BY THE COURT
Courts are to interpret pro se pleadings based upon their
contents and not solely on their title or labels. But there
are limits to a court's duty to liberally construe pro se
pleadings; a court is not required to divine every
conceivable interpretation of a motion, especially when a
movant repeatedly asserts specific statutory grounds for
relief and propounds arguments related to that specific
Appellate courts treat motions under K.S.A. 22-3504 like
motions under K.S.A. 60-1507 for purposes of determining
whether a hearing and appointment of counsel are required.
the district court determines that a K.S.A. 22-3504 motion
and the files and records of the case do not present a
substantial question of law or triable issue of fact, the
court is not statutorily required to appoint an attorney for
the district court conducts a hearing to determine whether a
K.S.A. 22-3504 motion presents substantial questions of law
or triable issues of fact at which the State is represented
by counsel, the movant's due process right to appointed
counsel is implicated. A district court's review of the
State's response to the motion, standing alone, does not
trigger the movant's due process right to counsel.
a district court accepts the recommendation of a plea
agreement to depart from an off-grid Jessica's Law
hard-25 life sentence to a specific on-grid sentence, the
court's failure to consider a second departure to an even
shorter sentence does not render the agreed-upon sentence
of the judgment of the Court of Appeals in an unpublished
opinion filed February 3, 2017.
from Rice District Court; Mike Keeley, judge. Opinion filed
Michael P. Whalen, of Law Office of Michael P. Whalen, of
Wichita, argued the cause and was on the brief for appellant.
J. Obermeier, assistant solicitor general, argued the cause,
and Amanda G. Voth, assistant solicitor general, and Derek
Schmidt, attorney general, were with him on the briefs for
S. Redding seeks our review of the Court of Appeals'
decision affirming the district court's summary denial of
his motion to correct an illegal sentence. State v.
Redding, No. 115, 037, 2017 WL 462658 (Kan. App. 2017)
(unpublished opinion). Redding claims that his pro se motion
should have been liberally construed as a K.S.A. 60-1507
motion; that his sentence was illegal because the district
court failed to follow proper statutory procedures for
imposing a departure sentence; and that his due process
rights were violated when the district court requested a
response from the State before summarily denying the motion
without appointment of counsel for Redding. We affirm the
lower courts on all issues.
and Procedural Overview
was charged with multiple counts of rape and aggravated
indecent liberties with a child based on allegations that he
sexually abused his 4-year-old daughter and his
girlfriend's 11-year-old daughter in 2010 and 2011.
Pursuant to a signed plea agreement, Redding pled nolo
contendere to one count of rape, K.S.A. 21-3502(a)(2), and
one count of aggravated indecent liberties, K.S.A.
21-3504(a)(3)(A), in return for the State's agreement to
recommend a departure from the "hard 25" off-grid
sentences under Jessica's Law to the applicable on-grid
sentences for his crimes, but to recommend that the on-grid
sentences be imposed consecutively. The agreed-upon gridbox
numbers translated to a 155-month sentence for the rape and
55-month sentence for the aggravated indecent liberties, for
an aggregated sentence of 210 months, or 17.5 years.
counsel filed a motion for a departure from the Jessica's
Law sentences, asserting that the substantial and compelling
reasons to depart included his lack of criminal history, his
age (33 years old), and his plea had spared the victims the
trauma of testifying at a trial. The State concurred with the
departure reasons. But Redding wrote a letter to the court in
lieu of allocution in which he requested an even shorter
sentence because he did not want to be away from his family,
and he was concerned with his ability to resume employment in
his chosen field if he were gone too long.
sentencing, the district court imposed the Jessica's Law
sentence for each count, but then departed to the jointly
recommended total sentence of 210 months' imprisonment,
citing as substantial and compelling reasons Redding's
lack of criminal history, his family support, and his having
spared the victims from having to testify.
Redding filed a motion to permit an untimely appeal, but
quickly withdrew it. More than two years later, Redding filed
this pro se "Motion to Correct An Illegal
Sentence." Because Redding had not served the State with
a copy of the motion, the district court sent a copy to the
State along with a letter saying that the State had time to
respond, and that the district court would wait for the
State's response before reviewing the motion. The State
filed a response on August 19, 2015, and on August 28, 2015,