1 NOT DESIGNATED FOR PUBLICATION

No . 1 2 2, 651

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

S TATE OF K ANSAS , Appellee ,

v.

R ICHARD M. F RANKLIN , Appellant

.

MEMORANDUM OPINION

Appeal from Sedgwick District Court; K EVIN J. O ' C ONNOR , judge. Opinion filed May 7 , 20 2 1

. Affirmed

.

Richard M. Franklin , appell ant pro se

.

Juli e A. Koon , assistant district attorney , Marc Bennett , district attorney, a nd Derek Schmidt ,
a ttorney general , for appelle e

.

B efore A RNOLD

- B URGER , C.J., B RUNS and P OWELL , J J

.

P ER C URIAM : Richard M. Franklin appeals from the district court ' s order summarily denying his pro se motion to correct an illegal sentence. Franklin first claims that the district court erred in determining his criminal history score was A by classifying his prior out

- of

- state convictions as person felonies according to the law as explained in State v. Keel , 302 Kan. 560, Syl. ¶ 9, 357 P.3d 251 (2015). Franklin also claims the district court lacked jurisdiction to resentence him on April 11, 2017, because the State had discharged him from postrelease supervision before the mandate was issued on the2

Court of Appeals ' decision remanding the case for resentencing. Finding no error, we affirm.

F ACTUAL AND P ROCEDURAL H ISTORY

The district court sentenced Franklin to 27 2 months in prison on 2003 on a severity level 5, nondrug, person felony that he committed in 2003. Long after that decision was final, in 2014, he moved to correct an illegal sentence. He argued that based

on State v. Murdock , 299 Kan. 312, 323 P.3d 846 (2014), the district court miscalculated his criminal history score, resulting in an illegal sentence. He argued that in 2003 the court should have classified his eight prior Florida pre

- Kansas Sentencing Guidelines Act convictions for committing a lewd act on a child as nonperson felonies based on Murdock . The district court agreed with Franklin and reduced his sentence to 120 months. Because he had served 120 months in prison, the district court released him from custody. But the State filed a timely notice of appeal from that decision.

Generally, a defendant is not to be held in custody during the pendency of an appeal by the prosecution. But, K.S.A. 2020 Supp. 22

- 3604(3) provides that if a defendant has been charged with a severity level 5 nondrug felony committed after July 1, 1993, the district court is not to release the defendant during the pendency of the S tate ' s appeal. For these reasons, the district court should not have released Franklin from custody while the case was on appeal. In any event, he was, which set up the defendant ' s frustration with being returned to custody when the State succeede d in its appeal three years later.

By order dated October 26, 2015, in State v. Franklin , No. 112,849, t his court summarily reversed the decision of the district court, in essence finding that Franklin ' s original sentence was not illegal and remanded the case for resentencing. It did so based

on Keel , 302 Kan. 560 (overruling the Murdock decision.). Keel found that in3

determining whether a pre

- Kansas Sentencing Guidelines case should be treated as a
pers on or nonperson offense for determining criminal history, judges are to compare the prior crime to comparable offenses committed at the time of the current crime of conviction

— in Franklin ' s case comparable Kansas crimes in 2003. 302 Kan. 560, Syl. ¶ 8. Fra nklin ' s petition for review before the Kansas Supreme Court was denied and the mandate issued on December 28, 2016

. On remand, the district court reinstated the 272

- month sentence and denied Franklin ' s motion for a departure to something less than 122 mont hs. Franklin ' s attorney also made an oral motion for mootness and lack of jurisdiction

—

based on that fact that the Secretary of Corrections had fully discharged Franklin from custody

— that was also denied. T he district court remanded Franklin to the custody of the Secretary of Corrections, where he remains today. He timely appealed the district court ' s resentencing orders. The case was transferred to the Kansas Supreme Court.

On February 2, 2018, in State v. Franklin , No. 117,700, t he Kansas Supreme Court held, by summary order (at Franklin ' s request), that there was no merit to Franklin ' s appeal challenging his sentence. Keel overruled the case that the district court relied on to reduced Franklin ' s sentence

— Murdock . His original sentence was legal. In other words, the district court had properly classified Franklin ' s prior offenses as person felonies at his 2003 sentencing. The Supreme Court ordered the appeal " closed. " The Clerk of the Appellate Courts issued the mandate on March 5 , 2018

.

Franklin, n ot to be deterred , filed another motion to correct the same sentence on August 8, 2019 . He raised the same issue

— that Keel did not control his sentencing, this time based on what has been referred to as Murdock II , State v. Murdock , 309 Kan. 585, 439 P.3 d 307 (2019), which came down after the Supreme Court mandate finding that Franklin ' s original sentence was legal based on Keel . In Murdock II , the Supreme Court noted that " the legality of a sentence

. . . is controlled by the law in effect at the time th e4

sentence was pronounced. " 309 Kan. at 585

- 86. In this case, that would mean that the law in effect in 2003 was the law that controlled Franklin ' s sentence.

