State v. Gordon ( 2024 )

NOT DESIGNATED FOR PUBLICATION
No. 126,547
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
EDDIE GORDON SR.,
Appellant.
MEMORANDUM OPINION
Appeal from Shawnee District Court; BRETT A. WATSON, judge. Submitted without oral
argument. Opinion filed October 4, 2024. Affirmed.
Joseph A. Desch, of Law Office of Joseph A. Desch, of Topeka, for appellant, and Eddie Gordon
Sr., appellant pro se.
Carolyn A. Smith, assistant district attorney, Michael F. Kagay, district attorney, and Kris W.
Kobach, attorney general, for appellee.
Before ISHERWOOD, P.J., WARNER and COBLE, JJ.
PER CURIAM: Eleven years after pleading guilty to intentional second-degree
murder, Eddie Gordon Sr. filed his second motion to correct an illegal sentence claiming
his trial counsel was ineffective and the district court improperly calculated his criminal
history score. The district court summarily denied Gordon's motion and he moved for
reconsideration, which the court also denied. Gordon now appeals from the denial of his
motion to correct an illegal sentence, although not specifically from the district court's
rejection of reconsideration. On our comprehensive review of the record, we find various
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procedural and jurisdictional concerns prevent review of the merits of his claims, so we
affirm the district court's decision.
FACTUAL AND PROCEDURAL BACKGROUND
Following a shooting in November 2010, Gordon entered into a plea agreement
with the State and pleaded guilty to intentional second-degree murder in October 2011.
The district court found Gordon's criminal history score was C, based on one prior
juvenile person felony, battery against a juvenile detention officer (case No. 2003-JV-
1019), and one prior juvenile nonperson felony, attempted felony theft (case No. 2003-
JV-884). Gordon did not object to his criminal history finding, and the district court
sentenced him to 285 months' imprisonment. Although he filed no direct appeal of his
conviction or sentence, Gordon moved to withdraw his plea about eight months later. The
district court denied Gordon's motion after an evidentiary hearing, and he appealed. This
court affirmed the district court's decision. State v. Gordon, No. 113,513, 2016 WL
2609625, at *3-4 (Kan. App. 2016) (unpublished opinion). The Kansas Supreme Court
denied his petition for review, and the mandate was issued on May 11, 2017.
On December 21, 2020, Gordon filed his first pro se motion to correct an illegal
sentence, arguing the district court improperly calculated his criminal history score for
two reasons. First, he claimed his juvenile adjudications from his 2003 juvenile cases
were unconstitutional because the judge violated K.S.A. 38-1633 (Furse 2000), which
required a court to inform a juvenile of certain rights at a plea hearing. In support of the
motion, he included a transcript of his juvenile plea hearing. Gordon also argued his
juvenile adjudications should not have been calculated in his criminal history score, and
he made ineffectiveness claims against his trial counsel in this criminal case. In response,
and among other arguments—including that Gordon's attack on his 2004 juvenile
adjudications was untimely—the State argued Gordon could not present his claims in a
motion to correct an illegal sentence.
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The district court summarily denied Gordon's motion without a hearing on May
26, 2021, agreeing with the State's response and addressing the merits of Gordon's
argument to find he was not serving an illegal sentence. The district court determined
Gordon's sentence conformed to applicable statutory provisions and was neither vague
nor ambiguous, and the record conclusively showed he was not entitled to relief.
Although Gordon filed a notice of appeal from that decision, it appears the appeal was
not docketed. He filed another notice of appeal a year later, the resolution of which is
unclear from the record.
