Opinion
Nos. 110336 110366.
2015-01-16
STATE of Kansas, Appellee, v. Dale M.L. DENNEY, Appellant.
Appeal from Sedgwick District Court; Warren M. Wilbert, Judge.Michael P. Whalen and Krystle Dalke, 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; Warren M. Wilbert, Judge.
Michael P. Whalen and Krystle Dalke, 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., LEBEN and STANDRIDGE, JJ.
MEMORANDUM OPINION
PER CURIAM.
Dale M.L. Denney appeals the district court's summary denial of three pro se motions seeking postconviction relief. The motions, filed in 2013, sought a new trial based upon newly discovered evidence, requested new DNA testing pursuant to K.S.A. 21–2512, and asked for funds to obtain independent DNA testing. Based upon our review of Denney's motions, the record, and the parties' briefs, we find no error and affirm the district court's summary denial.
Factual and Procedural Background
In 1992, Denney was paroled after his imprisonment for convictions of rape and aggravated burglary in 1987. While on parole, Denney committed additional violent sex crimes for which a jury convicted him in two cases consolidated for trial, case No. 93 CR 1343 (1992 case) and case No. 93 CR 1268 (1993 case). See State v. Denney, 278 Kan. 643, 643–44, 101 P.3d 1257 (2004) ( Denney IT ).
In the 1992 case, Denney held a knife to the throat of his sister-in-law and sodomized her in the fall of 1992. As a result, Denney was convicted in 1993 of aggravated criminal sodomy, aggravated sexual battery, and an aggravated weapons violation. In the 1993 case, Denney beat, choked and sodomized his former girlfriend. This resulted in his conviction in July 1993 of aggravated criminal sodomy, aggravated battery, aggravated sexual battery, and an aggravated weapons violation.
According to our Supreme Court: “The evidence in both cases was extensive and uncontroverted by Denney.” State v. Denney, 258 Kan. 437, 439, 905 P.2d 657 (1995) ( Denney I ). Denney was sentenced to 36 years-to-life in the 1992 case and a consecutive controlling prison term of 228 months in the 1993 case. Our Supreme Court affirmed the convictions and sentences on direct appeal. 258 Kan. at 441–48.
Upon the conclusion of appellate jurisdiction, Denney filed numerous motions seeking postconviction relief. See, e.g., Denney II, 278 Kan. 643; State v. Denney, 283 Kan. 781, 156 P.3d 1275 (2007) ( Denney III ); State v. Denney, No. 98,288, 2008 WL 3367606 (Kan.App.2008) (unpublished opinion) ( Denney IV ); State v. Denney, No. 100,365, 2009 WL 1766242 (Kan.App.2009) (unpublished opinion), rev. denied 289 Kan. 1281 (2009) ( Denney V ); State v. Denney, No. 101,333, 2010 WL 3488663 (Kan.App.2010) (unpublished opinion) ( Denney VI ); State v. Denney, No. 105,186, 2012 WL 223924 (Kan.App.2012) (unpublished opinion), rev. denied 296 Kan. 1132 (2013) ( Denney VII ); State v. Denney, No. 105,681, 2012 WL 402012 (Kan.App.2012) (unpublished opinion), rev. denied 296 Kan. 1132 (2013) ( Denney VIII ).
Relevant to this appeal, on September 12, 2002, Denney filed a pro se motion for DNA testing pursuant to K.S.A. 21–2512. This statute generally allows inmates convicted of certain crimes to request DNA testing after conviction and sentencing. See K.S.A. 21–2512; Denney II, 278 Kan. at 645–46. The district court denied Denney's motion because the statute expressly limited DNA testing to rape or murder cases.
On appeal, our Supreme Court reversed the district court's ruling. It found that K.S.A. 21–2512 violated the Equal Protection Clause of the 14th Amendment to the United States Constitution because there was no rational basis for authorizing DNA testing for those convicted of rape, while excluding testing for those, like Denney, who were convicted of aggravated criminal sodomy. 278 Kan. at 649–56. The case was remanded to the district court for additional findings regarding whether Denney otherwise qualified for DNA testing under the statute. 278 Kan. 661.
On remand, the district court found that although no evidence existed for DNA testing in the 1992 case, in the 1993 case, rape kit swabs, panties, and a washrag were available for testing. This evidence and a recent DNA sample from Denney were submitted to the Sedgwick County Regional Forensic Science Center (Center) for testing. After the Center submitted its report, our Supreme Court summarized the district court litigation in Denney III, 283 Kan. at 74–86:
“On July 21, 2005, Denney filed a motion of Judicial notice of defendant's DNA expert witness with motion to extend court's July 22nd & 29th, 2005 hearings and to subpoena DNA expert witness to counter State's erroneous DNA profile.' In the motion, Denney asserted that he had acquired the services of Dr. Edward Blake of Richmond, California; that Dr. Blake had reviewed the State's DNA profile; and that Blake ‘stated said profile is erroneous and inconclusive.’
