State v. McGinn

NOT DESIGNATED FOR PUBLICATION No. 128,788 IN THE COURT OF APPEALS OF THE STATE OF KANSAS STATE OF KANSAS, Appellee, v. CARLON D. MCGINN, Appellant. MEMORANDUM OPINION Appeal from Sedgwick District Court; KEVIN M. SMITH, judge. Submitted without oral argument. Opinion filed November 13, 2026. Affirmed. Joseph A. Desch, of Law Office of Joseph A. Desch, of Topeka, for appellant. Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Kris W. Kobach, attorney general, for appellee. Before WARNER, C.J., MALONE and HILL, JJ. PER CURIAM: Carlon D. McGinn appeals the district court's summary denial of his pro se motion to correct illegal sentence. After McGinn pleaded guilty to rape and aggravated criminal sodomy committed in 2000, the district court sentenced him to 554 months' imprisonment based on a criminal history of B that included, as a person felony, a Colorado conviction for the crime of menacing. McGinn's motion claimed that his Colorado menacing conviction should have been scored as a nonperson felony because the crime is not comparable to any similar 2000 Kansas crime. He has unsuccessfully raised this same claim before, and the district court summarily denied the motion based 1 on res judicata. On appeal, McGinn claims the district court erred in finding the motion was barred by res judicata, and he reasserts his claim that his sentence is illegal because of an incorrect criminal history score. After thoroughly reviewing the record and the parties' arguments, we reject McGinn's claim and affirm the district court's judgment. FACTUAL AND PROCEDURAL BACKGROUND In 2003, McGinn pleaded guilty to rape and aggravated criminal sodomy and was sentenced to 554 months' imprisonment based on a criminal history of B that included as a person felony a conviction under Colo. Rev. Stat. § 18-3-206 (2000) for the crime of menacing. The record does not reflect that McGinn directly appealed his sentence. In 2013, McGinn moved to correct illegal sentence, arguing his Colorado menacing conviction should have been classified as a nonperson felony and his criminal history score was incorrectly calculated. The district court denied that motion, finding McGinn invited any error by stipulating to his criminal history score at sentencing. This court initially remanded the claim to the district court for further review. State v. McGinn, No. 112,697, 2016 WL 758310, at *2-3 (Kan. App. 2016) (unpublished opinion) (McGinn I). On remand, the district court again denied the motion, finding the Colorado menacing statute was substantially similar and comparable to the Kansas aggravated assault statute, and this court affirmed that ruling. State v. McGinn, No. 117,495, 2018 WL 3485725, at *3-4 (Kan. App. 2018) (unpublished opinion) (McGinn II). In 2019, McGinn filed a second motion to correct illegal sentence. The district court reviewed the motion and noted that it "raise[d] no new issues and merely allege[d] that the district and appellate courts were wrong." The district court found the motion was barred by res judicata. On appeal, this court skipped over any preclusion analysis and instead rejected McGinn's claims on the merits. State v. McGinn, No. 122,908, 2022 WL 1197320, at *1 (Kan. App. 2022) (unpublished opinion) (McGinn III). This court broke 2 down McGinn's various claims attacking the scoring of his Colorado conviction into three challenges: (1) that the classification of his Colorado conviction violated his rights against judicial fact-finding under Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000); (2) that the Colorado statute on menacing created two ways of committing the crime and the State had failed to prove which version his conviction was based on; and, (3) that the court should apply the recently announced comparability test from State v. Wetrich, 307 Kan. 552, Syl. ¶ 3, 412 P.3d 984 (2018). After examining the merits of each claim, this court found that McGinn was entitled to no relief and affirmed the district court's judgment. 2022 WL 1197320, at *1-3. A mandate was issued on January 5, 2023. That same month, McGinn filed two more pro se motions attacking his sentence. These motions were denied and McGinn's appeals of the denials were dismissed by the district court for failure to docket. On October 25, 2023, McGinn filed another pro se motion styled as a habeas corpus action but correctly construed by the district court as a motion to correct illegal sentence. McGinn's motion again contended that his Colorado menacing conviction was misclassified as a person felony because the statute contains two alternative means of committing the crime and it was unclear which he had violated, rendering any comparison to a Kansas offense impossible without impermissible factfinding. The State filed a response, arguing McGinn's latest challenge was barred under the res judicata doctrine due to his prior unsuccessful motions raising the same claim. The district court summarily denied the motion based on res judicata. McGinn filed an untimely notice of appeal. Following a remand from this court for the district court to determine whether the notice of appeal was timely filed, the parties agreed that McGinn should be allowed to proceed with his appeal and this court retained jurisdiction. McGinn has received appointed counsel for this appeal. 3  ANALYSIS Did the district court err by denying McGinn's motion to correct illegal sentence on the grounds of res judicata? On appeal, McGinn claims the district court erred by denying his motion to correct illegal sentence based on res judicata. McGinn argues that the doctrine of res judicata does not apply to a motion to correct illegal sentence. As for the substantive illegal sentence issue, McGinn again argues that his Colorado menacing conviction should not have been scored as a person felony. But he adds a new argument, admittedly for the first time on appeal, that his Colorado menacing conviction is not comparable to any similar 2001 Kansas crime "due to its lesser culpable mental state." The State argues the district court did not err in denying McGinn's motion based on res judicata, though it also argues that McGinn is not entitled to relief even if his claim is not precluded. Whether a preclusionary doctrine such as res judicata bars a claim is a question of law, subject to unlimited review. State v. Moncla, 317 Kan. 413, 415, 531 P.3d 528 (2023). And an appellate court reviews de novo the district court's summary denial of a motion to correct an illegal sentence because it has before it the same motion, record, and files as the district court. State v. Martin, 294 Kan. 638, 640, 279 P.3d 704 (2012). "[R]es judicata prevents a litigant from raising claims that the courts have resolved." Moncla, 317 Kan. at 415. Under the doctrine, "'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.'" State v. Kingsley, 299 Kan. 896, 901, 326 P.3d 1083 (2014). Generally speaking, res judicata "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." Moncla, 317 Kan. at 415. In Moncla, the Kansas Supreme Court recognized that "[r]es judicata bars a defendant from raising the same claim in a second 4 or successive motion to correct an illegal sentence under K.S.A. 2022 Supp. 22-3504, unless subsequent developments in the law shine new light on the original question of whether the sentence was illegal when pronounced." 