State v. Robertson

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 118,427

STATE OF KANSAS,
Appellee,

v.

JOSHUA ROBERTSON,
Appellant.

SYLLABUS BY THE COURT

1.
A motion to correct illegal sentence filed under K.S.A. 2018 Supp. 22-3504 that
alleges a defect in the charging document does not give a court jurisdiction to reverse a
conviction that has become a final judgment.

2.
A court need not entertain a second or successive motion for relief under K.S.A.
2018 Supp. 60-1507(c) in the absence of exceptional circumstances.

3.
A motion under K.S.A. 2018 Supp. 60-1507 must be filed within the time set out
in 60-1507(f)(1), (2) unless the movant establishes that a manifest injustice would result.

Appeal from Butler District Court; MICHAEL E. WARD, judge. Opinion filed April 19, 2019.
Affirmed.

Joshua J. Robertson, appellant, was on the briefs pro se.

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 Darrin C. Devinney, county attorney, and Derek Schmidt, attorney general, were on the brief for
appellee.

The opinion of the court was delivered by

LUCKERT, J.: Joshua J. Robertson appeals from the district court's summary
dismissal of his pro se motion, which he calls a combined "motion to correct illegal
sentence" and "motion to dismiss for lack of jurisdiction." In the combined motion, he
invokes K.S.A. 2018 Supp. 22-3504 as the basis for jurisdiction and requests his
convictions be reversed. We affirm the summary denial of Robertson's motion because he
cannot collaterally attack a conviction through a motion to correct an illegal sentence
filed under K.S.A. 2018 Supp. 22-3504 that claims a defective complaint meant the
district court lacked jurisdiction to convict. We also hold the district court lacked
jurisdiction over Robertson's motion to dismiss. Finally, we decline to consider the
motion as one filed under K.S.A. 2018 Supp. 60-1507 because such a motion is
procedurally barred.

FACTS AND PROCEDURAL HISTORY

A jury convicted Robertson of first-degree murder, arson, and aggravated burglary
for his role in the death of his girlfriend's mother, Patricia Self. This court affirmed his
convictions and sentences on direct appeal. See State v. Robertson, 279 Kan. 291, 109
P.3d 1174 (2005).

Since then, Robertson has raised various challenges to his convictions and
sentences. The district court referenced five other district court orders addressing
Robertson's collateral attacks. Three of those attempts have reached this court. In one,
Robertson vainly sought relief through a motion to correct illegal sentence filed under

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K.S.A. 22-3504. See State v. Robertson, 298 Kan. 342, 343-45, 312 P.3d 361 (2013). In
the other two, Robertson either explicitly sought relief under K.S.A. 60-1507 or the
district court liberally construed the motion as one seeking relief under that statute. See
generally Robertson v. State, 288 Kan. 217, 201 P.3d 691 (2009) (considering and
rejecting merits of motion explicitly filed under 60-1507); State v. Robertson, No.
112,714, 2017 WL 2062832, at *1-3 (Kan. 2017) (unpublished opinion) (considering and
rejecting motion district court had treated as one filed under 60-1507).

In his current appeal, Robertson invokes K.S.A. 2018 Supp. 22-3504 as the sole
basis for jurisdiction. He asserts his status as a sovereign and criticizes the way his name
appears in the charging document. He further asserts the document charges a trust, not a
person. According to him, these shortcomings cause a fatal defect in the charging
document that deprived the district court of jurisdiction to convict him. Thus, he argues,
his convictions should be reversed. He also contends Kansas statutes are commercial
contracts, and he reserves his rights not to perform under the statutes.

The district court summarily denied relief. It held the motion lacked any legal or
factual basis and consisted of "nothing more than a futile exercise in semantics and a poor
attempt to fashion arguments out of thin air."

Robertson appealed. His appeal came directly to this court because he has been
convicted of a homicide and sentenced to life in prison. See K.S.A. 2018 Supp. 22-
3601(b)(3); see Robertson, 2017 WL 2062832, at *2 ("A ruling on a motion to correct an
illegal sentence, where the sentence imposed for a homicide is imprisonment for life, is
directly appealable to this court. K.S.A. 2016 Supp. 22-3601[b][3].").