“Despite Denney's motion to extend, a hearing was held on July 29, 2005. There, the State summarized the Center's lab report: ‘[T]here's no-absolutely no question that the semen detected in the rectal swab of the victim was the defendant's.’ While no DNA testing of the victim's light blue panties could be done, semen was detected on the blue washrag and the DNA from the sperm cell fraction obtained there was consistent with Denney's DNA.
“The three-page lab report stated that Polymerase Chain Reaction (PCR) DNA analysis had been performed. It specifically provided:
“ ‘1. The DNA profile obtained from the sperm cell fraction of the rectal swabs (Q2F2) is a mixture of at least two individuals. The major contributor to this profile is consistent with the profile of Dale M.L. Denney (K1) and the minor contributor is consistent with [A.L.] (K1); therefore, Dale M.L. Denney and [A.L.] cannot be excluded as possible contributors to this profile.
“ ‘2. The DNA profile obtained from the sperm cell fraction of the cutting from the blue wash rag (Q5C1F2) is consistent with the profile of Dale M.L. Denney (K3), therefore, Dale M.L. Denney cannot be excluded as the source of this profile. [A.L.] (K1) is excluded as a possible source of this profile.
“ ‘3. The DNA profile obtained from the non-sperm fraction of the rectal swabs (Q2F1) is consistent with the profile of [A.L.] (K1), therefore [A.L.] cannot be excluded as the source of this profile. Dale M.L. Denney (K3) is excluded as a possible source of this profile.’
“The report concluded:
“The probability of selecting an unrelated individual at random from the following population groups who:
“ ‘Exhibits a profile that is a potential major contributor to the mixture profile obtained from Q2F2 [rectal swab] and exhibits a matching DNA profile with the profile from Q5C1F2 [blue washrag] ... is approximately:
“ ‘Caucasian 1 in 120 quintillion.
“ ‘Black 1 in 2.69 sextillion.
“ ‘Hispanic 1 in 185 quintillion.’
“The State moved to admit the lab report and supporting documentation, including reports of the chain of custody and the recent acquisition of Denney's DNA through oral swabs. The court admitted the report over defense counsel objections of foundation, best evidence, hearsay, and chain of custody.
“Defense counsel also objected to Denney's absence from the proceedings and asked the court to reserve judgment on Denney's petition until Denney had the opportunity to hire his own expert to test the DNA evidence. When the court learned that Dr. Blake had not provided a written report nor was he present to testify, it concluded that Denney had no evidence to submit for the court's consideration.
“The State argued that per the plain language of [K.S.A.] 21–2512(f), because the test results were ‘unfavorable to the petitioner,’ the court was required to summarily dismiss his petition and was without jurisdiction to do anything else. It also argued that outside of the parameters established in [K.S.A.] 21–2512, Denney at any time could conduct his own DNA testing at his own expense.
“The district court dismissed Denney's petition, stating ‘the evidence is very clear that this was Mr. Denney's DNA in the [1993 case].’ It also dismissed his other pro se motions for lack of jurisdiction, e.g., finding that it possessed no evidence of Dr. Blake's opinions and therefore could not consider the possibility of another hearing at that time.
“The district court also ruled that the DNA evidence would be preserved and made ‘available to any reputable scientist that wants to evaluate it.’ In this vein, it also ruled that if Denney's family hired Dr. Blake or anyone else and they ‘like his results better,’ Denney could file a motion to reopen the petition. The court suggested it could be captioned ‘motion for new trial based on newly discovered evidence.” ’
Denney appealed the adverse ruling, contending the district court erred because the court: “(1) failed to allow [him] to confront the individual who conducted the DNA testing; (2) allowed admission of the lab report in violation of the rules of evidence; (3) failed to allow [him] to be present at the hearing; and (4) failed to allow [him] to present a defense.” 283 Kan. at 788.
Our Supreme Court affirmed the district court's dismissal. In particular, it found Denney was not deprived of his right to confrontation nor his right to be present because the “DNA testing conducted by the Center's accredited lab was obviously unfavorable to Denney[—]1 chance in 120 quintillion that another Caucasian met the profile[—]” and “[w]hen DNA results are unfavorable to a defendant, the statutory procedure is clear: the court shall dismiss the petition. [Citation omitted.]” 283 Kan. at 789.
