctions under the federal constitutional due process rubric. See Mine Workers v. Bagwell, 512 U.S. 821, 827, 114 S. Ct. 2552, 129 L. Ed. 2d 642 (1994). Of course, the Kansas Legislature is free to exceed federal constitutional minimums; in short, it has done so here.

CONCLUSION

The district court's judgment is vacated, and the decision of the Court of Appeals is affirmed. The case is remanded to the district court for reconsideration of Jacobs' motion to hold Ogle in indirect contempt.


author: Arnold-Burger, C.J.:

text:
    Timothy J. BURCH, Appellant, v. Timothy KECK, Secretary of Kansas Department for Aging and Disability Services, et al., Appellees.
    No. 119,813
    Court of Appeals of Kansas.
    Opinion filed May 24, 2019.
    Donald E. Anderson II, of Law Office of Donald E. Anderson II, LLC, of Great Bend, for appellant.
    Kelly G. Cunningham, senior litigation counsel, Kansas Department for Aging and Disability Services, for appellees.
    Before Arnold-Burger, C.J., Pierron and Malone, JJ.
   Arnold-Burger, C.J.:

Generally, a person need not exhaust administrative remedies before bringing an action under 42 U.S.C. § 1983 (2012). Timothy J. Burch, a resident of the Kansas Sexual Predator Treatment Program (SPTP), brought a § 1983 action alleging that SPTP officials violated his constitutional rights by unlawfully seizing his property without affording him due process. The district court dismissed the case because Burch failed to prove that he exhausted his administrative remedies. Because exhaustion of administrative remedies is not required for residents of the Kansas SPTP bringing § 1983 claims, the district court's judgment is reversed and remanded. FACTUAL AND PROCEDURAL HISTORY

Burch is a resident of the SPTP at Larned State Hospital. The Kansas Department for Aging and Disability Services (KDADS) administers the SPTP. In June 2017, Burch filed a civil rights complaint under § 1983 alleging that SPTP officials violated his constitutional rights by unlawfully seizing his property without affording him due process. Burch named KDADS Secretary Timothy Keck, Assistant Clinical Director Keri Applequist, and Program Manager Haleigh Bennett as defendants. KDADS moved to dismiss, arguing that the district court lacked jurisdiction to consider Burch's claims because he failed to exhaust his administrative remedies as required by K.S.A. 2018 Supp. 59-29a24 (persons committed to the SPTP required to exhaust administrative remedies prior to bringing any civil action). The district court agreed and dismissed Burch's case for failing to prove that he exhausted his administrative remedies. Burch appealed.

After briefs were filed in the case, this court issued an order for supplemental briefing ordering the parties to address the holdings in Felder v. Casey , 487 U.S. 131, 108 S. Ct. 2302, 101 L. Ed. 2d 123 (1988), Patsy v. Florida Board of Regents , 457 U.S. 496, 102 S. Ct. 2557, 73 L. Ed. 2d 172 (1982), and Prager v. Kansas Dept. of Revenue , 271 Kan. 1, 20 P.3d 39 (2001), as they relate to whether § 1983 preempts K.S.A. 2018 Supp. 59-29a24. The parties have submitted their supplemental briefs and we are ready to rule.

ANALYSIS

Burch argues that the district court erred in dismissing his case for failure to exhaust administrative remedies. He makes two arguments: (1) He did try to exhaust his administrative remedies, and (2) he did not have to exhaust administrative remedies because doing so would be a futile act. In supplemental briefing, he adds a third argument, that a state statute cannot preempt litigation of his claim under § 1983. Because his final claim is dispositive, we begin and end with it.

"An allegation that a party is required to or has failed to exhaust administrative remedies presents a question of law, and the appellate court's standard of review is unlimited." In re Habeas Corpus Application of Pierpoint , 271 Kan. 620, 622-23, 24 P.3d 128 (2001).

Burch filed his claim under 42 U.S.C. § 1983. This statute " 'is not itself a source of substantive rights, but rather a method for vindicating federal rights elsewhere conferred.' "

Prager , 271 Kan. at 11, 20 P.3d 39 (quoting Swinehart v. City of Ottawa , 24 Kan. App. 2d 272, 275, 943 P.2d 942 [1997] ). "A § 1983 claim has two essential elements: (1) whether the conduct complained of was committed by a person acting under color of state law, and (2) whether this conduct deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States." Prager , 271 Kan. at 11-12, 20 P.3d 39.

