Opinion
No. 108,712.
2013-08-16
Stacey W. SPEED, 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, Marc Bennett, 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, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before BUSER, P.J., SCHROEDER, J., and KNUDSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Stacey W. Speed appeals the district court's summary dismissal of his K.S.A. 60–1507 motion. In its form order of dismissal, the district court determined Speed's motion to be a successive 1507 motion for similar relief that failed to set forth facts demonstrating manifest injustice or exceptional circumstances. In support of its order, the district court cited to K.S.A. 60–1507(c). On appeal, Speed contends the dismissal was improvident because his 1507 motion did present exceptional circumstances in support of a successive motion. In addition, Speed contends for an assortment of reasons that his 1507 motion should not have been summarily dismissed as untimely.
By way of background, Speed's convictions for first-degree premeditated murder, felony murder, aggravated robbery, and aggravated kidnapping were affirmed by the Kansas Supreme Court in State v. Speed, 265 Kan. 26, 961 P.2d 13 (1998). Speed subsequently filed a 1507 motion that was summarily denied by the district court. A panel of this court affirmed the summary dismissal in Speed v. State, No. 84,081, unpublished opinion filed April 6, 2001 (Kan.App.).
On April 12, 2012, Speed filed this successive 1507 motion. Because Speed's motion was summarily dismissed, our standard of review is de novo. Bellamy v. State, 285 Kan. 346, 354, 172 P.3d 10 (2007).
A successive 1507 motion may be permitted on a showing of exceptional circumstances. Supreme Court Rule 183(c)(3) (2012 Kan. Ct. R. Annot. 274); Wimbley v. State, 292 Kan. 796, Syl. ¶ 1, 275 P.3d 35 (2011). “ ‘Exceptional circumstances are unusual events or intervening changes in the law which prevent a movant from reasonably being able to raise all of the trial errors in the first post-conviction proceeding.’ [Citation omitted.]” Woodberry v. State, 33 Kan.App.2d 171, 175, 101 P.3d 727,rev. denied 278 Kan. 853 (2004).
Speed contends State v. Berry, 292 Kan. 493, 254 P.3d 1276 (2011), superseded by statute as stated in State v. Phillips, 295 Kan. 929, 287 P.3d 245 (2012); State v. Overstreet, 288 Kan. 1, 200 P.3d 427 (2009); and State v. Engelhardt, 280 Kan. 113, 119 P.3d 1148 (2005), support his claim of exceptional circumstances, each case representing an intervening change in the law.
In Engelhardt, the district court gave two jury instructions on aiding and abetting that conformed with PIK Crim.3d 54.05 and PIK Crim.3d 54.06. The Supreme Court held that under the evidence presented the jury was not misled even if the two instructions were in some way erroneous. 280 Kan. at 134. In Overstreet, the Supreme Court held:
—“The giving of the aiding and abetting foreseeability instruction in PIK Crim.3d 54.06 in a case where the defendant is charged with attempted premeditated first-degree murder is clearly erroneous because it negates the State's burden to prove an essential element of the crime charged: premeditation. The fact that it may be foreseeable that someone may die as a result of a particular course of action does not give rise to the conclusion that the cause of death was premeditated.” 288 Kan. 1, Syl. ¶ 4.
It is readily apparent that the issues of instructional error raised in both Engelhardt and Overstreet were considered and resolved by applying existing law to the facts of the case. There is no suggestion in either opinion that the Supreme Court abrogated a prior rule of law.
In Berry, the Supreme Court considered whether the jury should have been given lesser included jury instructions under the principal charge of felony murder. The Supreme Court held that pursuant to K.S.A. 22–3414(3), “[l]esser included offense instructions [should be given] if ‘there is some evidence that would reasonably justify a conviction of some lesser included crime.’ “ 292 Kan. at 513. Its ruling abrogated prior opinions regarding under what circumstances lesser included offense instructions should be given under a charge of felony murder. The Supreme Court specified that its holding would apply to all felony-murder cases pending on direct review or not yet final. 292 Kan. at 514. Subsequently, the Supreme Court held in State v. Mitchell, 297 Kan. 118, 125, 298 P.3d 349 (2013), that the Berry holding would not be applied retroactively.
Speed's criminal case became final when his direct appeal was decided in 1998, and he has failed to demonstrate exceptional circumstances that would preclude dismissal under K.S.A. 60–1507(c). Our decision renders unnecessary consideration of Speed's alternative argument that his motion should not have been dismissed for untimeliness under K.S.A. 60–1507(f).
Affirmed.