Opinion
No. 106,191.
2012-07-27
David REICH, Appellant, v. STATE of Kansas, Appellee.
Appeal from Sedgwick District Court; Anthony J. Powell, Judge. Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellant. Matt J. Moloney, assistant district attorney, Nolo Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Anthony J. Powell, Judge.
Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellant. Matt J. Moloney, assistant district attorney, Nolo Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before PIERRON, P.J., GREEN and LEBEN, JJ.
MEMORANDUM OPINION
PER CURIAM.
David Reich appeals the district court's denial of his K.S.A. 60–1507 motion. Reich contends the court erred when it refused to hold an evidentiary hearing to address his contention that an extension of the 1–year time limitation in K.S.A. 60–1507(f) was necessary to prevent manifest injustice. We affirm.
In 2005, Reich was convicted of one count each of aggravated kidnapping and aggravated robbery. He was sentenced to a 346–month prison term. Reich's convictions and sentence were affirmed by this court in State v. Reich, No. 94,759, 2007 WL 136004 (Kan.App.) (unpublished opinion), rev. denied 284 Kan. 950 (2007).
On December 13, 2010, Reich filed a pro se K.S.A. 60–1507 motion, making bare allegations. He alleged jury instruction error and challenged the sufficiency of the evidence to support the aggravated kidnapping conviction. Reich also suggested that his trial and appellate counsel were ineffective for failing to raise these errors. In response, the State argued that Reich filed his motion beyond the 1–year statute of limitations set forth in K.S.A. 60–1507(f). The parties presented their respective arguments at a nonevidentiary hearing, where Reich's counsel argued that the statute of limitations should be extended because the failure to entertain Reich's motion would result in a manifest injustice, as he had been wrongly convicted. Unpersuaded, the district court dismissed Reich's motion as untimely, finding there had been no showing of the manifest injustice required to extend the 1–year statute of limitations. In so ruling, the court noted that Reich previously had the opportunity to litigate the issues in his motion on direct appeal and had provided no explanation for the 3–year delay in filing the motion.
On appeal, Reich contends the district court erred by failing to hold an evidentiary hearing to consider whether an extension of the time limitation set forth in K.S.A. 60–1507(f) was necessary to prevent manifest injustice. Specifically, Reich argues that the plain language of K.S.A. 60–1507 does not require the movant to provide an explanation for a late filing.
District courts are required to hold an evidentiary hearing on a K.S.A. 60–1507 motion unless the motions, files, and records of the case conclusively show the movant is not entitled to relief. K.S.A. 60–1.507(b); Supreme Court Rule 183(f) and (j) (2011 Kan. Ct. R. Annot. 259). When, as is true in this case, the district court denies relief based solely upon counsel's legal argument at a nonevidentiary hearing and the court's review of the files and records of the case, an appellate court is in as good a position as the district court to consider the merits. As a result, appellate review is de novo. Barr v. State, 287 Kan. 190, 196, 196 P.3d 357 (2008). Moreover, whether Reich complied with the provisions of K.S.A. 60–1507(f) involves the interpretation of statutory language, a question of law over which this court has unlimited review. See Ludlow v. State, 37 Kan.App.2d 676, 682, 157 P.3d 631 (2007).
A 60–1507 motion must be brought within 1 year of the final order of the last appellate court in Kansas to exercise jurisdiction on a direct appeal or the termination of such appellate jurisdiction. K.S.A. 60–1507(f)(1)(i). However, the time limit may be extended by the court only to prevent a manifest injustice. K.S.A. 60–1507(f)(2). Although this statute does not define the term manifest injustice, Kansas courts have interpreted the phrase to mean ‘obviously unfair’ or ‘shocking to the conscience.’ Ludlow, 37 Kan.App.2d at 686, 157 P.3d 631 (quoting State v. Cramer, 17 Kan.App.2d 623, 635, 841 P.2d 1111 [1992],rev. denied 252 Kan. 1093 [1993] ). It is the movant's burden to establish manifest injustice by a preponderance of the evidence. Supreme Court Rule 183(g) (2011 Kan. Ct. R. Annot. 260). Whether an extension is necessary to prevent manifest injustice is generally fact sensitive in part and must be raised in the motion itself or at least presented to the district court or it will not be considered on appeal. Wilkerson v. State, 38 Kan.App.2d 732, 734, 171 P.3d 671 (2007).