Section 1983 itself contains no requirement that persons exhaust available administrative remedies before bringing an action under the statute. Yet some states do have statutes requiring persons to exhaust administrative remedies before bringing civil actions. Relevant to this case is K.S.A. 2018 Supp. 59-29a24 :

"Any person civilly committed pursuant to the Kansas sexually violent predator act, prior to filing any civil action, including, but not limited to, an action pursuant to K.S.A. 60-1501 et seq., and amendments thereto, naming as the defendant the state of Kansas, any political subdivision of the state of Kansas, any public official, the secretary for aging and disability services or an employee of the Kansas department for aging and disability services, while such employee is engaged in the performance of such employee's duty, shall be required to have exhausted all administrative remedies concerning such civil action. Upon filing a petition in a civil action, such person shall file with such petition proof that all administrative remedies have been exhausted."

The issue here is determining whether § 1983 preempts state laws imposing exhaustion requirements.

The United States Supreme Court addressed state exhaustion of administrative remedies requirements in the context of § 1983 claims in Patsy , 457 U.S. 496, 102 S.Ct. 2557. There, Georgia Patsy filed a § 1983 action alleging that her employer, Florida International University, denied her employment opportunities solely because of her race and sex. The district court dismissed Patsy's action because she failed to exhaust available administrative remedies. The United States Supreme Court granted certiorari to address "[t]he question of whether exhaustion of administrative remedies should ever be required in a § 1983 action ...." 457 U.S. at 500, 102 S.Ct. 2557. The Court noted that the issue was not an issue of first impression, because "on numerous occasions" it has "rejected the argument that a § 1983 action should be dismissed where the plaintiff has not exhausted state administrative remedies." 457 U.S. at 500, 102 S.Ct. 2557. Therefore, the Court had to determine whether its prior decisions misconstrued the meaning of § 1983.

After examining the legislative history to § 1 of the Civil Rights Act of 1871, the precursor to § 1983, the Court stated: "Although we recognize that the 1871 Congress did not expressly contemplate the exhaustion question, we believe that the tenor of the debates over § 1 supports our conclusion that exhaustion of administrative remedies in § 1983 actions should not be judicially imposed." 457 U.S. at 502, 102 S.Ct. 2557. The Court also looked at more recent legislative history to determine congressional intent. 457 U.S. at 507, 102 S.Ct. 2557. In 1980, Congress enacted the Civil Rights of Institutionalized Persons Act (CRIPA). 42 U.S.C. § 1997 et seq. (1980). In § 1997e of this Act, Congress "created a specific, limited exhaustion requirement for adult prisoners bringing actions pursuant to § 1983." 457 U.S. at 508, 102 S.Ct. 2557. The Supreme Court found that "Section 1997e and its legislative history demonstrate that Congress understood that exhaustion is not generally required in § 1983 actions, and that it decided to carve out only a narrow exception to this rule." 457 U.S. at 508, 102 S.Ct. 2557. The Court found that "[a] judicially imposed exhaustion requirement would be inconsistent with Congress' decision to adopt § 1997e and would usurp policy judgments that Congress has reserved for itself." 457 U.S. at 508, 102 S.Ct. 2557.

The Patsy Court dealt with a § 1983 claim brought in federal court. But in Felder , 487 U.S. 131, 108 S.Ct. 2302, the Supreme Court applied the rule of Patsy to § 1983 actions brought in state court. There, Bobby Felder filed a § 1983 action in Wisconsin state court alleging police misconduct. The case made its way to the Wisconsin Supreme Court, which held that the action should be dismissed because Felder failed to comply with a state notice-of-claim statute. 487 U.S. at 137-38, 108 S.Ct. 2302. This statute provided that a person could not sue a state governmental subdivision, agency, or officer unless the person provided notice of the claim within 120 days of the alleged injury, or proved that the relevant subdivision, agency, or officer had actual notice of the claim and was not prejudiced by the lack of written notice. The party bringing suit must also show that the party submitted "an itemized statement of the relief sought to the governmental subdivision or agency, which then has 120 days to grant or disallow the requested relief." 487 U.S. at 136-37, 108 S.Ct. 2302. Finally, claimants had to sue within six months of receiving notice that the agency disallowed the claim. In holding that Felder had to adhere to the state statute's requirements before bringing an action under § 1983, the Wisconsin Supreme Court reasoned:

"[W]hile Congress may establish the procedural framework under which claims are heard in federal courts, States retain the authority under the Constitution to prescribe the rules and procedures that govern actions in their own tribunals. Accordingly, a party who chooses to vindicate a congressionally created right in state court must abide by the State's procedures." 487 U.S. at 137, 108 S.Ct. 2302.

