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March 2, 1990.

LOREN K. PIERCE, Appellant.

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  Defendant appealed his original convictions which were upheld by this court in an unpublished opinion filed February 19, 1988.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 purposes

[246 Kan. 185]

      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 inappropriate.
"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 the court.
"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 court."
  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 this appeal.

  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

[246 Kan. 186]

      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 modification, 21-4603(3).
"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 added.)"
  "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.

[246 Kan. 187]


"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 ยง 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. 22-4503(a) provides:
"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 persons."
  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 criminal

[246 Kan. 188]

      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 appointed.

[246 Kan. ...

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