Opinion
No. 110,050.
2014-08-15
STATE of Kansas, Appellee, v. Jerome LEWIS, Appellant.
Appeal from Sedgwick District Court; Warren M. Wilbert, Judge. Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellant. Matt J. Moloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Modified Opinion Filed Oct. 27, 2014.
Appeal from Sedgwick District Court; Warren M. Wilbert, Judge.
Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellant. Matt J. Moloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Jerome E. Lewis appeals from the district court's denial of his second motion to correct an illegal sentence. Lewis had demanded proof of all his prior convictions at his original sentencing. After his direct appeal, he filed a motion to correct his sentence, claiming a 1985 juvenile conviction for residential burglary never existed. The district court summarily denied Lewis' arguments and this court affirmed. State v. Lewis, No. 99,180, 2008 WL 4849677 (Kan.App.2008) (unpublished opinion). Lewis' present motion challenges his sentence, claiming the district court improperly treated his 1985 burglary conviction as a person felony. The court denied the motion, finding it was successive and barred by res judicata. Lewis appeals. We affirm.
In July 1997, Lewis pled guilty to one count of rape. The victim was alleged to have been 13 years old. In exchange for his plea, the State agreed not to seek an upward durational departure sentence and Lewis was free to seek both a downward dispositional and downward departure sentence.
A presentence investigation (PSI) report was prepared. It reflected Lewis had two petty theft and two failure to appear convictions, as well as a 1990 robbery conviction and a 1985 juvenile adjudication for residential burglary. In his motion for a departure sentence, Lewis argued it was significant that the “residential burglary” was committed when he was 12 years old. Lewis also filed an objection to his criminal history and demanded the State present certified copies of the journal entries from the 1985 adjudication and 1990 conviction. Both these motions were denied.
Shortly before his sentencing hearing, Lewis filed a motion to withdraw his guilty plea. After hearing testimony from Lewis and his prior attorney, the district court denied the motion.
In September 1997, the district court determined that Lewis' criminal history score was B and added to the criminal history list a prior aggravated weapons conviction from a 1993 case. The court imposed the mitigated gridbox sentence of 692 months' incarceration and imposed 36 months' postrelease supervision.
Lewis timely appealed from his conviction, the denial of his motion to withdraw his plea, and all other adverse rulings. He challenged the district court's denial of his motion to withdraw his guilty plea and argued his sentence was unconstitutionally cruel and unusual punishment. This court rejected all of Lewis' arguments, and the Supreme Court denied review. See State v. Lewis, 27 Kan.App.2d 134, 998 P.3d 1141, rev. denied 269 Kan. 938 (2000). Lewis subsequently filed a motion under K.S.A. 60–1507 claiming ineffective assistance of counsel in connection with these same issues. The district court denied Lewis relief, and this court affirmed. Lewis v. State, No. 88,163, unpublished opinion filed Feb. 28, 2003.
In May 2002, Lewis filed a pro se motion to correct an illegal sentence and an objection to criminal history classification. Specifically, Lewis alleged the PSI report incorrectly determined his criminal history score was B based upon a prior burglary conviction. Lewis asserted that particular burglary conviction never existed. He also argued the sentencing court “improperly applied the person felony conviction” and thereby imposed the wrong sentence. Finally, Lewis asserted the State never produced a journal entry from this prior conviction to establish its existence. In response, the State asserted that Lewis' criminal history score was properly determined under K.S.A. 21–4714(f) based upon an undisputed criminal history calculation in another case. The court again rejected Lewis' arguments. Lewis timely appealed.
On appeal, this court again rejected Lewis' claims. The court noted Lewis' criminal history had been established at his original sentencing pursuant to Kansas law when the court relied upon a PSI report filed in another case. This court also recognized that Lewis did not challenge his criminal history score on direct appeal, even though he had objected to the score during the sentencing hearing. Accordingly, this court found the doctrine of res judicata barred Lewis' claims and the district court's summary dismissal of Lewis' claim was correct Lewis, 2008 WL 4849677, at *1.
