                         NOT DESIGNATED FOR PUBLICATION

                                            No. 121,499


             IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                        STATE OF KANSAS,
                                            Appellee,

                                                  v.

                                   STEPHEN DOUGLAS WHITE,
                                          Appellant.


                                 MEMORANDUM OPINION


       Appeal from Butler District Court; DAVID A. RICKE, judge. Opinion filed March 27, 2020.
Affirmed.


       Joshua S. Andrews, of Cami R. Baker & Associates, P.A., of Augusta, for appellant.


       Darrin C. Devinney, county attorney, and Derek Schmidt, attorney general, for appellee.


Before POWELL, P.J., HILL and STANDRIDGE, JJ.


       PER CURIAM: Stephen White appeals the district court's summary dismissal of his
motion to correct an illegal sentence. White contends the court should have construed his
motion as a K.S.A. 60-1507 motion, even though White insisted to that court this motion
attacks his sentence rather than his conviction. But when we construe this motion as a
K.S.A. 60-1507 motion that attacks his conviction, we find it is barred as untimely and
successive. Therefore, we affirm.




                                                  1
       In 2011, White was charged with three counts of rape of a child under 14 years of
age, an off-grid person felony. He pled guilty to one count of rape in exchange for the
State dismissing the other two counts. White moved for a durational departure sentence,
which was denied. He was sentenced to a hard 25 life sentence. His conviction and
sentence were summarily affirmed on appeal and became final in February 2013.


       A little over two years later, White filed a pro se K.S.A. 60-1507 motion. In that
motion White alleged his trial counsel misled and coerced him into entering a plea. That
motion has followed a circuitous route through our courts. See White v. State, No.
120,716, 2019 WL 6041492, at *1 (Kan. App. 2019) (unpublished opinion) petition for
rev. filed November 20, 2019. In the latest series of proceedings, the district court held an
evidentiary hearing at which White testified that his trial counsel coerced him into
accepting a plea agreement by telling him that he would not cross-examine the victim or
represent White at trial. Trial counsel disputed White's assertion that he coerced White
into accepting a plea agreement, noting that it was entirely White's decision.


       The district court found trial counsel's testimony credible and rejected White's
testimony. The district court found that trial counsel had worked hard to secure the best
possible outcome for White considering he had confessed to the police. In the negotiated
plea agreement, the State agreed to:


          • Dismiss two of the three rape counts;
          • not oppose a motion to depart from an off-grid sentence to a grid sentence;
              and
          • stand mute regarding a further downward durational departure. 2019 WL
              6041492, at *3-4.


       When that motion was appealed, a panel of this court noted that appellate courts
must accept the district court's judgment on credibility determinations and held that trial
                                              2
counsel did not coerce or misinform White into accepting a plea agreement, and White's
plea was knowing and voluntary. 2019 WL 6041492, at *4-5. White's request for
Supreme Court review of that decision is pending.


       In July 2018, White filed a pro se motion to correct an illegal sentence that is the
subject of this appeal. He contends that there was not a sufficient factual basis to support
his conviction and his defense counsel conceded his guilt against his wishes. The district
court summarily denied the motion because White challenged his plea rather than his
sentence, which does not make his sentence "illegal" under K.S.A. 22-3504. White filed
objections to the court's order, insisting that the court misconstrued his motion as one
challenging his conviction rather than his sentence. He argued that the court should not
have rewritten his motion as one challenging his conviction and maintained that his
sentence was illegal. The court denied White's request to alter or amend its order because
it was untimely filed and a motion to correct an illegal sentence under K.S.A. 22-3504 "is
a vehicle to correct a sentence, not a mechanism to collaterally attack a conviction, which
White clearly is again trying to do." White appeals.


       To us, White contends the district court should have construed his motion as a
K.S.A. 60-1507 motion and considered its merits under that framework. He contends his
trial counsel conceded guilt against his wishes, rendering counsel's assistance ineffective.


        Courts interpret pro se pleadings based upon their content and not solely on their
title or labels. But there are limits to a court's duty to liberally construe pro se pleadings;
the court is not required to divine every conceivable interpretation of a motion, especially
when a movant repeatedly asserts specific statutory grounds for relief and makes
arguments related to that specific statute. State v. Redding, 310 Kan. 15, 18, 444 P.3d 989
(2019). The 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

                                               3
underlying conviction. State v. Ditges, 306 Kan. 454, 457-58, 394 P.3d 859 (2017).
Whether the district court correctly construed a pro se pleading is a question of law
subject to unlimited review. State v. Gilbert, 299 Kan. 797, 802, 326 P.3d 1060 (2014).


