Opinion
No. 106,472.
2012-11-6
STATE of Kansas, Appellee, v. Edward NEWSON III, Appellant.
Appeal from Sedgwick District Court; Clark V. Owens II, Judge. Carl F.A. Maughan and Catherine A. Zigtema, of Maughan & Maughan LC, of Wichita, for appellant. David Lowden, chief attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Clark V. Owens II, Judge.
Carl F.A. Maughan and Catherine A. Zigtema, of Maughan & Maughan LC, of Wichita, for appellant. David Lowden, chief attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before GREEN, P.J., MARQUARDT, J., and BRAZIL, S.J.
MEMORANDUM OPINION
PER CURIAM.
In 1991, Edward Newson pled guilty to one count of indecent liberties with a child. Several years after his conviction, he began filing motions claiming that his sentence was illegal. In 2004, a panel of this court determined that Newson's sentence was not illegal. Newson, however, did not agree and continues to make the same claim. This appeal follows the district court's most recent dismissal of Newson's motion to correct an illegal sentence. We dismiss.
Pursuant to a plea agreement, in 1991, Edward Newson entered an Alford plea of guilty to indecent liberties with a child. The district court imposed a 5–year suspended sentence on October 4, 1991, and explained:
“Now, what this means, Mr. Newson, is that I'm not going to sentence you to any prison time today. I'm going to suspend imposition of sentence, which means if you violate any conditions of the suspended sentence that I'm going to outline here in just a minute that you could later be brought back before the Court and sentenced at that time and any sentence that would be imposed at that point in time might not be the minimum sentence.
“The minimum sentence that you could receive could either be a three-year, four-year, or five-year minimum sentence in the state penitentiary, but that would be something that would be later determined if you should violate any conditions of your suspended sentence.”
In 1996, Newson admitted to violating the terms of his sentence. The district court revoked Newson's suspended sentence, imposed an indeterminate 5– to 20–year sentence, and granted probation.
“And to help assure that the Court means business on this, I—the sentence was initially suspended, so I'm going to impose a sentence at this time and again grant that probation, reinstatement of probation from that sentence, and I'm going to impose the maximum sentence. It's going to be a minimum sentence of 5 years and a maximum sentence of 20 years, which then converts to Severity Level 3, Criminal History Category G under the sentencing guidelines law, and that will convert for a maximum sentence of 64 months under sentencing guidelines.”
In 1997, following another probation violation, the district court revoked Newson's probation, ordered him to serve the underlying sentence, and informed him that the sentence would not likely be converted.
“So, I'm going to revoke the probation that was previously granted in this case and order the defendant to serve the sentence, which under the pre-guidelines law is a five year minimum and 20 year maximum, and will convert under the sentencing guidelines to a Severity Level 3, criminal history G, with a sentence of 64 months.
“Probably the Department of Corrections will not convert him, because number one, he probably is not convertible anyway; but even if he were, it would not be to his advantage to be converted, because his sentence under the old law is less than it would be under the new law.
“So, he would be eligible for a parole under the old law after about two and a half years, while a 64 month sentence is considered to be considerably more than that. So, I would anticipate that he would not actually be converted under that.
“I still have to make these findings, that it is up to the Department of Corrections to make the conversion calculations to see if he would benefit, even if he would not be eligible.”
Beginning in June 1999, Newson filed several motions asking the court to correct his sentence. Newson had the erroneous belief that the district court improperly resentenced him “to a term of 5–20 years, violating his original plea agreement of a 3–10 year sentence .” A panel of this court addressed Newson's appeal of the denial of his motion to correct an illegal sentence. After thorough analysis, the Court of Appeals concluded that the district court did not abuse its discretion in sentencing Newson and found that his sentence was not illegal. State v. Newson, No. 89,155, 2004 WL 835848 (Kan.App.) (unpublished opinion), rev. denied 278 Kan. 850 (2004).
