                  IN THE SUPREME COURT OF THE STATE OF KANSAS

                                             No. 113,775

                                         STATE OF KANSAS,
                                             Appellee,

                                                    v.

                                          GARY A. DITGES,
                                            Appellant.

                                  SYLLABUS BY THE COURT


1.
       Although a district court must liberally construe a pro se pleading to give effect to
its content, rather than its label or form, a district 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 underlying conviction.


2.
       A defendant claiming that the district court should have construed a K.S.A. 22-
3504(1) motion to correct an illegal sentence as an untimely filed K.S.A. 60-1507 motion
has the burden of showing that the motion, files, and record clearly established the
manifest injustice necessary to allow a K.S.A. 60-1507 to be filed out of time. The
district court has no duty to eliminate any possibility of manifest injustice.

       Appeal from Sedgwick District Court; WARREN M. WILBERT, judge. Opinion filed May 26,
2017. Affirmed.


       Kristen B. Patty, of Wichita, was on the brief for appellant.


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        Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, were on the brief for appellee.


The opinion of the court was delivered by

        JOHNSON, J.: Gary A. Ditges, who is serving a life sentence for second-degree
murder, appeals the Sedgwick County District Court's summary denial of his pro se
K.S.A. 22-3504 motion to correct an illegal sentence, filed more than 13 years after he
was sentenced. Ditges' motion claimed that his sentence is illegal because the district
court failed to include a jury instruction on voluntary manslaughter as a lesser included
offense to first-degree murder, and, consequently, he should have been convicted and
sentenced for voluntary manslaughter instead of second-degree murder.


        On appeal, Ditges changes the issue, claiming the district court should have
construed his pro se pleading as being a motion under K.S.A. 60-1507. Then, the district
court should have, sua sponte, divined all of the arguments that the movant should have
made in order to allow the untimely 1507 motion to proceed to the merits, and then
should have ruled for the movant on both the procedural issues and the merits. Ditges'
appeal is unavailing on all levels.


                              FACTUAL AND PROCEDURAL OVERVIEW


        The State charged Ditges with first-degree murder in the March 1999 stabbing
death of his landlord, Janzen Nguyen. At the jury trial, a neighbor testified that, about the
time Nguyen was last seen alive, the neighbor saw Nguyen enter Ditges' apartment and
heard a loud argument about a deposit.


        Nevertheless, the defense requested that the district court give no lesser included
offense instructions. The trial court, noting its independent duty to instruct on applicable
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lesser included offenses, even over a defense objection, gave a lesser included offense
instruction on intentional second-degree murder. But the court found that the evidence
did not support an instruction on voluntary manslaughter. The jury convicted Ditges of
the lesser crime of second-degree murder.


       Ditges' direct appeal did not claim any instructional error. This court affirmed his
conviction and sentence on the issues raised in the direct appeal. State v. Ditges, No.
86,204 (unpublished opinion filed July 11, 2003). Thereafter, Ditges did not file any
motions for post-conviction relief until the current filing in March 2014.


       The motion presented in March 2014 was entitled "Motion to Correct an Illegal
Sentence." It began: "COMES NOW Gary A. Ditges, the defendant, pro se, and moves
the Court to correct his illegal sentence pursuant to K.S.A. 22-3504 (2012)." The body of
the motion claimed that the trial court should have instructed on all lesser included
offenses which were made applicable by the trial evidence, including voluntary
manslaughter. The motion then concluded that "the defendant's sentence should be set
aside, his conviction of second degree murder (intentional) should be reversed and the
case be set for new trial to include the lesser offense of Voluntary Manslaughter, K.S.A.
21-3403." The motion was accompanied by a Memorandum of Law which recited that,
pursuant to K.S.A. 22-3504(1), a court may correct an illegal sentence at any time.
Neither the motion nor the memorandum contained any further discussion of the
timeliness of the motion.


       The State filed a response to the motion, pointing out that, while a motion under
K.S.A. 22-3504 could be entertained at any time, such a motion had limited applicability.
Specifically, the State argued that a K.S.A. 22-3504 motion cannot be used to collaterally
attack a conviction or to breathe new life into an abandoned issue. The district court
summarily denied the motion by checking a box on a motion minutes sheet and
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handwriting that the court adopted the State's response as its findings of fact and
conclusions of law.


       Ditges filed a motion to reconsider, stating that his original motion had incorrectly
stated that he was seeking a reversal of his conviction. Rather, he asserted that he was
accepting responsibility for killing Nguyen, but that his sentence should be corrected to
one that was applicable to a voluntary manslaughter conviction. The district court
summarily denied the motion to reconsider via handwriting on a preprinted motion
minutes sheet that again simply referred to the State's response as the court's findings of
fact and conclusions of law. Ditges appealed directly to this court.


                  MOVANT NOT ENTITLED TO POST-CONVICTION RELIEF


       Before the district court, Ditges insisted that he was challenging only his sentence.
On appeal, Ditges claims that the district court erred in not liberally construing his
motion as a K.S.A. 60-1507 motion challenging his conviction based upon the trial
court's failure to instruct on the lesser included offense of voluntary manslaughter. If
Ditges can get to the merits of his instructional complaint, he is faced with a clearly
erroneous standard, if not invited error. His motion cannot prevail on any level.


