The opinion of the court was delivered by
Loren K. Pierce appeals from the denial of his pro se
post-appeal motion to modify his sentence. The issues on appeal
are whether the defendant is statutorily or constitutionally
entitled to counsel in preparing and presenting his motion for
modification of sentence.
On July 14, 1986, a jury convicted the defendant of one count
of aggravated burglary (K.S.A. 21-3716), one count of aggravated
battery (K.S.A. 21-3414), and one count of rape (K.S.A. 21-3502).
On September 8, 1986, the trial court sentenced the defendant
to consecutive terms of 5-20 years for the aggravated burglary
conviction, 5-20 years for the aggravated battery conviction, and
15 years to life for the rape conviction. In sentencing the
defendant, the trial court specifically referred to the
defendant's prior criminal record and the excessive force and
violence used in committing the present crimes.
Defendant, through his trial attorney, filed a motion to modify
his sentence on December 30, 1986, requesting probation or
concurrent sentences. Following a hearing, at which defendant was
represented by counsel, the trial court denied the motion. At the
time the trial court had available, and considered, the report of
the State Reception and Diagnostic Center (SRDC).
Defendant appealed his original convictions which were upheld
by this court in an unpublished opinion filed February 19, 1988.
State v. Pierce, No. 60,580, 242 Kan. xi. In his direct appeal
the defendant made no attempt to raise the denial of his first
motion to modify sentence as an issue before this court. On April
15, 1988, the defendant filed, pro se, another motion to modify
sentence pursuant to K.S.A. 21-4603(3). In his motion the
defendant asked that counsel be appointed "to represent him for
of hearing on this motion." The trial court did not hold any
hearing on the motion and, on May 5, 1988, issued its ruling
which stated in part:
"2. Whether or not a hearing should be afforded to
the movant and counsel appointed rests within the
discretion of the court.
"3. After reviewing these proceedings, particularly
the presentence and SRDC reports and the sentences
imposed, the court concludes modification would be
"4. The movant is not entitled to appointment of
counsel or further hearings prior to decision of the
court as to whether the sentences should be modified.
Accordingly, the movant's request for appointment of
counsel for this limited purpose is denied.
"IT IS THEREFORE ORDERED that the defendant's
sentences previously imposed shall not be modified by
"IT IS FURTHER ORDERED that the defendant's request
for the appointment of counsel and the implied
request for additional hearing is denied by the
Defendant has now appealed the trial court's ruling and asserts
that his statutory and constitutional rights to counsel have been
violated. In asserting that his statutory rights to counsel have
been violated, defendant relies upon K.S.A. 21-4603, K.S.A.
22-4503(a), and K.A.R. 105-1-1. K.S.A. 21-4603 in effect at the
time relevant to this proceeding provided in pertinent part:
"(3) Any time within 120 days after a sentence is
imposed or within 120 days after probation or
assignment to a community correctional services
program has been revoked, the court may modify such
sentence, revocation of probation or assignment by
directing that a less severe penalty be imposed in
lieu of that originally adjudged within statutory
limits. If an appeal is taken and determined
adversely to the defendant, such sentence may be
modified within 120 days after the receipt by the
clerk of the district court of the mandate from the
supreme court or court of appeals."
This subsection of the statute was amended at the 1988 and 1989
legislative sessions but the amendments are not applicable to
K.S.A. 21-4603 is the statute which delineates the various
alternatives the district court may utilize in disposing of
criminal proceedings after a defendant has been found guilty of a
crime. Subject to certain specified time restraints, subsection
(3) authorizes the court to modify a previously imposed sentence.
Action by a court under this subsection may be taken sua sponte
or may be based upon a motion by the defendant requesting a
modification. The statute does not specify any procedure and does
not mandate that a hearing be held or that counsel be appointed
to represent a defendant on a motion to modify sentence. While we
have not specifically decided the issue of whether a defendant is
entitled to counsel for every motion filed pursuant to K.S.A.
21-4603(3), we considered the procedural aspects of the statute
at some length in State v. Jennings, 240 Kan. 377, 729 P.2d 454
(1986). The State relies heavily on Jennings.
In Jennings, the defendant filed a motion to modify the
sentence imposed after he pled nolo contendere to one count of
second-degree murder. The trial court denied the motion without a
hearing and the defendant appealed, contending he was entitled to
notice and an opportunity to be heard. Justice Herd, writing for
a unanimous court, stated:
"K.S.A. 1985 Supp. 21-4603(3) authorizes the court
to modify a sentence within the statutory limits any
time within 120 days after a sentence is imposed; no
hearing procedure is discussed. K.S.A. 1985 Supp.
21-4603(4) allows reduction of sentence below the
statutory minimum upon the recommendation of the
secretary of corrections; this subsection
specifically provides for a hearing and notice to
interested parties. K.S.A. 22-3504 specifically
provides for a hearing and that a defendant be
personally present for correction of a sentence.
