Brooks v. State
| Decision Date | 06 May 2022 |
| Docket Number | 124,010 |
| Citation | 508 P.3d 876 (Table) |
| Parties | Terry Lenott BROOKS, Appellant, v. STATE of Kansas, Appellee. |
| Court | Kansas Court of Appeals |
Gerald E. Wells, of Jerry Wells Attorney-at-Law, of Lawrence, for appellant.
Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before Powell, P.J., Green, J., and Richard B. Walker, S.J.
Terry Lenott Brooks appeals the district court's summary denial of his motion brought under K.S.A. 2020 Supp. 60-1507. He argues the district court violated Supreme Court Rule 183(j) (2022 Kan. S. Ct. R. at 242) by not making findings of fact and conclusions of law. Because the record on appeal is sufficient to allow our review, and for reasons more fully explained below, based on a review of that record, we affirm the district court.
Pursuant to a plea agreement with the State, on November 1, 2017, Brooks pleaded guilty in 16CR3167 to one count of felony driving under the influence (DUI), fourth or subsequent conviction, and in 17CR911, to one count of felony fleeing or attempting to elude an officer and two additional counts of felony DUI, fourth or subsequent conviction. In exchange for Brooks' plea, the State agreed to recommend that the sentences for each case run concurrent with each other.
On January 10, 2018, the district court sentenced Brooks in 16CR3167 to 12 months in the county jail. In 17CR911, the district court sentenced Brooks to a presumptive sentence of 17 months in prison for one count of felony fleeing or attempting to elude an officer and an additional 12 months in the county jail for each of the two DUIs, for a total of 41 months. However, contrary to the plea agreement, the district court ordered the sentences in both cases to run consecutive to each other. The district court specifically noted Brooks' 16 prior DUIs, and his danger to the community as a result, as grounds for running all his sentences consecutive.
Brooks appealed his sentences on two grounds, complaining that the district court abused its discretion by imposing consecutive sentences and by failing to grant him work release. A panel of our court affirmed Brooks' sentences. State v. Brooks , No. 119,141, 2018 WL 6427291, at *2 (Kan. App. 2018) (unpublished opinion). The mandate was issued on October 18, 2019.
On July 6, 2020, Brooks timely filed pro se his present K.S.A. 60-1507 motion, claiming: (1) The district court erred in using his municipal court convictions to enhance his "criminal score" because the district court has exclusive jurisdiction over felony DUIs; (2) the district court wrongly relied upon his presentence investigation (PSI) report at sentencing instead of reviewing the evidence at sentencing; (3) his counsel failed to make sure the sentencing proceedings were sufficient by requesting the district court to make "special rule" findings on the record; and (4) his sentence in 16CR3167 was illegal because the district court did not make a "special rule" finding on the record. On November 30, 2020, Brooks amended his motion to include a claim seeking the retroactive application of State v. Boettger , 310 Kan. 800, 450 P.3d 805 (2019), challenging the inclusion of a prior criminal threat conviction in his criminal history score. Finally, on December 31, 2020, Brooks again amended his motion to argue entry 43 on his PSI report, a municipal court DUI conviction, should not have been used to enhance his DUI conviction and sentence.
Brooks filed a bevy of other pro se motions, most relevant here being two motions requesting the appointment of counsel.
On March 16, 2021, the district court summarily rejected Brooks' claims, finding: Specifically, the district court rejected Brooks' allegations that his prior municipal court DUIs were wrongly used to enhance his sentence and as a basis for his convictions on the grounds that there were numerous other DUI convictions which could be used. It also rejected Brooks' claim that his prior criminal threat conviction was improperly included in his criminal history, holding that he was not allowed to raise constitutional challenges to a sentence in an illegal sentence claim. The district court denied Brooks' K.S.A. 60-1507 motion and all other pending motions in the case, including Brooks' two motions for appointment of counsel.
Brooks timely appeals.
Brooks frames his argument as an appeal of the summary denial by the district court of his motion brought under K.S.A. 60-1507. When a district court determines the motion, files, and case records conclusively show the movant is not entitled to relief and summarily denies the motion, as was done here, our review is de novo, without deference to the district court's decision. See Beauclair v. State , 308 Kan. 284, 293, 419 P.3d 1180 (2018).
Brooks claims his appeal is one challenging the denial of his 60-1507 motion. Yet his brief fails to make any argument as to why the district court erred in summarily denying his motion. Instead, Brooks limits his appeal to complaining that the district court violated Rule 183(j) when it failed to make adequate findings of fact and conclusions of law on Brooks' two motions for appointment of counsel, which the district court denied when denying his 60-1507 motion. Given Brooks' failure to brief the merits of why the district court erred in denying his 60-1507 motion, we are forced to conclude that he has waived or abandoned this issue. See State v. Arnett , 307 Kan. 648, 650, 414 P.3d 787 (2018) ().
As for Brooks' Rule 183(j) argument, the State responds that Rule 183(j) does not confer a right to counsel when a 60-1507 motion is summarily denied. We agree.
Rule 183(j) requires a district court to make findings of fact and conclusions of law when it summarily denies a K.S.A. 60-1507 motion. The rule's purpose "is to assist the appellate court in conducting meaningful review" so the appellate court is not " ‘left guessing’ as to the district court's rationale" for its denial. Breedlove v. State , 310 Kan. 56, 60, 445 P.3d 1101 (2019). Whether the district court complied with Rule 183(j) is a legal question reviewed de novo. Robertson v. State , 288 Kan. 217, 232, 201 P.3d 691 (2009).
When Rule 183(j) is invoked, the relevant question for us is whether the district court made sufficient findings of facts and conclusions of law to allow appellate review. See Sherwood v. State , 310 Kan. 93, 98-99, 444 P.3d 966 (2019). Boilerplate journal entries do not satisfy Rule 183(j). Nguyen v. State , 309 Kan. 96, 112, 431 P.3d 862 (2018).
We find the record sufficient to allow for our review. Brooks argues the district court violated Rule 183(j) when it summarily denied his two motions for appointment of counsel without making findings of fact and conclusions of law. But Rule 183(j) does not provide a right to counsel or even discuss the appointment of counsel. Moreover, a 60-1507 movant merely has a limited statutory right to counsel. Thuko v. State , 310 Kan. 74, 79, 444 P.3d 927 (2019) ; K.S.A. 22-4506(b) ; Supreme Court Rule 183(i). When a district court determines the motion, files, and records conclusively show a movant is entitled to no relief and summarily denies the K.S.A. 60-1507 motion, there is no statutory duty to appoint counsel. Thuko , 310 Kan. at 79.
Because the district court summarily denied Brooks' 60-1507 motion, Brooks had no right to counsel and the district court had no duty to appoint counsel. The district court did not violate Rule 183(j).
Although we have already concluded that Brooks has waived any challenge to the correctness of the district court's denial of his 60-1507 motion, in the interests of judicial economy, we alternatively conclude that even if Brooks had properly challenged the merits of the district court's denial of his 60-1507 motion, our review of the record reveals no error by the district court.
First, Brooks claims the district court erred by using his prior municipal court convictions to enhance his sentences and his DUI convictions. Brooks' argument is inartful on this point, but it appears his rationale for this claim rests upon the proposition that district courts have exclusive jurisdiction over felony DUIs. While there are many reasons to reject Brooks' argument, the most straightforward answer is that even if we were to assume it was error for the district court to utilize any of Brooks' prior municipal court DUI convictions when sentencing him for his...
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