Then, on November 23, 2022, Gordon filed his second pro se motion to correct an
illegal sentence, asking the district court to construe the motion under both K.S.A. 22-
3504 and as a motion for habeas relief under K.S.A. 60-1507. In this motion, Gordon
argued a change in the law rendered his sentence illegal. That is, he reasoned that at the
time of his 2010 crime, K.S.A. 21-4710(d)(11) (now K.S.A. 21-6810[d][10]) controlled
his sentence but no appellate caselaw discussed the removal of the "applicable penalties"
language from the statute on how to score a defendant's criminal history, or his history
should have been scored under K.S.A. 21-6810(d)(5). He maintained his criminal history
score was incorrect and failed to conform to the Kansas Sentencing Guidelines, and his
score should have been I or H if calculated correctly. He renewed both his argument that
his trial counsel was ineffective for failing to object to his criminal history and his
constitutional argument that he was not provided the required reading of his rights at his
juvenile plea hearing. In response, the State argued Gordon's motion was untimely,
successive, and barred by the doctrine of res judicata.
The district court summarily denied this motion without a hearing on February 9,
2023. In its order, the court analyzed Gordon's arguments related to K.S.A. 21-6810(d)(5)
and K.S.A. 21-4710(d)(11), as well as multiple other statutes in effect at the time of
Gordon's sentencing to find his criminal history score was appropriately calculated.
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Gordon then moved for reconsideration on February 22, 2023, restating his
constitutional and statutory arguments regarding his criminal history score. He filed a
notice of appeal from the court's February 9 decision on March 6, 2023. In the district
court's later ruling on his reconsideration motion, filed March 8, 2023, the district court
addressed Gordon's constitutional argument in more detail. The district court found
Gordon was using a collateral challenge to the sentence in this case to mount a collateral
challenge to the adjudication in his 2003 juvenile case, which was procedurally improper.
Additionally, the court found that his claim failed on its merits and denied Gordon's
request for reconsideration.
THE DISTRICT COURT DID NOT ERR IN DENYING GORDON'S
MOTION TO CORRECT ILLEGAL SENTENCE
Gordon filed his appeal after the district court's initial decision but before the court
denied his reconsideration motion. Given the timing of his appeal and his prior attacks on
his sentence, we must consider various procedural and jurisdictional concerns.
Arguments by the parties and waiver of habeas claims
On appeal, Gordon argues the district court erred in denying his motion to correct
an illegal sentence because the sentencing court calculated his criminal history score
using "at least one invalid juvenile felony adjudication." Gordon contends he is not
challenging his juvenile adjudications directly, but instead he challenges the validity of
including them in his criminal history score. But in his supplemental pro se brief, for the
first time, Gordon argues his juvenile theft adjudication was improperly classified as a
felony, rather than a misdemeanor, which also rendered his sentence illegal. Notably,
Gordon makes no argument challenging the district court's decision to deny his request
for habeas relief under K.S.A. 60-1507, and as a result, Gordon has waived review of his
habeas claim—which largely consists of his ineffectiveness claims against his counsel for
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failing to object to his criminal history score. See State v. Davis, 313 Kan. 244, 248, 485
P.3d 174 (2021) (finding "[i]ssues not briefed are deemed waived or abandoned").
In response, the State raises multiple arguments contending we cannot consider
Gordon's appeal. First, the State argues we lack jurisdiction to consider his appeal
because the issues now raised were only raised in his motion to reconsider, after which no
notice of appeal was filed. Second, the State argues Gordon's motion under K.S.A. 60-
1507 was untimely and successive—an argument we need not address given the waiver
of his habeas claims. And third, the State alternatively reaches the merits to argue the
district court did not err in summarily denying Gordon's motion to correct his sentence
because his claims were conclusory and failed to show he was entitled to relief.
But first, jurisdiction
The State argues we lack jurisdiction to consider Gordon's appeal because the only
claim he now raises—the constitutionality of his juvenile adjudication and its subsequent
effect on his criminal history—was not considered in the final judgment from which
Gordon now appeals. According to the State, this issue was only raised in his motion for
reconsideration at the district court, and Gordon filed no appeal from the district court's
order denying his motion.
Whether jurisdiction exists is a question of law, subject to unlimited appellate
review. State v. Hillard, 315 Kan. 732, 775, 511 P.3d 883 (2022).