317 Kan. 413, Syl. ¶ 1. A defendant cannot use successive motions to correct illegal sentence to repetitively present arguments that have been considered and rejected. 317 Kan. at 415-17. There is no dispute that this appeal involves the same parties as McGinn's prior appeals of the denials of his prior motions to correct an illegal sentence, nor that there were final judgments on the merits of his previous illegal-sentence claims. But McGinn argues res judicata does not apply to this appeal because although his prior motions raised a "similar challenge to his sentence," he is raising a new claim in his most recent motion to correct an illegal sentence. He also reasons that res judicata does not apply because his present claim is based on "a number of developments in illegal sentence jurisprudence." Neither of McGinn's explanations is persuasive. First, McGinn's claim is not new. His argument is a repackaged attempt to address the same challenge other panels of this court have already resolved: Whether his Colorado conviction was misclassified when calculating his criminal history score because there is no comparable Kansas offense. In his first motion to correct illegal sentence, McGinn argued his Colorado menacing conviction was misclassified as a person crime because the Colorado statute is not comparable to the Kansas aggravated assault statute in effect at the time of his 2001 conviction in Colorado. This court, citing the "identical to, or narrower than" elements test from Wetrich, 307 Kan. at 562, found McGinn's Colorado felony menacing conviction was properly classified as a person offense because it was comparable to a Kansas offense, either aggravated assault or simple assault. McGinn II, 2018 WL 3485725, at *3. The Kansas Supreme Court denied McGinn's petition for review. 310 Kan. 1068 (2019). 5  In his second motion, McGinn argued, in part, that the Colorado conviction was not comparable to a Kansas person felony because the Colorado offense of menacing creates two alternative means of the crime and the State did not prove which version he committed. This court found the Colorado menacing conviction was properly scored as a person felony because both versions of the Colorado offense are comparable to person crimes in Kansas. McGinn III, 2022 WL 1197320, at *2-3. The Kansas Supreme Court again denied McGinn's petition for review of this decision. 316 Kan. 762 (2022). In his third motion, McGinn again argues that his Colorado conviction is not comparable to any Kansas offense. In district court, McGinn rehashed the identical argument he made in his second motion that the Colorado statute on menacing contains two alternative means of committing the crime and it was unclear which he had violated, rendering any comparison to a Kansas offense impossible. On appeal, he adds a new argument that his Colorado menacing conviction is not comparable to any similar 2001 Kansas crime due to its lesser culpable mental state. Despite his framing, McGinn cannot avoid the fact that his various arguments have all been premised on the same claim: that the sentencing court misclassified his Colorado conviction when performing the comparability test. "A successive motion that merely seeks a 'second bite' at the illegal sentence apple is susceptible to dismissal according to our longstanding, common-law preclusionary rules." State v. Murdock, 309 Kan. 585, 592-93, 439 P.3d 307 (2019). Beyond asserting that he is raising a new claim, McGinn also contends that his argument that his Colorado conviction was misclassified is based on a development in the law that has occurred since his prior motions to correct illegal sentence were denied. McGinn is correct that the Kansas Supreme Court has recognized that "K.S.A. 22-3504 gives a defendant 'the opportunity to revisit a merits determination of legality' when the defendant can point to a 'subsequent development in the law' that shows the prior merits determination 'was wrong in the first instance.'" Moncla, 317 Kan. at 416-17. Thus, "the 'at any time' language of K.S.A. 22-3504(1) permits a party to advance a successive 6 motion to correct an illegal sentence premised on developments in the law that show the earlier determination was wrong on the merits." Murdock, 309 Kan. at 592. Put another way, "true changes in the law cannot transform a once legal sentence into an illegal sentence, but developments in the law may shine new light on the original question of whether the sentence was illegal when pronounced." Murdock, 309 Kan. at 592. McGinn "bears a threshold burden to prove that a subsequent development in the law undermines the earlier merits determination." 309 Kan. at 592. While McGinn claims his present motion is founded on a recent development in the law, it is unclear what development he is referring to. Of the authorities he does cite, none was decided following either of his prior two appeals in 2018 or 2022. None of the authority McGinn cites constitutes a "new development in the law" showing that one of his previous motions to correct an illegal sentence was improperly denied, as Murdock requires. Finally, this court has previously explained that a defendant is not permitted to "endlessly fil[e] motions to correct an illegal sentence with the expectation and, indeed, the requirement that the courts consider the merits of the same arguments over and over again." State v. Powell, No. 126,413, 2024 WL 3310102, at *2 (Kan. App. 2024) (unpublished opinion). The rule developed in cases such as Moncla is necessary because "[a] contrary rule would turn what should be no more than a defendant's Sisyphean endeavor into a material drain of judicial resources." 2024 WL 3310102, at *2. McGinn's case underlines this point. McGinn has repeatedly raised essentially the same claim about the classification of his Colorado conviction. We conclude the district court did not err in denying his most recent motion to correct illegal sentence on preclusion grounds. Affirmed. 7