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NOT DESIGNATED FOR PUBLICATION

No. 122,848

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellee,

v.

JEROME E. LEWIS,

Appellant.

MEMORANDUM OPINION

Appeal from Sedgwick District Court; KEVIN J. O'CONNOR, judge. Opinion filed April 30, 2021.

Affirmed.

Mark Sevart, of Derby, for appellant.

Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, 

attorney general, for appellee.

Before GARDNER, P.J., GREEN and BUSER, JJ.

PER CURIAM: Jerome E. Lewis appeals the denial of his motion to correct an 

illegal sentence. Lewis claims his sentence imposed on remand in 2017 was illegal 

because the district court was vindictive in the resentencing by imposing the aggravated 

number in the sentencing guidelines grid box as punishment for Lewis' successful

exercise of his right to appeal. Because a motion to correct an illegal sentence under 

K.S.A. 22-3504 is not the proper procedural vehicle to present this argument, we affirm 

the district court's denial of the motion.
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FACTUAL AND PROCEDURAL BACKGROUND

Lewis pled guilty to statutory rape in 1996. He was sentenced to 692 months' 

imprisonment. Lewis appealed, arguing the district court erred by denying his motion to 

withdraw his guilty plea and in imposing the presumptive sentence. Our court rejected the 

arguments, and the Kansas Supreme Court declined review. See State v. Lewis, 27 Kan. 

App. 2d 134, 998 P.2d 1141, rev. denied 269 Kan. 938 (2000) (Lewis I).

In 2007, Lewis filed a pro se motion to correct an illegal sentence. He contended a 

prior conviction for burglary should not have been included in his criminal history score. 

The district court summarily dismissed Lewis' motion, he appealed, and our court 

affirmed. State v. Lewis, No. 99,180, 2008 WL 4849677 (Kan. App. 2008) (unpublished 

opinion) (Lewis II).

In 2013, Lewis filed another motion to correct an illegal sentence, arguing once 

again that a prior burglary conviction should not have been included in his criminal 

history score. The district court denied the motion, our court affirmed, but our Supreme 

Court summarily reversed and remanded Lewis' case for resentencing in compliance with 

State v. Dickey, 305 Kan. 217, 380 P.3d 230 (2016) (Dickey II), and State v. Dickey, 301 

Kan. 1018, 350 P.3d 1054 (2015) (Dickey I).

On remand, Lewis moved for a downward durational departure. The district court 

denied Lewis' motion. After modifying Lewis' criminal history score by excluding the 

prior burglary conviction, the district court resentenced him to 356 months' 

imprisonment—the aggravated value in the applicable sentencing grid box. Lewis 

appealed. Our court affirmed in part and dismissed in part. State v. Lewis, No. 118,548, 

2018 WL 4840299 (Kan. App. 2018) (unpublished opinion) (Lewis III).
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In 2019, Lewis filed his latest motion to correct an illegal sentence pursuant to 

K.S.A. 22-3504—which is the subject of this appeal. In the motion, Lewis argued that the 

district court vindictively punished him for successfully exercising his right to appeal 

when it resentenced him to the aggravated number in the applicable grid box. The district 

court denied the motion to correct an illegal sentence, ruling that "[n]o presumption of 

vindictiveness applies because defendant's sentence decreased upon resentencing." 

(Emphasis added.) The district court also noted that Lewis offered "nothing more than 

conclusory statements that the sentencing judge was vindictive" and, therefore, failed to 

meet his burden to show actual vindictiveness.

Lewis timely appeals.

ANALYSIS

On appeal, Lewis reprises the vindictiveness argument he made in the district 

court. Lewis' contention is premised on the fact that he initially received the mitigated

number in the applicable grid box—692 months, when his criminal history score was 

calculated as B—but on remand he received the aggravated number—356 months—in 

the applicable grid box when his criminal history score was recalculated as C. Lewis 

contends that but for the sentencing court's vindictiveness, he should have received the 

mitigated number in the C grid box and been given a 322-month sentence. Lewis alleges 

the district judge punished him for his successful sentencing appeal.

The State responds that Lewis' claim is procedurally barred by the doctrines of res 

judicata and law of the case. Alternatively, the State argues that Lewis' claim lacks merit. 

We agree with the State that Lewis' claim is barred. However, because we find a motion 

to correct an illegal sentence brought under K.S.A. 22-3504 is not the proper vehicle for 

Lewis' claim of judicial vindictiveness, we decline to address the State's grounds for 

procedural bars while predicating our holding on a separate basis.
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Whether a sentence is illegal within the meaning of K.S.A. 22-3504 is a question 

of law subject to our unlimited review. State v. Donahue, 309 Kan. 265, 267, 434 P.3d 

230 (2019). K.S.A. 2020 Supp. 22-3504(a) permits a court to "correct an illegal sentence 

at any time while the defendant is serving such sentence." But a sentence is only illegal 

under K.S.A. 2020 Supp. 22-3504(c)(1) if the sentence: (1) was imposed by a court 

lacking jurisdiction; (2) does not conform to statutory provisions in character or term of 

punishment authorized; or (3) is ambiguous with regard to the time and manner it is to be 

served. State v. McAlister, 310 Kan. 86, 89, 444 P.3d 923 (2019).

