State v. Tran ( 2020 )

NOT DESIGNATED FOR PUBLICATION
No. 121,678
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
DUNG Q. TRAN,
Appellant.
MEMORANDUM OPINION
Appeal from Sedgwick District Court; CHRISTOPHER M. MAGANA, judge. Opinion filed
September 4, 2020. Affirmed.
Kristen B. Patty, of Wichita, for appellant.
Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.
Before SCHROEDER, P.J., GREEN and BUSER, JJ.
PER CURIAM: Dung Tran appeals the denial of his fourth pro se motion seeking
transcripts, court records, and discovery materials from his criminal case without cost.
The district court denied the motion based on the doctrine of res judicata. Upon our
review of the district court's ruling, the appellate briefs, and the record on appeal, we find
no error and affirm the district court's summary ruling.
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FACTUAL AND PROCEDURAL BACKGROUND
In 2015, a jury convicted Tran of four counts of aggravated assault, two counts of
aggravated endangering of a child, two counts of criminal damage to property, and one
count of aggravated robbery. He was sentenced to 287 months in prison. Tran appealed
his convictions, challenging the jury instructions, the State's amendment of the property
damage count, and the sufficiency of the evidence. See State v. Tran, No. 116,300, 2018
WL 911418, at *1 (Kan. App. 2018) (unpublished opinion).
On November 17, 2016, Tran filed his first pro se "Motion for Transcripts
(Pursuant to K.S.A. 22-4509)." In response, the district court summarily denied the
motion finding that it was moot because Tran's case was on appeal and his appointed
appellate defender had requested the transcripts to prepare Tran's appeal. Tran did not
appeal the adverse ruling.
More than a year later, on May 2, 2018, Tran filed a second pro se "Motion for
Transcripts and Discovery." The district court again summarily denied the motion
finding: "[Defendant's] pro se motion is moot. [Defendant's] request for transcripts has
previously been made by appointed appellate counsel and provided to counsel for appeal
purposes. Transcripts are part of [Defendant's] appellate record." Once again, Tran did
not appeal.
On February 16, 2018, our court affirmed Tran's convictions as a result of his
direct appeal. 2018 WL 911418, at *5. After our court affirmed Tran's convictions, Tran
filed a third pro se motion for transcripts and discovery materials on February 15, 2019.
The following month, the district court summarily denied Tran's motion on its merits.
The district court ruled:
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"After review of [Defendant's] pro se motion (filed 2-15-19) for transcript and
State's written Response, the motion is summarily denied. [Defendant's] motion fails to
present any substantial questions of law or fact. [Defendant's] appeal [was] denied by [the
Kansas Court] of Appeals and [the] petition for review [was] denied. [Defendant is] not
entitled to transcript (free) which is part of district court record and/or record on appeal
per [United States] v. MacCollum, 426 U.S. 317[, 96 S. Ct. 2086, 48 L. Ed. 2d 666[1976]. [Defendant is] also not entitled to free discovery per statute in postconviction
[proceedings]."
Tran did not appeal.
About three months later, on May 8, 2019, Tran filed his fourth pro se motion—
which is the subject of this appeal—entitled "Motion/Petition for Transcripts, Court
Records and Discovery." In his fourth motion, Tran asserted that he was
"in need of the following Transcripts, court records and discovery to [pursue] post-
conviction remedies to review to determine if there is a cause of action of merit that can
be brought forthwith and to adequately present his cause of action to try and obtain relief
through and pursuant to in part K.S.A. 60-1507; K.S.A. 60-1501; and/or any other post-
conviction remedy that may be available."
In an order dated May 24, 2019, the district court ruled that "[a]fter review of
[Defendant's] fourth pro se motion and State's written Response, the motion is denied
without a hearing as res judicata with reference to court's prior rulings on [the three prior
motions]." Tran timely appeals.
ANALYSIS
On appeal of the denial of Tran's fourth pro se motion, he contends the district
court abused its discretion by denying his request for transcripts, court records, and
discovery without cost because he made a proper showing of need, together with proving
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the transcripts were "necessary for him to adequately prepare and pursue a post-
conviction remedy." For its part, the State presents several arguments. It argues that Tran
has waived or abandoned the right to appeal from the district court's ruling, the district
court properly invoked the doctrine of res judicata, and even if res judicata did not bar the
claim, Tran is still not entitled to relief.
