State v. Lewis
| Decision Date | 21 December 2018 |
| Docket Number | 118,402 ,Nos. 118,401 , 118,403,s. 118,401 |
| Citation | 432 P.3d 108 (Table) |
| Parties | STATE of Kansas, Appellee, v. Harold L. LEWIS, Appellant. |
| Court | Kansas Court of Appeals |
Clayton J. Perkins, of Kansas Appellate Defender Office, for appellant.
Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before Powell, P.J., Atcheson and Gardner, JJ.
Harold L. Lewis pleaded guilty to possession of cocaine in case No. 05 CR 3213 for a crime committed in August 2005. At the same plea hearing, he pleaded no contest to forgery in case No. 06 CR 247, committed in January 2006. In case No. 07 CR 428, Lewis pleaded no contest to aggravated battery, criminal possession of a firearm, and aggravated escape from custody, committed in February 2007. In all three cases, the district court sentenced Lewis as having a criminal history score of B based partially on his 1978 Texas conviction for burglary of a habitation, which the district court scored as a person felony.
In 2014, Lewis filed a motion to correct an illegal sentence based on State v. Murdock , 299 Kan. 312, 323 P.3d 846 (2014), overruled by State v. Keel , 302 Kan. 560, 357 P.3d 251 (2015), arguing that his pre-1993 person convictions should have been classified as nonperson convictions. Without holding a hearing, the district court denied that motion and held that Murdock did not apply retroactively to Lewis' cases. Lewis appealed, arguing that the district court imposed an illegal sentence by erroneously classifying his 1978 Texas burglary of a habitation conviction as a person felony under State v. Dickey , 301 Kan. 1018, 1034, 350 P.3d 1054 (2015). State v. Lewis , No. 113,438, 2016 WL 1546133 (Kan. App. 2016) (unpublished opinion). We agreed with the State that Texas' definition of habitation fits within Kansas' definition of dwelling, but we reversed and remanded the case with directions to the district court for two reasons: to review court documents from the 1978 case and determine if the prior conviction involved burglary of a habitation; and to determine whether Texas' 1978 burglary statute was comparable to the Kansas burglary statute in effect when Lewis committed his current crimes of conviction. Lewis , 2016 WL 1546133 at *5.
At the hearing on remand, Lewis argued that his 1978 Texas conviction should be scored as a nonperson felony because the facts showed his crime involved a separate garage without an entrance to the house. The district court rejected that argument based on prior court rulings that treated Texas' burglary of a habitation the same as Kansas' burglary of a dwelling. See State v. Mullens , 51 Kan. App. 2d 1114, 1117, 360 P.3d 1107 (2015) (). After reviewing the Texas court documents, the district court determined that Lewis' Texas burglary involved a habitation so that crime was comparable to Kansas' burglary and was thus properly scored as a person crime. Lewis appeals. All three cases are consolidated on appeal.
Lewis argues solely that his sentence is illegal because the district court erroneously classified his 1978 Texas burglary conviction as a person felony. He contends that Texas' burglary of a habitation is not comparable to Kansas' burglary of a dwelling because Texas' definition of habitation is broader than Kansas' definition of dwelling, encompassing both nondwelling buildings or structures and unenclosed property that would not constitute burglary of a dwelling in Kansas. Lewis asks us to remand the case for resentencing with an amended criminal history score.
We first examine the State's contention that the doctrine of res judicata precludes Lewis' argument. We have unlimited review over this issue of law. Cain v. Jacox , 302 Kan. 431, 434, 354 P.3d 1196 (2015). Four elements must be present for res judicata to apply: (1) the same claim; (2) the same parties; (3) claims that were or could have been raised; and (4) a final judgment on the merits. 302 Kan. 431, Syl. ¶ 2.
In 2014, Lewis argued that his prior Texas convictions, including his 1978 burglary conviction, could not be classified as person felonies because they were committed before Kansas enacted the KSGA, citing Murdock . His claim was denied on the merits. Now, Lewis claims that his 1978 Texas burglary of a habitation conviction should not be classified as a person felony because Kansas has no comparable crime. This is the same claim based on a different legal theory—one that is not distinct enough to give rise to a new claim for purposes of res judicata. Midwest Crane & Rigging v. Schneider , No. 113,725, 2016 WL 1391805, at *5 (Kan. App. 2016) (unpublished opinion); see State v. McIntyre , No. 117,787, 2018 WL 3321177, at *2 (Kan. App. 2018) (unpublished opinion). The other requirements are met too, as this appeal involves the same parties, claims that could have been raised previously, and a final judgment on the merits. So ordinarily res judicata would bar Lewis' current appeal.