The United States Supreme Court reversed. 487 U.S. at 138, 108 S.Ct. 2302. The Court began by saying that "[n]o one disputes the general and unassailable proposition relied upon by the Wisconsin Supreme Court below that States may establish the rules of procedure governing litigation in their own courts." 487 U.S. at 138, 108 S.Ct. 2302. But the Court added that "where state courts entertain a federally created cause of action, the 'federal right cannot be defeated by the forms of local practice.' [ Citation omitted.]" 487 U.S. at 138, 108 S.Ct. 2302. The Court framed the issue as one of preemption, asking whether "application of the State's notice-of-claim provision to § 1983 actions brought in state courts [is] consistent with the goals of the federal civil rights laws, or does the enforcement of such a requirement instead ' "stan[d] as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress" '? [Citations omitted.]" 487 U.S. at 138, 108 S.Ct. 2302.

The Court found that "application of the notice requirement burdens the exercise of the federal right by forcing civil rights victims who seek redress in state courts to comply with a requirement that is entirely absent from civil rights litigation in federal courts." 487 U.S. at 141, 108 S.Ct. 2302. The Court also found that allowing state courts to enforce notice-of-claim statutes in § 1983 actions "will frequently and predictably produce different outcomes in federal civil rights litigation based solely on whether the litigation takes place in state or federal court." 487 U.S. at 141, 108 S.Ct. 2302. The Court could not allow states to "apply such an outcome-determinative law when entertaining substantive federal rights in their courts." 487 U.S. at 141, 108 S.Ct. 2302.

In Felder , the Supreme Court noted that the notice-of-claim statute "operates, in part, as an exhaustion requirement, in that it forces claimants to seek satisfaction in the first instance from the governmental defendant." 487 U.S. at 142, 108 S.Ct. 2302. The Court thought "that Congress never intended that those injured by governmental wrongdoers could be required, as a condition of recovery, to submit their claims to the government responsible for their injuries." 487 U.S. at 142, 108 S.Ct. 2302. The Court held that a state-imposed exhaustion requirement was impermissible because states are not permitted "to place conditions on the vindication of a federal right." 487 U.S. at 147, 108 S.Ct. 2302.

The State makes two arguments that § 1983 does not preempt K.S.A. 2018 Supp. 59-29a24.

First, the State cites the limited exhaustion requirement for prisoners created by the CRIPA discussed by the Patsy Court. The CRIPA addressed the rights of institutionalized persons. The Act covers several types of institutions, including an institution which is "for persons who are mentally ill, disabled, or retarded, or chronically ill or handicapped" and an institution which is "a jail, prison, or other correctional facility." 42 U.S.C. § 1997(1)(B) (2012). Initially, the limited exhaustion requirement provided that courts could continue a case for 90 days "in order to require exhaustion of such plain, speedy, and effective administrative remedies as are available" in actions brought by "an adult convicted of a crime confined in any jail, prison, or other correctional facility." 42 U.S.C. § 1997e(a) (1980). In 1996, Congress amended this section with the Prison Litigation Reform Act (PLRA). See 28 U.S.C. § 1915 (1996). Now, 42 U.S.C. § 1997e(a) (2013) provides: "No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." The PLRA defines "prisoner" as "any person incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms and conditions of parole, probation, pretrial release, or diversionary program." 42 U.S.C. § 1997e(h).

The State asserts that Burch is like a "prisoner confined in any jail, prison, or other correctional facility" for the purposes of the 42 U.S.C. § 1997e(a) exhaustion provisions. This argument is not persuasive because Burch is not a prisoner and he is not confined to a jail, prison, or other correctional facility.

Burch is not a prisoner because Kansas' Sexual Predator Treatment Program is an "involuntary civil commitment process." K.S.A. 2018 Supp. 59-29a01(a). A "sexually violent predator" is a "person who has been convicted of or charged with a sexually violent offense and who suffers from a mental abnormality or personality disorder which makes the person likely to engage in repeat acts of sexual violence and who has serious difficulty in controlling such person's dangerous behavior." K.S.A. 2018 Supp. 59-29a02(a). Many courts have found that persons in sexually violent predator programs are not "prisoners" as defined by the PLRA. See Merryfield v. Jordan , 584 F.3d 923, 927 (10th Cir. 2009) ; Michau v. Charleston County, S.C. , 434 F.3d 725, 727 (4th Cir. 2006) ; Troville v. Venz , 303 F.3d 1256, 1260 (11th Cir. 2002) ; Page v. Torrey , 201 F.3d 1136, 1139-40 (9th Cir. 2000) ; Marcum v. Harris , 328 Fed. Appx. 792, 796 n.4 (3d Cir. 2009) (unpublished opinion); see also Kansas v. Hendricks , 521 U.S. 346, 369, 117 S. Ct. 2072, 138 L. Ed. 2d 501 (1997) (holding that the Sexually Violent Predator Act "does not establish criminal proceedings and ... involuntary confinement pursuant to the Act is not punitive"). In fact, in Hendricks , the State specifically argued that confined sexually violent predators were not prisoners. 521 U.S. at 363, 117 S.Ct. 2072 ("The State has represented that an individual confined under the Act is not subject to the more restrictive conditions placed on state prisoners, but instead experiences essentially the same conditions as any involuntarily committed patient in the state mental institution."). We can find no basis to depart from the reasoning of these courts, nor does the State provide any reason.

