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
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
from Sedgwick District Court; Warren M. Wilbert, judge.
Kristen B. Patty, of Wichita, was on the brief for appellant.
A. Koon, assistant district attorney, Marc Bennett, district
attorney, and Derek Schmidt, attorney general, were on the
brief for appellee.
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.
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.
and Procedural Overview
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
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.
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
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 ...