Standard of Review


       Whether a district court correctly construed a pro se pleading is a question of law
subject to de novo review. State v. Gilbert, 299 Kan. 797, 802, 326 P.3d 1060 (2014). A
district court's summary denial of a K.S.A. 22-3504 motion to correct an illegal sentence
is reviewed de novo. Gilbert, 299 Kan. at 801.




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       The omission of a legally and factually appropriate jury instruction is reversible as
clearly erroneous only if the appellant carries his or her burden to firmly convince the
appellate court that the jury would have reached a different verdict had the instruction
error not occurred. State v. Williams, 295 Kan. 506, Syl. ¶ 5, 286 P.3d 195 (2012).


Analysis


       As noted above, Ditges titled his pleading as a motion to correct an illegal
sentence and he specifically referred to K.S.A. 22-3504, which governs the correction of
an illegal sentence. Likewise, his memorandum pointed out that, although his motion was
being filed many years after his direct appeal was final, K.S.A. 22-3504(1) specifically
states that an illegal sentence may be corrected at any time. Given that K.S.A. 60-1507(f)
requires that type of motion to be filed within 1 year of the direct appeal becoming final,
unless extended to prevent manifest injustice, Ditges' use of K.S.A. 22-3504 would not
appear to be accidental.


       Moreover, Ditges filed his appeal directly with this court, which is the proper
court where the subject matter is a motion to correct an illegal sentence. See K.S.A. 2016
Supp. 22-3601(b)(3). If his motion was construed as a K.S.A. 60-1507 motion, that
statute directs the first appeal to be taken to the Court of Appeals. K.S.A. 2016 Supp. 60-
1507(d).


       Nevertheless, the content of Ditges' motion sought a reversal of his conviction for
second-degree murder based on the trial court's failure to instruct on the lesser included
offense of voluntary manslaughter. That is the type of relief available through a K.S.A.
60-1507 motion, and we have held that "[j]udges must liberally construe a pro se
pleading to 'giv[e] effect to the pleading's content rather than the labels and forms used to


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articulate the defendant's arguments.' [State v. Kelly, 291 Kan. 563, 565, 244 P.3d 639
(2010)]." Makthepharak v. State, 298 Kan. 573, 581, 314 P.3d 876 (2013).


       Arguably, then, the district court should have initially considered liberally
construing Ditges' pro se motion as a K.S.A. 60-1507 motion, rather than automatically
relying on the State's response. But Ditges' motion to reconsider refuted the content of his
original motion and insisted that he was only challenging his sentence, not his conviction.
Given that assertion, the district court was relieved of any duty to convert the pleading
into something the movant did not want.


       Treating the motion as it was titled, the district court's ruling was correct. The
failure to give a lesser included offense instruction, without more, does not render illegal
a sentence that conforms to the statutory provisions for the crime of conviction. In other
words, Ditges has not shown that there is anything illegal about the sentence he received
for second-degree murder. He just wants to be sentenced for the lesser crime of voluntary
manslaughter, i.e., he challenged the conviction, not the sentence.


       Even if we were to reject the notion that the motion to reconsider relieved the
district court of its duty to consider the content of the pro se motion and construe it as a
K.S.A. 60-1507 motion, any error would be harmless. Obviously, Ditges' motion was
untimely under K.S.A. 60-1507(f)(1), and there is nothing in the record that would
support a finding that, under K.S.A. 60-1507(f)(2), an extension of the time limit was
necessary to prevent manifest injustice.


       Ditges complains that the district court did not address whether he had adequately
alleged manifest injustice under K.S.A. 60-1507(f)(2). But we have the motion, files, and
records available to us, and there is no allegation of manifest injustice to be found
therein. It is Ditges' burden to establish that he is entitled to relief under K.S.A. 60-1507.
                                               6
Supreme Court Rule 183(g) (2015 Kan. Ct. R. Annot. 271). That burden includes
establishing the manifest injustice that would entitle him to file the motion out of time.
The district court does not have a duty to eliminate any possibility of manifest injustice.


       Even if Ditges had cleared the manifest injustice hurdle to get a hearing on the
merits of his complaint, he would still have a considerable obstacle in front of him. At the
very least, his objection to the giving of all lesser included offense instructions would
have triggered the clearly erroneous requirement of K.S.A. 22-3414(3). Then, he would
have had the burden of firmly convincing the appellate court that the giving of a
voluntary manslaughter instruction would have changed the outcome of the trial. From
the record before us, that result is highly questionable, at best.


       In short, switching statutory provisions for Ditges' motion for post-conviction
relief does not save the day for him. K.S.A. 22-3504(1) is the wrong vehicle to challenge
the alleged instruction error, but a K.S.A. 60-1507 motion is untimely. Further, Ditges'
failure to request an instruction on voluntary manslaughter erected a nearly
insurmountable obstacle to obtaining relief on the basis of its omission.


       Affirmed.




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