State v. Douglas

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NOT DESIGNATED FOR PUBLICATION

Nos. 112,458
112,459
112,460

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

ANTHONY D. DOUGLAS,
Appellant.

MEMORANDUM OPINION


Appeal from Sedgwick District Court; BRUCE C. BROWN, judge. Opinion filed November 6,
2015. Affirmed.

Kimberly Streit Vogelsberg, of Kansas Appellate Defender Office, for appellant.

Boyd K. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before HILL, P.J., PIERRON and ARNOLD-BURGER, JJ.

Per Curiam: Anthony Douglas entered no contest pleas in three felony cases: No.
13-CR-308 for unlawfully obtaining and distributing a prescription-only drug; No. 13-
CR-1851 for theft after a prior conviction; and No. 13-CR-2369 for driving under the
influence (DUI).

On April 10, 2014, the district court denied Douglas' motion for departure
sentences due to community concerns. The court noted the court system had been trying
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to intervene in Douglas' life since 1978, and Douglas had decided not to avail himself of
the resources made available to him. The judge stated, "I've got to protect the community.
So I'll deny the motion to depart on the basis of a lack of substantial and compelling
reasons." The court sentenced Douglas to 17 months in case No. 13-CR-308, to 17
months in case No. 13-CR-1851, and to 12 months in case No. 13-CR-2369. These
sentences were to run consecutively for a total of 46 months' imprisonment and each
sentence was the aggravated number in Douglas' box on the sentencing grid, as
recommended by the State. Douglas was ordered to pay the minimum fine of $2,500. On
the evening before sentencing, Douglas had been arrested for a DUI and a criminal threat,
but the judge clarified he was not considering this event in the sentencing decision: "I'm
not considering that because I don't have any idea what did or didn't happen, so it's really
irrelevant."

On July 15, 2014, Douglas filed a pro se motion entitled "Motion to Recuse" and
cited K.S.A. 20-311d for a change of district court judge. Douglas claimed the judge had
acted in an unethical and biased manner and prejudiced him when the judge had allowed
the prosecutor to make the decision as to what type of fines and postimprisonment
supervision would be imposed. Douglas asked the judge to recuse himself in the interest
of justice and requested all other relief the court deemed equitable and just. The State
responded that since there were no matters pending in the district court, Douglas' motion
was moot. On August 7, 2014, the court agreed and denied the motion as moot and
without merit.

Douglas filed a timely notice of appeal.

Douglas argues the district court abused its discretion and should have liberally
construed his pro se motion as a motion for resentencing. He states his motion was not
moot because its resolution would determine whether the court's sentencing was
prejudicial, whether it affected his due process rights, and whether he should be
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resentenced. The State asserts that the motion to recuse was correctly determined as moot
because there were no future matters pending before the district court. The State reasons
that even if the motion were construed as a motion for resentencing, Douglas would not
have been entitled to relief because the court lacked jurisdiction to resentence him on his
felony convictions.

Whether a district court erred in its treatment of a postsentencing motion is subject
to de novo review. State v. Jones, 279 Kan. 809, 810, 112 P.3d 123 (2005). The
determination of whether the court correctly construed such a pleading is a question of
law also subject to unlimited review. State v. Kelly, 291 Kan. 563, 565, 244 P.3d 639
(2010). A district court may determine that a motion is moot when the controversy has
been resolved and the interests or rights of either party will not be furthered. State v.
Hatchel, 31 Kan. App. 2d 725, 726, 71 P.3d 1191 (2003). A motion is moot even if the
appellate court determines that a district judge should have recused himself or herself if
there is no effect on the resolution of the case or the rights of the defendant. Laubach v.
Roberts, 32 Kan. App. 2d 863, 873, 90 P.3d 961 (2004).

Pro se pleadings are liberally construed where effect is given to "the pleading's
content rather than the labels and forms used to articulate the defendant's arguments."
Kelly, 291 Kan. at 565. Failure to cite the correct statutory grounds is immaterial. 291
Kan. at 565. In Kelly, the defendant filed a pro se motion entitled "Motion to Withdraw
Plea and to Correct Illegal Sentence and to Vacate Sentence," but the district court
incorrectly construed the motion as claim of ineffective assistance of counsel. The Kelly
court determined that the defendant's motion was a motion to withdraw his plea due to
the content of his argument. 291 Kan. at 566.

However, in State v. Gilbert, 299 Kan. 797, 797-98, 326 P.3d 1060 (2014), the
defendant filed a pro se pleading: "Motion to Correct Illegal Sentence," and the district
court correctly construed his pleading as a motion to correct an illegal sentence rather
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than a claim under K.S.A. 60-1507(a). The Gilbert court acknowledged a liberal
construction of pro se pleadings but concluded: "Liberal rules of construction cannot
transform the reality of a pleading's content or the arguments being advanced, even when
a litigant is pro se." 299 Kan. at 798. The content of the defendant's motion specifically
cited and applied rules for illegal sentences and did not allege a manifest injustice
argument required under K.S.A. 60-1507. 299 Kan. at 798.

Here, a liberal construction of Douglas' motion does not create a motion for
resentencing. Unlike in Kelly, the title of Douglas' motion matches the interpretation of
the district court as a motion to recuse, and Douglas' statutory citation of K.S.A. 20-311d
matches the title of his motion. This case is similar to Gilbert where Douglas' content,
arguments, and citation of K.S.A. 20-311d supported a motion to recuse. Douglas
asserted in his motion that the district court judge had acted in an unethical, biased, and
prejudicial manner. He sought the motion to recuse in the interest of justice, with the
relief that the court deemed equitable and just. Douglas was not more specific in what
kind of relief he sought and did not mention the issue of resentencing. His arguments
aligned with K.S.A. 20-311d, which states the grounds for a change of judge due to
"personal bias, prejudice or interest of the judge." Douglas argued these grounds in his
motion without reference to any form of resentencing. Therefore, allowing a motion for
resentencing would transform the reality of his motion and the content of his argument.
See 299 Kan. at 798.

If a motion for resentencing were considered, it is possible the motion would not
be moot because a hearing would resolve prejudicial and due process issues in relation to
sentencing. Yet, a legally imposed sentence for a felony conviction, specifically a DUI,
cannot be modified unless for arithmetic or clerical errors. State v. Anthony, 274 Kan.
998, 58 P.3d 742 (2002). Douglas did not assert that his sentence was illegal or that the
district court lacked jurisdiction to modify his legal sentence. A motion for resentencing
would likely have been moot.
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The district court did not err by treating Douglas' posttrial motion as a motion to
recuse due to the content and substance of the motion. His motion is therefore moot
because a recusal of the district court after sentencing would not affect the already
determined controversy.

Since this is dispositive of this matter, we will not address other issues that have
been raised.

Affirmed.