Opinion
No. 110,762.
2015-01-23
Dewey A. GAITHER, Appellant, v. STATE of Kansas, Appellee.
Appeal from Sedgwick District Court; James R. Fleetwood, Judge.Michael P. Whalen and Krystle M.S. Dalke, of Law Office of Michael P. Whalen, of Wichita, for appellant.Matt J. Moloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; James R. Fleetwood, Judge.
Michael P. Whalen and Krystle M.S. Dalke, of Law Office of Michael P. Whalen, of Wichita, for appellant. Matt J. Moloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before GREEN, P.J., BRUNS, J., and BUKATY, S.J.
MEMORANDUM OPINION
BUKATY, J.
A jury convicted Dewey A. Gaither of attempted first-degree murder, felony murder, aggravated robbery, aggravated kidnapping, and obstruction of justice. The Kansas Supreme Court affirmed the convictions on appeal. Gaither then filed a motion under K.S.A. 60–1507 alleging ineffective assistance of trial counsel and appellate counsel. The district court denied the motion and this court affirmed that ruling. Nearly 2 years later, Gaither filed a second motion under K.S.A. 60–1507, reasserting claims of ineffective assistance of trial and appellate counsel and, for the first time, alleging ineffective assistance of his counsel in the district court in his first K.S.A. 60–1507 motion. The court summarily denied the motion without an evidentiary hearing on the basis that it did not state with specificity the allegations of ineffective assistance of counsel. We conclude that Gaither did state his allegations of ineffective assistance of 60–1507 counsel with specificity but issues remain as to whether the motion should be dismissed as untimely and/or successive. We reverse and remand with instructions to the district court to issue findings and conclusions on these issues and then possibly determine the merits of the motion depending upon its ruling as to timeliness and successiveness.
The salient facts of the 2003 crime spree that resulted in Gaither's convictions are immaterial to the issues in this appeal, and we need not recite them here. Suffice it to say they are detailed in the Kansas Supreme Court opinion that affirmed the sentences and convictions on direct appeal. See State v. Gaither, 283 Kan. 671, 693, 156 P.3d 602 (2007).
After losing his direct appeal, Gaither filed a K.S.A. 60–1507 motion alleging multiple trial errors and the ineffective assistance of both his trial counsel and appellate counsel. Following a nonevidentiary hearing, the district court denied Gaither's motion and then denied a subsequent motion to reconsider.
On appeal, this court considered two allegations of ineffective assistance of trial counsel that Gaither's first K.S.A. 60–1507 appellate counsel raised and affirmed the district court's denial of his motion. Gaither v. State, No. 103,080, 2011 WL 4440185, at *4 (Kan.App.2011) (unpublished opinion), rev. denied 294 Kan. 943 (2012).
Gaither then filed the K.S.A 60–1507 motion that is the subject of this appeal. He again claimed to have received ineffective assistance from his trial counsel and appellate counsel, and this time alleged his 60–1507 counsel was also ineffective. The district court summarily denied the motion, for lack of specificity. This appeal follows.
A district court has three options when resolving a K.S.A. 60–1507 motion. First, the court may determine that the motion, files, and records of the case conclusively show that the movant is entitled to no relief and summarily deny the motion. Second, the district court may determine from the motion, files, and record that a substantial issue or issues have been raised, requiring a full evidentiary hearing in the presence of the movant. Third, the district court may determine that the motion raises a potentially substantial issue or issues of fact, supported by the files and record, and hold a preliminary hearing after appointment of counsel to determine whether, in fact, the issues in the motion are substantial. Albright v. State, 292 Kan. 193, 196, 251 P.3d 52 (2011).
Where, as here, 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 relief. Edgar v. State, 294 Kan. 828, 836, 283 P.3d 152 (2012). And to the extent that resolution of this appeal involves interpretation of K.S.A. 60–1507 and Supreme Court Rule 183 (2014 Kan. Ct. R. Annot. 285), we have an unlimited standard of review. See State v. Hoge, 283 Kan. 219, 221, 150 P.3d 905 (2007).
As a preliminary matter, we address Gaither's claim that the district court failed to make adequate findings as required under Supreme Court Rule 183(j).