       A court may correct an illegal sentence at any time while the defendant is serving
the sentence. K.S.A. 2019 Supp. 22-3504(a). The illegal sentence statute, however, has
very limited applicability. State v. Gray, 303 Kan. 1011, 1014, 368 P.3d 1113 (2016). An
"illegal sentence" is a sentence:


          • Imposed by a court without jurisdiction;
          • does not conform to the applicable statutory provision, either in character or
              punishment; or
          • is ambiguous with respect to the time and manner in which it is to be
              served. K.S.A. 2019 Supp. 22-3504(c).


K.S.A. 22-3504 is solely a vehicle to correct a sentence, not a mechanism to reverse a
conviction. Gilbert, 299 Kan. at 801.


       In contrast, a defendant has one year from when a conviction becomes final to file
a motion under K.S.A. 60-1507(a). K.S.A. 2019 Supp. 60-1507(f)(1). The one-year time
limitation for bringing an action under K.S.A. 60-1507(f)(1) may be extended by the
district court only to prevent a manifest injustice. K.S.A. 2019 Supp. 60-1507(f)(2). A
defendant who files a motion under K.S.A. 60-1507 outside the one-year time limitation
in K.S.A. 60-1507(f) and fails to affirmatively assert manifest injustice is procedurally
barred from maintaining the action. State v. Trotter, 296 Kan. 898, 905, 295 P.3d 1039
(2013).


       Under K.S.A. 60-1507(c), a sentencing court is not required to entertain a second
or successive motion for similar relief on behalf of the same prisoner. Beauclair v. State,
                                             4
308 Kan. 284, 304, 419 P.3d 1180 (2018). "A movant in a K.S.A. 60-1507 motion is
presumed to have listed all grounds for relief, and a subsequent motion need not be
considered in the absence of a showing of circumstances justifying the original failure to
list a ground." Trotter, 296 Kan. 898, Syl. ¶ 2. To avoid a dismissal of a second or
successive K.S.A. 60-1507 motion, the movant bears the burden of establishing
exceptional circumstances. Exceptional circumstances are unusual events or intervening
changes in the law that prevented the defendant from raising the issue in a prior K.S.A.
60-1507 motion. Beauclair, 308 Kan. at 304. Moreover, issues raised and decided in prior
60-1507 motions are res judicata and cannot be raised in subsequent motions. State v.
Martin, 294 Kan. 638, 640-41, 279 P.3d 704 (2012).


       Here, the district court's dismissal of White's motion was not incorrect because
White insisted his motion be construed as one attacking his sentence, and not his
conviction. Also, if we construe this as a K.S.A. 60-1507 motion, White's motion would
not survive several procedural hurdles. Three cases from our Supreme Court explain why.
They are Gilbert, Ditges, and Redding. All three cases instruct us to look at the titles of
the motions, the cases in which they are filed—whether they are civil or criminal—and
the target that is being attacked.


       In Gilbert, Gilbert had filed a pro se motion entitled, "Motion to Correct Illegal
Sentence," arguing that his sentence was illegal because the trial court failed to instruct
the jury on the lesser included offenses of felony murder. He claimed that his felony-
murder sentence was "'a product of [the district] court's failure to conform to the statutory
provision'" governing lesser included offenses. 299 Kan. at 800. Our Supreme Court held
that the district court did not err by summarily denying Gilbert's instructional error claim
in the context of a motion to correct an illegal sentence because it was a challenge to his
conviction, not his sentence. 299 Kan. at 801-02. The district court also did not err by
failing to construe the motion as a K.S.A. 60-1507 motion because Gilbert not only titled
his pleading as a "Motion to Correct Illegal Sentence," he also applied K.S.A. 22-3504 to

                                              5
argue his sentence did not conform to the statutory provision governing lesser included
offenses. Further, Gilbert argued his motion was timely because a motion to correct an
illegal sentence carried no time restriction. He did not assert manifest injustice necessary
to permit an untimely filing under K.S.A. 60-1507. 299 Kan. at 802-03.


       In Ditges, Ditges filed a motion entitled, "Motion to Correct an Illegal Sentence,"
and cited K.S.A. 22-3504. The body of his motion claimed the trial court should have
instructed on the lesser included offense of voluntary manslaughter. He asked for his
sentence to be set aside, his conviction reversed, and the case set for a new trial. He noted
that under K.S.A. 22-3504, a court may correct an illegal sentence at any time. The
district court summarily denied the motion because K.S.A. 22-3504 cannot be used to
collaterally attack a conviction. Ditges filed a motion to reconsider, asserting that his
original motion had incorrectly stated he was seeking to reverse his conviction. Rather,
he said he merely wanted his sentence to be corrected to the sentence applicable for
voluntary manslaughter. The district court denied the motion to reconsider. On appeal,
our Supreme Court noted that arguably, the district court should have liberally construed
Ditges' initial motion as a K.S.A. 60-1507 motion. 306 Kan. at 457. But because Ditges'
motion to reconsider insisted that he was only challenging his sentence, not his
conviction, the district court "was relieved of any duty to convert the pleading into
something the movant did not want." 306 Kan. at 457-58. Further, construed as a K.S.A.
60-1507 motion, Ditges' motion was untimely and he had failed to allege manifest
injustice. Thus, the district court's dismissal was affirmed. 306 Kan. at 458-59.