The right to appeal is entirely statutory. State v. Thurber, 313 Kan. 1002, 1007,
492 P.3d 1185 (2021). And an appellate court only obtains jurisdiction over the rulings
identified in the notice of appeal. That said, the rules of appellate procedure do not
require a party to specify the errors complained of, but rather to designate the judgment
or part thereof appealed from. Mundy v. State, 307 Kan. 280, 291, 408 P.3d 965 (2018).
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Under K.S.A. 2023 Supp. 60-2103(b), a notice of appeal "shall specify the parties taking
the appeal; shall designate the judgment or part thereof appealed from, and shall name the
appellate court to which the appeal is taken."
The State argues Gordon's notice of appeal, filed on March 6, 2023, "specifically
identifies the district court's memorandum decision and order 'denying motion to correct
sentence filed February 9, 2023.'" The State's argument ignores the remainder of the
notice, though, which also appealed from "any other adverse rulings . . . ." Even so,
Gordon's notice of appeal was filed two days before the district court issued its decision
denying his motion for reconsideration on March 8, 2023. He did not file a subsequent
notice of appeal after the district court issued its denial on his motion for reconsideration
and does not address this issue in his appellate briefing.
The State argues that we lack jurisdiction to review the sole issue Gordon's
counsel raises on appeal—the constitutional infirmity of his juvenile adjudications—
because he raised it only in his motion to reconsider, after which no notice of appeal was
filed. Were we to accept the State's argument on its face, we would find a lack of
jurisdiction—at least over that claim—on that basis. See Ponds v. State, 56 Kan. App. 2d
743,747-54, 437 P.3d 85 (2019) (where our court refused to review a motion for
reconsideration under the same procedural posture).
But on our careful review of the record, we discover the State reads Gordon's
second pro se motion to correct an illegal sentence much too narrowly. As recited above,
his motion specifically addressed the constitutionality of his juvenile adjudications and
his resulting criminal history score, even if the district court's initial decision on the
motion did not. Gordon's motion for reconsideration then simply restated his
constitutional claim in more detail, and the district court's ruling on the reconsideration
motion did too, as a result. But there is no doubt his initial motion contained the argument
he continues to raise.
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Premature notices of appeal, such as this one filed after a decision yet before a
ruling on a motion to amend or reconsider a judgment—have been found valid in our
appellate courts. See Supreme Court Rule 2.03 (2024 Kan. S. Ct. R. at 14) (addressing
premature notices of appeal); Resolution Trust Corp. v. Bopp, 251 Kan. 539, Syl. ¶ 3, 836
P.2d 1142 (1992) (finding valid premature notice of appeal); Cornett v. Roth, 233 Kan.
936, 939-40, 666 P.2d 182 (1983) (same); Hundley v. Pfuetze, 18 Kan. App. 2d 755, 756-
57, 858 P.2d 1244 (1993) (same). These rulings largely examine whether the earlier order
appealed from disposed of all claims of the parties and properly identified the part of the
judgment from which the appeal is taken with enough certainty that all parties know
which rulings are to be reviewed. See Resolution Trust Corp, 251 Kan. at 543; Supreme
Court Rule 2.03.
Here, because Gordon's initial pro se motion contained the argument he now
raises, even if was not addressed by the district court until its order on the motion for
reconsideration, we find his premature notice of appeal ripened into a valid notice when
the district court issued its second ruling. This is because the district court's first order did
not dispose of his constitutional claim; instead, it left the issue outstanding. Plus, given
the content of his motion to correct his sentence, his notice of appeal would have apprised
the parties as to the issues on which he sought review. For these reasons, we find we do
have jurisdiction over his claim that his prior juvenile adjudications were constitutionally
invalid.
Because this is the only jurisdictional issue raised, we continue to examine
Gordon's appeal.
Gordon's constitutionality claim is barred by another legal doctrine: res judicata.