The Supreme Court also determined that Denney's claim that the test results were erroneously admitted in violation of the rules of evidence (including the best evidence rule, foundation requirements for the forensic scientist's qualifications, the reliability of the testing equipment and techniques, and chain of custody requirements) was without merit. 283 Kan. at 792–93. The court explained:
“[T]here is no statutory requirement for how the court is to receive the DNA test results. Here, the court accepted the lab report, admitted it into evidence, and essentially allowed it to speak for itself. Finally, we observe that the report was accepted along with a document demonstrating the chain of custody.” 283 Kan. at 793.
Lastly, the Supreme Court found the district court's refusal to delay its ruling until Denney's expert reviewed the State's findings did not deprive Denney of his right to present a defense because “subsection (g) of the statute, and the district court—with its invitation to Denney to obtain his own expert and to file to reopen the petition if his DNA test results were different from the Center's—afford[ed] Denney ample opportunity to ‘present his defense.’ “ 283 Kan. at 793.
In July 2007, Denney moved for state funding to conduct independent DNA testing, but the district court denied his motion. Four months later, in November 2007, Denney again moved for funds for independent DNA testing, and in January 2008, he renewed his motion. When the district court denied his request, Denney appealed.
On appeal, our court held the district court did not err when it denied Denney's latest motion for DNA testing:
“In Denney's earlier appeal related to this issue our Supreme Court indicated that Denney was entitled to have the DNA evidence tested by an expert of his choosing but did not hold that Denney was entitled to state funds for that purpose. Further, K.S.A. 21–2512 does not require repeated State funding of private DNA testing. DNA testing available under K.S.A. 21–2512 was performed and the results were unfavorable to Denney. Denney is not entitled to state funds for additional testing. The district court did not abuse its discretion in denying Denney's motion.” Denney V, 2009 WL 1766242, at *2.
About 4 months later, Denney filed a brief in Denney VI “with the same arguments that were made in Denney V—that DNA independent testing should be ordered and paid by the State.” Denney VI, 2010 WL 3488663, at *1. In actuality, “[t]his [was] ... an appeal that the 2007 motions were erroneously overruled by the district court. Denney timely appealed these rulings, but his appeal was dismissed ... for failure to docket. His appeal was reinstated ... because his attorney failed to perfect the appeal.” 2010 WL 3488663, at *1.
Although Denney argued that the district court erred by not permitting additional DNA testing and not providing funds for independent testing, our court held that Denney could not relitigate the same issues that had previously been decided in the same case:
“The law of the case doctrine “ ‘prevents relitigation of the same issues within successive stages of the same suit.” [Citation omitted.]’ [Citation omitted.] The doctrine provides that “ ‘once an issue is decided by the court, it should not be relitigated or reconsidered unless it is clearly erroneous or would cause manifest injustice.’ “ [Citation omitted.]
“The State is correct that the arguments Denney is currently making have already been decided by this court in Denney V. In that case, Denney ‘moved for independent DNA testing and requested funding to conduct “all necessary scientific testing.’ “ [Citation omitted.] ... Denney's arguments in Denney V—the same arguments he makes in the instant case failed. [Citation omitted.] The arguments he now makes have already been clearly decided. [Citation omitted.]
“Denney has not argued that it would be clearly erroneous for our panel not to consider his arguments nor would he suffer manifest injustice by our court not doing so.” 2010 WL 3488663, at *1–2.
Almost 3 years later, on March 12, 2013, Denney filed the three pro se motions which are the subject of this appeal. First, Denney moved once again for new DNA testing pursuant to K.S.A. 21–2512 and for funds to conduct independent DNA testing. In particular, Denney asserted it was necessary to void the previous DNA testing because, in 2005, the district court admitted the laboratory report in evidence without a certificate of forensic examination. Although Denney acknowledged he did not contemporaneously object to the admission, he claimed the State deprived him of the opportunity to object because the prosecutor neglected to submit a notice that he would proffer the certificate and report. Denney further claimed he was entitled to state funding for independent testing because it was necessary to prove “his defense of evidence tampering.” In particular, Denney claimed that after law enforcement collected his DNA from him, a detective rubbed those samples on the State's evidence.
