State v. Smith
| Decision Date | 13 February 2015 |
| Docket Number | 111,080. |
| Citation | 344 P.3d 396 (Table) |
| Parties | STATE of Kansas, Appellee, v. Anthony S. SMITH, Appellant. |
| Court | Kansas Court of Appeals |
Heather Cessna, of Kansas Appellate Defender Office, for appellant.
Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before ARNOLD–BURGER, P.J., PIERRON and BUSER, JJ.
Anthony Smith appeals the denial of his motion to correct an illegal sentence, arguing that the severity level of his preguidelines sentence was incorrect. He also argues that his due process and equal protection rights were violated because his preguidelines sentence was not converted to a guidelines sentence. Because we find that his motion is barred by the doctrine of res judicata, we affirm the district court's summary dismissal.
On July 14, 1993, Anthony S. Smith pleaded guilty to and was convicted of possession of cocaine, possession of marijuana, and battery on a law enforcement officer, all of which were committed in 1992. He was sentenced on August 27, 1993.
On July 1, 1993, the new Kansas Sentencing Guidelines Act (KSGA), K.S.A.1993 Supp. 21–4701 et seq., became effective. Because his crime was committed before July 1, 1993, and in accordance with the plea agreement, the district court sentenced Smith under the presentencing guidelines to a term of 3 to 10 years' imprisonment on the most serious crime and the others were to run concurrent. In addition, because he committed his crime before the KSGA went into effect, but was sentenced after the KSGA went into effect, the district court was also required to compute the appropriate sentence under the new sentencing guidelines. K.S.A.1993 Supp. 21–4724(f). Although his attorney argued that Smith would have been a severity level 4, the district court determined that Smith's case was a severity level 3. All parties agreed then and now that he had a criminal history score of E. The judge imposed the mid-number in the KSGA grid box of 30 months. If Smith had been placed in the 4–E grid box his mid-range sentence would have been 20 months, presumptive prison. K.S.A.1993 Supp. 21–4705. We pause to note that contrary to Smith's assertion in his original motion, both grid boxes called for presumptive prison. K.S.A.1993 Supp. 21–4705.
Shortly after his sentence was pronounced, Smith filed a motion to modify his sentence. The district court denied his request. Smith appealed and this court affirmed. State v. Smith, No. 71,937, unpublished opinion filed June 30, 1995 (Kan.App.), rev. denied 258 Kan. 862 (1995). This court found that the appeal was “frivolous” and “entirely without merit,” in part because Smith was not in a position to appeal a sentence that he requested the trial court to impose. Smith, slip op. at 2.
In 2011, Smith filed a pro se motion asking that the district court retroactively apply the KSGA to his 1993 sentence. He asserted that because his sentence was within the border box of the sentencing guidelines, then his sentence should have been converted to a KSGA sentence. He did not specifically challenge the severity level that was assigned at the time of sentencing. The district court denied Smith's motion finding that he should have either raised the issue in a direct appeal or he should have raised it in a K.S.A. 60–1507 motion. Smith appealed the district court's decision, but then voluntarily dismissed his appeal.
In July 2013, Smith filed a motion to correct an illegal sentence. In his motion, Smith argued that his severity level should have been 4 rather than 3. As such, he claims he would only be subject to an 18– to 22–month presumptive nonimprisonment term and that his sentence should have been converted through a retroactive application of the sentencing guidelines. The district court denied Smith's motion, finding that it was successive, was an abuse of remedy, and was barred under of doctrines of res judicata and law of the case.
Smith filed a timely notice of appeal.
Smith argues that his sentence is illegal because the district court, at the time of sentencing, incorrectly classified his 1993 conviction of possession of cocaine as a severity level 3 crime under the KSGA. Smith does not argue that his actual, preguidelines sentence of 3 to 10 years was illegal; only that the district court's classification under the KSGA was in error.
When a district court summarily denies a motion to correct illegal sentence, this court applies a de novo standard of review. This is because the reviewing court has the same access to the motion, records, and files as the district court. Makthepharak v. State, 298 Kan. 573, 577, 314 P.3d 876 (2013).
K.S.A. 22–3504(1) provides that a court may correct an illegal sentence at any time. A defendant may challenge his or her sentence even after failing to challenge the sentence on direct appeal. See State v. Williams, 298 Kan. 1075, 1077, 319 P.3d 528 (2014).
Smith's claim is barred by res judicata.
Smith argues that because the district court misstated the severity level of his crime under the KSGA, he is entitled to an accurate computation of his guidelines sentence, regardless of whether he would benefit from that computation. He asks this court to remand the case to the district court “for the correct pronouncement of his potential guidelines sentence and redetermination of whether he is eligible for conversion to a guidelines sentence.”
But Smith has challenged his sentence as illegal before. In 2011, he claimed the court erred in not computing the applicable KSGA sentence and in not retroactively converting his indeterminate sentence to a lesser KSGA sentence. He was denied relief and failed to pursue an appeal. Because conversion is mandatory for certain designated offenses and categories under K.S.A.1993 Supp. 21–4724(b)(1), failure to properly convert a sentence constitutes an illegal sentence. State v. Gonzales, 255 Kan. 243, 250–51, 874 P.2d 612 (1994). Smith alleged his sentence was not converted when it should have been.
Although an illegal sentence can be challenged at any time, Smith cites no support for the position that the ability to appeal an illegal sentence at any time also means the ability to appeal an illegal sentence many times. See K.S.A. 22–3504. In fact, our Supreme Court has held that res judicata applies to motions to correct an illegal sentence under K.S.A. 22–3504. Such a motion cannot be used as a “ ‘do-over’ “ or to breathe new life into an issue already raised or abandoned. State v. Conley, 287 Kan. 696, 698, 197 P.3d 837 (2008). When Smith abandoned his appeal on the issue of the legality of his sentence, the dismissal was res judicata as to all issues that were raised or could have been raised regarding the legality of his sentence. See State v. Kingsley, 299 Kan. 896, 901, 326 P.3d 1083 (2014) (). Accordingly, the district court did not err in summarily...
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