Opinion
No. 107,387.
2013-03-8
Billie K. ELLIOTT, Appellant, v. STATE of Kansas, Appellee.
Appeal from Sedgwick District Court; Anthony J. Powell, Judge. Kristen B. Patty, of Wichita, for appellant. Matt J. Maloney, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Anthony J. Powell, Judge.
Kristen B. Patty, of Wichita, for appellant. Matt J. Maloney, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before BRUNS, P.J., GREEN and BUSER, JJ.
MEMORANDUM OPINION
PER CURIAM:
Billie K. Elliott appeals after the district court summarily dismissed his most recent K.S.A. 60–1507 motion because the court found it to be untimely and successive. Elliott is serving a prison sentence for aggravated criminal sodomy and aggravated indecent liberties convictions in 1997. On appeal, Elliott does not challenge the district court's finding that his motion was untimely and successive. Rather, he asserts a violation of his right to a speedy trial. Because we find that Elliott has shown no manifest injustice for filing his untimely K.S.A. 60–1507 motion or for belatedly raising a speedy trial issue, we affirm the district court's summary dismissal the motion.
Facts
In 1997, a jury convicted Elliott of one count of aggravated criminal sodomy and one count of aggravated indecent liberties. He was sentenced to prison for a term of 576 months. A panel of this court affirmed Elliott's convictions and sentence on direct appeal. See State v. Elliott, No. 79,012, unpublished opinion filed August 20, 1999 (Kan.App.), rev. denied 268 Kan. 890 (1999).
In his first K.S.A. 60–1507 motion, filed in 2000, Elliott argued that he received ineffective assistance of trial counsel. The district court summarily denied the motion. But on appeal, a panel of this court remanded the motion to the district court for an evidentiary hearing. On remand, the district court determined that Elliott was not entitled to relief. Subsequently, this court affirmed that district court's decision. See Elliott v. State, No. 90,190, 2004 WL 556756 (Kan.App.2004) (unpublished opinion), rev. denied 278 Kan. 844 (2004).
Elliott filed a second K.S.A. 60–1507 motion in 2005. Once again, he argued ineffective assistance of trial counsel. The district court summarily denied the motion because it was untimely and successive. On appeal, this court affirmed the district court's summary denial of the motion. See Elliott v. State, No. 96,476, 2007 WL 1747908 (Kan.App.2007) (unpublished opinion).
On April 27, 2011, Elliott filed a third K.S.A. 60–1507 motion that is the subject of his current appeal. In this motion, Elliott argued a violation of his right to a speedy trial. On June 6, 2011, the district court issued a handwritten order summarily denying Elliott's motion. On July 6, 2011, the district court received a letter from Elliott indicating that he could not read the handwriting on the district court's order. So, the district court entered a typed order on July 6, 2011, which clearly states: “Movant[']s 1507 claims are dismissed as they are out of time and successive and do not allege any grounds for a showing of manifest injustice.” On July 15, 2011, the district court granted Elliott's motion for leave to appeal out of time.
Analysis
The sole issue presented on appeal is whether the district court erred in denying Elliott's K.S.A. 60–1507 motion. Specifically, Elliott contends that the State violated K.S.A. 22–3402(1) by failing to bring him to trial in 90 days. Because the district court summarily denied Elliott's K.S.A. 60–1507 motion, we conduct a de novo review to determine whether the motion, files, and records of the case conclusively establish that the movant is not entitled to relief. See Trotter v. State, 288 Kan. 112, 132, 200 P.3d 1236 (2009).
There is a 1–year time limit on filing K.S.A. 60–1507 motions. See K.S.A. 60–1507(f)(1). But a court may extend the 1–year time limitation to prevent manifest injustice. See K.S.A. 60–1507(f)(2). The Kansas Supreme Court has defined the term “manifest injustice” to mean something that is “ ‘obviously unfair’ or ‘shocking to the conscience.’ [Citation omitted.]” State v. Kelly, 291 Kan. 868, 873, 248 P.3d 1282 (2011).
Moreover, a district court is not required to entertain second or successive K.S.A. 60–1507 motions seeking similar relief. See K.S.A. 60–1507(c); Supreme Court Rule 183(d) (2012 Kan. Ct. R. Annot. 274); Kelly, 291 Kan. at 872. Rather, courts must only consider successive motions if the movant demonstrates exceptional circumstances. “Exceptional circumstances are unusual events or intervening changes in the law that prevented the [movant] from raising the issue in a preceding 60–1507 motion. [Citation omitted.]” State v. Mitchell, 284 Kan. 374, 379, 162 P.3d 18 (2007).
Elliott does not allege any manifest injustice or exceptional circumstances to allow his untimely motion. Instead, Elliott argues that his failure to raise this issue previously does not preclude review because a speedy trial issue “is essentially a question of jurisdiction.” Apparently, Elliott believes he can raise his speedy trial argument in an untimely K.S.A. 60–1507 motion because subject matter jurisdiction can be raised at any time. We disagree.
This court has considered whether a defendant can raise a speedy trial argument for the first time on appeal on many occasions. See State v. Sanders, No. 104,456, 2011 WL 2555670 (Kan.App.2011) (unpublished opinion) (declining to address speedy trial argument for the first time on appeal because defendant offered no authority to support position that it can be raised for the first time on appeal), rev. denied 293 Kan. (December 16, 2001); State v. Miser, No. 99,274, 2009 WL 1691940 (Kan.App.2009) (unpublished opinion) (addressing speedy trial argument for the first time on appeal because it involved only a question of law arising on proved or admitted facts and was finally determinative of the case), rev. denied 290 Kan. 1100 (2011); see also Trass v. State, No. 104,039, 2011 WL 1814917 (Kan.App.2011) (unpublished opinion) (declining to address speedy trial argument raised in a motion to correct an illegal sentence even when construing it as a K.S.A. 60–1507 motion). Thus, a defendant can waive the right to a speedy trial if he or she does not raise the issue in a timely manner.
Because Elliott has shown neither manifest injustice nor exceptional circumstances to justify the belated assertion of his right to a speedy trial, we conclude that the district court did not err in summarily dismissing Elliott's K.S.A. 60–1507 motion.
Affirmed.