Moreover, Burch is not confined in a jail, prison, or other correctional facility. Jails, prisons, and other correctional facilities are just one category of institutions covered by 42 U.S.C. § 1997 et seq. It also applies to institutions "for persons who are mentally ill, disabled, or retarded, or chronically ill or handicapped." 42 U.S.C. § 1997(1)(B). Persons, like Burch, found to be sexually violent predators fit better into the second category. See Hendricks , 521 U.S. at 358-59, 117 S.Ct. 2072 (equating the term "mental abnormality" as used in the Sexually Violent Predator Act with the term "mental illness"). If Congress had intended for persons with mental illness or abnormality to exhaust administrative remedies before bringing § 1983 claims, it could have included them in § 1997e.

Second, the State argues that exhaustion of administrative remedies is advisable for policy reasons. The State asserts that the Legislature implemented an exhaustion requirement because district courts were overwhelmed with cases filed by residents of the SPTP. By going through the administrative process, the factual issues could "be vetted with a fully developed record for the district court to review." Additionally, because the State could conduct fact-finding electronically and by telephone, the State could save on travel, safety, and security related costs.

The Supreme Court has already rejected policy arguments similar to the State's. In Patsy , the Court held that "policy considerations alone cannot justify judicially imposed exhaustion unless exhaustion is consistent with congressional intent." 457 U.S. at 513, 102 S.Ct. 2557. The Court reiterated this point in Felder , stating that "States ... may no more condition the federal right to recover for violations of civil rights than bar that right altogether ... where the purpose and effect of those conditions, when applied in § 1983 actions, is to control the expense associated with the very litigation Congress has authorized." 487 U.S. at 144, 108 S.Ct. 2302.

In conclusion, based on the holdings in Patsy and Felder , we have no hesitation in concluding federal law preempts the exhaustion requirement of K.S.A. 2018 Supp. 59-29a24. Congress intended for people, other than prisoners confined in jails, prisons, and other correctional facilities, to be able to bring § 1983 claims without having to exhaust available administrative remedies. Any state law to the contrary is invalid for burdening the exercise of a federal right. Although there may be good policy reasons for requiring exhaustion, those state policies are not enough to contravene congressional intent.

Reversed and remanded for further proceedings.


author: Standridge, J.:

text:
    STATE of Kansas, Appellee, v. Marlon SHEPPARD, Appellant.
    No. 119,454
    Court of Appeals of Kansas.
    Opinion filed May 24, 2019.
    Gerald E. Wells, of Jerry Wells Attorney-at-Law, of Lawrence, for appellant.
    Kayla Roehler, assistant district attorney, Mark A. Dupree Sr., district attorney, and Derek Schmidt, attorney general, for appellee.
    Before Standridge, P.J., Gardner, J., and Walker, S.J.
   Standridge, J.:

In 2006, a jury convicted Marlon Sheppard of one count of second-degree murder and two counts of criminal possession of a firearm. Sheppard appealed, and his convictions were affirmed by a panel of this court in 2009. In 2017, Sheppard filed a pro se motion to dismiss as well as a motion for leave to file the motion to dismiss out of time. The motion for leave to file the motion to dismiss out of time was denied. Sheppard appealed. A few months later, Sheppard filed a pro se motion to correct an illegal sentence. That motion also was denied. Sheppard again appealed. Those appeals have been consolidated for our consideration. Finding no error, we affirm the district court's decision to deny each of Sheppard's motions.

FACTS

On June 8, 2006, a jury convicted Sheppard of one count of second-degree murder and two counts of criminal possession of a firearm. Following his convictions, Sheppard filed a motion for a new trial and a motion for a departure sentence. The former was denied but the latter was granted, and Sheppard was sentenced to 354 months in prison. Sheppard filed a direct appeal. In its opinion, a panel of this court found the following facts:

"On October 19, 2005, Christopher Schley drove Sheppard in Sheppard's green Pontiac to a house party on Hiawatha Street. Schley parked, and Sheppard got out of the car. Kimberly Norman, a witness that later contacted the district attorney's office with information, stated [Chris] Brewer [the victim] arrived at the party at about 3:30 a.m., and Sheppard arrived 10 or 15 minutes later. Norman saw Brewer and Sheppard talking in Misha Franklin's car outside the party. Franklin was Brewer's girlfriend, and Brewer was driving Franklin's gray Honda Civic that night.
"Norman saw Brewer and Sheppard drive off together at about 4:00 a.m. Norman also saw a car she described as a 'green something, like a teal Grand Prix or something like that.' Norman said the green car drove away from the party before Brewer and Sheppard left, but she could not see who was driving.
"At 5:30 a.m., Roxanne Barnett heard noises in the parking lot outside her apartment, and she looked out her window when she heard a car door close. Barnett was Franklin's neighbor. Barnett saw someone sitting in the driver's side of Franklin's car. Barnett also saw a dark colored Grand Am parked in a 'T-position' behind Franklin's car. Barnett's car was parked next to Franklin's car, and Barnett went outside to check that her car was locked.
"After checking her car, Barnett went back upstairs to her apartment and again looked out her window. She saw someone wearing a dark colored sweatshirt or hoody and light colored pants (similar to sweatpants) get out of the passenger side of the Grand Am and get into the passenger side of Franklin's car. The Grand Am then pulled back by a trash can with the front end of the car pointed at Franklin's car. Barnett estimated the two people talked in Franklin's car for 5 minutes before she heard two pops and saw flares through the windshield. According to Barnett, the passenger then got out of Franklin's car, the Grand Am pulled up into a 'T-position' again, and the person got into the Grand Am. When police arrived on the scene, they found Brewer murdered in Franklin's car.
"Sometime after the murder, Schley was questioned by the police. The interviewing detective testified at trial regarding statements Schley made during this interview. Schley reported that on the night of the murder, Sheppard showed Schley a gun and told Schley that he planned to rob Brewer. Schley also reported that Sheppard said 'should this robbery go bad, he was willing to put [Brewer] to sleep.' Schley stated that he and Sheppard then went to the party on Hiawatha Street together. Schley left the party and drove Sheppard's vehicle back to his house. Schley became very evasive when the detective tried to establish the general timeline for the evening.
"The police eventually took Sheppard into custody and interviewed him regarding his whereabouts on the night in question. Sheppard told investigators that he met Brewer at a party on Hiawatha Street and that Brewer dropped him off at his girlfriend's house sometime between 2:00 and 2:30 a.m. Sheppard told the detectives that Schley had control of his car after Sheppard left the party with Brewer.
"While Sheppard was in custody, the police recorded a phone call from the jail between Sheppard and Schley. During the phone conversation, Sheppard and Schley cryptically discussed what they told police:
" 'SCHLEY: ... I said we were, we was over in Missouri. Did this and then, you know, he hollered at old boy. And they were like, yeah we went through the phone records, he was really trying to get at him, get at him. I was like I don't know about none of that. ... Far as what were was doing, driving around looking for, you know what I'm saying, fucking with little bitches and then we hollered at old boy and then we came on out here. ...
" 'SHEPPARD: Yeah what, what, I mean, what you mean, you told 'em what you did, drop me off right?
....
" 'SCHLEY: Naw, that, that, uh, you had hollered at him and got in the car. I was like, yeah, you know what I'm saying? We got in the car and came back here.
....
" 'SHEPPARD: ... I got in the car with dude and he dropped me off. That's what I told 'em. Shit, he dropped me off at my girl house and then later on we probably went to Grandview. Talking about, is that when you talking about?'
"Schley ultimately was granted immunity from any charges related to the death of Brewer. Notably, Schley failed to appear at Sheppard's preliminary hearing to testify, which forced the State to dismiss the charges against Sheppard. The case was refiled, and Schley was arrested for absconding. Schley had moved to Mississippi, and the district court had to compel his attendance at trial." State v. Sheppard , No. 98337, 2009 WL 743094, at *1-2 (Kan. App. 2009) (unpublished opinion).

Sheppard argued on appeal that there was insufficient evidence to support two of his convictions, that trial counsel was ineffective, that the district court erred in failing to modify a PIK jury instruction, and that cumulative errors required the court to remand for a new trial. Finding no error, a panel of this court affirmed Sheppard's convictions. Sheppard , 2009 WL 743094, at *2-8.

On January 11, 2011, Sheppard filed a pro se motion seeking habeas corpus relief pursuant to K.S.A. 60-1507. Among other things, Sheppard argued that his Fourth Amendment rights under the United States Constitution were violated when he was arrested without probable cause. Given the lack of probable cause, Sheppard claimed all evidence obtained as a result of his arrest should have been suppressed. The State opposed Sheppard's motion, and it ultimately was denied by the district court. It is unclear from the record whether Sheppard appealed the court's decision.

On April 17, 2017, Sheppard filed a pro se motion to dismiss in which he reiterated his previous claim that he was arrested without probable cause and therefore all evidence obtained as a result of the arrest must be suppressed. The next day, Sheppard filed a second pro se motion, this time seeking the court's leave to file out of time the motion submitted the day before. To justify his request to file the motion out of time, Sheppard alleged that counsel's failure to adequately protect his interests prior to trial constituted "excusable neglect."

