Opinion
No. 107,310.
2012-11-9
STATE of Kansas, Appellee, v. Dale E. McCORMICK, Appellant.
Appeal from Douglas District Court; Paula B. Martin, Judge. Edward G. Collister, Jr., of Collister & Kampschroeder, of Lawrence, for appellant. Patrick J. Hurley, assistant district attorney, Charles E. Branson, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Douglas District Court; Paula B. Martin, Judge.
Edward G. Collister, Jr., of Collister & Kampschroeder, of Lawrence, for appellant. Patrick J. Hurley, assistant district attorney, Charles E. Branson, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, P.J., PIERRON and BRUNS, JJ.
MEMORANDUM OPINION
PER CURIAM.
Dale E. McCormick appeals from the summary denial of what the district court construed as his second K.S.A. 60–1507 motion. In the motion, McCormick argued that he had not sufficiently waived his right to appellate counsel on direct appeal from his 2001 convictions for possession of marijuana and obstruction of an official duty. Because we find McCormick's argument lacks merit, and because he failed to raise the issue presented in his current motion on direct appeal or in his first K.S.A. 60–1507 motion, we affirm the district court's decision.
Facts
On January 10, 2001, McCormick was convicted of possession of marijuana, second offense, and obstruction of official duty. On February 14, 2001, McCormick received a sentence of 12 months' probation with an underlying 11–month prison sentence. McCormick timely appealed his convictions to this court, and the appellate defenders' office was appointed to represent him. But on March 7, 2001, McCormick filed a “Notice of Continued Pro Se Status” in this court. On the same day, McCormick also submitted a letter to the district court stating in part:
“I do not want to be appointed counsel from the appellate defender's office. I want to and will represent myself on appeal. This letter can be considered a knowing and intelligent waiver of my right to be appointed counsel from the appellate defender's office and of any statutory right to be appointed counsel.
....
“I recognize this is probably a unique situation, but I am unyielding in my position.”
On October 9, 2001, the appellate defender filed a motion to withdraw in this court, stating that McCormick had “ ‘fired’ the appellate defender.” On October 25, 2001, this court granted the appellate defender's motion to withdraw. In doing so, this court stated:
“The appellant's brief is due on or before November 26, 2001. If the appellant argues pro se, the appellant will be subject to the same rules as an appellant represented by counsel. If the appellant obtains new counsel, that counsel should file an entry of appearance with the Court of Appeals.”
Thereafter, McCormick represented himself on direct appeal.
On November 5, 2001, McCormick filed a motion titled: “Motion to Order the Appellate Record Provided to Appellant; and Motion for Extension of Time to File Appellant's Brief Due to Exceptional Circumstances.” In a footnote to that motion, McCormick wrote:
“Appellant notes that although he ‘fired’ the appellate defender, he did not and does not waive his rights under the Kansas and United States Constitution to effective counsel in this case.... Appellant also notes that he denies instructing the appellate defender's office that he did not want to be represented by counsel herein. Appellant does concede, however, that he instructed the appellate defender's office that he either wanted to actively participate in his case or that he wanted to file a ‘pro se’ brief on his own behalf (in addition to the brief filed by the appellate defender's office on his behalf), in order to insure [ sic ] that all meritorious issues are properly raised, as is his right, and as common-sense would seem to dictate.”
McCormick's direct appeal was unsuccessful, and his convictions were affirmed by this court. See State v. McCormick, No. 86,774, unpublished opinion filed December 20, 2002 (Kan.App.), rev. denied 275 Kan. 967, cert. denied540 U.S. 892 (2003) ( McCormick I ). Subsequently, McCormick filed a pro se petition for review, which was denied by the Kansas Supreme Court on March 24, 2003. He also filed a petition for writ of certiorari to the United States Supreme Court, which was denied on October 6, 2003.
In his initial K.S.A. 60–1507 motion filed February 24, 2004, McCormick had argued that the trial court failed to conduct a detailed inquiry into whether he knowingly and intelligently waived his right to be represented by counsel. On September 2, 2005, this court affirmed the district court's summary denial of McCormick's K.S.A. 60–1507 motion. See State v. McCormick, No. 92,497, 2005 WL 2138738 (Kan.App.2005) (unpublished opinion), rev. denied 280 Kan. 988 (2005) ( McCormick II ).
McCormick later filed a federal court petition for writ of habeas corpus under 28 U.S.C. § 2254 (2006), which was denied on July 6, 2007. McCormick v. Kline, No. 06–3098, 2007 WL 2010857 (D.Kan.2007) (unpublished opinion). ( McCormick III ). In the federal habeas corpus case, McCormick argued that he had not validly waived his right to counsel on direct appeal. 2007 WL 2010857, at *2. The federal court did not address the merits of McCormick's argument because it found that it did not have jurisdiction over the motion since McCormick was not in custody when he filed his habeas petition. 2007 WL 2010857, at *7.
