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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 115,051

STATE OF KANSAS,

Appellee,

v.

DAMON HORTON,

Appellant.

SYLLABUS BY THE COURT

A motion to correct an illegal sentence, pursuant to K.S.A. 22-3504(1), cannot be 

used to collaterally attack a district court's evidentiary finding that a defendant violated 

the terms and conditions of probation.

Review of the judgment of the Court of Appeals in an unpublished opinion filed October 7, 2016.

Appeal from Leavenworth District Court; DAN K. WILEY, judge. Opinion filed August 17, 2018. 

Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is 

affirmed.

Christina M. Kerls, of Kansas Appellate Defender Office, was on the briefs for appellant. 

Todd Thompson, county attorney, and Derek Schmidt, attorney general, were on the brief for 

appellee.

The opinion of the court was delivered by

JOHNSON, J.: Damon Horton seeks review of the Court of Appeals' decision to 

affirm the district court's summary denial of his motion to correct an illegal sentence 
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under K.S.A. 22-3504. The motion challenged the revocation of his probation over 16 

years earlier. Horton contends that the evidence at the probation revocation hearing did 

not support the district court's finding that he violated the conditions of his probation. 

Therefore, he argues, the ensuing imposition of his original prison sentence did not 

comply with the statutory provisions of K.S.A. 22-3716, rendering that probation 

violation sentence illegal. 

Because a motion to correct an illegal sentence cannot be used to collaterally 

attack a district court's evidentiary finding that a defendant violated the terms and 

conditions of probation, we affirm the Court of Appeals' affirmance of the district court's 

summary denial.

FACTUAL AND PROCEDURAL OVERVIEW

Horton pled guilty to residential burglary and felony theft. At his November 23, 

1998 sentencing hearing, the district court was aware that Horton had other charges 

pending and sentenced him to probation with the understanding he would serve the first 

part of his probation in jail on the other charges. 

On December 29, 1998, the State moved to revoke Horton's probation on the 

grounds that Horton violated his probation by failing to report as directed. The affidavit 

in support of the motion stated, "Mr. Horton has not reported to his [Court Services 

Officer] CSO since November 20, 1998." The transcript of the hearing on the motion to 

revoke probation is not included in the record on appeal. The journal entry revoking 

probation states that Horton stipulated to failing to report as directed and that there was 

sufficient evidence and grounds for the court to consider revoking Horton's probation on 

this basis. 
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Many years later, on June 29, 2015, Horton filed a pro se K.S.A. 22-3504 motion 

to correct an illegal sentence in the district court. He argued that the district court had 

erred in revoking his probation for failing to report as directed because it was impossible 

for him to report as required when he was incarcerated for other offenses. 

The district court summarily dismissed Horton's motion, noting that "[a]t that 

[probation revocation] hearing, the Defendant stipulated to the violation of probation, 

therefore, the Court imposed the underlying sentence." Moreover, the district court noted

that Horton did not assert that the sentences originally pronounced by the sentencing 

court were illegal, but instead asserted that his probation revocation was illegal. The 

district court reasoned that the Court of Appeals had made clear that a violation of K.S.A. 

22-3716 is unlikely to ever result in an illegal sentence. Further, the district court found 

Horton did not assert one of the permissible grounds for finding a sentence illegal, i.e., 

that the sentencing court lacked jurisdiction, that his original sentence did not conform to 

the applicable statute, or that the sentence was ambiguous.

Horton appealed the summary denial to the Court of Appeals, arguing his 

probation revocation was illegal because no valid probation violation had been

established. He asserted that, because the revocation of his probation was not authorized 

by K.S.A. 22-3716, the resulting sentence was illegal. 

The Court of Appeals rejected Horton's argument, reasoning that Horton was not 

claiming that the district court improperly sentenced him under the burglary or theft 

statutes and that the district court's noncompliance with K.S.A. 22-3716 does not render 

the underlying sentence illegal under K.S.A. 22-3504. State v. Horton, No. 115,051, 2016 

WL 5867237, at *3 (Kan. App. 2016) (unpublished opinion). This court granted Horton's 

petition for review.
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MOTION TO CORRECT AN ILLEGAL SENTENCE 

Standard of Review

Whether a sentence is illegal within the meaning of K.S.A. 22-3504 is a question 

of law subject to unlimited review. State v. Wood, 306 Kan. 283, 284, 393 P.3d 631 

(2017). Additionally, to the extent the resolution of Horton's claims requires statutory 

interpretation, we are presented with a question of law subject to unlimited review. State 

v. Skolaut, 286 Kan. 219, 227, 182 P.3d 1231 (2008). 

Analysis 

"While a sentence that is illegal under K.S.A. 22-3504 may be corrected at any 

time, the circumstances under which a sentence is deemed illegal for K.S.A. 22-3504 

purposes are narrowly and specifically defined." State v. Swafford, 306 Kan. 537, 540-41, 

394 P.3d 1188 (2017). This court has defined an "illegal sentence" under K.S.A. 22-3504

as: (1) a sentence imposed by a court without jurisdiction; (2) a sentence that does not 

conform to the applicable statutory provision, either in character or the term of authorized 

punishment; or (3) a sentence that is ambiguous with respect to the time and manner in 

which it is to be served. State v. Trotter, 296 Kan. 898, 902, 295 P.3d 1039 (2013). 

