Opinion
No. 110,310.
2014-10-10
John F.FRANCIS, Appellant, v. STATE of Kansas, Appellee.
Appeal from Johnson District Court; James Franklin Davis, Judge. Catherine A. Zigtema, of Law Office of Kate Zigtema, LC, of Lenexa, for appellant. Steven J. Obermeier, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Review Denied February 19, 2015.
Appeal from Johnson District Court; James Franklin Davis, Judge.
Catherine A. Zigtema, of Law Office of Kate Zigtema, LC, of Lenexa, for appellant. Steven J. Obermeier, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
In 2003, John F. Francis was convicted of first-degree murder, a conviction that the Kansas Supreme Court affirmed. In 2007, Francis filed a K.S.A. 60–1507 motion and alleged that his trial counsel was ineffective; this court affirmed the district court's ultimate denial of the motion. Francis now appeals from the summary dismissal of his second K.S.A. 60–1507 motion, which alleges ineffective assistance of both his appellate and 60–1507 counsel. Because we find that the motion, files, and records of the case conclusively establish that Francis is not entitled to relief, we affirm the district court's summary dismissal. Francis also contends that the district court erred in rejecting his motion to amend his second K.S.A. 60–1507 motion for lack of jurisdiction. We agree and find the district court did have jurisdiction to consider his motion to amend. Accordingly, we affirm in part, reverse in part, and remand with directions to consider Francis' motion to amend.
As our Supreme Court concisely summarizes the facts underlying Francis' conviction in State v. Francis, 282 Kan. 120, 145 P.3d 48 (2006) ( Francis I ), the following is a very brief synopsis:
In 1997, Clem Hollingsworth IV was charged with the murder of Francis' cousin. A few weeks after the murder, Francis stated on a three-way telephone call that he intended to “get” either Hollingsworth or “ ‘the next thing closest to him.’ “ 282 Kan. at 123, 145 P.3d 48. About 8 months later, in February 1998, Francis and a number of others visited a bail bondsman named James “Tony” Gillihan and attempted to secure Hollingsworth's release from jail. They first offered $5,000, but then increased the total to $7,500, explaining to Gillihan that Hollingsworth was “ ‘not going to be on the bond very long’ “ and that “ ‘[a]s soon as they find [Hollingworth's] body, you're off the bond.’ “ 282 Kan. at 123, 145 P.3d 48. Gillihan refused to involve himself.
Shortly thereafter, Hollingsworth's mother paid the bond and secured his release. Less than a day later, while Hollingsworth, his mother, and a friend drove home from a casino, a car pulled up close beside them on Shawnee Mission Parkway in Johnson County, Kansas. Hollingsworth's mother recognized Francis in the other car's passenger seat. Hollingsworth commanded her to duck, and gunfire began to pepper the Hollingsworth's car. Hollingsworth's mother attempted to escape the car, but the shooting continued. By the time she pulled into a gas station, Hollingsworth was bleeding, and he was pronounced dead at the hospital. An investigation determined that at least five different guns were used in the shooting; four guns, including one that could have fired a bullet that had been retrieved from Hollingsworth's body, were discovered during a search of Francis' residence. Francis was charged with and ultimately convicted of first-degree premeditated murder.
Francis appealed his conviction to our Kansas Supreme Court. There, he raised nine issues, only two of which are germane to this appeal. The first concerns Francis' objection to the jury instructions used at his trial. Francis I, 282 Kan. at 144–46, 145 P.3d 48, Francis specifically argued that the evidence did not support inclusion of the two aiding and abetting instructions that the district court provided the jury. To rectify this perceived problem, Francis had requested an additional instruction at trial that stated “ ‘mere association with a principal who actually committed the crime ... is insufficient to establish guilt as aider or abettor,’ “ which the district court rejected. 282 Kan. at 145, 145 P.3d 48. Our Supreme Court determined that the instructions did not mislead the jury and were appropriate as given. 282 Kan. at 146, 145 P.3d 48. The court ultimately upheld Francis' conviction. 282 Kan. at 153, 145 P.3d 48.
