Opinion
109,358.
11-21-2014
STATE of Kansas, Appellee, v. Floyd DOTSON, Appellant.
Catherine A. Zigtema, of Law Office of Kate Zigtema, LC., of Lenexa, for appellant. Steven J. Obermeier, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Catherine A. Zigtema, of Law Office of Kate Zigtema, LC., of Lenexa, for appellant.
Steven J. Obermeier, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Before LEBEN, P.J., PIERRON and STEGALL, JJ.
MEMORANDUM OPINION
PER CURIAM.
In 1992, Floyd Dotson was convicted of three counts of indecent liberties with a child and five counts of aggravated criminal sodomy. He was sentenced to a controlling sentence of 60 years to life. In 2010 Dotson made a request to the Department of Corrections that it make a sentence modification recommendation to the district court pursuant to K.S.A. 21–4603(e). The Department of Corrections denied Dotson's request. The review committee stated that granting Dotson's request would not be in the best interests of public safety.
Dotson then filed a “Motion for Judicial Inquiry” in the district court, essentially seeking to compel the Department of Corrections to review his sentence again and to make the necessary recommendation pursuant to K.S.A. 21–4603(e). Dotson argued that he would have received a lesser sentence under the current sentencing guidelines. The district court denied Dotson's motion and Dotson appealed.
K.S.A. 21–4603(e) states in part:
“The court shall modify the sentence at any time before the expiration thereof when such modification is recommended by the secretary of corrections unless the court finds and sets forth with particularity the reasons for finding that the safety of members of the public will be jeopardized or that the welfare of the inmate will not be served by such modification.”
The interpretation of a statute is a question of law over which we exercise unlimited review. State v. Dale, 293 Kan. 660, 662, 267 P.3d 743 (2011).
Dotson concedes that the Secretary of Corrections did not make a modification recommendation. He further concedes that there exists no legal mechanism for Dotson to invoke a “judicial inquiry” that would compel such a recommendation from the Secretary of Corrections. Nevertheless, Dotson argues the merits of his claim that his sentence is constitutionally infirm given that it is longer than the sentence he believes he would have received under the current sentencing guidelines.
When interpreting a prior yet substantially similar iteration of K.S.A. 21–4603(e), this court held that absent a recommendation to modify a sentence made by the Secretary of Corrections, any modification ordered by a district court would result in an illegal sentence. Barr v. State, 8 Kan.App.2d 173, 174–75, 651 P.2d 975 (interpreting the language of K.S.A.1980 Supp. 21–4603(2) stating that: “The court may reduce the minimum term of confinement at any time before the expiration thereof when such reduction is recommended by the secretary of corrections and the court is satisfied that the best interests of the public will not be jeopardized and that the welfare of the inmate will be served by such reduction.”), rev. denied 232 Kan. 875 (1982). As such, because the Secretary of Corrections did not recommend that Dotson's sentence be modified, the district court did not err when it denied Dotson's motion for a judicial inquiry to compel such a recommendation.
Dotson also claims the district court erred when it did not construe his motion as one pursuant to K.S.A. 60–1507. Dotson's pleading was filed pro se, and pro se pleadings are to be liberally construed to give effect to the substance of the pleading over its form. State v. Kelly, 291 Kan. 563, Syl. ¶ 1, 244 P.3d 639 (2010). Whether a district court correctly construed a pro se pleading is a question of law reviewed without limitation. 291 Kan. 563 Syl. ¶ 2. However, Dotson did not raise the issue below, and issues not raised below will not generally be considered for the first time on appeal. State v. Johnson, 293 Kan. 959, 964, 270 P .3d 1135 (2012). Dotson does not provide any argument for why we should consider this argument for the first time on appeal, and we decline to do so.
Furthermore, even if Dotson's motion was to be construed as a motion pursuant to K.S.A. 60–1507, he makes no argument that would overcome the untimeliness of his motion. Because Dotson's sentence was final before the enactment of K.S.A. 60–1507, he had until June 30, 2004, to file a timely motion. See Vontress v. State, 299 Kan. 607, 610, 325 P.3d 1114 (2014). K.S.A. 60–1507(f)(2) does allow for an extension of the statutory time limit, but only on a showing of manifest injustice. Vontress, 299 Kan. at 616–17.
Dotson does not argue that manifest injustice would result if he is not permitted to file an untimely 60–1507 motion. An issue not briefed by an appellant is deemed waived and abandoned. State v. Holman, 295 Kan. 116, 125, 284 P.3d 251 (2012). Thus, even if Dotson's motion should have been construed as a K.S.A. 60–1507 motion, it is untimely and this court would uphold the judgment of the district court as being right for the wrong reason. See State v. May, 293 Kan. 858, 870, 269 P.3d 1260 (2012) (correct result reached by district court will be upheld even if reached by reliance on wrong grounds or erroneous reasoning).
Affirmed.