State v. Perales

NOT DESIGNATED FOR PUBLICATION

No. 124,684

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

ENRIQUE C. PERALES,
Appellant.

MEMORANDUM OPINION

Appeal from Sedgwick District Court; SETH L. RUNDLE, judge. Opinion filed January 27, 2023.
Affirmed.

Sam S. Kepfield, of Hutchinson, for appellant.

Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before MALONE, P.J., HURST and COBLE, JJ.

PER CURIAM: Enrique C. Perales appeals the district court's summary denial of his
motion to correct illegal sentence. Perales claims the district court erred by counting his
two misdemeanor stalking convictions as separate convictions in determining his criminal
history score because the convictions arose from a single complaint. He also claims for
the first time on appeal that his prior misdemeanor battery conviction may be invalid
based on a discrepancy between the case number and the date of the conviction. Although
we disagree with the district court's stated reason for denying Perales' motion, we find the
district court reached the correct result. Thus, we affirm the district court's judgment.

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 FACTUAL AND PROCEDURAL BACKGROUND

In 2017, a jury found Perales guilty of one count of aggravated criminal sodomy
and one count of aggravated battery. The facts supporting Perales' convictions are not
relevant to this appeal, but are set out in State v. Perales, No. 119,815, 2019 WL
5089857, at *1-3 (Kan. App. 2019) (unpublished opinion). Perales' presentence
investigation (PSI) report showed that he had a criminal history score of D based on the
aggregation of three person misdemeanor convictions into a person felony. Of the three
person misdemeanors, two arose from Perales' convictions of two counts of stalking in
case No. 15CR427. The third person misdemeanor arose from a 1996 municipal
conviction of battery in case No. 03DV3843.

Before sentencing, Perales filed a written objection to his PSI report in which he
generally disputed his criminal history and specifically disputed the validity of the three
person misdemeanor convictions. But at the sentencing hearing, Perales withdrew his
objection to the PSI report and personally agreed that he was in criminal history D. Based
on the PSI report, the district court sentenced Perales to 253 months' imprisonment.

In his direct appeal, Perales claimed his sentence was illegal because the district
court erred in scoring his municipal battery conviction as a person misdemeanor. Perales
did not dispute the scoring of the two stalking convictions. This court denied Perales'
sentencing claim—along with the rest of his claims on appeal—and affirmed his
convictions and sentence. Perales, 2019 WL 5089857, at *13.

On July 22, 2021, Perales filed with the district court a "Pro Se Motion to Correct
Illegal Sentence." In the motion, Perales argued that his two prior stalking convictions
were incorrectly scored because they arose from the same criminal complaint. The State
responded that Perales' claim was barred by the doctrine of res judicata because Perales
had raised an illegal sentence challenge on direct appeal and could have raised his

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argument about the stalking convictions at that time. Without holding a hearing, the
district court adopted the State's response and summarily denied Perales' motion to
correct illegal sentence. Perales timely appealed the district court's judgment.

ANALYSIS

Perales claims the district court erred by summarily denying his motion to correct
illegal sentence. Perales' main argument on appeal is that the district court erred by
counting his two misdemeanor stalking convictions as separate convictions in
determining his criminal history score because the convictions arose from a single
complaint. He also argues for the first time on appeal that his prior misdemeanor battery
conviction may be invalid based on a discrepancy between the case number and the date
of the conviction. The State argues that the district court correctly found that Perales'
motion was barred by the doctrine of res judicata. Alternatively, the State contends that
Perales' claims fail on their merits.

We will first address the State's contention that Perales' motion was properly
denied under the doctrine of res judicata. Whether the doctrine of res judicata applies is
an issue of law over which appellate courts exercise unlimited review. State v. Salary,
309 Kan. 479, 481, 437 P.3d 953 (2019). As a general rule, courts will apply res judicata
to bar a claim where these requirements are met: "'(1) same claim; (2) same parties; (3)
claims were or could have been raised; and (4) a final judgment on the merits.'" Bogguess
v. State, 306 Kan. 574, 579, 395 P.3d 447 (2017).

