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NOT DESIGNATED FOR PUBLICATION

No. 121,031

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

KEVIN L. FROST,

Appellant,

v.

STATE OF KANSAS,

Appellee.

MEMORANDUM OPINION

Appeal from Sedgwick District Court; JAMES R. FLEETWOOD, judge. Opinion filed May 8, 2020. 

Affirmed.

Wendie C. Miller, of Kenneth B. Miller, Atty at Law, LLC, of Wichita, for appellant.

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

attorney general, for appellee.

Before GREEN, P.J., POWELL and SCHROEDER,JJ.

PER CURIAM: Kevin L. Frost appeals the summary denial of his second motion for 

habeas corpus relief under K.S.A. 2019 Supp. 60-1507 as untimely and successive. On 

appeal, Frost tries to avoid the procedural hurdles to his habeas motion by also claiming

his sentence is illegal. Finding no error in the district court's denial of Frost's second

K.S.A. 60-1507 motion as untimely and successive, we affirm.
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FACTS

In 2011, Frost pled guilty to aggravated indecent liberties with a child. At 

sentencing, the district court denied Frost's motion for a durational departure and imposed

imprisonment for life with a mandatory minimum term of 25 years (hard 25) under 

K.S.A. 2010 Supp. 21-4643(a)(1)(C).

Frost directly appealed, arguing his hard 25 life sentence constituted cruel and 

unusual punishment under the United States Constitution. A panel of this court affirmed 

his sentence in 2012, and the mandate was issued in October 2013. See State v. Frost, 48 

Kan. App. 2d 332, 288 P.3d 151 (2012).

In 2013, Frost filed a pro se motion to correct an illegal sentence. He argued the 

district court imposed an illegal sentence because it "[failed] to review mitigating 

circumstances" as required by K.S.A. 2010 Supp. 21-4643(d) when it denied his motion 

for a durational departure. (Emphasis added.) The district court summarily denied his 

motion to correct an illegal sentence, finding the motion failed to state a claim or seek 

relief the court could grant.

In 2014, Frost filed his first request for habeas relief under K.S.A. 60-1507. The 

motion is not in the record for this appeal, but it appears the district court denied the 

motion and on appeal another panel of this court affirmed the district court's summary 

denial of the motion in Frost v. State, No. 114,228, 2016 WL 4069565, at *1 (Kan. App. 

2016) (unpublished opinion). From the panel's opinion, we observe Frost alleged 

"ineffective assistance of both trial and appellate counsel and that the district court 

misinterpreted the sentencing guidelines." 2016 WL 4069565, at *1.

In October 2018, Frost filed his second habeas motion through counsel and argued 

four claims of error related to his sentence: (1) The district court did not comply with 
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K.S.A. 2010 Supp. 21-4643(d) when it denied his departure motion; (2) the district judge 

who sentenced him was not the same judge who accepted his plea and, as a result, the 

sentencing court was not aware of the factual basis presented in support of his guilty plea; 

(3) the district court relied on an incorrect statute when considering his motion for 

departure; and (4) the district court failed to follow the proper procedure when denying

his departure motion. Attached to his motion was a supporting legal memorandum 

arguing failure to reach the merits of his claims would result in a manifest injustice.

The district court summarily denied Frost's claims for relief, finding his habeas 

motion (1) was untimely with no showing of manifest injustice; (2) was a second or 

successive motion but made no showing of exceptional circumstances; and (3) should 

have been argued in his direct appeal.

ANALYSIS

On appeal, Frost mainly argues the district court should have liberally construed 

his pleading as a motion to correct an illegal sentence, even though he filed his motion 

through counsel. Alternatively, he argues the district court erred in summarily denying 

his habeas motion as untimely and successive.

