Opinion
No. 107,386.
2013-06-7
Kenneth David McNELLY, Appellant, v. STATE of Kansas, Appellee.
Appeal from Saline District Court; Rene S. Young, Judge. Kristen B. Patty, of Wichita, for appellant. Christina Trocheck, assistant county attorney, Ellen Mitchell, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Saline District Court; Rene S. Young, Judge.
Kristen B. Patty, of Wichita, for appellant. Christina Trocheck, assistant county attorney, Ellen Mitchell, county attorney, and Derek Schmidt, attorney general, for appellee.
Before ARNOLD–BURGER, P.J., GREEN, J., and LARSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
This is Kenneth McNelly's appeal from the district court's denial of his third K.S.A. 60–1507 motion (60–1507 motion) which was filed more than 8 years after this court affirmed his convictions on appeal. The district court summarily dismissed McNelly's motion based on three independent procedural hurdles: (1) the motion was filed outside the 1–year deadline of K.S.A. 60–1507(f); (2) the motion was successive; and (3) the underlying decision in State v. Voyles, 284 Kan. 239, 160 P.3d 794 (2007), upon which McNelly based his allegations that a new trial is necessary, did not apply retroactively. McNelly's attempts to get around these hurdles are unavailing and accordingly, we affirm.
Factual and Procedural History
A chronologically dense background of this case helps put the judgment this court is now tasked with reviewing in perspective.
McNelly is currently serving a 388–month prison sentence imposed after a jury convicted him on August 5, 1999, of eight counts of rape and one count each of aggravated criminal sodomy and aggravated indecent liberties with a child. The victim was McNelly's daughter, S.M., born in 1988. His trial counsel was Richard Blackwell.
McNelly directly appealed his convictions to this court. The central theme of his appeal involved an attack on S.M.'s credibility, particularly in light of her subsequent recantation of her trial testimony during a hearing on McNelly's second motion for new trial, which the district court denied. This court rejected those arguments, and our Supreme Court denied McNelly's petition for review. State v. McNelly, No. 84,552, unpublished opinion filed January 11, 2002, rev. denied 273 Kan. 1039 (2002) ( McNelly I ). Additional facts underlying McNelly's convictions will be discussed below where necessary.
Though difficult to follow at times, McNelly's complaint in this appeal centers around the fact that the State charged and the jury found that McNelly committed these crimes against S.M. during a time frame spanning from January 1, 1997, to August 1, 1998; and evidence offered during McNelly's trial indicated that S.M. reported the sexual abuse occurred far more often than the number of charged events. Highly summarized, McNelly argues that his convictions must be reversed because this resulted in: (1) a deprivation of his statutory right to a unanimous verdict; (2) a lack of adequate notice of the charges against which he had to defend; and (3) a denial of his right to protection against double jeopardy.
But key here is the procedural means by which McNelly is raising these allegations of trial error: in a third successive 60–1507 motion for postconviction relief filed in 2010, 8 years after his convictions were final. We pause to examine McNelly's two prior 60–1507 motions.
The district court summarily dismissed McNelly's first two 60–1507 proceedings (filed in 2003 and 2004). The first one, filed in 2003 by attorney Dennis Webb, was dismissed on both procedural and factual grounds including consideration of a motion for relief from judgment. More specifically, the trial court denied the motion primarily because it involved allegations of trial error— including the same allegations of error regarding jury unanimity that he raises in this 60–1507 proceeding—that were raised or could have been raised on direct appeal. In addition, the court found that McNelly failed to allege any exceptional circumstances that would excuse his failure to appeal the issues raised and further he made no factual allegations sufficient to support or warrant a reasonable belief that he was entitled the relief. The second 60–1507 motion, filed pro se in 2004, was dismissed by the same trial court judge because it raised the same issues raised in the first motion. McNelly hired attorney Grant Griffiths to represent him on appeal. Nine months after the notice of appeal was filed, McNelly's appeal was voluntarily dismissed in April 2005. According to subsequent filings by McNelly, this may have been because Griffiths believed his best chance for relief was through a motion to correct an illegal sentence.
