Opinion
No. 111,230.
2015-03-13
Edward NEER, Appellant, v. STATE of Kansas, Appellee.
Appeal from Sedgwick District Court; James R. Fleetwood and Anthony J. Powell, judges.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 and Anthony J. Powell, judges.
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 HILL, P.J., STANDRIDGE and ATCHESON, JJ.
MEMORANDUM OPINION
PER CURIAM.
Edward Neer appeals the district court's denial of his untimely habeas corpus motion filed under K.S.A. 60–1507. He asks for an evidentiary hearing to examine the circumstances of an affidavit supposedly from one of his victims recanting her testimony at trial and now claiming Neer's innocence. Because Neer's motion deserves an evidentiary hearing, we reverse and remand for further proceedings.
We deal with a 1986 conviction.
A summary of the history of Neer's cases provides a context for our review. In 1986, a jury found Neer guilty in a consolidated trial of committing aggravated criminal sodomy on T.A. and committing aggravated criminal sodomy and indecent liberties with a 5–year–old child, E.T. Neer's appeal here only concerns his convictions for his two crimes against E.T.
Neer is serving a 30–years–to–life sentence. The Kansas Supreme Court affirmed Neer's convictions and sentence in State v. Neer, No. 60,418, an unpublished opinion filed on October 30, 1987.
Over the years, Neer has filed a motion to modify his sentence. This was denied, appealed, and our Supreme Court affirmed the denial in State v. Neer, 247 Kan. 137, 143–44, 795 P.2d 362 (1990). He has also filed two motions to correct an illegal sentence. Those were denied, then appealed to this court, and the denials were affirmed in State v. Neer, No. 107,890, 2013 WL 3791646, at *3–4 (Kan.App.2013) (unpublished opinion), rev. denied 298 Kan. –––– (February 12, 2014).
In the interim, on August 8, 2012, Neer filed the K.S.A. 60–1507 motion that gives rise to this appeal. Neer claimed an alleged error in the reasonable doubt jury instruction and his corresponding claim that his trial and appellate counsel were ineffective for not challenging the erroneous jury instruction entitled him to a new trial. Then, on August 20, 2012, Neer filed a pro se motion to amend claiming, in part, to have newly discovered evidence of his innocence in the case involving E.T. that entitled him to a new trial. For support, Neer submitted a “Sworn Affidavit” dated January 15, 2011, signed by “Elizabeth R. Tally.” In the affidavit, Tally claimed to be the victim E.T. from the 1986 trial and averred that Neer was innocent of the crimes against her. The statement also claimed that the individual sexually abusing her had been her uncle Charles Anderson, not Neer, and that Anderson was convicted in a separate case for sexually abusing her.
The district court appointed counsel to represent Neer on his K.S .A. 60–1507 motion and motion to amend. The transcript of the hearing reflects that the district judge first inquired about the affidavit, stating:
“[W]hat do I do with this affidavit? I mean, we have the complaining witness—I'm disturbed by how long it's taken this victim to come forward, but how can I ignore that? I mean, what do I do with that? This is the complaining witness. She's basically recanting her testimony. That would suggest to me, certainly on its face, it might be manifest injustice if it were true that this—if this testimony were to occur, that could undo his conviction.”
The district court then found that Neer's K.S.A. 60–1507 motion was untimely and the affidavit attached to his motion was recanted evidence, not newly discovered evidence. In disagreeing with Neer that an evidentiary hearing was necessary, the district court ruled that Neer had not shown manifest injustice despite the presumption for purposes of Neer's K.S.A. 60–1507 motion that the affidavit was true. The district court stated that the credibility of the affidavit was undermined by Neer's failure to bring the affidavit to the court's attention despite purportedly having the opportunity to do so. The court also questioned why Neer had attached the affidavit to the motion to amend instead of his original K.S.A. 60–1507 motion without any explanation of when he received the affidavit. The district court seemed bothered by “the heavy prejudice to the State if we were to go back and try to relitigate this issue, because we're talking about a case that's nearly—it's 25 years old. How do you redo that case?” Ultimately, the district court denied Neer's K.S.A. 60–1507 motion, ruling that its decision rested on its finding that there was no manifest injustice and Neer's claim was time-barred.
