State v. Bell

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NOT DESIGNATED FOR PUBLICATION

No. 113,727

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

J.D. BELL,
Appellant.


MEMORANDUM OPINION

Appeal from Wyandotte District Court; J. DEXTER BURDETTE, judge. Opinion filed June 17,
2016. Affirmed.

Steven D. Alexander, of Kansas City, for appellant.

Edmond Brancart, chief deputy district attorney, Jerome A. Gorman, district attorney, and Derek
Schmidt, attorney general, for appellee.

Before BRUNS, P.J., POWELL and GARDNER, JJ.

Per Curiam: J.D. Bell appeals the district court's denial of his fifth motion to
correct illegal sentence. As he has done several times before, Bell contends that the
sentencing court erred by aggregating three out-of-state person misdemeanor convictions
into one person felony. We find, however, that this issue was previously resolved against
Bell, so the law of the case doctrine bars his contention. Bell also contends that the
district court's application of the Kansas Sentencing Guideline Act (KSGA) violates the
Ex Post Facto Clause of the United States Constitution. But the Kansas Supreme Court
previously resolved such claim adverse to Bell's position. Finding no error, we affirm.
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FACTS

This appeal arises out of the fifth motion to correct illegal sentence filed by Bell
challenging his criminal history score at the time he was sentenced. It appears that Bell
initially filed a pro se motion to correct illegal sentence on November 30, 2004.
However, Bell voluntarily dismissed the motion before the district court issued a ruling.

In an appeal from the denial of his third motion to correct illegal sentence, this
court summarized the history of Bell's case as follows:

"Bell pled guilty to one count of second-degree murder on July 11, 2003. The
presentence investigation report assigned Bell a criminal history score of D. According to
the report, Bell's criminal history included 19 misdemeanor convictions. Three of the
misdemeanors were municipal assault convictions from Kansas City, Missouri. Those
three convictions were grouped in the report to equal the effect of one person felony
conviction. Bell objected to this criminal history score and filed a motion to withdraw his
guilty plea. At the hearing on his motion to withdraw his plea, Bell's lawyer withdrew the
objection to Bell's criminal history score and the court denied Bell's motion to withdraw
his guilty plea.

"Bell appealed the denial of his motion to withdraw his guilty plea and this court
upheld Bell's conviction in State v. Bell, No. 91,767, unpublished opinion filed March 18,
2005. In ruling on Bell's complaints, the court noted not only that Bell had misinformed
his lawyer, Charles Ball, about his criminal history, but Bell had also pled guilty against
Ball's advice. The court found that Bell was aware of the possible maximum sentence and
that Ball had no conflict of interest. Finally, the court noted, 'inaccurately predicting the
actual penalty does not constitute ineffective assistance of counsel.' Slip op. at 3.

"Then in February 2006, Bell filed a motion to correct an illegal sentence,
arguing his three Missouri assault convictions could not be converted to a felony because
they were more than 3 years old at the time of his conviction for second-degree murder.
At the hearing, the district court held that in Missouri, unlike Kansas, assault is classified
as either a Class A or B offense, both felonies, or a Class C offense, a misdemeanor. All
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three classes are considered person crimes. The State equated the elements of Missouri's
assault law to the elements of battery in Kansas. The district court concluded Bell's
sentence was legal and the assault convictions were 'person misdemeanors and the three
of them as an aggregate form the basis for a person felony classification.' Bell appealed
this ruling in September 2006.

"Once again this court affirmed Bell's sentence in State v. Bell, No. 97,986,
unpublished opinion filed June 13, 2008. The panel found that when Bell's claim that his
Missouri convictions could not be aggregated to form a felony because they were more
than 3 years old was rejected by the district court, he tried to advance a new theory on
appeal—that one of his Missouri misdemeanor convictions was equivalent to a Class C
misdemeanor in Kansas and, thus, not subject to aggregation. Slip op. at 4-5. The court
declined to address this new issue, but noted:

"'The State has included some arguments in its brief that indicate that it
could have demonstrated that the Missouri conviction at issue was more akin to
an attempted domestic battery, which would be at least a Class B misdemeanor
under Kansas law, than to a mere attempted battery, a Class C misdemeanor
under Kansas law. The State did not have the opportunity to present evidence in
support of that argument since the issue was not raised in the district court.'
[Citation omitted.]