Finding we have jurisdiction over the constitutionality issue presented by Gordon's
appellate counsel, we proceed to address how the constitutionality claim is precluded by
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another legal doctrine. The doctrine of res judicata generally prevents a person from
raising a particular claim after a court has ruled on it. State v. Moncla, 317 Kan. 413, 415,
531 P.3d 528 (2023). "The doctrine generally bars a claim when the same parties are
involved, the same claim was previously raised, and there has been a final judgment on
the merits." 317 Kan. at 415. Whether the doctrine of res judicata applies in a certain case
is an issue of law over which appellate courts exercise unlimited review. 317 Kan. at 415.
As the State points out, Gordon raised this precise issue in his first motion to
correct illegal sentence, filed in December 2020. In his first motion, Gordon specifically
claimed his constitutional rights were violated when the district court accepted his guilty
plea on his juvenile charges without first providing the proper advisements under K.S.A.
38-1633. And as such, Gordon argued the sentencing court improperly calculated his
criminal history score based on these juvenile adjudications. He now presents an identical
claim in this appeal.
The district court denied Gordon's first motion to correct sentence in May 2021 by
finding his sentence was not illegal. It specifically addressed, and summarily denied, his
current argument on appeal:
"The Defendant argues that his criminal history in 10-CR-2185 was incorrect
because it was based on his adjudication in 2003-JV-1019. He alleges that his plea in
2003-JV-1019 was unconstitutional because [the sentencing judge] did not follow the
statutory requirements for a plea pursuant to K.S.A. 22-3210 and K.S.A. 38-1633."
In Moncla, the Kansas Supreme Court found the summary denial of an illegal
sentence motion is a ruling on the motion's merits. 317 Kan. at 415. And as such,
Gordon's claim meets the elements of res judicata because (1) his claim involves the
same parties, the State and himself; (2) he raised the same claim in his first motion to
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correct an illegal sentence; and (3) the district court made a final judgment on the merits
of Gordon's claim when it summarily denied it. See 317 Kan. at 415.
Gordon makes no attempt to argue the doctrine of res judicata does not bar
consideration of his claim on appeal. Kansas courts have found some exceptions apply to
the ordinary res judicata principles, but Gordon does not contend any exception applies.
See State v. Murdock, 309 Kan. 585, 592, 439 P.3d 307 (2019) (finding res judicata not
applicable when a development in the law shows that a previous illegal sentence motion
was improperly denied).
As a result, res judicata bars consideration of this previously presented
constitutional claim. See State v. Kelly, 291 Kan. 868, 875, 248 P.3d 1282 (2011)
(finding res judicata barred consideration of claim that a defendant previously raised, the
district court ruled on, and the defendant did not appeal). Finding we cannot address the
claim, we continue to address Gordon's other arguments.
Our prudential decision not to consider Gordon's claim the sentencing court
miscalculated his juvenile theft adjudication
In Gordon's pro se supplemental appellate brief, he argues for the first time that his
juvenile adjudication for nonperson attempted felony theft under K.S.A. 21-3701(b) was
miscalculated. He reasons the attempted theft should have been scored as a class A
misdemeanor, not a felony, because the value of the stolen property was less than $1,000.
But in our thorough reading of Gordon's second motion to correct illegal sentence, we
find no such argument. He presents this claim for the first time on appeal.
Generally, we do not address issues on appeal that a party did not raise before the
district court. State v. Green, 315 Kan. 178, 182, 505 P.3d 377 (2022). Although there are
some exceptions to this rule, and usually a challenge to an illegal sentence can be raised
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at any time, Gordon presents no argument as to why we should hear his claim. See State
v. Johnson, 309 Kan. 992, 995, 441 P.3d 1036 (2019) ("[C]ertain issues, such as subject
matter jurisdiction or an illegal sentence, can be raised at any time regardless of whether
the issue was presented to the district court.").
