Opinion
No. 109,669.
2014-10-17
STATE of Kansas, Appellee, v. Loranzy V. BENNETT, Appellant.
Appeal from Sedgwick District Court; Richard T. Ballinger, Judge.Krystle M.S. Dalke and Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellant.Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Richard T. Ballinger, Judge.
Krystle M.S. Dalke and Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellant. Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before HILL, P.J., STEGALL, J., and JOHNSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Contending his sentence is illegal because the district court did not have jurisdiction to sentence him as an adult, Loranzy V. Bennett appeals the district court's summary denial of his motion to correct an illegal sentence. Bennett filed this motion—his third—to correct an illegal sentence under K.S.A. 22–3504. Based on its reading of the motion, files, and case records, the district court summarily denied the motion after finding that it had no jurisdiction to consider issues that had already been decided. We agree with the court and affirm the denial of Bennett's motion.
Bennett entered a plea of guilty at the age of 15.
After accepting a stipulation by counsel in 1998, the district court certified Bennett to stand trial as an adult. In due course, Bennett entered into a plea agreement with the State. Thus, at the age of 15, Bennett pled guilty to two counts of rape, two counts of kidnapping, and one count each of aggravated burglary, aggravated kidnapping, aggravated criminal sodomy, aggravated battery, aggravated robbery, and criminal possession of a firearm. In compliance with the plea agreement, the State recommended a 356–month prison sentence.
The district court declined to follow the sentencing recommendation in the plea agreement and imposed a controlling sentence of 416 months in prison. Later, this court dismissed Bennett's direct appeal for lack of jurisdiction to review his presumptive guidelines sentence. See State v. Bennett, No. 83,573, unpublished opinion filed June 9, 2000, rev. denied 269 Kan. 934 (2000).
Bennett files several postconviction motions.
We list here the motions previously filed by Bennett and summarize their outcomes:
• On February 11, 2002, Bennett filed a motion to correct manifest injustice. He cited K.S.A.2001 Supp. 22–3210(d) (motion to withdraw plea) and K.S.A. 22–3504 (motion to correct illegal sentence) as his authority for relief. The court denied the motion, finding there was no manifest injustice and that the sentence was not illegal. Bennett appealed the denial, but that appeal was dismissed for lack of jurisdiction in an order filed November 29, 2005.
• On November 6, 2008, Bennett filed a motion for a nunc pro tunc order according to K.S.A. 22–3504(2) (correction of sentence due to clerical mistakes). In this motion he claimed that he was not properly prosecuted as an adult and that his plea was involuntary. In support, Bennett contended that he was not given an opportunity to participate in a hearing to overcome the presumption that he be tried as an adult according to K.S.A.1998 Supp. 38–1636. The district court denied the motion. Bennett appealed and then dismissed the appeal.
• On September 11, 2009, Bennett filed a motion to correct an illegal sentence under K.S.A. 22–3504. Bennett argued that the district court did not have jurisdiction to sentence him as an adult. After finding that the issue had already been decided, the district court summarily denied the motion. Bennett appealed and a panel of this court upheld the dismissal. In that appeal, Bennett contended that the district court was without jurisdiction to sentence him as an adult as he had not properly waived his right to a hearing on the motion for adult prosecution for three reasons:
(1) Bennett was not present at the waiver hearing;
(2) his attorney waived Bennett's right to an evidentiary hearing to rebut the presumption he should be prosecuted as an adult; and
(3) the district court had failed to make the findings required by law.
This court concluded that Bennett had not established a due process violation that would have deprived the district court of jurisdiction when his guilty pleas were entered. See State v. Bennett, No. 104,639, 2011 WL 4906844, at *2–3 (Kan.App.2011) (unpublished opinion), rev. denied 294 Kan. 944 (2012).
We find this motion to be identical with the prior motions.
In November 2012, Bennett filed his third motion to correct an illegal sentence under K.S.A. 22–3504, which is the subject of his present appeal. Bennett argued the district court lacked jurisdiction to sentence him as an adult because it failed to consider the eight statutory factors found in K.S.A.1998 Supp. 38–1636(e) in determining whether he should be prosecuted as an adult and he did not personally stipulate to prosecution as an adult.
To us, he contends the district court erred in summarily denying his motion to correct an illegal sentence. Bennett raises two arguments. First, he claims that the district court violated his due process rights because “it held a hearing on [his] pro se motion when only the State was represented.” He then claims the district court lacked subject matter jurisdiction over him because “there is no evidence that [he] knowingly, voluntarily, and intelligently waived a hearing and stipulated to adult prosecution,” and the district court erroneously certified him as an adult for prosecution without making the required statutory findings under K.S.A.1998 Supp. 38–1636(e).
Bennett's first argument is untenable. K.S.A. 22–3504 does not automatically grant a hearing or compel the personal appearance of the defendant in court. See State v. Pennington, 288 Kan. 599, 601, 205 P.3d 741 (2009); State v. Duke, 263 Kan. 193, Syl. ¶ 1, 946 P.2d 1375 (1997); State v. Dawson, 43 Kan.App.2d 800, Syl. ¶¶ 1–2, 231 P.3d 784, rev. denied 290 Kan. 1097 (2010). Bennett was not entitled to be present at a hearing on his motion, and the court is required by law to preliminarily review the motion to determine if evidence should be taken on the matter. That is what occurred here, and there is no due process violation in how the court treated this motion.
Obviously, Bennett's second argument is almost identical to the argument raised to this court in 2011. That panel affirmed the district court's ruling that this issue had been previously decided. We will not rule to the contrary now.
A review of some fundamental rules of law is useful at this point. 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 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). Then in State v. Conley, 287 Kan. 696, 698, 197 P.3d 837 (2008), the court applied res judicata to a motion to correct an illegal sentence because “[s]uch a motion may not be used to breathe new life into an appellate issue previously adversely determined.” Bennett cannot breathe new life into this motion simply by filing a subsequent motion. The doctrine of res judicata has been established to bar such successive motions.
Bennett does not even challenge on appeal the basis for the district court's order denying his November 2012 motion to correct an illegal sentence—that it lacked jurisdiction because “the issues complained about have already been decided.” We therefore deem that issue abandoned. See State v. Boleyn, 297 Kan. 610, 633, 303 P.3d 680 (2013). Simply put, the illegal sentence issues raised in Bennett's November 2012 motion to correct an illegal sentence filed in the district court were addressed in previous litigation.
More importantly, in Bennett, 2011 WL 4906844, at *2–3, this court, in affirming the district court's decision denying Bennett's September 2009 motion to correct an illegal sentence, clearly addressed both of the jurisdictional issues Bennett raises again here. Therefore, the district court's decision to deny Bennett's current motion because the issues had already been decided was correct. See State v. Martin, 294 Kan. 638, 640–41, 279 P.3d 704 (2012). And because the doctrine of res judicata barred any consideration of Bennett's successive motion, there is no reasonable possibility that the constitutional error alleged by Bennett, if true, would have affected the summary denial of Bennett's motion to correct an illegal sentence. See State v. Ward, 292 Kan. 541, 569, 256 P.3d 801 (2011), cert. denied ––– U.S. ––––, 132 S.Ct. 1594, 182 L.Ed.2d 205 (2012).
Affirmed.