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Davis v. State

Court of Appeals of Kansas.
Mar 8, 2013
296 P.3d 1139 (Kan. Ct. App. 2013)

Opinion

No. 107,408.

2013-03-8

Mitchell D. DAVIS, Appellant, v. STATE of Kansas, Appellee.

Appeal from Sedgwick District Court; Anthony J. Powell, Judge. Krystle M.S. Dalke and Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellant. Julie A. Koon, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.


Appeal from Sedgwick District Court; Anthony J. Powell, Judge.
Krystle M.S. Dalke and Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellant. Julie A. Koon, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before HILL, P.J., ATCHESON and ARNOLD–BURGER, JJ.

MEMORANDUM OPINION


PER CURIAM.

Mitchell D. Davis appeals the district court's denial of his K.S.A. 60–1507 motion, arguing that the district court erred in finding that his motion was successive and untimely. But the evidence is clear that his motion was successive, having filed at least two prior motions under K.S.A. 60–1507. And it was untimely, having been filed after 2004. In addition, he is unable to show manifest injustice or exceptional circumstances to overcome these findings. Accordingly, we affirm.

Factual and Procedural History

In 1992, Davis was charged with multiple serious offenses, including attempted first-degree murder. Counsel was appointed to represent Davis. At some point before trial, Davis became dissatisfied with counsel's performance based on counsel's failure to contact several alibi witnesses. The morning of trial, Davis personally raised his concerns to the district court. Counsel then explained that he had contacted some witnesses without success and had been unable to locate other witnesses. He felt at the late stage of proceedings that it was necessary to prepare for trial rather than continue to try to locate witnesses whose testimony he believed would not be fruitful. The district court denied Davis' motion for new counsel, finding that counsel had made attempts to locate the witnesses and that it was within counsel's discretion to abandon further attempts he felt would not be fruitful, especially on the eve of trial.

Following a jury trial, Davis was convicted of attempted first-degree murder, aggravated burglary, aggravated robbery, aggravated battery, and two counts of unlawful possession of a firearm. He was sentenced to a controlling term of 40 years to life imprisonment. On direct appeal, Davis raised issues of prosecutorial misconduct, faulty jury instructions, and insufficiency of evidence on the firearms charges. Our Supreme Court found no reversible error and affirmed Davis' convictions. State v. Davis, 255 Kan. 357, 874 P.2d 1156 (1994).

In 1995, Davis filed a K.S.A. 60–1507 motion. The district court summarily denied the motion, and Davis voluntarily dismissed the appeal. Davis filed another K.S.A. 60–1507 motion in 2001, alleging several grounds of ineffective assistance of both trial and appellate counsel. The district court summarily denied the motion. On appeal, Davis limited his arguments to: (1) trial counsel's failure to challenge the evidence supporting the aggravated burglary conviction; (2) trial and appellate counsels' failure to challenge the aggravated battery and aggravated robbery convictions on the grounds of multiplicity; and (3) trial counsel's failure to request a jury instruction on aggravated battery as a lesser included offense of attempted first-degree murder. This court rejected Davis' arguments and affirmed the decision of the district court, noting that Davis' other claims of ineffective assistance of counsel were waived or abandoned. Davis v. State, No. 89,688, 2004 WL 794437 (Kan.App.) (unpublished opinion), rev. denied 278 Kan. 844 (2004).

In 2011, Davis filed the pro se K.S.A. 60–1507 motion that is the subject of the present appeal. Liberally construed, Davis' essential arguments were that: (1) his trial counsel was ineffective for failing to adequately investigate alibi witnesses; (2) his appellate and K.S.A. 60–1507 counsel were ineffective for failing to raise the ineffectiveness of trial counsel on the basis of trial counsel's failure to adequately investigate alibi witnesses; and (3) his trial, appellate, and K.S.A. 60–1507 counsel were all ineffective for failing to challenge the complaint, which Davis alleged was fatally defective because it was missing an essential element of attempted first-degree murder at the time, malice. The State filed a response, asking the district court to take judicial notice of the case files related to Davis' two previous K.S.A. 60–1507 motions and arguing that Davis' present K.S.A. 60–1507 motion was both successive and untimely.

The district court appointed counsel to represent Davis and held a preliminary hearing on the motion. At the hearing, Davis argued that there were exceptional circumstances warranting the court's consideration of his otherwise successive motionnamely, he had previously been unable to raise issues related to trial counsel's failure to investigate alibi witnesses because the transcript of the hearing at which he voiced that concern had been missing from the court record and was not made available to Davis until July 2010. He also argued that the complaint was fatally defective and thus manifest injustice would result if the court did not consider his otherwise untimely motion and reach the merits of his jurisdictional issue.

The district court rejected Davis' arguments and denied the motion as both successive and untimely. It found that Davis would have known about the alibi witness and defective complaint issues at the time of trial and that he had failed to show that substantive consideration of his successive and untimely motion was warranted by exceptional circumstances or necessary to prevent manifest injustice. The district court adopted the State's response as its own opinion. Davis timely appealed.

