Mondragon v. State

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NOT DESIGNATED FOR PUBLICATION

No. 117,010

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

JOE N. MONDRAGON,
Appellant,

v.

STATE OF KANSAS,
Appellee.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; JAMES R. FLEETWOOD, judge. Opinion filed February 9,
2018. Affirmed.

Kristen B. Patty, of Wichita, for appellant.

Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before ARNOLD-BURGER, C.J., BUSER and SCHROEDER, JJ.

PER CURIAM: Joe N. Mondragon appeals the district court's summary dismissal of
his K.S.A. 60-1507 motion. The district court ruled, in relevant part, that Mondragon's
motion was procedurally barred because it was untimely and successive. On appeal,
Mondragon claims the district court erred because it failed to liberally construe his
pleading as a motion to correct an illegal sentence under K.S.A. 22-3504.

Upon our review, we find the district court properly considered Mondragon's
pleading as a K.S.A. 60-1507 motion. Moreover, because Mondragon did not appeal or
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brief the district court's adverse finding that summary dismissal was proper due to the
untimely and successive nature of his K.S.A. 60-1507 motion, we hold this issue is
waived or abandoned on appeal. Accordingly, the district court's summary dismissal is
affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

In 2007, Mondragon was charged with rape of a child under the age of 14 in
violation of K.S.A. 2006 Supp. 21-3502(a)(2) and two counts of aggravated indecent
liberties with a child under the age of 14 in violation of K.S.A. 2006 Supp. 21-
3504(a)(3)(A). All three charges are off-grid person felonies. Although the caption of the
complaint stated that Mondragon was born in 1945, the body of the complaint did not
allege that Mondragon was 18 years or older at the time of the offenses.

Pursuant to a plea agreement, the State dismissed the rape charge and Mondragon
pled guilty to two counts of aggravated indecent liberties with a child under the age of 14.
Prior to sentencing, Mondragon filed a motion seeking a departure from the presumptive
sentences for his off-grid offenses. Mondragon argued that a departure was warranted, in
part, because he was 63 years of age and unlikely to reoffend. The district court denied
the departure motion and, in accordance with Jessica's Law—K.S.A. 2006 Supp. 21-
4643(a)(1), sentenced Mondragon to concurrent sentences of life imprisonment without
the possibility of parole for 25 years.

On direct appeal, Mondragon claimed the district court abused its discretion when
it denied his motion for a departure sentence, and he argued that his life sentences
constituted cruel and unusual punishment. The Kansas Supreme Court affirmed the
sentences on December 4, 2009. State v. Mondragon, 289 Kan. 1158, 1160-65, 220 P.3d
369 (2009).

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Subsequently, Mondragon filed a K.S.A. 60-1507 motion alleging ineffective
assistance of counsel regarding his guilty pleas, which was remanded for an evidentiary
hearing. Mondragon v. State, No. 106,902, 2013 WL 195489, at *1 (Kan. App. 2013)
(unpublished opinion). Ultimately, on March 13, 2015, we affirmed the denial of this
K.S.A. 60-1507 motion after the district court held an evidentiary hearing. Mondragon v.
State, No. 111,221, 2015 WL 1310810, at *1-2 (Kan. App. 2015) (unpublished opinion).
Our Supreme Court denied Mondragon's petition for review on September 23, 2015.

On April 1, 2016, Mondragon filed the motion that is the subject of this appeal. In
the motion, Mondragon contended that he received unconstitutionally ineffective
assistance of counsel on both his direct appeal and his first K.S.A. 60-1507 motion.
Mondragon asserted that his attorneys were ineffective for not arguing that the district
court lacked jurisdiction to sentence him for an off-grid offense because the State failed
to allege his age in either the complaint or the factual basis for his guilty pleas. For relief,
Mondragon sought an order vacating his current sentences and remanding to the district
court for resentencing as severity level 3 felonies. In support of his motion, Mondragon
filed a "Memorandum of Law in Support of K.S.A. 60-1507." Additionally, Mondragon
asserted that he demonstrated exceptional circumstances and manifest injustice which
overcame the successive and untimely nature of his second K.S.A. 60-1507 motion.

The district court summarily denied Mondragon's motion as untimely and
successive. The district court also found the issues raised by Mondragon should have
been raised on appeal, his motion impermissibly dealt with alleged trial errors, and the
motion was conclusory. Mondragon filed a motion for additional findings of fact and
conclusions of law, which the district court denied. Mondragon timely appeals.




