State v. McIntyre

1

NOT DESIGNATED FOR PUBLICATION

No. 117,787

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

TERRY D. MCINTYRE,
Appellant.


MEMORANDUM OPINION

Appeal from Douglas District Court; PAULA B. MARTIN, judge. Opinion filed July 6, 2018.
Affirmed.

Peter Maharry, of Kansas Appellate Defender Office, for appellant.

Kate Duncan Butler, assistant district attorney, Charles E. Branson, district attorney, and Derek
Schmidt, attorney general, for appellee.

Before GARDNER, P.J., PIERRON, J., and WALKER, S.J.

PER CURIAM: Terry D. McIntyre appeals his sentence, contending that his prior
conviction from Missouri was erroneously counted as a person crime, making his
sentence illegal. Because we have previously determined this issue adversely to
McIntyre, we affirm under the law of the case doctrine.




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Factual and procedural background

In 2000, a jury convicted Terry McIntyre of rape, aggravated kidnapping,
aggravated criminal sodomy, kidnapping, and aggravated robbery. The district court
found that McIntyre had a criminal history score of B, based in part on his pre-1993
Missouri convictions of robbery and exhibiting a deadly weapon, scored as person
felonies for criminal history purposes. The district court sentenced McIntyre to 645
months in prison, followed by 36 months of postrelease supervision.

Between 2002 and 2014, McIntyre filed several postconviction motions attacking
his sentence. See McIntyre v. State, 305 Kan. 616, 385 P.3d 930 (2016); McIntyre v.
State, 54 Kan. App. 2d 632, 403 P.3d 1231 (2017); State v. McIntyre, No. 116,004, 2016
WL 7324508 (Kan. App. 2016) (unpublished opinion), rev. denied 306 Kan. 1327
(2017); McIntyre v. State, No. 94,786, 2007 WL 1309576 (Kan. App. 2007) (unpublished
opinion). The extensive history involving those motions and appeals is more fully
described in the appellate opinions affirming his sentence. See, e.g., McIntyre, 54 Kan.
App. 2d at 632-36. But it is unnecessary to repeat all of that history here.

In May 2014, McIntyre filed a pro se motion to correct illegal sentence based on
State v. Murdock, 299 Kan. 312, 323 P.3d 846 (2014), overruled by State v. Keel, 302
Kan. 560, 357 P.3d 251 (2015). McIntyre argued that his Missouri convictions should
have been scored as nonperson crimes in his criminal history. The district court denied
McIntyre's motion and McIntyre appealed. On appeal, we affirmed the district court's
denial of that motion. McIntyre, 2016 WL 7324508, at *1.

In March 2016, McIntyre filed a second pro se motion to correct illegal sentence—
the motion underlying this appeal. This time, McIntyre argued that his Missouri
convictions should have been scored as nonperson crimes in his criminal history because
the district court improperly relied on unverified information in his presentence
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investigation report when calculating that score. The district court denied his motion,
finding that McIntyre had had time to review that report before sentencing yet had failed
to object to the information at sentencing.

McIntyre timely appealed. Three days after he filed his reply brief, the Kansas
Supreme Court decided the cases of State v. Wetrich, 307 Kan. 552, Syl. ¶ 3, 412 P.3d
984 (2018), State v. Moore, 307 Kan. 599, Syl. ¶ 3, 412 P.3d 965 (2018), and State v.
Buell, 307 Kan. 604, Syl. ¶ 3, 412 P.3d 1004 (2018). For convenience, we refer to these
as "the Wetrich cases." The State swiftly notified the court of the Supreme Court's ruling
in the Wetrich cases, then moved for permission to file a supplemental brief addressing
the impact of those cases on this one. After we granted permission, both parties filed
supplemental briefs. The State argued that McIntyre's sentence is not illegal because his
argument hinges on a "change in the law"—the Wetrich cases—and the Legislature has
clarified that "[a] sentence is not an 'illegal sentence' because of a change in the law that
occurs after the sentence is pronounced." K.S.A. 2017 Supp. 22-3504(3). McIntyre
argued to the contrary.

