State v. Rojas, 93,444.
| Decision Date | 03 February 2006 |
| Docket Number | No. 93,444.,93,444. |
| Citation | 127 P.3d 247 |
| Parties | STATE of Kansas, Appellee, v. Jose I. ROJAS, Appellant. |
| Court | Kansas Supreme Court |
Matthew J. Edge, assistant appellate defender, was on the brief for appellant.
Charles L. Rutter, assistant district attorney, Nola Tedesco Foulston, district attorney, and Phill Kline, attorney general, were on the brief for appellee.
In 1986, Jose I. Rojas was charged with two counts of first-degree premeditated murder and two counts of aggravated kidnapping in connection with the shooting deaths of Alice Schmidt (his girlfriend) and her acquaintance Akil Ahmed. In 1987, as a result of a plea agreement, defendant pled guilty to one aggravated kidnapping charge and two second-degree murder charges. He was sentenced to life imprisonment on the aggravated kidnapping conviction and 15 years to life on each of the second-degree murder convictions. The sentences were to be served consecutively.
Defendant filed a direct appeal therefrom, contending the court erred in (1) denying his motion to withdraw his plea; and (2) running the sentences consecutively. We affirmed the district court. State v. Rojas, No. 61,498, 1988 WL 58697 unpublished opinion filed June 3, 1988.
In 2004, defendant filed a pro se motion to correct an illegal sentence under authority of K.S.A. 22-3504. In his motion, defendant claimed the sentence on his aggravated kidnapping conviction was illegal by virtue of the district court's imposition of sentence without consideration of the statutory factors set forth in K.S.A. 21-4606(b). In dismissing the motion, the district court correctly noted that the statutory sentence for aggravated kidnapping was life and, therefore, the K.S.A. 21-4606(b) sentencing factors were inapplicable.
On appeal, defendant makes no claims of illegality as to the aggravated kidnapping conviction. Rather, he shifts his focus to the sentences on the two second-degree murder convictions (15 years to life). The defendant contends that he challenged all of his sentences before the district court, and in support, points to his motion before the district court in which he argued that "the trial court abused its discretion in imposing any sentence upon Movant without proper consideration of the sentencing policy and factors set forth in K.S.A. 21-4601 and K.S.A. 21-4606."
Although that single sentence seems to indicate the defendant's motion concerned the legality of all of his sentences, the motion read in its entirety clearly reveals that his claim was directed solely at his aggravated kidnapping sentence. The State's response to the motion, and the district court's ruling, show that they interpreted the motion as directed only at the life sentence. The legal issues concerning compliance with K.S.A. 21-4606(b) when imposing a mandatory life sentence are different than they are when imposing a sentence that requires the court to fix a minimum term. Thus, the defendant's failure to clearly challenge the second-degree murder sentences below deprived the district court of the opportunity to address this claim and rule on it. It is for this reason that, as a general rule, a matter not presented to the lower court will not be considered on appeal. See State v. Williams, 275 Kan. 284, 288, 64 P.3d 353 (2003).
There is authority for us to determine an issue not specifically raised where only a question of law is involved, the facts are not in dispute, and the issue is determinative of the case. See State...
To continue reading
Request your trial
-
State v. Gary
...second argument, we note that the general rule is that issues not raised before the district court cannot be raised on appeal. State v. Rojas, 280 Kan. 931, Syl. ¶ 1, 127 P.3d 247 (2006). We may choose however to hear a new legal theory asserted for the first time on appeal if (1) "[t]he ne......
-
State v. Conway
...argument before the district court. Generally, issues not raised before the trial court cannot be raised on appeal. State v. Rojas, 280 Kan. 931, 932, 127 P.3d 247 (2006). However, this court may choose to review an issue not raised below when consideration of the theory is necessary to ser......
-
State v. Morton, 94,815.
...based solely on the doctrine of the law of the case. Generally issues not raised below may not be raised on appeal, State v. Rojas, 280 Kan. 931, 932, 127 P.3d 247 (2006), but this court may reach a legal theory first asserted on appeal if (1) it involves only a question of law arising on p......
-
State v. Warledo
...before the trial court cannot be raised on appeal. See State v. Shopteese, 283 Kan. 331, 339, 153 P.3d 1208 (2007); State v. Rojas, 280 Kan. 931, 932, 127 P.3d 247 (2006). A recognized exception to that general rule applies when consideration of the newly asserted claim is necessary to serv......