Additionally, Denney stated that on June 14, 2007, the Lyon County District Court issued an order in State v. Dustin Mercer, case No. 01CR209, which indicated that the “parties [had] advise[d] the Court that there [was] an agreement for independent [DNA] testing,” and to deprive him of a similar opportunity would implicate his right to equal protection. Of note, while the Mercer order indicated the parties had agreed to submit the “remaining biologic samples obtained during the investigation” of Mercer's case for independent testing, the order did not indicate whether the testing was to be completed at the State's expense or whether the evidence had been previously tested by the State.
Denney also filed a motion for new trial, asserting he had recently discovered exculpatory evidence. In particular, Denney claimed he could prove the two victims testified falsely at his original trial. Regarding the 1992 case, Denney said that on February 29, 2008, the victim's former husband attested to the fact that the victim told him a detective coerced her into making false accusations against Denney.
With regard to the 1993 case, Denney stated that after his convictions the victim filed a civil lawsuit against him, but after he filed a counterclaim against her for filing a false police report, she agreed to dismiss, with prejudice, her lawsuit and “ ‘[t]rial [t]estimony [c]laims' “ in the 1993 case. As proof, Denney attached a journal entry dated June 2, 1995, which states that “this action, including all of the claims of the plaintiff against the defendant and all of the claims contained in the amended counterclaim of the defendant against the plaintiff should be and the same are hereby dismissed.” Denney asserted the phrase “all of the claims of the plaintiff against the defendant” included the testimony of the victim, provided in the 1993 case.
On April 30, 2013, the State responded to Denney's motions for DNA testing, contending the district court could resolve the motions without the appointment of counsel or an evidentiary hearing because the motions, files, and records of the case established that Denney was not entitled to any relief. The State also responded to Denney's motion for new trial by advocating for summary dismissal.
Without appointing counsel for Denney or requesting oral arguments, on June 3, 2013, the district court denied all three motions. For each motion, the district court issued an order adopting “the State's response as its findings of fact and conclusions of law.” Denney filed this timely appeal.
Insufficient Findings of Fact and Conclusions of Law
For his first issue, Denney contends the district court failed to make sufficient findings of fact and conclusions of law when it summarily denied his motion for new trial based upon newly discovered evidence. Denney argues this failure impedes appellate review, and he seeks a remand for “an evidentiary hearing to fully develop the record and with instructions for the district court to apply the correct legal standards to [his] claim.”
Preliminarily, Denney “acknowledges that he is past the two-year period for bring[ing] a newly discovered evidence claim under K.S.A. 22–3501, however this [c]ourt can construe his motion into one filed under K.S.A. 60–1507.”
This court has a duty to question jurisdiction on its own initiative. See State v. Harp, 283 Kan. 740, 746, 156 P.3d 1268 (2007). The right to an appeal is purely statutory; therefore, Kansas appellate courts only have jurisdiction to consider appeals taken in the manner prescribed by statute. State v. Gill, 287 Kan. 289, 293–94, 196 P.3d 369 (2008). Whether a defendant's motion for new trial was timely under K.S.A.2013 Supp. 22–3501(1) involves statutory interpretation, a question of law subject to unlimited review. See State v. Jolly, 291 Kan. 842, 845–46, 249 P.3d 421 (2011). Similarly, whether jurisdiction exists is a legal question over which this court exercises de novo review. State v. Williams, 37 Kan.App.2d 404, 406, 153 P.3d 566, rev. denied 784 Kan. 951 (2007).
K.S.A.2013 Supp. 22–3501(1) provides: “A motion for a new trial based on the ground of newly discovered evidence may be made within two years after final judgment.” Our Supreme Court has interpreted the filing deadline found in K.S.A.2013 Supp. 22–3501(1) as mandatory. In State v. Bradley, 246 Kan. 316, Syl. ¶ 1, 787 P .2d 706 (1990), the Supreme Court concluded the “two-year limitation for a new trial based on newly discovered evidence ... terminates questions of guilt or innocence at a specific time after trial.” The 2–year period generally begins upon the termination of appellate jurisdiction over the defendant's direct appeal. See State v. Holt, 298 Kan. 469, 475–76, 313 P.3d 826 (2013); Bradley, 246 Kan. at 317–18.
Denney is correct that his motion for new trial filed on March 12, 2013, was well beyond the 2–year deadline. Our Supreme Court issued its mandate on his direct appeal on February 8, 1996. As a consequence, we lack jurisdiction to review Denney's motion for new trial. See State v. Lee, 45 Kan.App.2d 1001, 1021–22, 257 P.3d 799 (2011), rev. denied 293 Kan. –––– (2012). “If the district court lacks jurisdiction to enter an order, an appellate court does not acquire jurisdiction over the subject matter on appeal. State v. McCoin, 278 Kan. 465, 468, 101 P.3d 1204 (2004) .” Lee, 45 Kan.App. at 1022.
