Opinion
110,743.
11-07-2014
Kevin KNOX, Appellant, v. STATE of Kansas, Appellee.
David Berkowitz, of Berkowitz Law Office, of Lawrence, for appellant. Casey L. Meyer, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
David Berkowitz, of Berkowitz Law Office, of Lawrence, for appellant.
Casey L. Meyer, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Before McANANY, P.J., ARNOLD–BURGER, J., and LARSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Kevin Knox appeals the denial of relief on his most recent motion pursuant to K.S.A. 60–1507. The district court summarily denied relief because Knox's claims were successive, out of time, and without merit.
Knox was convicted of aggravated burglary in April 2007. That conviction occurred on the retrial of this charge after the jury was unable to come to a unanimous verdict in Knox's original trial. In the original trial, Knox had been acquitted of aggravated kidnapping and criminal possession of a firearm but found guilty of simple battery, the lesser included offense of an aggravated battery charge.
Following the retrial, this court affirmed Knox's aggravated battery conviction and his sentence in State v. Knox, No. 100,117, 2009 WL 3837628, at *3, 5 (Kan.App.2009) (unpublished opinion), rev. denied 290 Kan. 1099 (2010).
Knox filed his first K.S.A. 60–1507 motion in February 2011. The district court summarily denied relief, and we affirmed in Knox v. State, No. 107,699, 2013 WL 1688891, at *1 (Kan.App.2013) (unpublished opinion) (Knox 2 ).
Knox filed a motion pursuant to K.S.A. 22–3504 to correct an illegal sentence in May 2011. The district court denied relief. Knox appealed but then withdrew his underlying motion, thereby ending the matter.
Knox then filed a “Petition for Availability of Other Relief pursuant to K.S.A. 60–2606 in October 2011. The district court summarily denied relief, and the district court's decision was not reversed.
Knox then filed a second K.S.A. 60–1507 motion in 2012. Following a hearing in July 2012, the district court denied relief. Knox did not appeal.
Then, in February 2013, Knox filed his third K.S.A. 60–1507 motion. The district summarily denied relief, finding Knox's motion to be successive, out of time, and without merit. Knox moved the court to reconsider, but the court denied relief. This appeal followed.
Knox's motion was in the form of a pro se “Petition for Post–Conviction Relief filed in his criminal case. The district court noted the impropriety of filing the motion in this fashion but decided to consider the matter as a motion for relief pursuant to K.S.A. 60–1507, presumably for the sake of judicial economy given Knox's propensity for repeatedly filing motions on matters previously addressed. Under the circumstances, we will do likewise.
Our review of Knox's current motion is de novo in order to determine whether the motion, files, and records of the case conclusively establish the movant is not entitled to relief. See Trotter v. State, 288 Kan. 112, 132, 200 P.3d 1236 (2009).
The district court is not required to entertain successive motions on behalf of the same prisoner. K.S.A. 60–1507(c) ; State v.. Trotter, 296 Kan. 898, 904, 295 P.3d 1039 (2013) ; State v. Mitchell 284 Kan. 374, 379, 162 P.3d 18 (2007). When a movant sets out grounds for relief, the movant is presumed to have listed all the grounds upon which he or she is relying, and in the absence of a showing of unusual circumstances or intervening changes in the law justifying the original failure to list a ground, the trial court may properly refuse to hear a second or successive K.S.A. 60–1507 motion. Walker v. State, 216 Kan. 1, 3–4, 530 P.2d 1235 (1975).
In Knox's current K.S.A. 60–1507 motion, he asserted that his retrial and conviction of aggravated burglary were in violation of K .S.A. 21–3108(1)(a), the statute prohibiting double jeopardy, and that his appellate counsel on his direct appeal was ineffective in failing to raise this issue in his direct appeal.
In Knox's direct appeal no claim of double jeopardy was asserted. In February 2011, Knox filed his first K.S.A. 60–1507 motion. In that motion, he did not raise the double jeopardy issue or claim that his appellate counsel had failed to raise the issue in his direct appeal. The district court summarily denied relief, and that decision was affirmed on appeal.
Knox filed his second K.S.A. 60–1507 motion in 2012. There, he raised the issue of double jeopardy (but apparently not the claim of ineffective appellate counsel), and the district court denied relief. We see no record of an appeal of that decision.
Now, in Knox's third K.S.A. 60–1507 motion, he again raises the previously rejected double jeopardy claim and asserts for the first time the claim of ineffective appellate counsel.
When Knox set out the grounds for relief in his initial K.S.A. 60–1507 motion, he was presumed to have listed all the grounds upon which he was relying. In the absence of a showing of unusual circumstances or intervening changes in the law justifying the original failure to list a ground, the trial court may properly refuse to hear a second or successive 60–1507 motion. See Walker, 216 Kan. at 3–4. The Kansas Supreme Court in Wimbley v.. State, 292 Kan. 796, 805, 275 P.3d 35 (2011), reaffirmed that the district court is not required to entertain a second or successive motion for similar relief filed by the same prisoner absent a showing of exceptional circumstances, which is defined as unusual events or intervening changes in the law that prevented the defendant from raising the issue in a preceding K.S.A. 60–1507 motion.
Knox argues that exceptional circumstances generally means manifest injustice or obviously unfair or shocking to the conscience. We adhere to the definition of the term stated in Wimbley. Applying that definition, Knox fails to show exceptional circumstances warranting the district court considering these issues in Knox's third try.
Knox could have raised these issues in his first K.S.A. 60–1507 motion but did not. He raised the double jeopardy issue in his second motion but did not appeal the adverse ruling. He again had the opportunity to raise his ineffective appellate counsel argument at that time but did not.
Further, under K.S.A. 60–1507(f)(l) there is a 1–year time limit for bringing such motions. For Knox, that clock began to run in June 2010, when the Kansas Supreme Court denied review of the Kansas Court of Appeals' decision. Knox's third motion, filed in 2013, is patently untimely. Knox fails to demonstrate manifest injustice which would toll the running of this 1–year period.
We need not address the substance of Knox's double jeopardy and ineffective assistance of appellate counsel claims because Knox's motion is both successive and untimely.
Affirmed.