Subsequent to the Supreme Court's ruling, Francis filed a K.S.A. 60–1507 motion and raised several allegations of trial counsel's ineffectiveness. The district court summarily dismissed that motion, but this court reversed and remanded the case for an evidentiary hearing on the merits. Francis v. State, No. 99,596, 2009 WL 1312561, at *5 (Kan.App.2009) (unpublished opinion), rev. denied 290 Kan. 1093 (2010) ( Francis II ). On remand, Francis amended the motion to include two additional claims. After a full evidentiary hearing on remand, the district court again denied the motion. When Francis appealed that denial, this court affirmed the district court's decision. Francis v. State, No. 106,140, 2012 WL 4794595, at *11 (Kan.App.2012) (unpublished opinion) ( Francis III ).
Shortly thereafter, Francis filed a second K.S.A. 60–1507 motion. There, Francis raised three issues: (1) ineffectiveness of appellate counsel Bob Thomas and initial K.S.A. 60–1507 counsel Stacy Schlimmer for failing to raise the holding from State v. Engelhardt, 280 Kan. 113, 119 P.3d 1148 (2005), on his direct appeal and during his first K.S.A. 60–1507 proceeding; (2) instructional error regarding the aiding and abetting instructions; and (3) ineffectiveness of Schlimmer for failing to provide an expert witness and produce a recanting witness during the first K.S.A. 60–1507 proceeding. Francis explained that he failed to raise these issues previously due to counsel's ineffectiveness and the district court's earlier failure to rule on the jury instruction issue.
Upon review of the motion, records, and case file, the district court summarily denied Francis' motion. The district court distinguished Engelhardt from Francis' case and determined that Francis' claims could have been brought in his first K.S.A. 60–1507 motion. Additionally, the district court reasoned that even if Francis' counsel was ineffective, Francis could prove no prejudice because of the large amount of evidence against him.
On May 6, 2013, Francis filed a motion to supplement his K.S.A. 60–1507 motion, adding two additional claims of ineffective assistance of counsel—one concerning Thomas and one concerning Schlimmer. Francis also filed a timely notice of appeal from the decision dismissing his K.S.A. 60–1507 motion on May 24, 2013. In June 2013, the district court ruled that because Francis had filed a notice of appeal, it lacked jurisdiction over the motion to supplement. Francis amended his notice of appeal to include this jurisdictional ruling.
On appeal, Francis first argues that the district court erred in dismissing his K.S.A. 60–1507 motion. When a district court, as here, summarily denies the motion, this court conducts 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. Edgar v. State, 294 Kan. 828, 836–37, 283 P.3d 152 (2012).
However, district courts are not required to “entertain a second or successive motion for similar relief on behalf of the same prisoner.” K.S.A. 60–1507(c). Such a motion is an abuse of remedy “[a]bsent a showing of exceptional circumstances.” State v. Kelly, 291 Kan. 868, Syl. ¶ 2, 248 P.3d 1282 (2011). Exceptional circumstances include “unusual events or intervening changes in the law which prevent a movant from reasonably being able to raise all of the trial errors in the first postconviction proceeding.” 291 Kan. 868, Syl. ¶ 2, 248 P.3d 1282. Exceptional circumstances may also occur when
“there was ineffective assistance of trial counsel in failing to object regarding an issue; there was ineffective assistance of direct appeal counsel in failing to raise an issue; or there was newly discovered evidence or an unforeseeable change in circumstances or constitutional law unknown to counsel and movant at the time of the trial and direct appeal.” Trotter v. State, 288 Kan. 112, 127, 200 P.3d 1236 (2009).
