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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 114,351

STATE OF KANSAS,

Appellee,

v.

LOUIS COTTON,

Appellant.

SYLLABUS BY THE COURT

1.

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

of law over which an appellate court has unlimited review.

2.

An illegal sentence is defined as (1) a sentence imposed by a court without 

jurisdiction; (2) a sentence that does not conform to the applicable statutory provision, 

either in the character or the term of the authorized punishment; or (3) a sentence that is 

ambiguous concerning the time and manner in which it is to be served.

3.

Under the facts of this case, the district court did not err in summarily denying 

defendant's motion.

Appeal from Wyandotte District Court; J. DEXTER BURDETTE, judge. Opinion filed April 14, 

2017. Affirmed.
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Gerald E. Wells, of Jerry Wells Attorney-at-Law, of Lawrence, argued the cause and was on the 

brief for appellant.

Sheryl L. Lidtke, chief deputy district attorney, argued the cause, and Jerome A. Gorman, district 

attorney, and Derek Schmidt, attorney general, were with her on the brief for appellee.

The opinion of the court was delivered by

NUSS, C.J.: Twenty-six years after his convictions, Louis Cotton filed two pro se 

motions entitled "motion to set aside a void judgment." The district court summarily 

denied both as untimely filed. Cotton acknowledges they are indeed too late when 

considered as motions (1) to arrest judgment or (2) for judgment of acquittal. So he asks 

this court to treat the single motion at issue in this appeal as one to correct an illegal 

sentence. While such a motion would be timely filed, it is the wrong vehicle for bringing

Cotton's particular arguments. So we affirm the district court's summary denial, albeit for 

a different reason.

FACTS AND PROCEDURAL BACKGROUND

On September 13, 1988, Cotton pled guilty to three counts of forgery. On 

November 4, 1988, a jury convicted him of one count of aggravated burglary, one count 

of unlawful weapons possession, two counts of aggravated robbery, one count of felony 

theft, and one count of first-degree murder. The district court sentenced Cotton to 3 to 15 

years for each count of forgery, 15 to 60 years for aggravated burglary, 9 to 30 years for 

unlawful firearm possession, 45 years to life for each count of aggravated robbery, 3 to 

15 years for felony theft, and 3 life sentences for first-degree murder. We affirmed 

Cotton's convictions in his direct appeal to this court in State v. Cotton, No. 63,648 (Kan. 

May 25, 1990) (unpublished opinion).
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In 2014, 26 years after his convictions, Cotton filed with the district court two pro 

se motions entitled "motion to set aside a void judgment." Cotton concedes the first, filed

October 20th, is not properly before this court because it duplicates a motion the district 

court denied in 2002.

Cotton's second motion, filed December 4, included eight arguments for why his 

"convictions should not have been sustained." He claimed the district court erred when it: 

(1) allowed the prosecution to repeatedly ask questions of Cotton regarding the credibility 

of witnesses and then attack him for those answers; (2) lowered the burden of proof by 

incorrectly defining "deliberately" and "premeditation" in the jury instructions; (3) 

allowed the prosecution to lower its burden of proof when it defined "reasonable doubt" 

in closing arguments; (4) did not require the prosecutor to prove "corpus delicti," thereby 

lowering the burden of proof; (5) allowed the prosecution to "express judicial approval of 

the [p]rosecution's case"; (6) allowed the prosecution to state facts not in evidence; (7) 

allowed the prosecution to "put forth evidence at trial that a death was from a 'homicide'"; 

and (8) allowed cumulative errors that prejudiced the defendant's ability to obtain a fair 

trial.

The district court's memorandum decision summarily denied Cotton's motion

because, however characterized, it was untimely filed:

"Defendant's Motion to Set Aside a Void Judgment is considered by this Court and the 

same is denied. A motion for arrest of judgment is time barred as Defendant is past the 

deadline to file such a motion. Similarly, as the State points out a motion for judgment of 

acquittal is procedurally defective as Defendant has not complied with the statutory time 

constraints. Defendant appears past any deadline for post-conviction relief." (Emphasis 

added.)

Cotton appeals that decision.
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This court's jurisdiction is proper under K.S.A. 2015 Supp. 22-3601(b)(3) 

(maximum sentence of life imprisonment imposed).

More facts will be added as necessary to the analysis.

