                         NOT DESIGNATED FOR PUBLICATION

                                            No. 121,083

             IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                        STATE OF KANSAS,
                                            Appellee,

                                                  v.

                                      TERRY L. STANFORD,
                                          Appellant.


                                  MEMORANDUM OPINION


       Appeal from Harvey District Court; JOE DICKINSON, judge. Opinion filed May 1, 2020. Affirmed.


       Charles A. O'Hara, of O'Hara & O'Hara LLC, of Wichita, for appellant.


       David E. Yoder, county attorney, and Derek Schmidt, attorney general, for appellee.


Before GREEN, P.J., POWELL and SCHROEDER, JJ.


       PER CURIAM: In 2015, Terry L. Stanford was convicted of conspiracy to
manufacture methamphetamine and obstruction of legal process or official duty after a
bench trial on stipulated facts. His convictions and sentences were affirmed on direct
appeal in 2017. After his direct appeal, Stanford filed his present motions, which in
relevant part asked the district court to declare his conviction void on the grounds of a
lack of subject matter jurisdiction and to resentence him because the district court failed
to fully rule on his departure motion. The district court denied both motions. For reasons
we more fully explain below, we affirm.




                                                  1
                         FACTUAL AND PROCEDURAL BACKGROUND


       The underlying facts of this appeal were established in Stanford's direct appeal and
need not be repeated. See State v. Stanford, No. 114,764, 2017 WL 1534779, at *1-2
(Kan. App.) (unpublished opinion), rev. denied 307 Kan. 993 (2017).


       Of relevance to us is that on March 24, 2015, the parties reached a plea agreement.
The State had originally charged Stanford with two counts of unlawful possession of
ephedrine as well as one count each of manufacturing methamphetamine, possession of
methamphetamine, theft, and possession of drug paraphernalia. The State later amended
those charges to add one count of sexual exploitation of a child based on a computer disc
allegedly containing child pornography found on Stanford's property. As part of the plea
agreement, the State agreed to dismiss all the charges except one count of conspiracy to
manufacture methamphetamine and one count of obstruction of legal process or official
duty. It was also agreed that Count 1 would be orally amended from manufacture of
methamphetamine to conspiracy to manufacture methamphetamine. Stanford, through his
counsel, announced his agreement to this amendment to the district court because it gave
Stanford the ability to argue for a dispositional departure to probation at sentencing,
which would not be an option if he were convicted of manufacturing methamphetamine
as originally charged.


       Stanford stipulated to the State's oral amendment to Count 1 alleging conspiracy to
manufacture methamphetamine and waived the filing of a formal written amended
complaint, stating he understood the alleged charge. The following exchange occurred:


               "THE COURT: Now, Mr. Yoder [the State], you indicated that you had not filed
       an amended complaint and I note that from the file. Mr. O'Hara [the Defense], are you
       comfortable proceeding without seeing a formal written complaint? I assume we could
       get one here, but—



                                                  2
               "MR. O'HARA: Yes, Your Honor. I just spoke to the defendant to verify that,
       but we are comfortable that is the agreement of the parties. We have a journal entry
       reflecting that and the defendant understands the charges.


               "THE COURT: Mr. Stanford, what your attorney just said to me is even though
       the State amended Count 1, they've not filed a formal written complaint showing that
       amendment, but your attorney, Mr. O'Hara, says that's not necessary, you understand the
       amended charge in Count 1 and you're comfortable proceeding today without seeing the
       complaint in writing—the amendment in writing, is that so?


               "THE DEFENDANT: Yes, sir.


               "THE COURT: All right. I'll accept the waiver of a formal filing of an amended
       complaint and we will proceed to trial to the Court sitting alone on the Count 1 as
       amended, conspiracy to unlawfully manufacture methamphetamine, a level one drug
       felony, as well as on Count 7, obstructing legal process or official duty, a level nine
       nonperson felony."


The agreement was reduced to writing in a signed journal entry.


       The parties also agreed the case would be tried on stipulated facts. Stanford agreed
on the record that he and his wife were jointly involved in the methamphetamine
manufacturing process, and the district court specifically asked that he stipulate to the
facts of a conspiracy with his wife to establish the elements of the amended conspiracy
charge. Stanford then stipulated to a hand-written Stipulation of Facts for Bench Trial,
which stated, in part: "The State further proffers, without Defense objection, that the
Defendant and his wife Ramie knowingly cooperated and were jointly involved in the
methamphetamine manufacturing-related items located in the property." Stanford also did
not object to the admission of the Kansas Bureau of Investigation lab report that listed
both himself and his wife as the suspects in the case and confirmed the presence of
methamphetamine-manufacturing chemicals in numerous items seized from their



                                                     3
residence. The only objection Stanford had to the stipulated facts was to preserve his
right to appeal the validity of the search warrant. He did not object to any of the facts
supporting the elements of his criminal charges.