Francis first contends that exceptional circumstances exist to bring a second K.S.A. 60–1507 motion because of counsels' failure to raise two issues: (1) an instructional error regarding the aiding and abetting instructions and (2) Gillihan's recanted testimony. Additionally, he argues that because these issues have merit, the district court was required to entertain the motion rather than summarily dismissing it. The district court apparently found that Francis had established exceptional circumstances to pursue his motion, because the court ruled on the merits of his claims and did not dismiss the action for successiveness.
We will address the jury instruction and recanted testimony issues separately to determine whether they provide exceptional circumstances sufficient to allow a second motion and whether they raise an issue that requires remand for further proceedings.
As previously mentioned, the State charged Francis with premeditated first-degree murder. The State's theory of the case was that Francis and his friends had planned to ambush Hollingsworth as soon as he was released from jail and kill him in retaliation for his murder of Francis' cousin. They followed his movements that night until they finally confronted him in the backseat of a car driven by Hollingsworth's mother. They killed him in a hail of gunfire after surrounding the car he was in. Hollingsworth's mother testified that she was familiar with Francis and that she clearly saw him riding as a passenger in the car from which the shots were fired, although she could not say definitively who fired which shots.
At trial on the first-degree murder charge, the district court provided the jury with a premeditated murder instruction as well as two different aiding and abetting instructions. Instruction 11, which mirrors PIK Crim.3d 54.05 (Responsibility for Crimes of Another), read:
“A person who, either before or during its commission, intentional [ sic ] aids, abets, advises, counsels or procures another to commit a crime with intent to promote or assist in its commission is criminally responsible for the crime committed regardless of the extent of the defendant's participation, if any, in the actual commission of the crime.”
The second instruction regarding aiding and abetting, Instruction 12, which mirrored PIK Crim.3d 54.06 (Responsibility for Crimes of Another—Crime Not Intended), read: “A person who intentionally aids, abets, advises, counsels or procures another to commit a crime is also responsible for any other crime committed in carrying out or attempting to carry out the intended crime, if the other crime was reasonably foreseeable.” (Emphasis added.)
In the years following Francis' criminal trial, our Supreme Court had an opportunity to address the use of PIK Crim.3d 54.06 in a premeditated murder trial.
The first case was Engelhardt, 280 Kan. 113, 119 P.3d 1148, which was decided after Francis' brief was filed on his direct appeal but before oral argument. Engelhardt was charged with first-degree premeditated murder, three counts of kidnapping, three counts of criminal threat, one count of battery, and one count of aiding a felon. There was some question whether Engelhardt or his friend, Brian Smith, actually inflicted the fatal stab wound on their victim. Just as in this case, the court gave both aiding and abetting instructions. Our Supreme Court found that the giving of a premeditated murder instruction along with PIK Crim.3d 54.05 was not incongruent because the specific intent required is premeditation and a person guilty of aiding and abetting a premeditated first-degree murder must be found, beyond a reasonable doubt, to have had the requisite premeditation. 280 Kan. at 132, 119 P.3d 1148. The problem came in combining this with a PIK Crim.3d 54.06 instruction. Because there were other crimes that were charged or could have been charged, such as aggravated battery, the jury could have found, based on the foreseeability language, that Engelhardt was pursuing one of the other crimes but murder was a foreseeable consequence, basically turning the instruction into a felony-murder instruction, lowering the prosecution's burden of proof for premeditated murder. Accordingly, the court found that under these circumstances it was error to combine the two aiding and abetting instructions, although because of the overwhelming evidence it was harmless. 280 Kan. at 133, 119 P.3d 1148.
