Opinion
Nos. 107,389 107,390.
2013-09-4
STATE of Kansas, Appellee, v. James E. BAKER, Appellant.
Appeal from Sedgwick District Court; Warren M. Wilbert, Judge. Rachel L. Pickering, of Kansas Appellate Defender Office, 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; Warren M. Wilbert, Judge.
Rachel L. Pickering, of Kansas Appellate Defender Office, for appellant. Julie A. Koon, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before McANANY, P.J., HILL and LEBEN, JJ.
MEMORANDUM OPINION
PER CURIAM.
James Baker appeals the district court's denial of his January 4, 2011, motion to reconsider his motion to withdraw his no contest and guilty pleas in two separate criminal cases. The district court summarily denied the motion, finding it was successive and an abuse of remedy because the district court had already ruled on Baker's motion to withdraw his plea and a previous motion to reconsider. We affirm.
In August 1997, Baker pled no contest to burglary in case No. 96–CR–1050. He was sentenced to 19 months' imprisonment. In July 2003, Baker pled guilty to burglary and misdemeanor theft in case No. 03–CR–1052. The district court sentenced him to 24 months' probation, which was later revoked. Baker ultimately served the underlying 23–month prison sentence.
In November 2008, Baker filed a motion to expunge several prior offenses from his record, including the burglary convictions from cases 96–CR–1050 and 03–CR–1052. The district court summarily denied the petition, finding that Baker had failed to give notice to the district attorney.
On November 2, 2010, Baker filed a motion to set aside his pleas in 96–CR–1050 and 03–CR–1052. Baker claimed that he was entitled to have his pleas withdrawn because he was not informed when he made them “that the conviction could be used to enhance his sentence in a subsequent proceeding or that lawful state actions could be redefined as unlawful.” Baker also asserted that he was not made aware that his convictions would have the “direct consequence” of prohibiting him from lawfully possessing ammunition. Baker explained that in 2005, he was found guilty in federal court of possession of ammunition. Based on his prior state convictions, Baker was found to be an “armed career criminal” and was sentenced to serve 235 months in federal prison. Baker claimed that he was not told at the time of his pleas in 96–CR–1050 and 03–CR–1052 that those convictions would be included in his criminal history in federal court. He asserted that his pleas were not knowingly and voluntarily made and should be set aside.
The State filed a response, arguing the motion was untimely because Baker failed to file it within 1 year of the judgment becoming final. The State further asserted that Baker was unable to show excusable neglect that would have allowed his untimely motion. The State also noted that in 2008 Baker filed a motion under K.S.A. 60–1507 making the same arguments raised in his motion to withdraw his pleas. The district court had dismissed the 60–1507 motion as untimely, and this court affirmed the decision on appeal. See Baker v. State, No. 101,001, 2010 WL 2502871 (Kan.App.2010) (unpublished opinion), rev. denied 290 Kan. 1092 (2010). In that case, the Court of Appeals panel also addressed the merits of Baker's argument, finding that he failed to show manifest injustice sufficient to withdraw his pleas. 2010 WL 2502871, at *4.
On December 7, 2010, the district court denied Baker's motion to withdraw his plea in case 03–CR–1052, finding the motion was time barred. Then on December 15, 2010, the district court denied Baker's motion in case 96–CR–1050, making the same finding.
On December 22, 2010, Baker moved to reconsider the rulings on his motion to set aside the pleas. He argued that “K.S.A.2009 Supp. 22–3210(d) does not provide any time limitation on the filing of a motion to withdraw plea.” His arguments were otherwise the same as those raised in his original motion to withdraw his pleas. The State filed a response on January 5, 2011, noting that in April 2009, K.S.A. 22–3210 was amended to include a time limitation for filing a motion to withdraw plea.
On January 10, 2011, the district court denied Baker's first motion to reconsider in case 03–CR–1052, finding that it was successive and an abuse of remedy. Baker filed a timely notice of appeal. The appeal was docketed on June 7, 2011. On July 20, 2012, this court affirmed the district court's decision. See State v. Baker, No. 106,174, 2012 WL 3000355 (Kan.App.2012) (unpublished opinion), petition for rev. filed August 20, 2012. The panel determined that “Baker failed to make any showing of excusable neglect whatsoever, even after the State asked the district court to deny the motion based on untimeliness.” 2012 WL 3000355, at *3.