The district court denied Sheppard's request to file his motion to dismiss out of time.

The court found Sheppard failed to establish the excusable neglect necessary to justify doing so. The court also found Sheppard's motion was indistinguishable from the facts presented and the relief requested in the habeas corpus motion he filed in 2011, a fact which undermined Sheppard's claim that excusable neglect and ineffective assistance of counsel were the reason his claim should now be considered.

Sheppard appealed from the district court's decision that he failed to show excusable neglect. While that appeal was pending, Sheppard filed a pro se motion to correct an illegal sentence, in which he argued that the district court improperly included a juvenile adjudication in calculating his criminal history score during sentencing. The court denied Sheppard's motion and Sheppard appealed. Sheppard's two appeals have been consolidated for our consideration.

ANALYSIS

Excusable neglect

Sheppard claims the district erred by declining to grant him leave to file out of time his motion to dismiss. When a district court denies a party's request for leave to file a motion out of time, that decision is reviewed for an abuse of discretion. Bank of Whitewater v. Decker Investments, Inc. , 238 Kan. 308, 315, 710 P.2d 1258 (1985). A judicial action constitutes an abuse of discretion if: (1) no reasonable person would take the view adopted by the trial court, (2) it is based on an error of law, or (3) it is based on an error of fact. Wiles v. American Family Life Assurance Co. , 302 Kan. 66, 74, 350 P.3d 1071 (2015).

Pursuant to K.S.A. 2018 Supp. 22-3208(4), a motion to dismiss must be filed either before arraignment or within 21 days after the plea is entered. It is undisputed that Sheppard did not file his motion in a timely manner. The district court may, however, allow the motion to be filed after the time limit has expired if the party can demonstrate that his or her failure to act was a result of excusable neglect. See K.S.A. 2018 Supp. 60-206(b)(1)(B). The burden to show excusable neglect is on the party seeking an extension of the time limitation. See Boyce v. Boyce , 206 Kan. 53, 56, 476 P.2d 625 (1970). Although Kansas allows the use of "excusable neglect" in several different statutes, cases, and administrative regulations, no Kansas authority directly outlines the prerequisites needed to establish the "nebulous" term of excusable neglect. Tyler v. Cowen Construction, Inc. , 216 Kan. 401, 406, 532 P.2d 1276 (1975).

"What constitutes excusable neglect under the statute must be determined by the trial court on a case by case basis under the facts presented in support of and in opposition to the enlargement of time. The trial court should consider the circumstances under which the neglect to act occurred as well as the effect of an enlargement upon the rights of all parties affected thereby." Boyce , 206 Kan. at 55-56, 476 P.2d 625.

Considering the phrase as it is used in K.S.A. 60-206(b), the Boyce court suggested that a party could show excusable neglect by providing evidence of good faith, establishing a reasonable excuse for the failure, and showing that the interests of justice could be served by granting the request. 206 Kan. at 56, 476 P.2d 625. Considering the phrase as it is used in K.S.A. 60-260(b)(1), the Supreme Court noted that inexcusable conduct is akin to reckless indifference and implies something more than a good faith and "unintentional inadvertence or neglect common to all who share the ordinary frailties of mankind." Jenkins v. Arnold , 223 Kan. 298, 299, 573 P.2d 1013 (1978).

In support of Sheppard's claim that the district court abused its discretion by denying his motion, Sheppard argues on appeal, as he did below, that his counsel's failure to protect him from pretrial "procedural pitfalls" constitutes the excusable neglect necessary to justify his delay in filing. Put in context, Sheppard claims he was arrested in 2006 based on an affidavit that contained false information and that the reason he waited 11 years to challenge the facts set forth in the affidavit is because his counsel failed to protect him from this "procedural pitfall."

We find Sheppard's reason for failing to file a timely motion to dismiss challenging the facts set forth in the affidavit does not rise to the level of excusable neglect. In so finding, we have considered not only the specific reason set forth by Sheppard, but all of the circumstances surrounding the untimely filing, including the fact that Sheppard waited 11 years after the deadline to request permission to file his motion and the effect it would have on all parties if the district court were to grant Sheppard leave to file his motion to dismiss 11 years past the deadline. These facts demonstrate that Sheppard did not make a good-faith effort to pursue dismissal, did not provide a reasonable excuse for failing to file a timely motion to dismiss, and did not show that the interests of justice would be served by granting the request. See Boyce , 206 Kan. at 56, 476 P.2d 625.

For the reasons stated above, we conclude the district court did not abuse its discretion in finding that Sheppard failed to establish excusable neglect. See Wiles , 302 Kan. at 74, 350 P.3d 1071 (A judicial action constitutes an abuse of discretion if: (1) no reasonable person would take the view adopted by the trial court, (2) it is based on an error of law, or (3) it is based on an error of fact.).