Thereafter, we noted a possible law of the case issue. An appellate court has
discretion to decide when to raise the law of the case doctrine sua sponte, as we do here.
See State v. Parry, 305 Kan. 1189, 1192, 390 P.3d 879 (2017). No asserted factual or
procedural matters are in controversy, and the doctrine, if it applies, is dispositive of the
appeal. We granted the parties leave to file another supplemental brief addressing that
issue. Thus, the parties have had a full, fair opportunity to address the issue. The State
filed a supplemental brief arguing that McIntyre's current motion is barred by the law of
the case doctrine. McIntyre contends the doctrine is inapplicable, and that the manifest
injustice exception to that doctrine applies.

Having reviewed the briefs, the record, and the relevant caselaw, we are now
prepared to rule.
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Can McIntyre shift horses midstream?

We first address whether McIntyre can raise on appeal a different argument than
he raised below. To the district court, McIntyre argued in the underlying motion that his
sentence is illegal because the district court relied on "uncomfirmed information" when
calculating his criminal-history score. But on appeal, he claims that his sentence is illegal
because the district court should have classified his 1981 Missouri conviction for
exhibiting a deadly weapon as a nonperson felony, since Kansas has no comparable
crime.

As a general rule, an issue not raised before the trial court cannot be raised for the
first time on appeal. See Supreme Court Rule 6.02(a)(5) (2018 Kan. S. Ct. R. 34).
McIntyre raises a new issue for the first time on appeal; thus, one would generally
conclude that this rule prevents him from doing so. But the general rule does not apply
here—K.S.A. 2017 Supp. 22-3504(1) specifically authorizes a court to "correct an illegal
sentence at any time," and our Supreme Court has interpreted that to mean that "'an
illegal sentence issue may be considered for the first time on appeal.' [Citation omitted.]"
State v. Gray, 303 Kan. 1011, 1014, 368 P.3d 1113 (2016). Because the Supreme Court
has held that an illegal sentence issue may be considered for the first time on appeal, we
find McIntyre may raise this issue on appeal despite his failure to do so below.

Is McIntyre's claim barred by the doctrine of res judicata?

The State also contends that McIntyre's claim is barred by the doctrine of res
judicata. That doctrine has four elements: (a) the same claim; (b) the same parties; (c)
claims that were or could have been raised; and (d) a final judgment on the merits. Cain
v. Jacox, 302 Kan. 431, Syl. ¶ 2, 354 P.3d 1196 (2015).

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We agree that all four elements necessary to establish res judicata are met here. In
2014, McIntyre argued that his Missouri convictions could not be classified as person
felonies because they were committed before Kansas enacted the Kansas Sentencing
Guidelines Act, citing Murdock. Those convictions included McIntyre's 1982 Missouri
conviction for exhibiting a deadly weapon. We denied that claim on its merits. McIntyre,
2016 WL 7324508, at *1.

Now, McIntyre claims that his 1982 Missouri conviction for exhibiting a deadly
weapon should not be classified as a person felony for a different reason—because
Kansas has no comparable crime under Wetrich's rationale. But the doctrine of res
judicata bars a plaintiff from bringing the same claim under a different legal theory. See
Stanfield v. Osborne Industries, Inc., 263 Kan. 388, 402, 949 P.2d 602 (1997). "Simply
changing the legal theory is not a sufficient distinction to give rise to a new claim for
purposes of res judicata." Midwest Crane and Rigging, LLC v. Schneider, No. 113,725,
2016 WL 1391805, at *5 (Kan. App. 2016) (unpublished opinion). McIntyre is merely
changing his legal theory, yet is bringing the same claim that we previously resolved
against him on the merits—that his Missouri convictions could not be classified as person
felonies. See McIntyre, 2016 WL 7324508, at *1. The other three requirements for res
judicata are clearly met, thus McIntyre's case would typically be barred by res judicata.

