Opinion
No. 108,459.
2013-07-12
Owen K. LINGENFELTER, Appellant, v. STATE of Kansas, Appellee.
Appeal from Sedgwick District Court; Anthony J. Powell, Judge. Michael P. Whalen and Krystle M.S. Dalke, of Law Office of Michael P. Whalen, of Wichita, for appellant. Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Anthony J. Powell, Judge.
Michael P. Whalen and Krystle M.S. Dalke, of Law Office of Michael P. Whalen, of Wichita, for appellant. Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before BRUNS, P.J., McANANY and SCHROEDER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Owen K. Lingenfelter appeals the district court's summary dismissal of his K.SA. 60–1507 motion as untimely and successive. We affirm the district court's ruling under Rule 7.042(b)(1), (2), and (6). (2012 Kan. Ct. R. Annot. 63).
Lingenfelter was convicted of rape of his teenage niece in 2005. He filed several posttrial motions, including a motion for admission of evidence of the victim's prior sexual conduct, a motion for judgment of acquittal, and a motion for a new trial. When those failed, Lingenfelter filed an appeal of his conviction, claiming the victim's evidence lacked credibility and, therefore, the State lacked evidence to prove the rape was done by force or fear. A panel of this court rejected Lingenfelter's argument in 2007, ruling the victim's testimony did not defy belief, and affirmed his conviction. See State v. Lingenfelter, No. 95,892, 2007 WL 1309610, at *1 (Kan.App.) (unpublished opinion), rev. denied 284 Kan. 949 (2007).
Lingenfelter filed his first K.S.A. 60–1507 motion in 2008 alleging ineffective assistance of counsel. A panel of this court rejected his argument in 2010. It found Lingenfelter had failed to support his conclusory claims regarding ineffective assistance of counsel. Lingenfelter v. State, No. 102,391, 2010 WL 4320356, at *5–6 (Kan.App.2010) (unpublished opinion), rev. denied 291 Kan. 911 (2011).
Now, Lingenfelter brings this K.S.A. 60–1507 motion, 6 years after his conviction. Lingenfelter argues ineffective assistance of counsel, claiming he was not informed he could appeal his conviction or sentence. He also claims he should have been charged and convicted of aggravated incest because the victim was a family member. The district court denied his motion without an evidentiary hearing, ruling the motion was out of time, successive, and failed to demonstrate manifest injustice or exceptional circumstances. Lingenfelter timely appeals.
On appeal, Lingenfelter makes no argument claiming his motion should be heard to prevent manifest injustice or due to exceptional circumstances. Instead, Lingenfelter claims the district court erred because Toney v. State, 39 Kan.App.2d 944, 187 P.3d 122,rev. denied 287 Kan. 769 (2008), the controlling caselaw regarding untimely K.S.A. 60–1507 motions, was wrongly decided. Lingenfelter points out the Kansas Supreme Court has granted review of Vontress v. State, 45 Kan.App.2d 430, 249 P.3d 452 (2011), a case which cites Toney favorably regarding the need to demonstrate manifest injustice after expiration of the 1–year time limit for K.S.A. 60–1507 motions. However, the Supreme Court has not yet handed down a decision on Vontress, and there is no current indication the Supreme Court is departing from its position. Therefore, Toney is still good law and applies here.
Lingenfelter also argues this motion is not successive as there is no evidence of his prior K.S.A. 60–1507 motion in the record on appeal. However, evidence of the district court's determination of his prior K.S.A. 60–1507 motion is public record as is the appeal considered by this court in 2010 and we take judicial notice of those records. See K.S.A. 60–409(b). Additionally, Lingenfelter came before the same district court, and even the same district court judge, for both K.S.A. 60–1507 motions. That fact is more than sufficient to demonstrate his motion is successive.
The district court's ruling was sound as well. Lingenfelter's claim of ineffective assistance of counsel fails on its face. In addition to having raised this issue in his prior K.S.A. 60–1507 motion, the record on appeal is replete with evidence of Lingenfelter's posttrial, appellate, and habeas motions. Clearly, counsel did not fail to advise Lingenfelter of his appellate rights.
As Lingenfelter raises no issues of merit, this panel sees no need to consider his arguments on appeal. The district court did not abuse its discretion in summarily denying Lingenfelter's K.S.A. 60–1507 motion as successive and untimely.
Affirmed pursuant to Rule 7.042(b)(1), (2), and (6). (2012 Kan. Ct. R. Annot. 63).