1 IN THE SU PREME COURT OF THE S TATE OF KANSAS

N o

. 1 1 4 , 351

S TATE OF K ANSAS , Appel lee
,

v

.
L OUIS C OTTON , Appell ant

.

SYLLABUS BY THE COUR T

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 pu nishment; 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 C ourt; J. D EXTER B URDETTE , judge

. Opinion filed April 14
, 20 1 7

. Affirmed

.2

Gerald E. Wells , of Jerry Wells Attorney

- at

- Law, of Lawrence , argued the cause and w as on the brief for appellant.

Sheryl L. Lidtke
, c hief deputy district attorney
, argued the cause, and Jerome A. Gorman , district attorney, and Derek Schmidt , attorney general, w ere with her on the brief for appell ee

.

The opinion of the court was delivered by

N USS , C. J

. : Twenty

- six years after his convictions, Louis Cotton filed two pro se
motions entitled " m otion to s et a side a v oid j udgment. " The district cour t summarily
denied both as untimely filed

. Cotton acknowledges they are indeed too late when

c onsidered as motions (1) to arrest judgment or (2) for judgment of acquit tal . 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 bring ing
Cotton's particular argument s . So we affirm the district court's summary denial, albeit for

a different reason

.

F ACTS AND P ROCEDURAL B ACKGROUND

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. T he 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 p ossession, 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)

.3

In 2014, 26 years after his convictions, Cotton filed with the district court two pro se motions en titled " m otion to s et a side a v oid j udgment." Cotton concedes the first, filed
October 20th, is not properly bef ore this court because it duplicate s 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 ] rosecut ion '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 t he defendant's ability to obtain a fair
trial.

The district court 's memorandum decision summarily den ied 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 jud gment 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.)

Co tto n appeals that decision.4

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.

A NALYSIS

Cotton 's counsel conceded at oral argument before us that the district court correctly denied h is 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 correc t an illegal sentence
under K.S.A. 22

- 3504 . Such a motion would not be subject to th os e 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 c ourt 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 1 013 (citing State v. Taylor , 299 Kan. 5, 8, 319 P.3d 1256 [2014]). We review de novo a5

district court's summary denial of such a motion because we examine the same m otion, 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 pr ior 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 t his 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 1 014

.

S ee also M

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

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

s et a side a v oid j udgment can be construed as a m otion to c orrect an i llegal s entence under K.S.A. 22

- 3504(1).

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

sentence

— i.e. , the district court lacked jurisdiction to render a s entence . He argues the eight erro r s made by the t ria l court deprived him of a "full and fair trial" and violated his6

due process rights, thus making his sentence illegal. The State responds that Cotton's arguments actually attack his conviction s and therefore do not fit within the definition of an illegal sentence. We agree with the State

.

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

- 35 04 "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) ; s ee State v.
Williams , 283 Kan. 492, 495

- 96, 153 P.3d 520 (2007) ("We have declared that K.S.A.
22

- 350 4 is not a vehicle for a collateral attack on a conviction.")

. The eight grounds Cotton argues in his motion plainly attack his conviction s , 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. B ut this court has held that a claim of a due process violation cannot be remedied in a motion to correct illegal

sentence. S ee 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 provisio n, 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 dist rict 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. ").7

Accordingly, we affirm the district court's decision to summarily deny Cotton's
motion.

R OSEN , J ., not participating.

M ICHAEL J. M ALONE , Senior Judge, assigned. 1

1 REPORTER'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.