The district court summarily denied Franklin ' s motion. The district court noted that this issue had been resolved by the Kansas Supreme Court and " decline [ d ] the invitation " to overrule the Supreme Court mandate and that res judicata applied to that order. It is that decision, made in January 2020, t hat is now the subject of this appeal.

A NALYSIS

I. Franklin abandons any challenge to the district court ' s ruling that it was bound by the Supreme Court '

s March 5 , 2018 mandate finding Franklin ' s sentence was legal.

In his pro se appeal, Franklin does not challenge the district court ' s decision on the res judicata effect of the Kansas Supreme Court mandate finding his sentence was legal. Instead, he embarks on his new illegal sentence argument , this time based on Murdock II

. An issue not briefed is considered waived or abandoned. State v. Arnett , 307 Kan. 648, 650, 413 P.3d 787 (2018) ; s ee also State v. Novotny , 297 Kan. 1174, Syl. ¶ 1, 307 P.3d 1278 (2013) ( " When a district court provides alternative bases to support its ultimate ruling on an issue and an appellant fails to challenge the validity of each alternative basis on appeal, an appellate court may decline to address the appellant ' s challenge to the district court ' s ultimate ruling. " )

.

The purpose of the complimentary doctrines of res judica ta, the law of the case, and the mandate rule are to prevent the parties and the district court from revisiting issues that have already been settled by the appellate courts. A new motion to correct an illegal

sentence cannot " be used as a vehicle to ' brea th e new life ' into an issue previously5

determined against [a defendant] on multiple occasions. " State v. Robertson , 298 Kan. 342, 344

- 45, 312 P.3d 361 (2013).

Because Franklin does not address the sole basis for the district court ' s decision denying his motion, we deem it abandoned and affirm the district court. We reject any attempt to relitigate that issue, particularly since Franklin provides no reason for us to do

so.

That said, we recognize that our Supreme Court recently stressed that t he ability to correct an illegal sentence " permits a party to advance a successive motion to correct an illegal sentence premised on developments in the law that show the earlier determination was wrong on the merits. " Murdock II , 309 Kan. at 592. But Fran klin erroneously focuses on whether the 2014 decision to modify his sentence to 120 months was in error. We understand his confusion given the rapidly changing jurisprudence in this area. But the issue is whether the 2003 sentence

— which had long been a fin al sentence

— was illegal, not the 2014 modification of that sentence

— which was reversed before it ever became final. Franklin makes no argument that the sentence imposed in 2003

— which is the one that has always been at the heart of this case, was illegal ba sed on the law in effect at that time, as he must do under Murdock II . So contrary to his new motion to correct an illegal sentence, M u rdock II does not provide him any relief. We will clarify how Franklin ' s situation is different from the situation in Murdock II

.

In Murdock , the Supreme Court found that a sentence that was imposed in December 2008 was illegal because it erroneously calculated Murdock ' s criminal history score. The court resentenced Murdock consistent with the Supreme Court ' s mandate. Neither party appealed and the case became final. Six months later Keel overruled Murdock and the State moved to correct Murdock ' s sentence. Murdock argued that his new sentence was lawful when the district cou rt imposed it , and it was final because the mandate had issued and there had been no appeal. In Murdock II , the Kansas Supreme6

Court agreed. At the time the district court imposed Murdock ' s reduced sentence it was legal and final. 309 Kan. at 593. That is not the case here. Franklin ' s " new sentence " was never final. In fact, it was reversed. So to mount a challenge to his sentence, he must set forth reasons why his 2003 sentence was illegal when the court imposed it

. He has failed to do so.

II. Franklin '

s double jeopardy claim fails

.

Franklin argues, for the first time on appeal, that district court violated his constitutional rights against twice being put in jeopardy by his resentencing after his discharge from custody. He recognizes a litigant may not raise issues on appeal that the litigant did not raise before the district court u nless a recognized exception applies

. Kansas Supreme Court Rule 6.02(a)(5) (2020 Kan. S. Ct. R. 34) requires an appellant to explain why an issue that the appellant did not raise below merits this court ' s consideration for the first time on appeal. State v . Johnson , 309 Kan. 992, 995, 441 P.3d 1036 (2019). He asserts that we should make an exception to the rule because " review is necessary to meet the ends of justice and prevent the denial of Franklin ' s fundamental rights. "

E ven if an exception would support a decision to review a new claim, the appellate

courts have no obligation to do so. State v. Gray , 311 Kan. 164, Syl. ¶ 1, 459 P.3d 165 ( 2020). To paraphrase W.C. Fields, we do not have to attend every argument we are invi ted to. See http://www.azquotes.com/author/4795

- W_C_Fields . For two reasons, we believe that the exceptions do not apply here because deciding this issue will not meet the ends of justice or prevent the denial of Franklin ' s fundamental rights.