The final order of the last appellate court to exercise jurisdiction over Reich's direct criminal proceedings was issued on May 8, 2007, after the Kansas Supreme Court denied Reich's petition for review. Reich did not file his K.S.A. 60–1507 motion until December 13, 2010—well over 3 years later. Reich's motion was clearly untimely under K.S.A. 60–1507(f)(1).
Reich does not dispute that his motion was not timely filed; instead, he argues that the language of K.S.A. 60–1507(f) does not require a showing of exceptional circumstances explaining why a motion is untimely. Reich incidentally contends that enforcement of the 1–year time limitation here will result in a manifest injustice because the substantive issues raised in his motion will never be reviewed. In making these arguments, Reich challenges this court's ruling in Toney v. State, 39 Kan.App.2d 944, 187 P.3d 122,rev. denied 287 Kan. 769 (2008).
In Toney, the movant filed an untimely K.S.A. 60–1507 motion asserting a claim of ineffective assistance of trial counsel. After a nonevidentiary hearing, the district court denied the motion, in part, due to its untimely filing. On appeal, Toney argued that his case should be remanded to the district court for an evidentiary hearing to address the merits of his ineffective assistance of counsel claim because failing to address the merits of his claim would be manifestly unjust. The Toney court rejected this argument, reasoning that if it were to accept such an argument, appellate courts would have to remand for an evidentiary hearing every time the trial court dismisses a K.S.A. 60–1507 motion as untimely, which would render the time limitation articulated in K.S.A. 60–1507(f) essentially meaningless. 39 Kan.App.2d at 947, 187 P.3d 122. In affirming the district court's ruling, the Toney court noted that Toney had failed to allege any circumstances preventing him from filing his motion before the expiration of the 1–year time period. Thus, the court concluded that Toney had failed to make a showing of manifest injustice that would allow him to proceed with his motion despite its untimely filing. 39 Kan.App.2d at 947, 187 P.3d 122.
Reich suggests that Toney was wrongly decided in that it requires a pleading of exceptional circumstances before an untimely motion can be considered, even though there is no such requirement found in K.S.A. 60–1507.
While a party seeking habeas relief is not required to specifically plead manifest injustice, he or she must allege some facts that, if true, would make apparent to the reviewing court that application of the 1–year limitation would constitute an unfair result. Pouncil v. State, No. 98,276, 2008 WL 2251221, at *2 (Kan.App.2008) (unpublished opinion). Moreover, this court has consistently held that a movant's underlying claims cannot supply the grounds for manifest injustice. See, e.g., Vontress v. State, 45 Kan.App.2d 430, 432–33, 249 P.3d 452,rev. granted 292 Kan. 969 (2011); Toney, 39 Kan.App.2d at 947, 187 P.3d 122.
Reich has presented neither a reason for his delayed filing nor any facts to support his suggestion that the application of the 1–year time limitation would be manifestly unjust. As a result, the district court did not err in summarily dismissing Reich's motion as untimely. We emphasize that we are not just looking at the lack of reasons for the late filing. We are also noting that there is nothing substantive presented as a basis for the 60–1507 motion to be granted.
Affirmed.
* * * *
LEBEN, J., concurring.
I agree with the result in this case but not with the reliance on Toney v. State, 39 Kan.App.2d 944, 187 P.3d 122,rev. denied 287 Kan. 769 (2008), and Vontress v. State, 45 Kan.App.2d 430, 249 P.3d 452,rev. granted 292 Kan. 969 (2011).
The majority relies upon Toney and Vontress for the propositions that (1) the basis in support of a movant's underlying claim on the merits can never supply the manifest injustice required to allow consideration of an untimely motion for habeas corpus relief, and (2) the movant must plead facts in the K.S.A. 60–1507 motion showing reasons—unrelated to the motion's merits—why the late filing of the motion should be excused. I disagree as a matter of law with both conclusions.