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 ANALYSIS

Robertson asks us to reverse his convictions and vacate his sentences. The State
responds by arguing the district court lacked jurisdiction to grant the relief Robertson
seeks. We first consider the State's jurisdiction argument because, if a district court lacks
jurisdiction to correct an illegal sentence, an appellate court lacks jurisdiction to do so on
appeal. See State v. McCoin, 278 Kan. 465, 468, 101 P.3d 1204 (2004).

Article 3, section 1 of the Kansas Constitution grants "[t]he judicial power of this
state" to the "supreme court, district courts, and such other courts as are provided by
law." Kan. Const. art. 3, § 1. But a court can exercise this power only when it has
jurisdiction as granted by article 3 of the Kansas Constitution. Article 3, § 3 of the Kansas
Constitution grants this court "such appellate jurisdiction as may be provided by law."
Kan. Const. art. 3, § 3. And article 3, § 6(b) grants district courts "such jurisdiction in
their respective districts as may be provided by law." Kan. Const. art. 3, § 6(b). See
generally State v. Dunn, 304 Kan. 773, 811, 375 P.3d 332 (2016). The mechanism for the
law to provide jurisdiction is through statutes. See State v. Dupree, 304 Kan. 43, 53, 371
P.3d 862 (2016) (addressing appellate jurisdiction); State v. Valladarez, 288 Kan. 671,
675, 206 P.3d 879 (2009) (addressing subject matter jurisdiction of district judges).

Generally, under Kansas statutes, a district court has jurisdiction over a criminal
case until it enters judgment and the time for appeal has expired. Unless a specific statute
grants jurisdiction beyond that point in the proceedings, a district court lacks jurisdiction
to consider postconviction motions. See State v. Hemphill, 286 Kan. 583, 588, 186 P.3d
777 (2008). The statutes that extend a district court's jurisdiction past the time for an
appeal include K.S.A. 2018 Supp. 60-1507 and K.S.A. 2018 Supp. 22-3504. Robertson
has used both of these statutes as the basis for past collateral attacks on his convictions

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and sentences. For this latest complaint, he relies exclusively on K.S.A. 2018 Supp. 22-
3504(1), which allows a court to correct an illegal sentence at any time.

We hold Robertson's challenge to his convictions cannot be supported by a motion
under K.S.A. 2018 Supp. 22-3504. Then, liberally construing his motion to dismiss as
divisible from his motion to correct illegal sentence, we hold there is no independent
basis for jurisdiction over that motion. And we determine he cannot seek dismissal under
K.S.A. 2018 Supp. 60-1507.

K.S.A. 2018 Supp. 22-3504

K.S.A. 2018 Supp. 22-3504(1) allows a defendant to raise an illegal sentence issue
at any time, except in some circumstances. See State v. Neal, 292 Kan. 625, 630, 258
P.3d 365 (2011). But see State v. Conley, 287 Kan. 696, 698, 197 P.3d 837 (2008)
(holding motion to correct illegal sentence "may not be used to breathe new life into an
appellate issue previously adversely determined"), abrogated on other grounds by State
v. Soto, 299 Kan. 102, 121-22, 322 P.3d 334 (2014); see also Robertson, 298 Kan. at 344-
45 ("We will not permit his new motion to correct an illegal sentence to be used as a
vehicle to 'breathe new life' into an issue previously determined against Robertson on
multiple occasions."). To invoke relief under K.S.A. 2018 Supp. 22-3504(1), Robertson
must establish that his sentence is illegal. A sentence is illegal if it is (1) imposed by a
court without jurisdiction, (2) does not conform to the applicable statute either in
character or punishment, or (3) is ambiguous about the time and manner in which it is to
be served. See K.S.A. 2018 Supp. 21-3504(3); State v. Horton, 308 Kan. 757, 759, 423
P.3d 548 (2018).