Shortly after the Court of Appeals issued its opinion, Newson again filed a motion to modify his sentence. The motion was subsequently denied, as the issue had “previously been addressed and request was denied.” Most recently, on November 16, 2010, Newson filed a “Motion for Order to Correct Illegal Sentence” and a “Motion for Order of Nunc Pro Tunc.” Newson again argued that his sentence was illegal because it was different than the sentence in the plea agreement. He further argued that his sentence should have been converted under the new sentencing guidelines and that he should have been provided representation when the new guidelines became active. The district court summarily denied the motions, stating: “This issue has previously been raised by the defendant and denied. The court will not entertain successive motions on the same issue.” The district court also held that that the journal entry regarding Newson's sentence is correct and that he is not entitled to appointment of counsel because he “presents no substantial issues of law or fact that have not already been addressed.” Newson timely appeals.
Whether a criminal sentence is illegal within the meaning of K.S.A. 22–3504 presents a question of law over which an appellate court's review is unlimited. State v. England, 45 Kan.App.2d 33, 37, 245 P.3d 1076 (2010). The district court has the duty to examine a motion to correct an illegal sentence to determine if it raises substantial issues of law or fact. If it does not, the motion may be summarily denied. State v. Howard, 287 Kan. 686, 690, 198 P.3d 146 (2008).
Newson has continuously argued since 1999 that his sentence is illegal. An illegal sentence is “a sentence imposed by a court without jurisdiction; a sentence that does not conform to the statutory provision, either in the character or the term of the punishment authorized; or a sentence that is ambiguous with respect to the time and manner in which it is to be served.” State v. Gracey, 288 Kan. 252, 261, 200 P.3d 1275 (2009). The concept of “illegal sentence” is interpreted narrowly. State v. Gayden, 281 Kan. 290, 293, 130P.3d 108 (2006).
Newson seems to alter his prior arguments slightly, now arguing on appeal that “his sentence was illegal because the term imposed was contrary to that which was pronounced from the bench.” He contends “that a 3–10 year sentence should be imposed.” Newson specifically takes issue with the district court's imposition of the 64–month maximum sentence. He argues that this sentence would be under the “new” sentencing guidelines and thus illegal. Newson also argues that the court should have appointed an attorney to represent him on his most recent illegal sentencing claim.
The State contends that this issue is not properly before the court because the only issue Newson has available for appeal is whether the district court erred in denying his motion to correct an illegal sentence. Further, the State argues that because Newson has failed to challenge the ruling, he waived or abandoned the issue. The State cites State v. Conley, 287 Kan. 696, 698, 197 P.3d 837 (2008), to suggest “[a] defendant cannot resurrect an issue by continuing to raise it despite procedural bars such as failure to raise an issue on direct appeal or raising an issue in a motion and failing to appeal the denial of the motion.”
Newson has previously raised this same issue. See Newson, 2004 WL 835848. “K.S.A. 22–3504(1) is a statute of limited applicability and may not be used as a vehicle to breathe new life into appellate issues previously abandoned or adversely determined.” State v. Johnson, 269 Kan. 594, Syl. ¶ 3, 7 P.3d 294 (2000). Where an appeal is taken from a conviction or sentence imposed, the decision of the appellate court is res judicata as to all issues raised. Issues that could have been raised, but were not raised, are deemed waived. Drach v. Bruce, 281 Kan. 1058, 1079, 136 P.3d 390 (2006), cert. denied549 U.S. 1278 (2007); see also Conley, 287 Kan. at 698 (applying res judicata to bar 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”). The provisions of K.S.A. 22–3504 are not an authorization for a do-over. Conley, 287 Kan. at 698.
Newson's sentencing argument is barred by res judicata. In this case, Newson first objected to his sentence in his 1999 “Motion for Correct Sentence Pursuant to K.S.A. 22–3504.” The district court considered the motion and found the sentence was not illegal. Newson continued arguing the same substantive issue which reached this court in 2004. After thoroughly considering the issue, a panel of this court concluded that Newson's sentence was not illegal. Newson, 2004 WL 835848, at *4. Because Newson continues to claim his sentence is illegal, the issue is res judicata. Consequently, Newson's sentencing challenge is dismissed.
Dismissed.