But Denney is also correct that our court may still consider the matter by construing the motion for new trial as a K.S.A. 60–1507 motion. See State v. Downey, 29 Kan.App.2d 467, 470, 27 P.3d 939 (citing Bradley, 246 Kan. at 318–19), rev. denied 272 Kan. 1421 (2001).
Even if we construed Denney's motion in such a manner, his motion would still be untimely. Under K.S.A. 60–1507(f)(1), a criminal defendant must bring an application for writ of habeas corpus within 1 year of “[t]he final order of the last appellate court in this state to exercise jurisdiction on a direct appeal or the termination of such appellate jurisdiction.” The 1–year filing deadline did not become effective until July 1, 2003; accordingly, Denney, who had claims preexisting the statutory amendment, had until June 30, 2004, to file a K.S.A. 60–1507 motion. See Pabst v. State, 287 Kan. 1, 22, 192 P.3d 630 (2008). Otherwise, the time limitation “may be extended by the court only to prevent a manifest injustice.” (Emphasis added.) K.S.A. 60–1507(f)(2).
Denney's convictions became final on February 8, 1996. Absent special circumstances making consideration of Denney's motion necessary to avoid manifest injustice, he needed to file his motion no later than June 30, 2004. See K.S.A. 60–1507(f). The motion, filed on March 12, 2013, was clearly untimely under K.S.A. 60–1507(f).
Was consideration of Denney's motion necessary to avoid manifest injustice? Our Supreme Court has interpreted the phrase “[m]anifest injustice,” in the context of K.S.A. 60–1507(f)(2), to mean “ ‘obviously unfair’ or ‘shocking to the conscience.’ [Citation omitted.]” State v. Kelly, 291 Kan. 868, 873, 248 P .3d 1282 (2011). When determining whether manifest injustice justifies extending the 1–year time limitation courts should utilize the following standards:
“[C]ourts conducting a manifest injustice inquiry under K.S.A. 60–1507(f)(2) should consider a number of factors as a part of the totality of the circumstances analysis. This nonexhaustive list includes whether (1) the movant provides persuasive reasons or circumstances that prevented him or her from filing the 60–1507 motion within the 1–year time limitation; (2) the merits of the movant's claim raise substantial issues of law or fact deserving of the district court's consideration; and (3) the movant sets forth a colorable claim of actual innocence, i.e., factual, not legal, innocence.
“All of the factors considered under the totality of the circumstances need not be given equal weight, and no single factor is dispositive. [Citations omitted.] Vontress v. State, 299 Kan. 607, 616–17, 325 P.3d 1114 (2014).
It is the movant's burden to establish manifest injustice by a preponderance of the evidence. Supreme Court Rule 183(g) (2014 Kan. Ct. R. Annot. 285).
In his motion before the district court, Denney claimed that manifest injustice would result if his issue was not considered because he is an innocent man and a “[d]enial of Due Process occurs where [the] State allows false evidence to go uncorrected. [Citation omitted.]” Importantly, however, Denney did not address the manifest injustice exception on appeal. Issues not briefed by the appellant or points raised incidentally in a brief and not argued therein are deemed waived and abandoned. State v. Anderson, 291 Kan. 849, 858, 249 P.3d 425 (2011). On appeal, Denney has waived and abandoned any claim that his motion should be reviewed under the manifest injustice exception provided in K.S.A. 60–1507(f)(2).
Not only is Denney's motion untimely, it is also successive. As noted in State v. Denney, No. 105,186, 2012 WL 223924 (Kan.App.2012) (unpublished opinion), rev. denied 296 Kan. 1132 (2013) ( Denney VII ), Denney filed a K.S.A. 60–1507 motion sometime before 2000 and, on appeal, this court granted his request for an amended journal entry of sentencing. See Denney VII, 2012 WL 223924, at * 2. Generally, district courts are not required to entertain a second, third, or further motion requesting similar relief under K.S.A. 60–1507 on behalf of the same defendant. State v. Trotter, 296 Kan. 898, 904, 295 P.3d 1039 (2013) (citing K.S.A. 60–1507[c] ); see Supreme Court Rule 183(d) (2014 Kan. Ct. R. Annot. 285). “A movant in a K.S.A. 60–1507 motion is presumed to have listed all grounds for relief; thus, the prohibition against successive motions does not only bar claims raised in prior motions, it also prohibits any claims that could have been raised in a prior motion. See 296 Kan. 898, Syl. ¶ 2.