At the outset, Tran's appellant brief addresses the merits of why he should receive
the materials he requested in his fourth motion. But the district court did not rule on the
merits of Tran's motion in summarily denying it. Instead, the district court summarily
denied the motion based on the doctrine of res judicata. Res judicata is a Latin phrase
meaning "a thing adjudicated." Black's Law Dictionary 1567 (11th ed. 2019). As argued
by the State, Tran does not acknowledge that he unsuccessfully filed three prior motions
seeking the same materials he is now seeking in his fourth motion. Nor does Tran
acknowledge the district court's ruling denying the fourth motion was based on grounds
of res judicata.
As the party claiming the district court erred, Tran had the burden of designating a
record that affirmatively shows prejudicial error in the district court's ruling. State v.
Simmons, 307 Kan. 38, 43, 405 P.3d 1190 (2017). Here, the district court's ruling was
predicated on res judicata, not on an examination of the merits of the issue. Yet, Tran
does not favor us with an argument that the district court's refusal to once again
reconsider the same issue of obtaining free transcripts and materials was somehow
erroneous. Without such a record, our court presumes the ruling of the district court was
proper. 307 Kan. at 43.
Relying on the general rule that issues not briefed are waived and abandoned,
Kansas courts have found that an appellant's failure to address the district court's
procedural basis for its ruling and merely addressing the merits of the underlying issue is
a reason to deny appellate review. A good example of this legal proposition is found in
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State v. Portsche, No. 113,648, 2017 WL 129890 (Kan. App. 2017) (unpublished
opinion). In Portsche, our court found:
"Although the district court denied Portsche's motion based on the procedural grounds
that Portsche waived his right to contest the felony DUI classification by waiving the
preliminary hearing, Portsche does not assert or brief that this procedural ruling was in
error or that [State v.] Tims[, 49 Kan. App. 2d 845, 849, 319 P.3d 115 (2014)] does not
control this issue. Rather, in his appellant's brief, Portsche simply ignores the procedural
basis for the district court's ruling and only discusses the propriety of the merits of his
argument regarding the inadmissibility of the documents proving his two prior DUI
convictions.
"In short, Portsche has not briefed the basis for why the district court's procedural
ruling was in error. He has simply disregarded this ruling and ignored the fact that, as a
consequence, there was no reason for the district court to address the merits of his
argument. An issue not briefed by the appellant is deemed waived and abandoned. State
v. Boleyn, 297 Kan. 610, 633, 303 P.3d 680 (2013). By not briefing why the district
court's procedural ruling was in error, Portsche has waived and abandoned his first issue
on appeal." 2017 WL 129890, at *2-3.
See State v. Denney, No. 110,336, 2015 WL 326432, at *8 (Kan. App. 2015)
(unpublished opinion); Terra-Bentley II, L.L.C. v. Village of Overland Pointe, L.L.C., No.
101,957, 2014 WL 2619372, at *6-7 (Kan. App. 2014) (unpublished opinion).
In a related context, this legal proposition is also shown in those cases where a
district court provides alternative grounds upon which it based its ruling and the appellant
appeals to an appellate court based on only one of the alternative grounds. In these
circumstances, we follow the legal maxim that when a district court provides alternative
bases to support its ultimate ruling on an issue and an appellant fails to challenge the
validity of both alternative bases on appeal, an appellate court may decline to address the
appellant's challenge to the district court's ruling. State v. Novotny, 297 Kan. 1174, 1180,
307 P.3d 1278 (2013).
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We hold that because Tran has not claimed or briefed error regarding the district
court's ruling based on res judicata, he has waived or abandoned this issue. Accordingly,
the district court's summary denial of transcripts, court records, and discovery materials
without cost based on the doctrine of res judicata was not error.
Although Tran has not challenged the district court's res judicata ruling, for the
sake of completeness we will review whether the district court properly invoked the
doctrine of res judicata in denying Tran's fourth motion.
Whether the doctrine of res judicata applies in a certain case is an issue of law
over which appellate courts exercise unlimited review. State v. Salary, 309 Kan. 479,
481, 437 P.3d 953 (2019). Courts will invoke res judicata to bar a successive lawsuit
when four 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. Cain v. Jacox, 302 Kan.
431, 434, 354 P.3d 1196 (2015).
In denying Tran's first and second motions for transcripts and materials, the
district court found Tran's motions to be moot because his direct appeal was pending. As
a result, these cases were not decided on the merits as required by the fourth element of
the res judicata doctrine. See Cain, 302 Kan. at 434.