Neer filed a pro se motion for reconsideration. Citing Bullock v. State, No. 94,717, 2006 WL 1816400 (Kan.App.2006) (unpublished decision), which held a K.S.A. 60–1507 movant was entitled to an evidentiary hearing to assess the credibility of a recantation of a State's complaining witness in an affidavit attached to an untimely and successive K.S.A. 60–1507 motion—Neer argued it would be manifest injustice not to hold an evidentiary hearing on the recanted testimony. The district court summarily dismissed the motion to reconsider after noting that Bullock was only persuasive authority since it was not a published opinion. See Supreme Court Rule 7.04(g)(2)(A) and (B) (2014 Kan. Ct. R. Annot. 62 .)
How we approach this appeal.
Typically, 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. See K.S.A. 60–1507(f)(l). This 1–year time limitation became effective July 1, 2003. See L.2003, ch. 65, sec. 1. However, this time limitation is given prospective application only. So, if a movant's direct criminal proceeding was terminated prior to July 1, 2003, the 1–year time limitation begins on the effective date of the amendment rather than the date the movant's direct criminal proceedings ended. See Hays v. State, 34 Kan.App.2d 157, Syl. ¶ 3, 115 P.3d 162 (2005).
Because the final order in Neer's direct appeal was issued in 1987, Neer was required to file this K.S.A. 60–1507 motion on or before June 30, 2004. Neer's present K.S.A. 60–1507 motion was filed in August 2012, more than 8 years after expiration of the limitation period. Neer concedes his motion was untimely.
However, the 1–year time limitation may be extended to prevent manifest injustice. See K.S.A. 60–1507(f)(2). Manifest injustice has been interpreted in other contexts to mean obviously unfair or shocking to the conscience. Ludlow v. State, 37 Kan.App.2d 676, 686, 157 P.3d 631 (2007). The burden is on the movant in a K.S .A. 60–1507 action 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 State v. Kelly, 291 Kan. 868, 873, 248 P.3d 1282 [2011] ).
The Kansas Supreme Court recently clarified the appropriate legal standards to be employed when determining whether manifest injustice mandates an extension of time for a movant's untimely K.S.A. 60–1507 motion. In Vontress v. State, 299 Kan. 607, 608, 325 P.3d 1114 (2014), our Supreme Court stated that a movant's failure to provide the reasons for the delay does not automatically exclude the late-filed motion; rather, manifest injustice must be determined based on the totality of the circumstances in each case. Our Supreme Court provided a set of nonexclusive factors for courts to consider when conducting a totality of the circumstances manifest injustice inquiry under K.S.A. 60–1507(f)(2), including
“whether (1) the movant provides persuasive reasons or circumstances that prevented him or her from filing the 60–1507 motion within the 1–year time limitation; (2) the merits of the movant's claim raise substantial issues of law or fact deserving of the district court's consideration; and (3) the movant sets forth a colorable claim of actual innocence, i.e., factual, not legal, innocence.” 299 Kan. at 616.
We note that the State points out that Vontress was not decided until after the district court denied Neer's K.S.A. 60–1507 motion. However, because Neer's appeal filed in April 2013 was pending at the time Vontress was released in May 2014, the Vontress decision applies retroactively to the instant case. See State v. Nguyen, 281 Kan. 702, 715, 133 P.3d 1259 (2006).
Finally, when the district court denies relief under K.S.A. 60–1507 based solely upon counsel's legal argument at a nonevidentiary hearing and the court's review of the files and records of the case, an appellate court is in as good a position as the district court to consider the merits of essentially a pure legal question resting on undisputed facts. Thus, appellate review is de novo. Barr v. State, 287 Kan. 190, 196, 196 P.3d 357 (2008).
An evidentiary hearing is necessary in this case.
First, Neer argues that the district court erred at the nonevidentiary hearing by not applying the new procedural rule established in Vontress for reviewing a movant's claim of manifest injustice. Next, Neer claims in a correlated argument that he showed sufficient manifest injustice under Vontress to bring an untimely action under K.S.A. 60–1507(f)(1). Then, arguing in the alternative, Neer claims he was not required to show manifest injustice when seeking an evidentiary hearing on a claim of newly discovered evidence as a basis for a new trial. Finally, Neer also claims his K.S.A. 60–1507 counsel was ineffective for failing to both investigate and advocate the veracity of the affidavit and for refusing to file a motion to reconsider after the district court denied his K.S.A. 60–1507 motion. We note that Neer does not brief the erroneous jury instruction allegation in his K.S.A. 60–1507 motion and the corresponding claim of ineffective assistance of counsel. An issue not briefed by the appellant is deemed waived and abandoned. State v. Boleyn, 297 Kan. 610, 633, 303 P.3d 680 (2013). We deem this issue concerning the jury instruction abandoned.
