Opinion
No. 111244.
06-05-2015
Essex SIMS, Appellant, v. STATE of Kansas, Appellee.
Krystal M.S. Dalke and Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellant. Boyd K. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Krystal M.S. Dalke and Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellant.
Boyd K. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before GREEN, P.J., ARNOLD–BURGER, J., and BURGESS, S J.
MEMORANDUM OPINION
PER CURIAM.
Essex T. Sims was convicted by a jury of first-degree murder, two counts of aggravated battery, one count of criminal possession of a firearm, and one count of criminal discharge of a firearm at an occupied building. Sims directly appealed, and his convictions were affirmed by the Kansas Supreme Court. State v. Sims, 262 Kan. 165, 936 P.2d 779 (1997). In 2011, Sims filed his first K.S.A. 60–1507 motion which was decided by the Kansas Supreme Court. State v. Sims, 294 Kan. 821, 280 P.3d 780 (2012). In 2013, Sims filed a second motion for post-conviction relief under K.S.A. 60–1507. The district court summarily denied Sims' motion and he timely appealed. We affirm.
Factual and Procedural Background
Sims was convicted by a jury of first-degree murder, two counts of aggravated battery, one count of criminal possession of a firearm, and one count of criminal discharge of a firearm at an occupied building in Sedgwick County Case No. 95 CR 630. Sims directly appealed to the Kansas Supreme Court, and his convictions were affirmed in May 1997. See Sims, 262 Kan. 165.
Sims' first motion pursuant to K.S.A. 60–1507 was filed approximately 7 years later. The district court summarily denied the motion, and this court affirmed the denial of the motion. See Sims v. State, No. 93,676, 2006 WL 995364, at *1 (Kan.App.2006) (unpublished opinion).
On January 5, 2011, Sims filed a post-conviction motion to correct an illegal sentence. Sims raised five issues in this motion, one of which related to his sentence and four of which challenged his convictions, which were not germane to a motion to correct an illegal sentence. The district court denied Sims relief, and an appeal was taken directly to the Kansas Supreme Court. Our Supreme Court issued a decision on July 20, 2012, affirming the district court's denial. Sims, 294 Kan. 821.
On July 15, 2013, less than 1 year after the decision in the appeal of the denial to correct an illegal sentence, Sims filed the current K.S.A. 60–1507 motion challenging his convictions. Sims raised eight claims including instructional error, prosecutorial misconduct, and ineffective assistance of trial and appellate counsel. Sims also claimed his due process rights were violated when the jury was allowed to convict him under both the aiding and abetting and principal theories when these crimes were not charged alternatively in the complaint.
The district court summarily denied Sims' motion finding he was out of time and further that Sims failed to assert exceptional circumstances. Sims timely appeals.
Analysis
Did the district court err when it summarily denied Sims' second K.S.A. 60–1507 motion?
On appeal, Sims argues the district court erred when it denied his second K.S.A. 60–1507 motion as untimely and found that he had not asserted exceptional circumstances to excuse the 1–year time limit.
A district court has three options when handling a K.S.A. 60–1507 motion:
“ ‘(1) The court may determine that the motion, files, and case records conclusively show the prisoner is entitled to no relief and deny the motion summarily; (2) the court may determine from the motion, files, and records that a potentially substantial issue exists, in which case a preliminary hearing may be held. If the court then determines there is no substantial issue, the court may deny the motion; or (3) the court may determine from the motion, files, records, or preliminary hearing that a substantial issue is presented requiring a full hearing.’ [Citation omitted.]” Sola–Morales v. State, 300 Kan. 875, 881, 335 P.3d 1162 (2014).
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 relief. Sola–Morales, 300 Kan. at 881.
To be entitled to relief under K.S.A. 60–1507, the movant must establish by a preponderance of the evidence either: (1) “the judgment was rendered without jurisdiction”; (2) “the sentence imposed was not authorized by law or is otherwise open to collateral attack”; or (3) “there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack.” K.S.A. 60–1507(b) (grounds for relief); Supreme Court Rule 183(g) (2014 Kan. Ct. R. Annot. 285) (preponderance burden).
To avoid the summary denial of a motion brought under K.S.A. 60–1507, a movant bears the burden of establishing entitlement to an evidentiary hearing. To meet this burden, a movant's contentions must be more than conclusory, and either the movant must set forth an evidentiary basis to support those contentions or the basis must be evident from the record. If such a showing is made, the court is required to hold a hearing unless the motion is a “ ‘ “second” “ ‘ or “ ‘ “successive’ “ “ motion seeking similar relief. SolaMorales, 300 Kan. at 881 (quoting Holt v. State, 290 Kan. 491, 495, 232 P.3d 848 [2010] ).
In a K.S.A. 60–1507 proceeding, the sentencing court is not required to entertain a second or successive motion for similar relief on behalf of the same prisoner. State v. Trotter, 296 Kan. 898, 904, 295 P.3d 1039 (2013) (citing K.S.A. 60–1507 [c] ). “A movant in a K.S.A. 60–1507 motion is presumed to have listed all grounds for relief, and a subsequent motion need not be considered in the absence of a showing of circumstances justifying the original failure to list a ground.” Trotter, 296 Kan. 898, Syl. ¶ 2 ; see also Supreme Court Rule 183(d) (2014 Kan. Ct. R. Annot. 286) (“A sentencing court may not consider a second or successive motion for relief by the same movant when: [1] the ground for relief was determined adversely to the movant on a prior motion; [2] the prior determination was on the merits; and [3] justice would not be served by reaching the merits on the subsequent motion.”).
