Opinion
111,181.
04-03-2015
Earnest W. OVERTON, Appellant, v. STATE of Kansas, Appellee.
Michael P. Whalen and Krystle M.S. Dalke, of Law Office of Michael P. Whalen, for appellant. Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Michael P. Whalen and Krystle M.S. Dalke, of Law Office of Michael P. Whalen, for appellant.
Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before McANANY, P.J., ATCHESON, J., and HEBERT, S.J.
MEMORANDUM OPINION
PER CURIAM.
Earnest Overton contends the Sedgwick County District Court erred in dismissing this habeas corpus motion—his second—as untimely, since he filed the motion within 1 year after the final disposition of his first motion. The appeal hinges on the peculiar reading Overton imputes to the time limitations imposed on habeas corpus motions in K.S.A. 60–1507(f). We reject his interpretation of the statutory language and, therefore, affirm the district court.
The district court summarily denied Overton's 60–1507 motion. For that reason, we owe no deference to that determination and exercise unlimited review. Bellamy v. State, 285 Kan. 346, 354, 172 P.3d 10 (2007). In addition, Overton's point on appeal depends solely on the interpretation of K.S.A. 60–1507(f) essentially divorced from the facts of his underlying convictions and most of his procedural challenges to them. The meaning of statutory language presents a question of law subject to unlimited review. In re Care & Treatment of Quary, 50 Kan.App.2d 296, 301, 324 P .3d 331 (2014).
In 2002, a jury convicted Overton of rape and aggravated indecent liberties with a child for which he received lengthy prison sentences. This court and the Kansas Supreme Court affirmed the convictions. State v. Overton, No. 88,897, 2003 WL 22897263 (Kan.App.2003) (unpublished opinion), aff'd 279 Kan. 547, 112 P .3d 244 (2005). The Kansas Supreme Court's decision was issued in 2005, triggering Overton's right to file a 60–1507 motion asserting alleged constitutional defects in the criminal case, including the trial and the appeal. Overton filed his first 60–1507 motion in 2006. The motion bounced back and forth between the district court and this court for 6 years. This court affirmed the denial of any relief to Overton in 2012, and the Kansas Supreme Court denied review in 2013. Overton v. State, No. 105,996, 2012 WL 3822675 (Kan.App.2012) (unpublished opinion), rev. denied 297 Kan. 1246 (2013). Less than a year later, Overton filed this 60–1507 motion, alleging the lawyers handling the first one were constitutionally ineffective in both the district court and on appeal.
The district court denied this motion because it was filed more than a year after the appeals in the criminal case had concluded and Overton failed to show manifest injustice excusing compliance with that time limit. Overton has appealed the district court's ruling.
The time limitations in K.S.A. 60–1507, in pertinent part, provide:
“(f) Time limitations. (1) Any action under this section must be brought within one year of: (i) The final order of the last appellate court in this state to exercise jurisdiction on a direct appeal or the termination of such appellate jurisdiction;....
“(2) The time limitation herein may be extended by the court only to prevent a manifest injustice.”
On appeal, Overton makes no argument that this 60–1507 motion should be considered to prevent manifest injustice. He expressly disclaims the need to make such a showing. Aplt. Br. at 5 (“And Mr. Overton was not required to show manifest injustice because no extension of the time period was required.”). We, therefore, do not consider that possibility. Rather, Overton argues his motion was timely filed because it followed the final disposition of his first motion by less than a year. The argument depends upon the meaning of the term “direct appeal” as used in K.S.A. 60–1507(f)(1)(i). Overton would have it mean any appeal including an earlier 60–1507 motion. But that is a decidedly eccentric meaning in at least two respects.
