Opinion
111,770.
06-26-2015
STATE of Kansas, Appellee, v. Dewey GAITHER, Appellant.
Carl F.A. Maughan, of Maughan Law Group LC, of Wichita, for appellant. Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Carl F.A. Maughan, of Maughan Law Group LC, of Wichita, for appellant.
Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before SCHROEDER, P.J., GREEN, J., and JOHNSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Dewey Gaither appeals from the trial court's summary dismissal of his motion entitled “Motion to amend in support of K.S.A. 60–1507 judgment rendered without jurisdiction.” In his motion, he challenges the adequacy of the complaint/information in his underlying criminal case, and he asserts the State never presented the jury with the “element of a 9mm semi-automatic” handgun. Gaither contends that the trial court erred in refusing to hold an evidentiary hearing to address his claims. We disagree. Accordingly, we affirm.
In 2004, Gaither was convicted of attempted first-degree premeditated murder, first-degree felony murder, aggravated robbery, aggravated kidnapping, and felony obstruction of official duty. Our Supreme Court affirmed Gaither's conviction in State v. Gaither, 283 Kan. 671, 156 P.3d 602 (2007).
After the denial of his direct appeal, Gaither filed a timely K.S .A. 60–1507 motion. After his motion was denied, he appealed to this court, arguing that his trial counsel was ineffective: (1) for failing to pursue a theory of defense-of-another to the attempted first-degree murder charge; and (2) for failing to object to the trial court's lack of factual findings regarding Gaither's motion for severance of the charges. This court affirmed the trial court's denial of Gaither's first K.S.A. 60–1507 motion in Gaither v. State, No. 103,080, 2011 WL 4440185 (Kan.App.2011) (unpublished opinion), rev. denied 294 Kan. 943 (2012).
Gaither filed a second K.S.A. 60–1507 motion alleging ineffective assistance of trial counsel, appellate counsel, and K.S.A. 60–1507 counsel. The trial court summarily denied the motion for lack of specificity. On appeal, this court held that Gaither did state his allegations with specificity, but issues remained as to whether the motion should be dismissed as untimely or successive. The case was remanded to the trial court with instructions to resolve those issues. Gaither v. State, No. 110,762, 2015 WL 423796 (Kan.App.2015) (upublished opinion).
While Gaither's most recent appeal was still pending, Gaither filed a motion entitled “Motion to amend in support of K.S.A. 60–1507 judgment rendered without jurisdiction.” The trial court summarily denied relief on Gaither's motion, noting that Gaither was attempting to renew arguments that had already been addressed by the courts and that the motion was “repetitive.” Gaither appeals the denial of this K.S.A. 60–1507 motion alleging that he was not given a chance to prove his claims at an evidentiary hearing.
In this appeal, Gaither argues that the trial court erred in ruling on his motion because the issues raised had not been previously addressed by the court. He contends that the trial court improperly denied him an opportunity to prove the substance of his motion at an evidentiary hearing.
As a preliminary matter, Gaither contends that the trial court did not make independent findings of fact and conclusions of law. Because of this, Gaither asks us to remand the matter to the trial court to make detailed written findings.
Whether the trial court's findings of fact and conclusions of law comply with Supreme Court Rule 183(j) (2014 Kan. Ct. R. Annot. 285) is a question of law which we review de novo. Robertson v. State, 288 Kan. 217, 232, 201 P.3d 691 (2009). Supreme Court Rule 165 (2014 Kan. Ct. R. Annot. 272) requires the trial court to make adequate findings and conclusions on the record of the court's decision on contested matters. But if a party contends that the findings and conclusions are inadequate, that party must object in order to preserve the issue for appeal. State v. Herbel, 296 Kan. 1101, 1119, 299 P.3d 292 (2013). Gaither did not object. Where no objection is made, we presume the trial court found all facts necessary to support its judgment and only consider a remand if the lack of specific findings precludes meaningful review. See State v. Vaughn, 288 Kan. 140, 143, 200 P.3d 446 (2009). The State contends that because Gaither's motion was successive and untimely, the merits of the issues were not properly before the court and did not need to be addressed in the trial court's findings. We agree.
Under K.S.A. 60–1507(c), the trial court is not required to hear successive motions for similar relief on behalf of the same prisoner. Further, K.S.A. 60–1507(f)(1) requires an action under this section to be brought within 1 year of the final order of the last appellate court in this state to exercise jurisdiction on a direct appeal or the termination of such appellate jurisdiction. In Gaither's case, he had until April 27, 2008, to file his 60–1507 motion. See Pabst v. State, 287 Kan. 1, 22, 192 P.3d 630 (2008). The 1–year time limitation may be extended only to prevent manifest injustice. K.S.A. 60–1507(f)(2). Gaither must demonstrate manifest injustice to extend the 1–year time limitation.
In the present context manifest injustice means “ ‘ “obviously unfair” ‘ “ or “ ‘ “shocking to the conscience.” ‘ “ State v. Holt, 298 Kan. 469, 480, 313 P.3d 826 (2013) (quoting State v. Kelly, 291 Kan. 868, 873, 248 P.3d 1282 [2011] [quoting Ludlow v. State, 37 Kan.App.2d 676, 686, 157 P.3d 631 (2007) ] ). In considering such a claim, this court must consider, along with any other relevant factors,
“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.” Vontress v. State, 299 Kan. 607, 616, 325 P.3d 1114 (2014).
Gaither provides no explanation for his late filing, so he has failed to show manifest injustice that would excuse the late filing of his K.S.A. 60–1507 motion.
As stated earlier, Gaither entitled his pleading as follows; “Motion to amend in support of K.S.A. 60–1507 judgment rendered without jurisdiction.” “An amendment to a motion for relief under K.S.A. 60–1507 that asserts a new ground for relief which is supported by facts that differ in both time and type from those grounds set forth in the original motion does not relate back to the date of the original motion, so as to circumvent the 1–year limitation of K.S.A. 60–1507(f)(1).” Pabst v. State, 287 Kan. 1, Syl. ¶ 7, 192 P.3d 630 (2008). If an amendment to a K.S.A. 60–1507 motion is permitted, the timeliness of amended claims is subject to the Pabst time-and-type test enunciated in K.S.A. 60–215(c), i.e., relation back is permitted only if the new claims arose “out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading.” Thompson v. State, 293 Kan. 704, 714, 270 P.3d 1089 (2011).
Gaither concedes in his brief that under his motion to amend, he is asserting new grounds for relief. In setting out his new grounds in his brief, Gaither states as follows:
“[A] review of the record show[s] that the defective complaint issue and the claimed jurisdictional defect were not previously raised before the trial court nor the court of appeals. No motion to dismiss was filed alleging a defect in the complaint nor alleging a lack of subject matter jurisdiction during the original trial proceeding.... In addition, a review of the issues raised in on direct appeal and in the briefs of the prior 60–1507 matter show no arguments alleging a defect in the complaint or a lack of jurisdiction.”
Because Gaither's motion to amend and his first and second motions were not related to the same general conduct, transaction, and occurrence which involved Gaither's earlier claims of ineffective assistance of trial, appellate, and K.S.A. 60–1507 counsel, his motion to amend and new grounds for relief are barred under K.S.A. 60–1507(f)(1).
The 1–year statute of limitations as provided in K.S.A. 60–1507(f)(1) has long since passed. Moreover, Gaither has failed to establish manifest injustice under K.S.A. 60–1507(f)(2) to allow this appeal to proceed out of time. We affirm the trial court's summary dismissal of Gaither's third K.S.A. 60–1507 motion as an abuse of remedy.
Affirmed.