Opinion
No. 109,132.
2013-11-22
STATE of Kansas, Appellee, v. Malcolm T. PINK, Appellant.
Appeal from Sedgwick District Court; Warren M. Wilbert, Judge. Sean M.A. Hatfield and Carl F.A. Maughan, of Maughan Law Group LC, of Wichita, for appellant. Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Warren M. Wilbert, Judge.
Sean M.A. Hatfield and Carl F.A. Maughan, of Maughan Law Group LC, of Wichita, for appellant. Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., GREEN and BRUNS, JJ.
MEMORANDUM OPINION
PER CURIAM.
In 1998, a Sedgwick County jury convicted Malcolm Pink of three counts of first-degree felony murder; the court sentenced Pink to three concurrent life sentences. His convictions and sentences were upheld on direct appeal in State v. Pink, 270 Kan. 728, 20 P.3d 31 (2001). Following two unsuccessful motions challenging his convictions and sentences under K.S.A. 60–1507, Pink filed the present “Motion for Void of Judgment—K.S.A. 60–260(b)(4).” The district court summarily denied Pink's motion finding the issues raised had already been decided in his direct appeal. Pink appeals from that ruling. Finding no error, we affirm.
Pink filed the present motion approximately 13 years after his convictions and 11 years after the Supreme Court issued the mandate in his direct appeal. Pink labeled his motion as one seeking relief under K.S.A.2012 Supp. 60–260(b)(4) (relief from a void judgment). On appeal, Pink argues that the district court should have construed his motion as one filed under K.S.A. 60–1507 and that the case should be remanded for the district court to address the motion properly. Somewhat incongruously, Pink also argues that he was entitled to a hearing and appointment of counsel under K.S.A. 22–3504, the statute relating to motions to correct illegal sentences.
As the Kansas Supreme Court has recently reiterated, a motion under K.S.A.2012 Supp. 60–260(b)(4)—part of the code of civil procedure—is not a remedy available when attempting to set aside a criminal judgment. State v. Mitchell, 297 Kan. 118, 122, 298 P.3d 349 (2013). Even if a motion under K.S.A. 60–1507might be dismissed as untimely or successive, a motion under K.S.A.2012 Supp. 60–260 is not available in a criminal case. Finally, a party would need to show more than trial error in order to establish that a criminal conviction was void. Mitchell, 297 Kan. at 123–24. Accordingly, the district court properly denied Pink's motion.
Recognizing the inappropriate use of K.S.A.2012 Supp. 60–260(b)(4) in raising the issues, Pink's appellate counsel argues that the district court erred in failing to construe Pink's motion as one filed under K.S.A. 60–1507. Pink relies on State v. Swisher, 281 Kan. 447, 449, 132 P.3d 1274 (2006), in which the Kansas Supreme Court stated it was willing to interpret an improper motion to correct an illegal sentence as a motion challenging the defendant's sentence under K.S.A. 60–1507. It did not, however, require a district court to do so under any circumstances.
Pink's argument on appeal fails for a variety of reasons. First and foremost, even though Pink's motion under K.S.A.2012 Supp. 60–260(b)(4) was clearly improper, the district court went ahead and considered the alleged merits—holding that the issues presented were either addressed in his direct appeal or could have been raised in his previous K.S.A. 60–1507 motions. Thus, it appears from the record that the district court construed Pink's motion liberally and considered it on the merits. Second, even if Pink's motion is considered to be brought under K.S.A. 60–1507, it was untimely and successive and he failed to allege or establish manifest injustice or exceptional circumstances that would avoid summary dismissal.
Pink also argues that the district court erred in summarily dismissing his motion without appointment of counsel and an evidentiary hearing. In doing so, Pink's counsel rehashes arguments that a hearing and appointment of counsel are required by K.S.A. 22–3504. Pink's counsel recognizes that the Kansas Supreme Court has repeatedly rejected the argument that a hearing and appointment of counsel is required in every claim brought under that statute. See, e.g., State v. Conley, 287 Kan. 696, 701–04, 197 P.3d 837 (2008); State v. Hoge, 283 Kan. 219, 223–25, 150 P.3d 905 (2007).
Of course, this argument is incongruous with Pink's first issue because K.S.A. 22–3504 relates only to motions to correct an illegal sentence, not motions filed under K.S.A. 60–1507. In this case, Pink's arguments attack his conviction, not his sentence. Allegations that the trial court erroneously instructed the jury involve trial errors and do not support a claim that a sentence is illegal under K.S.A. 22–3504. See State v. Brown, 280 Kan. 898, 901–02, 127 P.3d 257 (2006). Hence, a motion under K.S.A. 22–3504 is not a remedy available to address his claims.
Not every motion under K.S.A. 60–1507 requires an evidentiary hearing. When such a motion is filed, the district court has three options: (1) the court may deny the motion if it determines that the motion, files, and case records conclusively show the defendant is entitled to no relief; (2) if there appears to be a potential issue, the court may hold a preliminary hearing to clarify the nature of the claims and then deny the motion if it determines there is no substantial issue presented; or (3) the court may determine from the motion, files, record or preliminary hearing that a substantial issue is presented and conduct a full hearing. Fischer v. State, 296 Kan. 808, 822–23, 295 P.3d 560 (2013). If the district court summarily denies a motion under K.S.A. 60–1507, we conduct de novo review to determine whether the record conclusively shows the movant is entitled to no relief. Edgar v. State, 294 Kan. 828, 836–37, 283 P.3d 152 (2012).
A liberal interpretation of Pink's motion reflects that he is raising numerous trial errors, most if not all relate to the jury instructions given—or not given—at his trial. Pink also appears to challenge the judge's responses to a question from the jury during deliberations. All but one of these issues was specifically addressed in his direct appeal and in at least one of his prior K.S.A. 60–1507 motions. Those prior decisions are res judicata to those claims previously raised. Upchurch v. State, 36 Kan.App.2d 488, 493, 141 P.3d 1175,rev. denied 282 Kan. 797 (2006).
It is important to recognize that the prohibition against successive motions under K.S.A. 60–1507(c) bars both claims actually raised in prior motions and claims that could have been raised. Dunlap v. State, 221 Kan. 268, 270, 559 P.2d 788 (1977). We presume that a movant has listed all grounds upon which the movant is relying upon in the prisoner's K.S.A. 60–1507 motion. Thus, a district court can properly deny a second K.S.A. 60–1507 motion even when additional grounds for relief are alleged. Lee v. State, 207 Kan. 185, 186, 483 P.2d 482 (1971).
Here, Pink's only new issue challenges the district court's failure to give lesser included offense instructions for felony murder. Pink's arguments are similar to those relied upon in State v. Berry, 292 Kan. 493, 503–04, 513–14, 254 P.3d 1276 (2011). In Berry, the Kansas Supreme Court overruled long-standing precedent and liberalized the standard for giving lesser included offense instructions in felony murder cases. Berry was short-lived, however, due to 2012 legislative amendments that altered the statute to explicitly state that there were no lesser degrees of first-degree murder under the felony murder section. L.2012, ch. 157, sec. 2.
Furthermore, the holding in Berry, by its own terms, does not apply retroactively to criminal judgments that were final before that decision was issued. Berry, 292 Kan. at 514; see also Mitchell, 297 Kan. at 124–25. Here, Pink's conviction was final in 2001, 10 years before the issuance of Berry. Accordingly, Pink is not entitled to any relief under Berry. Because the motion, record, and files conclusively show Pink was entitled to no relief, the district court did not err in summarily dismissing his claims.
Affirmed.