Opinion
No. 107,934.
2013-08-23
Duane WAHL, Appellant, v. STATE of Kansas, Appellee.
Appeal from Crawford District Court; Donald R. Noland, Judge. Janine Cox, of Kansas Appellate Defender Office, for appellant. Michael Gayoso, Jr., county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Crawford District Court; Donald R. Noland, Judge.
Janine Cox, of Kansas Appellate Defender Office, for appellant. Michael Gayoso, Jr., county attorney, and Derek Schmidt, attorney general, for appellee.
Before BRUNS, P.J., McANANY and SCHROEDER, JJ.
MEMORANDUM OPINION
PER CURIAM:
Duane Wahl challenges the district court finding that his first K . S.A. 60–1507 motion was untimely and that it failed to state with specificity his claim for relief. Wahl's initial motion was timely filed, but his motion failed to specifically allege why he was entitled to relief. We affirm.
Facts
On October 27, 2010, Wahl agreed to plead guilty to first-degree murder. As part of the plea agreement, Wahl agreed not to ask for a durational departure, limited his right to appeal as set out in the agreement, and waived his right to a collateral attack of the plea, except for an ineffective assistance of counsel claim pursuant to K.S.A. 60–1507. The district court accepted Wahl's plea, and he was sentenced to life imprisonment on December 9, 2010.
On January 5, 2012, the Clerk of Crawford County District Court received several documents from Wahl: a pro se K.S.A. 60–1507 motion; a notice of intent to file a memorandum in support of his motion; and a motion for evidentiary hearing and/or oral argument. According to the certificate of service signed by Wahl, all three of these documents were delivered on or around December 20, 2011, to the prison personnel for filing.
Wahl's K.S.A. 60–1507 motion claimed he was innocent, the district court lacked jurisdiction, and his plea was the result of ineffective assistance of counsel. Although Wahl did not discuss any caselaw, he did cite Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and Chamberlain v. State, 236 Kan. 650, 694 P.2d 468 (1985), to outline the constitutionally guaranteed right to effective assistance of counsel. He also argued, “[T]o prevent Manifest Injustice and Substantial Prejudice, the Intersets [ sic ] of Justice would be best served if the Court reached the merits of the issues raised herein.” His motion for evidentiary hearing and/or oral argument was more detailed in its discussion of caselaw regarding the general nature of ineffective assistance of counsel claims, but it did not mention manifest injustice or any specific instances of ineffective assistance of counsel in his case. On January 6, 2012, the district court sent Wahl a letter telling him he had 30 days to file his supporting memorandum of law.
In response, the State filed a motion to dismiss on January 12, 2012, claiming Wahl waived his right to file a K.S.A. 60–1507 motion as part of his guilty plea agreement.
In keeping with his notice of intent filed with his first K.S.A. 60–1507 motion, Wahl filed a second, more detailed motion for evidentiary hearing and/or oral argument and attached a memorandum of law alleging additional grounds for relief without providing any factual support for the conclusionary contentions presented.
In conclusion, Wahl asked the court to grant a hearing “[f]or the foregoing reasons, and to prevent Manifest Injustice or Substantial Prejudice.” Ward's motion was certified for mailing on January 17, 2012, and received by the Crawford County District Court on January 26, 2012 (mailbox rule).
On January 27, 2012, the district court dismissed Ward's motion without a hearing, finding the 1–year time limit had run. Based on Wilkerson v. State, 38 Kan.App.2d 732, 171 P.3d 671 (2007), the district court held the 1–year time limit for filing a K.S.A. 60–1507 motion commenced 10 days after sentencing, based on his right to appeal. The court held Wahl filed his motion at the time the clerk of the court received his memorandum of law, January 26, 2012. His 1–year window closed on December 19, 2011, pursuant to Wilkerson, plus:
• Wahl's motion failed to demonstrate manifest injustice or “even mention manifest injustice in his K.S.A. 60–1507 pleadings”;
• Wahl's plea agreement specifically stated any collateral attack premised upon ineffective assistance of counsel must be brought within 1 year of final judgment;
• Wahl waived his right to “any collateral attack regarding his criminal case” in his guilty plea; and
• Wahl's claim was time-barred and proscribed by his plea bargain.