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DISCUSSION

On appeal, Mondragon contends the district court failed to liberally construe his
pro se pleading as a motion to correct an illegal sentence under K.S.A. 22-3504. The
State counters that Mondragon's motion both in style and substance was a K.S.A. 60-
1507 motion.

We begin our analysis with a summary of our standards of review. "Whether a
district court correctly construed a pro se pleading is a question of law subject to de novo
review." State v. Ditges, 306 Kan. 454, 456, 394 P.3d 859 (2017). Additionally, when the
district court summarily denies a K.S.A. 60-1507 motion or a motion to correct illegal
sentence, this court applies a de novo standard of review to determine whether the
motion, files, and records of the case conclusively establish that the movant is not entitled
to relief. Sola-Morales v. State, 300 Kan. 875, 881, 335 P.3d 1162 (2014); State v. Lee,
304 Kan. 416, 417, 372 P.3d 415 (2016). Finally, whether a sentence is illegal within the
meaning of K.S.A. 22-3504 is a question of law over which an appellate court has
unlimited review. 304 Kan. at 417.

"Pro se pleadings are liberally construed, giving effect to the pleading's content
rather than the labels and forms used to articulate the defendant's arguments. A
defendant's failure to cite the correct statutory grounds for his or her claim is immaterial."
State v. Kelly, 291 Kan. 563, 565, 244 P.3d 639 (2010).

At the outset, Mondragon has not identified anywhere in the district court
proceedings wherein he asked the district court to construe his motion as a motion to
correct illegal sentence rather than a K.S.A. 60-1507 motion. On the contrary, at the
district court level, Mondragon's motion and memorandum of law were both, in form and
substance, pleadings filed in accordance with K.S.A. 60-1507. Mondragon's pro se
motion was typewritten on a form approved by Supreme Court Rule 183(e) (2018 Kan. S.
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Ct. R. 223) for K.S.A. 60-1507 motions. In his memorandum of law supporting the
motion, Mondragon repeatedly referenced the motion as one under K.S.A. 60-1507 in the
caption ("Memorandum of Law In Support of K.S.A. 60-1507 Motion") and in the body
of the pleading ("This is movant's second K.S.A. 60-1507 motion.").

Significantly, the substance of Mondragon's memorandum of law cited Kansas
rules ("Movant in this a second and successive K.S.A. 60-1507 motion must overcome
Kan. Sup. Ct. Rule 183(d).") and caselaw ("The rationale for the rule that a 60-1507
proceeding may not be used as a substitute for a direct appeal . . . . Long v. State, 2004
Kan. App. Unpub Lexis 310") which are particularly relevant and applicable only to
K.S.A. 60-1507 motions. Additionally, Mondragon's memorandum of law specifically
addressed the procedural bars of successiveness and untimeliness that relate specifically
to K.S.A. 60-1507 motions. See K.S.A. 2017 Supp. 60-1507(c) and (f).

Mondragon's framing of his legal argument in the memorandum of law was also
consistent with a K.S.A. 60-1507 motion. Although he asserted the district court erred by
imposing the off-grid sentences, he couched his claim as one of ineffective assistance of
counsel in violation of his constitutional rights. Such a claim is properly raised in a
K.S.A. 60-1507 motion. See, e.g., Robertson v. State, 288 Kan. 217, 221, 201 P.3d 691
(2009). But, on the contrary, "ineffective assistance of counsel claims do not fall within
the narrow definition of an illegal sentence." State v. Labrum, No. 114,892, 2016 WL
5344099, at *3 (Kan. App. 2016) (unpublished opinion), rev. denied 306 Kan. 1326
(2017).

Based on a plain reading of Mondragon's motion and memorandum of law we are
convinced that he intended to move the district court for relief pursuant to K.S.A. 60-
1507. Accordingly, the district court did not err by construing the motion as based on
K.S.A. 60-1507.
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Next, we consider the propriety of the district court's summary denial of
Mondragon's K.S.A. 60-1507 motion because it was untimely and successive.

There are two procedural bars which allow a district court to summarily dismiss a
K.S.A. 60-1507 motion. First, a defendant has one year from when a conviction becomes
final to file a motion under K.S.A. 60-1507. K.S.A. 2017 Supp. 60-1507(f)(1). This one-
year time limitation may be extended by the district court only to prevent a manifest
injustice. K.S.A. 2017 Supp. 60-1507(f)(2). Second, the sentencing court is not required
to entertain a second or successive K.S.A. 60-1507 motion for similar relief on behalf of
the same prisoner. State v. Trotter, 296 Kan. 898, 904, 295 P.3d 1039 (2013) (citing
K.S.A. 60-1507[c]).