Gaither erroneously argues the district must comply with Rule 183(j) “regardless of whether an evidentiary hearing is granted.” The Kansas Supreme Court has found that Rule 183(j) requires the district court to make findings of fact and conclusions of law only after a preliminary or full evidentiary hearing on all issues presented in a K.S.A. 60–1507 motion. See Bellamy v. State, 285 Kan. 346, 354, 172 P.3d 10 (2007). Here, the district court summarily denied Gaither's K.S.A. 60–1507 motion without holding a preliminary or evidentiary hearing.
Turning to the merits of this appeal, we first note again that the district court summarily dismissed the motion for the reason that “Defendant has failed to assert with any specificity grounds for his allegations of ineffective assistance of counsel.”
Gaither, in his brief, disputes this fact. He frames his appeal as follows: “The issue here is not whether Mr. Gaither should prevail on his 60–1507 petition but whether he ought to be given an evidentiary hearing to make his case for relief. That is a significantly narrower issue.” He goes on to argue that he raised several claims in the motion as to how his trial counsel, appellate counsel, and 60–1507 counsel in the prior K.S.A. 60–1507 motion were ineffective. He points out that he had attached a “33–page memorandum and attachments in support of his claims.”
It appears that Gaither's second motion requested the district court to revisit his previous claims for ineffective assistance of trial counsel and appellate counsel that had been previously denied. The motion then alleged for the first time that his 60–1507 counsel was ineffective for failing to advocate his position, failing to file a memorandum in support of his motion and failing to use the issues he raised in the motion “as a basis for the oral argument” at the non-evidentiary hearing. Gaither claimed that had 60–1507 counsel not limited his arguments to those counsel put forth in the pretrial questionnaire, the district court would not have dismissed his allegations of ineffective assistance as conclusory.
In its brief, the State does not directly respond to Gaither's claim that he specifically listed sufficient allegations and that the district court erred in dismissing the K.S.A. 60–1507 motion for lack of specificity. Instead, it almost concedes Gaither's argument but contends the motion was both untimely and successive and we should affirm the district court's summary dismissal if it was right for any reason. The district court failed to mention or address in any fashion the timeliness or the successiveness issue.
After stating the arguments about specificity in his appellate brief, Gaither, in obvious anticipation of the State's arguments on timeliness and successiveness, disputes the State's arguments on these issues. As to timeliness, he argues the statute of limitations is an affirmative defense and must be asserted or its waived and the State cannot use it for the first time on appeal. He further argues we cannot use it as a bar because it was not recognized by the district court. As to successiveness, he argues because the trial court did not address the issue, it “cannot be raised by the State for the first time on appeal or brought up by this court.” He also appears to argue that exceptional circumstances exist because his 60–1507 counsel was ineffective and he had no opportunity to raise the issue before.
As to the timeliness of a K.S.A. 60–1507 motion, a defendant in custody must file his or her K.S.A. 60–1507 motion within 1 year of the defendant's final order on direct appeal in the original criminal case. K.S.A. 60–1507(f)(1). The Kansas Supreme Court issued its mandate in Gaither's direct appeal on May 22, 2007. Gaither did not file his K.S.A. 60–1507 motion until July 5, 2013. Because Gaither filed his K.S.A. 60–1507 motion clearly out of time, he must show that an extension of that deadline is necessary to prevent a manifest injustice. K.S.A. 60–1507(f)(2); State v. Kelly, 291 Kan. at 868, 873, 248 P.3d 1282 (2011). “Manifest injustice” has been interpreted to mean “ ‘obviously unfair’ “ or “ ‘shocking to the conscience.’ [Citations omitted.]” Ludlow v.. State, 37 Kan.App.2d 676, 686, 157 P.3d 631 (2007). The burden is on Gaither to show manifest injustice. See K.S.A. 60–1507(f)(2); State v. Holt, 298 Kan. 469, 480, 313 P.3d 826 (2013) (citing Kelly, 291 Kan. at 873).
