Opinion
No. 107,582.
2013-05-3
STATE of Kansas, Appellee, v. Anthony HOOKS, Appellant.
Appeal from Sedgwick District Court; Anthony J. Powell, Judge. Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellant. Julie A. Koon, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Anthony J. Powell, Judge.
Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellant. Julie A. Koon, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., BUSER, J., and ERNEST L. JOHNSON, District Judge Retired, assigned.
MEMORANDUM OPINION
PER CURIAM.
Anthony T. Hooks appeals from the denial of his motion to correct illegal sentence. Hooks contends the district court lacked jurisdiction to accept his guilty pleas and find him guilty because there was an insufficient factual basis to support the crimes of conviction. He also argues that the district court improperly included an uncounseled person misdemeanor in the calculation of his criminal history score. For the reasons discussed below we affirm the district court's rulings.
Factual and Procedural Background
On October 8, 2005, a brawl occurred in a bar in Wichita, Kansas. As a result, Knocko Thompson was injured and transported to a local hospital. Hooks and two other persons were charged in the incident. In particular, Hooks was charged with the aggravated battery of Thompson in violation of K.S.A. 21–3414(a)(1)(A) and possession of cocaine in violation of K.S.A. 65–4160(a).
During the trial, on February 15, 2006, after the State presented the testimony of four employees of the bar and three police officers involved in the investigation, Hooks informed the trial court that he wished to plead no contest to the charges. In return for the pleas, the State agreed to recommend the low presumptive sentencing in the sentencing guidelines grid box and to ask for concurrent sentences. The trial court thoroughly questioned Hooks about his understanding of his rights and advised him of the potential sentences. In response, Hooks assured the trial court that he understood his pleas and his decision to plead was made freely and voluntarily. To establish the factual basis for the pleas, the State proffered the testimony already presented by the witnesses and a summary of Thompson's anticipated testimony detailing his injuries, hospitalization, and on-going physical limitations caused by the attack. The district court accepted Hooks' pleas and found him guilty as charged.
Sentencing occurred on April 13, 2006. At sentencing, there was a prolonged discussion regarding Hooks' lengthy criminal history. Hooks challenged various prior convictions which he said were dismissed or for which he claimed he was not involved. After striking various convictions from consideration, the district court found Hooks' criminal history score was A based on two prior person felony convictions and the aggregation of three prior person misdemeanor convictions. As a result, the district court sentenced Hooks to a controlling sentence of 154 months' incarceration. Hooks timely appealed.
Less than 1 month after sentencing, Hooks filed a pro se motion to withdraw his pleas and/or correct illegal sentences. In the motion, Hooks asserted that he entered the plea agreement based on the representation that his criminal history score was F and that he faced a term of 47 months in prison. Hooks claimed the State breached the plea agreement by enhancing his criminal history score to A by converting the three misdemeanor battery convictions to a person felony. The district court disagreed and found the pleas were knowing and voluntary and denied the motion. Hooks did not appeal from this adverse ruling.
About this same time, Hooks docketed his direct appeal with the Court of Appeals. During the appeal, Hooks was permitted to file a motion for summary disposition in lieu of briefing. In an unpublished opinion, our court affirmed the length of Hooks' sentence and rejected his claim that the sentences violated Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). State v. Hooks, No. 96,740, unpublished opinion filed April 27, 2007, rev. denied 284 Kan. 948 (2007) ( Hooks I ). However, the court did vacate the assessment of attorney fees. Slip op. at 2–3. Our Supreme Court denied review.
While Hooks I was pending, Hooks filed another motion to withdraw his pleas. In this motion, Hooks claimed he was denied effective assistance of counsel during the plea hearing because counsel advised him that he would receive a controlling sentence of 47 months. Hooks claimed his attorney was ineffective for improperly informing him that he had no prior felonies and/or by failing to inform him that three of his prior misdemeanors could be aggregated to constitute a person felony. After a hearing, the district court again denied Hooks' motion. Hooks appealed.
This second appeal was docketed in our court. On appeal, Hooks argued that the State breached the plea agreement. He also asserted he was entitled to an evidentiary hearing on his motion. In August 2008, our court affirmed the district court's denial of relief. State v. Hooks, Case No. 98,596, unpublished opinion filed August 22, 2008, rev. denied 287 Kan. 767 (2008) ( Hooks II ).
About 3 years later, in October 2011, Hooks filed the present motion to correct illegal sentence. In this motion, Hooks posited two theories. First, he argued his sentences were illegal because one of the misdemeanor convictions used to aggregate with two other misdemeanors to constitute a person felony was an uncounseled misdemeanor. Second, Hooks claimed the district court improperly convicted him upon his pleas of no contest to the charges because there was no evidence presented during the plea hearing that he possessed cocaine or that he was the person who actually attacked Thompson. Because of this “inadequate factual” basis for his pleas, Hooks contended the district court lacked jurisdiction to sentence him. Finally, Hooks contended his pleas were not voluntarily or understandingly made because of the lack of a proper factual basis.