The State argues that res judicata bars Perales' contentions because (1) the parties
are identical here and on Perales' direct appeal; (2) Perales has already raised a challenge
to the legality of his sentence on direct appeal; (3) Perales' could have raised his current
argument as part of his direct appeal; and (4) the direct appeal was decided on the merits.
The parties do not contest the identity of the parties and that Perales' direct appeal was

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decided on the merits. Instead, the contention lies with whether Perales raises the same
issue as in his direct appeal or if he could have raised the issue on direct appeal.

The Kansas Supreme Court has not applied the doctrine of res judicata in illegal
sentence cases because an issue could have been previously raised. Under K.S.A. 2021
Supp. 22-3504(a), the court may correct an illegal sentence "at any time" while the
defendant is serving the sentence. Our Supreme Court has interpreted the "at any time"
statutory language to mean that an issue must have been raised previously for res judicata
to apply to illegal sentence challenges. State v. Dickey, 305 Kan. 217, 222, 380 P.3d 230
(2016) ("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 illegal sentence which can be made at any time."); State v.
Alonzo, 296 Kan. 1052, 1057-58, 297 P.3d 300 (2013) ("Although this court has used
general res judicata language in these [illegal sentence] cases when describing the
doctrine—i.e., has stated the doctrine applies when an issue was or could have been
presented—typically the issue has been actually raised."); State v. Neal, 292 Kan. 625,
631, 258 P.3d 365 (2011) ("[T]he motion to correct illegal sentence is not subject to our
general rule that a defendant must raise all available issues on direct appeal.").

In other words, the doctrine of res judicata usually bars prior claims between the
same parties that were raised or could have been raised in prior proceedings. But on a
motion to correct illegal sentence that can be made at any time, res judicata does not
apply to bar a claim unless the claim has been raised and addressed before; it does not
matter that the claim could have been raised in prior proceedings.

The State cites State v. Murdock, 309 Kan. 585, 592-93, 439 P.3d 307 (2019), for
the proposition that our Supreme Court has moved away from the limited application of
res judicata in illegal sentence claims. But the issue addressed in Murdock was whether a
sentence that was legal when it was pronounced by the court can become illegal based on

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a subsequent change in the law. 309 Kan. at 589. We find nothing in the court's analysis
in Murdock that modifies our Supreme Court's precedent that the doctrine of res judicata
has limited application in a challenge to an illegal sentence.

Regarding whether Perales now raises an identical issue, the State concedes that
"[Perales] is raising a slightly different issue than in his direct appeal." In his direct
appeal, Perales claimed his sentence was illegal because the district court erred in scoring
his misdemeanor battery conviction as a person misdemeanor. Perales did not challenge
in his direct appeal the scoring of his two stalking convictions, which is the main claim
he makes in his motion to correct illegal sentence. No court has addressed Perales' current
claim that the district court erred by counting his two misdemeanor stalking convictions
as separate convictions because they arose from a single complaint. As a result, the
district court erred when it summarily denied Perales' motion on res judicata grounds.

Turning to the merits, Perales argues that his two prior stalking convictions cannot
both be used to calculate his criminal history score because they "consisted of two counts
in a single criminal complaint." A district court need not automatically hold a hearing on
a defendant's motion to correct illegal sentence. K.S.A. 2021 Supp. 22-3504(a) states that
a defendant shall receive a hearing "[u]nless the motion and the files and records of the
case conclusively show that the defendant is entitled to no relief." When the district court
summarily denies a motion to correct illegal sentence, this court's standard of review is de
novo "because appellate courts have the same access to the motion, records, and files as
the district court." State v. Howard, 287 Kan. 686, 691, 198 P.3d 146 (2008).

Perales argues that only a single conviction may arise from a single criminal
complaint, and so the two stalking convictions arising from the same complaint should
have been scored as a single conviction. K.S.A. 2021 Supp. 21-6810(a) defines a prior
conviction for criminal history purposes:

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 "A prior conviction is any conviction, other than another count in the current case, which
was brought in the same information or complaint or which was joined for trial with other
counts in the current case pursuant to K.S.A. 22-3203, and amendments thereto, which
occurred prior to sentencing in the current case, regardless of whether the offense that led
to the prior conviction occurred before or after the current offense or the conviction in the
current case."

