Opinion
No. 110,591.
2014-10-10
Julian L. RUSSELL, Appellant, v. STATE of Kansas, Appellee.
Appeal from Sedgwick District Court; James R. Fleetwood, Judge.Michael P. Whalen and Krystle M.S. Dalke, 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.
Appeal from Sedgwick District Court; James R. Fleetwood, Judge.
Michael P. Whalen and Krystle M.S. Dalke, 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.
Before MALONE, C.J., GREEN and BUSER, JJ.
MEMORANDUM OPINION
PER CURIAM.
In this habeas corpus proceeding, Julian L. Russell contends the district court committed reversible error when it summarily denied his K.S.A. 60–1507 motion. The motion alleged that Russell's lifetime postrelease supervision term constitutes cruel and/or unusual punishment. Because this issue was previously litigated and determined adversely to Russell, we decline to address, once again, the merits of Russell's argument. Accordingly, we affirm the district court.
Factual and Procedural Background
On February 23, 2009, Russell pled guilty to attempted aggravated indecent solicitation of a child. He was sentenced to a 24–month term of imprisonment followed by lifetime postrelease supervision but was granted 24 months of probation. About 1 year later, however, the district court revoked Russell's probation and ordered him to serve his underlying sentence. After the district court denied Russell's request for a new probation violation hearing, he appealed to our court. Russell's appeal was dismissed for lack of jurisdiction because it was untimely.
On February 9, 2011, Russell filed a pro se motion to correct an illegal sentence, alleging his lifetime postrelease supervision term was “inhumane.” The district court denied Russell's motion because his sentence conformed to K.S.A. 22–3717(d)(1)(G), which provides that an individual convicted of a sexually violent crime, committed on or after July 1, 2006, shall serve a mandatory period of lifetime postrelease supervision upon release from prison.
About 6 months later, on August 22, 2011, Russell filed a second pro se motion to modify or correct an illegal sentence. In this motion, he claimed that under State v. Duong, 292 Kan. 824, 257 P.3d 309 (2011), his lifetime postrelease supervision term was illegal. When the district court again determined that the sentencing court properly ordered Russell to serve a lifetime postrelease supervision term, Russell filed an appeal with our court. On appeal, Russell contended the imposition of lifetime postrelease supervision for attempted aggravated indecent solicitation of a child, particularly where, as in his case, the defendant was required to serve such a period following a probation revocation, constituted cruel and/or unusual punishment under the Eighth Amendment to the United States Constitution and § 9 of the Kansas Constitution Bill of Rights. State v. Russell, No. 107,588, 2013 WL 3867180, at *1–3 (Kan.App.2013), (unpublished opinion), rev. denied 299 Kan. ____ (2014).
On July 26, 2013, our court affirmed the district court, beginning its analysis by noting that Duong involved the imposition of lifetime electronic monitoring of a defendant, not the imposition of lifetime postrelease supervision. We then declined to entertain Russell's arguments under § 9 of the Kansas Constitution Bill of Rights because he did not raise this issue before the district court and his appellate brief never referenced the factors—established by our Supreme Court in State v. Freeman, 223 Kan. 362, 367, 574 P.2d 950 (1978)—which govern the analysis of claims under § 9. Our court also refused to address Russell's case-specific proportionality challenge under the Eighth Amendment due to his failure to properly preserve the issue for appeal.
Our court agreed, however, to review Russell's categorical challenge under the Eighth Amendment because such challenges only implicate questions of law. Russell, 2013 WL 3867180, at *2. After carefully considering Russell's arguments under the United States Supreme Court's rubric in Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), we rejected his claim. Our court found the Kansas Supreme Court's analysis and conclusions in State v. Mossman, 294 Kan. 901, 281 P.3d 153 (2012), and State v. Cameron, 294 Kan. 884, 281 P.3d 143 (2012), “suggested [our Supreme Court] would reject a challenge to the imposition of lifetime postrelease supervision regardless of the sex crime involved.” Russell, 2013 WL 3867180, at *6.
In the meantime, while Russell's appeal was still pending, Russell continued to challenge his lifetime postrelease supervision in the district court. On May 2, 2012, Russell filed a pro se motion in the district court entitled “Sentence Modification,” requesting a reduction of his postrelease supervision period from a lifetime term to 60 months. The district court denied Russell's motion, finding-for the third time-that the sentencing court had properly imposed lifetime postrelease supervision. Russell did not appeal from this adverse ruling.