First, a n i llegal sentence under K.S.A. 20 20 Supp. 22

- 3504 (c) (1) is : (1) a sentence imposed by a court without jurisdiction; (2) a sentence that does not conform to the applicable statutory provision, either in character or the term of authorized punishment;7

or (3) a sentence that is ambiguous with respect to the time and manner in which it is to be served. The definition of an illegal sentence does not include a claim tha t the sentence violates a constitutional provision. As a result, a defendant may not move to correct an illegal sentence based on constitutional challenge s to his or her sentence. State v. Moncla , 301 Kan. 549, 553

- 54, 343 P.3d 1161 (2015) ; s ee also State v. Mitchell , 284 Kan. 374, 376

- 77, 162 P.3d 18 (2007) (declining to address the merits of double jeopardy, equal protection, and Eighth Amendment challenges to illegal sentence). So Franklin is statutorily prohibited from bringing his double jeopardy claim in a motion to correct an illegal sentence.

Second, his double jeopardy argument is not persuasive. Franklin relies on State v. Lehman , 308 K an. 1089, 1093

- 94, 427 P.3d 840 (2018) , to conclude that the district court could not constitutionally resentence him. But this argument misses the mark. It ignores one major distinction between his case and Lehman

— the expectation of the finality of his 20 14 sentence. Let ' s take a closer look at Lehman

.

Alfred Van Lehman Jr. entered into a plea agreement with the State, which the district court followed, ordering Lehman to serve 24 months of postrelease supervision after he completed his 31

- month sentence. Four years later the State moved to correct an illegal sentence because based on his crime of conviction Lehman had to serve lifetime postrelease supervision. By the time the district court heard the motion, Lehman had served his prison sentence and his p ostrelease supervision time. Seven months earlier, KDOC had discharged Lehman from postrelease supervision per the district court ' s original orders. The Supreme Court noted the special circumstances of Lehman ' s case. Five of the seven justices held :

" [W] hen Lehman completed his original sentence

— even if it was illegal

— without a court order that superseded the judgment of the sentencing judge, he was no longer subject to the jurisdiction of the criminal justice system. Any additional sentence imposed8

on him for the same offense after completing the original sentence constitutes a multiple punishment proscribed by the double jeopardy provisions of our federal and state constitutions.

" Moreover, the argument that the notice of the filing of the motion to correct an illegal sentenced negated any expectation of finality Lehman may have had upon completing his original sentence is similarly unavaili ng. A person who has appeared before a judge and received a sentence in open court can legitimately expect that court order to remain in effect until told otherwise by a district judge. " 308 Kan. at 1099.

Two justices separately concurred. 308 Kan. at 109 9

- 1 1 00 (Rosen, J. , concurring) and ( Stegall, J., concurring). Justice Rosen again stressed the unique circumstances of the case. He believed it was significant that by the time Lehman had been served with the State ' s motion, he had been discharged . If he h ad notice of the State ' s motion before he was discharged

— even if just by a day

— Justice Rosen would have found that he would have had no expectation in the finality of his sentence. 3 08 Kan. at 1099

- 1 100. Justice Stegall likewise concurred but found that do uble jeopardy was not in play. Instead, he believed the court ' s precedent established in State v. Mon t gomery , 295 Kan. 837, 286 P.3d 866 (2012), " that motions to correct an illegal sentence are rendered moot by the expiration of the sentence " foreclosed th e State ' s claim. Lehman , 3 08 Kan. at 1100.

Here, Franklin had no expectation in the finality of his 120

- month sentence. He filed the motion to have his sentence declared illegal. He still had half of his 27 2

- month sentence remaining when he filed the motion. He was on notice that the State appealed the district court ' s ruling and , as such, it was subject to reversal. We fail to see how Lehman controls this case.

Some may view it as unfair that a man who was released from prison based on a district judge ' s reduction of his sentence would have to return to prison to serve out his
sentence. But we see nothing untoward about what happened here. First, the district court9

erred in releasing the defendant to begin with

— when the decision shortening his sentence was on appeal and subject to reversal . Second, Franklin has had every opportunity to present his argument about the ille gality of his original sentence to the appellate courts , and he has been unsuccessful at every turn. Even now he fails to establish how his 2003 sentence was illegal when entered.

Affirmed.