These distinctions are significant. The legislature
did not provide for a hearing on sentence
"K.S.A. 1985 Supp. 22-3405(1) sets out the stages
in a felony proceeding where the defendant's presence
is required and provides as follows:
"`The defendant in a felony case shall be present
at the arraignment, at every stage of the trial
including the impaneling of the jury and the return
of the verdict, and at the imposition of sentence,
except as otherwise provided by law.' (Emphasis
"Unless a motion for modification is considered
part of the `imposition of sentence,' the appellant
had no right to appear in support of his motion. We
resolved this issue in State v. Bryant, 227 Kan. 385
607 P.2d 66 (1980), where we held that a defendant's
right to be present does not extend to
post-conviction motions. In so holding, we reasoned
that the trial ends when a verdict has been rendered,
any right which the accused may have to be present at
proceedings following indictment continues only
during the pendency of the trial, and a defendant,
once convicted, cannot expect to be present at
post-conviction motions. See also State v. Myers,
10 Kan. App. 2d 266, 271, 697 P.2d 879 (1985), where the Court
of Appeals noted that defendant has no right to be
present at a ruling on a motion to modify. We agree
and hold that a defendant has no right to a hearing
on a motion to modify sentence or to be present at
consideration of that motion.
"This holding is consistent with federal law.
Federal Rule of Criminal Procedure 35(b) is nearly
identical to K.S.A. 1985 Supp. 21-4603(3). Under that
rule, it is discretionary with the trial judge
whether to hear testimony or arguments on the motion.
3 Wright, Federal Practice and Procedure: Criminal 2d
§ 586 p. 405. See also United States v. Donohoe,
458 F.2d 237 (10th Cir. 1972), where it was held a
defendant has no right to a hearing in open court on
a motion to modify sentence and has no constitutional
right to be personally present or to be represented
by counsel at consideration of motion to modify
sentence." pp. 378-79.
Whether a defendant is entitled to a hearing on a K.S.A.
21-4603(3) motion is discretionary with the trial court based
upon the record before the court at the time. It would logically
follow that, if a defendant is not entitled to a hearing on a
motion to modify sentence, nothing in K.S.A. 21-4603(3) requires
the appointment of counsel for every such motion. If the court
determines from the allegations set forth in the motion, from the
pleadings and record including the SRDC report, or from any other
source that a hearing should be held on the motion, then we agree
that counsel should be appointed to represent the defendant in
preparing for and participating in the hearing. However, if the
motion filed on behalf of the defendant contains no new facts or
allegations which would justify a hearing, and if the court
determines from the available record and pleadings that no
hearing is necessary, then the statute does not require the
appointment of counsel.
Defendant, in his brief, also makes reference to K.S.A. 22-4503
in asserting that a defendant is entitled to the appointment of
counsel for every K.S.A. 21-4603(3) motion or proceeding. K.S.A.
"A defendant charged by the state of Kansas in a
complaint, information or indictment with any felony
is entitled to have the assistance of counsel at
every stage of the proceedings against such defendant
and a defendant in an extradition proceeding, or a
habeas corpus proceeding pursuant to K.S.A. 22-2710,
is entitled to have assistance of counsel at such
proceeding. A person subject to an order or
commitment pursuant to K.S.A. 22-3428 or 59-2917
shall be entitled to the assistance of counsel at
every stage of a habeas corpus proceeding brought by
such person and the provisions of this section
relating to defendants shall be applicable to such
In State v. Andrews, 228 Kan. 368
, 614 P.2d 447 (1980), we
recognized that the legislature has adopted a comprehensive
statutory scheme of legal representation for indigent persons in
matters. In addition to K.S.A. 22-4503, the court reviewed other
statutes which provide for the appointment of counsel for
indigent defendants. K.S.A. 22-4505 provides for counsel on
appeal of a criminal conviction while K.S.A. 22-4506 provides for
counsel "[w]henever any person who is in custody under a sentence
of imprisonment upon conviction of a felony files a petition for
writ of habeas corpus or a motion attacking sentence under K.S.A.
60-1507," if the court finds there are substantial questions of
law or triable issues of fact. The statute also provides for
counsel in an appeal from such proceedings.
The State relies upon the foregoing statutes in asserting there
is no statutory right to counsel for the purpose of preparing and
presenting a motion to modify sentence filed pursuant to K.S.A.
21-4603(3). In Andrews, after considering the foregoing
statutes in detail, we stated:
"Thus, it is obvious that our statutes provide that
an indigent defendant is entitled to counsel at every
stage of the pretrial proceedings and trial (K.S.A.
1979 Supp. 22-4503), on appeal (K.S.A. 1979 Supp.
22-4505) and in habeas corpus proceedings and motions
attacking sentence under K.S.A. 60-1507 [K.S.A.
22-4506]. However, nothing in our statutes
specifically covers the problem of post-conviction
motions. . . ." 228 Kan. at 375. (Emphasis added.)
In the present case, the defendant filed two motions to modify
his sentence pursuant to K.S.A. 21-4603(3). At the time the
statute allowed the court to consider modification both
post-sentence and post-appeal. The defendant was granted a
hearing on the first motion at which he was represented by
counsel. The second motion alleges no new facts or circumstances
which would justify a modification of sentence or require a
hearing. As we stated in Jennings and Andrews, a defendant is
not entitled to a hearing and the appointment of counsel on every
post-trial motion. We conclude that the requirements of K.S.A.
22-4503(a) do not extend to every post-trial motion to modify
sentence which alleges no facts or circumstances which might
justify a modification by the court. The trial court in its
discretion should determine from the motion, pleadings, and
record whether a hearing is necessary. If the trial court
determines that a hearing should be held, then counsel should be