Absent a showing of exceptional circumstances justifying the movant's failure to allege a ground for relief in the previous proceeding, a district court may dismiss a successive motion as an abuse of remedy. See 296 Kan. 898, Syl. ¶ 2; Kelly, 291 Kan. at 872. “ “ ‘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.’ “ [Citations omitted.]” 291 Kan. at 872. While Denney's motion clearly qualifies as a successive pleading, on appeal, Denney also neglected to brief this procedural hurdle. This failure is consequential. See Anderson, 291 Kan. at 858 (issues not briefed deemed waived and abandoned). In sum, Denney's motion for new trial, construed as a K.S.A. 60–1507 motion, is procedurally barred from appellate review.
Assuming Denney's motion did not have procedural defects, however, his argument would still lack merit. As support for his challenge to the sufficiency of the district court's findings and conclusions, Denney relies upon Supreme Court Rule 183(j) (2014 Kan. Ct. R. Annot. 285) and State v. Moncla, 269 Kan. 61, 4 P.3d 618 (2000). Supreme Court Rule 183(j) requires district courts to make findings of fact and conclusions of law after a preliminary or full evidentiary hearing on all issues presented in a K.S.A. 60–1507 motion. See Robertson v. State, 288 Kan. 217, 232–33, 201 P.3d 691 (2009); Bellamy v. State, 285 Kan. 346, 354–55, 172 P.3d 10 (2007); Moncla, 269 Kan. at 64–65. If, taken together, the district court's findings and conclusions in the journal entry and its oral expressions at the time of a hearing are sufficient for an appellate court to discuss and act on the movant's arguments, then a remand is not required. See Robertson, 288 Kan. at 232–33. Whether the district court complied with Supreme Court Rule 183(j) is a question of law over which an appellate court exercises unlimited review. 288 Kan. at 232.
A party must object to inadequate findings of fact and conclusions of law to preserve an issue for appeal. When no objection is made, an appellate court may presume the district court found all facts necessary to support its judgment. When the record does not support such a presumption and the lack of specific findings precludes meaningful review, an appellate court may consider a remand. See State v. Vaughn, 288 Kan. 140, 143, 200 P.3d 446 (2009). Given that the record is devoid of any indication that Denney contemporaneously objected to any inadequacies, we may presume the findings and conclusions were adequate and only consider a remand if any lack of findings by the district court precludes our meaningful review.
The district court's memorandum decision simply adopts “the State's response as its findings of fact and conclusions of law.” Denney's argument rests solely on his appellate counsel's failure to locate this responsive pleading from the State in the record:
“Counsel has reviewed the [record on appeal] and the case files in [this] case. It does not appear that the State filed a response to Mr. Denney's motion requesting a new trial based on newly discovered evidence. Therefore, there [were] no findings of fact or conclusions of law that the district court could adopt. The district court's ruling on this motion was erroneous and contrary to the record.”
After Denney filed his appellate brief, however, the State requested the addition of its written response to Denney's motion for new trial, and the district court added the document to the record on appeal. In its response, the State contended that Denney's motion could be summarily denied because the district court was procedurally barred from considering the merits of Denney's arguments. Primarily, the State asserted that Denney's motion was untimely and successive with no showing of manifest injustice for extending the time for filing and no showing of exceptional circumstances to justify a successive filing.
We have reviewed the State's written response. It contains a certificate of service indicating it was filed by fax with the district court and mailed to Denney on April 30, 2013—about 1 month prior to the issuance of the district court's memorandum decision. Additionally, a fax transmission document attached to the motion confirms the State successfully faxed the motion to the district court on April 30, 2013. Inexplicably however, the appearance docket indicates the clerk's office received the document on August 13, 2014.
Denney did not file a reply brief to counter the State's argument or to controvert the evidence that the State, in fact, had timely filed a response to Denney's motion for new trial, which was relied upon by the district court. Based on the record before us, we are persuaded the district court adopted as its own the State's proposed findings and conclusions as stated in the State's response which was fax filed with the clerk on April 30, 2013. These findings and conclusions complied with Supreme Court Rule 165 (2014 Kan. Ct. R. Annot. 272) and were sufficient to support the district court's denial of Denney's motion for new trial construed as a K.S.A. 60–1507 motion. We find no error.
Summary Denial of Motions Relating to DNA Testing
Next, Denney contends the district court erred when it denied his motions relating to DNA testing without conducting an evidentiary hearing. In denying the motions, the district court once again adopted the State's proposed findings and legal conclusions.