The Kansas Supreme Court held as much in State v. Conley, 287 Kan. 696, 698,
197 P.3d 837 (2008), finding that res judicata barred a defendant's illegal-sentence claim
if his claim had previously been adjudicated on the merits: "Res judicata applies to
motions to correct illegal sentence filed pursuant to K.S.A. 22-3504. Such a motion may
not be used to breathe new life into an appellate issue previously adversely determined."
See State v. Martin, 294 Kan. 638, Syl. ¶ 2, 279 P.3d 704 (2012). As Conley finds, the
fact that K.S.A. 22-3504 provides that such a motion may be brought "'at any time'" is
"not authorization for 'do-overs.'" 287 Kan. at 698; see State v. Johnson, 269 Kan. 594,
602, 7 P.3d 294 (2000) (holding that K.S.A. 22-3504 "may not be used as a vehicle to
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breathe new life into appellate issues previously abandoned or adversely determined");
State v. Neer, 247 Kan. 137, Syl. ¶ 2, 795 P.2d 362 (1990) (holding "where an appeal is
taken from the sentence imposed and/or a conviction, the judgment of the reviewing court
is res judicata as to all issues actually raised, and those issues that could have been
presented, but were not presented, are deemed waived").

But the Kansas Supreme Court, without mentioning Conley, appears to have
jettisoned it in State v. Dickey, 305 Kan. 217, 380 P.3d 230 (2016) (Dickey II). There, the
claim was identical to, and controlled by, the Kansas Supreme Court's determination in
State v. Dickey, 301 Kan. 1018, 1034, 350 P.3d 1054 (2015) (Dickey I)—that Dickey's
1992 Kansas burglary adjudication was misclassified as a person felony resulting in an
illegal sentence. Dickey II, 305 Kan. at 222. Although the claims were identical, the court
stated: "The State's remaining efforts to impose a procedural bar to the relief Dickey
seeks—arguments concerning retroactivity and res judicata—are all unavailing in the
context of a motion to correct an illegal sentence which can be made at any time." 305
Kan. at 222. Accordingly, albeit perhaps reluctantly, our court has followed suit. See
State v. McAlister, 54 Kan. App. 2d 65, 73, 396 P.3d 100 (finding Dickey II makes clear
that a sentence based on an incorrect criminal history score is an illegal sentence that can
be corrected at any time regardless of res judicata), rev. granted 306 Kan. 1326 (2017).
Because we are duty bound to follow precedent, we find that res judicata does not bar
McIntyre's motion to correct an illegal sentence. State v. Belone, 51 Kan. App. 2d 179,
211, 343 P.3d 128 (2015).

Does law of the case doctrine bar McIntyre's claim?

We next determine whether the law of the case doctrine bars McIntyre from
relitigating whether his Missouri conviction for exhibiting a dangerous weapon is a
person crime in Kansas for purposes of calculating his criminal history.

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As mentioned above, in 2014, McIntyre filed a motion to correct illegal sentence
based on Murdock. In that motion, McIntyre argued that his pre-1993 Missouri
convictions should have been scored as nonperson felonies for criminal history purposes.
McIntyre, 2016 WL 7324508, at *1. On appeal, McIntyre similarly argued that the
district court erred in classifying his pre-1993 Missouri convictions as person felonies.
We denied in 2016 his appeal from that motion to correct illegal sentence, stating in part:

"McIntyre does not dispute that the Missouri crimes of robbery and exhibiting a
dangerous weapon, or their comparable Kansas crimes, were person offenses at the time
McIntyre's current crimes of conviction [were] committed in 1999." McIntyre, 2016 WL
7324508, at *1.

McIntyre now claims that no Kansas crime is comparable to his 1982 Missouri
conviction for exhibiting a deadly weapon, so his sentence is illegal.

Under the law of the case doctrine, "[w]hen a second appeal is brought to this
court in the same case, the first decision is the settled law of the case on all questions
involved in the first appeal, and reconsideration will not normally be given to such
questions." State v. Collier, 263 Kan. 629, Syl. ¶ 3, 952 P.2d 1326 (1998). The doctrine is
appropriately grounded in the need for finality and efficiency of the judicial process and
"is applied 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."
Collier, 263 Kan. 629, Syl. ¶ 2.

McIntyre first contends that his current claim of an illegal sentence is not the same
claim as his previous claim that we decided adversely to him in 2016. McIntyre
acknowledges that in his previous appeal, he did not "dispute that the Missouri crimes of
robbery and exhibiting a dangerous weapon, or their comparable Kansas crimes, were
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person offenses at the time McIntyre's current crimes of conviction [were] committed in
1999." McIntyre, 2016 WL 7324508, at *1. These include the same crime that McIntyre
now contends is not comparable—his Missouri crime of exhibiting a dangerous weapon.
McIntyre contends his current claim was not resolved against him in his prior appeal
because his prior claim that this crime should not have been scored as a person crime was
based on a different legal theory.