       The district court subsequently held a bench trial based upon the stipulated facts
and found Stanford guilty of conspiracy to manufacture methamphetamine and
obstructing legal process or official duty. The district judge specifically found the written
stipulation signed by the parties established that a conspiracy existed between Stanford
and his wife.


       Prior to sentencing, Stanford filed a departure motion. The written motion did not
specify whether the request was for a downward durational or dispositional departure or
both. At the sentencing hearing held July 1, 2015, Stanford's counsel specifically asked
the district court to dispositionally depart to a grant of probation rather than a prison
sentence. Later, Stanford's attorney also asked the district court to "consider a departure
of any kind but especially to probation." All of the discussion regarding the departure
before the district court surrounded whether a downward dispositional departure should
be granted.


       At the conclusion of the hearing, the district court stated it would announce the
sentence but wanted to review the case law as well as receive written submissions from
the parties regarding whether a dispositional departure should be granted. The district
court then imposed a total sentence of 132 months of imprisonment, the mitigated
presumptive guideline sentence, and took the dispositional departure motion under
advisement. A few weeks later, on July 22, 2015, the district court filed a journal entry
denying Stanford's motion for a downward dispositional departure, finding there were no
substantial or compelling reasons why Stanford should be treated differently than called
for by statute.



                                              4
       Stanford then appealed his convictions and sentences to our court, and the panel
affirmed. 2017 WL 1534779, at *12. The Kansas Supreme Court denied Stanford's
petition for review.


       On January 24, 2018, Stanford, through counsel, filed a motion to declare
conviction void without jurisdiction, a motion for resentencing for failure to fully rule on
departure motion, and a motion for stay. On April 12, 2018, Stanford filed an amended
motion for resentencing for failure to fully rule on the departure motion. Of import here,
Stanford argued in his motion to declare conviction void without jurisdiction that the
stipulation to facts did not include an overt act toward the conspiracy charge and no overt
act was proven. Stanford argued that because this fact was lacking, the conviction of
conspiracy to manufacture methamphetamine was void without jurisdiction. That motion
never explicitly argued the district court lacked subject matter jurisdiction; rather, it
complained there was no overt act proven. In his motion for resentencing for failure to
fully rule on departure motion, Stanford asserted the departure motion, which did not
specify if it was requesting a downward durational or dispositional departure, was
requesting the district court consider both options. He argued his sentence was illegal
because the district court never ruled on his durational departure motion.


       The district court held a hearing on Stanford's motions and took the matter under
advisement, giving the parties time to submit briefs. Almost a year later, on March 19,
2019, the district court denied Stanford's motions by written letter opinion. Regarding the
durational departure issue, the district court held:


       "In reading the sentencing transcript it is plain to me that the court sentenced the
       defendant to 132 months in prison and only took the probation, or dispositional departure
       issue under advisement. Judge Walker, in considering the departure issues, both
       durational and dispositional had ruled on the number of months, with the mitigated
       number of months being decided as the proper penalty. This conscious decision to use the




                                                     5
       mitigated presumptive sentence from the guidelines shows the Court's decision
       concerning the appropriate length of sentence."


Regarding Stanford's motion to declare conviction void without jurisdiction, the district
court held:


       "There was no disagreement that the proffer of Mr. and Mrs. Stanford conspiring to
       manufacture methamphetamine constituted the overt act of making methamphetamine.
       To complain now that the mutually agreed upon amendment to the conspiracy charge is
       void for lack of an overt act seems disingenuous at best. It seems like an invited error by
       the defense in order to have the benefit of a chance for probation at sentencing and then
       later complaining there was no overt act, while previously not objecting to the Court's
       approval of their conspiracy agreement between the State and defense."


       Stanford timely appeals.

                                              ANALYSIS


       On appeal, Stanford raises two issues. First, he argues the district court erred in
denying his motion to declare his convictions void, which was based on Stanford's
assertion that the charging documents did not confer subject matter jurisdiction to the
district court. Second, Stanford argues he should be resentenced because the district court
never ruled on his downward durational departure motion.


