Opinion
111,857.
08-14-2015
STATE of Kansas, Appellee, v. Ricardo F. RIVERA, Appellant.
Christina M. Kerls, of Kansas Appellate Defender Office, for appellant. Matthew W. Ricke, county attorney, and Derek Schmidt, attorney general, for appellee.
Christina M. Kerls, of Kansas Appellate Defender Office, for appellant.
Matthew W. Ricke, county attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., McANANY and ATCHESON, JJ.
MEMORANDUM OPINION
PER CURIAM.
Ricardo Rivera appeals the district court's denial of his motion for postconviction DNA testing. On appeal, he asserts that the district court erred by denying the motion. He also asserts that the district court violated his due process rights by holding a hearing on his motion at which the State was represented but he was neither represented nor present. For the reasons stated below, we affirm the district court.
Rivera was convicted by a jury on two counts of rape in 2008 and was sentenced to 330 months' imprisonment and lifetime post release supervision. The victim, S.L., had known Rivera for a year-and-a-half, and she testified that Rivera raped her twice on the same morning—once on the hood of his car and once in her bed. Rivera's convictions were affirmed in State v. Rivera, 42 Kan.App.2d 1005, 219 P.3d 1231 (2009), rev. denied 290 Kan. 1102 (2010).
Rivera then filed a pro se motion for postconviction DNA testing pursuant to K.S.A.2014 Supp. 21–2512, asserting that DNA testing would support his claim of actual innocence because the evidence at trial indicated that he had not worn a condom yet none of his semen was found at the crime scenes. He also sought appointment of counsel to represent him on the motion.
In response, the State conceded that Rivera was in the class of convicted persons entitled to file a petition for DNA testing, but it asserted that Rivera had not shown that the testing might produce noncumulative, exculpatory evidence relevant to his claim that he was wrongly convicted.
The State noted that there was no question of Rivera's identity because he was positively identified by S.L., who personally knew Rivera prior to the rapes. Further, trial testimony indicated that Rivera had not ejaculated during the rapes. Finally, there was no allegation that someone other than Rivera had raped S.L. or that this was a case of mistaken identity. DNA testing of other evidence presented at trial had not incriminated Rivera and had confirmed only that S.L.'s DNA was found on the hood of Rivera's car. The State argued that even if additional DNA testing was ordered on other untested evidence and revealed that Rivera's DNA was not present, the result of the trial would have been no different because the jury had convicted Rivera despite a lack of DNA evidence to incriminate him.
The district court conducted a nonevidentiary hearing on the motion. The State was present at the hearing, but Rivera was not, nor was he represented by counsel at the hearing. At the hearing, the State presented arguments consistent with its written response to Rivera's motion. Based on the motions and the record in this case, the district court denied Rivera's motion and adopted the State's response to Rivera's motion, finding that there was no statutory reason to order postconviction DNA testing as the testing would be cumulative and could not result in exculpatory evidence.
Following the hearing, Rivera filed a response to the State's response, clarifying that he was seeking testing of S.L.'s bedding, which had been collected as evidence of the second rape but was never tested for DNA evidence. Rivera did not seek DNA tests of biological materials on the bedding where the second rape was found to have occurred. Rather, he sought the testing of the bedding itself in the hope that testing would determine that either there was no DNA material to be found there or none that could be attributed to him. He states in his appellate brief, “the noncumulative, exculpatory evidence that may be found would be the lack of any biological fluid from him on the bedding that was taken from S.L.'s bed.” He asserted that if a rape occurred on that bedding as alleged by the State, his DNA should have been present on the bedding in the form of pre-ejaculate even if he did not ejaculate during the rape.
Rivera also filed an amended response to the State's response and motion for reconsideration, wherein he asked the court to reconsider its denial of his motion because (1) the defendant was not represented by counsel at the hearing on his motion, nor was the defendant present; and (2) he was not given time to respond to the State's response to his motion.
The district court again conducted a nonevidentiary hearing at which the State was represented but neither Rivera nor anyone representing him was present. The State briefly argued that Rivera's motion for reconsideration should be denied because it did not present any new arguments. The district court denied Rivera's motion for reconsideration and reaffirmed its earlier ruling. This appe al followed.
Rivera contends that the district court erred when it denied his motion for postconviction DNA testing because noncumulative, exculpatory evidence relevant to his case could have been discovered by testing S.L.'s bedding for biological material. Summary denial of a request for DNA testing and statutory interpretation both present questions of law over which we have unlimited review. State v. Lackey, 295 Kan. 816, 819–20, 286 P.3d 859 (2012).
The most fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained. State v. Williams, 298 Kan. 1075, 1079, 319 P.3d 528 (2014). We must first attempt to ascertain legislative intent through the statutory language enacted, giving common words their ordinary meaning. State v. Phillips, 299 Kan. 479, 495, 325 P.3d 1095 (2014). When a statute is plain and unambiguous, we will not speculate about legislative intent and will refrain from reading something into the statute that is not readily found in its words. See State v. Brooks, 298 Kan. 672, 685, 317 P.3d 54 (2014).