This is Sims' second K.S.A. 60–1507 motion. On appeal, Sims recognizes he has filed a prior K.S.A. 60–1507 motion; however, he claims the existence of exceptional circumstances. A court is not required to entertain successive K.S.A. 60–1507 motions on behalf of the same prisoner absent a showing of some unusual circumstances or intervening changes in the law justifying the original failure to list the grounds for relief. Sims has not argued any circumstances that warrant this successive motion on his claims that: (1) the district court committed instructional error by giving both the aiding and abetting instructions together; (2) the prosecutor misstated the law during closing; (3) his due process rights were violated when the district court allowed the jury to convict him under both aiding and abetting when the case was not charged as an alternate means in the complaint; (4) he had ineffective assistance of counsel at the trial court and the appellate court level; (5) his constitutional right to a fair trial was violated when the state was allowed to solicit information from a state witness regarding his prior juvenile convictions; and (6) the district court abused its discretion by allowing the jury to be informed of the name, nature, and number of his prior convictions. Sims' present K.S.A. 60–1507 motion fails.
Sims argues on appeal that the district court erred when it found his motion was not timely because it was filed within 1 year of the Kansas Supreme Court's final order on his first K.S.A. 60–1507 motion for post-conviction relief. However, Sims is misinterpreting K.S.A. 60–1507(f) which states a defendant has 1 year from when his or her conviction becomes final to file a motion under K.S.A. 60–1507(a). See K.S.A. 60–1507(f)(1). The Kansas Supreme Court affirmed Sims' conviction on his direct appeal on April 18, 1997. Sims, 262 Kan. at 173. Sims filed his current K.S.A. 60–1507 motion on July 15, 2013, well over the 1–year requirement of K.S.A. 60–1507(f).
Sims is unclear in his present K.S.A. 60–1507 motion as to whom he claims provided him with ineffective assistance of counsel. He frames the issue as to ineffective assistance of counsel as the failure of counsel “to present all of the issues contained in the present K.S.A. 60–1507 in his initial direct appeal. ” (Emphasis added.) Any issues in regard to ineffective assistance of counsel in regard to his direct appeal should have been raised by filing a K.S.A. 60–1507 motion within 1 year after the decision was rendered in his direct appeal.
While Sims does not make specific reference in his current K.S.A. 60–1507 motion in regard to ineffective assistance of counsel in the appeal of his first K.S.A. 60–1507 motion, there was some brief reference made to that issue in Sims' brief. Such a brief and ambiguous reference in his brief is insufficient particularly when his claims are directed at issues regarding his trial and direct appeal counsel. In all events, if Sims had problems with his counsel's performance in regard to his first K.S.A. 60–1507 motion, he should have filed a motion within 1 year of the appellate court's decision affirming the denial of the motion.
Sims tries to argue that the present K.S.A. 60–1507 motion is timely since it was filed within 1 year after our Supreme Court affirmed the denial of Sims' motion to correct an illegal sentence. The Supreme Court made it clear that Sims could not challenge his convictions as part of a motion to correct an illegal sentence. Sims, 294 Kan. at 825. Accordingly, the only issues Sims could conceivably raise following his most recent 2013 appellate decision would be issues regarding the denial of his motion to correct an illegal sentence.
The 1–year time limitation for bringing an action under K.S.A. 60–1507(f)(1) may be extended by the district court only to prevent a manifest injustice. K.S.A. 60–1507(f)(2). Manifest injustice must be determined from the totality of the circumstances. In determining whether manifest injustice exists, the court should consider this nonexhaustive list of factors: (1) whether the movant provides persuasive reasons or circumstances that prevented him or her from filing the K.S.A. 60–1507 motion within the time limitation; (2) whether the merits of the movant's claims raise substantial issues of law or fact deserving the district court's consideration; and (3) whether the movant sets forth a colorable claim of actual innocence, i.e., factual, not legal, innocence. Vontress v. State, 299 Kan. 607, 616, 325 P.3d 1114 (2014).
A defendant who files a motion under K.S.A. 60–1507 outside the 1–year time limitation in K.S.A. 60–1507(f) and fails to assert manifest injustice is procedurally barred from maintaining the action. See Trotter, 296 Kan. at 905. Because Sims' K.S.A. 60–1507 motion is outside the 1–year time limitation, he was required to assert manifest injustice in order for his claim to not be procedurally barred. Sims has failed to meet his burden to establish manifest injustice.
In all events, it is difficult to conceive of any scenario where a claim of manifest injustice could be established. Most, if not all, of the issues raised in this current K.S.A. 60–1507 motion were addressed by the direct appeal of his conviction or Sims' first K.S.A. 60–1507 motion. See Sims, 294 Kan. 821 ; Sims, 262 Kan. 165. Furthermore, when Sims filed the first K.S.A. 60–1507 motion, he had the opportunity to raise any and all issues that he wished to pursue. It is presumed he did so. It is presumed that the issues concerning his conviction which Sims is trying to raise at this late date could have and should have been raised in his first K.S.A. 60–1507 motion.
Affirmed.