I.     DID THE DISTRICT COURT ERR IN DENYING STANFORD'S MOTION TO DECLARE HIS
       CONVICTIONS VOID FOR LACK OF SUBJECT MATTER JURISDICTION?


       Stanford argues the district court erred in denying his motion to declare his
convictions void for lack of subject matter jurisdiction. Specifically, he argues no
charging document ever listed an overt act for his conviction of conspiracy to



                                                    6
manufacture methamphetamine and, therefore, his conviction is void for lack of subject
matter jurisdiction. The State responds Stanford invited any error by waiving the filing of
a new charging document and, even if the error was not invited, the charging document
was not so insufficient as to deprive the district court of jurisdiction to convict Stanford
of conspiracy to manufacture methamphetamine.


       We review "questions of subject matter jurisdiction de novo." State v. Smith, 311
Kan. 109, 111, 456 P.3d 1004 (2020).


               "'Subject matter jurisdiction is the power of the court to hear and decide a
       particular type of action.' State v. Matzke, 236 Kan. 833, 835, 696 P.2d 396 (1985); see
       Cotton, 535 U.S. at 630 (subject matter jurisdiction refers to '"the courts' statutory or
       constitutional power to adjudicate the case"'). The existence of subject matter jurisdiction
       cannot be waived, and its nonexistence may be challenged at any time. See, e.g., Trotter
       v. State, 288 Kan. 112, Syl. ¶ 4, 200 P.3d 1236 (2009). A conviction obtained in a court
       without subject matter jurisdiction is void. See State v. Elliott, 281 Kan. 583, Syl. ¶ 3,
       133 P.3d 1253 (2006)." State v. Dunn, 304 Kan. 773, 784, 375 P.3d 332 (2016).


       The State charged Stanford with a variety of drug related and theft charges, the
most significant of which was Count 1, manufacturing methamphetamine, a level 1 drug
felony. If convicted, the sentencing guidelines for that crime prohibited Stanford from
getting probation. See K.S.A. 2010 Supp. 21-36a03(a) (now K.S.A. 2019 Supp. 21-
5703[e]). Stanford stated on the record he wanted to avoid this penalty and be able to
argue for a dispositional departure to probation. To avoid this consequence, Stanford
agreed to try the case on stipulated facts on the charge of conspiracy to manufacture
methamphetamine, which would allow him to request a downward dispositional
departure. Stanford stipulated to a factual basis for conspiracy to manufacture
methamphetamine and explicitly waived the filing of a written amended complaint. The
journal entry reflects this.




                                                     7
       Now, he argues that even though he waived the filing of a written amended
complaint, the lack of that written amended complaint deprived the district court of
subject matter jurisdiction because the State did not properly allege the crime of
conspiracy to manufacture methamphetamine.


       But Stanford's argument has a fatal flaw—"Kansas charging documents do not
bestow or confer subject matter jurisdiction on state courts to adjudicate criminal cases;
the Kansas Constitution does." Dunn, 304 Kan. 773, Syl. ¶ 1. In Kansas,


       "[c]harging documents need only show that a case has been filed in the correct court, e.g.,
       the district court rather than municipal court; show that the court has territorial
       jurisdiction over the crime alleged; and allege facts that, if proved beyond a reasonable
       doubt, would constitute a Kansas crime committed by the defendant." 304 Kan. at 811.


       There is no question the first two requirements are satisfied by the complaint filed
in this case. At issue is the third requirement of an adequate charging document—
whether the complaint alleges facts that if proved beyond a reasonable doubt constitute a
crime in Kansas. To answer this question, we must compare the Legislature's definition
of the crime charged with the State's factual allegations. If the alleged facts, proved
beyond a reasonable doubt, support a guilty verdict, then the charging document is
statutorily sufficient. But even if the charging document is insufficient, it does not mean
subject matter jurisdiction is lacking. Rather,


       "the State has failed to properly invoke the subject matter jurisdiction of the court, and an
       appropriate remedy must be fashioned. The problem is not a substantive absence of
       jurisdiction; it is a procedural failure to demonstrate its existence. The availability of a
       remedy is key. Statutory infirmity does not inevitably fail to bestow subject matter
       jurisdiction or deprive the court of jurisdiction or destroy jurisdiction. See K.S.A. 22-
       3502 (arrest of judgment available if charging document does not charge crime or court
       without jurisdiction)." Dunn, 304 Kan. at 812.