In early 2006, McNelly separately pursued a pro se motion to correct an illegal sentence in his underlying criminal sentence, which was partially successful on appeal. By order in July 2007, this court granted the State's motion for summary disposition, vacated McNelly's sentence because the total sentence imposed was more than twice his base sentence, and remanded for resentencing. See K.S.A. 21–4720(b)(4) (setting forth this “double-double rule”).
During his resentencing on April 7, 2008, the district court rejected McNelly's attempts during allocution to again raise the jury unanimity issue now at issue in this appeal and other allegations of trial error. Because those issues were raised or could have been raised in McNelly's previous motions for new trial or in his direct appeal, a panel of this court found the district court's refusal to consider those issues was not an abuse of discretion. State v. McNelly, No. 101,221, 2010 WL 1253624, at *1–2 (Kan.App.2010) (unpublished opinion), rev. denied 290 Kan. 1100 (2010) ( McNelly II ).
McNelly apparently believed his resentencing, finalized in 2010, and the disbarment of his first 60–1507 attorney in 2007 triggered an opportunity to file this, his third 60–1507 motion. See In re Webb, 285 Kan. 130, 169 P.3d 336 (2007). McNelly raises four separate allegations in this action. The first three allegations concerned his trial counsel's (Blackwell's) ineffectiveness either prior to or during trial. In the fourth, McNelly argued his convictions should be set aside and he should receive a new trial as a result of a change in the law announced in the 2007 Voyles decision concerning jury unanimity. This appeal by McNelly follows the district court's summary denial of that motion, as well as its denials of McNelly's motions to reconsider that decision.
Analysis
To reiterate, the ultimate relief McNelly seeks in this appeal is reversal of his convictions because the State failed to elect which of several acts it relied upon to constitute each of the 10 charges against him and the trial court failed to instruct the jury to unanimously agree upon the specific act that constituted each count. He contends such relief is mandated because those failures resulted in: (1) a deprivation of his statutory right to unanimous verdicts; (2) a lack of adequate notice of the charges against which he had to defend; and (3) a denial of his right to protection against double jeopardy. Alternatively, he summarily contends that he is at least entitled to a preliminary hearing based upon his allegations of his trial counsel's ineffectiveness. The State urges us to affirm the district court's summary dismissal of McNelly's motion.
Standard of review
When, as here, the district court summarily denies a K.S.A. 60–1507 motion without appointing counsel or conducting a hearing, 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 any relief. Trotter v. State, 288 Kan. 112, 132, 200 P.3d 1236 (2009).
At least three independent procedural hurdles preclude consideration of the merits of McNelly's third 60–1507 motion.
Throughout various points of his brief, McNelly candidly acknowledges that he faces at least three procedural hurdles to obtaining the relief he seeks. But he suggests he can clear each of those hurdles and urges this court to reach the merits of his arguments.
1. McNelly's 60–1507 motion was untimely.
In dismissing McNelly's third 60–1507 motion, the district court relied in part on application of the 1–year statute of limitations for 60–1507 motions found at K.S.A. 60–1507(f)(1). Because McNelly's convictions were final prior to the enactment of this statutory deadline, McNelly had until June 30, 2004, to file a 60–1507 motion. See Hayes v. State, 34 Kan.App.2d 157, 158, 115 P.3d 162 (2005). His third 60–1507 motion that is at issue here was filed December 13, 2010.
