IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 124,134
STATE OF KANSAS,
Appellee,
v.
HARVEY L. ROSS JR.,
Appellant.
SYLLABUS BY THE COURT
1.
K.S.A. 22-3201 cannot be used as a procedural vehicle to bring a cause of action;
instead, the statute merely sets out the requirements for a charging document.
2.
Defective complaint claims are not properly raised in a motion to correct an illegal
sentence under K.S.A. 22-3504.
Appeal from Sedgwick District Court; TYLER J. ROUSH, judge. Opinion filed June 10, 2022.
Affirmed.
Sam S. Kepfield, of Sam Kepfield Law Offices, of Hutchinson, was on the brief for appellant.
Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, were on the brief for appellee.
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The opinion of the court was delivered by
STANDRIDGE, J.: Harvey L. Ross Jr. appeals the district court's denial of his post-
conviction request to reverse his conviction based on allegations that the trial court did
not have subject matter jurisdiction over his criminal proceedings. Because Ross fails to
identify a timely, unexhausted, and proper procedural vehicle for presenting his subject
matter jurisdiction challenge to the court, we affirm the district court's denial of his claim.
FACTS
In 2004, a jury convicted Ross of first-degree murder, attempted first-degree
murder, and criminal possession of a firearm. The district court sentenced Ross to life
imprisonment for first-degree murder; 586 months for attempted first-degree murder, to
run concurrent; and 9 months for criminal possession of a firearm, to run consecutive.
Ross appealed his conviction, and we affirmed. State v. Ross, 280 Kan. 878, 889, 127
P.3d 249 (2006).
Ross has continued to seek relief through several postconviction motions. See
Ross v. State, No. 103,369, 2011 WL 3444314 (Kan. App. 2011) (unpublished opinion)
(affirming denial of K.S.A. 60-1507 motion); Ross v. Heimgartner, No. 12-3085-SAC,
2013 WL 1149981 (D. Kan. 2013) (unpublished opinion) (order denying federal habeas
relief).
In 2021, Ross filed a pro se motion captioned "Informational defect/Lack of
Jurisdiction under K.S.A. 22-3201(b)(c)(e)(f)(g)(e)." Relevant to this appeal, he argued
the criminal complaint filed by the State "failed to confer subject matter jurisdiction on
the trial court" because the complaint failed to state essential facts constituting each of
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the charged offenses. Ross argued these alleged defects required his convictions to be
reversed. Ross also requested the appointment of an attorney.
The district court reviewed Ross' subject matter jurisdiction claim on the merits
but denied his request for relief:
"Defendant's claim fails because his only claim relating to subject matter
jurisdiction is that the charging document is defective. But, '[c]harging documents do not
bestow or confer subject matter jurisdiction on state courts to adjudicate criminal cases;
the Kansas Constitution does. Charging documents need only show that a case has been
filed in the correct court, e.g., the district court rather than municipal court; show that the
court has territorial jurisdiction over the crime alleged; and allege facts that, if proved
beyond a reasonable doubt, would constitute a Kansas crime committed by the
defendant.' State v. Dunn, 304 Kan. 773, 811, 375 P.3d 332, 355-56 (2016).
"Furthermore, the claim that the charging document did not contain enough
information to satisfy due process also fails. 'The plain language of K.S.A. 22-3201(b) is
relatively clear: A charging document shall state "essential facts" constituting the crime
charged, and the document "shall be deemed sufficient" if it is "drawn in the language of
the statute." The statute's emphasis on "facts" rather than "elements" is repeated in other
related statutes and legally significant.'" Dunn, 304 Kan. at 811.
"In this case, the charging document adequately stated the elements of the crimes
of conviction. The District Court had subject matter jurisdiction, so this claim fails."
Ross timely appealed.
ANALYSIS
Although our analysis differs from that provided by the district court, we affirm
the decision to deny Ross the relief he seeks. Unlike the district court, we decline to
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address the merits of Ross' challenge to the district court's subject matter jurisdiction
because Ross fails to identify a timely, unexhausted, and proper procedural vehicle for
presenting his challenge to the court.
In his motion, Ross cites K.S.A. 22-3201 to argue the criminal complaint filed by
the State failed to confer subject matter jurisdiction on the district court. But Ross readily
acknowledges in his appellate brief that K.S.A. 22-3201 cannot be used as a procedural
vehicle to bring a cause of action; instead, the statute merely sets out the requirements for
a charging document. Ross also did not request his pleading be construed as a K.S.A. 60-
1507 motion. Indeed, such a motion would have been procedurally barred as untimely
and successive. See State v. Robertson, 309 Kan. 602, 608-09, 439 P.3d 898 (2019). And
Ross acknowledges his pleading would not have been timely if treated as a motion for
arrest of judgment under K.S.A. 2020 Supp. 22-3502. Finally, although Ross frames the
issue on appeal as one alleging the district court erred in summarily denying his motion
to correct an illegal sentence, we have repeatedly emphasized a motion to correct an
illegal sentence is not an appropriate vehicle to reverse a conviction based on a defective
charging document. See Robertson, 309 Kan. at 605-06 (citing 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." Robertson, 309 Kan. at 605-06 (citing State v. Nash, 281 Kan. 600, 601, 133
P.3d 836 [2006]).
Because Ross fails to identify a timely, unexhausted, and proper procedural
vehicle for presenting his subject matter jurisdiction challenge to the court, we affirm the
district court's denial of his claim.
Affirmed.
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