Also on January 10, 2011, the district court denied Baker's first motion to reconsider in case 96–CR–1050, again finding that it was successive and an abuse of remedy. Baker filed a timely notice of appeal. The appeal was docketed on June 7, 2011. On November 2, 2012, this court affirmed the district court's decision. See State v. Baker, No. 106,171, 2012 WL 5392094 (Kan.App.2012) (unpublished opinion), petition for rev. filed November 30, 2012. The panel found that “Baker's motion contain[ed] nothing that could be considered as a showing of excusable neglect for failing to comply with the time limitation.” 2012 WL 5392094, at *2. The panel further determined Baker's appeal could be disposed of by the principle of res judicata, because the Court of Appeals rejected the merits of Baker's argument in Baker v. State, 101,001, 2010 WL 2502871.2012 WL 5392094, at *3.
On January 4, 2011—before the district court had ruled on Baker's first motion to reconsider—Baker filed another motion to reconsider his motion to withdraw his pleas in case Nos. 96–CR–1050 and 03–CR–1052, making the same arguments contained in the previous motion. On January 26, 2011, the State responded to this motion to reconsider, arguing that it was successive and constituted an abuse of remedy. On February 9, 2011, the district court filed separate orders denying the motions in case Nos. 96–CR–1050 and 03–CR–1052. In each order, the district court found Baker's second motion to reconsider was successive and an abuse of remedy. Baker filed a timely notice of appeal for each case. We consolidated the appeals.
The State questions our jurisdiction to decide this case. Whether jurisdiction exists is a question of law over which this court's scope of review is unlimited. State v. Ellmaher, 289 Kan. 1132, 1147, 221 P.3d 1105 (2009).
The State argues that the district court did not have jurisdiction to issue a decision on Baker's second motion to reconsider because an appeal was pending on Baker's first motion to reconsider. Baker filed his second motion to reconsider on January 4, 2011. At this point, he had already filed one motion to reconsider, and the district court's decision on that motion was pending. The district court issued orders denying the first motion to reconsider on January 10, 2011, and Baker appealed those orders while his second motion to reconsider was pending. The district court issued rulings on the second motion to reconsider on February 9, 2011. Baker's appeals were docketed on June 7, 2011.
A district court loses jurisdiction over a case upon filing a motion to docket with the Clerk of the Appellate Courts. See State v. McDaniel, 255 Kan. 756, 761, 877 P.2d 961 (1994). If the district court's order was entered without jurisdiction, then an appellate court does not acquire jurisdiction on appeal. State v. McCoin, 278 Kan. 465, 468, 101 P.3d 1204 (2004) (citing State v. Stough, 273 Kan. 113, 116, 41 P.3d 281 [2002] ). Here, the district court had jurisdiction when it issued its rulings on February 9, 2011, because Baker did not file docketing statements with the Clerk of the Appellate Courts until June 7, 2011. Therefore, this court has jurisdiction over Baker's second motion to reconsider, as did the district court.
Even so, there is ample evidence that this court has already decided the merits of Baker's argument. In 2010, we determined that Baker had not shown manifest injustice that would entitle him to withdraw his guilty pleas. See Baker v. State, 2010 WL 2502871. In two separate cases in 2012, we held Baker's motion to withdraw his pleas and his first motion to reconsider in case Nos. 96–CR–1050 and 03–CR–1052 were untimely and Baker had failed to show excusable neglect that would have permitted the late motions. See State v. Baker, 2012 WL 3000355;State v. Baker, 2012 WL 5392094. Baker's arguments regarding his second motion to reconsider are no different. In sum, we have already issued opinions on the merits of Baker's claims.
Moreover, Baker's appeal here is based on a motion to reconsider that was filed while another motion to reconsider was already pending before the district court. Successive motions are generally only considered under exceptional circumstances. See Holt v. State, 290 Kan. 491, 496, 232 P.3d 848 (2010). Here, Baker's second motion to reconsider makes no new arguments from his prior motions. Thus, he has failed to demonstrate any circumstances to justify this latest motion. The district court correctly determined Baker's second motion to reconsider was successive and an abuse of remedy in light of this first motion to reconsider.
The doctrine of res judicata prevents relitigation when the following conditions occur: (1) identity in the thing sued for, (2) identity in the cause of action, (3) identity of persons and parties to the action, and (4) identity in the quality of persons for or against whom claim is made. Waterview Resolution Corp. v. Allen, 274 Kan. 1016, 1023, 58 P.3d 1284 (2002). We have already settled Baker's claims on their merits. We need not do so again.
Affirmed.