On May 18, 2017, the Legislature amended K.S.A. 22-3504 to, inter alia, add a 

statutory definition of the term "illegal sentence" that closely tracks this court's definition. 

Horton's supplemental brief discusses this statutory codification as though it applies here, 

without discussing the threshold question of whether the 2017 amendments apply to his 

2015 motion. Nevertheless, the applicability of the amendment is of no consequence

here; Horton is not entitled to relief under either version of the statute.
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As noted above, Horton is not contesting the legality of his original underlying 

sentence for residential burglary and felony theft. Instead, he contends that it was illegal 

to make him serve that originally imposed sentence for a probation violation that the 

State failed to prove. His reasoning is that, without a valid violation of the conditions of 

his probation, the district court's order for him to serve his underlying sentence did not 

conform to the applicable statutory provision, i.e., K.S.A. 22-3716, and that such a failure 

to conform to statutory provisions renders the revocation sentence illegal.

The Court of Appeals rejected Horton's motion, relying in part on State v. 

Edwards, 281 Kan. 1334, 1337, 135 P.3d 1251 (2006), which stated that the "statutory 

provision" referred to in the caselaw definition of an illegal sentence under K.S.A. 22-

3504(1) is "the statute defining the crime and assigning the category of punishment to be 

imposed." Accordingly, the panel opined that noncompliance with the probation 

revocation statute, K.S.A. 22-3716, did not fit the definition of an illegal sentence. The 

panel also cited to State v. Howell, No. 111,746, 2015 WL 2414407 (Kan. App.) 

(unpublished opinion), rev. denied 302 Kan. 1015 (2015), and State v. Clapp, No. 

112,842, 2016 WL 1169418 (Kan. App. 2016) (unpublished opinion), rev. granted 306 

Kan. 1322 (2017), in which other panels of the Court of Appeals relied on Edwards' 

limiting language to hold that a disposition following a probation violation under the 

respective versions of K.S.A. 22-3716 could not fit within the definition of an illegal 

sentence for K.S.A. 22-3504(1) purposes. Horton, 2016 WL 5867237, at *2.

Horton's claim, however, attacks a different step in the probation revocation 

process. Howell and Clapp each involved a challenge to the disposition the district court 

imposed after the court had found a probation violation; neither appellant in those cases 

quibbled about whether a violation of probation conditions had occurred. Horton, on the 

other hand, claims that the district court's error was initially finding a probation violation; 

beyond challenging the district court's authority to revoke probation, he does not quibble 

about the disposition decision to impose the underlying original sentence. We opined in 
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Skolaut that K.S.A. 22-3716(b) reflects the United States Supreme Court's recognition 

that there are "two distinct stages in the area of probation revocation": 

"'In identifying the procedural requirements of due process, 

we have observed that the decision to revoke probation typically involves 

two distinct components: (1) a retrospective factual question whether 

the probationer has violated a condition of probation; and (2) a 

discretionary determination by the sentencing authority whether violation 

of a condition warrants revocation of probation. See Gagnon [v. 

Scarpelli, 411 U.S. 778, 784, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973).]' 

(Emphasis added.) [Black v. Romano], 471 U.S. 606, 611, 105 S. Ct. 

2254, 85 L. Ed. 2d 636 (1985).

. . . .

"While the violation stage, i.e., guilt determination, is separate from the 

revocation stage, i.e., penalty determination, the statute makes clear that revocation is 

merely one type of disposition available." 286 Kan. at 227-28.

The two-step probation revocation process is analogous to the conviction and 

sentencing process. First, guilt is established and then the disposition is imposed. In the 

conviction/sentencing process we have repeatedly and explicitly held that a K.S.A. 

22-3504 motion to correct an illegal sentence is not a mechanism that a defendant is 

permitted to use to seek reversal of a conviction. See, e.g., State v. Nash, 281 Kan. 600, 

602, 133 P.3d 836 (2006) ("In essence, the defendant is seeking to use the correction of 

an illegal sentence statute as the vehicle for a collateral attack on a conviction. Such relief 

is not available under K.S.A. 22-3504."). In other words, an erroneous conviction does 

not render the ensuing sentence illegal if that sentence is appropriate for the crime for 

which the defendant was convicted. In that instance, any relief must emanate from an 

attack on the improper conviction, not on the proper sentence.
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The same rationale obtains in the probation violation scenario. If we do not allow 

a defendant to challenge his or her conviction of a crime under K.S.A. 22-3504, it follows 

that a probation violator cannot use K.S.A. 22-3504 to collaterally attack the district 

court's guilt determination at a probation violation hearing. A revoked probationer must 

directly attack the factual determination that a probation violation occurred, rather than 

working backward from the disposition. Here, under the version of K.S.A. 22-3716 

applicable to Horton, the district court's imposition of the original underlying sentence 

was unquestionably legal—and appropriate—based upon the district court's evidentiary 

finding that Horton violated the conditions of his probation. See K.S.A. 22-3716(b)

(Furse 1995) ("[I]f the violation is established, the court may continue or revoke the 

probation . . . and may require the defendant to serve the sentence imposed . . . ."). 

Consequently, a motion to correct an illegal sentence was simply unavailing. The district 

court did not err by summarily denying Horton's claim, and the Court of Appeals did not 

err in affirming the district court.

Affirmed.