Opinion
No. 108,687.
2013-09-27
STATE of Kansas, Appellee, v. Scott D. DWYER, Appellant.
Appeal from Cowley District Court; Nicholas M. St. Peter, Judge. Samuel D, Schirer, of Kansas Appellate Defender Office, for appellant. James R. Spring, deputy county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Cowley District Court; Nicholas M. St. Peter, Judge.
Samuel D, Schirer, of Kansas Appellate Defender Office, for appellant. James R. Spring, deputy county attorney, and Derek Schmidt, attorney general, for appellee.
Before PIERRON, P.J., McANANY and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Scott D. Dwyer appeals from the district court's summary denial of his motion to vacate his conviction and sentence. In 2010, Dwyer was convicted and sentenced for aggravated escape from custody. Because of his escape, Dwyer was also subject to disciplinary proceedings and punishment through the Kansas Department of Corrections (KDOC). In 2012, Dwyer filed a motion asserting his conviction violated the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution. Dwyer also claimed his attorney in the criminal case was incompetent for failing to discover the double jeopardy issue before advising him to plead guilty to aggravated escape from custody. Without holding an evidentiary hearing, the district court rejected the argument, citing State v. Harlin, 260 Kan. 881, 925 P.2d 1149 (1996).
On January 14, 2010, the State charged Dwyer with aggravated escape from custody in violation of K.S.A. 21–3810(a)(7), a severity level 5, nonperson felony. In the complaint, the State alleged Dwyer intentionally escaped from the Winfield Correctional Facility on November 26, 2009.
On April 26, 2010, Dwyer pled guilty to the charge. His plea was part of an agreement with the State whereby the State agreed to recommend that the district court sentence Dwyer to 114 months' imprisonment. The State also agreed not to oppose any argument Dwyer would present requesting a sentence of less than 114 months.
On May 17, 2010, Dwyer came before the district court for sentencing. Pursuant to the plea agreement, the court sentenced Dwyer to 114 months' imprisonment and 24 months' postrelease supervision. The court also imposed restitution in the amount of $1,409.19, to be paid to the KDOC.
On May 23, 2012, Dwyer filed a motion to vacate his conviction and sentence. He argued his conviction for aggravated escape from custody violated the Double Jeopardy Clause. Dwyer's claim was based on the fact that he has been disciplined in prison for his escape in addition to being convicted of escape in the criminal proceeding. In his motion, Dwyer stated that KDOC officials held a disciplinary hearing where they “convicted him for aggravated escape and punished him with 45 days segregation, 60 days privilege restriction, 6 months loss of goodtime credit, and a $20.00 fine.”
Dwyer asserted his court-appointed attorney had completely failed to investigate his case before advising him to plead guilty. He claimed that if his attorney had bothered to do a modicum of research he would have known that the criminal prosecution in this matter was barred by the Double Jeopardy Clause. Dwyer's motion emphasized that KDOC officials imposed a fine as part of his disciplinary sanction. He maintained the imposition of the fine should have barred KDOC from pursuing a criminal case against him after the KDOC punished him and imposed a fine for the same escape.
On June 12, 2012, the district court summarily denied Dwyer's motion. The district court ruled that Dwyer's motion should be considered a motion pursuant to K.S.A. 60–1507, as a collateral attack on his sentence and conviction. The district court rejected Dwyer's double jeopardy argument, citing our Supreme Court's ruling in Harlin. The Harlin court held that jeopardy did not attach to prison disciplinary procedures so as to bar a later criminal prosecution for the same conduct. 260 Kan. 881, Syl. ¶ 4. The court found Dwyer's motion could be decided as a matter of law based upon existing Kansas precedent and therefore did not require an evidentiary hearing or for Dwyer to be appointed an attorney.
On August 2, 2012, Dwyer filed a notice of appeal. The notice of appeal was filed after the 14–day limitation of K.S.A.2012 Supp. 22–3608(c); therefore, this court issued an order to show cause as to why Dwyer's appeal should not be dismissed for lack of jurisdiction. Dwyer responded that he had mailed his notice of appeal from Lansing Correctional Facility on June 18, 2012, within the 14–day period of K.S.A.2012 Supp. 22–3608(c). The Cowley County Clerk's Office received the notice of appeal on June 25, 2012, but the notice was returned to Dwyer because he had failed to include the indigent fee with his affidavit of indigence. The clerk's office did not file Dwyer's notice of appeal until it received the fee. On December 5, 2012, this court noted Dwyer's explanation for the untimely notice of appeal and retained his appeal. Therefore, this appeal is properly before the court.