The next case was State v. Overstreet, 288 Kan. 1, 200 P.3d 427 (2009). It was issued after Francis' first K.S.A. 60–1507 motion but before its remand and the subsequent final decision by this court. Overstreet was charged with attempted first-degree premeditated murder or, in the alternative, aggravated assault, both based on an aiding and abetting theory, and again the court gave both PIK Crim.3d 54.05 and PIK Crim.3d 54.06. This case was also based on an alleged ambush of the victim by several people in a car. The Supreme Court found that Engelhardt controlled and that by providing the PIK Crim.3d 54.06 foreseeability instruction, the jury was informed that it need not find that Overstreet possessed the specific intent of premeditation if it found that premeditated murder was a foreseeable consequence of aggravated assault. 288 Kan. at 11–12, 200 P.3d 427. The court concluded that a defendant can only “be convicted of a specific-intent crime on an aiding and abetting theory” when he or she has “the same specific intent to commit the crime as the principal.” 288 Kan. at 13, 200 P.3d 427. Therefore, providing both instructions—one that reflects the correct intent and one that lessens that intent and the State's burden—constitutes instructional error. “The fact that it may be foreseeable that someone may die as a result of a particular course of action does not give rise to the conclusion that the cause of death was premeditated.” 288 Kan. 1, Syl. ¶ 4, 200 P.3d 427.
We turn next to Francis' direct appeal. The issue of the appropriateness of the aiding and abetting instructions was raised in the direct appeal. Francis I, 282 Kan. at 144–46, 145 P.3d 48. Francis argued that the two aiding and abetting instructions were not supported by the evidence because the State claimed that Francis actually fired the last fatal shots. The State's theory was that he was the principal. Accordingly, aiding and abetting instructions were not factually appropriate. In the alternative, Francis argued that a “mere association” instruction should have been given because the jury clearly seemed confused based on the questions it asked once it began deliberations. 282 Kan. at 146, 145 P.3d 48. The trial court noted that although the evidence did not bear out the claim that Francis fired the fatal shots, a mere association instruction was not necessary given the clear language in PIK Crim.3d 54.05. 282 Kan. at 145, 145 P.3d 48. The Supreme Court concluded, after noting both aiding and abetting instructions were given:
“It is established that, if the instructions taken as whole properly and fairly state the law as applied to the facts of the case and a jury could not reasonably have been misled by them, the instructions do not constitute reversible error. [Citation omitted.] The jury wrote the following two questions: ‘Can we have a definition of “aids and abets”?’ and ‘Is having knowledge of a murder before it is committed and not reporting it aiding and abetting as in Jury instruction 11.’ These questions may manifest the jury's attempt to become familiar with legal concepts in order to apply them to the facts, but they do not show that the jury was misled. The defendant has not shown that ajury reasonably could have been misled by the instructions given.” 282 Kan. at 146, 145 P.3d 48.
Although the Supreme Court's decision in Francis I was filed almost a full year after Engelhardt, Francis now argues that had his direct appeal counsel (Thomas) raised Engelhardt through a letter of supplemental authority prior to oral argument, the decision would have been different. Likewise, if his first K.S.A. 60–1507 council (Schlimmer) had raised both Engelhardt and Overstreet at the remand hearing of his first K.S.A. 60–1507 motion, the decision might have been different. This, he argues, presents exceptional circumstances to allow him to bring a successive K.S.A. 60–1507 motion and further requires an evidentiary hearing regarding counsels' actions. Ineffective assistance of direct appeal counsel or 60–1507 counsel in failing to raise an issue can certainly rise to the level of an exceptional circumstance to permit a successive K.S.A. 60–1507 motion. See Trotter, 288 Kan. at 127, 200 P.3d 1236.
In order to establish ineffective assistance of counsel, a defendant is required to show that “(1) counsel's performance, based upon the totality of the circumstances, was deficient in that it fell below an objective standard of reasonableness, and (2) defendant was prejudiced to the extent that there was a reasonable probability of success but for counsel's deficient performance.” 288 Kan. 112, Syl. ¶ 10, 200 P.3d 1236. The failure of appellate counsel to raise an issue on appeal is not, per se, ineffective assistance of counsel. Laymon v. State, 280 Kan. 430, 439, 122 P.3d 326 (2005).
