Opinion
No. 110,941.
2015-02-6
Antonio Denell HOPKINS, Appellant, v. STATE of Kansas, Appellee.
Appeal from Wyandotte District Court; R. Wayne Lampson, Judge.Gerald E. Wells, of Jerry Wells Attorney–at–Law, of Lawrence, for appellant.Jennifer S. Tatum, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Wyandotte District Court; R. Wayne Lampson, Judge.
Gerald E. Wells, of Jerry Wells Attorney–at–Law, of Lawrence, for appellant. Jennifer S. Tatum, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Before POWELL, P.J., HILL and SCHROEDER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Antonio Hopkins asks us to overturn the district court's summary dismissal of his K.S.A. 60–1507 habeas corpus motion. Because the issues Hopkins raises in his motion could have been raised in his direct appeal, they are barred by the doctrine of res judicata. We affirm.
The court sentenced Hopkins to a 155–month prison sentence after he was convicted of rape. A panel of this court affirmed Hopkins' conviction. State v. Hopkins, No. 102, 982, 2011 WL 2793228 (Kan.App.2011) (unpublished opinion), rev. denied 293 Kan. 1110 (2011). In affirming, the panel addressed the following three issues: (1) there was no lesser included offense instruction of attempted rape; (2) the district court's exclusion of evidence of the victim's prior arrest for prostitution; and (3) the admission of two photographs showing Hopkins wearing jail clothing and, in one photograph, wearing a handcuff. 2011 WL 2793228, at *2–7. The Kansas Supreme Court subsequently denied Hopkins' petition for review.
Hopkins timely filed a K.S.A. 60–1507 motion. The motion alleged: (1) The State deliberately withheld exculpatory evidence supporting Hopkins' theory of defense, despite his decision not to testify at trial; (2) the State impermissibly shifted the burden of proof to Hopkins; and (3) the district court abused its discretion by excluding evidence of the victim's prior arrest for prostitution. The district court summarily dismissed Hopkins' K.S.A. 60–1507 motion for failure to state a claim for which relief could be granted. This appeal followed.
A district court has three options when resolving a K.S.A. 60–1507 motion. First, the district court may determine that the motion, files, and records of the case conclusively show that the movant is entitled to no relief and summarily deny the motion. Second, the district court may determine that the motion raises a potentially substantial issue or issues of fact, supported by the files and record, and hold a preliminary hearing. Third, the district court may determine from the motion, files, record, or preliminary hearing that a substantial issue or issues have been raised, requiring a full evidentiary hearing. Fischer v. State, 296 Kan. 808, 822–23, 295 P.3d 560 (2013).
Where, as here, the district court summarily dismisses a K.S.A. 60–1507 motion, we conduct a de novo review to determine whether the motion, files, and records of the case conclusively establish that the movant is not entitled to relief. See Edgar v. State, 294 Kan. 828, 836, 283 P.3d 152 (2012).
Hopkins concedes that the district court properly ruled the third issue—the exclusion of the victim's prior arrest for prostitution—was barred by res judicata and is thereby withdrawn from this court's consideration. Hopkins makes no effort in his brief to argue the remaining two issues from his motion established grounds for relief. See Supreme Court Rule 183(g) (2014 Kan. Ct. R. Annot. 285). An issue not briefed by the appellant is deemed waived and abandoned. State v. Boleyn, 297 Kan. 610, 633, 303 P.3d 680(2013).
Instead, Hopkins limits his argument on appeal to asserting that the district court failed to make adequate findings as required under Supreme Court Rule 183(j) (2014 Kan. Ct. R. Annot. 287) “on all issues presented.” Specifically, Hopkins argues the district court did not make any findings of fact and conclusions of law on the first two issues in his motion, but did so only on the third issue. Hopkins asserts that the district court's failure to comply with Rule 183(j) requires this court to remand the case for findings of fact and conclusions of law on Issues 1 and 2. We disagree.
The Kansas Supreme Court has found that Rule 183(j) requires the district court to make findings of fact and conclusions of law only after the district court holds a preliminary or full evidentiary hearing on all issues presented in a K.S.A. 60–1507 motion. See Bellamy v. State, 285 Kan. 346, 354, 172 P.3d 10 (2007). Here, the district court summarily dismissed Hopkins' K.S.A. 60–1507 motion. We are also unmoved by Hopkins' argument because he did not object on any basis below to the district court's alleged inadequate findings of fact or conclusions of law, thus failing to preserve the issue for appeal. See State v. Edwards, 290 Kan. 330, Syl. ¶ 5, 226 P.3d 1285 (2010). In the absence of such an objection, this court will presume the district court found all facts necessary to support its judgment; omissions in findings will not be considered on appeal. Gilkey v. State, 31 Kan.App.2d 77, 77–78, 60 P.3d 351, rev. denied 275 Kan. 963 (2003).
Granted, the district court's order is problematic for several reasons. First, the order did not specifically mention the first two issues raised in Hopkins' motion. Second, the order is not clear when it refers to the following basis supporting dismissal: Hopkins' issue that “the evidence introduced at trial was false” and should not have been admitted was one of the issues this court rejected on Hopkins' direct appeal. As mentioned, the only evidentiary issues this court considered concerned the exclusion of evidence of the victim's prior arrest for prostitution and the admission of two photographs. Hopkins, 2011 WL 2793228, at *2–7. Third, the district court found that since Hopkins “had the review of the issues concerning the admissibility of evidence at the trial,” this court's “decisions” were res judicata to those issues. (Emphasis added.) In doing so, the district court seems to suggest this court addressed more than one of the issues Hopkins raised in his motion. However, even the State agrees that the first two issues in Hopkins' motion were not raised on direct appeal.
Even so, Hopkins' remaining two issues allege trial errors and are barred by res judicata. Despite the lack of clarity in the district court's order, the district court, in dismissing the motion, nevertheless correctly noted that the doctrine of res judicata applies on “all issues which are presented or could be presented.” (Emphasis added.) Where an appeal is taken from a conviction or sentence imposed, the judgment of the appellate court is res judicata as to all issues actually raised. Issues that could have been raised, but were not, are deemed waived. Drach v. Bruce, 281 Kan. 1058, 1079, 136 P.3d 390 (2006), cert. denied 549 U.S. 1278, 127 S.Ct. 1829, 167 L.Ed.2d 317 (2007).
Res judicata consists of four elements: (1) same claim; (2) same parties; (3) claims were or could have been raised; and (4) a final judgment on the merits. State v. Martin, 294 Kan. 638, 640–41, 279 P.3d 704 (2012), cert. denied ––– U.S. ––––, 134 S.Ct. 114, 187 L.Ed.2d 83 (2013). Based on the record, all four elements of res judicata are satisfied here. The district court's summary dismissal of Hopkins' K.S.A. 60–1507 motion is affirmed.
Affirmed.