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Kirtdoll v. State

Court of Appeals of Kansas.
Feb 8, 2013
293 P.3d 816 (Kan. Ct. App. 2013)

Opinion

No. 107,385.

2013-02-8

Bryon KIRTDOLL, Appellant, v. STATE of Kansas, Appellee.

Appeal from Shawnee District Court; Charles E. Andrews, Jr., Judge. Kristen B. Patty, of Wichita, for appellant. Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.


Appeal from Shawnee District Court; Charles E. Andrews, Jr., Judge.
Kristen B. Patty, of Wichita, for appellant. Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Before STANDRIDGE, P.J., ATCHESON, J., and DANIEL L. HEBERT, District Judge Retired, assigned.

MEMORANDUM OPINION


PER CURIAM.

Bryon Kirtdoll appeals the decision of the Shawnee County District Court summarily dismissing his motion under K.S.A. 60–1507 as an impermissible successive challenge to his convictions for murder and aggravated battery. This is Kirtdoll's second 60–1507 motion, and he presents no exceptional circumstances to warrant another review of his criminal convictions. We find no error and affirm.

When a district court receives a 60–1507 motion, it essentially has three options. The district court can summarily dismiss the motion after reviewing it and the contents of the case file. Bellamy v. State, 285 Kan. 346, 353–54, 172 P.3d 10 (2007). That's what happened to Kirtdoll's motion. The motion should be dismissed without a hearing only if the allegations and the case records “conclusively show that the prisoner is entitled to no relief.” K.S.A. 60–1507(b); Supreme Court Rule 183(f) (2012 Kan. Ct. R. Annot. 274). Otherwise, the district court has two choices. It can conduct a preliminary hearing during which counsel for the State and for the defendant present legal argument and otherwise address whether the circumstances call for a full evidentiary hearing. A limited amount of evidence may be received at that preliminary hearing. Bellamy, 285 Kan. at 354. The district court, however, can appoint counsel, bypass the preliminary hearing, and set the motion for a full evidentiary hearing. See 285 Kan. at 353–54.

If a district court dismisses a 60–1507 motion on the papers without a hearing, as happened here, the appellate courts review that determination anew and without any deference. 285 Kan. at 354.

In January 2004, a jury convicted Kirtdoll of one count of first-degree murder and two counts of aggravated battery for a shooting spree at a Topeka nightclub about a year earlier. Kirtdoll received a life sentence and won't be eligible for release from prison until the second half of this century. The details of the crimes are not material to the disposition of this 60–1507 motion, and we do not recite them. Those circumstances are set out in State v. Kirtdoll, 281 Kan. 1138, 1140–43, 136 P.3d 417 (2006), in which the Kansas Supreme Court affirmed the convictions on direct appeal.

In 2007, Kirtdoll filed his first motion under K.S.A. 60–1507, claiming constitutional defects in his convictions. Kirtdoll drafted that motion himself and used a standard form available through the Kansas Judicial Council. Unlike a typical civil petition, a 60–1507 motion is to contain a detailed statement of the errors a person claims undermine his or her criminal conviction. See Supreme Court Rule 183(e) (2012 Kan. Ct. R. Annot. 274) (recognizing the judicial council form as sufficient); Trotter v. State, 288 Kan. 112, 135, 200 P.3d 1236 (2009) (A 60–1507 motion lacking specific factual details “is conclusory and inadequate.”). The form facilitates the necessary presentation with an elaborate template and some instructions.

In one section, the form requires the party to state “all the grounds” upon which the motion challenges the convictions. As required, Kirtdoll listed five general challenges with subparts in his 2007 motion. The next section of the form asks the filer to state “facts which support each of the grounds,” along with identification of physical evidence and witnesses he or she contends can establish those facts. In his 2007 motion, Kirtdoll supplied no facts or supporting evidence. Rather, he stated: “I will file Memorandum In Support.” But he never furnished a supporting memorandum. As a result, the motion was patently deficient, and the district court could have dismissed on that basis alone. See Trotter, 288 Kan. at 135. The district court, however, addressed the general issues Kirtdoll raised and, not surprisingly, found them insufficient to warrant relief. They are broadly stated complaints without any supporting detail or explanation. At Kirtdoll's request, the district court appointed a lawyer for him to appeal that ruling. This court affirmed the denial of Kirtdoll's first 60–1507 motion. Kirtdoll v. State, No. 100,880, 2009 WL 2766290 (Kan.App.2009) (unpublished opinion), rev. denied 290 Kan. 1094 (2010). The brief opinion noted that Kirtdoll's motion was defective for failing to include factual support for his allegations and found the issues generally appeared to be trial errors that should have been raised in the direct appeal. 2009 WL 2766290, at *1–2.

On May 24, 2010, Kirtdoll filed his second 60–1507 motion. Successive 60–1507 motions typically are not allowed. See K.S.A. 60–1507(c). A party is expected to bring all of his or her challenges at once, so a court may fully address them in a single proceeding, thereby conserving resources and more promptly getting to a final result. In his recent motion, Kirtdoll argued he should be allowed a second try because the lawyer handling the appeal of his first motion was constitutionally ineffective and because he had new evidence. Neither gets Kirtdoll very far. It is difficult to see how the performance of his appellate lawyer on the first 60–1507 motion could have deprived him of his rights under the Sixth and Fourteenth Amendments to the United States Constitution to the effective assistance of counsel. Kirtdoll would have to show that the lawyer's performance fell below acceptable professional standards and the deficiency caused some sort of prejudice in the first 60–1507 proceeding. See Strickland v. Washington, 466 U.S. 668, 687–88, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Holmes v. State, 292 Kan. 271, 274, 252 P.3d 573 (2011). Even assuming a substandard performance (and that really is only an assumption on our part), Kirtdoll could not have been harmed. His first 60–1507 motion was doomed when he failed to submit his supporting memorandum setting forth the factual and evidentiary bases for his claims. So in considering Kirtdoll's second 60–1507 motion—the one before us now—the district court properly found the ineffectiveness claim to be an insufficient justification for the motion.

The district court also correctly discounted the new evidence as a basis to allow this second 60–1507 motion. Kirtdoll submitted the handwritten statement of an individual claiming to have heard another person confess to being the actual shooter at the nightclub shortly after the incident. But, as the district court pointed out, the individual giving the statement has a long criminal record and little credibility. More importantly, the evidence against Kirtdoll was quite strong. Several witnesses at the nightclub who had known Kirtdoll for years before the shooting identified him as the gunman. The author of the statement recites in the document that he prepared it on October 29, 2007. Kirtdoll did not submit his second 60–1507 motion to the court until 2 1/2 years later. But in his motion, Kirtdoll failed to explain how and when he acquired the written statement or to account for the lapse of time in bringing it to the court's attention.

In short, Kirtdoll has not demonstrated the sort of exceptional circumstance allowing a successive motion under 60–1507. The district court ruled correctly in denying that motion.

Affirmed.


Summaries of

Kirtdoll v. State

Court of Appeals of Kansas.
Feb 8, 2013
293 P.3d 816 (Kan. Ct. App. 2013)
Case details for

Kirtdoll v. State

Case Details

Full title:Bryon KIRTDOLL, Appellant, v. STATE of Kansas, Appellee.

Court:Court of Appeals of Kansas.

Date published: Feb 8, 2013

Citations

293 P.3d 816 (Kan. Ct. App. 2013)