Opinion
No. 108,056.
2013-02-15
Ethan M. GRIFFIN, Appellant, v. STATE of Kansas, Appellee.
Appeal from Lyon District Court; Merlin G. Wheeler, Judge. Michael P. Whalen and Krystle M.S. Dalke, of Law Office of Michael P. Whalen, of Wichita, for appellant. Kristafer R. Ailslieger, deputy solicitor general, for appellee.
Appeal from Lyon District Court; Merlin G. Wheeler, Judge.
Michael P. Whalen and Krystle M.S. Dalke, of Law Office of Michael P. Whalen, of Wichita, for appellant. Kristafer R. Ailslieger, deputy solicitor general, for appellee.
Before McANANY, P.J., BUSER and STANDRIDGE, JJ.
MEMORANDUM OPINION
PER CURIAM.
Ethan M. Griffin appeals the denial of his second K.S.A. 60–1507 motion. The district court held that Griffin's motion was second or successive under K.S.A. 60–1507(c) and untimely under K.S.A. 60–1507(f). We affirm the district court.
Factual and Procedural Background
On May 14, 2002, Griffin was convicted of two counts of felony murder, five counts of aggravated battery, and two counts of burglary. He was sentenced to two consecutive life terms and an additional 72 months' imprisonment. Griffin appealed. After a remand to the district court to consider his ineffective assistance of counsel claim, our Supreme Court affirmed the convictions. See State v. Griffin, 279 Kan. 634, 636, 642, 663, 112 P.3d 862 (2005).
On August 8, 2006, Griffin filed his first K.S.A. 60–1507 motion making additional claims of ineffective assistance of counsel. Judge Merlin G. Wheeler, who had presided over Griffin's criminal trial, denied the motion after a nonevidentiary hearing. On appeal, our court rejected the State's argument that the motion was second or successive under K.S.A. 60–1507(c) but agreed the motion was improperly used as a substitute for direct appeal under Supreme Court Rule 183(c)(3) (2007 Kan. Ct. R. Annot. 243). See Griffin v.. State, No. 98,222, unpublished opinion filed September 19, 2008, rev. denied 289 Kan. 1278 (2009).
Four years later, on January 9, 2012, Griffin filed his second K.S.A. 60–1507 motion which is the subject of this appeal. Griffin contended he was prejudiced by the release of a guilty verdict in the trial of a codefendant, Wallace L. Dixon, III, while Griffin's trial was still in progress. 279 Kan. at 636;State v. Dixon, 279 Kan. 563, 112 P.3d 883 (2005). Griffin also alleged there were errors in the jury instructions, including the failure to give a lesser-included offense instruction.
This second K.S.A. 60–1507 motion was again assigned to Judge Wheeler, who summarily dismissed it. Pointing to Griffin's acknowledgment that he had raised the same issues in his criminal case, the district court held Griffin “failed to allege any [exceptional] circumstances” justifying a second or successive motion under K.S.A. 60–1507(c). Additionally, the district court noted that Griffin did “not address either his failure to meet the time limitation of K.S.A. 60–1507(f) nor ... suggest a basis to extend the deadline for manifest injustice.” Griffin appeals.
Analysis
At the outset, on appeal, Griffin does not dispute that this second K.S.A. 60–1507 motion was not filed in a timely manner or is not successive. Rather, Griffin combines his arguments and claims that exceptional circumstances and manifest injustice permit him to properly file this second K.S.A. 60–1507 motion. We exercise de novo review over the district court's ruling that the motions, files, and records of the case conclusively showed Griffin was not entitled to relief. Trotter v. State, 288 Kan. 112, 132, 200 P.3d 1236 (2009).
Though mere trial errors are a matter for direct appeal, trial errors affecting constitutional rights may be considered in a K.S.A. 60–1507 motion under exceptional circumstances. Supreme Court Rule 183(c). However, second or successive K.S.A. 60–1507 motions may be dismissed as an abuse of remedy under K.S.A. 60–1507(c) unless the movant can again show exceptional circumstances. State v. Kelly, 291 Kan. 868, 872, 248 P.3d 1282 (2011). The 1–year time period for filing motions set forth at K.S.A. 60–1507(f)(1) may be extended only to prevent a manifest injustice. K.S.A. 60–1507(f)(2). Manifest injustice has been construed as “ ‘obviously unfair’ “ or “ ‘shocking to the conscience.’ [Citations omitted.]” Ludlow v. State, 37 Kan.App.2d 676, 686, 157 P.3d 631(2007). Change of Venue
Prior to trial, Griffin joined in a motion to change the trial venue. The trial of Dixon commenced first, and the trial court in Griffin's case indicated that at the conclusion of the Dixon trial the verdicts would be sealed from everyone except the parties in the case until the conclusion of Griffin's trial. Kansas news media organizations objected to this procedure, and the trial court modified its ruling to allow the release of the verdicts after Griffin's jury was impaneled and sworn. Griffin's counsel objected to the modification but did not request a change of venue or continuance. After the trial, Griffin filed a motion for mistrial claiming he was prejudiced because he withdrew his motion for a change of venue based on the original agreement which was later modified by the trial court. The district court denied the motion.