On January 7, 2013, Russell filed the pro se K.S.A. 60–1507 motion which is at issue in this appeal. In the motion, Russell reprised the claim that his lifetime postrelease supervision term constituted cruel and/or unusual punishment under § 9 of the Kansas Constitution Bill of Rights and the Eighth and Fourteenth Amendments to the United States Constitution. Russell acknowledged that the district court was permitted to impose lifetime postrelease supervision under Jessica's law and that our “Supreme Court ruled saying [life]time [p]ostrelease is not cruel and unusal [ sic ] punish[ment].” But he argued that our Supreme Court had not considered a case similar to his where the defendant was originally ordered to serve probation but ended up with a life sentence due to a probation violation and subsequent postrelease supervision violation.
On January 30, 2013, the district court summarily denied Russell's K.S.A. 60–1507 motion without holding an evidentiary hearing. The district court found—for the fourth time—that Russell did not receive an illegal sentence.
Russell filed this timely appeal.
Discussion
On appeal, Russell contends the district court committed reversible error when it summarily denied his K.S.A. 60–1507 motion. Russell claims the district court erred because it determined his lifetime postrelease supervision term did not constitute cruel and/or unusual punishment under § 9 of the Kansas Constitution Bill of Rights and the Eighth and Fourteenth Amendments to the United States Constitution without making sufficient factual findings and legal conclusions in compliance with the standards set forth in Freeman and Graham. Russell urges us to reverse the district court's decision and remand the matter for an evidentiary hearing.
On the other hand, the State asks us to affirm the district court for two reasons. First, the State asserts that Russell's K.S.A. 60–1507 motion was untimely under K.S.A. 60–1507(f)(1). Second, the State invokes the doctrine of res judicata, which it contends prevents Russell from reviving his motion to correct an illegal sentence. Because we conclude the doctrine of res judicata is dispositive of this appeal, we decline to address the K.S.A. 60–1507(f)(1) timeliness issue raised by the State.
Preliminarily, a review of the relevant legal principles applicable to K.S.A. 60–1507 motions is in order. District courts are required to hold an evidentiary hearing on a K.S.A. 60–1507 motion and make findings of fact and conclusions of law with respect thereto, unless the motion, files, and records of the case conclusively show the movant is not entitled to relief. K.S.A. 60–1507(b); Supreme Court Rule 183(f) and (j) (2013 Kan. Ct. R. Annot. 278). It is the movant's burden to allege facts that prove the K.S.A. 60–1507 motion warrants an evidentiary hearing. Trotter v. State, 288 Kan. 112, 131, 200 P.3d 1236 (2009). When, as is true in this case, the district court summarily denies a K.S.A. 60–1507 motion, our 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 relief. Edgar v. State, 294 Kan. 828, 836, 283 P.3d 152 (2012).
Under the doctrine of res judicata, a final judgment rendered on the merits of an action by a court of competent jurisdiction is conclusive “ ‘not only on all matters which were actually litigated, but also on all matters which could have been litigated by the parties or their privies in that action. [Citations omitted.]’ “ Upchurch v. State, 36 Kan.App.2d 488, 493, 141 P .3d 1175, rev. denied 282 Kan. 797 (2006). In this regard, Russell has already had his day in court regarding the constitutionality of his lifetime postrelease supervision term. In fact, not only has the district court determined this issue adversely to Russell on several occasions, our court recently rejected Russell's assertion that his postrelease supervision term constitutes cruel and/or unusual punishment.
In order for a prior judgment to have res judicata effect, four conditions must exist: (1) identity in the things sued for, (2) identity of the cause of action, (3) identity of persons and parties to the action, and (4) identity in the quality of the persons for or against whom the claim is made. State v. Kelly, 291 Kan. 868, 874–75, 248 P.3d 1282 (2011). The doctrine of res judicata clearly applies to this case because Russell did not raise any new issues of law or fact in this K.S.A. 60–1507 motion. On the contrary, his motion merely repeated the same claims he asserted against the same party in his prior appeal.
Russell may not use his K.S.A. 60–1507 motion as a vehicle to breathe new life into an appellate issue previously determined against him. See State v. Martin, 294 Kan. 638, 641, 279 P.3d 704 (2012), cert. denied 134 S.Ct. 114 (2013). Consequently, “the doctrine of res judicata precludes his getting a proverbial second bite at the apple.” Wheeler v. State, No. 102,302, 2010 WL 1078469, at *3 (Kan.App.2010) (unpublished opinion).
Because the legality of Russell's lifetime postrelease supervision term has previously been considered and determined by our court, we decline to relitigate this issue. The district court's summary denial of Russell's K.S.A. 60–1507 motion is affirmed. See Kelly, 291 Kan. at 875 (The “district court's correct result may be upheld for alternative reasons.”).
Affirmed.