The district court judge, who also heard the trial in this matter, essentially found, among other reasons, that the failure to raise Engelhardt and Overstreet did not prejudice Francis because even under the analysis in those two cases, the instructions in his case did not mislead the jury and Francis cannot establish that even if counsel's performance was deficient, he was prejudiced thereby. The district court judge noted that in Overstreet, the only case of the two that resulted in a reversal, the court found that the confusion between the two instructions was exacerbated by the prosecutor's comments during closing argument. The prosecutor focused on the foreseeability factor and added that if all Overstreet intended to do was aid in an aggravated assault, he was still guilty of premeditated murder. 288 Kan. at 14–15, 200 P.3d 427.
No comments even remotely similar to those made in Overstreet were made by the prosecutor in Francis' case. The prosecutor never discussed the aiding and abetting instructions at all. All the more reason for Francis' appellate counsel to pursue the overall appropriateness of any aiding and abetting instructions on direct appeal, a position that was rejected by our Supreme Court in Francis I. As the district court judge points out in his order, the prosecutor's position was that Francis formed the intent to murder Hollingsworth a few days before the murder when he attempted to bond him out and told the bondsman that he would not have to worry about getting his money back because Hollingsworth's body would be found. Francis had the requisite intent to commit the crime as the principal. The district court judge further noted that the prosecutor emphasized that Hollingsworth's mother identified Francis as being in the car from which shots were fired at the victim. The prosecution's theory was clearly that Francis planned and participated with the clear and premeditated intent to murder Hollingsworth. We also note an additional difference between this case and both Engelhardt and Overstreet not mentioned by the district court: In both cases, there were “other crimes” alleged in addition to premeditated murder—“other crimes” that could have been used to convert the PIK Crim.3d 54.06 instruction into a de facto felony-murder instruction. Here, the only charge was first-degree murder. There were no “other crimes” to confuse or mislead the jury.
We have no trouble reaching the same conclusion as the district court. Even if the PIK Crim.3d 54.06 instruction had not been given, there is no reasonable probability that the result would have been different. The Supreme Court fully examined the instructions given in Francis' direct appeal and also found that based on the evidence the instructions did not mislead the jury. Francis I, 282 Kan. at 146, 145 P.3d 48. The motion, files, and records of the case conclusively establish that the Francis is not entitled to relief on a meritless claim regarding ineffective assistance of appellate and 60–1507 counsel. Accordingly, the district court did not err in summarily denying his motion.
Francis also claims that Schlimmer was ineffective because she failed to produce recanting witness Gillihan at the first K.S.A. 60–1507 hearing.
The issue of the veracity of Gillihan's testimony was litigated extensively in this case. Gillihan testified at both the preliminary hearing and the trial of this matter. His testimony was consistent both times regarding his discussion with Francis about bonding out Hollingsworth. Both times he indicated that he was required as part of his plea agreement in his federal case to cooperate and tell the truth in the Francis case. He testified at trial that if he did not cooperate he could face additional charges in his federal case. He was cross-examined extensively by Francis' attorney.
Approximately 2 weeks after the trial, Francis' attorney, Thomas, alleged that he had received a letter from Gillihan asking Thomas to contact him. Thomas went to visit Gillihan in the Federal Prison Camp in Leavenworth in mid-December 2003, where Gillihan was serving time on an unrelated crime. Gillihan advised Thomas that he had been diagnosed with post-traumatic stress disorder and that he did not remember the events surrounding the case because he was confusing them with the death of his son. He also indicated that the day before he testified, which was on November 4, 2003, he had been shown a letter from United States Attorney Todd Graves, dated November 22, which stated that if he did not testify for the State he would be charged with additional crimes. Following his meeting with Gillihan, Thomas filed a motion to dismiss the case, alleging failure to disclose exculpatory evidence.
At the hearing on the motion to dismiss, Thomas presented evidence through Paul Becker, the Assistant United States Attorney handling Gillihan's federal case, and Michael Daniels, the lead investigator in the case. Becker testified that Gillihan had been unpredictable throughout the federal case with regards to whether he was going to cooperate or not. Gillihan received a federal sentence reduction in 2002 due to his cooperation, but he still wanted further reductions. After the trial, Becker was contacted by a Johnson County Assistant District Attorney and told that Gillihan was attempting to recant his prior testimony. Becker testified that the only agreement was that Gillihan would tell the truth.