But in so doing, McIntyre defines "claim" too narrowly. As clarified in Parry, 305
Kan. at 1197, we broadly construe an issue for purposes of the law of the case doctrine to
be the ultimate legal issue, and not the specific, underlying legal theory. In Parry, the
controlling issue was expressly determined to be whether the evidence should be
suppressed, rather than whether a particular reason for suppression had been previously
argued: "The issue decided against the State in Parry I is the same issue the State seeks
to pursue in this second prosecution, i.e., whether the evidence seized from Parry's
apartment should be suppressed." Parry, 305 Kan. at 1195. For that reason, the State
could not relitigate a motion to suppress based on its new legal theories of exigent
circumstances or inevitable discovery, instead of its previously defeated legal theory of
consent to search. 305 Kan. at 1197-98.

Similarly, McIntyre cannot relitigate his motion that his pre-1993 Missouri
conviction for exhibiting a deadly weapon should have been scored as a nonperson felony
for criminal history purposes based on his new legal theory based on Wetrich, instead of
his previously defeated legal theory based on Keel. He is merely raising the same issue
that we previously determined adversely to him, although he has repackaged it with a
different underlying legal theory. In both his 2014 motion to correct illegal sentence and
in his present motion, McIntyre claims that his pre-1993 Missouri conviction for
exhibiting a deadly weapon should have been scored as a nonperson felony for criminal
history purposes. That issue is the same—the difference in the underlying legal theories
matter not for purposes of the law of the case doctrine. See Parry, 305 Kan. at 1195.
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Moreover, the "doctrine applies not only to matters actually decided in the prior
proceedings, but also to matters for which the party failed to seek review in a prior
proceeding." Parry, 305 Kan. at 1195. McIntyre never expressly challenged the
classification of his earlier convictions, but petitioned for review of our 2016 ruling
solely on the applicability of Keel, even after this court pointed out his concession that
the crimes constituted person felonies. McIntyre is bringing the same claim, although
based on a different legal theory here.

McIntyre also contends that K.S.A. 2017 Supp. 22-3504(1) permits a defendant to
bring a motion to correct illegal sentence "at any time," and that the Kansas Supreme
Court has broadly construed that language, citing Dickey I, 301 Kan. at 1034, and other
cases. He reasons that applying the law of the case doctrine to motions to correct an
illegal sentence would undermine the clear statutory directive that such motions can be
brought at any time.

But despite the broad construction of the "at any time" language in other contexts,
the Kansas Supreme Court has specifically held that temporal flexibility does not trump
the law of the case doctrine:

"With respect to the argument that a claim of an illegal sentence can be made at
any time, that temporal flexibility does not trump the doctrines of res judicata or law-of-
the-case. In other words, the right to raise a claim of an illegal sentence at any time does
not mean that a defendant can file serial motions to correct an illegal sentence on the
same basis. See State v. Martin, 294 Kan. 638, 640-41, 279 P.3d 704 (2012) (holding that
res judicata bars motions to correct an illegal sentence that only raise previously decided
issues or issues that could have been presented but were not, and such repetitive motions
are subject to summary dismissal)." State v. Edwards, No. 109,647, 2016 WL 3659639,
at *5 (Kan. App. 2016) (unpublished opinion).

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Our court has repeatedly done the same, applying the law of the case doctrine to
motions to correct illegal sentence. See, e.g, State v. Brown, No. 115,372, 2017 WL
3001349, at *3 (Kan. App. 2017) (unpublished opinion) (concluding that defendant
showed no reason for us to disregard the law of the case doctrine from prior motion to
correct illegal sentence, thus the district court did not err in denying Brown's second
motion to correct illegal sentence); State v. Bell, No. 113,727, 2016 WL 3407707, at *4
(Kan. App. 2016) (unpublished opinion) (finding the issue whether the sentencing court
erred by aggregating three out-of-state person misdemeanor convictions into one person
felony was barred by the law of the case doctrine), rev. denied 306 Kan. 1321 (2017);
State v. Yohn, No. 104,832, 2011 WL 3658392, at *2 (Kan. App. 2011) (unpublished
opinion) (finding defendant could not use a motion to correct illegal sentence to raise an
issue that was adversely determined in his initial appeal), rev. denied 293 Kan. 1114
(2012).