The Kansas Supreme Court in Vontress v. State, 299 Kan. 607, 325 P.3d 1114 (2014), recently clarified the standards district courts should use when determining whether a movant's untimely motion under K.S.A. 60–1507 may proceed. And because Gaither's appeal in this case was pending at the time Vontress was released in May 2014, that decision applies retroactively to the present case. See State v. Nguyen, 281 Kan. 702, 715, 133 P.3d 1259 (2006). Instead of just examining the reason for the delay of an untimely motion, Vontress held that “[m]anifest injustice ... must be determined [based on] the totality of the circumstances [in each case], 299 Kan. 607, Syl. ¶ 7. It then provided a set of nonexclusive factors for district courts to consider when conducting a manifest injustice inquiry under K.S.A. 60–1507(f)(2). Courts should consider whether the movant (1) provided persuasive reasons preventing him or her from filing a timely K.S.A. 60–1507 motion, (2) raised any substantial issues of law or facts deserving consideration, and (3) set forth a colorable claim of actual innocence. Vontress, 299 Kan. 607, syl. ¶ 8. Neither party addressed the implication, if any, of this decision on the present case either before the district court or in their briefs on appeal.
Clearly, Gaither filed the current motion well after the 1–year period following the issuance of the mandate from the Supreme Court on his direct appeal had expired. That then requires a determination as to whether the State has waived the timeliness defense or, if it has not, has Gaither met his burden to establish an extension of the time limitation is necessary to prevent manifest injustice.
Obviously, the district court did not issue findings or conclusions on the timeliness issue. We have nothing to review in this regard. It appears there are questions that were not resolved in the district court as to whether the State waived its timeliness defense and, if it did not, can Gaither establish manifest injustice if he is not allowed to proceed. While we have de novo review of a summary dismissal of a K.S.A. 60–1507 motion, based upon the brief record before us, we conclude that the district should consider these questions, including, if necessary, the applicability of Vontress. The district court is better able to make that determination since it appears that some fact-finding may be necessary.
We acknowledge that, generally, a party must object to inadequate findings of fact to preserve an issue for appeal. Such objections necessarily give the district court an opportunity to correct any alleged inadequacies. See State v. Edwards, 290 Kan. 330, Syl. ¶ 5, 226 P.3d 1285 (2010). When no such objection is made, an appellate court can presume the district court found all facts necessary to support its judgment. However, in situations as are present here where the record does not support such a presumption and the lack of specific findings precludes meaningful review, an appellate court can consider a remand. See State v. Vaughn, 288 Kan. 140, 143, 200 P.3d 446 (2009)
As to the successiveness issue, the district court is not required to entertain a second or successive K.S.A. 60–1507 motion for similar relief on behalf of the same prisoner. Trotter, 296 Kan. at 904 (citing K.S.A. 60–1507 [c] ). “A movant in a K.S.A. 60–1507 motion is presumed to have listed all grounds for relief, and a subsequent motion need not be considered in the absence of a showing of circumstances justifying the original failure to list a ground.” Trotter, 296 Kan. 898, Syl. ¶ 2. Exceptional circumstances are unusual events or intervening changes in the law that prevented the movant from reasonably being able to raise all of the claimed trial errors in the preceding K.S.A. 60–1507 motion. Kelly, 291 Kan. at 872; see also Supreme Court Rule 183(d) (successive motion provisions).
Gaither argues in his brief that the State also waived any defense of successiveness and cannot raise it for the first time on appeal. However, he apparently acknowledged in his K.S.A. 60–1507 motion that it was successive and he would have to show exceptional circumstances. The motion then alleged the ineffective assistance his 60–1507 counsel provided at the nonevidentiary hearing in failing to provide a sufficient basis for each of his issues raised in his K.S.A. 60–1507 motion was an exceptional circumstance justifying consideration of his second K.S.A. 60–1507 motion. His appellate brief argues that he obviously could not have raised the issue in the prior K.S.A. 60–1507 motion and the issues “are not successive.”
He does not on appeal, however, point to any exceptional circumstances that would allow another review of his claims of ineffectiveness on the part of trial counsel or appellate counsel. Accordingly, we conclude that the claims in the present motion that Gaither's trial counsel and appellate counsel were ineffective are successive and they are subject to summary dismissal under K.S.A. 60–1507(c).
As to Gaither's argument that exceptional circumstances exist that justify him proceeding with the claim of ineffectiveness on the part of 60–1507 counsel, the district court did not address the issue and it appears that some fact finding may be necessary. Therefore, for the same reasons we are remanding the issue of timeliness, we also remand the issue of successiveness to the district court for findings and conclusions.
Upon remand, if the district court determines that both manifest injustice and exceptional circumstances exist to allow the late filing of this present motion under K.S.A. 60–1507 as to the claims of ineffectiveness of prior 60–1507 counsel, it should then address the merits of that claim.
Reversed and remanded with instructions.