Wahl responded to the State's motion to dismiss on January 27, 2012, reflecting a filing date of February 1, 2012, i.e., after the district court had ruled. Wahl failed to present any facts to support his manifest injustice or substantial prejudice claims. Wahl then filed a motion to alter or amend the court's judgment, claiming the district court abused its discretion by not providing him notice or an opportunity to respond to the State's motion to dismiss. The record reflects the motion to alter or amend the court's judgment would not be ruled on with Ward's notice of appeal.
Wahl appeals.
Analysis
Did the District Court Err in Dismissing Wahl's K.S.A. 60–1507 Motion?
Wahl challenges on appeal the district court's action in dismissing his K.S.A. 60–1507 motion. For simplicity we will divide his argument into three parts and address them individually after discussing the standard of review:
• The district court erred in ruling Wahl's motion was untimely;
• The district court erred in ruling Wahl's first motion was insufficient to show he was entitled to relief;
• The district court erred in ruling Wahl had waived his right to file a K.S.A. 60–1507 motion with his plea.
Standard of Review
A district court has three available options to use in resolving a K.S.A. 60–1507 motion. First, the district court may conclude the motion, files, and records of the case conclusively show the movant is entitled to no relief and summarily deny the motion. Second, the district court may conclude from the motion, files, and record that a substantial issue or issues have been raised, requiring a full evidentiary hearing in the presence of the movant. Third, 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 preliminary hearing after appointment of counsel to determine whether in fact the issues in the motion are substantial. Albright v. State, 292 Kan. 193, 196, 251 P.3d 52 (2011).
If, as here, the district court summarily denies a K.S.A. 60–1507 motion, an appellate court conducts a de novo review to determine whether the motion, files, and records of the case conclusively establish that the movant is not entitled to any relief. Trotter v. State, 288 Kan. 112, 132, 200 P.3d 1236 (2009).
Did the District Court Err in Ruling Wahl's Motion Was Untimely
A K.S.A. 60–1507 motion must be filed within 1 year of the date of the final order in the underlying direct criminal proceedings. K .S.A. 60–1507(f). Both parties agree Wahl had 14 days to file a notice of appeal pursuant to K.S.A.2010 Supp. 22–3608(c), contrary to what the district court ruled. Because Wahl was sentenced on December 9, 2010, his time to appeal expired on December 23, 2011, not December 19, 2011.
The State at oral argument conceded Wahl's motion was timely filed within the 1–year statute of limitations. Since the State has conceded the motion was timely when considering the “prison mailbox rule,” we find the district court erred in ruling the first motion was filed out of time pursuant to K.S.A. 60–1507(f). See Wilson v.. State, 40 Kan.App.2d 170, 175, 192 P.3d 1211 (2008).
Next, we must address if the later filing on January 17, 2012, can amend and relate back to the date of his original motion on December 20, 2011. Wahl claims his January 17, 2012, supporting memorandum related back to his original filing date and is timely. The State argues the motion cannot be amended. Citing Pabst v. State, 287 Kan. 1, 25, 192 P.3d 630 (2008), the State argues that after Wahl's original motion failed to set out specific allegations as to how counsel was ineffective he cannot with his January 17, 2012, amended motion assert new grounds for relief that relate back. Because this court has de novo review of a summarily dismissed K.S.A. 60–1507 motion, the merits of Wahl's original motion will be addressed in the final section.
The district court found Wahl's first motion to be deficient because it lacked evidentiary support for his conclusory statements. The district court then incorrectly concluded the filing date was January 26, 2012—when his second motion and memorandum were filed. The second motion was better than his first motion, but it still contained many conclusions and lacked the clarity of specific facts for relief. The district court erred by finding his K.S.A. 60–1507 motion was not filed until January 26, 2012, and not on December 20, 2011.