On August 30, 2010, McCormick filed the current motion, which was captioned as a “Motion for a Writ of Error Coram Nobis; or to Set Aside, Vacate, or Modify the Judgment pursuant to K.S.A. 60–260, 60–1507, or 60–2606.” In the motion, McCormick argued that he was denied his Sixth Amendment right to counsel on direct appeal. As a result, McCormick asked that his convictions be vacated or that he be granted a new direct appeal with the assistance of counsel.
The district court treated the motion as a K.S.A. 60–1507 motion and appointed counsel to represent McCormick. In response to the motion, the State argued that all of McCormick's claims were barred by res judicata. The State also argued that McCormick's motion was barred by K.S.A. 60–1507(c) and (f) because the motion was successive and the motion was untimely. Ultimately, the district court determined that an evidentiary hearing was not warranted and summarily denied McCormick's motion. In doing so, the district court concluded that “McCormick had clearly stated his desire to represent himself [on direct appeal] and acknowledged he was making a knowing and intelligent waiver of his right to counsel.” After a motion to reconsider was denied by the district court, McCormick timely filed this appeal.
Analysis
On appeal, McCormick contends the district court erred in summarily denying his current motion. At the outset, we note that the district court appropriately treated the motion as a K.S.A. 60–1507 motion. See State v. Osborne, No. 92,763, 2005 WL 2254482, at *2 (Kan.App.2005) (unpublished opinion) (finding district court properly construed motion as a K.S.A. 60–1507 motion but erred in dismissing motion simply because it was filed with criminal case and not as an independent civil action). When a district court summarily denies a K.S.A. 60–1507 motion, we conduct a de novo review to determine whether the motion, files, and records of the case conclusively establish that the movant is not entitled to relief. See Trotter v. State, 288 Kan. 112, 132, 200 P.3d 1236 (2009).
McCormick argues that the actions he took during his direct appeal were not sufficient to constitute a valid waiver of his right to counsel. He further argues that even if he knowingly and voluntarily waived his right to counsel on March 7, 2001, “[t]he district court was required to find that the defendant still knowingly and voluntarily intended to waive counsel several months later ... when the [appellate defender] withdrew.”
The Sixth Amendment to the United States Constitution does not apply to appeals. See Martinez v. Court of Appeal of Cal., Fourth Appellate Dist., 528 U.S. 152, 160–61, 120 S.Ct. 684, 145 L.Ed.2d 597 (2000). As such, a determination that McCormick's waiver of his right to counsel by the district court—which was found to be valid in his appeal from the denial of his first K.S.A. 60–1507 petition—was sufficient for appellate purposes as well. See McCormick II, 2005 WL 2138738, at *1; see also Commonwealth v. Thier, 354 Pa.Super. 7, 11, 510 A.2d 1251 (1986) (“Since appellant was fully aware of the consequences of his self-representation, we find that appellant voluntarily and intelligently elected to represent himself at trial and on appeal, and that he had the right to do so.”).
Here, McCormick made it abundantly clear that he wanted to represent himself on appeal. He also expressly represented that he was knowingly and intelligently waiving his right to appointed counsel. Furthermore, this court informed McCormick that if he continued to act pro se, he would be subject to the same rules as if he was represented by counsel. Nevertheless, McCormick continued to represent himself. Accordingly, we conclude that McCormick's current motion fails on its merits.
Additionally, the record reflects that McCormick failed to raise the issue presented in either his direct appeal or in his first K.S.A. 60–1507 motion. Clearly, a “court is not required to entertain a second or successive motion for similar relief on behalf of the same prisoner. K.S.A. 60–1507(c); Supreme Court Rule 183(d) [2011 Kan. Ct. R. Annot. 259.]” State v. Barnes, 37 Kan.App.2d 136, 139, 149 P.3d 543 (2007). Once McCormick had fully pursued his direct appeal and his first K.S.A. 60–1507 motion, the judgments in those cases were res judicata as to all issues that were raised or could have been presented. See State v. Neer, 247 Kan. 137, 140–41, 795 P.2d 362 (1990). Furthermore, McCormick does not assert any exceptional circumstances that would excuse his failure to raise this in his initial K.S.A. 60–1507 motion. See State v. Swisher, 281 Kan. 447, 450, 132 P.3d 1274 (2006).
We therefore conclude that the district court did not commit reversible error in summarily denying McCormick's motion.
Affirmed.