Opinion
No. 108,512.
2013-08-9
Gary Lee McCOLPIN, 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., HILL, J., and ERNEST L. JOHNSON, District Judge Retired, assigned.
MEMORANDUM OPINION
PER CURIAM.
Gary Lee McColpin appeals from the district court's summary dismissal of his successive K.S.A. 60–1507 motion. McColpin argues (1) the district court applied the wrong legal standard when it found his motion to be successive; (2) the district court failed to make findings of fact and conclusions of law in support of the dismissal of his motion; and (3) the district court made no finding of untimeliness under K.S.A. 60–1507(f) and, accordingly, he was not required to show manifest injustice. Because we find no error, we affirm the district court's decision.
Facts
In 1976, McColpin was convicted of multiple sex crimes and kidnapping. Since that time, McColpin has filed numerous appeals from the district court's denial of his post-conviction motions. In his most recent appeal, McColpin argued that his trial counsel failed to call four alibi witnesses. A panel of this court agreed with the district court's determination that McColpin could have raised this issue in one of his earlier post conviction motions. Moreover, the panel concluded that the arguments presented by McColpin did not amount to manifest injustice to overcome the 1–year time limitation in 60–1507(f) or provide exceptional circumstances to warrant consideration of his successive motion. McColpin v. State, No. 105,043, 2011 WL 4717362, at *1–2 (Kan.App.2011) (unpublished opinion), rev. denied 293 Kan. –––– (2012).
In his appeal prior to the one mentioned above, McColpin complained that the district court made no factual findings and conclusions of law in summarily dismissing his K.S.A. 60–1507 motion. But a panel of this court concluded that the district court made adequate findings on the procedural facts: McColpin's motion was untimely and successive with no showing of manifest injustice. McColpin v. State, No. 101,488, 2009 WL 3739034 (Kan.App.2009) (unpublished opinion), rev. denied 290 Kan. 1094 (2010).
In April 2012, McColpin filed the K.S.A. 60–1507 motion that is the subject of this appeal. In his motion, McColpin claimed that (1) his counsel was ineffective for failing to perfect his direct appeal, and (2) he had newly discovered evidence consisting of the names of four witnesses who would provide him with an alibi. The district court summarily dismissed the motion and denied McColpin's motion for reconsideration.
McColpin appeals from the summary dismissal of his motion.
Analysis
A district court is not required to entertain a second or successive motion for similar relief filed by the same defendant absent a showing of exceptional circumstances. K.S.A. 60–1507(c). “ ‘Exceptional circumstances are unusual events or intervening changes in the law that prevented the defendant from raising the issue in a preceding 60–1507 motion.’ [Citation omitted.]” Holt v. State, 290 Kan. 491, 496, 232 P.3d 848 (2010). The movant bears the burden of establishing the existence of exceptional circumstances, and our review of a district court's summary dismissal is de novo. 290 Kan. at 495.
At the outset, we note that the 60–1507 motion that is the subject of McColpin's present appeal is clearly successive. Nevertheless, McColpin raises several arguments in an attempt to avoid the requirement that he show exceptional circumstances preventing him from raising the issues presented in one of his preceding 60–1507 motions. We, however, find none of his arguments to be persuasive.
First, McColpin contends the district court applied the wrong legal standard when it found his motion was successive. See K.S.A. 60–1507(c). Specifically, he argues that the district court's decision was rendered by checking a box on a form that stated: “Court declines to exercise jurisdiction because your request represents a second or successive motion for similar relief, and fails to set forth facts demonstrating manifest injustice or exceptional circumstances to warrant relief. K.S.A. 60–1507(c).” (Emphasis added.) Notwithstanding McColpin's argument to the contrary, we find that the district court's reference to the correct statute—K.S.A. 60–1507(c)—as well as to the appropriate standard—exceptional circumstances—was legally sufficient.
Second, McColpin contends that the district court failed to make any findings of fact or conclusions of law in summarily dismissing his most recent 60–1507 motion. But McColpin raised essentially the same allegations in his last 60–1507 motion. At that time, the district court found McColpin should have presented these claims in one of his prior K.S.A. 60–1507 motions. Moreover, a panel of this court affirmed the district court's decision, finding that McColpin's claims were clearly successive with no suggestion of exceptional circumstances. 2011 WL 4717362, at * 1–2.
We note that McColpin also complained the district court did not make findings of fact and conclusions of law in his 2009 appeal. In that case, a panel of this court found:
“On appeal, McColpin suggests that this court cannot meaningfully review the district court's decision because the district court did not make findings of fact and conclusions of law. But this court's review is de novo and in any case, it is the procedural facts that are at issue here because the district court dismissed the motion on procedural grounds. The district court did make findings that are at least partly factual: McColpin's motion was successive, it was untimely with no showing of manifest injustice, the claims in the motion could have been raised in earlier filings, and another K.S.A. 60–1507 motion was still on appeal.” 2009 WL 3739034, at *2.
In the present case, the district court made similar findings and conclusions. Specifically, the district court found that the motion was successive and that it failed to set forth facts demonstrating exceptional circumstances to warrant relief under K.S.A. 60–1507(f). Accordingly, we conclude that the district court made sufficient factual findings to allow for de novo review.
Finally, we find McColpin's arguments regarding timeliness and manifest injustice to be immaterial in light of the fact that the district court properly dismissed the 60–1507 motion as successive.
Affirmed.