"Not giving up, Bell filed another motion to correct an illegal sentence in January
2009, alleging two of the three Missouri convictions were based on pleas entered without
the assistance of counsel and, thus, could not be used in a criminal history score. Bell also
again raised the claim that because Missouri classified his municipal convictions as Class
C misdemeanors, they must be so classified in Kansas and, therefore, could not be
aggregated to form a person felony. Finally, Bell alleged that all of his attorneys had
rendered ineffective assistance of counsel because they were unfamiliar with the law
regarding the classification of the Missouri convictions.

"The district court succinctly denied Bell's motion, stating the motion was
'hereby summarily denied as having no legal merit in fact or law.' The court made no
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further factual findings or conclusions of law." State v. Bell, No. 102,457, 2010 WL
3063168, *1-2 (Kan. App.) (unpublished opinion), rev. denied 291 Kan. 913 (2010).

This court ultimately found that the attorneys representing Bell at the time of his
plea and sentence did not provide inadequate assistance of counsel for several reasons. In
doing so, the panel determined that there was "nothing any attorney could have done to
convince the court to assign a criminal history score other than D because that is the
correct score." (Emphasis added.) 2010 WL 3063168, at *4.

On July 22, 2011, Bell filed another motion to correct illegal sentence through
counsel, in which he again argued that the district court erred by aggregating his Missouri
convictions. More specifically, he argued that one of the Missouri convictions was
comparable to only attempted battery in Kansas, which is a class C misdemeanor. As
such, he argued that his criminal history score should have been H instead of D. After
issuing a show-cause order, this court summarily affirmed the district court's denial of his
motion to correct illegal sentence, reasoning that Bell should have raised the issue in his
prior motions to correct illegal sentence.

Bell filed the motion to correct illegal sentence that is the focus of this appeal on
May 30, 2014. In the motion, which was filed pro se, Bell argued pursuant to State v.
Murdock, 299 Kan. 312, 323 P.3d 846 (2014), modified by Supreme Court order
September 19, 2014, overruled by State v. Keel, 302 Kan. 560, 357 P.3d 251 (2015), cert.
denied 136 S. Ct. 865 (2016), that his Missouri convictions should not have been
aggregated. Approximately 5 months later, Bell's attorney filed a supplement to the pro se
motion.

The State filed a response to the supplemental motion on December 2, 2014,
arguing that Murdock was not intended to apply retroactively in a collateral attack. The
State also argued that Bell had previously raised the same issues and they had been
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decided adversely to him. Accordingly, the State concluded that the relief requested was
barred by the law of the case doctrine and res judicata.

Shortly before the district court conducted a hearing on the motion, H.B. 2053—
which superseded Murdock—became effective on April 2, 2015. During a hearing held
about a week later, Bell's counsel asked that the district court not retroactively apply H.B.
2053 to his client. He did not argue that the three prior Missouri misdemeanor
convictions were not comparable to battery in Kansas, nor did he argue that applying the
amendments constituted a violation of the Ex Post Facto Clause. Ultimately, the district
court applied H.B. 2053 retroactively to Bell's sentence.

On April 21, 2015, the district court filed a journal entry memorializing its
decision, and Bell timely appealed. During the pendency of this appeal, our Supreme
Court specifically overruled Murdock in State v. Keel, 302 Kan. 560, 357 P.3d 251
(2015), cert. denied 136 S. Ct. 865 (2016).

ANALYSIS

Bell raises two issues on appeal. First, he attempts to challenge his criminal
history score for at least the sixth time. Although his arguments in this appeal are not the
same as the ones he made before the district court, this court has already concluded that
his criminal history score was correct. Second, he argues for the first time on appeal that
including pre-KSGA convictions in his criminal history score violates the Ex Post Facto
Clause of Article I, Section 10 of the United States Constitution. We find neither
argument to have merit.

On appeal, Bell has abandoned his Murdock claim and reverted to his old
argument that the prior Missouri misdemeanor convictions should not have been included
in his criminal history score. As the State points out, the law of the case doctrine—and
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perhaps res judicata—preclude the presentation of this issue again. The law of the case
doctrine generally prevents relitigation of the same issues within successive stages of the
same suit. Venters v. Sellers, 293 Kan. 87, 99, 261 P.3d 538 (2011). Although the two
doctrines are not identical, they both serve similar goals. The purpose of the law of the
case doctrine is "to avoid indefinite relitigation of the same issue, to obtain consistent
results in the same litigation, to afford one opportunity for argument and decision of the
matter at issue, and to assure the obedience of lower courts to the decisions of appellate
courts." State v. Collier, 263 Kan. 629, Syl. ¶ 2, 952 P.2d 1326 (1998); see Cain v. Jacox,
302 Kan. 431, 434, 354 P.3d 1196 (2015) ("The doctrine of res judicata . . . demands that
a party not be vexed with litigation twice on the same cause."). Here, the motion to
correct illegal sentence that is the subject of this appeal was filed in the same criminal
case in which this court previously addressed the validity of Bell's criminal history score.