Gordon did not object to the calculation of his criminal history based upon his
theft adjudication at the time of his sentencing in this 2010 case. In our review of the
record, we can locate no time where he provided the district court with the opportunity to
analyze this issue. We cannot now perform the necessary fact-finding to examine his
claim, particularly as to the value of the stolen property at the time of the crime in 2003.
The record before us shows only that his prior adjudication under K.S.A. 2003 Supp. 21-
3701(b)(2) was an attempted theft; value of at least $500 but less than $25,000, a
nonperson felony.
Supreme Court Rule 6.02(a)(5) (2024 Kan. S. Ct. R. at 36) requires an appellant to
explain why an issue that was not raised below should be considered for the first time on
appeal. See Johnson, 309 Kan. at 995. In State v. Godfrey, 301 Kan. 1041, 1044, 350
P.3d 1068 (2015), and State v. Williams, 298 Kan. 1075, 1085, 319 P.3d 528 (2014), the
Kansas Supreme Court warned that Supreme Court Rule 6.02(a)(5) would be strictly
enforced, litigants who failed to comply with this rule risked a ruling that the issue is
improperly briefed, and the issue would be deemed waived or abandoned. See State v.
Daniel, 307 Kan. 428, 430, 410 P.3d 877 (2018).
Gordon raises his claim regarding the classification of his juvenile theft
adjudication for the first time on appeal, provides no citation showing where he raised
this argument below, and provides no argument as to why we should now reach the issue.
Nor does he argue any exception to the rule against raising new claims for the first time
on appeal. As a result, we do not consider Gordon's supplemental issue. See Shelton-
Jenkins v. State, 317 Kan. 141, 144, 526 P.3d 1056 (2023). To the extent Gordon wishes
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to address the proper classification of his juvenile theft offense, he must raise that claim
in an appropriate motion to the district court and provide evidence supporting his
assertion for the district court to consider.
Gordon's statutory challenge to his sentence is waived.
As we pored over this record, we found that Gordon presented another claim in his
second motion that he did not raise in his first motion to correct an illegal sentence—that
is, he argued a change in the law rendered his sentence illegal. He maintained that at the
time of his crime in this case, K.S.A. 21-4710(d)(11) controlled the scoring of his
criminal history but no appellate caselaw discussed the later removal of the "applicable
penalties" language from that statute. In the alternative, he suggested his criminal history
should have been scored under K.S.A. 21-6810(d)(5). Because of these two statutory
issues, Gordon argued his criminal history score was incorrect and failed to conform to
the Kansas Sentencing Guidelines, and his score should have been I or H if calculated
correctly.
The State thoroughly responded to this claim in its response to Gordon's second
motion, and the district court systematically discussed these arguments in its decision. In
fact, the district court not only examined K.S.A. 21-4710(d)(11) and K.S.A. 21-
6810(d)(5) in its decision, but it went on to discuss other relevant statutes in effect at the
time Gordon's 2010 crime was committed. Concluding its analysis, the district court
found Gordon's claims lacked merit.
But Gordon failed to present an argument on these statutory issues in his appeal.
As a result, he has waived or abandoned review of these statutory claims. See Davis, 313
Kan. at 248.
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Conclusion
It is true that a motion to correct an illegal sentence under K.S.A. 22-3504 may be
raised at any time, and the scoring of a person's criminal history falls well within the
gambit of such a motion. But the above jurisdictional and procedural doctrines prevent us
from reaching the legality of Gordon's sentence on the bases on which he challenges it.
Although we have jurisdiction over his appeal of the constitutionality of his juvenile
adjudications, res judicata bars our review of that previously addressed challenge. His
argument on the classification of his juvenile theft adjudication is raised for the first time
on appeal. Finally, Gordon waived his claims under K.S.A. 60-1507 and his specific
statutory challenges to his sentence by failing to argue them on appeal. For these reasons,
we affirm the district court's denial of his second motion to correct an illegal sentence.
Affirmed.
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