Appeal from Wyandotte District Court; JOHN J. MCNALLY, judge.
SYLLABUS BY THE COURT 1. Defective complaint claims are not properly raised in a motion to correct an illegal sentence under K.S.A. 22-3504. 2. A movant in a K.S.A. 60-1507 motion is presumed to have listed all grounds for relief, and a subsequent motion need not be considered in the absence of a showing of circumstances justifying the original failure to list a ground. 3. A defendant who files a motion under K.S.A. 60-1507 outside the 1-year time limitation in K.S.A. 60-1507(f) and fails to assert manifest injustice is procedurally barred from maintaining the action.
The opinion of the court was delivered by: Luckert, J.:
The opinion of the court was delivered by LUCKERT, J.:
Christopher M. Trotter appeals from the district court's summary denial of his pro se motion to correct an illegal sentence in which he requested that his capital murder conviction be reversed because the complaint did not list the names of both individuals whose deaths served as the basis for the capital murder charge. We affirm the summary denial of Trotter's motion because a motion to correct an illegal sentence under K.S.A. 22-3504 cannot be used to collaterally challenge a conviction. Further, we deny his request to treat the motion under K.S.A. 60-1507 because: (1) It would be a successive K.S.A. 60-1507 motion that has not been justified by a showing of exceptional circumstances and (2) it would be outside the 1-year time limitation in K.S.A. 60-1507(f)(1), and he has not shown that an extension of that deadline is necessary to prevent manifest injustice.
FACTS AND PROCEDURAL BACKGROUND
This is Trotter's third time to seek this court's attention. He first brought a direct appeal after a jury convicted him of premeditated first-degree murder, capital murder, aggravated robbery, and conspiracy to commit aggravated robbery. State v. Trotter, 280 Kan. 800, 127 P.3d 972 (2006) (Trotter I). The charges resulted from the 2001 murders of Traylennea Huff and James Darnell Wallace. The victims were shot and killed during the course of an aggravated robbery, which Trotter and others had planned in the hopes of stealing cash they believed to be in Huff's and Wallace's home. This court affirmed Trotter's convictions. Trotter I, 280 Kan. at 819-20.
Next, Trotter appealed from the district court's denial of a K.S.A. 60-1507 motion. In Trotter v. State, 288 Kan. 112, 200 P.3d 1236 (2009) (Trotter II), this court affirmed portions of the district court's decision to summarily deny Trotter's motion but reversed other portions. Specifically, the Trotter II court affirmed the dismissal of Trotter's claims that (a) his counsel was ineffective for failing to request an eyewitness jury instruction and (b) affidavits of Trotter's co-defendants constituted newly discovered evidence warranting a new trial. Trotter II, 288 Kan. at 134, 139. Relief was granted, however, on Trotter's contention that defense counsel was ineffective for failing to raise a multiplicity issue on direct appeal. Trotter II, 288 Kan. at 131.
Considering the merits of the issue, this court held that Trotter's convictions for capital murder and premeditated first-degree murder were multiplicitous in that premeditated first-degree murder is a lesser included offense of capital murder. Trotter II, 288 Kan. at 124; see State v. Martis, 277 Kan. 267, 276-77, 83 P.3d 1216 (2004) (premeditated first-degree murder is lesser included offense of capital murder by application of K.S.A. 21-3107[b]). In the fourth amended information, the State had charged Trotter in count I, premeditated first-degree murder, with "unlawfully, feloniously and intentionally and with premeditation, kill[ing] a human being, to-wit: James Wallace . . . ." In count II, capital murder, Trotter was charged with "unlawfully, feloniously and intentionally and with premeditation, kill[ing] a human being, to-wit: Traylennea Huff, which constituted the killing of more than one person as a part of the same act or transaction or in two or more acts or transactions connected together or constituting parts of a common scheme or course of conduct." (Emphasis added.)
As acknowledged by Trotter in Trotter II, the jury was instructed that one of the elements to be proved in the capital murder charge was that "'the premeditated and intentional killing of Traylennea Huff and James Wallace were part of the same act or transaction or in two or more acts or transactions connected together or constituting parts of a common scheme or course of conduct.'" Trotter II, 288 Kan. at 120-21. And because the State was also required to prove the premeditated, intentional killing of one of those victims, Wallace, in the first-degree murder charge, Trotter could not be convicted of both the lesser included offense and the greater offense arising from the same conduct. As a result, Trotter's premeditated first-degree murder conviction was reversed. Trotter II, 288 Kan. at 131; see State v. Winters, 276 Kan. 34, 43, 72 P.3d 564 (2003) ("where convictions are multiplicitous the defendant should be sentenced only on the more severe offense"). In his pro se brief, Trotter mistakenly asserts that this court reversed the first-degree murder conviction for "re-trial and the State elected not to re-try Trotter."
Significant to the current appeal, in finding the two murder convictions were multiplicitous, the Trotter II court also noted that Trotter did "not object to the manner in which the charge was pled or to the instructions." Trotter II, 288 Kan. at 121. Thus, in Trotter II, he did not advance any arguments pertaining to the sufficiency of the charging document.
Over 1 year after that decision became final and more than 4 years after the decision in Trotter I, Trotter filed the current pro se motion in April 2010 to correct an illegal sentence under K.S.A. 22-3504, arguing that because capital murder requires the intentional and premeditated killing of more than one person, and count II of the information only listed one victim, Huff, the information was defective. In his motion, Trotter again acknowledged that the jury was instructed using the names of both victims, Huff and Wallace, but he argued:
"The District Court lacked jurisdiction over the subject matter to convict and sentence the defendant for the offense of Capital Murder, K.S.A. 21-3439, because the Complaint/Information was jurisdictional[ly] defective because, it fail[ed] to allege essential elements of the crime charged. Thus resulting in the defendant being convicted, ...