As is readily apparent, Lewis' vindictiveness argument does not implicate any of 

the three aspects of an illegal sentence that may be remedied under K.S.A. 2020 Supp. 

22-3504. He does not challenge the district court's jurisdiction to impose the sentence. He 

does not contend the latest sentence failed to conform to any statutory provisions, and he 

does not claim any ambiguity regarding the time and manner by which the sentence is to 

be served. In short, Lewis' claim of error does not fall within the ambit of K.S.A. 2020 

Supp. 22-3504. On the other hand, as we noted in Lewis III, 2018 WL 4840299, at *1, 

and as the district court found in ruling upon the motion, Lewis received a presumptive 

sentence which properly conformed to the revised Kansas Sentencing Guidelines Act. 

See K.S.A. 2020 Supp. 21-6801 et seq.

Additionally, Lewis' vindictiveness claim is predicated on the Due Process Clause 

of the Fourteenth Amendment to the United States Constitution. Citing North Carolina v. 

Pearce, 395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969), overruled on other 

grounds by Alabama v. Smith, 490 U.S. 794, 109 S. Ct. 2201, 104 L. Ed. 2d 865 (1989), 

Lewis asserted in his motion that "[f]or the District Court to pronounce a vindictive 

sentence violates appellant[']s constitutional rights." In Pearce, the United States 

Supreme Court addressed the implications of an increased sentence following a 

successful appeal and held that due process of law requires that vindictiveness against a 
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defendant for having successfully attacked his or her conviction may not play a role in 

the sentence imposed. 395 U.S. at 725.

A claim of constitutional error in sentencing, however, is not appropriately raised 

in a motion to correct an illegal sentence under K.S.A. 22-3504. Our Supreme Court "has 

long held the plain language of this narrow statutory definition does not include a claim 

that the sentence is illegal because it violates a constitutional provision." State v. Hayes, 

312 Kan. 865, 868, 481 P.3d 1205 (2021). Moreover, our Supreme Court has "'repeatedly 

held that K.S.A. 22-3504(1) has very limited applicability.'" State v. Warrior, 303 Kan. 

1008, 1010, 368 P.3d 1111 (2016) (quoting Makthepharak v. State, 298 Kan. 573, 581, 

314 P.3d 876 [2013]). For all these reasons, Lewis' motion to correct an illegal sentence 

under K.S.A. 22-3504 is not an appropriate vehicle to present his vindictive sentencing 

claim.

For the first time on appeal, Lewis also suggests that "[p]erhaps the judge was 

impacted at the remand sentencing by the unsubstantiated claims made by the 

prosecutor . . . that the [rape] victim said there had been some contact [by Lewis] when 

she turned 18." Lewis raises this claim of error as a violation of the Confrontation Clause 

of the Sixth Amendment to the United States Constitution and due process of law.

Lewis did not raise this issue in his motion to correct an illegal sentence filed in 

the district court. This failure is important because constitutional grounds for reversal 

asserted for the first time on appeal are not properly before an appellate court for review. 

There are some exceptions to this general rule. See State v. Johnson, 309 Kan. 992, 995, 

441 P.3d 1036 (2019) (stating exceptions), but Lewis has not claimed that any exception 

applies.

Supreme Court Rule 6.02(a)(5) (2021 Kan. S. Ct. R. 35) requires an appellant to 

explain why an issue that was not raised below should be considered for the first time on 
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appeal. 309 Kan. at 995. In State v. Godfrey, 301 Kan. 1041, 1044, 350 P.3d 1068 (2015),

and State v. Williams, 298 Kan. 1075, 1085, 319 P.3d 528 (2014), our Supreme Court 

warned that Supreme Court Rule 6.02(a)(5) would be strictly enforced, and litigants who 

failed to comply with this rule risked a ruling that the issue is improperly briefed, and the 

issue will be deemed waived or abandoned. See State v. Daniel, 307 Kan. 428, 430, 410 

P.3d 877 (2018). This issue is waived or abandoned.

Finally, as discussed earlier in the context of vindictiveness, constitutional claims 

do not fall within the purview of motions to correct illegal sentence under K.S.A. 22-

3504. Hayes, 312 Kan. at 868.

For all the reasons discussed, we hold the district court did not err in denying 

Lewis' third motion to correct an illegal sentence.

Affirmed.