Although Frost separately briefs each issue he raised in his habeas motion, they all 

relate to essentially one issue: whether the district court complied with K.S.A. 2010 

Supp. 21-4643(d)'s required procedure when it denied his departure motion. To the extent 

he raises other issues in his brief, they are abandoned because he does not support them 

with relevant authority or explain why his arguments are sound despite the lack of 

authority or contrary authority. "Issues not adequately briefed are deemed waived or 

abandoned." State v. Salary, 309 Kan. 479, 481, 437 P.3d 953 (2019).
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Frost has supported his first issue with relevant authority, but his argument fails,

whether construed as a collateral attack under K.S.A. 2019 Supp. 60-1507(b) or as a 

motion to correct an illegal sentence under K.S.A. 2019 Supp. 22-3504. We begin our 

analysis by addressing whether the district court erred in summarily denying Frost's 

second motion for habeas relief under K.S.A. 2019 Supp. 60-1507.

No error to summarily deny Frost's second habeas motion

Our review on the denial of a habeas motion depends on the means the district 

court used to resolve it. Beauclair v. State, 308 Kan. 284, 293, 419 P.3d 1180 (2018). In 

this case, the district court summarily denied Frost's habeas motion without an 

evidentiary hearing, making our review unlimited. Like the district court, we can

determine whether the motion, files, and records of the case conclusively show the 

movant is not entitled to relief. Sherwood v. State, 310 Kan. 93, 99, 444 P.3d 966 (2019).

K.S.A. 2019 Supp. 60-1507(b) allows a movant to collaterally attack his or her 

prison sentence. However, a movant's ability to seek habeas relief is limited by several 

procedural hurdles. A movant has only one year from the date the mandate was issued in 

his or her direct appeal to file the motion. K.S.A. 2019 Supp. 60-1507(f)(1)(A). But the 

one-year time limit "may be extended by the court only to prevent a manifest injustice."

K.S.A 2019 Supp. 60-1507(f)(2). Effective July 1, 2016, the Legislature amended 

subsection (f)(2) and limited the factors a court may consider when determining whether 

the manifest injustice exception applies to "(1) a movant's reasons for the failure to timely 

file the motion . . . or (2) a movant's claim of actual innocence . . . ." White v. State, 308 

Kan. 491, 496, 421 P.3d 718 (2018). We apply the amended statute to Frost because it 

was in effect at the time his second habeas motion was filed.

The mandate in Frost's direct appeal was issued in October 2013. His second 

habeas motion was filed in October 2018, well past the one-year time limit. Frost did not 
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make any claims of actual innocence in his motion, nor did he explain why his motion

was untimely. He now argues his habeas motion was untimely because the case providing 

substantive support for his argument—State v. Jolly, 301 Kan. 313, 342 P.3d 935 

(2015)—came out after his one-year deadline to file the motion. Even assuming Jolly

supports his argument, Frost does not explain why he waited over three and a half years 

after Jolly was decided to file the motion. He fails to show why manifest injustice would

result from refusing to hear his claims.

Frost has another procedural hurdle to overcome regarding his second habeas 

motion. Generally, in a habeas proceeding, the movant is presumed to have listed all 

grounds for relief in his or her original motion. State v. Trotter, 296 Kan. 898, 904, 295 

P.3d 1039 (2013). K.S.A. 2019 Supp. 60-1507(c) states the district court "shall not be 

required to entertain a second or successive motion for similar relief on behalf of the 

same prisoner." Our Supreme Court has interpreted this statute to mean the district court 

can dismiss a successive motion unless exceptional circumstances justify its

consideration. See Beauclair, 308 Kan. at 304. "Exceptional circumstances are unusual 

events or intervening changes in the law that prevented the defendant from raising the 

issue in a preceding 60-1507 motion." State v. Mitchell, 284 Kan. 374, 379, 162 P.3d 18 

(2007).

Here, because Frost had previously filed a habeas motion for similar relief, he 

must show exceptional circumstances to prevent the dismissal of this motion. Frost failed 

to argue exceptional circumstances below but now argues exceptional circumstances 

justify the district court's consideration of the issue because he has reframed his argument 

in line with Jolly. But like his first habeas motion, Frost is challenging the district court's 

application of the sentencing statutes relevant to him. See Frost, 2016 WL 4069565, at 

*1. Generally, a second habeas motion supported by different arguments is still 

successive when it seeks consideration of the same issue. See Thuko v. State, 310 Kan. 

