Opinion
No. 107,156.
2012-07-27
Rockey D. RASH, Appellant, v. STATE of Kansas, Appellee.
Appeal from Atchison District Court; Robert J. Bednar, Judge. Michael G. Highland, of Bonner Springs, for appellant. Gerald R. Kuckelman, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Atchison District Court; Robert J. Bednar, Judge.
Michael G. Highland, of Bonner Springs, for appellant. Gerald R. Kuckelman, county attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, P.J., MARQUARDT, J., and KNUDSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Rockey D. Rash appeals the district court's summary denial of his K.S.A. 60–1507 motion. Rash argues that the district court erred in finding that his motion was successive because it raised the same arguments that were previously litigated in his postsentence motion to withdraw plea. He contends that the district court should have reached the merits of his motion and found ineffective assistance of counsel. For the reasons set forth herein, we affirm the district court's judgment.
On September 30, 2004, Rash pled no contest to one count of aggravated sodomy, one count of aggravated indecent liberties with a child, and one count of attempted aggravated sodomy. The State indicated that its evidence at trial would have shown that Rash had sexually molested two young girls, ages 3 and 5, who attended his wife's in-home daycare. The State's evidence was based in part on a confession made by Rash. After an extended colloquy, the district court accepted Rash's plea and found him guilty as charged. Rash was sentenced to a controlling term of 227 months' imprisonment. He did not file a direct appeal.
On September 7, 2007, Rash filed a pro se motion to withdraw plea. The district court appointed counsel and held a full evidentiary hearing on the motion at which Rash, Rash's trial counsel, and an expert witness in criminal defense strategy testified. At the hearing, Rash argued that he had received ineffective assistance of counsel prior to his plea, specifically based on: (1) counsel's failure to investigate whether Rash's confession was obtained in violation of his Miranda rights; (2) counsel's failure to investigate whether the confession was involuntary because Rash had been deprived of his thyroid medication for a week prior to the confession; and (3) counsel's consequent failure to file a motion to suppress the confession.
On August 11, 2008, the district court issued a written decision denying Rash's motion to withdraw plea. The district court found that Rash's testimony about the circumstances surrounding his plea was not credible, but that his trial counsel's testimony was credible. The district court rejected Rash's allegations that his confession had been obtained in violation of his Miranda rights and that, at the time of his confession, he was suffering from dementia due to deprivation of his thyroid medication. The district court further found that “the only creditable evidence ... was that counsel did what his client requested of him. He obtained the best plea possible in the shortest period of time. Defendant's counsel acted in a manner to keep defendant from being charged with more serious charges that would carry a longer period of incarceration.” Finally, the district court determined that Rash was represented by competent counsel, that he was not misled, coerced, mistreated, or unfairly taken advantage of, and that his plea was fairly and voluntarily made.
Rash appealed the district court's denial of his motion to withdraw plea. On appeal, this court affirmed the decision of the district court. State v. Rash, No. 101,249, 2009 WL 5206243 (Kan.App.2009) (unpublished opinion), rev. denied 290 Kan. 1102 (2010). This court specifically rejected Rash's claims that he had received ineffective assistance of counsel based on counsel's failure to investigate the alleged Miranda violation, failure to investigate the effect of deprivation of his thyroid medication, and failure to file a motion to suppress. The mandate was issued on June 23, 2010.
On March 31, 2011, Rash filed a pro se K.S.A. 60–1507 motion. The district court appointed counsel and the parties agreed to waive an evidentiary hearing and submit the matter on briefs. In his brief, Rash again argued that he had received ineffective assistance of counsel, citing the same reasons that had been considered and rejected by the district court and this court in his earlier motion to withdraw plea. The district court denied Rash's K .S.A. 60–1507 motion, finding that it was successive to his motion to withdraw plea and that he had failed to demonstrate exceptional circumstances warranting a reconsideration of his claims. Rash timely appealed.
When the district court summarily denies a K.S.A. 60–1507 motion, an appellate court conducts a de novo review to determine whether the motion, files, and records of the case conclusively establish that the movant is not entitled to any relief. Trotter v. State, 288 Kan. 112, 132, 200 P.3d 1236 (2009).
On appeal, Rash first argues that the district court erred in dismissing his K.S.A. 60–1507 motion as successive to his motion to withdraw plea because the two motions were brought under separate statutory provisions. This argument is without merit. Under K.S.A. 60–1507(c), a sentencing court is not required to entertain a second or successive motion for similar relief on behalf of the same prisoner. Here, Rash raised the same legal arguments and requested similar relief in both his motion to withdraw plea and his K.S.A. 60–1507 motion. It is irrelevant that the motions were brought under different statutory provisions. See Williams v. State, No. 97,022, 2008 WL 3003764 (Kan.App.2008) (unpublished opinion), rev. denied 287 Kan. 769 (2009) (upholding district court's denial of K.S.A. 60–1507 motion as successive to motion to withdraw plea); Wilson v. State, No. 94,460, 2006 WL 2562830 (Kan.App.2006) (unpublished opinion), rev. denied 282 Kan. 797 (2006) (same). The district court did not err in finding that Rash's K.S.A. 60–1507 motion was successive and denying it on that basis.
Rash also argues that even if his K.S.A. 60–1507 motion was successive, there was an intervening change in the law in Holmes v. State, 292 Kan. 271, 252 P.3d 573 (2011), such that exceptional circumstances warranted consideration of the motion. See State v. Kelly, 291 Kan. 868, 872–73, 248 P.3d 1282 (2011). In Holmes, our Supreme Court indicated that counsel's failure to make a complete investigation could support an ineffective assistance of counsel claim where the limitations on investigation were not supported by reasonable professional judgment. 292 Kan. at 281, 252 P.3d 573. But the Holmes court was merely citing law that had been in existence since well before Rash's motion to withdraw plea, not changing the law. See, e.g., State v. Orr, 262 Kan. 312, 326–27, 940 P.2d 42 (1997). Thus, the district court did not err in finding that Rash had cited no intervening change in law which would warrant consideration of the successive motion.
For the above reasons, we agree with the district court that the motion, files, and records of the case conclusively establish that Rash is not entitled to any relief. Therefore, we conclude the district court did not err in summarily denying Rash's K.S.A 60–1507 motion.
Affirmed.