But the Kansas Supreme Court does not seem to apply res judicata in this context, finding that "arguments concerning retroactivity and res judicata ... are all unavailing in the context of a motion to correct an illegal sentence which can be made at any time." State v. Dickey , 305 Kan. 217, 222, 380 P.3d 230 (2016). See State v. McAlister , 54 Kan. App. 2d 65, 73, 396 P.3d 100 (), rev. granted 306 Kan. 1326 (2017); but see State v. Conley , 287 Kan. 696, 698, 197 P.3d 837 (2008) ); McAlister , 54 Kan. App. 2d at 82 (Gardner, J., concurring) (). Based on the Kansas Supreme Court's most recent approach, we find res judicata does not bar Lewis from raising this claim again.
The State next contends that the law of the case doctrine bars us from reviewing Lewis' claim. This doctrine prevents a party from relitigating an issue already decided on appeal in successive stages of the same proceeding. State v. Parry , 305 Kan. 1189, 1189, 390 P.3d 879 (2017). Whether the law of the case doctrine bars a party from relitigating an issue is a legal question over which we have unlimited review. 305 Kan. at 1194.
Under the law of the case doctrine, "[w]hen a second appeal is brought to this court in the same case, the first decision is the settled law of the case on all questions involved in the first appeal, and reconsideration will not normally be given to such questions." State v. Collier , 263 Kan. 629, Syl. ¶ 3, 952 P.2d 1326 (1998). The doctrine promotes judicial efficiency and allows litigants a full opportunity to present their arguments. State v. Parry , 51 Kan. App. 2d 928, 928, 358 P.3d 101 (2015), aff'd 305 Kan. 1189 (2017). We assume, without deciding, that motions to correct an illegal sentence are subject to the law of the case doctrine. See Conley , 287 Kan. at 698.
The law of the case doctrine would generally apply here. Lewis filed his first motion to correct illegal sentence under Murdock in 2014. The district court denied his motion and he appealed. This court found "the Texas definition of habitation fits within the Kansas definition of dwelling," but it remanded the case for the district court to see if it could determine from relevant documents whether Lewis' prior conviction actually involved a burglary of a habitation, as well as whether the 1978 Texas burglary conviction was comparable to Kansas' burglary statute in effect when Lewis committed the current crimes. Lewis , 2016 WL 1546133, at *5. Now Lewis claims Texas' definition of "habitation" is broader than Kansas' definition of a "dwelling," so the two crimes are not comparable. Thus Lewis is bringing an already litigated claim based on a different legal theory.
Yet this doctrine " ‘is not an inexorable command, or a constitutional requirement, but is, rather, a discretionary policy which expresses the practice of the courts generally to refuse to reopen a matter already decided, without limiting their power to do so.’ " Collier , 263 Kan. at 631. Courts have limited their discretion by applying three generally recognized exceptions to this doctrine. These exceptions permit an appellate court to reconsider an issue it already decided when: (1) a later trial produces substantially different evidence; (2) a controlling authority has made a contrary decision regarding the law applicable to the issues; or (3) the prior decision was clearly erroneous and would result in manifest injustice. State v. Kleypas , 305 Kan. 224, 245, 382 P.3d 373 (2016).
The second exception applies here. Between Lewis' appeals the Kansas Supreme Court decided State v. Wetrich , 307 Kan. 552, 412 P.3d 984 (2018). That case held that for an out-of-state conviction to be comparable to a Kansas crime under K.S.A. 2017 Supp. 21-6811(e)(3), the elements of the out-of-state crime must be identical to or narrower than the elements of the Kansas crime to which it is being referenced. Wetrich , 307 Kan. 552, Syl. ¶ 3. This construction of the statute is by a controlling authority and is contrary to the way the court had analyzed the statute in the past. See, e.g., State v. Williams , 299 Kan. 870, 873, ...
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