With regard to Denney's motion for new DNA testing, the State primarily asserted that “K.S.A. 21–2512 ... does not contain a provision that authorizes a court to void and vacate a prior report on foundational grounds and order new testing.” The State also argued the doctrine of res judicata barred Denney's foundational attack because Denney had already litigated this issue—our Supreme Court rejected his challenges to the admission of the DNA report in State v. Denney, 283 Kan. 781, 156 P.3d 1275 (2007) ( Denney III ).
Regarding Denney's motion for State funds to conduct independent testing, the State observed:
“As noted in [Denney]'s motion, th[e district] court ... already denied the use of State funding to pay for independent DNA testing and the Court of Appeals ... affirmed that decision upon finding no abuse of ... discretion. [Citation omitted.] [Denney did] not point out that he had a second appeal on the same issue or that the Court of Appeals rejected th[at] appeal based on the law-of-the case doctrine. [Citation omitted.]”
See State v. Denney, No. 100,365, 2009 WL 1766242 (Kan.App.2009) (unpublished opinion), rev. denied 289 Kan. 1281 (2009) ( Denney V ); State v. Denney, No. 101,333, 2010 WL 3488663 (Kan.App.2010) (unpublished opinion) ( Denney VI ).
Finally, the State argued that Denney's equal protection claim was without merit because he had not “identified himself to be within any class of protected individuals.”
Preliminarily, while Denney claims the DNA results introduced in evidence during the 2005 hearing were “highly questionable and inconclusive,” on appeal he does not specifically argue the merits of the district court's denial of his motion to vacate the State's DNA report and authorize new DNA testing. Issues incidentally raised in a brief and not argued therein are deemed waived and abandoned. Anderson, 291 Kan. at 858.
Even if Denney had properly briefed this issue, the State correctly points out that Denney's motion for new testing did not challenge the validity of the DNA results in the report. Instead, Denney's motion challenged the foundation to admit the DNA report in evidence at the 2005 hearing. Generally, an appellant's failure to raise an issue before the district court precludes him or her from raising the issue on appeal. See State v. Johnson, 293 Kan. 959, 964, 270 P.3d 1135 (2012). Denney has failed to brief the applicability of any exception to this rule. See 293 Kan. at 964–65 (outlining exceptions); Anderson, 291 Kan. at 858 (issue not briefed by appellant is deemed waived and abandoned). As a result, this particular aspect of the issue is not properly before us.
Importantly, on appeal Denney does not address the key reason the district court denied his motion for new testing—that his foundational attack was barred by the doctrine of res judicata. Denney's failure is consequential. An appellant's failure to address all of the alternative grounds for the district court's judgment renders the issues on appeal academic and unassailable. See Greenwood v. Blackjack Cattle Co., 204 Kan. 625, 628, 464 P .2d 281 (1970) (when district court's decision is based upon alternative grounds, appellant's failure to challenge both grounds on appeal “renders unnecessary” a decision on the issue raised); Parker v. Mid–Century Ins. Co., 25 Kan.App.2d 329, 332, 962 P.2d 1114 (1998) (appellant did not challenge one of the district court's conclusions of law; therefore, the ruling was deemed conclusive). For all of the reasons stated, the district court did not err in summarily denying Denney's motion for new DNA testing.
We next review the summary dismissal of Denney's motion for funding to conduct independent DNA testing. On appeal, Denney claims that while he filed previous motions seeking such funding, the doctrines of res judicata and the law of the case do not apply because “this Court has not addressed [his] claims in light of State v. Mercer and an equal protection analysis.” We disagree.
As the district court found, Denney has already had his day in court requesting state-funded DNA testing. In fact, not only has the district court determined this issue adversely to Denney on numerous occasions, our court has also rejected Denney's request more than once. See Denney VI, 2010 WL 3488663, at * 1–2; Denney V, 2009 WL 1766242, at *2.
Under the doctrine of res judicata, a final judgment rendered on the merits of an action by a court of competent jurisdiction is conclusive “ ‘not only on all matters which were actually litigated, but also on all matters which could have been litigated by the parties or their privies in that action.’ [Citations omitted.]” (Emphasis added.) Upchurch v. State, 36 Kan.App.2d 488, 493, 141 P.3d 1175, rev. denied 282 Kan. 797 (2006). In other words, “[t]he doctrine of res judicata prevents a party's attempt to litigate any claim that could have been previously litigated in another action, even if the particular theory argued in the later proceeding was not raised or considered by the court in the previous litigation.” Winkelman v. Tihen, No. 96,488, 2007 WL 2767973, at *5 (Kan.App.2007) (unpublished opinion) (citing Johnson v. Johnson, 26 Kan.App.2d 321, 327–28, 988 P.2d 244 [1999], rev. denied 286 Kan. 1186 (2008); 47 Am.Jur.2d, Judgments § 475, pp. 32–33).