McNelly suggests in his brief that this bar is inapplicable because he did raise the multiple acts upon which he hangs his hat in this appeal “in April 2004, prior to the expiration of the applicable statute of limitations.” Although he does not cite to the record, McNelly is apparently referring to factual statements made in a pro se brief he filed in an attempt to amend his first 60–1507 motion based on allegations that his prior 60–1507 counsel was ineffective. But McNelly's prior 60–1507 motions are not properly before this court. Nor are McNelly's allegations that his counsel in those 60–1507 proceedings (Webb and, on appeal, Griffiths) were ineffective properly before this court. Rather, this court's sole task is to review McNelly's third 60–1507 motion. The third motion includes only specific allegations of the ineffective assistance of his trial counsel (Blackwell). McNelly's general contention in his third 60–1507 motion that all of his other retained counsel up to the point of his filing of this third 60–1507 motion were ineffective is wholly insufficient to warrant further proceedings. See Trotter, 288 Kan. at 131–32 (Holding that to meet burden of proving his or her K.S.A. 60–1507 motion warrants evidentiary hearing, movant “ ‘must make more than conclusory contentions and must state an evidentiary basis in support of the claims or an evidentiary basis must appear in the record.’ [Citation omitted.]”).
But the court may extend the 1–year deadline “to prevent a manifest injustice.” K.S.A. 60–1507(f)(2). Our courts have interpreted the phrase “manifest injustice” 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). Furthermore, this court has indicated that to show manifest injustice, the movant must demonstrate “circumstances that prevented him [or her] from asserting his [or her] claim before the 1–year time limitation had expired.” Toney v. State, 39 Kan.App.2d 944, 947, 187 P.3d 122,rev. denied 287 Kan. 769 (2008). Even if this court were to agree with Judge Leben's suggestion in his concurring opinion in Vontress v. State, 45 Kan.App.2d 430, 433–34, 249 P.3d 452 (2011), rev. granted 292 Kan. 969 (2011), that this definition is too restrictive, it is still the movant's burden to establish manifest injustice by a preponderance of the evidence. See Supreme Court Rule 183(g) (2012 Kan. Ct. R. Annot. 274).
The district court correctly noted that McNelly did not allege in his third 60–1507 motion any circumstances that prevented him from timely asserting those claims. In fact, it could certainly be argued that he did timely assert those claims in his first 60–1507 motion, but he abandoned them when he voluntarily dismissed his appeal of the adverse district court ruling. In each of three subsequent motions for reconsideration of the denial of his third 60–1507 motion, McNelly made additional allegations beginning with a general allegation that he “retained four different attorneys and all were ineffective as to why [movant's] issues had not been presented in any court” and culminating in specific allegations against Webb due to his failure to adequately address McNelly's claims in his first 60–1507 motion. Each motion to reconsider was denied by the district court. McNelly cites no authority authorizing his attempts to bring new claims in a motion for reconsideration.
McNelly's only other argument in opposition to the 1–year statute of limitations bar of K.S.A. 60–1507(f)(1) is that the merits of the multiple-acts issue he raises “should constitute ‘manifest injustice.’ “ But for this court to disregard the 1–year deadline based solely on the allegation that it would be a manifest injustice not to address the merits of an allegation of trial error raised in an untimely 60–1507 motion would render that time limitation meaningless.
We can affirm the denial of McNelly's third 60–1507 motion on these grounds alone. Nonetheless, we will discuss the merits of the other procedural bars below.
2. McNelly's motion was successive.
McNelly's attempts to overcome the district court's dismissal of his motion on the alternative grounds that it is successive fail for the same reasons.
“[U]nder K.S.A. 60–1507(c), a court is not required to entertain successive motions on behalf of the same prisoner.” State v. Trotter, 296 Kan. 898, 904, 295 P.3d 1039 (2013). Supreme Court Rule 183(d) (2012 Kan. Ct. R. Annot. 275) further directs in this regard:
“A sentencing court may not consider a second or successive motion for relief by the same movant when:
(1) the ground for relief was determined adversely to the movant on a prior motion;
(2) the prior determination was on the merits; and
(3) justice would not be served by reaching the merits of the subsequent motion.”