Dwyer first argues he was entitled to an evidentiary hearing on his motion, and he requests we remand the case with orders to conduct an evidentiary hearing on his claims of ineffective assistance of counsel. The State asserts a hearing would serve no useful purpose and maintains the district court properly found such a hearing was unwarranted. The State also claims, in a separate issue in its brief, that Dwyer's motion should fail because it was not timely filed. This issue was not discussed by the district court, but it is worth our consideration at the outset of this case. Therefore, we will first discuss whether Dwyer's motion fails as untimely. We will then discuss Dwyer's argument that he was entitled to an evidentiary hearing.
As a preliminary matter, the State asks us to find Dwyer's motion fails because he violated K.S.A. 60–1507(f)(l) regarding the time limitation for filing a K.S.A. 60–1507 motion. Although Dwyer's motion was entitled a “Motion to Vacate Conviction and Sentence,” the district court deemed it was a motion under K.S.A. 60–1507 because it amounted to a collateral attack on Dwyer's sentence. In his brief to this court, Dwyer concedes the district court was correct to construe his motion as a motion under K.S.A. 60–1507.
Under K.S.A. 60–1507(0)(1), a defendant has 1 year from when his or her conviction becomes final to file a motion under 60–1507(a). The district court may extend this time limitation only to prevent manifest injustice. K.S.A. 60–1507(f)(2). As noted above, Dwyer was sentenced on May 17, 2010. There is no indication that Dwyer directly appealed from his sentencing; therefore, his conviction became final on May 27, 2010, when Dwyer's time to file a notice of appeal expired. See K.S.A. 22–3608(c). Dwyer did not file his motion under 60–1507 until May 23, 2012, nearly 2 years after his conviction became final. There is no doubt this was outside of the limitation of K.S.A. 60–1507(f)(1).
We next turn to the substance of Dwyer's claim on appeal: the district court erred in summarily denying his motion without conducting an evidentiary hearing. When the district court summarily denies 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); Bellamy v. State, 285 Kan. 346, 354, 172 P.3d 10 (2007).
On appeal, Dwyer asserts his 60–1507 motion raised two distinct claims: (1) his conviction violated the Double Jeopardy Clause; and (2) his lawyer provided ineffective assistance of counsel during his criminal case. Dwyer concedes his double jeopardy argument fails as a matter of law; therefore, the district court committed no error in summarily rejecting this argument. However, Dwyer argues he was entitled to an evidentiary hearing on his ineffective assistance of counsel claim.
In his 60–1507 motion, Dwyer argued his attorney completely failed to investigate his case before advising him to plead guilty. Dwyer also asserted that if his lawyer had bothered to do a modicum of research he would have known that the criminal prosecution in this matter was barred by the Double Jeopardy Clause. Dwyer's motion makes no further claims about his lawyer's performance.
Although Dwyer argues his ineffective assistance of counsel claim is distinct from his double jeopardy argument, the statements in his motion reveal that the two claims are essentially the same. In essence, Dwyer's motion claimed his lawyer was ineffective for failing to determine his criminal case was barred by the Double Jeopardy Clause. Dwyer now concedes that his double jeopardy claim fails under Harlin, 260 Kan. 881. With this concession in mind, it is difficult to follow Dwyer's argument that his lawyer was ineffective for failing to investigate or research the double jeopardy issue. Dwyer himself recognizes his double jeopardy argument is a losing one. His attorney was not ineffective for failing to bring this losing argument to the district court during the criminal case or advise Dwyer on double jeopardy before he entered his plea. The district court's ruling was proper.
Even if Dwyer's ineffective assistance of counsel claim was distinct from his double jeopardy argument, his appeal would still fail. To meet the burden of proving that a 60–1507 motion warrants an evidentiary hearing, the movant “ ‘must make more than conclusory contentions and must state an evidentiary basis in support of the claims or an evidentiary basis must appear in the record.’ “ Trotter, 288 Kan. at 131–32. Dwyer's only statement concerning his lawyer's performance said his lawyer completely failed to investigate his case before advising him to plead guilty. Aside from claiming his lawyer failed to address the double jeopardy issue, Dwyer made no statements forming an evidentiary basis for his claim. His conclusory claim is not enough to warrant an evidentiary hearing. See 288 Kan. at 131–32.
