The opinion of the court was delivered by
Rafael L. Flores was 14 years old on October 5, 1996, when he fired six rounds into a group of people, lolling one person and wounding another. The State originally charged Flores as a juvenile with, inter alia, first-degree murder and attempted first-degree murder. After a hearing, the district court certified *381 Flores to be tried as an adult. The State charged Flores as an adult with one count of premeditated first-degree murder, with an alternative count of felony murder; two counts of attempted first-degree murder; one count of criminal damage to property; and one count of criminal possession of a firearm by a juvenile. The State also filed a notice that it would seek a hard-40 sentence.
Pursuant to a plea agreement, the State amended the complaint, and Flores pled nolo contendere to one count of first-degree felony murder and one count of attempted voluntary manslaughter. In accordance with the plea agreement, the State did not seek a departure and recommended concurrent sentences. However, the district court, after accepting Flores’ plea and finding him guilty on both counts, imposed consecutive sentences of life imprisonment for the felony murder conviction and 34 months’ imprisonment for the attempted voluntary manslaughter conviction.
Flores filed a direct appeal, asserting that the sentencing court abused its discretion by imposing his sentences consecutively. This court dismissed the appeal because we do not have jurisdiction to review the propriety of consecutive sentencing. See
State v. Flores,
Some years later, on September 23, 2004, Flores filed a pro se motion to correct an illegal sentence, pursuant to K.S.A. 22-3504. He claimed that a provision of the Juvenile Offenders Code in effect at the time of the shooting, K.S.A. 38-1636(i) (Furse 1993), precluded the imposition of an adult sentence because the attempted voluntary manslaughter conviction was a lesser included offense of the originally charged crime of attempted first-degree murder.
The district court denied the motion, applying an incorrect version of K.S.A. 38-1636. Ruling on Flores’ motion to reconsider, the district court acknowledged its error. Nevertheless, the district court found that Flores’ adult certification was authorized by the original first-degree murder charge, for which Flores was convicted. Therefore, the entire case remained in adult court for sentencing purposes, because no legal mechanism existed for sentencing Flores in adult court for one count and in juvenile court for another count. Additionally, the district court opined that the *382 1-year limitation of K.S.A. 60-1507(f) applied to the motion to correct an illegal sentence, rendering it untimely. Further, the court found that Flores’ motion was a successive attack on his sentence and that our decision on direct appeal was res judicata as to all sentencing issues.
Flores appeals the denial of his motion to correct his sentence, which includes a term of life imprisonment and places the appeal before this court. See K.S.A. 22-3601(b)(1);
State v. Edwards,
STANDARD OF REVIEW
Whether a sentence is illegal within the meaning of K.S.A. 22-3504 is a question of law over which the appellate court’s review is unlimited.
State v. Huff,
Further, to the extent that resolution of this matter involves an interpretation of K.S.A. 38-1636(i) (Furse 1993), our review is likewise unlimited. See
State v. Bryan,
PROCEDURAL BARS
We commence by addressing the State’s arguments that Flores’ motion was procedurally barred. Although the district court denied the motion on its merits, it made the alternative findings that the motion to correct an illegal sentence was untimely filed and that the decision on direct appeal was res judicata as to the current sentencing issue. We disagree with both findings.
*383 Timeliness
A motion to correct an illegal sentence is based upon K.S.A. 22-3504, which provides, in relevant part:
“(1) The court may correct an illegal sentence at any time. The defendant shall receive full credit for time spent in custody under the sentence prior to correction. The defendant shall have a right to a hearing, after reasonable notice to be fixed by the court, to be personally present and to have the assistance of counsel in any proceeding for the correction of an illegal sentence.”
In
State v. Duke,
Duke
did not purport to negate the first sentence of K.S.A. 22-3504(1), which permits a court to correct an illegal sentence “at any time.” We perceive the district court may have been misled by
Duke’s
declaration that “[t]here is no indication that a motion to correct an illegal sentence was intended by the legislature to be treated differently from a K.S.A. 60-1507 attack upon a sentence.”
*384 In short, the district court erred in its alternative ruling that Flores’ motion to correct an illegal sentence was procedurally barred by the 1-year limitation of K.S.A. 60-1507(f). The State’s arguments in support of that ruling are unavailing.
Res Judicata/Waiver
As a second basis for a procedural bar, the district court found that Flores’ failure to raise the current sentencing challenge in his direct appeal justified denial on the basis of res judicata. In support of that ruling the State proffers the following quote:
“ ‘Under Kansas law, 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. Where a defendant’s claim has not been raised at trial or on direct appeal, such a default prevents the defendant from raising the claim in a second appeal or a collateral proceeding.’ (Emphasis added.) State v. Neer,247 Kan. 137 , 140-41,795 P.2d 362 (1990).” Sanders v. State,26 Kan. App. 2d 826 , 830,995 P.2d 397 (1999), rev. denied269 Kan. 934 (2000).