Notably, “ ‘[a] [movant] in 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. at 904 (quoting Walker v. State, 216 Kan. 1, Syl. ¶ 2, 530 P.2d 1235 [1975] ).
Other than his allegations about his attempts to raise these issues before the 1–year deadline expired as already discussed above, McNelly alleges only two circumstances in an attempt to get around this successive-motion procedural bar. First, he suggests that his retained counsel (Griffiths) “ may have” been ineffective in voluntarily dismissing McNelly's appeal from the decisions denying his first two 60–1507 motions without McNelly's knowledge or approval. Second, he argues that Griffiths gave McNelly erroneous legal advice after the dismissal of that appeal concerning McNelly's desires to raise these issues pro se. McNelly then maintains that “[i]f Griffiths' performance lead [ sic ] to the forfeiture of an entire proceeding, then the existence of prejudice can be presumed.”
Once again, McNelly's allegations of ineffective assistance of counsel in prior 60–1507 proceedings are not properly before this court. McNelly made no specific claims against Griffiths' representation in this action.
We pause here to note that McNelly suggests that because pro se pleadings are to be construed liberally, even though his pleadings may not have provided specifics he was not required to plead sufficient evidence to sustain his burden of proof. To require him to meet such a burden prior to appointing counsel or conducting a hearing would render meaningless the language in K.S.A. 60–1507 that permits dismissal only if “the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.” K.S.A 60–1507(b); see also Supreme Court Rule 183(f) (providing same standard for determining whether hearing required).
But the cases relied upon by McNelly involve motions to dismiss for failure to state a claim in federal civil proceedings of a different nature than those at issue here. See, e.g., Hughes v. Rowe, 449 U.S. 5, 9–10, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980) (reversing dismissal of one of petitioner's pro se allegations in complaint for relief under 42 U.S.C. § 1983, but affirming dismissal of other grounds); Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972) (reversing dismissal of one of petitioner's pro se allegations in complaint for relief under Civil Rights Act of 1871, 17 Stat. 13, 42 U.S.C. § 1983, and 28 U.S.C. § 1343[3] ). Moreover, unlike the rules of federal procedure—which hold pleadings filed by pro se parties to less stringent standards than those drafted by lawyers, see Haines, 404 U.S. at 520—the courts of this state hold pro se litigants to the same standards as litigants represented by attorneys. See Guillory v. State, 285 Kan. 223, 228–29, 170 P.3d 403 (2007); Mangiaracina v. Gutierrez, 11 Kan.App.2d 594, 595–96, 730 P.2d 1109 (1986). Moreover, as this court has explained:
“Even though K.S.A. 60–1507 motions are civil actions, as a pleading, they make up a subset distinct from ordinary civil petitions. By statute and rule they must contain all perceived grounds for relief unlike the notice pleadings found in most civil petitions. Furthermore, these cases are collateral attacks upon completed criminal proceedings. That means ordinarily in these types of cases there is no pretrial discovery that creates the need to amend pleadings to include new grounds for relief as discovery often causes in other civil cases.” Ludlow, 37 Kan.App.2d at 683.
Accordingly, McNelly's failure to make specific claims in his third 60–1507 motion, other than a claim that his trial counsel (Blackwell) was ineffective, preclude him from raising alternative claims later in a motion to reconsider or subsequently on appeal.
3. The law upon which McNelly relies does not apply retroactively.
The only other circumstance that McNelly advances in support of this court's consideration of the merits of his third 60–1507 motion is that the decision in State v. Voyles, 284 Kan. 239, 160 P.3d 794 (2007)—upon which his entire argument in support of reversal of is convictions is based—is an exceptional circumstance justifying such consideration because it is an intervening change in the law that applies retroactively. We disagree.
