State v. Strong ( 2021 )

NOT DESIGNATED FOR PUBLICATION
No. 122,732
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
TREVAWN K. STRONG,
Appellant.
MEMORANDUM OPINION
Appeal from Sedgwick District Court; CHRISTOPHER M. MAGANA, judge. Opinion filed July 2,
2021. Appeal dismissed.
Mark Sevart, of Derby, for appellant.
Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.
Before POWELL, P.J., BRUNS, J., and STEVE LEBEN, Court of Appeals Judge Retired,
assigned.
LEBEN, J.: Once a trial court announces a criminal defendant's sentence, the court
loses jurisdiction to modify that sentence except to correct arithmetic or clerical errors.
State v. Johnson, 309 Kan. 992, 996, 441 P.3d 1036 (2019); see K.S.A. 2020 Supp. 21-
6820(i). So when Trevawn Strong filed a motion asking the district court to reconsider its
decision to revoke his probation and send him to serve his prison sentence, the district
court found it had no jurisdiction to consider the motion and dismissed the motion.
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Strong now appeals, arguing that his motion should have been construed as one to
correct an illegal sentence. If so, that would be significant: a motion to correct an illegal
sentence may be made "at any time while the defendant is serving such sentence." K.S.A.
2020 Supp. 22-3504(a). We must determine whether the trial court should have treated
Strong's "Motion to Reinstate Probation Due to Abuse of Discretion" as a motion to
correct an illegal sentence.
A bit of background will put the motion into context. Strong pleaded guilty to
possession of cocaine, and the district court originally sentenced him to 12 months of
probation with an underlying prison sentence of 42 months that would be served if he
didn't successfully complete the probation. Strong violated his probation terms—
including by possessing a weapon while a felon, testing positive for cocaine, and failing
to report to his probation officer. Based on those violations, the court revoked his
probation and ordered that Strong serve the prison sentence.
Almost five months later, Strong filed his motion. His main argument: "Continued
inpatient substance abuse treatment while on probation would have been a better option
than prison in this case." He said that revoking his probation was an abuse of discretion
and asked that his probation be reinstated along with an order for inpatient drug
treatment.
None of that relates to a claim that Strong's sentence was illegal. An illegal
sentence is one "[i]mposed by a court without jurisdiction; that does not conform to the
applicable statutory provision . . .; or that is ambiguous with respect to the time and
manner in which it is to be served . . . ." K.S.A. 2020 Supp. 22-3504(c)(1).
Strong's claim that his motion should have been characterized as one to correct an
illegal sentence rests mainly on this single sentence in his five-page motion: "Nowhere in
the language of K.S.A. 22-3716 does it state that a defendant's probation may be revoked
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for an 'alleged' new crime committed by the defendant." (Minor spelling errors
corrected.) Strong referenced the allegation that he had violated probation by committing
the new offense of possessing a firearm as a felon, which he suggests isn't specifically
mentioned as a basis for revoking probation in K.S.A. 2020 Supp. 22-3716.
It's true that the district court should liberally interpret court filings made by
people representing themselves. We look not just at the headings but also at the content.
See State v. Redding, 310 Kan. 15, 18, 444 P.3d 989 (2019). Here, though, the clear
message of Strong's motion was that the district court had abused its discretion by
revoking his probation and sending him to prison. At the hearing at which the court
revoked his probation, and in his motion, Strong argued that he should be given another
chance at drug treatment before being sent to prison. That's an argument to the court
about how to exercise its discretion and a request for a sentence modification, not a claim
that the sentence was illegal.
Strong's appellate brief also suggests that if his motion isn't one to correct an
illegal sentence, perhaps it could be considered as a request for habeas relief. That
suggestion is because the district court would have had jurisdiction to consider a habeas
request. See K.S.A. 2020 Supp. 60-1507(f)(1) (generally allowing habeas motions within
one year). But Strong never develops an argument that some other portion of his motion
sought habeas relief—such as showing ineffective assistance of counsel or otherwise
showing that he was being unlawfully held.
We conclude that Strong's motion was properly characterized as one to reconsider
the trial court's sentencing decision, which revoked Strong's probation and sent him to
prison. The district court had no jurisdiction to consider that motion. Our jurisdiction is
no greater, and we therefore dismiss Strong's appeal for lack of jurisdiction.
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