                IN THE SUPREME COURT OF THE STATE OF KANSAS

                                             No. 117,450

                                         STATE OF KANSAS,
                                             Appellee,

                                                   v.

                                      LESLIE H. ROBERTS, JR.,
                                            Appellant.


                                  SYLLABUS BY THE COURT

        A merely procedural defect in competency proceedings does not deprive the
district court of jurisdiction to sentence a criminal defendant.


        Appeal from Anderson District Court; ERIC W. GODDERZ, judge. Opinion filed March 8, 2019.
Affirmed.


        Gerald E. Wells, of Jerry Wells Attorney-at-Law, of Lawrence, was on the brief for appellant.


        Brandon L. Jones, county attorney, and Derek Schmidt, attorney general, were on the brief for
appellee.


The opinion of the court was delivered by


        BEIER, J.: This is an appeal from summary denial of a motion to correct illegal
sentence filed by defendant Leslie H. Roberts, Jr. Roberts now concedes summary denial
was appropriate, but he raises a new challenge to his sentence on this appeal, arguing that
the handling of his pre-plea competency issue deprived the district court of jurisdiction to
sentence him. We reject this new claim and affirm the denial of the motion to correct
illegal sentence.
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                         FACTS AND PROCEDURAL BACKGROUND


       Roberts was sentenced to a hard 25 life sentence after pleading no contest to rape
of a child under the age of 14 in violation of K.S.A. 21-3502(a)(2). This court affirmed
Roberts' sentence in State v. Roberts, 293 Kan. 1093, 272 P.3d 24 (2012).


       Roberts filed a pro se motion to correct illegal sentence years later. He asserted
that he had never admitted he was older than 18 or that the victim was under the age of
14 at the time of the crime, undercutting sentence-enhancing elements that had not been
submitted to a jury and proved beyond a reasonable doubt. The district court judge
dismissed Roberts' motion without appointment of counsel or holding a hearing; the
judge determined that the record established Roberts' and the victim's ages at the time of
the crime. See Makthepharak v. State, 298 Kan. 573, 576, 314 P.3d 876 (2013) (when
presented with motion to correct illegal sentence, district court should conduct initial
examination of the motion to determine if it raises substantial issues of law or fact).


       On this appeal, Roberts concedes the district judge's ruling was correct on the age
issue, but he asserts he is nevertheless entitled to relief. Roberts now argues that K.S.A.
22-3302(1) procedures for determining defendant competency were not followed before
he entered his plea, depriving the court of jurisdiction to sentence him. See State v.
Samuel, 309 Kan. 155, 157, 432 P.3d 666 (2019) (sentence pronounced without
jurisdiction illegal).


       After Roberts' prosecution was launched in early 2010, defense counsel Craig Cole
requested a determination of Roberts' competency. Cole stated that he had "serious
concerns about [Roberts'] ability to understand the charges and help with his defense."
The district judge ordered an evaluation to determine competency.
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       The results of the evaluation were filed with the court in the form of a letter from
the psychologist who had performed it. The psychologist determined "that Mr. Roberts is
competent to stand trial in that he understands the nature and purpose of the proceedings
against him, and has the ability to work with an attorney to make a defense." The
psychologist advised, however, that the court should take into consideration some
"special concerns" to maintain Roberts' competency throughout the proceedings.
Specifically, the psychologist advised that Roberts was "a non-reader and ha[d] a low to
borderline intellectual level of functioning."


       The court acknowledged the evaluation in open court before moving on to
rescheduling of Roberts' preliminary hearing.


              "THE COURT: This matter had been set for preliminary hearing. . . . There was
       an issue regarding competency. There has now been an evaluation conducted by the
       Southeast Kansas Mental Health Center. Did you receive a copy of that Mr. Cole?


              "MR. COLE: I did, Your Honor.


              "THE COURT: Is the matter ready to be set for preliminary hearing today?


              "MR. COLE: I believe that's correct."


       Roberts ultimately waived his preliminary hearing and entered his no contest plea
based on an agreement with the State. At the plea hearing, Cole acknowledged the
previously expressed concerns over Roberts' lack of reading ability and informed the
court that he had gone over the plea agreement "line by line with him." After the district
judge was satisfied Roberts understood the consequence of the plea and the rights he was



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giving up through a colloquy, the judge asked Cole whether he believed his client's plea
was freely and voluntarily given.


              "MR. COLE: I do, Your Honor. He's told me numerous occasions he does not
      want a jury trial.


