Opinion
No. 105,823.
2012-06-15
STATE of Kansas, Appellee, v. Mark FRALEY, Appellant.
Appeal from Sedgwick District Court; Clark V. Owens, II, Judge. Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellant. Julie A. Koon, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Clark V. Owens, II, Judge.
Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellant. Julie A. Koon, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before ATCHESON, P.J., MARQUARDT, J., and BRAZIL, S.J.
MEMORANDUM OPINION
PER CURIAM.
More than 8 years after his conviction for rape and aggravated burglary in Sedgwick County District Court, Defendant Mark A. Fraley filed a motion in his criminal case for funds to hire an investigator to find evidence that he was not guilty of the offenses. The district court denied the request because the criminal case had been closed for years. We find no error and affirm.
In May 2002, a jury convicted Fraley of breaking into the home of his wife and raping her. The couple was separated at that time and has since divorced. Fraley received a sentence of 272 months in prison. He appealed the convictions, and this court affirmed. State v. Fraley, No. 89,392 unpublished opinion filed June 25, 2004, rev, denied 278 Kan. 849 (2004). Fraley then filed a motion for relief under K.S.A. 60–1507. The district court summarily denied the motion. This court reversed and remanded for an evidentiary hearing on whether Fraley's trial counsel had been ineffective. Fraley v. State, No. 97,823, 2008 WL 3367566 (Kan.App.2008) (unpublished opinion). After conducting an evidentiary hearing, the district court again denied the motion. And Fraley again appealed. This court affirmed the denial of the 60–1507 motion last year. Fraley v. State, No. 104,227, 2011 WL 3795474 (Kan.App.2011) (unpublished opinion), rev. denied February 3, 2012.
On October 14, 2010, while the second appeal of his 60–1507 motion was pending, Fraley filed his request in the criminal case for funds to hire an investigator. Fraley contends his former wife falsified the rape charge against him in an effort to obtain real property they jointly owned and she then forged a deed to the land. He wanted an investigator to look into those matters and gather evidence that would support his allegations of dishonesty against his former wife.
Fraley cited and relied on K.S.A. 22–4508, permitting a district court to allow a lawyer appointed to represent an indigent criminal defendant to retain the services of an investigator or an expert upon a showing of need. The investigator's fees would then be paid as part of the cost of the indigent's defense. We put to one side the question of whether Fraley could make such a request, as opposed to a lawyer appointed for him, especially since he had not been authorized to represent himself in the criminal case. Regardless, the district court properly denied the request because the criminal case has long been closed. The district court had no basis or authority to reopen the criminal case for the sole purpose of approving funds for an investigator. Fraley cites no legal support for the request. And we discern none. The district court made no mistake in denying the motion.
On appeal, Fraley argues that the request for an investigator should have been construed as a motion for relief under K.S.A. 60–1507. We find that suggestion to have no legal traction for several reasons. First, the motion for the investigator plainly and repeatedly cites K.S.A. 22–4508 and the relief sought is court approval for the hiring of an investigator—not a substantive ruling on legal issues associated with the criminal convictions. The motion cannot be refashioned into one under K.S.A. 60–1507. As Fraley notes on appeal, courts are to liberally construe papers nonlawyers representing themselves file. But a court is to look at the relief the filer seeks and treat the papers as the sort of motion or other request necessary to obtain that relief rather than as what the filer may have mistakenly called the papers. Here, the request and relief are of the type covered in K.S.A. 22–4508 for active criminal cases.
Second, even if this court were to treat the motion for the services of an investigator as one for relief under K.S.A. 60–1507, it would fail. When the motion came before the district court, Fraley's original 60–1507 motion was still on appeal, and he was still represented by counsel on that motion. Accordingly, any request for funds to hire an investigator should have come from his appointed lawyer. Fraley's own motion for the investigator would have been supplemental and superfluous. The district court, therefore, would have acted within its discretion to deny relief on that basis. If the request for an investigator were treated as an independent motion under 60–1507, it would have been both untimely and impermissibly successive. See K.S.A. 60–1507(c) (court need not consider “a second or successive motion”); (f) (motion must be filed within 1 year of final disposition of any direct review of conviction).
Fraley's motion for funds to hire an investigator, however it might be construed, was without legal foundation. The district court properly declined to grant it.
Affirmed.