Motion to correct illegal sentence

Sheppard claims that his sentence in this case is illegal because his criminal history score improperly included a decayed juvenile adjudication. Whether a sentence is illegal within the meaning of K.S.A. 2018 Supp. 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).

K.S.A. 2018 Supp. 22-3504(3) defines an "illegal sentence" as a sentence "[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." Kansas courts construe K.S.A. 2018 Supp. 22-3504 narrowly and only in rare cases do they find a sentence to be illegal. See State v. Edwards , 281 Kan. 1334, 1336, 135 P.3d 1251 (2006). Here, Sheppard claims that the second of these statutory provisions applies, specifically arguing that his sentence is illegal because the 2016 amendments to K.S.A. 21-6810 apply retroactively; therefore, his 1994 juvenile adjudication for burglary of a dwelling should have decayed and should not have been included in the calculation of his criminal history score for this case.

Sheppard's underlying crimes of conviction occurred in 2005, at which time his criminal history score was calculated pursuant to K.S.A. 21-4710 (Furse 1995). It stated, in relevant part:

"(d) Except as provided in K.S.A. 21-4716, and amendments thereto, the following are applicable to determining an offender's criminal history classification:
....
(6) All juvenile adjudications which would constitute a person felony will not decay or be forgiven." K.S.A. 21-4710(d)(6) (Furse 1995).

When an adjudication decays, it is no longer considered in determining an offender's criminal history score. K.S.A. 2018 Supp. 21-6803(e) ; State v. Smith , 49 Kan. App. 2d 88, 90, 304 P.3d 359 (2013). As such, when Sheppard was sentenced in 2006, his prior juvenile adjudication for burglary of a dwelling did not decay and therefore was used to calculate his criminal history score because the burglary of a dwelling offense would have been a person felony if it had been committed by an adult. See K.S.A. 2018 Supp. 21-5807 ; K.S.A. 21-3715.

K.S.A. 21-4710 was repealed in 2010 and replaced in 2011 by K.S.A. 21-6810. L. 2010, ch. 136, § 291. The new statute provided, in relevant part:

"(d) Except as provided in K.S.A. 2011 Supp. 21-6815, and amendments thereto, the following are applicable to determining an offender's criminal history classification:
....
(3) There will be no decay factor applicable for:
....
(B) a juvenile adjudication for an offense which would constitute a person felony if committed by an adult." K.S.A. 2011 Supp. 21-6810(d)(3)(B).

The statute was amended again in 2015, this time in response to the Kansas Supreme Court's decision in State v. Murdock , 299 Kan. 312, 323 P.3d 846 (2014), overruled by State v. Keel , 302 Kan. 560, Syl. ¶ 9, 357 P.3d 251 (2015). See L. 2015, ch. 5, § 1. The Murdock court held that when classifying an offender's out-of-state crimes to determine his or her criminal history score, courts must look to comparable offenses in Kansas on the dates that the out-of-state crimes were committed. 299 Kan. at 317, 323 P.3d 846. But because Kansas law did not distinguish between person and nonperson crimes prior to the passage of the Kansas Sentencing Guidelines Act in 1993, the Murdock court held that all pre-1993 out-of-state crimes must be treated as nonperson felonies for criminal history scoring purposes. 299 Kan. at 319, 323 P.3d 846. With the 2015 amendment, the Legislature clarified that all pre-1993 out-of-state convictions and adjudications, both adult and juvenile, "shall be scored as a person or nonperson crime using a comparable offense under the Kansas criminal code in effect on the date the current crime of conviction was committed." L. 2015, ch. 5, § 1. The amendment also added subsection (e) to K.S.A. 21-6810, which provided that "[t]he amendments made to this section by this act are procedural in nature and shall be construed and applied retroactively." (Emphasis added.) L. 2015, ch. 5, § 1.

The Legislature amended K.S.A. 21-6810 again in 2016, this time changing the types of prior adjudications that could and could not be included in the calculation of an offender's criminal history score. See L. 2016, ch. 97, § 1. The amendment provided, in relevant part:

"(d) Except as provided in K.S.A. 2015 Supp. 21-6815, and amendments thereto, the following are applicable to determining an offender's criminal history classification:
....
(3) There will be no decay factor applicable for:
....
(B) a juvenile adjudication for an offense which would constitute a nondrug severity level 1 through 4 person felony if committed by an adult. Prior juvenile adjudications for offenses that were committed before July 1, 1993, shall be scored as a person or nonperson crime using a comparable offense under the Kansas criminal code in effect on the date the current crime of conviction was committed[.]
....
(4) Except as otherwise provided, a juvenile adjudication will decay if the current crime of conviction is committed after the offender reaches the age of 25, and the juvenile adjudication is for an offense:
....
(B) committed on or after July 1, 1993, which would be a nondrug severity level 5 through 10, a non-grid felony or any drug felony, if committed by an adult." L. 2016, ch. 97, § 1.

