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State v. Ditges

Supreme Court of Kansas

May 26, 2017

State of Kansas, Appellee,
v.
Gary A. Ditges, Appellant.

         SYLLABUS

         1. Although a district court must liberally construe a pro se pleading to give effect to its content, rather than its label or form, a district court is relieved of any duty to convert a motion to correct an illegal sentence under K.S.A. 22-3504 into a motion under K.S.A. 60-1507, where the movant asserts that he or she is only challenging the legality of the sentence and is not seeking to reverse the underlying conviction.

         2. A defendant claiming that the district court should have construed a K.S.A. 22-3504(1) motion to correct an illegal sentence as an untimely filed K.S.A. 60-1507 motion has the burden of showing that the motion, files, and record clearly established the manifest injustice necessary to allow a K.S.A. 60-1507 to be filed out of time. The district court has no duty to eliminate any possibility of manifest injustice.

         Appeal from Sedgwick District Court; Warren M. Wilbert, judge.

          Kristen B. Patty, of Wichita, was on the brief for appellant.

          Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, were on the brief for appellee.

          OPINION

          Johnson, J.

Gary A. Ditges, who is serving a life sentence for second-degree murder, appeals the Sedgwick County District Court's summary denial of his pro se K.S.A. 22-3504 motion to correct an illegal sentence, filed more than 13 years after he was sentenced. Ditges' motion claimed that his sentence is illegal because the district court failed to include a jury instruction on voluntary manslaughter as a lesser included offense to first-degree murder, and, consequently, he should have been convicted and sentenced for voluntary manslaughter instead of second-degree murder.

         On appeal, Ditges changes the issue, claiming the district court should have construed his pro se pleading as being a motion under K.S.A. 60-1507. Then, the district court should have, sua sponte, divined all of the arguments that the movant should have made in order to allow the untimely 1507 motion to proceed to the merits, and then should have ruled for the movant on both the procedural issues and the merits. Ditges' appeal is unavailing on all levels.

         Factual and Procedural Overview

         The State charged Ditges with first-degree murder in the March 1999 stabbing death of his landlord, Janzen Nguyen. At the jury trial, a neighbor testified that, about the time Nguyen was last seen alive, the neighbor saw Nguyen enter Ditges' apartment and heard a loud argument about a deposit.

         Nevertheless, the defense requested that the district court give no lesser included offense instructions. The trial court, noting its independent duty to instruct on applicable lesser included offenses, even over a defense objection, gave a lesser included offense instruction on intentional second-degree murder. But the court found that the evidence did not support an instruction on voluntary manslaughter. The jury convicted Ditges of the lesser crime of second-degree murder.

         Ditges' direct appeal did not claim any instructional error. This court affirmed his conviction and sentence on the issues raised in the direct appeal. State v. Ditges, No. 86, 204 (unpublished opinion filed July 11, 2003). Thereafter, Ditges did not file any motions for post-conviction relief until the current filing in March 2014.

         The motion presented in March 2014 was entitled "Motion to Correct an Illegal Sentence." It began: "COMES NOW Gary A. Ditges, the defendant, pro se, and moves the Court to correct his illegal sentence pursuant to K.S.A. 22-3504 (2012)." The body of the motion claimed that the trial court should have instructed on all lesser included offenses which were made applicable by the trial evidence, including voluntary manslaughter. The motion then concluded that "the defendant's sentence should be set aside, his conviction of second degree murder (intentional) should be reversed and the case be set for new trial to include the lesser offense of Voluntary Manslaughter, K.S.A. 21-3403." The motion was accompanied by a Memorandum of Law which recited that, pursuant ...


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