Upon receiving a K.S.A. 60–1507 motion, a district court has three options. First, the district 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 that the motion raises a potentially substantial issue or issues of fact, supported by the files and record, and hold a nonevidentiary preliminary hearing to determine whether a substantial issue is presented requiring a full evidentiary hearing. Third, the district court may determine from the motion, files, record, or nonevidentiary preliminary hearing that a substantial issue or issues have been raised, requiring a full evidentiary hearing. K.S.A. 60–1507(b); Fischer v. State, 296 Kan. 808, 822–23, 295 P.3d 560 (2013).
Also, it is well-established law that before a new trial is granted based on a prosecution witness' recantation of his or her testimony, the district court must determine the truth of the recantation as well as the weight that should be given to it. State v. Watie, Heard and Heard, 223 Kan. 337, 347, 574 P.2d 1368 (1978). The district court is required to grant a new trial only when satisfied the recantation is true and material. State v.. McKinney, 272 Kan. 331, 338, 33 P.3d 234 (2001), overruled on other grounds by State v. Davis, 283 Kan. 569, 158 P.3d 317 (2007). Although newly discovered evidence consisting of a recanting witness is generally looked upon unfavorably, a district court cannot make such a credibility determination without an evidentiary hearing. See State v. Foy, 224 Kan. 558, 569, 582 P.2d 281 (1978); State v. Theus, 207 Kan. 571, 580, 485 P.2d 1327 (1971); Abel v. State, No. 103,381, 2011 WL 3795240, at *5 (Kan.App.2011) (unpublished opinion), rev. denied 293 Kan. 1105 (2012). And as this court noted in Bullock, credibility cannot generally be determined through cold affidavit testimony. 2006 WL 1816400, at *2.
To establish the right to a new trial based upon newly discovered evidence, it must be of such materiality that it would be likely to produce a different result upon retrial. State v. Backus, 295 Kan. 1003, 1011, 287 P.3d 894 (2012). And while it certainly can be argued that “recantation by the complaining witness or victim would generally fulfill this materiality requirement,” we are only faced with the narrow question whether the district court abused its discretion in not granting an evidentiary hearing. Bullock, 2006 WL 1816400, at *2; see Backus, 295 Kan. at 1011.
When reviewing whether the district court should have held an evidentiary hearing before denying a movant's request for a new trial based on newly discovered evidence asserted in a K.S.A. 60–1507 motion, appellate courts must consider: (1) whether the motion alleges facts that do not appear in the original record and which, if true, would entitle the movant to relief; (2) whether the motion sufficiently identifies available witnesses whose testimony would support the allegedly new facts and demonstrate that the movant should receive a new trial; and (3) whether the movant's newly discovered evidence could have been produced at trial through reasonable diligence. Moncla v. State, 285 Kan. 826, 840, 176 P.3d 954 (2008).
The material part of the affidavit attached to the motion to amend states:
“1. That I am the alleged victim in case no. 86–cr–1462.
“2. That the allegations against Edward Neer in case no. 86–cr–1462 ... are false and untrue.
“3. That Edward Neer is innocent of all charges in case no. 86–cr–1462.
“4. That I was sexually abused from the age 3–13 by my uncle Charles Anderson.
“5. That Charles Anderson was convicted of sexually abusing me in case no. 95–cr–162.
“6. That the Sedgwick County District Attornies [ sic ] Office has explicit photos of me depicting said sexual abuse by Charles Anderson, me being the age 3–13 in said photos.
“7. That it was Charles Anderson who was sexually abusing me not Edward Neer.”
We first take issue with the State's suggestion that we should not refer to the document signed by Tally as an affidavit. In State v. Knight, 219 Kan. 863, 867, 549 P.2d 1397 (1976), the Kansas Supreme Court stated that an affidavit is a written statement, under oath, sworn to or affirmed by the person making it before some person who has authority to administer an oath or affirmation. It is essential to an affidavit's validity that the affiant swears to the contents of the document or it is not an affidavit.