The portion of K.S.A.2014 Supp. 21–2512 relevant to this issue states:
“(a) Notwithstanding any other provision of the law, a person in state custody, at any time after conviction ... for rape ... may petition the court that entered the judgment for forensic DNA testing (deoxyribonucleic acid testing) of any biological material that:
“(1) Is related to the investigation or prosecution that resulted in the conviction;
“(2) is in the actual or constructive possession of the state; and
“(3) was not previously subjected to DNA testing, or can be subjected to retesting with new DNA techniques that provide a reasonable likelihood of more accurate and probative results.
“(b)(1) The court shall notify the prosecuting attorney of a petition made under subsection (a) and shall afford the prosecuting attorney an opportunity to respond.
“(2) Upon receiving notice of a petition made under subsection (a), the prosecuting attorney shall take such steps as are necessary to ensure that any remaining biological material that was secured in connection with the case is preserved pending the completion of proceedings under this section.
“(c) The court shall order DNA testing pursuant to a petition made under subsection (a) upon a determination that testing may produce noncumulative, exculpatory evidence relevant to the claim of the petitioner that the petitioner was wrongfully convicted or sentenced.
....
“(e) The court may at any time appoint counsel for an indigent applicant under this section.”
The district court's determination pursuant to K.S.A.2014 Supp. 21–2512(c) that further DNA testing in this case would be cumulative and could not result in exculpatory evidence is the portion of the statute at issue here. Rivera asserts that the district court's determination was incorrect because DNA testing of S.L.'s bedding would show that none of his biological fluids are on the bedding. He also asserts that, although trial testimony indicated that he did not ejaculate during the rape, pre-ejaculate would have been found on the bedding if the rape had occurred as alleged. Rivera believes that if the bed sheets were examined for his DNA and none was found, this finding would be noncumulative and exculpatory.
Rivera's arguments necessarily fail because he has not identified any known biological material on the bedding that could be tested. He sought DNA testing of the bedding by asserting there will be an absence of biological material on those sheets to test, thus his request for testing does not fall within the scope of K.S.A.2014 Supp. 21–2512. See State v. Lingenfelter, No. 105,551, 2012 WL 687836, at *4 (Kan.App.2012) (unpublished opinion), rev. denied 296 Kan. 1133 (2013) (K.S.A. 21–2512 allows testing of known biological material; a petition seeking examination of evidence to find biological material does not come within the scope of the statute); see also State v. Andrews, No. 107,506, 2013 WL 2991069, at *4 (Kan.App.) (unpublished opinion), rev. denied 298 Kan. 1204 (2013) (defendant's argument in support of his request for DNA testing failed because he had not identified any known biological material that could be tested).
The DNA testing provisions of K.S.A.2014 Supp. 21–2512 are predicated on the existence of identified biological material available for testing. The statute requires the prosecutor to preserve “any remaining biological material that was secured in connection with the case.” K.S.A.2014 Supp. 21–2512(b)(2). The statute does not require the prosecutor to preserve for possible future testing all physical evidence that might contain biological material. As stated in Lingenfelter, 2012 WL 687836, at *2, “[The statute] does not authorize the search of physical evidence on the mere hope that some as yet unknown biological material might turn up and then be tested.”
Because K.S.A.2014 Supp. 21–2512 does not authorize the district court to order a search for biological material to be tested for DNA, we need not address the district court's conclusion that DNA testing of the bedding would not produce noncumulative, exculpatory evidence. Because the district court reached the correct result, we will uphold its decision regardless of the grounds it relied upon. See State v. May, 293 Kan. 858, 869–70, 269 P.3d 1260 (2012). Accordingly, we affirm the district court's denial of Rivera's petition for DNA testing.
Rivera also argues on appeal that the district court violated his due process rights when it conducted the hearings on his motion for postconviction DNA testing and his motion for reconsideration under circumstances in which the State was represented by counsel, but he was neither present nor represented by counsel. He asserts that due process requires that he be represented at any hearing at which the State is represented unless he has waived that right.
This issue raises questions of law and statutory interpretation which are subject to unlimited review. State v. Bello, 289 Kan. 191, 193, 211 P.3d 139 (2009) ; State v. Moody, 282 Kan. 181, 188, 144 P.3d 612 (2006). But we need not dwell on this issue because Rivera had no statutory right to a hearing in the first place in view of the fact that he did not seek relief which was contemplated by the statute.
We do note, however, that under K.S.A.2014 Supp. 21–2512(f)(2) the district court is not required to hold a hearing unless the court has ordered DNA testing and the results of the testing are favorable to the defendant. But here, the district court held a hearing on Rivera's motion before testing, and later on Rivera's motion to reconsider, with counsel for the State being present but without Rivera being present or represented. While under K.S.A.2014 Supp. 21–2512 a prisoner does not have the right to be present at any proceeding conducted before DNA testing is ordered, State v.. Denney, 283 Kan. 781, 791, 156 P.3d 1275 (2007), and while under K.S.A.2014 Supp. 21–2512(e) the district court may appoint counsel for an indigent prisoner at any time, pursuant to State v. Taylor, 266 Kan. 967, 975, 975 P.2d 1196 (1999) (citing State v. Pierce, 246 Kan. 183, 199, 787 P.2d 1189 [1990] ), a defendant should be represented by counsel if the district court holds a hearing at which the State is represented by counsel, unless the defendant waives the right to counsel. There is no indication that Rivera waived his right to counsel.
Affirmed.