"Although K.S.A. 22-3504(1) allows a court to correct an illegal sentence at any time,
such a motion is subject to the law of the case doctrine. State v. Conley, 287 Kan. 696,
698, 197 P.3d 837 (2008) (motion to correct illegal sentence '"may not be used to breathe
new life into an appellate issue previously adversely determined"')." State v. Merz, No.
100,573, 2010 WL 653094, at *6 (Kan. App. 2010) (unpublished opinion).

We thus find nothing in Kansas law barring our application of the law of the case
doctrine to motions to correct illegal sentences.

The weightier issue is whether we should apply that doctrine here. McIntyre
asserts that we should not, invoking the manifest injustice exception to that doctrine. See
State v. Kleypas, 305 Kan. 224, 245, 382 P.3d 373 (2016) (listing manifest injustice as
one of three exceptions), cert. denied 137 S. Ct. 1381 (2017). His sole point is that his
Missouri sentence for exhibiting a deadly weapon is not comparable to any Kansas
statute so it is not a person felony; thus, his criminal history score is incorrect and his
sentence is illegal, and because his sentence is illegal it would be manifestly unjust to
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apply the discretionary law of the case doctrine which would subject him to that illegal
sentence. We disagree.

The manifest injustice exception to the law of the case doctrine is one of three
"exceptionally narrow" grounds for departure from that rule of practice. McIlravy v.
Kerr-McGee Coal Corp., 204 F.3d 1031, 1035 (10th Cir. 2000). Those three exceptions
are: "(1) a subsequent trial produces substantially different evidence, (2) a controlling
authority has made a contrary decision regarding the law applicable to the issues, or (3)
the prior decision was clearly erroneous and would work a manifest injustice." Kleypas,
305 Kan. at 245.

We note that the third exception, invoked by McIntyre, permits reconsideration
when "the prior decision was clearly erroneous and would work a manifest injustice."
Kleypas, 305 Kan. at 245. Both are now required, despite prior law which stated these
two requirements in the disjunctive. See, e.g., Kleypas, 305 Kan. 224, Syl. ¶ 5. "To
invoke the exception to the law of the case doctrine that allows reconsideration of a
clearly erroneous decision, it must be plain that the prior decision was in error and results
in manifest injustice." Kleypas, 305 Kan. 224, Syl. ¶ 8.

Here, prior error is not plain. In fact, McIntyre does not contend that our prior
decision was clearly erroneous. Instead, McIntyre relies on the Wetrich cases—cases that
were not decided until after we issued our 2016 decision on his motion for illegal
sentence. Substantively, then, the change in intervening law exception would appear to be
the more appropriate exception to consider. McIntyre does not argue that exception,
however, perhaps because it would bring him too squarely within the State's additional
argument that "[a] sentence is not an 'illegal sentence' because of a change in the law that
occurs after the sentence is pronounced." K.S.A. 2017 Supp. 22-3504(3). Nor do we find
any manifest injustice in giving McIntyre the benefit of the sentencing law that was in
effect when we decided his appeal in 2016. He chose not to file a petition for review with
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the Kansas Supreme Court on the comparability issue and has not identified any
impediment that prevented him from doing so. We find this exception inapplicable.

We conclude that McIntyre's challenge to the classification of his Missouri
conviction for exhibiting a deadly weapon as a person felony for the purposes of
determining his criminal history score is barred by the law of the case doctrine.
Accordingly, we affirm. See Price v. Simmons, 31 Kan. App. 2d 631, Syl. ¶ 4, 71 P.3d
1164 (2002) ("A judgment of the district court may be affirmed on appeal if it was right
for any reason."). We find it unnecessary to reach the State's contention that K.S.A. 2017
Supp. 22-3504(3) additionally bars McIntyre's claim of an illegal sentence.

Affirmed.