74, 84, 444 P.3d 927 (2019) (finding second habeas motion successive and no 
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exceptional circumstance despite different supporting arguments because both motions 

alleged ineffective assistance of direct appeal counsel). Although Frost now relies on 

Jolly, his motion raises no new issues of fact or law that could not have been addressed

previously. We find Frost's second habeas motion is successive and fails to show 

exceptional circumstances.

In 2013, the district court summarily denied Frost's pro se motion to correct an 

illegal sentence. In that motion, he argued the district court misapplied K.S.A. 2010 

Supp. 21-4643(d) when it denied his departure motion. Frost fails to mention his prior 

motion to correct an illegal sentence and now generally raises the same issue in this 

appeal.

Issues raised and decided in prior habeas motions or motions to correct an illegal 

sentence are res judicata and cannot be raised in subsequent motions. See State v. Martin, 

294 Kan. 638, 640-41, 279 P.3d 704 (2012). The same doctrine applies to Frost's direct

appeal: "'[W]here 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). When Frost filed his direct appeal 

in 2012, he could have argued the district court abused its discretion on an issue of law 

when it denied his departure motion, but he did not. See Jolly, 301 Kan. at 325. Thus, we 

also find Frost's overall argument in this habeas motion is barred by res judicata.

Claim of illegal sentence has been raised before

Frost tries to get around the procedural hurdles to his habeas motion by arguing 

the content of his pleading was really that of a motion to correct an illegal sentence, not a 

habeas motion, and the district court should have construed his pleading as such. He 

claims the district court imposed an illegal sentence when denying his departure motion 
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because it balanced the mitigating circumstances against the aggravating ones, contrary to 

our Supreme Court's instruction in Jolly. He cites the general rule that courts are to 

interpret pro se pleadings based on their contents rather than solely on their titles or 

labels. See, e.g., State v. Redding, 310 Kan. 15, 18, 444 P.3d 989 (2019). But Frost's 

motion was drafted, filed, and presented by counsel. And as the State points out, Frost's

legal memorandum supporting his motion dealt entirely with the manifest injustice 

exception to the one-year time limit for filing a habeas motion. The district court did not 

err in addressing Frost's argument in the limited manner he presented it. And even if we 

were to construe his pleading as a motion to correct an illegal sentence on appeal, Frost is 

not entitled to relief.

Whether a sentence is illegal is a question of law subject to unlimited review. State 

v. Donahue, 309 Kan. 265, 267, 434 P.3d 230 (2019). An "illegal sentence" is statutorily 

defined as a sentence: "Imposed by a court without jurisdiction; that does not conform to 

the applicable statutory provision, either in character or punishment; or that is ambiguous 

with respect to the time and manner in which it is to be served at the time it is 

pronounced." K.S.A. 2019 Supp. 22-3504(c)(1). The applicability of K.S.A. 22-3504 is 

"'very limited'" and a sentence is illegal only if it fits within the definition. State v. Gray, 

303 Kan. 1011, 1014, 368 P.3d 1113 (2016).

K.S.A. 2019 Supp. 22-3504(a) controls the remedy for an illegal sentence, stating: 

"The court may correct an illegal sentence at any time while the defendant is serving such 

sentence." Our Supreme Court has interpreted this statute to mean appellate courts have 

"'statutory authority to consider illegal sentence issues for the first time on appeal.'" State 

v. Sartin, 310 Kan. 367, 375, 446 P.3d 1068 (2019). Thus, regardless of whether Frost 

raised an illegal sentence issue below, we have statutory authority to consider the issue 

on appeal. But the doctrine of res judicata still applies. "A motion to correct an illegal 

sentence cannot be used as vehicle to 'breathe new life'" into an issue previously 

determined against the movant. Martin, 294 Kan. at 641. Here, Frost has tried to resurrect 
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an issue he has already raised. Frost's illegal sentence claim is barred by the doctrine of 

res judicata.

Affirmed.