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No. 103,2241 No. 103,225 IN THE COURT OF APPEALS OF THE STATE OF KANSAS STATE OF KANSAS, Appellee, v. BRODRICK N. WEST, Appellant.

SYLLABUS BY THE COURT 1. The rule of law-of-the-case typically bars repetitive arguments on successive appeals in the same action. An argument once made to and resolved by an appellate court becomes "the law" in that case and generally cannot be challenged in a second appeal.

2. While an appellate court may disregard the law-of-the-case doctrine to correct a manifest injustice or a clear error of substantial importance, a decision to jettison finality should not be lightly made and, then, only in a truly exceptional circumstance.

3. Law-of-the-case principles are considered and applied to issues raised on appeal in consolidated criminal cases following an initial appeal, partial reversal, remand, and resentencing.

Appeal from Seward District Court; CLINT B. PETERSON, judge. Opinion filed January 7, 2011. Affirmed.

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Randall L. Hodgkinson and Rachel Pickering, of Kansas Appellate Defender Office, for appellant.

Don L. Scott, county attorney, and Steve Six, attorney general, for appellee.

Before MCANANY, P.J., ATCHESON, J., and LARSON, S.J.

Per Curiam: This prosecution of Brodrick West on a series of drug charges returns to our court on a second appeal. West was charged, tried, convicted, and sentenced in separate cases that have been consolidated for proceedings here and, at various times, in the trial court. In his first appeal, West successfully challenged several of the convictions but raised other arguments that were considered and found to be without merit. The case was returned for resentencing. West's current appeal raises only the same arguments that this court found wanting in his first appeal. The well-settled principle of law-of-the-case forecloses West from a second go-round here. We, therefore, affirm.

We need not detail the criminal charges against West or provide the long version of this litigation. In one case, West was charged in Seward County with various counts of selling cocaine within 1,000 feet of a school, conspiracy to sell cocaine, use of a telephone to aid in the sale, and the failure to acquire drug tax stamps related to two drug transactions in January 2007. In the other case, again in Seward County, West faced one count each for sale near a school, conspiracy, use of a telephone, and no tax stamp in a February 2007 drug deal. West went to trial, and the jury hearing both cases convicted him of all the charges. Judge Tom R. Smith sentenced West to 562 months in prison by running the time on the principal convictions and some of the lesser convictions consecutively.

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West then filed his first appeal with this court, challenging numerous aspects of the charges against him, the proceedings at trial, and the sentence. State v. West, Nos. 99,063, 99,067, unpublished opinion filed November 7, 2008, rev. denied 289 Kan. 1285 (2009). This court held that West was properly convicted of sale of cocaine, but not within 1,000 feet of a school, since there was insufficient evidence to show the building in question was actively being used as a school within the meaning of the governing statutes. This court also found there was only one conspiracy to sell or distribute cocaine, not two. That is, all of the sales took place as part of a single conspiracy or agreement to distribute illegal drugs. And the court set aside two of the use-of-telephone convictions and one of the tax-stamp convictions.

But the first time around, the court of appeals also considered and rejected West's arguments that the complaints failed to inform him that he faced sentencing for severity level 1 offenses. The court also denied him relief on the claim that his two past convictions for drug trafficking should not have been used to place the charges for sale in these cases at severity level 1. This court then remanded so that West could be resentenced. As is customary, the opinion in the first appeal made no suggestion or recommendation as to what an appropriate sentence might be. Within the framework of the sentencing statutes, that typically is a matter entrusted to the trial judge's discretion. State v. Johnson, 286 Kan. 824, 851, 190 P.3d 207 (2008) (K.S.A. 21-4704 "grants a judge discretion to sentence a criminal defendant to any term within the presumptive grid block, as determined by the conviction and the defendant's criminal history.").

By the time West appeared for resentencing on June 30, 2009, just over 2 years had passed since the original sentencing. Judge Smith had retired. The task of resentencing West fell to Judge Clint Peterson. Judge Peterson conducted a separate sentencing hearing in each case, although they were handled back-to-back, essentially as one proceeding. At the outset of the first hearing, after receiving the appearances of counsel, Judge Peterson stated: "The Court of Appeals' opinion is quite specific so I do 3

not believe there is any discretion that I hold regarding what has to happen today, therefore, I won't ask for comment from counsel." Judge Peterson declined to hear argument from the prosecutor or counsel for West. West was not given the opportunity to make a statement to the court. In his concurring opinion, Judge Atcheson details his concern about the manner in which the resentencing was handled. But West has raised no issue on appeal regarding the inability of his counsel to present argument at resentencing or his inability to speak to the judge directly during that proceeding.

In some cases, the defendant raised an issue before the trial court but failed to raise it on appeal. For example, in State v. Adams, 283 Kan. 365, 367, 153 P.3d 512 (2007), the court noted the rule that "[a]ppellate courts do not ordinarily consider issues that are not raised by the parties." However, the court considered the defendant's speedy trial issue because the issue had been raised before the district court, even though not raised on appeal. In other cases, the defendant failed to raise the issue before the district court but raised it for the first time on appeal. For example, in State v. Gaudina, 284 Kan. 354, 372, 160 P.3d 854 (2007), the court noted the general rule that "constitutional grounds for reversal asserted for the first time on appeal are not properly preserved for appellate review" (citing cases). However, the court applied an exception to the rule to consider the defendant's constitutional claim raised for the first time on appeal. In the present case, however, West neither raised before the district court any issue regarding the manner of his resentencing, nor has he raised the issue on appeal. Under these circumstances, we need not and do not reach out to decide this issue which West has not raised either before the district court or before us. Judge Peterson imposed a sentence of 562 months in prison on West--the same as Judge Smith had. Based on West's two previous drug convictions, the sale charge in each of the current cases is a severity level 1 offense. West also has three convictions for person felonies. As a result, he falls in the highest offender category on the drug sentencing grid. The presumptive sentence for a defendant with that criminal background 4

is 184 to 204 months on a severity level 1 drug offense with a standard term of 194 months. In the first case, Judge Peterson imposed concurrent terms on some of the lesser offenses, but he made them consecutive to a maximum sentence of 204 months on the sale conviction, yielding an overall sentence of 358 months. In the second case, he imposed a maximum sentence of 204 months on the sale conviction to be served consecutive to the sentence in the other case. The total sentence is a little less than 47 years.

West has again timely appealed. He does not challenge the sentence in each case or the overall sentence as being outside what is permitted based on the sentencing statutes. We agree that the sentences, while quite lengthy, fall within the range contemplated under the law. A sentencing judge, however, could have imposed a markedly shorter period of incarceration and remained within that permissible range.

On appeal, West does argue that the sale convictions should have been treated as severity level 2 offenses, rather than severity level 1 offenses. This is the same issue West asserted unsuccessfully in his first appeal. And, as he acknowledges, the rule of law-ofthe-case typically bars repetitive arguments on successive appeals in the same action. State v. Collier, 263 Kan. 629, Syl.

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