Opinion
No. 107,674.
2013-04-5
Brian J. McGOLDRICK, Appellant, v. STATE of Kansas, Appellee.
Appeal from Sedgwick District Court; Anthony J. Powell, Judge. Kristen B. Patty, of Wichita, for appellant. Lesley A. Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Anthony J. Powell, Judge.
Kristen B. Patty, of Wichita, for appellant. Lesley A. Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before McANANY, P.J., HILL and LEBEN, JJ.
MEMORANDUM OPINION
PER CURIAM.
This is Brian J. McGoldrick's fourth attempt to set aside the guilty pleas he entered in December 1999 to charges of aggravated robbery, possession of cocaine, and nine counts of robbery. His pleas caused the State to reduce or dismiss several other charges. At the sentencing hearing in January 2000, the district court declined to follow the plea agreement regarding sentencing and imposed more severe sentences.
McGoldrick promptly moved to withdraw his pleas and appealed his convictions and sentences. The district court denied McGoldrick's motion, and the Kansas Supreme Court dismissed McGoldrick's appeal, finding no appellate jurisdiction. See State v. McGoldrick, No. 85,377 (Kan.2001) (unpublished opinion).
In 2002, McGoldrick moved for relief under K.S.A. 60–1507, claiming his lawyer had been ineffective. The district court summarily denied relief, and that decision was affirmed on appeal. See McGoldrick v. State, 33 Kan.App.2d 466, 104 P.3d 416,rev. denied 279 Kan. 1007 (2005).
In 2009, McGoldrick moved to have his pleas voided because he was not informed of the maximum sentence he was facing. The district court summarily denied relief, and that decision was affirmed by this court under principles of res judicata. See State v. McGoldrick, No. 102,996, 2010 WL 5140006 (Kan.App.2010) (unpublished opinion), rev. denied 291 Kan. 915 (2011).
In 2011, McGoldrick filed another K.S.A. 60–1507 motion, this time to correct an illegal sentence. He raised substantially the same arguments previously raised in earlier proceedings. The district court denied relief, finding that McGoldrick's motion was successive and an abusive filing. Once again, McGoldrick appeals.
In a K.S.A. 60–1507 proceeding, the district court is not required to “entertain a second or successive motion for similar relief on behalf of the same prisoner.” K.S.A. 60–1507(c). Moreover, under Supreme Court Rule 183(d), the district court may not consider a second or successive motion for relief by the same movant when: “(1) the ground for relief was determined adversely to the movant on a prior motion; (2) the prior determination was on the merits; and (3) justice would not be served by reaching the merits of the subsequent motion.” 2012 Kan. Ct. R. Annot. 275. Unless a movant shows the existence of exceptional circumstances, the district court can dismiss a second or successive motion on the basis that it is an abuse of remedy. State v. Kelly, 291 Kan. 868, 872, 248 P.3d 1282 (2011). McGoldrick provides no basis for avoiding these rules.
Though dressed up somewhat differently, the core of McGoldrick's arguments remain the same. Under the doctrine of res judicata, once an issue has been presented to the court and decided in a final judgment, the same issue may not be raised a second time. See Upchurch v. State, 36 Kan.App.2d 488, 493, 141 P.3d 1175 (2006). Even if McGoldrick managed to raise a new issue in his latest K.S.A. 60–1507 motion, there is no reason it could not have been raised in one of his earlier efforts. See Lee v. State, 207 Kan. 185, 186, 483 P.2d 482 (1971) (stating that a movant under K.S.A. 60–1507 is presumed to have listed all of the grounds for relief and any subsequent motion alleging additional grounds may be properly denied).
The district court did not err in summarily denying relief.
Affirmed.