During the hearing on Hooks' motion, his attorney emphasized that Hooks was not seeking to withdraw his pleas, but was seeking a finding that his pleas were “legally invalid” and should not have been accepted by the court. The district court denied the motion. Hooks timely appealed.
Insufficient Factual Basis to Support the Findings of Guilt
On appeal, Hooks reasserts his claim that the convictions resulting from his no contest pleas were invalid because there was an insufficient factual basis to support the convictions. Hooks argues that because the district court failed to comply with K.S.A. 22–3210(4), his pleas were not voluntarily or knowingly made. In particular, Hooks claims that the deficiency in the factual basis deprived the district court of jurisdiction to “proceed to conviction and sentencing.” Of note, Hooks does not seek to withdraw his pleas, but asks for a determination that the pleas were invalid.
A sentence is illegal within the meaning of K.S.A. 22–3504 if the sentence was imposed by a court without jurisdiction, if the sentence does not conform to the statutory provision, either in character or the term of the punishment authorized, or if the sentence is ambiguous with regard to the time and manner in which it is to be served. State v. Gracey, 288 Kan. 252, 261, 200 P.3d 1275 (2009). Whether a sentence is illegal within the meaning of K.S.A. 22–3504(1) is a question of law over which an appellate court has unlimited review. State v. Jones, 292 Kan. 910, 914, 257 P.3d 268 (2011), cert. denied––– U.S. ––––, 132 S.Ct. 1097, 181 L.Ed.2d 985 (2012). Our Supreme Court has recognized the narrow applicability of K.S.A. 22–3504(1). State v. Gayden, 281 Kan. 290, 293, 130 P.3d 108 (2006).
Despite the claim that he is not seeking to withdraw his pleas, Hooks is clearly attempting to invalidate his convictions. Although he argues that his sentences were imposed “without jurisdiction,” Hooks cites no legal authority that a plea which supposedly does not meet the requirements of K.S.A. 22–3210 deprives the district court of jurisdiction over the defendant or the charges. We know of no such legal precedent.
Regardless of semantics, Hooks' attempt at setting aside his convictions is improper. K.S.A. 22–3504 does not create a vehicle for a defendant to collaterally challenge a conviction. See State v. Sims, 294 Kan. 821, 280 P.3d 780 (2012) (motion to correct an illegal sentence improper vehicle to dispute whether the complaint was defective); State v. Edwards, 281 Kan. 1334, 1341, 135 P.3d 1251 (2006) (claim convictions were multiplicitious does not establish a jurisdictional defect and cannot be challenged in a motion to correct illegal sentence). Thus, Hooks' attempt to use K.S.A. 22–3504 to challenge the validity of his pleas is without any legal basis or merit.
There is a second basis upon which to uphold the ruling of the district court. Hooks has twice before attempted to challenge his no contest pleas by contending they were not knowingly and voluntarily made. Although his prior motions focused on alleged misrepresentations or misunderstandings regarding his criminal history score, he had every opportunity to litigate the question of the sufficiency of the factual basis for the pleas. Hooks may not use a motion under K.S.A. 22–3504 to revive appellate issues adversely determined or abandoned in prior appeals. State v. Johnson, 269 Kan. 594, 602, 7 P.3d 294 (2000). Hooks' underlying argument is barred by the doctrine of res judicata, which applies when issues were previously raised and decided on the merits, or could have been presented but were not. State v. Martin, 294 Kan. 638, 640–41, 279 P.3d 704 (2012).
For both of these reasons, the district court's order denying Hooks' renewed attempt to invalidate his pleas was not error.
Aggregation of Misdemeanors in Calculation of Criminal History Score
In his second issue on appeal, Hooks contends his sentences are illegal because the district court improperly aggregated three misdemeanor battery convictions to count as a person felony. Hooks argues that he was not represented by counsel during one of these convictions and that pursuant to State v. Youngblood, 288 Kan. 659, 670, 206 P.3d 518 (2008), the conviction was not properly included in his criminal history score.
Hooks claims the district court erred in denying his motion to correct an illegal sentence because it did not hold an evidentiary hearing. Hooks' motion was drafted and argued by counsel. In the motion, Hooks challenged a misdemeanor battery conviction from municipal court Case No. 97CM6300, claiming the record failed to establish he was represented by counsel in this case. Hooks reasserts this argument on appeal, emphasizing the need for an evidentiary hearing based upon State v. Neal, 292 Kan. 625, 258 P.3d 365 (2011).
