Opinion
No. 106,019.
2012-06-29
Willis HARVEY, 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, Nola Tedesco Foulston, 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, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before LEBEN, P.J., STANDRIDGE and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Willis Harvey filed a pro se K.S.A. 60–1507 motion. After appointing counsel for Harvey and conducting a nonevidentiary hearing, the district court denied the motion, finding that it was not filed within the 1–year time period of K.S.A. 60–1507(f)(1) and that manifest injustice did not exist to justify extending the 1–year time period. See K.S.A. 60–1507(f)(2) (“The time limitation herein may be extended by the court only to prevent a manifest injustice.”). On appeal, Harvey challenges the district court's finding that his motion was untimely. Furthermore, he argues that he received ineffective assistance from appointed counsel when counsel conceded that the motion was filed outside the 1–year time period.
Facts
In February 2007, a jury convicted Harvey of aggravated escape from custody. The district court sentenced Harvey to 122 months in prison. Additionally, the district court found that the Board of Indigents' Defense Services (BIDS) incurred $3,200 in attorney fees for time spent representing Harvey, but the district court declined to make a determination as to whether Harvey was capable of repaying that amount to BIDS. Instead, the district court reserved the issue for a determination at the time of Harvey's release from prison by the Kansas Department of Corrections (KDOC).
On direct appeal to this court, Harvey argued that (1) he was denied his constitutional right to a fair trial because the district court prevented him from presenting evidence regarding the defense of compulsion; (2) the district court erred in denying his request to give the jury a compulsion defense instruction; and (3) the district court erred in delegating to KDOC the responsibility of determining whether he had the ability to repay BIDS the $3,200 in attorney fees. This court rejected Harvey's first two arguments but agreed with him on the third. Thus, the court affirmed Harvey's conviction and sentence for aggravated escape from custody, vacated the attorney-fee assessment, and remanded the case for further proceedings in compliance with State v. Robinson, 281 Kan. 538, 541–44, 132 P.3d 934 (2006) (In determining the amount and method of repayment of BIDS attorney fees, the sentencing court must consider on the record the financial resources of the defendant and the nature of the burden repayment would impose upon the defendant.). The Supreme Court denied Harvey's petition for review on October 5, 2009, and the mandate was issued the next day. State v. Harvey, 41 Kan.App.2d 104, 107–12, 202 P.3d 21,rev. denied 289 Kan. 1282 (2009).
The district court conducted a hearing on December 18, 2009, after which it found that Harvey did not have the financial resources to pay the attorney fees previously assessed and, thus, did not order him to reimburse BIDS for any attorney fees.
On October 15, 2010, Harvey filed a pro se K.S.A. 60–1507 motion alleging he received ineffective assistance from defense counsel at trial. Harvey signed the motion and had it notarized on October 1, 2010, but the record is silent as to when Harvey delivered the motion to prison authorities for mailing to the clerk of the district court. See Redford v. State, No. 94,138, 2006 WL 1816320, at *3 (Kan.App.) (unpublished opinion), rev. denied 282 Kan. 791 (2006) (an inmate's 60–1507 motion is considered filed when he or she delivers motion to prison authorities for mailing to the clerk of the district court). After the motion was filed in district court, the court appointed counsel for Harvey.
The State filed a response to Harvey's motion, arguing that because Harvey failed to file his motion within 1 year from when the mandate affirming his conviction and sentence was issued (October 6, 2009), his motion was untimely under K.S.A. 60–1507(f)(1). The State argued that the 1–year time period began to run once the mandate was issued and not when the proceedings on remand were complete and the time period for bringing a second appeal had expired. In support of this argument, the State cited Wilkerson v.. State, 38 Kan.App.2d 732, 733–34, 171 P.3d 671 (2007), where a panel of this court found that a K.S.A. 60–1507 motion raising issues relating to the defendant's plea agreement and sentence was untimely because the motion, although timely in relation to the revocation of the defendant's probation, was filed more than 1 year from when the possibility of appellate review terminated over the defendant's conviction and sentence.