The State argues that this court in Clark v. State, No. 109,982, 2014 WL 4916462, at *2 (Kan.App.2014) (unpublished opinion), petition for rev. filed October 22, 2014, found that a similar written statement was not an affidavit. In Clark, a panel of this court concluded that a handwritten statement by a coconspirator to aggravated robbery claiming he and the victim had framed Clark was not an affidavit. 2014 WL 4916462, at *2. In concluding the document had little, if any, evidentiary worth, the panel noted:
“Barnes neither signed the document after being sworn by a notary public or someone else with the authority to administer oaths nor did he sign it under penalty of perjury. See K.S.A. 53–601. The document contains a notary public's acknowledgment that Barnes was the person signing the statement, but nothing on the face of the acknowledged statement indicates Barnes swore to its truth.... The solemnity of an oath and the possibility of criminal prosecution for knowingly making a false representation lend some trustworthiness to a written statement. Those checks are missing.” 2014 WL 4916462, at *2.
The alleged affidavit in Clark is clearly distinguishable from the affidavit submitted by Tally. Before making her statement, the affidavit attests to Tally being “sworn upon [her] oath.” More importantly, unlike Barnes in Clark, Tally swore to its truth. The affidavit, just before Tally's signature, contains the following language: “I, Elizabeth R. Tally, being of lawful age and being sworn upon my oath does hereby depose and swear that the foregoing affidavit is true and correct.” (Emphasis added.) The affidavit also contains the following language at the end of the affidavit: “Subscribed and sworn to before me” with the date, followed by a notary public signature and seal.
Granted, had Tally also signed the affidavit under penalty of perjury as required under K.S.A. 53–601 it would provide, as Clark suggests, additional trustworthiness to Tally's statement. However, this failure still does not diminish that under Knight we have an affidavit before us. Moreover, the panel in Clark found the alleged affidavit, which in essence called for Barnes to implicate himself and face prosecution for a phony robbery, was implausible on its face. 2014 WL 4916462, at *2. Here, we appear to have a complete recantation of the crimes from the victim herself. Moreover, the affidavit has an air of credibility given that Anderson was convicted of numerous crimes against E.T.12 counts of sexual exploitation of a child, 4 counts of indecent liberties with a child, and 1 count of attempted rape. See State v. Anderson, No. 74,888, unpublished opinion filed February 7, 1997 (Kan.App.) rev. denied 261 Kan. 1086 (1997). This brings us to our three-part inquiry under Moncla.
When considering the first part of the Moncla inquiry, the affidavit clearly alleges facts that, if true, would contradict E.T.'s testimony at trial and support Neer's claim of innocence. As for the second step of the inquiry, Neer does not indicate Tally's availability to testify to the statements in her affidavit. However, the reluctance of a witness to testify does not foreclose Neer's right to an evidentiary hearing given the ability of the district court to compel Tally's attendance and testimony. See Moncla, 285 Kan. at 840–41. Moreover, if Tally's testimony at an evidentiary hearing supports the validity of the statements in her affidavit that Neer is innocent, Neer could arguably demonstrate he should receive a new trial. Finally, in considering the third step of the inquiry, given that we are dealing with a recantation and the record indicates Tally made the affidavit in January 2011, this evidence was not available for the trial. This court therefore concludes that under the Moncla three-part inquiry, Neer was entitled to an evidentiary hearing.
Finally, we point out that the district court's offhanded concern of the “heavy prejudice” to the State if it had to relitigate a case over 20 years old as a basis in denying Neer's motion has no part in either a Moncla inquiry or the totality of the circumstances analysis under Vontress. The applicability of the doctrine of laches to Neer's claim of newly discovered evidence was not before the district court. See Woodberry v. State, 33 Kan.App.2d 171, 175–77, 101 P.3d 727, rev. denied 278 Kan. 853 (2004). In Woodberry, the doctrine of laches is available as a defense in a K.S.A. 60–1507 proceeding if the movant's delay is unreasonable, if the facts on which the issue was based had been known to the movant for many years, and if there is evidence of prejudice to the State. And while the district court did not address Vontress, we note that our Supreme Court agreed that a prisoner who can show actual innocence would suffer a manifest injustice to extend the time limit regardless of the reasons, if any, for the delay in filing the 60–1507 motion. 299 Kan. at 616.
The district court abused its discretion in failing to conduct an evidentiary hearing. The matter is reversed and remanded for an evidentiary hearing to assess the credibility of Tally's recantation and its materiality to Neer's convictions in this case.
Reversed and remanded with directions consistent with this opinion.