I disagree with the first of these propositions for the reasons I stated in my concurrence in Vontress:
“The majority relies on Toney ..., which found no manifest injustice when the prisoner had not shown that ‘circumstances prevented him from asserting his claim before the 1–year time limitation had expired.’ [Citation omitted.] In my view, if Toney stands for the proposition that a prisoner must make that showing as a precondition to consideration of a K .S.A. 60–1507 motion filed outside the 1–year time limit, that is too narrow a definition for manifest injustice. If a person can show actual innocence, for example, I would not leave him or her in prison even if that person failed for unexplained reasons to meet the 1–year time limit.” 45 Kan.App.2d at 433, 249 P.3d 452.
I disagree with the second proposition because it adds a pleading requirement found neither in K.S.A. 60–1507 nor in Kansas Supreme Court Rule 183 (2011 Kan. Ct. R. Annot. 259). Rule 183(e) provides that the Judicial Council must have a form that inmates can use to file a K.S.A. 60–1507 motion and that a motion is sufficient if [it is] in substantial compliance with that form. No question on the form asks the inmate to provide information about why a delay has occurred or why that delay should be excused if the motion is filed beyond the 1–year time limit.
But we need not decide this case based on pleading requirements not found in any statute or court rule. Nor need we decide this case based on a court-made rule stating that we would never consider the merits of the case in ruling whether the defendant has shown the manifest injustice that might excuse the untimely filing of the motion.
Why? Because the district court held a nonevidentiary hearing, which gave Reich's attorney a chance to argue specifically why the district court should find manifest injustice sufficient to consider Reich's motion. And under any reasonable understanding of K.S.A. 60–1507 practice, the bases given by Reich to support a manifest-injustice finding weren't enough.
Reich's attorney explained that it was Reich's view that there's no way in heck he should have been convicted, which was the basis for the manifest-injustice claim. Reich asserts that he shouldn't have been convicted based on the merits of the claims he set out in his K.S.A. 60–1507 motion. And, as his attorney put it, Reich was pretty adamant that it would be manifest injustice not to entertain his petition for relief because there's no way the evidence supports a kidnapping conviction.
The first merits-based arguments Reich raised in his K.S.A. 60–1507 motion had been rejected in his initial direct appeal to this court. In the habeas motion, Reich argued that the jury should have been instructed that it could find him guilty of lesser-included offenses. But that argument was explicitly made and rejected on direct appeal. See State v. Reich, No. 94,759, 2007 WL 136004, at *3–5 (Kan.App.2007) (unpublished opinion), rev. denied 284 Kan. 950 (2007). A habeas motion may not be used to relitigate issues lost on direct appeal. See Kansas Supreme Court Rule 183(c); State v. Kelly, 291 Kan. 868, 874–75, 248 P.3d 1282 (2011); Jackson v. State, No. 103,485, 2011 WL 4906841, at *1 (Kan.App.2011) (unpublished opinion).
Reich's second merits-based argument was that the evidence wasn't sufficient to support a kidnapping conviction because it was not stipulated in the record how the victim was moved or for what purposes. K.S.A. 21–3420(b), as in effect at the time of Reich's 2004 offense, defined kidnapping to include the taking or confining of any person ... to facilitate flight or the commission of any crime. Courts have held that there must be some movement of the victim that is not slight, inconsequential, [or] merely incidental to the other crime, is not of the kind inherent in the nature of the other crime, and that makes the other crime substantially easier of commission or substantially lessens the risk of detection. State v. Buggs, 219 Kan. 203, 216, 547 P.2d 720(1976).
Here, the State's evidence (summarized in this court's 2007 opinion) was that the victim testified that Reich struck him on the head from behind while they were outside an automotive-service business, and that Reich then dragged the victim back into the shop. As the prosecutor argued in closing argument, anyone walking by could see him lying in front of the business, so dragging the victim into the shop made it easier to rob the victim by then finding the victim's car keys in his pocket and taking money out of the cash drawer, all done while passersby would not see anything amiss. The evidence presented to the jury was sufficient to support a kidnapping conviction.
Reich's final merits-based argument is that his attorneys—both at trial and in the original, direct appeal—should have raised the issue[ ] of the insufficiency of the evidence to support the conviction of kidnapping. As I have already noted, there was sufficient evidence to support the kidnapping conviction. So it's no surprise that this issue was not raised by Reich's attorneys.
In sum, Reich has not shown any claim that has the slightest potential for undermining his convictions. I therefore agree with the majority that he has not shown manifest injustice.