Opinion
No. 106,372.
2012-07-27
Anthony CONLEY, Appellant, v. STATE of Kansas, Appellee.
Appeal from Sedgwick District Court; Anthony J. Powell, Judge. Michael P. Whalen, Law Office of Michael P. Whalen, of Wichita, for appellant. David Lowden, chief attorney, appellate division, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Anthony J. Powell, Judge.
Michael P. Whalen, Law Office of Michael P. Whalen, of Wichita, for appellant. David Lowden, chief attorney, appellate division, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before GREENE, C.J., STANDRIDGE and BRUNS, J.J.
MEMORANDUM OPINION
PER CURIAM.
Anthony Conley appeals the district court's summary dismissal of his second K.S.A. 60–1507 motion, arguing the court erred in considering his motion untimely and successive and in concluding he failed to show manifest injustice. We affirm the district court.
Conley was convicted of first degree murder in 1998, and his conviction was affirmed by our Supreme Court in State v. Conley, 270 Kan. 18, 11 P.3d 1147 (2000). Conley filed his first 60–1507 motion thereafter, which was dismissed after a non-evidentiary hearing. Our court affirmed this dismissal in Conley v. State, No. 88,962, 2003 WL 23018226 (Kan.App.2003) (unpublished opinion).
Conley filed his second 60–1507 motion in early 2011, alleging that giving of certain jury instructions “worked a manifest injustice” and “could have possibly convicted him on an erroneous theory of liability.” His argument was that he was convicted on the theory of aiding and abetting even though charges against the alleged principal were dismissed prior to Conley's arrest and prosecution. The district court summarily dismissed the motion as untimely and successive, with no showing of manifest injustice.
When the district court summarily denies a K.S.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).
First, we agree with the district court that Conley's second 60–1507 motion was untimely. A K.S.A. 60–1507 petition enables a criminal defendant to collaterally challenge his or her conviction. Under K.S.A. 60–1507(f)(1), the defendant has 1 year from the date the conviction becomes final to file a K.S.A. 60–1507 petition. The district court may extend this 1–year time limit only to prevent a manifest injustice. K.S.A. 60–1507(f)(2). The term “manifest injustice” has been interpreted to mean obviously unfair or shocking to the conscience. Ludlow v. State, 37 Kan.App.2d 676, 686, 157 P.3d 631 (2007). Thus, a K.S.A. 60–1507 petitioner who alleges manifest injustice must demonstrate, by a preponderance of evidence, circumstances that prevented him or her from asserting the claim within the 1–year time limit. See Toney v. State, 39 Kan.App.2d 944, 947, 187 P.3d 122 (2008); Supreme Court Rule 183(g) (2011 Kan. Ct. R. Annot. 259).
Conley has failed to meet this burden. He filed his second K.S.A. 60–1507 petition nearly 9 years after his 1–year time limit had expired, and he provided no explanation to the district court—or to this court—of any circumstance that would have prevented him from asserting his claim within the 1–year limit.
Next, we agree with the district court that Conley's second 60–1507 motion was successive. K.S.A. 60–1507(c) states, “The sentencing court shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner.” Unless the petitioner has shown the existence of exceptional circumstances, the district court can dismiss a second or successive motion on the basis that it is an abuse of remedy. State v. Kelly, 291 Kan. 868, 872, 248 P.3d 1282 (2011). Exceptional circumstances are unusual events or intervening changes in the law that prevent a petitioner from reasonably being able to raise all of the trial errors in his or her first postconviction proceeding. See Woodberry v. State, 33 Kan.App.2d 171, 175, 101 P.3d 727,rev. denied 278 Kan. 853 (2004).
As the State observes, Conley's appellate brief states only once, as conclusory and without explanation, that his petition was not successive. Therefore, his challenge to the district court's ruling is waived or abandoned. See State v. Flores, 283 Kan. 380, 388, 153 P.3d 506 (2007) (appellant waived or abandoned his claim of ineffective assistance of trial counsel because he raised it only in an issue statement in his brief without any supporting authority or argument).
We also note that Conley's only challenge to his conviction in the motion alleges a trial error, specifically an instructional error, and such mere trial errors are not properly the subject of a postconviction motion but rather must be addressed on direct appeal. See, e.g., Taylor v. State, 251 Kan. 272, 276, 834 P.2d 1325 (1992) (“A proceeding under K.S.A. 60–157 cannot ordinarily be used as a substitute for direct appeal involving mere trial errors or as a substitute for a second appeal.”).
Finally, if we were to address the substance of Conley's motion, we note that it lacks legal merit. It is legally irrelevant in Kansas for criminal responsibility as an aider or abettor that the principal perpetrator is not prosecuted. K.S.A. 21–3205(3) states:
“A person liable under this section may be charged with and convicted of the crime although the person alleged to have directly committed the act constituting the crime lacked criminal or legal capacity or has not been convicted or has been acquitted or has been convicted of some other degree of the crime or of some other crime based on the same act.”
For all these reasons, we affirm the district court.
Affirmed.