Denney has previously sought state funds for independent DNA testing, and while the record is unclear whether he raised an equal protection claim previously, Denney has offered no explanation for his failure to raise this argument in the prior proceedings. This failure is particularly important because the Mercer order, which forms the basis of Denney's equal protection claim, was issued on June 14, 2007, prior to both of Denney's previous motions for state funding for independent DNA testing. See Denney V, 2009 WL 1766242, at *2.
We are persuaded that the prior judgments on this issue have res judicata effect because the cause of action and parties involved were identical, Denney was the proponent of his position, and Denney could have litigated his equal protection claim in these prior actions. See Upchurch, 36 Kan.App.2d at 492–93. “[T]he doctrine of res judicata precludes [a K.S.A. 60–1507 movant] getting a proverbial second bite at the apple.” Wheeler v. State, No. 102,302, 2010 WL 1078469, at *3 (Kan.App.2010) (unpublished opinion).
Even if the doctrine of res judicata did not bar Denney's attempt to relitigate his request for independent DNA funding, he simply seeks a remand for an evidentiary hearing and ignores that the district court addressed and rejected his equal protection claim on the merits. Indeed, the district court found that Denney's equal protection claim was without merit because a law violates equal protection “when it emphasizes a disparity in the State's treatment of classes of individuals whose situations are arguably indistinguishable, with no rational basis for doing so,” and Denney had not “identified himself to be within any class of protected individuals.” The district court explained:
“[Denney] is but one person who seeks discretionary State funding for independent DNA testing and has had the misfortune of having a case that does not merit funding. The fact that another defendant in another jurisdiction was able to convince authorities to pay for independent testing does not create an equal-protection violation in this case.”
Denney's failure to brief the merits of the district court's ruling results in a waiver or abandonment of the issue. See Anderson, 291 Kan. at 858. Likewise, findings and conclusions made by the district court which an appellant fails to address on appeal are conclusive, and an appellant's failure to address all of the alternative grounds for the district court's judgment renders the issues on appeal academic and unassailable. See Greenwood, 204 Kan. at 627–28; Parker, 25 Kan.App.2d at 332 (appellant did not challenge one of the district court's conclusions of law; therefore, the ruling was deemed conclusive). For all of the reasons stated, we find no error in the district court's summary denial of Denney's motion for state funding for independent DNA testing.
Failure to Provide Court–Appointed Counsel
For his final issue, Denney claims the district court erred when it summarily denied his three pro se motions without appointing counsel to represent him. According to Denney, this failure “prejudiced and denied fair treatment required by Due Process” because, while the State's attorney filed written responses, he was not appointed counsel and placed on equal footing with the State.
In support of his argument, Denney generally cites State v. Taylor, 266 Kan. 967, 975 P.2d 1196 (1999), but as the State asserts, Taylor does not to support Denney's position. Taylor and its progeny generally provide that while there is no constitutional right to counsel at each and every postconviction proceeding, the defendant should be represented by conflict-free counsel (unless the defendant waives the right to counsel) if the district court holds a hearing at which the State is represented by counsel. 266 Kan. at 975.
Of note, in the fact section of his appellate brief, Denney essentially acknowledges the summary nature of the district court's rulings: “On each motion, the district court adopted the State's responses as its findings of fact and conclusions of law and denied Mr. Denney's pro se motions without appointment of counsel or a hearing.” (Emphasis added.)
A panel of our court rejected an argument similar to Denney's in State v. May, No. 107,729, 2013 WL 1010580, at *2 (Kan.App.2013), rev. denied 297 Kan. 1253 (2013):
“May also argues that he was ‘prejudiced and denied fair treatment required by Due Process' because the district court did not appoint defense counsel after the prosecutor had filed a written response to May's third motion to correct illegal sentences. We do not know how the State could have responded to May's motion other than through legal counsel. May generally cites State v. Taylor, 266 Kan. 967, 975, 975 P.2d 1196 (1999), in support of his contention, but the right to defense counsel occurs at a hearing where the State is represented by a prosecutor. In the present case, May's motion was summarily denied and no hearing was held by the district court on May's motion. May has not shown undue prejudice or a due process violation.”
As our court noted in May, Taylor is dispositive of this issue. Denney has not shown undue prejudice or a due process violation because the district court did not appoint counsel for Denney prior to summarily denying his pro se motions without holding a hearing.
Affirmed.