Daniels testified that he was with Gillihan immediately before he went into the courtroom to testify at the trial. Gillihan told Daniels that he had post-traumatic stress disorder and was confusing a few issues about his son's death and what he was going to testify about. Although the judge sustained the prosecutor's objection to this testimony, the prosecutor elicited a reference to it in cross-examination. Daniels further testified that he told Gillihan to “tell the truth and remember the things you said before, tell the truth again, and everything will be fine.” Daniels testified he never possessed a letter from the United States Attorney and, accordingly, never showed such a letter to Gillihan. During argument, Thomas conceded that he could not prove that a letter was ever shown to Gillihan, but he argued that he should have been told about the discussion regarding Gillihan's post-traumatic stress disorder. The district court denied the motion to dismiss and found that Gillihan's testimony had been consistent throughout the case, through the preliminary hearing and trial, as well as years before when he first contacted the police.
Francis raised the issue of the denial of his posttrial motion to dismiss in his direct appeal. Francis I, 282 Kan. at 148–52, 145 P.3d 48. The Supreme Court essentially assumed that Gillihan made the statement to Daniels about post-traumatic stress disorder and confusing issues, but the court found it highly unlikely that this affected Gillihan's ability to remember his conversation with Francis concerning bonding out Hollingsworth. In addition, the fact that his testimony was consistent throughout would have been a “powerful rehabilitation tool if his credibility had been impeached .” 282 Kan. at 152, 145 P.3d 48. The court concluded that there was “not a reasonable probability that, had the evidence been disclosed to the defense, the outcome of the trial would have been different.” 282 Kan. at 152, 145 P.3d 48.
The issue of Gillihan's testimony was again raised at the evidentiary hearing on Francis' first K.S.A 60–1507 motion. His counsel, Schlimmer, argued that Thomas was ineffective for not providing details of his conversation with Gillihan to the court, including a recording of it. In addition, he failed to present details regarding the testimony about which Gillihan was confused. Schlimmer also presented testimony concerning Thomas meeting with Gillihan and the presence of an audiotape of that meeting that was never disclosed by Thomas. In addition, she elicited testimony concerning Gillihan telling Francis' mother that he would retract his testimony. On rebuttal, the State presented evidence from the private investigator who accompanied Thomas to the federal penitentiary to meet with Gillihan. He testified that there was no audiotape of the meeting and that everything that Gillihan said was in his affidavit. He stated that Gillihan wanted to speak “off the record” and Thomas would not allow that, so Gillihan gave very few details. Finally, Thomas also testified that he went to visit Gillihan with a private investigator and that everything Gillihan said was in the investigator's affidavit, which was submitted to the Supreme Court as part of the record on the direct appeal. The district court found that based on the Supreme Court's ruling in Francis I, it could not be ineffective assistance of counsel to fail to include statements and records that would not have changed the outcome of the trial. This court affirmed that decision. Francis III, 2012 WL 4794595, at *10–11.
Now, Francis raises similar issues in this K.S.A 60–1507 motion. This time he argues that his 60–1507 counsel was ineffective for not calling Gillihan to testify at the evidentiary hearing and establishing his recantation. In his current motion, Francis lists Gillihan's address, D & B Legal Services, and a “videotape statement of Tony Gillihan,” presumably prepared by D & B, as facts that support his claim. However, the motion fails to indicate when he obtained this videotape and if attorney Schlimmer was even aware of it or had access to it at the time of the prior evidentiary hearing.