In denying Tran's third motion for transcripts, however, the district court
considered the merits of the issue and found the motion "fail[ed] to present any
substantial questions of law or fact." The district court held that Tran was not entitled to
free transcripts and materials in accordance with Kansas statutes and the United States
Supreme Court decision in United States v. MacCollum, 426 U.S. 317, 96 S. Ct. 2086, 48
L. Ed. 2d 666 (1976).
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In the district court's ruling on the fourth motion—the ruling before us on
appeal—were the four elements of the res judicata doctrine satisfied? We are persuaded
that all four elements were met in this case. The claim in the fourth motion involved the
same claim as the prior motions (request for free transcripts and materials), the same
parties (the State and Tran), the claims were previously made, and the district court's
ruling in response to Tran's third motion was an adverse decision on the merits.
Moreover, Tran did not appeal, making this ruling a final judgment on the subject matter
of the third motion.
Given that all four elements of the res judicata doctrine were met, we find no error
in the district court's summary denial of Tran's fourth motion based on res judicata. See
State v. Martin, 294 Kan. 638, 641, 279 P.3d 704 (2012) ("The identical issue in the
present appeal was raised previously at least six times—once in a K.S.A. 60-1507 motion
and in five motions to correct an illegal sentence, two of which were categorically denied
by the district court as having been resolved by Martin's 1987 direct appeal. Martin's
current claim is barred by the doctrine of res judicata.").
We pause to note that despite the propriety of the district court's res judicata
ruling, we also find that Tran's fourth motion could have been properly denied on the
merits just as the court denied his third motion on the merits.
Our court analyzes whether a defendant is entitled to transcripts without cost using
an abuse of discretion standard. State v. Brown, 266 Kan. 563, 572, 973 P.2d 773 (1999).
Relying on MacCollum and Kansas statutes, our court has found K.S.A. 22-4506(b)
"requires a prisoner to file a petition for writ of habeas corpus or a motion attacking
sentence under K.S.A. 60-1507 and an affidavit of indigency before a determination is
made whether a transcript should be supplied." State v. McKinney, 10 Kan. App. 2d 459,
460, 701 P.2d 701 (1985).
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In this case, however, Tran did not file a K.S.A. 60-1507 motion but requested the
transcript and materials in order "to review to determine if there is a cause of action of
merit that can be brought forthwith." (Emphasis added.) See State v. Cochran, No.
113,935, 2016 WL 3597606, at *2 (Kan. App. 2016) (unpublished opinion) ("[T]he
transcript described in K.S.A. 22-4509 requires a determination that a transcript is
necessary to enable Cochran to obtain relief through eligible litigation. Until that motion
is filed, the district court cannot make that determination. Thus, the district court did not
err in denying Cochran's motions for transcripts when no K.S.A. 60-1507 motion was
pending.").
Additionally, Kansas courts have consistently held that a defendant's right to
transcripts without cost under K.S.A. 22-4506(b) is satisfied when a copy is provided to
an indigent defendant's counsel. State v. McCloud, 257 Kan. 1, 17-18, 891 P.2d 324(1995); see also State v. Brown, No. 115,372, 2017 WL 3001349, at *2 (Kan. App. 2017)
(unpublished opinion) (finding defendant was not entitled to copy of transcripts without
cost because counsel had access to transcripts and defendant failed to show conflict of
interest).
In the present case, Tran's appellate counsel for his direct appeal had copies of the
trial transcripts and other materials in order to prosecute the direct appeal. In this
proceeding on appeal, Tran's appellate counsel candidly concedes that she has in her
possession 15 volumes of PDF transcripts totaling 1528 pages. We are persuaded that the
district court was not required to provide Tran with transcripts and materials without cost
because he had not filed a K.S.A. 60-1507 motion and a digital copy of the transcripts
had been provided to his appellate counsel.
Finally, with reference to Tran's request for copies of all discovery materials
without cost, Kansas statutes providing for discovery ordinarily apply to pretrial
proceedings. See K.S.A. 2019 Supp. 22-3212 and K.S.A. 2019 Supp.22-3213. Tran does
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not point us to any statutory authority that would mandate providing inmates copies of
pretrial discovery at no cost where there is no postconviction writ of habeas corpus
petition or K.S.A. 60-1507 motion on file with the district court.
Affirmed.
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