The lower court’s use of the term “res judicata” was perhaps inaccurate in this case. Res judicata requires a prior final judgment on the merits. See
Stanfield v. Osborne Industries, Inc.,
Our general rule that defendants must raise all available issues on direct appeal comports with the statutory framework of an appeal. See
State v. Neer,
However, a defendant is not similarly constrained on the timing of a motion to correct an illegal sentence. “A defendant may file a motion to correct an illegal sentence at any time.”
State v. Brown,
APPLICATION OF K.S.A. 38-1636(i) (Furse 1993)
Notwithstanding the initial confusion as to die version of 38-1636 which applied to Flores’ October 1996 crimes, the parties now correctly agree that we must construe K.S.A. 38-1636 (Furse 1993), which provides, in pertinent part:
“(a) At any time after commencement of proceedings under this code against a respondent who was: (1) 14 or 15 years of age at the time of the offense or offenses alleged in the complaint, if any such offense is or offenses are a class A or B felony, or, on or after July 1,1993, an off-grid felony, a nondrug felony crime ranked at severity level 1, 2 or 3 or a drug felony crime ranked at severity level 1 or 2, . . . the county or district attorney may file a motion requesting that the court authorize prosecution of the respondent as an adult under the applicable criminal statute.
“(f) The court may authorize prosecution as an adult upon completion of the hearing if the court finds that the respondent was: . . .
(2) 14 or 15 years of age at the time of the alleged commission of the offense, if the offense is an off-grid felony, a nondrug severity level 1, 2 or 3 felony or a drug level 1 or 2 felony, and that there is substantial evidence that the respondent should be prosecuted as an adult for the offense with which the respondent is charged; or
“(i) If the respondent is prosecuted as an adult under subsection (f)(1) or (f)(2) and convicted of a lesser included offense, the respondent shall be a juvenile *386 offender and receive an authorized disposition pursuant to K.S.A. 38-1663, and amendments thereto.” (Emphasis added.)
Flores does not challenge the propriety of his initial certification to be prosecuted as an adult. Pursuant to 38-1636(a), a 14-year-old is amenable to certification when any offense in the juvenile complaint is of a severity level described in the statute, e.g., an off-grid felony. Flores was initially charged in the juvenile complaint with, inter alia, first-degree felony murder, which is an off-grid felony.
Likewise, Flores appears to accept that a certification on the first-degree murder charge effected a transfer of the entire case to adult court, including those counts of the complaint which, standing alone, would not have qualified for certification. See
State v. Hooks,
To reiterate, K.S.A. 38-1636(i) (Furse 1993) provides in relevant part that if a respondent is prosecuted as an adult under sub section (f)(2), as was Flores, but is “convicted of a lesser included offense, the respondent shall be a juvenile offender and receive an authorized disposition pursuant to K.S.A. 38-1663, and amendments thereto.” Flores focuses on the use in subsection (i) of the singular term “offense,” as compared to subsection (a), which refers to “offense or offenses” when discussing the severity level which qualifies for certification. He apparently believes that the use of the singular “offense” in subsection (i) manifests a legislative intent to require the State to obtain a conviction, as charged, on each and eveiy offense which qualified the case for certification. In contrast, the State suggests that if the legislature had intended Flores’ suggested result, it would have simply used the phrase “any lesser included offense.” We agree with the State.
Hooks
briefly discussed the provisions of subsection (i) and opined that “it discourages any effort of an overzealous prosecutor
*387
to file elevated charges in order to prosecute a juvenile as an adult.”
Here, the prosecutor sought adult certification because Flores allegedly committed a felony murder, along with other crimes. The felony murder charge, standing alone, would have been statutorily sufficient to support the adult certification. The State obtained a conviction for felony murder, vindicating the prosecutor’s charging decision. The legislative purpose for the existence of 38-1636(i) was satisfied.
Cf. State v. Perez,
Flores urges us to apply the rule that penal statutes are to be strictly construed in favor of the persons against whom the provisions will operate. See
Hooks,
Nevertheless, the fundamental rule of statutory construction requires us to give effect to the purpose and intent of the legislature, taking into consideration all of the provisions of 38-1636.
Hooks,
*388 INEFFECTIVE ASSISTANCE OF COUNSEL
In a pro se supplemental brief, Flores purports to raise an issue of ineffective assistance of counsel. The claim fails for multiple reasons.
Flores did not allege ineffective assistance of counsel before the trial court. We do not consider such claims for the first time on appeal. See
State v. Gleason,
Flores’ brief mentions the claim in the issue statement but provides no supporting authority or argument. “When an appellant fails to brief an issue, the issue is waived or abandoned.”
State v. Baker,
Finally, we have found that Flores’ sentence was in compliance with K.S.A. 38-1636(i) (Furse 1993),
i.e.,
was not illegal. Obviously, then, Flores cannot show that any error in his counsel’s performance resulted in prejudice. See
State v. Moody,
Affirmed.