As the State points out, although Mondragon addressed the untimeliness and
successiveness issues in the district court, on appeal he does not make any arguments
regarding these two procedural bars. This is a significant omission. A well-established
rule is that an issue not briefed by an appellant is deemed waived or abandoned. State v.
Logsdon, 304 Kan. 3, 29, 371 P.3d 836 (2016). Because Mondragon has abandoned any
arguments that the district court erred in summarily dismissing his K.S.A. 60-1507
motion, we affirm the district court's ruling.

Setting aside the procedural bars to our review of Mondragon's sentencing issue,
we briefly address the merits of Mondragon's argument and summarize our view that he
has not presented a valid legal basis for resentencing to severity level 3 felonies.

Mondragon's underlying assertion is that the district court was precluded from
imposing off-grid sentences because his age was not established at the time of his pleas.
In Kansas, the fact that the defendant is 18 years or older is an element of offenses
classified as off-grid felonies under Jessica's Law. See State v. Hernandez, 294 Kan. 200,
207, 273 P.3d 774 (2012); State v. Brown, 291 Kan. 646, 663, 244 P.3d 267 (2011). From
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this premise, Mondragon reasons that his sentences are illegal because there was no
jurisdiction to impose them since his age was not alleged in the complaint or established
in the factual basis for the plea.

Mondragon's jurisdictional argument fails, however, because "[a] charging
document's failure to include an element of a crime under the defining Kansas statute
does not deprive the court of subject matter jurisdiction to convict." State v. Dunn, 304
Kan. 773, 819-20, 375 P.3d 332 (2016). Additionally, an insufficient factual basis for a
plea does not eliminate a court's jurisdiction. State v. Longbine, No. 110,464, 2014 WL
5347344, at *6 (Kan. App. 2014) (unpublished opinion); State v. Easterling, No. 110,009,
2014 WL 1707992, at *3 (Kan. App. 2014) (unpublished opinion).

Under K.S.A. 2017 Supp. 22-3210(a)(4), a district court may accept a plea of
guilty when "the court is satisfied that there is a factual basis for the plea." "In
establishing a factual basis for the plea, the trial court must establish that all elements of
the crime charged are present." State v. Shaw, 259 Kan. 3, 7, 910 P.2d 809 (1996). The
factual basis for the plea may be satisfied by a charging document given or read to the
defendant which sets forth the factual details and essential elements of the crime charged.
259 Kan. at 10-11.

In this case, at the plea hearing, the district court read the charges contained in the
complaint to Mondragon, but it did not read his date of birth. However, our Supreme
Court in Shaw explained that every failure to strictly comply with the requirements of
K.S.A. 22-3210 does not require reversal. 259 Kan. at 13. Indeed, strict compliance may
be excused if the record shows that the defendant fully understood his or her rights and
was aware of the consequences of his or her plea. 259 Kan. 3, Syl. ¶¶ 4-5. This includes
the defendant having an intelligent understanding of the elements required to support a
plea and to knowingly plead to the crime. 259 Kan. at 8.

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The record is clear that any failure to mention Mondragon's age in the complaint or
the factual basis of the plea did not affect his understanding of the crimes charged or
consequences of his pleas. The following circumstances support the conclusion that
Mondragon was fully aware of the possibility he would receive life sentences as a result
of being an offender aged 18 years or older:

 The caption of the complaint listed Mondragon's year of birth as 1945; the
complaint listed the crimes as off-grid person felonies;
 the acknowledgment of rights form signed by Mondragon stated he was 62 years
of age, listed his crimes as off-grid felonies, and listed the appropriate sentencing
ranges for the off-grid level of the offenses;
 the plea agreement listed Mondragon's crimes as off-grid person felonies;
 at the plea hearing, the district court informed Mondragon that he was charged
with off-grid felonies and stated the correct sentencing ranges for the off-grid
level of the offenses; and
 Mondragon filed a motion for a departure sentence prior to sentencing in which
he expressly referred to his crimes as off-grid offenses under Jessica's Law and
acknowledged that he was 63 years of age.

Mondragon does not claim he was confused about what he pled guilty to or that he
misunderstood the consequences of his pleas. Our review of the record convinces us that
he understood his rights and was aware of the consequences of his pleas. Mondragon's
complaints are legally insufficient to warrant resentencing to severity level 3 felonies
given that he knowingly and voluntarily pled guilty to the off-grid versions of the crime.
See State v. Gomez, No. 107,936, 2013 WL 3970182, at *3-4 (Kan. App. 2013)
(unpublished opinion). Mondragon's sentences are not illegal.

Affirmed.