Dwyer attempts to analogize his case to Bellamy, 285 Kan. 346. Bellamy pled guilty to rape based on his victim's inability to consent due to mental deficiency and was sentenced accordingly. After he unsuccessfully attempted to appeal his conviction out of time, Bellamy filed a 60–1507 motion, claiming his lawyer was ineffective. In particular, Bellamy asserted his attorney had advised him the victim was legally incapable of giving consent because she had been in special education for children with learning disabilities. The district court denied Bellamy's motion after holding a preliminary hearing; it did not hold an evidentiary hearing.
Bellamy appealed, arguing the district court should have conducted an evidentiary hearing to determine what legal advice Bellamy's lawyer had given him. Bellamy argued he had relied on his lawyer's advice to his detriment because he would not have pled guilty to rape if he had known the victim's capacity to consent was a factual question for the jury to decide. Our Supreme Court agreed with Bellamy, finding the district court had failed at the preliminary hearing to address Bellamy's claim his lawyer improperly advised him on the issue of consent. The Bellamy court found the record did not provide sufficient evidence to establish what advice Bellamy received from his lawyer prior to entering his guilty plea and remanded the case for an evidentiary hearing on that point. 285 Kan. at 357–58.
Dwyer claims that he, like Bellamy, has unresolved questions of fact regarding whether his attorney properly investigated his case before advising him to plead guilty. Dwyer claims he alleged facts which, if proven, would constitute ineffective assistance of counsel and requests remand for an evidentiary hearing. But Dwyer's case is distinguishable from Bellamy. Bellamy made a specific accusation that his attorney failed to properly advise him about the law of consent. Here, Dwyer simply states his attorney failed to investigate his case. This is not a sufficient evidentiary basis to warrant an evidentiary hearing. Dwyer's claim that his attorney failed to address the double jeopardy question with him fails as a matter of law, as conceded by Dwyer. Dwyer's motion and the accompanying files and records conclusively show that he is not entitled to relief. See K.S.A. 60–1507(b). The district court did not err in summarily denying Dwyer's motion.
Dwyer next argues his conviction and sentence offends the Double Jeopardy Clause. He concedes that in Harlin, 260 Kan. 881, our Supreme Court has decided this question adversely to his position but states he raises the issue to preserve it for possible federal review.
The Harlin court held that prison disciplinary proceedings brought against an inmate do not bar a later criminal prosecution for the same conduct on double jeopardy grounds. 260 Kan. 881, Syl. ¶ 4. The defendants in Harlin were prison inmates who had been found guilty of various offenses at prison disciplinary proceedings. The prison officials imposed discipline in the form of segregation, restriction of privileges, loss of good time credits, fines, or a combination thereof. Criminal charges were later filed against each of the defendants based on the same incidents from which the disciplinary proceedings had arisen. The district court dismissed the criminal charges, finding they violated the Double Jeopardy Clause. 260 Kan. at 882–83.
The Harlin court stated that double jeopardy protection shields an accused from (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense. 260 Kan. at 883–84. The Harlin court further noted Kansas law has long held that prison disciplinary proceedings brought against an inmate do not bar later criminal prosecution for the same conduct on double jeopardy grounds. 260 Kan. 881, Syl. ¶ 4. The court held:
“Disciplinary rules and procedures are necessary for the control of dangerous and desperate individuals unwillingly confined in such institutions, in order to protect employees, inmates, and visitors, as well as the physical structure itself.
“We conclude the district court erred when it held that the prosecution of the various criminal charges herein were barred as constituting double jeopardy by virtue of the prior disciplinary actions taken against the defendants under penal institution disciplinary regulations.” 260 Kan. at 891.
Since Harlin, our Supreme Court has reaffirmed its position. See Sammons v. Simmons, 267 Kan. 155, 160–61, 976 P.2d 505 (1999) (applying Harlin to conclude multiple criminal punishments for same offense were not imposed on inmate and, thus, application of an internal prison policy to the inmate did not constitute double jeopardy).
We are duty bound to follow Kansas Supreme Court precedent, absent some indication that the court is departing from its previous position. Anderson Office Supply v. Advanced Medical Assocs., 47 Kan.App.2d 140, 161, 273 P.3d 786 (2012). Our Supreme Court has provided no indication it is departing from its decision in Harlin. Therefore, Harlin controls this case. Dwyer's double jeopardy argument fails.
Affirmed.