Counsel for Harvey filed a memorandum in response to the State's argument, conceding that Harvey's motion was untimely but argued that the 1–year time period should be extended to prevent a manifest injustice. See K.S.A. 60–1507(f)(2). After conducting a nonevidentiary hearing, the district court concluded that Harvey's K .S.A. 60–1507 motion was untimely and that manifest injustice was not present to justify extending the 1–year time period. Thus, the district court denied Harvey's motion. Harvey later filed a timely notice of appeal.
Analysis
On appeal, Harvey challenges the district court's finding that his motion was untimely. Notably, Harvey does not argue that the motion, if untimely, should be reviewed to prevent a manifest injustice. As such, he has abandoned any such claim. State v. Gardner, 10 Kan.App.2d 408, 413, 701 P.2d 703,rev. denied 237 Kan. 888 (1985). In addition to timeliness, Harvey also argues that he received ineffective assistance from appointed counsel when counsel conceded that the motion was filed outside the 1–year time period. We address each of the issues raised by Harvey in turn. Timeliness
Harvey asserts the district court erred in concluding that the 1–year time period began to run once our Supreme Court denied his petition to review this court's opinion affirming his conviction and sentence. Instead, Harvey contends the time period did not begin to run until the proceedings on remand were complete and the time period for bringing a second appeal had expired ( i.e., 10 days after the district court's pronouncement from the bench on December 18, 2009, excusing him from paying attorney fees). Because his K.S.A. 60–1507 motion was filed on October 15, 2010—less than 1 year from when appellate jurisdiction over the proceedings on remand had expired—Harvey argues that his motion should be considered timely under K.S.A. 60–1507(f)(1).
K.S.A. 60–1507(f)(1) requires that any action pursuant to the statute be filed within 1 year of the final order from the last appellate court to exercise jurisdiction over the defendant's direct appeal, the termination of such appellate jurisdiction, or the denial of a writ of certiorari to the United States Supreme Court. See State v. Mitchell, 284 Kan. 374, 379, 162 P.3d 18 (2007). For purposes of K.S.A. 60–1507(f)(1), appellate jurisdiction terminates when a defendant fails to file a timely notice of appeal from a district court's judgment. See Wilkerson, 38 Kan.App.2d at 734 (noting that appellate jurisdiction to review movant's plea, conviction, and sentence on direct appeal expired when movant failed to file a notice of appeal within 10 days from sentencing); see also Baker v. State, 42 Kan.App.2d 949, 951–54, 219 P.3d 827 (holding that appellate jurisdiction ended when movant failed to file timely notice of appeal within 10 days after being resentenced on remand), rev. granted 291 Kan. 910 (2010) (pending). Under K.S.A. 22–3608(c) (the version of the statute applicable to this case), a defendant has 10 days from the date the judgment is orally pronounced from the bench to file a notice of appeal. See State v.. Ehrlich, 286 Kan. 923, 925, 189 P.3d 491 (2008); see also State v. Howard, 44 Kan.App.2d 508, 511, 238 P.3d 752 (2010) (A final judgment is rendered for appellate purposes when the defendant has been convicted and sentenced or imposition of sentence is suspended.); State v. Jackson, 262 Kan. 119, 140, 936 P.2d 761 (1997) (“The judgment in a criminal case, whether it imposes a fine, grants probation, suspends the imposition of sentence, or imposes any combination of those alternatives, is effective upon its pronouncement from the bench.”).
Although the court's decision to impose BIDS attorney fees under K.S.A. 22–4513 is not part of a criminal sentence, K.S.A. 22–3608(c) requires a defendant to appeal from the court's decision to impose such fees within 10 days from the judgment imposing the fees. See Ehrlich, 286 Kan. 923, Syl. ¶ 4; see also Robinson, 281 Kan. at 547 (The assessment of BIDS attorney fees “is not punitive; it is not a punishment or part of the sentence at all.”).
If a defendant files a timely notice of appeal and directly appeals the district court's judgment to this court, the opinion of this court becomes final ( i.e., the 1–year time period begins to run) on the day it is no longer possible for the decision to be reviewed by our Supreme Court ( i.e., once the time period for filing a petition for review expires or, if such a petition is filed, on the day the Supreme Court denies the petition). See Kansas Supreme Court Rule 7.05(b) (2011 Kan. Ct. R. Annot. 62); Kansas Supreme Court Rule 8.03(f), (i) (2011 Kan. Ct. R. Annot. 69); Tolen v. State, 285 Kan. 672, 673, 675, 176 P.3d 170 (2008).