In January 2013, Lewis filed his second motion to correct an illegal sentence. In his motion, Lewis alleged the PSI report contained a clerical mistake in classifying his 1985 burglary conviction as a person felony and, thus, his sentence was illegal. Lewis noted that in 1985 the burglary statute did not distinguish between person and nonperson felonies. Lewis attached a copy of the charging document from his 1985 conviction which averred that he entered “into a building, to wit: a house located at 2626 N. Minnesota, Wichita.” He asserted the reference in the complaint to a “building” or “house” did not establish the building was a “dwelling” within the meaning of post-sentencing guidelines statutes. The court again rejected Lewis' argument and found his motion successive and barred by the doctrine of res judicata.
Lewis timely appealed.
On appeal, Lewis first contends the district court erred in denying his motion to correct an illegal sentence based upon res judicata. He contends that although he challenged his sentence on other grounds in his direct appeal and challenged the use of the burglary conviction on other grounds in his first motion under K.S.A. 22–3504, he has not previously raised this particular issue. Specifically, he challenges the classification of his 1985 burglary conviction as a person felony for purposes of determining his criminal history score. He argues that the 1985 burglary statute did not distinguish between person and nonperson burglaries and it was illegal to treat his conviction as a person felony.
The district court summarily denied Lewis' second motion to correct an illegal sentence. For summary denials, the appellate court conducts a de novo review to determine whether the motion, files, and records of the case conclusively establish that the movant is not entitled to any relief. State v. Kelly, 291 Kan. 868, 872, 248 P.3d 1282 (2011). Similarly, the issue of whether the doctrine of res judicata bars a successive claim is a question of law over which the appellate court has unlimited review. Kelly, 291 Kan. at 874.
Res judicata applies when four elements are present: “ ‘(1) same claim; (2) same parties; (3) claims were or could have been raised; and (4) a final judgment on the merits.’ [Citation omitted].” (Emphasis added.) State v. Martin, 294 Kan. 638, 641, 279 P.3d 704 (2012), cert. denied 134 S.Ct. 114 (2013). The doctrine applies to issues raised and decided in prior 60–1507 motions or motions to correct an illegal sentence, as well as issues that could have been presented but were not. 294 Kan. at 640–41.
In this case, Lewis challenged the use of his 1985 burglary conviction in his criminal history score in the district court at sentencing and again in his 2002 motion to correct an illegal sentence. Although the challenges raised at those times were not identical, Lewis could have raised the current issue in those actions. Accordingly, the district court correctly determined that res judicata barred Lewis' claims.
We note that Lewis filed a letter of supplemental authority under Rule 6.09(b) (2013 Kan. R. Annot. 50) on June 30, 2014, citing State v. Murdock, 299 Kan. 312, 323 P.3d 846 (2014) (filed May 2, 2014) and another Rule 6.09(b) letter on July 9, 2014, citing State v. Dickey, 50 Kan.App.2d ––––, 329 P.3d 1230 (2014). However, the letter citing Murdock was not timely filed under Rule 6.09(b)(1) because it was not filed by June 4, 2014 (14 days before June 18, 2014—day of docket on which the no-argument case was set. The second letter citing Dickey was timely filed under the rule. See Rule 6.09(b)(1)(B).
However, we are not persuaded that either Murdock or Dickey apply in this case. Unlike the present case, Dickey involved a direct appeal that was pending at the time Murdock was decided. In addition, the parties in Dickey have filed a petition and cross-petition for review with the Kansas Supreme Court; therefore, the Dickey decision is not yet final.
In contrast, this appeal is a collateral challenge to Lewis' sentence that became final in 2000 after his direct appeal. We find no authority to support the premise that the Supreme Court would apply its Murdock ruling retroactively to criminal cases already final. Cf. State v. Mitchell, 297 Kan. 118, 124–25, 298 P.3d 349 (2013) (decision in State v. Berry, 92 Kan. 493, 254 P.3d 1276 (2011), pertaining to lesser included offenses of felony murder does not retroactively apply to convictions already final); State v. Fischer, 288 Kan. 470, 475, 203 P.3d 1269 (2009) (limiting effect of opinion on juvenile's right to jury trial to cases pending on direct review or not yet final on the date of filing of Fischer ).
Accordingly, we affirm.
Affirmed.