Kansas appellate courts adjudicate motions to correct illegal sentences under K.S.A. 22–3504, in a similar way to K.S.A. 60–1507 motions. State v. Hoge, 283 Kan. 219, 223, 150 P.3d 905 (2007). When the district court denies relief based solely on counsel's legal argument at a nonevidentiary hearing and the court's review of the files and records of the case, an appellate court is in as good a position as the district court to consider the merits. Thus, appellate review is de novo. See Barr v. State, 287 Kan. 190, 196, 196 P.3d 357 (2008) (citing Bellamy v. State, 285 Kan. 346, 354, 172 P.3d 10 [2007] ).
As noted earlier, Hooks relies on Neal to support his argument. The present case shares some similarities with Neal. As in Neal, the district court reviewed, de novo, whether Hooks' motion raised a substantial issue of fact entitling him to an evidentiary hearing. That substantial issue of fact was whether Hooks was represented by counsel in a prior municipal proceeding. Likewise, Hooks in this case bears the burden of proving that he was not represented by counsel during the municipal proceeding. Neal, 292 Kan. at 633, 258 P.3d 365. Moreover, both cases involved a conviction from the Wichita municipal court with indications that the defendant was represented by the “CPD,” a reference to the city public defender.
There are, however, significant distinguishing factors between Hooks' claims and those discussed in Neal. First, Hooks' motion was filed by counsel, not pro se. With counsel's involvement from the beginning, Hooks was not unable “to fully pursue the proof of no legal representation” in the municipal court. See Neal, 292 Kan. at 636, 258 P.3d 365. Of particular importance, however, Neal's motion included an affirmative, notarized statement by the defendant that two of his prior misdemeanor convictions were uncounseled. In this case, Hooks' attorney merely alleged that it was “anticipated that Mr. Hooks would testify that he did not believe he had counsel in that case and that he did not recall signing a formal waiver.” (Emphasis added.) This rather weak assertion was undermined at the hearing on the motion, when counsel relied on the original sentencing transcript to assert that Hooks did not remember the particular misdemeanor case and, in fact, he believed it had been dismissed. Our review of the sentencing hearing transcript confirms that, at that time, Hooks did not claim that this misdemeanor conviction was uncounseled, just that it had been dismissed. In rejecting Hooks' assertion after considering all the evidence, the district judge told Hooks his “memory is a little faulty as to these things” and that “unfortunately, I can't really rely upon your memory.”
There is another critical difference between this case and Neal . Unlike Neal, the journal entry of Hooks' municipal conviction not only identifies the defense attorney at the top of the page as “CPD,” but it also indicates “Date Entered” as “6–3–97” immediately below the attorney reference. In addition, the journal entry also has the notation of CPD adjacent to the reference for the first hearing on June 3, 1997. There were two subsequent hearings on June 17 and June 24, 1997, and an apparent sentencing hearing on November 13, 1997.
Hooks was also involved in another Wichita municipal court case (Case No. 96–C–8745) at the same time as the misdemeanor case at issue here, and the CPD entered its appearance as defense counsel on “6–3–97.” That journal entry also reflects Hooks was represented by the CPD at a hearing on June 17, 1997, but that the “CPD could not meet W/D today,” and both cases had the next hearing date of June 24, 1997. Considering all the circumstances together, the documents reviewed by the district court at the hearing on the motion to correct illegal sentence show that Hooks was represented by counsel in both misdemeanor cases at the time he was found guilty.
In summary, Hooks has failed to establish there is a factual issue that warrants an evidentiary hearing. The documents presented by the State reflect that Hooks was represented by the city public defender during his municipal court proceeding. Hooks has never affirmatively asserted that he was not represented by counsel. The only information in the record is that Hooks does not remember the conviction at all or thought that the case had been dismissed.
In essence, Hooks is demanding that the State prove he was represented by counsel. However, pursuant to Neal, Hooks has the ultimate burden of proving the misdemeanor conviction was uncounseied. Neal, 292 Kan. at 634, 258 P.3d 365 (citing State v. Jones, 272 Kan. 674, 681, 35 P.3d 887 [2001] ). Without an affirmative assertion that the conviction was uncounseied, there is no disputed evidentiary issue in light of the documents contained in the record. Cf. Swenson v. State, 284 Kan. 931, 938, 169 P.3d 298 (2007) (“[A] movant has the burden to prove his or her K.S.A. 60–1507 motion warrants an evidentiary hearing; the movant must make more than conclusory contentions and must state an evidentiary basis in support of the claims or an evidentiary basis must appear in the record.”).
Affirmed.