Opinion
No. 107,664.
2013-03-8
Cleave E. SIMS, III, Appellant, v. STATE of Kansas, Appellee.
Appeal from Sedgwick District Court; Anthony J. Powell, Judge. Michael P. Whalen and Krystle M.S. Dalke, of Law Office of Michael P. Whalen, of Wichita, for appellant. Boyd K. Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Anthony J. Powell, Judge.
Michael P. Whalen and Krystle M.S. Dalke, of Law Office of Michael P. Whalen, of Wichita, for appellant. Boyd K. Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before HILL, P.J., ATCHESON and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Cleave E. Sims, III, appeals the district court's summary dismissal of his K.S.A. 60–1507 motion as successive and untimely. Sims asserts that State v. Berry, 292 Kan. 493, 254 P.3d 1276 (2011), applies retroactively and, because it is an intervening change in the law, it provides an exceptional circumstance enabling the district court to consider his motion even though it is successive. Because we find that Berry does not apply retroactively to Sims' case, we affirm the district court's summary dismissal of his K.S.A. 60–1507 motion.
Factual and Procedural History
In 1995, Sims was convicted of felony murder, two counts of aggravated battery, and criminal discharge of a firearm. He was sentenced to life plus 60 months in prison.
On November 16, 2011, Sims filed a K.S.A. 60–1507 motion alleging, among other things, that the decision in Berry applies retroactively and that, accordingly, the jury instructions in his case should have included lesser included crimes.
The district court summarily dismissed Sims' motion as untimely and successive and further found that Sims had not shown manifest injustice or exceptional circumstances to warrant review. Sims appealed.
Analysis
When the district court summarily denies a K.S.A. 60–1507 motion, an appellate court conducts 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).
Sims was convicted of felony murder in 1995. In 2003, the legislature amended the statute to impose a 1–year time limitation for bringing an action under K.S.A. 60–1507. Those inmates with claims that preexist the statute were deemed to have 1 year after its effective date to bring such claims. See Pabst v. State, 287 Kan. 1, 22, 192 P.3d 630 (2008). Accordingly, Sims was required to file any K.S.A. 60–1507 motion before June 30, 2004. Because this action was not filed until 2011 it was clearly untimely and the district court did not err in so finding.
In addition, the statute provides that “[t]he sentencing court shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner.” K.S.A. 60–1507(c). Sims has filed at least four previous K.S.A. 60–1507 motions. See Sims v. State, No. 100,381, 2009 WL 3018067, at *1 (Kan.App.2009) (unpublished opinion), rev. denied 290 Kan. 1095 (2010). Therefore, the district court did not err when it found Sims' fifth K.S.A. 60–1507 motion as successive.
But our case law has allowed consideration of successive K.S.A. 60–1507 motions if there is a showing of exceptional circumstances. See State v. Kelly, 291 Kan. 868, 872, 248 P.3d 1282 (2011). Exceptional circumstances are unusual events or intervening changes in the law which prevented the movant from raising the issue in a prior postconviction proceeding. 291 Kan. at 872.
Sims asserts that there are exceptional circumstances present to consider his successive motion. He bases his claim on our Supreme Court's decision in Berry, which he claims is an intervening change in the law as it applies to his case. He contends he could not have raised this issue before because Berry was not decided until 2011. A brief review of Berry is in order.
In Berry, our Supreme Court determined—for felony-murder cases—that when there is some evidence to justify a conviction on a lesser included offense, a lesser included offense instruction should be given. 292 Kan. at 513–14. Because Sims was convicted of felony murder and no lesser included offense instructions were given, he argues that the district court should have fully considered the application of Berry to his case by issuing specific findings of fact and conclusions of law. Accordingly, he asks us to remand this case to the district “for findings on the application of the Berry case and whether the record of trial contains factual findings and evidence which would support Mr. Sims' request for lesser included offenses and require a new trial.”
But what Sims neglects to recognize is that the Supreme Court specifically discussed whether its decision should be applied retroactively and held that it should only apply to pending felony-murder cases. As a new rule of criminal procedure, it applied to felony-murder cases pending on direct review or not yet final. Berry, 292 Kan. at 514. The Supreme Court then went on to state that “[a] conviction is generally not final until: (1) the judgment of conviction is rendered; (2) the availability of an appeal is exhausted; and (3) the time for any rehearing or final review has passed.” 292 Kan. at 514; see also Hollingsworth v. State, No. 106,357, 2012 WL 718971, at *6–7 (Kan.App.2012) (unpublished opinion) (finding that the holding in Berry did not change a “watershed” rule, therefore Berry was not retroactively applicable to collateral attacks).
Sims' conviction has been rendered; his ability to file a direct appeal has been exhausted (see State v. Sims, 265 Kan. 166, 960 P.2d 1271 [1998] ); and the time for any rehearing or final review has passed. Thus, Sims' case is no longer pending and is final and has been for some time. Because Sims' felony-murder case was not pending when Berry was decided, then Berry is not retroactively applicable to his collateral attack. Accordingly, we affirm the district court's finding that there were no exceptional circumstances to justify consideration of Sims' successive K.S.A. 60–1507 motion.
Affirmed.