Notwithstanding the legal authority above, Harvey asserts there is clear precedent from this court to support his timeliness argument. Specifically, Harvey maintains Baker supports his argument that the 1–year time period did not begin to run until 10 days (not counting weekends or holidays) after the district court's pronouncement from the bench on remand that he was excused from paying BIDS attorney fees ( i.e., on January 5, 2010). See 42 Kan.App.2d at 951–54. We disagree.
In Baker, the defendant directly appealed his conviction and sentence for first-degree murder to our Supreme Court. The Supreme Court affirmed the conviction but vacated Baker's sentence and remanded the case for resentencing. After receiving a new sentence on remand, Baker did not file a notice of appeal. Within 1 year from when he was resentenced on remand—but more than 1 year after the Supreme Court's opinion affirming his conviction had become final—Baker filed a K.S.A. 60–1507 motion alleging that he received ineffective assistance from his trial counsel. The State filed a response, arguing that Baker's motion was untimely under K.S.A. 60–1507(f)(1). The district court agreed and, accordingly, dismissed the petition. On appeal, the Baker panel reversed, finding that because Baker's motion was filed within 1 year from when appellate jurisdiction over his resentencing had terminated, the motion was timely filed under K.S.A. 60–1507(f)(1). Baker, 42 Kan.App.2d at 951–54; see also State v. Cox, No. 104,292, 2011 WL 6382755, at *2 (Kan.App.2011) (unpublished opinion) (citing Baker in support, court concluded that 1–year time period of K.S .A. 60–1507[f][1] did not begin to run until 10 days after the defendant was resentenced on remand).
Harvey contends the holding in Baker controls the outcome in this case because, according to him, his case was remanded for resentencing, causing appellate jurisdiction over his conviction and sentence to continue until 10 days after the district court's pronouncement from the bench excusing him from paying attorney fees. But Harvey's case was not remanded for resentencing as was done in Baker, Harvey's case was remanded so the district court could determine, in compliance with Robinson, whether he should have to pay BIDS for attorney fees incurred on his behalf. As already noted above, the imposition of BIDS attorney fees is not part of a criminal sentence. Ehrlich, 286 Kan. 923, Syl. ¶ 4;Robinson, 281 Kan. at 543. Furthermore, when an appellate court vacates a district court's imposition of BIDS attorney fees and remands the case for compliance with Robinson, the remand does not affect the legitimacy of the defendant's conviction or sentence. State v.. Davis, 283 Kan. 569, Syl. ¶ 9, 158 P.3d 317 (2007). Thus, the only issue the district court had jurisdiction to address on remand was the imposition of BIDS attorney fees; the court had no jurisdiction to address issues regarding Harvey's conviction or sentence. See State v. Downey, 29 Kan.App.2d 467, 470–71, 27 P.3d 939,rev. denied 272 Kan. 1421 (2001) (Pursuant to the “mandate rule,” a district court's jurisdiction upon remand is limited to complying with the appellate court's remand order.). Because the district court had no jurisdiction on remand to address issues regarding Harvey's conviction or sentence, Harvey's conviction and sentence became final, causing the 1–year time period of K.S.A. 60–1507(f)(1) to begin running, when the Supreme Court denied his petition for review on October 5, 2009. As such, Harvey's K.S.A. 60–1507 motion filed on October 15, 2010 (attacking the validity of his underlying conviction), was untimely.
This result is consistent with Wilkerson, the case cited by the State in support of its argument that Harvey's K.S.A. 60–1507 motion was untimely. In Wilkerson, the defendant, after entering into a plea agreement with the State, pled guilty to aggravated robbery and aggravated battery and was placed on probation. The defendant did not take a direct appeal from his convictions or sentence. Thereafter, the district court revoked probation and ordered the defendant to serve his underlying prison sentence. The defendant directly appealed the district court's decision to revoke his probation, but this court affirmed the probation revocation. 38 Kan.App.2d at 732–33.