The statute also states that "all convictions, whether sentenced consecutively or
concurrently, shall be counted separately in the offender's criminal history." K.S.A. 2021
Supp. 21-6810(c). The State argues that under the statute, both stalking convictions are
"prior convictions" subject to criminal history scoring. Perales acknowledges that a prior
conviction under the revised Kansas Sentencing Guidelines Act (KSGA) is defined in
K.S.A. 2021 Supp. 21-6810. Statutory interpretation is a question of law over which
appellate courts have unlimited review. State v. Stoll, 312 Kan. 726, 736, 480 P.3d 158
(2021).

There is nothing in the plain language of K.S.A. 2021 Supp. 21-6810(a) and (c)
that prevents every prior conviction from being scored in a defendant's criminal history,
even if the prior convictions arose from a single complaint. Perhaps Perales' confusion
arises from the statutory language that a "prior conviction is any conviction, other than
another count in the current case, which was brought in the same information or
complaint . . . which occurred prior to sentencing in the current case." (Emphasis added.)
Simply put, multiple convictions under a single complaint are not counted against each
other for criminal history purposes in the current case. But when the defendant is later
sentenced in other cases, every prior conviction in the defendant's criminal history is
scored, even if the prior convictions arose from a single complaint.

We can use Perales' case as an example. When Perales was convicted of two
counts of stalking in 15CR427, the two counts of stalking did not count against each
other in determining his criminal history score in that current case. But when Perales is
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later sentenced in other cases, each prior stalking conviction from 15CR427 is counted in
determining in his criminal history score, even though the prior stalking convictions arose
from a single complaint. Indeed, Kansas courts have routinely found that separate
convictions may arise from a single complaint for criminal history purposes. See, e.g.,
State v. Shipley, 62 Kan. App. 2d 272, 273-74, 510 P.3d 1194 (allowing three prior
convictions of aggravated robbery from the same complaint to apply to the defendant's
criminal history calculation), rev. denied 316 Kan. ___ (September 30, 2022).

Perales cites a couple of cases to try to support his argument. Perales first cites
State v. Roderick, 259 Kan. 107, 116, 911 P.2d 159 (1996), where the Kansas Supreme
Court held, among other things, that multiple convictions entered on the same day in
different cases are considered separate convictions for criminal history purposes. Perales
argues "that unlike [the defendant in] Roderick, his stalking convictions were both part of
the same case when charged." The Roderick court addressed K.S.A. 1994 Supp. 21-
4720(b) that describes the procedure for determining when consecutive sentences may be
imposed in "'multiple conviction cases.'" 259 Kan. at 113. The court held that the "double
rule" under K.S.A. 1994 Supp. 21-4720(b)(4) applies to multiple convictions arising from
multiple counts within an information, complaint, or indictment and not to multiple
convictions entered on the same date in different cases. 259 Kan. at 114. There is nothing
in the court's analysis in Roderick that supports Perales' interpretation of a "prior
conviction" as the term is defined in K.S.A. 2021 Supp. 21-6810.

Perales also cites State v. Arnett, 290 Kan. 41, 223 P.3d 780 (2010), which
involved a unique set of facts in which the defendant was charged with three counts of
forgery in a single complaint. The defendant pleaded no contest to all three charges. The
applicable forgery statute in Arnett used a progressive sentencing scheme, where prior
convictions under the statute were applied to elevate the severity of the sentence for later
violations. On appeal, our Supreme Court considered whether the defendant's plea to all
three forgery counts in the same complaint could serve as a "third conviction" under the

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sentencing scheme. 290 Kan. at 45. In addressing this issue, and with little more
explanation, the court found that "[i]t is also clear from the record that when the
defendant entered her plea to Count 1 of the complaint, the two remaining counts were
criminal charges, not criminal forgery convictions." 290 Kan. at 45. Perales focuses on
this language and argues that "after he pled to the first count of stalking, the second count
became merely a 'charge,' and was not a person misdemeanor."