It is well-settled that a movant in a K.S.A. 60–1507 proceeding carries the burden and “must make more than conclusory contentions and must state an evidentiary basis in support of the claims” if such an evidentiary basis cannot be found in the record. Trotter, 288 Kan. 112, Syl. ¶ 2, 200 P.3d 1236. Here, Francis alleges that Gillihan recanted his testimony, but no videotape or any other evidence of this recantation (such as a transcript of the alleged tape) appears in the record. No one, including Francis, mentioned the existence of this videotape at the time of the prior hearing. Aside from a proffer in the memorandum of law attached to Francis' motion, it is uncertain whether the videotape exists, where it is located, and the exact nature of its contents. Francis does not allege in his motion or brief that Schlimmer was aware of it or that it existed at the time of the prior hearing. Because Francis fails to allege that Schlimmer knew about an actual recantation, other than that already testified to by Thomas and the private investigator, it cannot be said that her failure to raise the issue before the district court is ineffective. Therefore, the district court did not err in summarily dismissing this claim.
Francis next argues that despite its ruling to the contrary, the district court had jurisdiction to consider the motion to supplement that he filed on May 6, 2013.
Although Francis styles the instant motion as a motion to supplement, a review of the motion in question indicates that it is really a motion to amend. A motion to supplement allows a party to “set[ ] out any transaction, occurrence or event that happened after the date of the pleading to be supplemented.” K.S.A.2013 Supp. 60–215(d). Here, the two events or occurrences Francis wishes to add are Thomas' alleged commission of fraud on the court and Schlimmer's failure to file a petition for review in Francis' first K.S.A. 60–1507 proceeding. But both of these events occurred before Francis filed his second K.S.A. 60–1507 motion on December 10, 2012. The fraud claim arises out of Thomas' pretrial behavior, as the conflict of interest form that Francis now alleges was fraudulent was filed in September 2003, long before Francis' conviction. Although the affidavit signed by Corey Shannon is dated after the K .S.A. 60–1507 motion was filed, Francis still had the ability to raise the issue there rather than in a motion to supplement—especially considering that he raised issues regarding this conflict of interest in the first K.S.A. 60–1507 proceeding. See Francis III, 2012 WL 4794595, at *3–4. Similarly, Francis knew in October 2012 that Schlimmer would not file a petition for review unless Francis paid her to do so. Francis also received the notice that his pro se petition for review could not be considered by our Supreme Court prior to filing the instant K.S.A. 60–1507 motion.
But pro se pleadings are to be liberally construed, giving effect to the pleading's content rather than the labels and forms used to articulate the defendant's arguments. A defendant's failure to cite the correct statutory grounds for his or her claim is immaterial. See State v. Kelly, 291 Kan. 563, 565, 244 P.3d 639 (2010). Clearly, then, this motion is better termed a motion to amend and add new claims rather than a motion to supplement.
Generally, the decision of whether to allow an amendment falls within the broad discretionary power of the district court. See Tullis v. Pittsburg State Univ., 28 Kan.App.2d 347, 351, 16 P.3d 971 (2000). However, whether jurisdiction exists is a question of law over which this court's scope of review is unlimited. Frazier v. Goudschaal, 296 Kan. 730, 743, 295 P.3d 542 (2013). A district court loses jurisdiction over a case upon the filing of a motion to docket an appeal from that case with the clerk of the appellate courts. Harsch v. Miller, 288 Kan. 280, 285, 200 P.3d 467 (2009). Although Francis filed his notice of appeal in May 2013, his motion to docket the appeal was not filed until August 12, 2013. As such, the district court still retained jurisdiction during the time period in which it rejected his motion for lack of jurisdiction.
Because the district court erroneously dismissed the motion to amend for lack of jurisdiction, it never exercised its discretion in deciding whether to allow the amendments. Although the State urges this court rule the amendments untimely and find the district court right for the wrong reasons, Francis clearly raises the manifest injustice timeliness exception in his motion. Because Francis raised the issue and the district court has not yet considered it, we remand with instructions for the district court to consider the motion—including the claim of manifest injustice—on its merits.
Affirmed in part, reversed in part, and remanded with directions.