First, “direct appeal” is a legal term of art with a well-recognized meaning, especially regarding criminal prosecutions. The term refers to an appeal from the judgment of conviction in a criminal case in contrast to a habeas corpus challenge considered to be collateral to or separate from the criminal case. See Baker v. State, 297 Kan. 486, 492, 303 P.3d 675 (2013) (measuring 1–year limitation in K.S.A. 60–1507 [f] from milestones in criminal case, including resentencing on remand); State v. Trotter, 296 Kan. 898, 904–05, 295 P.3d 1039 (2013) (recognizing that a direct appeal for purposes of K.S.A. 60–1507 [f] is the appeal of the conviction in the criminal case itself); Shumway v. State, 48 Kan.App.2d 490, 503, 293 P.3d 772 (interpreting “direct appeal” in K.S.A. 60–1507 [f] to mean the date upon which the conviction became final in the criminal proceedings), rev. denied 298 Kan. –––– (October 1, 2013). The United States Supreme Court explored the relationship between direct attacks on criminal convictions and collateral ones and plainly recognized habeas corpus proceedings to be different from direct appeals. Wall v. Khali, 562 U.S. 545, 131 S.Ct. 1278, 1284, 179 L.Ed.2d 252 (2011). The Court noted both that “habeas corpus is a form of collateral review” and that a “collateral attack” is a challenge to a judgment “ ‘in a proceeding other than a direct appeal. ’ “ 131 S.Ct. at 1284 (quoting Black's Law Dictionary 298 [9th ed.2009] with emphasis added). Black's Law Dictionary draws a marked distinction between a “collateral attack” and a “direct attack” on a judgment. A “direct attack” is one “on a judgment made in the same proceeding as the one in which the judgment was entered.” Black's Law Dictionary 556 (10th ed.2014). A “collateral attack” is one made apart from a direct appeal. Black's Law Dictionary 318 (10th ed.2014).
In a direct appeal, a criminal defendant may attack a conviction on any purported error ranging from constitutional defects to procedural and evidentiary mistakes. As an extra layer of protection against wrongful deprivations of liberty, the convicted defendant may file a habeas corpus motion under K.S.A. 60–1507 —a separate civil action—asserting constitutional errors in the criminal case that had not been reviewed in the direct appeal of the criminal judgment. Because the motion is an independent challenge to the conviction, proceeding outside the criminal case itself, it is commonly referred to as a “collateral” attack. So conventional legal terminology recognizes a substantive difference between direct and collateral challenges to criminal convictions. The Court made that precise point in Wall. In that context, the phrase “direct appeal” means the particular appellate process of challenging the judgment of conviction within the framework of the criminal case. It is understood to be separate from any collateral attack on a conviction through the civil remedy of habeas corpus. On that basis, the term “direct appeal” used in K.S.A. 60–1507(f) refers to the underlying criminal case and not a collateral habeas corpus action. There is no reason to suppose the legislature intended anything different.
Overton cites no authority for the meaning he would give “direct appeal” and, in turn, the time limitation in K.S.A. 60–1507(f).
Second, Overton's argument runs counter to a pair of related canons of statutory construction. If a convict were able to file a new, timely habeas corpus motion within a year after the denial of the last motion had been upheld on appeal, he or she could serially bring a limitless number of motions. That construction of K.S.A. 60–1507(f) would override or, at the very least, conflict with K.S.A. 60–1507(c) that prevents a district court from having to hear successive habeas corpus motions. A canon of construction recognizes that statutory language should be construed, if possible, so that different sections of a statute operate in “workable harmony” rather than at cross purposes or in conflict. State v. Coman, 294 Kan. 84, 93, 273 P.3d 701 (2012). A second canon instructs that a court should avoid an interpretation that renders part of the statutory language surplusage or vestigial. State v. Sedillos, 279 Kan. 777, 782, 112 P.3d 854 (2005). Although those canons must yield to clear legislative intent and plain statutory language to the contrary, Overton fails to make such a stringent showing. His interpretation of K.S.A. 60–1507(f) simply injects confusion and conflict where there otherwise would be none. We discard the argument because it trades on an illegitimate redefinition of a statutory term to turn a functioning statute into one afflicted with inconsistent directives to the courts.
In sum, we reject Overton's reading of the time limitations in K.S.A. 60–1507(f). The district court correctly found this habeas corpus motion untimely. Overton has advanced no other reason we should question the dismissal of the motion. So that ends the matter.
Affirmed.