Perales' reliance on Arnett is misplaced. First, Perales misinterprets the limited
holding in Arnett as to expand to all criminal history calculations. Nowhere in Arnett
does the court hold that using the conviction on the first count in a criminal complaint
precludes any other convictions from the same complaint from being used for criminal
history purposes. Second, Arnett involved a unique question about the application of a
statutory progressive sentencing scheme in which the State tried to use each conviction in
a single complaint to elevate the severity of the sentence for each of the charges. 290
Kan. at 42-44. Perales' case does not involve a similar progressive sentencing scheme.

A "prior conviction" under the KSGA is defined in K.S.A. 2021 Supp. 21-6810(a),
and there is nothing in the plain language of the statute that prevents every prior
conviction from being scored in a defendant's criminal history, even if the prior
convictions arose from a single complaint. Perales' cites no legal authority to support his
argument to the contrary. Perales' prior convictions of two counts of stalking arising from
the same complaint count as separate convictions in determining his criminal history.
Thus, the district court did not err in summarily denying Perales' motion to correct illegal
sentence based on this claim. See State v. Overman, 301 Kan. 704, 712, 348 P.3d 516
(2015) (holding district court's decision will be upheld if it is correct for any reason).

In the final paragraph of his brief, Perales asserts that his prior misdemeanor
battery conviction may be invalid based on a discrepancy between the case number and
the date of the conviction. Perales' PSI report shows the conviction date as July 24, 1996,

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with the case No. 03DV3843. He argues that a 1996 conviction with a 03DV3843 case
number "would appear to be a legal impossibility." Perales did not make this argument in
his motion to correct illegal sentence in district court. Perales "requests a remand for an
evidentiary hearing to settle the question."

The State argues that because Perales raises this issue for the first time on appeal,
"the burden to prove [Perales'] criminal history rests with [Perales]." The State concludes
that Perales has failed to meet his burden to prove error in the criminal history, and that
his argument should be denied. In support of its argument, the State relies on State v.
Roberts, 314 Kan. 316, 322, 498 P.3d 725 (2021), which outlined the burden shift of
K.S.A. 2020 Supp. 21-6814. The Roberts court explained:

"[T]he State bears the burden to prove criminal history at sentencing. The State can
satisfy its burden to establish criminal history by preparing for the court and providing to
the offender a summary of the offender's criminal history. If the defendant provides
written notice of any error in the summary criminal history report and describes the exact
nature of that error, then the State must go on to prove the disputed portion of the
criminal history. In the event the offender does not provide the required notice of alleged
criminal history errors, then the previously established criminal history in the summary
satisfies the State's burden, and the burden of proof shifts to the offender to prove the
alleged criminal history error by a preponderance of the evidence." 314 Kan. at 322.

Before sentencing, Perales filed a written objection to his PSI report in which he
generally disputed his criminal history and specifically disputed the validity of the three
person misdemeanor convictions, but he withdrew this objection at the sentencing
hearing and personally agreed he was in criminal history D. Perales did not raise the
specific objection he is now making about the misdemeanor battery conviction either at
sentencing or in his motion to correct illegal sentence.

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 On appeal, Perales simply points to the discrepancy between the case number and
the date of the conviction, and he summarily concludes that "the PSI may be in error."
Perales neither cites supporting documentation in the record to show that an error has
occurred, nor cites any legal authority to support his conclusory argument. Without a
greater demonstration of error—and how that error effects his criminal history—Perales
has not met his burden of proof. See State v. Myers, 62 Kan. App. 2d 149, 195, 509 P.3d
563 (finding defendant had not met his burden of proof when he had admitted to his
criminal history categorization and failed to point to evidence in the record to establish
that an error had been made), rev. denied 316 Kan. ___ (September 30, 2022). As a
result, Perales is entitled to no relief on this claim in this appeal.

Affirmed.

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