Robertson contends his sentence is illegal, but he attacks his convictions, arguing
the charging instrument was defective because it named him as an individual, not a

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sovereign, and used an incorrect version of his name. We have repeatedly emphasized a
motion to correct an illegal sentence is not an appropriate vehicle to reverse a conviction
because of a defective charging document. E.g., State v. Trotter, 296 Kan. 898, 902, 295
P.3d 1039 (2013); State v. Deal, 286 Kan. 528, 530, 186 P.3d 735 (2008). "The relief
available under the statute is correction of a sentence, rather than reversal of a
conviction." State v. Nash, 281 Kan. 600, 601, 133 P.3d 836 (2006); see also Horton, 308
Kan. at 761 (citing Nash).

Robertson argues a different rule applies when the district court lacked jurisdiction
to adjudicate the conviction and impose a sentence. But Robertson has cited no decision
that holds a defendant may use K.S.A. 2018 Supp. 22-3504(1) to challenge a personal
jurisdiction flaw arising from a defective complaint. In arguing the district court lacked
personal jurisdiction over him, he fails to discuss the general rule that a "want of
jurisdiction of the person or thing may be waived." State v. Grimsley, 15 Kan. App. 2d
441, 445, 808 P.2d 1387 (1991). In contrast, "[t]he substantive jurisdiction of the court,
its power to adjudicate, cannot be created by waiver or consent." 15 Kan. App. 2d at 445.
The case cited by Robinson—State v. Breedlove, 285 Kan. 1006, 179 P.3d 1115 (2008)—
discusses a motion to correct illegal sentence in the context of substantive—also known
as subject matter—jurisdiction.

In Breedlove, the defendant was a minor at the time of his offenses. Because of his
age, his case should have begun in juvenile court unless an exception allowed the State to
bypass juvenile court. The State conceded no exception applied. The Breedlove court
held the failure to begin the case in juvenile court deprived the district court of subject
matter jurisdiction. The court noted the general rule that a party cannot waive subject
matter jurisdiction and held "a court without jurisdiction cannot convict or sentence
because any judgment would be void." 285 Kan. at 1014. Thus, we reversed Breedlove's
convictions. 285 Kan. at 1017.
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 The Breedlove court also noted other cases in which convictions had been reversed
because the district court lacked subject matter jurisdiction. In these cases, convictions
were reversed because either an issue about the defendant's competency had been raised
but not resolved or a jury convicted the defendant of a crime neither charged nor a lesser
included offense of the charged crime. 285 Kan. at 1010 (citing State v. Johnson, 283
Kan. 649, 652, 156 P.3d 596 [2007] [conviction for uncharged crime]; State v. Davis, 281
Kan. 169, 174, 130 P.3d 69, cert. denied 549 U.S. 823 [2006] [competency]; State v.
Chatmon, 234 Kan. 197, 205, 671 P.2d 531 [1983] [conviction for uncharged crime],
abrogated on other grounds by State v. Gunby, 282 Kan. 39, 144 P.3d 647 [2006]).

No Kansas decision cited by Robertson or that we have found supports his
jurisdictional argument. But our caselaw does make clear that Robertson cannot succeed
because he attacks a defect in the complaint, arguing the court lacked jurisdiction because
the complaint incorrectly listed his name and improperly identified him as a trust, not an
individual. In other words, he does not deny he was the actor who allegedly performed
the criminal conduct and charging and obtaining custody over the alleged criminal actor
is the object of criminal personal jurisdiction. See United States v. Benabe, 654 F.3d 753,
767 (7th Cir. 2011) ("Regardless of an individual's claimed status of descent, be it as a
'sovereign citizen,' a 'secured-party creditor,' or a 'flesh-and-blood human being,' that
person is not beyond the jurisdiction of the courts.''). Instead, he complains about the way
the State identified him in the complaint. Yet defects in a complaint do not deprive a
court of jurisdiction. See Dunn, 304 Kan. at 811. Our decision in Trotter, 296 Kan. 898,
reflects this point.