ANALYSIS

Cotton's counsel conceded at oral argument before us that the district court 

correctly denied his motion as untimely if considered as a motion to arrest judgment or 

motion to acquit—i.e., the statutes Cotton cited as authority in his original motion. See 

K.S.A. 22-3502 and 22-3419. We agree.

So Cotton asks us to construe his motion as one to correct an illegal sentence

under K.S.A. 22-3504. Such a motion would not be subject to those same time 

constraints. See State v. Gray, 303 Kan. 1011, 1014, 368 P.3d 1113 (2016) ("'[A]n illegal 

sentence issue may be considered for the first time on appeal.'"). If we treat it so, Cotton 

contends he is entitled to a reversal and new trial. In the alternative, he contends that his 

arguments at least warrant a remand to the district court for findings of fact and 

conclusions of law.

The State responds that Cotton's arguments are inappropriately brought in a 

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 over which the appellate court has unlimited review. Gray, 303 Kan. at 1013 

(citing State v. Taylor, 299 Kan. 5, 8, 319 P.3d 1256 [2014]). We review de novo a 
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district court's summary denial of such a motion because we examine the same motion, 

records, and files as the district court. 303 Kan. at 1013-14.

Discussion

K.S.A. 22-3504(1) provides:

"The court may correct an illegal sentence at any time. The defendant shall 

receive full credit for time spent in custody under the sentence prior to correction. The 

defendant shall have a right to a hearing, after reasonable notice to be fixed by the court, 

to be personally present and to have the assistance of counsel in any proceeding for the 

correction of an illegal sentence."

K.S.A. 22-3504 only applies if a sentence is illegal, which this court has narrowly 

defined as:

"'"(1) a sentence imposed by a court without jurisdiction; (2) a sentence that does not 

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

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

manner in which it is to be served."'" Gray, 303 Kan. at 1014.

See also Makthepharak v. State, 298 Kan. 573, 578, 314 P.3d 876 (2013).

For purposes of this appeal, we assume without deciding that Cotton's motion to 

set aside a void judgment can be construed as a motion to correct an illegal sentence 

under K.S.A. 22-3504(1).

Cotton contends that his arguments fall under the first definition of an illegal 

sentence—i.e., the district court lacked jurisdiction to render a sentence. He argues the 

eight errors made by the trial court deprived him of a "full and fair trial" and violated his 
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due process rights, thus making his sentence illegal. The State responds that Cotton's 

arguments actually attack his convictions and therefore do not fit within the definition of 

an illegal sentence. We agree with the State.

This court has held that a motion to correct an illegal sentence under K.S.A. 22-

3504 "is solely a vehicle to correct a sentence. It is not a mechanism to reverse a 

conviction." State v. Gilbert, 299 Kan. 797, 801, 326 P.3d 1060 (2014); see State v. 

Williams, 283 Kan. 492, 495-96, 153 P.3d 520 (2007) ("We have declared that K.S.A. 

22-3504 is not a vehicle for a collateral attack on a conviction."). The eight grounds 

Cotton argues in his motion plainly attack his convictions, not his sentence. So a motion 

to correct an illegal sentence is the wrong vehicle for such an attack.

Additionally, Cotton claims the district court lacked jurisdiction to impose his 

sentence because it was rendered in violation of due process. But this court has held that 

a claim of a due process violation cannot be remedied in a motion to correct illegal 

sentence. See State v. Hankins, 304 Kan. 226, 230-31, 372 P.3d 1124 (2016); see also 

State v. Mitchell, 284 Kan. 374, 377, 162 P.3d 18 (2007) ("Because the definition of an 

illegal sentence does not include a claim that the sentence violates a constitutional 

provision, a defendant may not file a motion to correct an illegal sentence based on 

constitutional challenges to his or her sentence.").

In sum, Cotton's particular claims are not properly raised through a motion to 

correct an illegal sentence. Although the district court did not deny his motion on this 

specific basis, it correctly denied relief. See State v. Deal, 286 Kan. 528, 530-31, 186 

P.3d 735 (2008) ("[W]here the district court reaches the right result, albeit for the wrong 

reason, it will not be reversed.").
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Accordingly, we affirm the district court's decision to summarily deny Cotton's 

motion.

ROSEN, J., not participating.

MICHAEL J. MALONE, Senior Judge, assigned.1

 

1REPORTER'S NOTE: Senior Judge Malone was appointed to hear case No. 114,351 

vice Justice Rosen under the authority vested in the Supreme Court by K.S.A. 20-2616.