An amendment to a K.S.A. 60–1507 motion that asserts new grounds 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, 287 Kan. 1, Syl. ¶ 7. In Pabst, a prisoner filed a K.S.A. 60–1507 motion within the 1–year time limitation, and then filed an amended motion well outside the 1–year limitation period, which alleged 10 new claims. Pabst, 287 Kan. at 21–22. The Kansas Supreme Court denied Pabst's attempt to relate the second motion back to the first. The court ruled that even though Pabst's new claims fell under the basic rubric of ineffective assistance of counsel, Supreme Court Rule 183(e) (2012 Kan. Ct. R. Annot. 274) requires a movant to comply with a form requiring the movant to concisely state all the grounds for the motion and state the facts which support each of the grounds. Pabst, 287 Kan. at 25. Further, a movant is presumed to have listed all of the grounds upon which he or she relies at the time the form is submitted. Smith v.. State, 195 Kan. 745, 747, 408 P.2d 647 (1965). Because Pabst did not state these new grounds in his original motion, the Supreme Court denied his attempt to relate them back to his original motion. Pabst, 287 Kan. at 25–26.
Wahl's original K.S.A. 60–1507 motion did not state his allegations with any specificity, nor did it allege any facts to support his claims. While his second motion and memorandum of law sticks to the basic concept of ineffective assistance of counsel, it too contains only conclusions and not facts as to why relief should be granted. Thus, even if his second motion and memorandum had been more fact-specific to identify the issues and possible witnesses, according to Pabst it does not relate back to his original timely K.S.A. 60–1507 motion for consideration under the three alternatives for the district court outlined in Albright.
The District Court Erred in Ruling Wahl Had Waived His Right to Challenge Ineffective Assistance of Counsel
The district court also ruled Wahl's motion failed because he “waived the right to file any collateral attack regarding his criminal case ... in exchange for certain concessions by the State in the plea negotiations and [this waiver] is legally enforceable.”
The district court was correct in ruling Wahl gave up his right to appeal in exchange for his plea. A “knowing and voluntary waiver by the defendant of his [or her] statutory right to appeal is generally enforceable.” State v, Campbell, 273 Kan. 414, 425, 44 P.3d 349 (2002) (citing United States v. Hernandez, 134 F.3d 1435, 1437 [10th Cir.1998] ). However, Wahl's plea specifically excluded claims of ineffective assistance of counsel from his waiver. Thus, the district court's erred in finding Wahl waived his right to challenge ineffective assistance of counsel.
Was Wahl Entitled to a Hearing?
If Wahl's original K.S.A. 60–1507 motion was timely, the question still remains as to what type of hearing Wahl was entitled to. To meet the burden of proving his K.S.A. 60–1507 motion warrants an evidentiary hearing, Wahl “ ‘must make more than conclusory contentions and must state an evidentiary basis in support of the claims or an evidentiary basis must appear in the record.’ [Citation omitted.]” Trotter, 288 Kan. at 131–32.
In stating the evidentiary basis for a K.S.A. 60–1507 motion, our Supreme Court has stated the motion must merely “set forth a factual background, names of witnesses, or other sources of evidence to demonstrate that the movant is entitled to relief.” Swenson v.. State, 284 Kan. 931, Syl. ¶ 2, 169 P.3d 298 (2007). If the movant satisfies this burden, the court is required to grant a hearing unless the motion is successive. Holt v. State, 290 Kan. 491, 495, 232 P.3d 848 (2010).
Wahl's original timely motion filed December 20, 2011, was based on conclusions and contained no specific facts or evidence to support his claims for relief. The district court properly dismissed Wahl's motion for failing to state a claim for relief.
Conclusion
Wahl's original motion was timely, and the district court erred in finding it was untimely. Ultimately, the motion failed to set out a factual background, names of witnesses, or other evidence to support his request for relief. Following Pabst, the amended motion, although deficient, cannot be considered as it was filed after the 1–year statute of limitations and cannot relate back to the filing date of the original motion. We affirm the district court's finding the motion failed to show Wahl was entitled to relief under K.S.A. 60–1507.
Affirmed.