Within 1 year from when this court affirmed the probation revocation—but more than 1 year after appellate jurisdiction to review his underlying convictions or sentence had terminated—the defendant filed a K.S.A. 60–1507 motion alleging ineffective assistance of counsel in connection to his plea agreement and resulting sentence. Notably, the motion did not raise any issue related to the defendant's probation revocation. The district court summarily denied the motion, concluding that it was untimely under K .S.A. 60–1507(f)(1).
On appeal to this court, the defendant argued that his K.S.A. 60–1507 motion was timely because it was filed within 1 year from when he directly appealed his probation revocation. The Wilkerson panel rejected this argument, noting that when the defendant directly appealed his probation revocation, this court did not have jurisdiction to address issues regarding the defendant's underlying convictions or sentence because his notice of appeal—though timely filed in relation to the probation revocation—was not timely filed in relation to when the district court originally pronounced the defendant's sentence from the bench. 38 Kan.App.2d at 733–34. See, e.g., State v. Inkelaar, 38 Kan.App.2d 312, 317–18, 164 P.3d 844 (2007), rev. denied 286 Kan. 1183 (2008). The panel reasoned that if issues concerning the defendant's convictions or sentence could not be addressed during his direct appeal from his probation revocation, then the final order in that appeal could not serve as the start of the 1–year time period for bringing claims in a K.S.A. 60–1507 motion collaterally attacking the defendant's convictions or sentence. Instead, the 1–year time period for bringing those claims began to run once appellate jurisdiction over the defendant's convictions and sentence terminated ( i.e., 10 days after sentence was orally pronounced). Thus, the defendant's K.S.A. 60–1507 motion—raising only issues regarding the validity of his convictions and sentence—was untimely because it was filed more than 1 year after appellate jurisdiction over those issues terminated. As an aside, the panel noted that if the defendant had raised issues relating to his probation revocation, then his motion would have been considered timely in connection to those issues. Wilkerson, 38 Kan.App.2d at 733–34.
Similarly, because Harvey's K.S.A. 60–1507 motion was filed within 1 year from when appellate jurisdiction over the proceedings on remand terminated, his motion would have been timely in relation to any issue concerning the remand proceedings. But because Harvey only raised issues in his motion concerning the validity of his conviction, his motion is untimely because it was filed more than 1 year after his conviction and sentence became final. For this reason, the district court did not err when it denied Harvey's motion as untimely. Ineffective Assistance of Counsel
As noted above, appointed counsel for Harvey conceded that Harvey filed his K.S.A. 60–1507 motion out of time but argued to the district court that the 1–year time period should be extended to prevent a manifest injustice. Accordingly, Harvey argues that appointed counsel was ineffective for conceding that the motion was untimely and argues that appointed counsel should have instead raised the timeliness argument that is now being raised for the first time on appeal. We disagree.
Once the statutory right to counsel attaches in a K.S.A. 60–1507 proceeding, a movant is entitled to receive effective assistance of counsel. See Robertson v. State, 288 Kan. 217, 228, 201 P.3d 691 (2009). To determine whether a movant received ineffective assistance from appointed counsel, the movant must establish that appointed counsel's performance was deficient and that the movant was legally prejudiced by appointed counsel's performance, i.e., the K.S.A. 60–1507 motion presented substantial legal issues or triable issues of fact that were not further explored due to appointed counsel's deficient performance. See Robertson, 288 Kan. at 232.
Furthermore, a claim that appointed K.S.A. 60–1507 counsel provided ineffective assistance can be raised for the first time on appeal as long as the record on appeal is sufficient to address the merits of the claim. Robertson, 288 Kan. at 227–28. Here, whether appointed counsel was ineffective can be resolved by determining whether Harvey did in fact file his K.S.A. 60–1507 motion on time. Because we already have determined as a matter of law that Harvey filed his motion outside of the 1–year time period of K.S.A. 60–1507(f)(1), we necessarily find appointed counsel did not perform deficiently by conceding that the motion was untimely filed.
Affirmed.