              "THE COURT: You don't have any questions regarding his competency any
      further at this point?


              "MR. COLE: Your Honor, there were some issues and as [a] result of those
      issues I did file a motion to have his competency determined and I'm not a doctor but uh,
      it was determined that he was competent and I haven't found evidence that he's
      incompetent during my representation of him.


              "THE COURT: You think he understood the plea and the tender of the no
      contest plea that he signed off on?


              "MR. COLE: I believe he understands that, yes, Your Honor."


                                            DISCUSSION


      Whether a sentence is illegal within the meaning of the statute is a question of law
over which appellate courts have unlimited review. Samuel, 309 Kan. at 157.


      Although an illegal sentence may be corrected any time, "the circumstances under
which a sentence is deemed illegal for K.S.A. 22-3504 purposes are 'narrowly and
specifically defined.'" Samuel, 309 Kan. at 157. When Roberts filed his motion in 2016,
Kansas caselaw defined "illegal sentence" as




                                                  4
       "'(1) a sentence imposed by a court without jurisdiction; (2) a sentence that does not
       conform to the applicable statutory provision, either in the character or the term of
       authorized punishment; or (3) a sentence that is ambiguous with respect to the time and
       manner in which it is to be served.'" State v. Warrior, 303 Kan. 1008, 1009-10, 368 P.3d
       1111 (2016).


The Legislature has since incorporated this judicial definition of an illegal sentence into
the current version of K.S.A. 2017 Supp. 22-3504(3). L. 2017, ch. 62, § 9; see Samuel,
309 Kan. at 157.


       In State v. Ford, 302 Kan. 455, 353 P.3d 1143 (2015), this court addressed the
distinction between procedural and substantive competency claims. "A procedural
competency claim is based on a district court's alleged failure to hold a competency
hearing or an adequate competency hearing." 302 Kan. 455, Syl. ¶ 3. In contrast, a
"substantive competency claim is founded on the allegation that an individual was tried
and convicted while, in fact, incompetent." 302 Kan. 455, Syl. ¶ 3.


       A merely procedural failure to comply with the competency statute, K.S.A. 2017
Supp. 22-3302, is not jurisdictional; thus, "a motion to correct an illegal sentence is
foreclosed as a mechanism for correcting a procedural competency claim." 302 Kan. 455,
Syl. ¶ 4. That conclusion was based, in part, on the premise—consistently acknowledged
by this court—that "the relief available through a motion to correct an illegal sentence is
correction of a sentence, not reversal of a conviction." 302 Kan. at 464. As Ford stated,
"movants seeking to reverse a conviction because of an alleged violation of K.S.A. 2014
Supp. 22-3302 must utilize the procedures in K.S.A. 60-1507 or be subject to summary
dismissal." 302 Kan. at 467.


       Roberts does not advance a substantive competency claim. He asserts only that the
district judge deviated from the procedure outlined in K.S.A. 22-3302. The caselaw he
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cites in support of his position that procedural flaws deprive the court of jurisdiction was
expressly overruled by Ford. See 302 Kan. 455, Syl. ¶ 4; see also State v. Davis, 281
Kan. 169, 130 P.3d 69 (2006), overruled by Ford, 302 Kan. 455.


       Thus a motion to correct illegal sentence is an improper vehicle for Roberts' new
challenge. Had his procedural competency claim been raised in district court, summary
dismissal also would have been appropriate for that claim.


       Further, we note that the existence of even a procedural flaw is far from clear. The
competency statute requires that "the proceedings shall be suspended and a hearing
conducted to determine the competency of the defendant" if "the judge before whom the
case is pending finds that there is reason to believe that the defendant is incompetent to
stand trial." K.S.A. 22-3302(1). After Cole questioned Roberts' competency, Roberts
insists, the district judge did not conduct the required proceedings.


       The record is plain that the district judge ordered an evaluation of Roberts, as
provided in K.S.A. 22-3302(3), and that evaluation established that Roberts was
competent. Although the judge did not make an explicit competency finding in open
court, such a finding was implicit in the exchange with Cole and the parties' continuation
to rescheduling of the preliminary hearing. Contrary to Roberts' new claim, the
competency issue appears to have been resolved by the district judge after the evaluation
was ordered.

                                       CONCLUSION


       Roberts' motion to correct illegal sentence is without merit. The district court's
summary dismissal of the motion is affirmed.



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