Analysis

Our standard of review

At a preliminary hearing on a K.S.A. 60–1507 motion, the district court may admit limited evidence and consider arguments of counsel. It must then issue findings of fact and conclusions of law as required by Supreme Court Rule 183(j) (2012 Kan. Ct. R. Annot. 274). Because an appellate court must give deference to any factual findings made by the district court as a result of the preliminary hearing, it must apply a findings of fact and conclusions of law standard of review to determine whether the findings are supported by substantial competent evidence and whether those findings are sufficient to support its conclusions of law. The district court's ultimate conclusions of law are reviewed de novo. Bellamy v. State, 285 Kan. 346, 354, 172 P.3d 10 (2007).

The applicable statute

The district court's conclusion that Davis' motion was both successive and untimely is governed by K.S.A. 60–1507, which states in relevant part:

“(c) Successive motions. The sentencing court shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner.

....

“(f) Time limitations. (1) Any action under this section must be brought within one year of: (i) The final order of the last appellate court in this state to exercise jurisdiction on a direct appeal or the termination of such appellate jurisdiction; or (ii) the denial of a petition for writ of certiorari to the United States supreme court or issuance of such court's final order following granting such petition.

(2) The time limitation herein may be extended by the court only to prevent a manifest injustice.”

Davis' motion was successive

Davis first argues that the district court erred in denying his motion as successive because the district court's finding was not supported by substantial competent evidence— i.e., there was no evidence that Davis had filed two previous K.S.A. 60–1507 motions. But there is ample evidence in the record to support the district court's finding. The State asked the district court to take judicial notice of the case files related to the two previous K.S.A. 60–1507 motions, which the district court did when it adopted the State's response as its own opinion. Moreover, Davis admitted in his present K.S.A. 60–1507 motion and during the hearing on that motion that he had filed at least one previous K.S.A. 60–1507 motion. See Davis, 2004 WL 794437, at *1. We conclude that there was substantial competent evidence supporting the district court's conclusion that Davis' motion was successive.

Davis also contends that the district court erred in denying his motion as successive because he has shown exceptional circumstances warranting substantive consideration of his motion. See State v. Kelly, 291 Kan. 868, 872, 248 P.3d 1282 (2011) (“Absent a showing of exceptional circumstances, the court can dismiss a second or successive motion as an abuse of remedy. [Citation omitted.]”). Exceptional circumstances are unusual events or intervening changes in the law which prevented the movant from raising the issue in a prior postconviction proceeding. 291 Kan. at 872.

Here, Davis' sole claim of exceptional circumstances is that he could not have earlier raised the issue of his trial counsel's ineffectiveness for failing to investigate alibi witnesses because he did not have the transcript of the initial hearing at which he complained of trial counsel's performance. Furthermore, he did not have any supporting affidavits from the alibi witnesses. Thus, Davis believes that his claim would have been dismissed for lack of evidence.

But Davis' claims are not supported by the record. First, it appears from allegations made in his current motion that Davis did raise this issue in a prior K.S.A. 60–1507 motion. In fact, in his current motion before the district court he quoted from the hearing on the prior motion. He claimed that a hearing on May 4, 2001, counsel brought to the court's attention that Davis was alleging that his trial attorney had failed to interview witnesses and properly investigate and so an evidentiary hearing was necessary. The State responded that Davis had failed to show that this was not just a strategic decision and regardless, Davis could not show prejudice. The district court apparently did not address this issue in its ruling, and this court held that it would not consider omissions in district court findings on appeal. 2004 WL 794437, at *2.

Moreover, it appears from a review of the record on appeal that Davis raised the issue of his counsel's failure to interview witnesses at his sentencing 1 month after trial, in virtually the same manner he had prior to trial. At sentencing, a nearly identical conversation took place. The transcript of that proceeding was filed with the court in February 1993 and was available for him to use in pressing his claim. And finally, Davis provides no justification for the delay in obtaining the affidavits from his alibi witnesses.

Clearly, Davis had sufficient evidence to present this claim in his two prior K.S.A. 60–1507 motions and in fact he did present this claim in the 2001 action. Accordingly, we conclude that the district court did not err in denying Davis' K.S.A. 60–1507 motion as successive.

Davis' motion was untimely

The time limitation in K.S.A. 60–1507(f)(1) went into effect on July 1, 2003. Movants with preexisting claims, such as Davis, had until June 30, 2004, to file a timely K.S.A. 60–1507 motion. Hayes v. State, 34 Kan.App.2d 157, 162, 115 P.3d 162 (2005). Davis does not dispute that his motion was untimely but argues that the district court erred in refusing to extend the time limitation under K.S.A. 60–1507(f)(2) to prevent manifest injustice.