                                                      8
       Here, the charging document was insufficient on its face because Stanford was
convicted of a crime for which he was not charged and for which there was no amended
complaint filed. However, this does not automatically necessitate reversal of Stanford's
conviction.


       When a charging document fails to properly charge the defendant, it "carries the
risk that the due process and notice for the defendant are similarly infirm." Dunn, 304
Kan. at 816. When the facts in the charging document fail to establish the crime of
conviction, the State is "limited to arguing lack of preservation of the issue . . . or
harmlessness under K.S.A. 2015 Supp. 60-261 and K.S.A. 60-2105." 304 Kan. at 817.
The harmlessness inquiry examines if the defendant's substantial rights were affected by
the error. See 304 Kan. at 821. There is no dispute Stanford raised this issue before the
district court.


       We conclude Stanford's substantial rights were not affected by the charging
document's error because he and his counsel clearly understood the new charge. In fact,
Stanford explicitly waived, both personally and through counsel, the filing of an amended
charging document. In addition, Stanford stipulated to the factual basis for the conspiracy
to manufacture methamphetamine charge. Moreover, Stanford welcomed the amended
charge because it allowed him to request a downward dispositional departure, something
his original charge did not allow. There can be no argument made that any charging
document error prejudiced Stanford when he was clearly well informed of the amended
charge and a journal entry was filed reflecting the amendment.


       Such a holding is consistent with other cases that have allowed oral amendment of
charging documents. See State v. Nunn, 244 Kan. 207, 224, 768 P.2d 268 (1989)
("Absent any showing of prejudice to the defendant, when the [oral] amendment is made
during trial with the defendant and defense counsel present, the amendment is effective
immediately. The court's action is not invalidated because a written journal entry is not


                                               9
filed until after the trial has been completed."); State v. Switzer, 244 Kan. 449, 457, 769
P.2d 645 (1989) (prosecution's failure to journalize oral amendment to criminal
complaint after trial does not invalidate verdict as long as defendant not prejudiced);
State v. Rasch, 243 Kan. 495, 501, 785 P.2d 214 (1988) (oral motion to cure defect in
charging document that omitted essential element permitted); State v. Dodd, 11 Kan.
App. 2d 513, 515, 728 P.2d 402 (1986) ("The failure to file an amended information in
writing was not reversible error.").


II.    DID THE DISTRICT COURT SENTENCE STANFORD TO AN ILLEGAL SENTENCE?


       Second, Stanford argues his sentence is illegal because the district court never
ruled on his downward durational departure motion. He argues such an omission causes
his sentences to fail to conform to the applicable statutory provisions. The State responds
by asserting the district court implicitly rejected Stanford's durational departure motion
by imposing a guidelines sentence and Stanford should have raised this issue on his direct
appeal.


       "A sentence is illegal under K.S.A. 22-3504 when: (1) it is imposed by a court
without jurisdiction; (2) it does not conform to the applicable statutory provisions, either
in character or punishment; or (3) it is ambiguous with respect to the time and manner in
which it is to be served." State v. Hayes, 307 Kan. 537, 538, 411 P.3d 1225 (2018). A
district court's failure to follow the required statutory departure procedures also renders a
sentence illegal. State v. Jackson, 297 Kan. 110, 113, 298 P.3d 344 (2013). A court may
correct an illegal sentence at any time, including for the first time on appeal. K.S.A. 2019
Supp. 22-3504(a); State v. Fisher, 304 Kan. 242, 264, 373 P.3d 781 (2016).


       Addressing the State's second contention first—Stanford is barred from raising this
issue now because he failed to do so in his direct appeal—we conclude Stanford’s failure
to raise the legality of the district court's treatment of his durational departure motion in


                                              10
his direct appeal does not bar his claim because he may raise his illegal sentence claim at
any time.


       As to Stanford's claim that his sentence is illegal because the district court failed to
rule on his durational departure motion, we agree with the State that Stanford's sentence
is not illegal because the district court implicitly rejected his request for a durational
departure by imposing a guidelines sentence. Moreover, the district court's failure to give
reasons for denying a durational departure does not make Stanford's sentence illegal
because a court is not required to make findings or to state its reasons when denying a
departure request. See State v. Dull, 298 Kan. 832, 842, 317 P.3d 104 (2014). Nor is a
court required to make specific findings to support the imposition of a presumptive
guidelines sentence. State v. Huerta, 291 Kan. 831, 836, 247 P.3d 1043 (2011). As
Stanford received a guidelines sentence, his sentence is not illegal.


       Affirmed.




                                              11