On appeal, Griffin asserts the early release of Dixon's verdicts contrary to the original agreement prejudiced his case. The State counters that Griffin could have raised this argument “before the trial court, the appellate courts on direct appeal, and subsequent reviewing courts in his first K.S.A. 60–1507 [motion].”
Griffin explains the delay in raising this issue by claiming ineffective assistance of trial and appellate counsel in his criminal case. But Griffin could have raised these ineffectiveness claims in his direct appeal along with several other claims of ineffectiveness of counsel that he raised on direct appeal. Moreover, Griffin also could have raised these claims in his first K.S.A. 60–1507 motion in which, similar to his direct appeal, he raised other claims of trial and appellate attorney ineffectiveness. The issues Griffin now raises regarding a change of venue or ineffective assistance of counsel could have been raised in earlier proceedings, but Griffin fails to explain the delay.
This failure rules out exceptional circumstances or manifest injustice in our opinion. We fail to see the merit of Griffin's claims of exceptional circumstances or manifest injustice without Griffin addressing why he did not raise the necessary aspects of these showings earlier. See State v. Anderson, 291 Kan. 849, 858, 249 P.3d 425 (2011) (points raised incidentally but not argued are deemed waived or abandoned on appeal). To hold otherwise would shoehorn substantive issues into second or successive K.S.A. 60–1507 motions via the mere mention of ineffective assistance of counsel. “At some point in a case litigation must end if the judicial system is to function smoothly, effectively and expeditiously.” Tillman v. State, 215 Kan. 365, 367, 524 P.2d 772 (1974) (construing the predecessor of Supreme Court Rule 183). State v. Berry
For his second issue on appeal, Griffin contends the district court failed to consider State v. Berry, 292 Kan. 493, 513–14, 254 P.3d 1276 (2011), which subjected felony murder to the same standards for lesser-included offense instructions as other crimes. Griffin's request at trial for a lesser-included offense instruction was denied under the pre- Berry standard. 279 Kan. at 657–58.
Preliminarily, we recognize that neither Berry and nor the pre- Berry standard survived a statutory amendment eliminating all lesser-included offenses of felony murder. See K.S.A.2012 Supp. 21–5109(b)(1); L.2012, ch. 157, sec. 2. The parties do not suggest that these amendments apply to the present case, however.
On appeal, Griffin does not address how the Berry standard may have affected his case. Conclusory allegations do not warrant an evidentiary hearing, Trotter, 288 Kan. at 131–32, and in the present case, we lack even conclusory allegations. We are not persuaded that Griffin has shown exceptional circumstances or manifest injustice without any arguments showing the Berry standard was material to his case. See Anderson, 291 Kan. at 858 (points raised incidentally but not argued are deemed waived or abandoned on appeal).
Assuming for the sake of argument that Berry would have made a difference at Griffin's trial, our Supreme Court restricted Berry's application “to all pending felony-murder cases.” 292 Kan. at 514. Griffin suggests, however, that our Supreme Court “did not address whether [ Berry ] would be applied retroactively,” and the State agrees.
In Berry, our Supreme Court cited its earlier decision in Gaudina v. State, 278 Kan. 103, 106, 92 P.3d 574 (2004), parenthetically noting its adoption of the rule set out in Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987). “The Griffith Court stated that a ‘new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final.’ 479 U.S. at 328.” (Emphasis added.) Gaudina, 278 Kan. at 106. “Final” means “ ‘a case in which a judgment of conviction has been rendered, the availability of appeal exhausted, and the time for a petition for certiorari elapsed or a petition for certiorari finally denied.’ “ 278 Kan. at 106 (quoting 479 U.S. at 321 n. 6).
We conclude that Berry addressed retroactivity. Our Supreme Court announced its rule would be applied not only prospectively but also retroactively to those cases not yet final. We see no reason to read more into our Supreme Court's decision. In this case, Griffin's direct appeal to the Kansas Supreme Court was decided on June 3, 2005. 279 Kan. at 635. As a result, Griffin's case was final about 6 years prior to the issuance of the Berry decision on July 22, 2011. 292 Kan. at 494. We conclude that Berry is not applicable to Griffin's case.
Affirmed.