There, Christopher M. Trotter attacked his sentence based on an alleged charging
document deficiency. We contrasted such a claim, which we have repeatedly rejected,
from one in which a sentence follows a district court's failure to apply the statutory
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requirement of suspending a proceeding to determine competency if the district court has
found reason to believe the defendant was incompetent. 296 Kan. at 903-04. But Trotter's
case did not involve a statutory requirement to suspend proceedings. Trotter raised a
fairly typical challenge to the sufficiency of the complaint. We denied relief, reiterating,
"Defective complaint claims are not properly raised in a motion to correct an illegal
sentence under K.S.A. 22-3504." 296 Kan. at 904 (citing State v. Sims, 294 Kan. 821,
825, 280 P.3d 780 [2012]).

Recently, we restated these rules in Horton, 308 Kan. 757. Damon Horton moved
to correct an illegal sentence in an attempt to attack the district court's earlier evidentiary
finding that he had violated his probation. We revisited the familiar rule that a motion to
correct an illegal sentence is not a vehicle for reversing a conviction. 308 Kan. at 761
(citing Nash, 281 Kan. at 602). "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." 308 Kan. at 761.

This review of our caselaw makes clear that only a case fitting within a narrow
exception will support granting a motion to correct an illegal sentence that attacks the
underlying conviction rather than sentence. Such narrow exceptions apply when a Kansas
statutory scheme has deprived the district court of the power to act in a criminal matter.
E.g., Breedlove, 285 Kan. at 1014 (criminal proceedings involving a juvenile defendant);
Davis, 281 Kan. at 174 (competency challenge). That is not Robertson's case.

For these reasons, we conclude Robertson's attempt to obtain relief through a
motion to correct an illegal sentence fails. Even if we assume that Robertson has
correctly alleged that the criminal complaint was defective because it named him as a
trust, not an individual, and used an incorrect version of his name, a motion to correct an
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illegal sentence is not an appropriate vehicle to reverse his convictions. If Robertson
wishes to pursue relief from the underlying convictions, he must find another avenue
through which to do so. See Horton, 308 Kan. at 761.

Motion to Dismiss and K.S.A. 2018 Supp. 60-1507

Robertson also labels his motion as a "motion to dismiss." But he cites no
statutory basis for us to have jurisdiction over a motion to dismiss besides K.S.A. 2018
Supp. 22-3405, and we hold none exists. That said, at times we have liberally construed a
postconviction pro se motion seeking relief from a conviction as a motion under K.S.A.
2018 Supp. 60-1507. See, e.g., State v. Swisher, 281 Kan. 447, 449, 132 P.3d 1274
(2006). But doing so here does not get Robertson out of the procedural woods. He faces
two other procedural obstacles.

First, Robertson had earlier pursued relief under 60-1507, and that statute is clear
that a district court is not "required to entertain a second or successive motion." K.S.A.
2018 Supp. 60-1507(c); see Trotter, 296 Kan. at 904. Robertson has argued no
exceptional circumstances warranting a successive motion. Nor do we see any. Robertson
could have raised these arguments in an earlier proceeding. He did not. The district court
did not have to entertain Robertson's motions had he raised them under K.S.A. 2018
Supp. 60-1507.

Second, Robertson's motions were filed outside the one-year period for seeking
60-1507 relief and Robertson does not argue manifest injustice would support extending
this limitation. See K.S.A. 2018 Supp. 60-1507(f)(1), (2). Thus, Robertson would be
procedurally barred from relief even if we convert it to a motion under K.S.A. 2018
Supp. 60-1507. See Trotter, 296 Kan. at 904-05.

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 CONCLUSION

Robertson has failed to establish that his sentence was illegal. And even if we
liberally construe his motion to reverse his conviction as a 60-1507 motion, he cannot
overcome the procedural hurdles of the motion being successive and being filed outside
the statutory time limit. We, therefore, hold that the district court did not err in summarily
dismissing Robertson's motion.

Affirmed.

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