In Voyles, our Supreme Court resolved the analytical framework for the consequences of unanimity-based error, i.e., the appellate standard of review of a district court's failure to give a unanimity instruction in a multiple-acts case, which our courts had struggled with previously. See 284 Kan. at 245–52. That framework involves three steps. First, a court must determine if the case “truly involves multiple acts.” 284 Kan. at 252. Second, the court must “determine if error has occurred, i.e., a failure to elect or instruct.” 284 Kan. at 252. Third, a court must determine if the error is reversible, i.e., whether a court's failure to give a unanimity instruction is clearly erroneous when, as here, no such instruction was requested. 284 Kan. at 252–53; see K.S.A. 22–3414(3); see also State v. Colston, 290 Kan. 952, 961, 235 P.3d 1234 (2010) (applying these three steps in analyzing a multiple-acts claim in sex offense case).
According to McNelly, Voyles constitutes an “ ‘exceptional circumstance’ “ warranting consideration of his second or successive 60–1507 motion. McNelly thus follows each step of this framework in arguing that while he was previously precluded from raising a multiple-act issue because of his unified defense based on caselaw in effect at the time of his direct appeal— i.e., State v. Hill, 271 Kan. 929, 26 P.3d 1267 (2001), which was disapproved of in Voyles—he is now entitled to a new trial under the framework announced in Voyles. We find this claim lacks merit for the following reasons.
First, our Supreme Court has succinctly set forth an appellate court's analysis of whether a change in law should be applied retroactively:
“First, the court must determine whether the movant has properly raised the issue in his or her collateral attack. Supreme Court Rule 183(c) limits the issues that may be raised in a collateral attack. [Citations omitted.] Second, the court determines whether the case was final when the new law was established. [Citations omitted.] If a case was final when the new law was established, the general rule is that the new law will not be applied to cases on collateral attack. [Citation omitted.] Third, if the case was final before the new law was established, the court must determine whether any exception to the general rule against retroactive application applies. [Citations omitted.].” Gaudina v. State, 278 Kan. 103, 105, 92 P.3d 574 (2004).
Applying these steps here, we agree with the State's contention that McNelly's argument for retroactive application of Voyles fails under the second step because his convictions were final more than 5 years before Voyles was decided. McNelly's suggestion that this is not the case because the mandate for his “second direct appeal” did not issue until August 4, 2010, misunderstands when a direct appeal is final. The “second direct appeal” to which he refers is McNelly II, 2010 WL 1253624, which was from the denial of his motion to correct an illegal sentence. McNelly has not cited any authority from which this court could conclude that an appeal of a denial of a motion to correct an illegal sentence—which can be filed at any time under K.S.A. 22–3504—somehow restarts the clock for purposes of determining whether a direct appeal is final under these circumstances. Simply put, McNelly II was not a direct appeal from McNelly's convictions.
Moreover, even if we were to assume that the Voyles analysis should be applied retroactively, McNelly is not entitled to relief. This is because the second step of the Voyles framework requires a showing that either the State did not elect the act supporting each charge or the district court did not give the jury a unanimity instruction. Voyles, 284 Kan. 239, Syl. ¶ 2. The latter showing can be verified with the record because the jury instructions appear in the record. No unanimity instruction was given.
The problem here is whether the State elected cannot be verified on the record now before this court. The State generally makes the required election in its closing argument to the jury. Accord Colston, 290 Kan. at 968–69 (holding State's focus in closing argument upon only one act to support rape count did not constitute sufficient election because “this is not the same as informing the jury that it could not consider evidence of other acts supporting the same charge or that it must agree on the same underlying criminal act”). The trial transcript in the record now before this court indicates that the closing arguments were not transcribed. McNelly acknowledges this omission but suggests it simply precludes this court from holding that the motion, files, and records conclusively establish he is not entitled to any relief. McNelly apparently fails to realize that, as the appellant, it is his burden to designate a record showing error, and without such a record, his claim fails. Accord Ludlow, 37 Kan.App.2d at 691.
For all of these reasons, we affirm the district court's judgment summarily dismissing McNelly's third 60–1507 motion.