Opinion
No. 106,688.
2012-08-10
Roosevelt BROCKS, Appellant, v. CITY OF WICHITA, Appellee.
Appeal from Sedgwick District Court, Timothy H. Henderson, Judge. Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellant. Michael J. Hoelscher, assistant city attorney, and Gary Rebenstorf, city attorney, for appellee.
Appeal from Sedgwick District Court, Timothy H. Henderson, Judge.
Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellant. Michael J. Hoelscher, assistant city attorney, and Gary Rebenstorf, city attorney, for appellee.
Before McANANY, P.J., HILL, J., and BUKATY, S.J.
MEMORANDUM OPINION
PER CURIAM.
Roosevelt Brocks was convicted in municipal court of driving under the influence of alcohol and other related charges. He appealed to the district court where he was again convicted in a jury trial of DUI and leaving the scene of an accident. He appealed to this court but failed to docket the appeal so his appeal was dismissed.
Over a year after his sentence became final, Brocks moved for relief pursuant to K.S.A. 60–1507. The State responded, arguing that Brocks' motion was untimely under K.S.A. 60–1507(0(1) and should be dismissed. At a preliminary hearing on Brock's motion, his attorney argued it would be manifestly unjust not to consider Brocks' arguments because of this timeliness issue. The district court determined, however, that Brocks was advised of his rights and there were “no allegations that he was misled, misinformed, or any ineffective assistance of counsel issues that would cause him not to timely file this Motion.” Thus, the district court denied the motion as untimely.
Brocks appeals, claiming the district court erred in not finding manifest injustice as a basis for permitting him to proceed with his untimely motion. We review this issue de novo. See Barr v. State, 287 Kan. 190, 196, 196 P.3d 357 (2008).
K.S.A. 60–1507(f)(1) establishes a deadline for filing a K.S.A. 60–1507 motion. That deadline is 1 year from the final order of the last appellate court to exercise jurisdiction on a direct appeal. Because Brocks' direct appeal was dismissed on June 24, 2009, he had 1 year from the dismissal to move for relief pursuant to K.S.A. 60–1507. Brocks did not file his motion until September 2010.
Under K.S.A. 60–1507(f)(2), the only way the district court could have considered the merits of Brocks' motion was by ignoring this time limit in order to prevent manifest injustice. “Although ‘manifest injustice’ has not been defined in the context of K.S.A. 60–1507(f)(2), this court has interpreted the phrase in other contexts to mean ‘obviously unfair’ or ‘shocking to the conscience.’ [Citations omitted.]” Ludlow v. State, 37 Kan.App.2d 676, 686, 157 P.3d 631 (2007).
Brocks argues that the district court erroneously relied on Toney v. State, 39 Kan.App.2d 944, 946–47, 187 P.3d 122,rev. denied 287 Kan. 769 (2008), in dismissing Brock's claim of manifest injustice. In Toney, this court held: (1) Toney did not allege exceptional circumstances that prevented him from meeting the 1–year time limitation; and (2) Toney had not shown that the time limitation should be extended to prevent manifest injustice. The Toney court noted that the movant is required to show that denying the motion as untimely would be “obviously unfair” or “shocking to the conscience.” 39 Kan.App.2d at 946.
Brocks requests that the case be remanded for an evidentiary hearing because “an assessment of the validity of [his] claims ... cannot be done on the basis of the records,” files, and transcripts of the case. We have examined Brocks' K.S.A. 60–1507 motion, and it appears that Brocks' allegations of perjury were based on: (1) inaccurate testimony given at the municipal court level that the officers were allowed to correct prior to Brocks' conviction in district court; or (2) minor inconsistencies in testimony. In denying Brocks' motion, the district court noted that Brocks “does not specify the missing documents that he wishes the Court to examine.” Brocks does not provide any tangible support for his claim that his convictions were obtained as a result of perjurious testimony.
At the preliminary hearing on his motion Brocks argued that because of confusion regarding the dismissal of his direct appeal and a pending untimely posttrial motion, he was actively pursuing his remedies and did not understand that he was required to file the K.S.A. 60–1507 by the required deadline. But the district court found “no allegations that he was misled, misinformed, or any ineffective assistance of counsel issues that would cause him not to timely file this Motion.” We agree. Brocks bore the burden of establishing manifest injustice warranting the district court's disregard of the 1–year limitation on bringing his K.S.A. 60–1507 motion. Brocks failed to carry that burden. The district court correctly denied relief without holding an evidentiary hearing.
Affirmed.