Opinion
No. 110,176.
2014-10-24
Marquis GARRETT, Appellant, v. STATE of Kansas, Appellee.
Appeal from Wyandotte District Court; Robert P. Burns, Judge.Janine Cox, of Kansas Appellate Defender Office, for appellant.Casey L. Meyer, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Wyandotte District Court; Robert P. Burns, Judge.
Janine Cox, of Kansas Appellate Defender Office, for appellant. Casey L. Meyer, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Before HILL, P.J., POWELL and STEGALL, JJ.
MEMORANDUM OPINION
PER CURIAM.
Marquis Garrett pled no contest to attempted aggravated indecent liberties with a child. His plea agreement with the State called for a downward departure sentence of 100 months in prison, and the district court followed that recommendation. Over 5 years later, Garrett filed a pro se motion pursuant to K.S.A. 60–1507. Liberally construed, Garrett's pro se motion raised two issues: (1) He was not advised of his right to an appeal, and (2) his counsel was ineffective for seeking a competency evaluation against Garrett's wishes. The district court summarily dismissed the motion, finding both that it was untimely pursuant to K.S.A. 60–1507(f) and that the two substantive issues raised by Garrett were without merit. Garrett now appeals.
On appeal, Garret argues the district court erred in dismissing his K.S.A. 60–1507 motion without a hearing because: (1) The record does not show that Garrett was ever advised of his right to an appeal, and (2) the district court did not adequately consider Garrett's claim of ineffective assistance of counsel.
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.” Fischer v. State, 296 Kan. 808, 822–23, 295 P.3d 560 (2013).
Here, the district court determined that the motion, files, and case record conclusively showed Garret was not entitled to relief and denied the motion summarily. “The standard of review for the summary dismissal of K.S.A. 60–1507 motions is de novo, requiring an appellate court to determine whether the motion, files, and records of the case conclusively show that the movant is entitled to no relief.” Trotter v. State, 288 Kan. 112, 132, 200 P.3d 1236 (2009).
Garrett has the burden to prove his motion warrants an evidentiary hearing, and his motion must make more than conclusory contentions. Further, the motion must state an evidentiary basis in support of the claims, or an evidentiary basis must appear in the record. Edgar v. State, 294 Kan. 828, 836, 283 P.3d 152 (2012). As noted above, however, “[p]ro se pleadings are liberally construed, giving effect to the pleading's content rather than the labels and forms used to articulate the defendant's arguments.” State v. Kelly, 291 Kan. 563, 565, 244 P.3d 639 (2010).
A motion pursuant to K.S.A. 60–1507 must be filed within 1 one year of the termination of appellate jurisdiction, and that limit may be extended “only to prevent a manifest injustice.” K.S.A. 60–1507(f)(2). “Although ‘manifest injustice’ has not been defined in the context of K.S.A. 60–1507(f)(2), this court has interpreted the phrase in other contexts to mean ‘obviously unfair’ or ‘shocking to the conscience.’ [Citations omitted.]” Ludlow v. State, 37 Kan.App.2d 676, 686, 157 P.3d 631 (2007). Our Supreme Court recently clarified:
“Accordingly, courts 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.” Vontress v. State, 299 Kan. 607, 616, 325 P.3d 1114 (2014).
On appeal, however, Garrett does not argue that extending the 1–year time limitation is necessary to prevent a manifest injustice. Where an appellant fails to brief an issue, that issue is waived or abandoned. State v. Berriozabal, 291 Kan. 568, 579, 243 P.3d 352 (2010). Because Garrett does not present any claim of manifest injustice and does not dispute that his motion fell far outside the time limitation contained in K.S.A. 60–1507(f), the district court's summary dismissal of Garrett's K.S.A. 60–1507 motion on the grounds that it was filed out of time is affirmed. As such, Garrett's substantive claims are moot, and we decline to address them.
Affirmed.