As indicated above this court has previously determined that Bell's criminal
history score was correct. Specifically, it was determined that Bell's attorney was not
ineffective because "[f]rankly, there is nothing any attorney could have done to convince
the court to assign a criminal history score other than D because that is the correct
score." (Emphasis added.) 2010 WL 3063168, at *4. Because the Kansas Supreme Court
denied Bell's petition for review, a mandate was issued on October 20, 2010.
Furthermore, Bell raised this issue in his second motion to correct illegal sentence. After
the district court denied the motion on the merits, Bell abandoned the claim on appeal.
After this court affirmed, the Kansas Supreme Court denied review, and a mandate was
issued on November 5, 2008.

A motion to correct illegal sentence "may not be used as a vehicle to breathe new
life into appellate issues previously abandoned or adversely determined." State v.
Johnson, 269 Kan. 594, 602, 7 P.3d 294 (2000). Stated another way, Bell cannot
continuously raise the same argument after receiving adverse determinations. See State v.
Conley, 287 Kan. 696, 698, 197 P.3d 837 (2008). Therefore, we conclude that Bell's
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challenge to the classification of his three Missouri misdemeanor convictions as a person
felony for the purposes of determining his criminal history score is barred by the law of
the case doctrine. See State v. Yohn, No. 104,832, 2011 WL 3658392, at *2 (Kan. App.
2011) (unpublished opinion), rev. denied 293 Kan. 1114 (2012) (finding that defendant
could not use a motion to correct illegal sentence to raise an issue that was adversely
determined in his initial appeal).

Next, Bell claims for the first time on appeal that the "application of Bell's two (2)
prior 1993 pre-KSGA out-of-state misdemeanor violations at sentencing violates the
constitutional ex post facto provisions of the U.S. Constitution." Constitutional grounds
for reversal asserted for the first time on appeal are not properly before an appellate court.
State v. Bowen, 299 Kan. 339, 354, 323 P.3d 853 (2014). Moreover, Bell fails to abide by
Supreme Court Rule 6.02(a)(5) (2015 Kan. Ct. R. Annot. 41) by explaining why the issue
is properly before the court. Our Supreme Court has recently emphasized that "Rule
6.02(a)(5) means what it says and is ignored at a litigant's own peril." State v. Godfrey,
301 Kan. 1041, 1043, 350 P.3d 1068 (2015); see State v. Williams, 298 Kan. 1075, 1085,
319 P.3d 528 (2014).

Notwithstanding, even if we were to consider Bell's claim, we find it difficult to
discern whether Bell is arguing that applying H.B. 2053 to his sentence is a violation of
the Ex Post Facto Clause or whether applying the KSGA, as a whole, to his pre-KSGA
convictions violates the Ex Post Facto Clause. To the extent that Bell is arguing that
application of the amendments is a violation of the Ex Post Facto Clause, our Supreme
Court recognized in Keel that "classifying a prior conviction or juvenile adjudication
based on the classification in effect for the comparable offense when the current crime
was committed complies with the Ex Post Facto Clause of the United States
Constitution." 302 Kan. at 589 (citing Nichols v. United States, 511 U.S. 738, 747, 114 S.
Ct. 1921, 128 L. Ed. 2d 745 [1994]). Accordingly, we find Bell's concerns over
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retroactively applying the classification rule in H.B. 2053 are not valid in light of Keel.
See 302 Kan. at 590-91.

To the extent that Bell argues that the KSGA—as a whole—violates the Ex Post
Facto Clause by scoring crimes that occurred prior to its effective date, the Kansas
Supreme Court long ago resolved the issue. See State v. LaMunyon, 259 Kan. 54, 67, 911
P.2d 151 (1996); State v. Jones, 24 Kan. App. 2d 669, 670, 951 P.2d 1302 (1998). In
LaMunyon, our Supreme Court explained that "the KSGA does not operate
retrospectively to punish the activity which occurred prior to the effective date of the
KSGA and therefore does not violate the prohibition against ex post facto laws." 259
Kan. at 67. Therefore, we conclude that Bell's claim of a violation of the Ex Post Facto
Clause is without merit.

Affirmed.