Opinion
No. 106,307.
2012-08-3
Leon L. BURDINE, Jr., Appellant, v. STATE of Kansas, Appellee.
Appeal from Sedgwick District Court; Anthony J. Powell, Judge. Michelle A. Davis, of Kansas Appellate Defender Office, for appellant. Matt J. Maloney, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Anthony J. Powell, Judge.
Michelle A. Davis, of Kansas Appellate Defender Office, for appellant. Matt J. Maloney, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before PIERRON, P.J., GREEN and LEBEN, JJ.
MEMORANDUM OPINION
PER CURIAM.
Leon L. Burdine, Jr., appeals the trial court's summary denial of his K.S.A. 60–1507 motion. On appeal, Burdine argues that the trial court erred in denying his K.S.A. 60–1507 motion without first conducting an evidentiary hearing. We disagree. Accordingly, we affirm.
In 2010, Burdine pled no contest to one count of aggravated battery. Burdine's presentence investigation report (PSI) stated that he had a criminal history score of A. Before sentencing, Burdine filed a motion objecting to his criminal history. The motion alleged that he had no “independent recollection of convictions numbers 1, 2, 19, 21, and 22” listed in his PSI.
At Burdine's sentencing, his counsel objected to his criminal history score, arguing that entry 1 from his PSI should not have been included because the conviction was from the 1970s and had been expunged over 20 years ago. Instead of continuing to dispute the other entries that Burdine initially disputed in his motion objecting to criminal history, Burdine's counsel stated the following: “But it appears the State has the record on the rest of the objection—to the entries I objected to.” The State agreed with Burdine's counsel's statement and noted that it had reviewed his criminal history with his defense counsel. The trial court then ruled that Burdine had a criminal history score of A and placed him on probation with an underlying sentence of 23 months.
On November 8, 2010, Burdine filed a K.S.A. 60–1507 motion in which he alleged that the trial court erred in ruling that his criminal history score was A and that he received ineffective assistance of trial counsel. On February, 25, 2011, the trial court held a nonevidentary hearing on Burdine's K.SA. 60–1507 motion. At the hearing, the State argued that res judicata barred the trial court from revisiting Burdine's arguments because they had been raised at his sentencing and in his posttrial motions, and both were rejected by the trial court. The trial court agreed with the State and denied Burdine's motions. The trial court declared:
“Here's the problem, Mr. Burdine. Let me explain it to you and why I have to rule against your motion. You can't get two bites at the apple. All the issues you're raising in front of me today you raised in front of Judge Waller and he denied your motions. Your remedy then from that is to appeal. You didn't appeal. You can't just come into civil court, which is kind of what this is, file a 1507 action and try to—attempt to relitigate those issues you've already raised in front of Judge Waller. That's why I have to deny your motion.”
Before we can determine if the trial court erred in denying Burdine's K.S.A. 60–1507 motion without first conducting an evidentiary hearing, we must first determine the following question: Are the arguments contained in Burdine's K.S.A. 60–1507 motion barred by res judicata? The State argues that res judicata precludes us from reviewing the two issues raised in Burdine's K.S.A. 60–1507 motion: (1) that the trial court erred in ruling that his criminal history score was A; and (2) that he received ineffective assistance of trial counsel. Burdine essentially concedes that res judicata precludes us from reviewing his sentencing allegation but maintains that we are not precluded from reviewing his ineffective assistance of counsel argument. Specifically, Burdine states that “[w]hile the district court may have been correct that a challenge to the sentence itself was res judicata, since Mr. Burdine and his attorney needed to make that challenge at sentencing, the issue of ineffective assistance of counsel had not previously been litigated.”
Whether the doctrine of res judicata applies in a certain situation is an issue of law over which appellate courts exercise de novo review. Rhoten v. Dickson, 290 Kan. 92, 106, 223 P.3d 786 (2010); Knowles v. Fleetwood Motorhomes of California., Inc., 40 Kan.App.2d 573, 577, 194 P.3d 38 (2008) (res judicata encompasses issue and claim preclusion). Res judicata prevents relitigation when the following conditions concur: (1) identity in the thing sued for, (2) identity of the cause of action, (3) identity of persons and parties to the action, and (4) identity in the quality of persons for or against whom claim is made. Waterview Resolution Corp. v. Allen, 274 Kan. 1016, 1023, 58 P.3d 1284 (2002) (discussing doctrine of collateral estoppel/issue preclusion); see also Shelton v. DeWitte, 271 Kan. 831, 836–37, 26 P.3d 650 (2001) (doctrine of res judicata prevents splitting single cause of action or claim into two or more suits). “Res judicata requires a prior final judgment on the merits.” State v. Flores, 283 Kan. 380, 384, 153 P.3d 506 (2007).
Where an appeal is taken from a conviction or sentence imposed, the judgment of the appellate court is res judicata as to all issues actually raised. Issues that could have been raised are deemed waived. Drach v. Bruce, 281 Kan. 1058, 1079, 136 P.3d 390 (2006), cert. denied549 U.S. 1278 (2007); see also State v. Conley, 287 Kan. 696, 698, 197 P.3d 837 (2008) (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”). But see Flores, 283 Kan. at 384–85 (general waiver rule does not bar motion to correct an illegal sentence because waiver rule contravenes statutory framework for illegal sentences).
Burdine's sentencing argument is barred by res judicata. In this case, Burdine's counsel challenged his criminal history score at sentencing. The trial court disagreed with Burdine's sentencing argument and ruled that his criminal history score was an A. Moreover, the trial court summarily denied Burdine's posttrial motions in which he objected to his criminal history score. Burdine failed to appeal from the trial court's rulings. Because Burdine failed to do so, his sentencing challenge is barred by res judicata. If Burdine disagreed with the trial court's ruling, then he should have appealed from that ruling. Burdine may not collaterally attack the trial court's sentencing ruling. Thus, his sentencing challenge fails under the doctrine of res judicata. Consequently, we refrain from addressing the merits of his sentencing challenge.
A similar analysis applies to Burdine's ineffective assistance of counsel argument. Although Burdine maintains that “the issue of ineffective assistance of counsel had not previously been litigated,” a review of the record indicates otherwise. After the trial court overruled Burdine's sentencing objection at his sentencing hearing, Burdine filed several post-trial motions alleging error. One of the motions filed by Burdine alleged that he received ineffective assistance from his trial attorney, James Crawford. The trial court summarily denied Burdine's ineffective assistance of counsel motion on February 8, 2011. Burdine did not appeal from the trial court's summary dismissal. Burdine cannot raise an ineffective assistance of counsel challenge collaterally in his K.S.A. 60–1507 action. Indeed, like Burdine's sentencing challenge, his ineffective assistance of counsel challenge falls under the doctrine of res judicata and therefore must fail.
For the foregoing reasons, the trial court did not err in summarily denying Burdine's K.S.A. 60–1507 motion. Burdine previously raised arguments similar to the arguments contained in his K.S.A. 60–1507 at his sentencing and in posttrial motions. Burdine failed to appeal from those rulings. Consequently, we affirm the trial court's decision and do not reach the merits of Burdine's K.S.A. 60–1507 motion.
Affirmed.