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State v. Williams10/8/2004
Submitted for summary disposition pursuant to K.S.A. 21-4721(g) and (h).
Kenneth Williams appeals from the denial of his motion to correct the sentence imposed following his conviction for reckless involuntary manslaughter. Finding no error, we affirm.
The record reflects that Williams was driving a car after drinking alcohol, when he struck a pedestrian in the early morning hours of June 16, 2002. The pedestrian, Neil Riggs, died from the blunt force trauma injuries he sustained from that accident. Williams was originally charged with involuntary manslaughter while driving under the influence, see K.S.A.2003 Supp. 21-3442, a severity level 4 person felony, and four misdemeanor charges. Thereafter, Williams pled no contest to an amended charge of reckless involuntary manslaughter in violation of K.S.A.2003 Supp. 21-3404(a), a severity level 5 person felony. The State agreed to dismiss the remaining charges and recommended the low number in the presumptive sentencing grid box.
Following his plea, Williams filed a motion for a durational and/or dispositional departure. A presentence investigation (PSI) report was prepared calculating Williams' criminal history score as an "A" based upon three prior adult person felony convictions and one prior juvenile person felony adjudication. Williams filed a written motion challenging some of the prior convictions, including one person felony conviction and a number of nonperson felony or misdemeanor convictions.
During the sentencing hearing, Williams' counsel admitted the PSI's criminal history score was correct. While counsel indicated there were some challenges to the list of prior convictions, none of the challenges would alter the A criminal history score. Williams also personally agreed that his criminal history score was A. After hearing arguments on Williams' departure motion, the court denied the same. The court imposed a sentence of 136 months' incarceration, the aggravated sentence within the presumptive grid box. Sentencing occurred on January 31, 2003.
In April 2003, Williams filed a pro se motion to modify his sentence. Williams' motion restated the issues raised in his departure motion and asserted his trial counsel had been ineffective by not informing him of the mens rea the State was required to prove in his case. After the State's written response, the trial court overruled this motion. No appeal from this decision was apparently pursued.
Undaunted, Williams filed a second pro se motion to correct or modify his sentence in July 2003. Williams contended he was not given an opportunity to view or challenge his criminal history score and that he should have been charged with a misdemeanor rather than a felony. The court overruled Williams' motion. The court also rejected the request for modification of the sentence finding that a presumptive sentence was imposed. Williams timely appealed from this decision.
On appeal, Williams was granted leave to proceed without briefing pursuant to Supreme Court Rule 7.041a (2003 Kan. Ct. R. Annot. 50). In his motion, Williams simply contends the sentencing court erred by including a prior conviction in his criminal history score and that he was not given the proper opportunity to contest his criminal history score. The State has filed no response to Williams' motion.
**2 When a motion to correct an illegal sentence is filed, the district court must make a preliminary examination of the motion and record to determine whether substantial questions of law or fact are raised. If no substantial questions are raised, the court may summarily deny the motion. State v. Davis, 271 Kan. 892, 894, 26 P.3d 681 (2001). The district court's decision whether to hold an evidentiary hearing on a motion to correct an illegal sentence is subject to an a
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