Manifest injustice under K.S.A. 60–1507(f)(2) has been interpreted to mean “ ‘obviously unfair’ “ or “ ‘shocking to the conscience.’ “ See, e.g., Ludlow v. State, 37 Kan.App.2d 676, 686, 157 P.3d 631 (2007). Furthermore, this court has indicated that to show manifest injustice, the movant must demonstrate “circumstances that prevented him from asserting his claim before the 1–year time limitation had expired.” Toney v. State, 39 Kan.App.2d 944, 947, 187 P.3d 122,rev. denied 287 Kan. 769 (2008). Even if we were to find this definition too restrictive, as outlined in Judge Leben's concurring opinion in Vontress v. State, 45 Kan.App.2d 430, 433–34, 249 P.3d 452 (2011), pet. for rev. granted 292 Kan. 969 (2011), it is still the movant's burden to establish manifest injustice by a preponderance of the evidence. Supreme Court Rule 183(g). And Davis has failed to present a compelling reason for his delayed filing or established that he has a potentially valid claim. We will examine each claim of manifest injustice.

First, Davis argues that an extension of the time limitation is necessary to prevent manifest injustice because he would otherwise be unable to pursue his claims of ineffective assistance of counsel based on trial counsel's failure to adequately investigate alibi witnesses and trial and appellate counsels' failure to challenge the allegedly fatally defective complaint. But this is not a circumstance that prevented him from timely asserting his claim. In fact, we have already noted that he had all the information necessary to make these claims at the very latest by the time he received the transcript of his sentencing hearing, over 20 years ago. So his first claim of manifest injustice lacks merit.

Second, Davis argues he has a potentially valid claim regarding the court's jurisdiction over the allegedly defective complaint. Because the district court found Davis' claims to be untimely and successive, it did not specifically reach the claim that trial and appellate counsel were ineffective for failing to challenge the allegedly fatally defective complaint. On appeal he frames this as an issue of subject matter jurisdiction. Because subject matter jurisdiction can be raised at any time, Davis argues that his motion was not untimely as to that issue. See State v. Sales, 290 Kan. 130, 135, 224 P.3d 546 (2010) (subject matter jurisdiction may be raised at any time). Because the court lacked jurisdiction over the defective complaint, he contends that manifest injustice would result if his motion is not considered. Some additional background is necessary to fully understand Davis' argument.

In 1992, when Davis was charged, first-degree premeditated murder was defined as “the killing of a human being committed maliciously, willfully, deliberately and with premeditation.” (Emphasis added.) K.S.A.1992 Supp. 21–3401(b). Davis was charged as follows:

“[O]n or about the 21st day of January, 1992, A.D., in the County of Sedgwick, and the State of Kansas, one MITCHELL D. DAVIS did then and there unlawfully, willfully, towards the perpetration of the crime of First Degree Murder, as defined by K.S.A. 21–3401, commit the following overt act, to-wit: shoot Gerard M. Fields twice with a handgun, with the intention to commit said crime, and the said MITCHELL D. DAVIS failed in the perpetration thereof.”

When the jury was instructed, the instructions included the elements of first-degree murder, including that the killing was done maliciously, deliberately, and with premeditation. The instruction went on to define intentionally, willfully, maliciously, deliberately, and premeditation.

Davis claims his trial counsel was ineffective for failing to file a motion to arrest judgment on the basis of a defective complaint, to wit: it did not include the element of malice. Had his trial counsel done so, he claims, the court would have been required to reverse his conviction for lack of jurisdiction based on State v. Browning, 245 Kan. 26, 28, 774 P.2d 935 (1989) (complaint that charged first-degree murder but did not include the element of malice was void and defendant's conviction reversed). He further claims his appellate counsel was also ineffective for failing to raise the issue of the defective complaint. Because of counsels' failure, he is prohibited from directly appealing the issue of the defective complaint and is limited to raising it in a K .S.A. 60–1507 action. This, he claims, is sufficient manifest injustice to allow him to raise it out of time.

But whether we construe Davis' claim as a collateral challenge to his conviction based on ineffective assistance of counsel or a direct challenge to his conviction based on jurisdictional grounds it fails. Our Supreme Court has found, under similar facts, that a complaint charging attempted first-degree murder, as was charged here, is sufficient if it includes the three elements of attempt even if it does not include the elements of first-degree premeditated murder. Consequently, defense counsel was not ineffective for failing to file a motion to arrest judgment based upon the failure of the complaint to include the element of premeditation. See Swenson v. State, 284 Kan. 931, 942, 169 P.3d 298 (2007); State v. Wilson, 30 Kan.App.2d 498, 500, 43 P .3d 851,rev. denied 274 Kan. 1118 (2002). In this case, Davis does not dispute that the elements of attempt were properly charged and the jury was properly instructed. Swenson is still good law and there is no indication that the Supreme Court is departing from it. Accordingly, counsel was not ineffective for failing to file an arrest of judgment and likewise appellant counsel was not ineffective for failing to raise the issue. So this claim of manifest injustice also fails.

For these reasons, the district court did not err in denying Davis' K.S.A. 60–1507 motion as untimely.

Affirmed.


Summaries of

Davis v. State

Court of Appeals of Kansas.
Mar 8, 2013
296 P.3d 1139 (Kan. Ct. App. 2013)
Case details for

Davis v. State

Case Details

Full title:Mitchell D. DAVIS, Appellant, v. STATE of Kansas, Appellee.

Court:Court of Appeals of Kansas.

Date published: Mar 8, 2013

Citations

296 P.3d 1139 (Kan. Ct. App. 2013)