And finally, in 2017, the Legislature amended K.S.A. 21-6810 a third time, changing, among other things, subsection (e). It now provides that "[t]he amendments made to this section by section 1 of chapter 5 of the 2015 Session Laws of Kansas are procedural in nature and shall be construed and applied retroactively." L. 2017, ch. 92, § 5.

The most fundamental rule of statutory construction is that the intent of the Legislature governs if that intent can be ascertained. State v. Jordan , 303 Kan. 1017, 1019, 370 P.3d 417 (2016). When a statute is plain and unambiguous, an appellate court should not speculate about the legislative intent behind that clear language, and it should refrain from reading something into the statute that is not readily found in its words. State v. Barlow , 303 Kan. 804, 813, 368 P.3d 331 (2016). That does not mean, however, that all statutory changes and updates apply retrospectively, particularly in criminal cases. Instead, the criminal statutes and penalties that were in effect at the time that the crime occurred are controlling unless the Legislature explicitly gives retrospective effect to statutory changes made after the commission of the crime.

State v. Denney , 278 Kan. 643, 646, 101 P.3d 1257 (2004) ; State v. Van Cleave , 239 Kan. 117, 122, 716 P.2d 580 (1986). Indeed, a statute generally only operates prospectively unless: (1) the language of the statute demonstrates the Legislature's clear intent that it operate retrospectively or (2) the statutory change is procedural and does not prejudice the substantive rights of the parties. State v. Bernhardt , 304 Kan. 460, 479, 372 P.3d 1161 (2016). The penalty provisions of a criminal offense are substantive and therefore K.S.A. 2018 Supp. 21-6810(d) will only operate retrospectively if the statute's language expresses a clear legislative intent to do so. See State v. Martin , 270 Kan. 603, 608, 17 P.3d 344 (2001).

Here, Sheppard argues that the plain language of K.S.A. 2018 Supp. 21-6810 requires its provisions to be applied retroactively. This includes the provisions added by the 2016 amendment, under which Sheppard's 1994 juvenile adjudication for burglary of a dwelling (a severity level 7 person felony) would decay and would not factor into the calculation of his criminal history score. But unlike the 2015 amendment-which included subsection (e) and specifically applied retroactively-the 2016 amendment contained no language expressing a clear legislative intent that it should operate retrospectively. And while it is true that the 2016 amendment left in place the language of K.S.A. 2016 Supp. 21-6810(e) -which provided that "[t]he amendments made to this section by this act are procedural in nature and shall be construed and applied retroactively"-panels of this court repeatedly have held that this language only applies to the 2015 amendment and that if the Legislature had intended for it to apply to future amendments, it would have included the language "and amendments thereto." See, e.g., State v. Churchill , No. 118821, 2019 WL 1087352, at *3-4 (Kan. App. 2019) (unpublished opinion), petition for rev. filed April 8, 2019; State v. Maples , No. 116366, 2018 WL 1127568, at *12 (Kan. App.) (unpublished opinion), rev. denied 308 Kan. 1599 (2018); State v. Landers , No. 116652, 2018 WL 385697, at *9-10 (Kan. App.) (unpublished opinion), rev. denied 308 Kan. 1598 (2018); State v. Martinez , No. 116175, 2017 WL 3947378, at *12 (Kan. App. 2017) (unpublished opinion); State v. Villa , No. 115595, 2017 WL 3207087, at *4-5 (Kan. App. 2017) (unpublished opinion);

Parker v. State , No. 115267, 2017 WL 947821, at *3-4 (Kan. App. 2017) (unpublished opinion), rev. denied 308 Kan. 1595 (2018).

These are all unpublished decisions, but their conclusions are buttressed by the 2017 amendment to K.S.A. 21-6810, which changed subsection (e) so that its retroactive provisions applied only to statutory changes made by the 2015 amendment. See K.S.A. 2018 Supp. 21-6810(e) ("The amendments made to this section by section 1 of chapter 5 of the 2015 Session Laws of Kansas are procedural in nature and shall be construed and applied retroactively."). The Kansas Legislature has clearly expressed its intent that only the 2015 amendments to K.S.A. 21-6810 shall be applied retroactively.

In sum, and as our court consistently has held, the 2016 statutory amendments to the juvenile decay rules are substantive in nature, and the Legislature has included no clear language that it intended the 2016 amendments to the statute to operate retroactively. As such, the amendments do not apply to Sheppard's case and the district court correctly included Sheppard's 1994 juvenile residential burglary adjudication in his criminal history score.

Affirmed.