BY THE COURT
either a motion to correct an illegal sentence or a
postsentence motion to withdraw a plea presents a substantial
question of law or triable issue of fact and the movant is
indigent, then the district court must appoint counsel to
represent the movant. And if the district court conducts a
hearing at which the State will be represented by counsel,
then due process of law requires the movant to be represented
by counsel unless the movant waives that right. But the
district court's consideration of the State's written
response to either motion, standing alone, does not
constitute a hearing or require the appointment of counsel.
from Sedgwick District Court; Jeffrey E. Goering, Judge.
Maughan, of Maughan Law Group, of Wichita, was on the brief
A. Isherwood, assistant district attorney, Marc Bennett,
district attorney, and Derek Schmidt, attorney general, were
on the brief for appellee.
Laughlin filed a pro se motion to correct an illegal sentence
and a pro se motion to withdraw his plea over a decade after
his felony-murder conviction. The Sedgwick County District
Court summarily denied the motions. On appeal, Laughlin
argues the district court erred when it considered the
State's written responses to his motions without
appointing counsel to represent him. We hold Laughlin's
right to counsel was not triggered and, as a result, we
1993, Laughlin and two teenaged friends kidnapped, robbed,
and killed a pizza delivery person. Laughlin was prosecuted
as an adult. He ultimately pled guilty to felony murder,
aggravated kidnapping, aggravated robbery, and possession of
a firearm by a minor. The district court imposed two
consecutive sentences of life imprisonment, plus another
consecutive sentence of 10 years to life. We affirmed his
convictions on direct appeal. State v. Laughlin, No.
73, 594, unpublished opinion filed April 19, 1996 (Kan.).
2016, Laughlin filed three pro se motions in district court:
a motion for appointment of counsel, a motion to correct an
illegal sentence, and a motion to withdraw his plea. His
motion to correct an illegal sentence alleged that his
aggravated kidnapping and aggravated robbery convictions were
multiplicitous with his felony-murder conviction. His plea
withdrawal motion alleged many errors, including that his
plea was not knowingly, intelligently, and voluntarily made.
State filed written responses to Laughlin's motions. It
argued that the court could summarily deny the motions
without appointing counsel for Laughlin; that his
multiplicity challenge fell outside the scope of an illegal
sentence; and that his plea withdrawal motion was untimely
and failed to show excusable neglect. See K.S.A. 2018 Supp.
22-3210(e)(2) (stating the time limitation for postsentence
plea withdrawal may be extended "only upon an
additional, affirmative showing of excusable neglect by the
district court summarily denied Laughlin's motions.
First, the court ruled it was unnecessary to appoint counsel
for Laughlin because the motions, files, and record of the
case showed he was not entitled to relief. Second, the court
determined Laughlin's motion to correct an illegal
sentence was a collateral attack on his convictions, which
falls outside the scope of an illegal sentence under K.S.A.
22-3504. See State v. Nash, 281 Kan. 600, 602, 133
P.3d 836 (2006) (holding that K.S.A. 22-3504 is not a vehicle
for a collateral attack on a conviction). Third, the court
found Laughlin's plea withdrawal motion was untimely and
he failed to establish excusable neglect.
appealed the summary denial of these motions directly to this
court. See K.S.A. 2018 Supp. 22-3601(b)(3) (permitting appeal
from a district court judgment directly to the Supreme Court
in "any [criminal] case in which a maximum sentence of
life imprisonment has been imposed"). Now through
counsel, Laughlin argues the district court erred when it
considered the State's written responses without
appointing counsel to represent him on both the motion to
correct an illegal sentence and the motion to withdraw plea.
Laughlin also claims his sentence is illegal because his
convictions are multiplicitous. He does not otherwise argue
the merits of his motions.
extent Laughlin had a right to counsel to represent him on
these motions is a question of law subject to unlimited
review. See Stewart v. State, 309 Kan. ___, ___, ___
P.3d ___ (No. 115, 149, this day decided), slip op. at 6;
Mundy v. State, 307 Kan. 280, 294, 408 P.3d 965
(2018). Summary denial of a motion to correct an illegal
sentence is reviewed de novo. State v. Gilbert, 299
Kan. 797, 801, 326 P.3d 1060 (2014).
argues the district court violated his statutory right to
counsel when it considered the State's written response
to his K.S.A. 22-3504 motion without appointing counsel to
represent him. He concedes that a K.S.A. 22-3504 motion may
be summarily denied without the appointment of counsel when
the motion, files, and records of the case conclusively show
the defendant is not entitled to relief. See, e.g., State
v. Hoge, 283 Kan. 219, 224, 150 P.3d 905 (2007). But he
claims the district court effectively held a hearing when it
considered the State's response to his motion, which
triggered his statutory right to appointed counsel. He
anchors this argument in K.S.A. 2018 Supp. 22-3504(1), which
states that "the defendant shall have a right to a
hearing, after reasonable notice to be fixed by the court, to
be personally present ...