       In Redding, the district court did not err when it failed to construe Redding's
pleading as a K.S.A. 60-1507 motion because it was entitled, "Motion to Correct An[]
Illegal Sentence," it was filed under his criminal case number, it was not submitted on the
Judicial Council form for a 60-1507 and did not contain the information called for on the
form, and the content of the motion was consistent with its label. Our Supreme Court
again emphasized that even if the court had construed the pleading as a K.S.A. 60-1507

                                              6
motion, Redding had exceeded the one-year filing limit and had made no argument why
the manifest injustice exception applied. 310 Kan. at 19-20.


       Following the holdings of those three cases, we turn now to this one. White titled
his motion "MOTION TO CORRECT ILLEGAL SENTENCE," cited to K.S.A. 22-3504,
filed it under his criminal case number, did not submit it on the Judicial Council form for
a 60-1507, and asked the court "to correct the illegal sentence imposed upon him without
jurisdiction." The substance of his complaint was that the prosecutor "failed to establish
on the record beyond a reasonable doubt, that White digitally penetrated the victim's
vagina with either a finger, his male sex organ or an object, such constituted an acquittal
and thus terminated the prosecution since a factual requirement for the conviction was
not met." White also argued that while he had maintained his innocence, his trial counsel
had conceded his guilt against his wishes. Therefore, he argued, the trial court had no
jurisdiction to impose sentence upon him.


       After the district court dismissed the motion because he had challenged his
conviction rather than his sentence, White objected. In his objections to the court's order,
White stated that "The court misconstrues the defendant's motion as one challenging his
conviction rather than his sentence" and that his assertions "fit squarely within the
definition of an illegal sentence." He complained about his motion being construed as
anything other than a motion to correct an illegal sentence. He said, "The requirement of
liberal construction does mean that the court can ignore White's motion set forth facts
which set forth a claim cognizable under K.S.A. 22-3504."


       White does not argue on appeal that his motion set forth a cognizable claim under
K.S.A. 22-3504 of an illegal sentence (it did not). Assuming that the district court should
have initially construed White's motion as a K.S.A. 60-1507 motion, White's objections
to the court's order relieved the district court of any duty to convert his motion into
something he did not want.

                                              7
         Moreover, construed as a K.S.A. 60-1507 motion, White's motion would
undoubtedly be barred as untimely and successive. His motion would be barred as
untimely because he did not affirmatively assert manifest injustice, even though he
referred to the "actual innocence" claim he made in his prior K.S.A. 60-1507 motion. His
motion would be barred as successive because he filed a prior K.S.A. 60-1507 motion
and did not allege any circumstances that prevented him from raising these issues in the
prior motion. Preclusion principals also prevent this court from redeciding whether his
plea was coerced. He raised a similar argument concerning his plea in the original K.S.A.
60-1507 motion. He cannot endlessly relitigate the same issue until he gets the answer he
wants.


         Our review of the record reveals that White's current arguments are meritless. At
the plea hearing, White's attorney did tell the court that after speaking "at length" about
his options, White had decided to enter a no contest plea. The attorney stated that White
would stipulate that the evidence from the preliminary hearing supported a rape
conviction. The court then specifically asked White if he agreed with his attorney's
statements, to which White responded, "Yes, Your Honor." The prosecutor gave a
factual basis for the charge with specificity, stating that White "did intentionally have
sexual intercourse with a victim, her initials N.C.B. . . . a child under 14 years of age. . . .
The specific behavior was that the defendant digitally penetrated the female sex organ of
that victim." The term "digital" in this context means "done with a finger." Merriam
Webster's New World College Dictionary 412 (5th ed. 2014); State v. Shay, 56 Kan. App.
2d 721, 725-26, 437 P.3d 78 (2019). With that factual basis on the record, White agreed
that he was pleading to the charge freely, knowingly, and voluntarily. He also
acknowledged his crime at sentencing. White only complained about his plea after the
court refused to grant him a departure sentence.


         Affirmed.


                                               8
