Opinion
Editorial Note:
This decision has been designated as "Supreme Court of Kansas Decisions without Published Opinions." in the Pacific Reporter. See KS R S AND A CTS RULE 7.04
Appeal from Sedgwick District Court; Benjamin L. Burgess, Judge.
Carl F.A. Maughan, of Maughan & Maughan LC, of Wichita, and David L. Woodward, pro se, were on the briefs for appellant.
Julie A. Koon, assistant district attorney, Nola Tedesco Foulston, district attorney, and Steve Six, attorney general, were on the brief for appellee.
MEMORANDUM OPINION
JOHNSON, J.
David L. Woodward appeals the district court's summary denial of both his motion to withdraw a guilty plea and his motion for DNA testing under K.S.A. 21-2512. We find that Woodward's motion to withdraw plea is an abuse of remedy and is procedurally barred by the doctrine of res judicata; that a motion under K.S.A. 21-2512 was not the appropriate mechanism to obtain the relief which Woodward sought; and that the district court's summary denial of the motions should be affirmed.
FACTUAL AND PROCEDURAL OVERVIEW
In a 1991 plea agreement, Woodward agreed to plead guilty to kidnapping, rape, indecent liberties with a child, felony murder, and two counts of sexual exploitation of a child. The State agreed to recommend that a presentence investigation be performed at Larned State Hospital and that the prosecutor would join in recommending a controlling term of imprisonment of life, plus 10 years to life. At sentencing, the district court refused to follow the joint sentencing recommendation and imposed a controlling term of imprisonment of life, plus 30 years to life. In the ensuing years— nearly two decades— Woodward has sought to obtain relief from his convictions and sentence.
Shortly after sentencing, Woodward filed a motion to modify his sentence to comport with the plea agreement recommendation, but the district court denied the requested modification. Woodward then directly appealed his sentence, claiming it was the product of partiality and prejudice, but this court affirmed the sentence in State v. Woodward, No. 68,957, unpublished opinion filed January 21, 1994.
In 1994, Woodward filed a motion requesting that the DNA of certain biological material, including a hair, be compared against the DNA of another felon, who Woodward claimed was implicated in the homicide for which he was convicted. The record does not reflect the disposition on that motion.
Next, Woodward filed a K.S.A. 60-1507 motion raising several claims, including that he had received ineffective assistance of counsel. The Court of Appeals affirmed the district court's summary denial of that 60-1507 motion. Woodward v. State, No. 77,762, unpublished opinion filed January 8, 1999, rev. denied 266 Kan. 1117 (1999).
In 2007, Woodward filed a motion which was construed as a motion to withdraw his guilty plea. He claimed manifest injustice because the prosecutor breached the plea agreement by arguing against the recommended sentence, because the police obtained incriminating information through a promise of diversion, and because the prosecutor violated K.S.A. 22-2910 by proffering at trial defendant's statements made during discussions of a proposed diversion agreement. The district court summarily denied Woodward's motion, and this court affirmed the denial on March 6, 2009. State v. Woodward, 288 Kan. 297, 202 P.3d 15 (2009).
On May 5, 2009, Woodward filed yet another motion, entitled " Motion to Comply with K.S.A. 21-2512(f)(2)(A) & (B) and K.S.A. 22-3210(d)." In essence, Woodward argued that the prosecutor had wrongfully withheld exculpatory DNA evidence, that his confession was unconstitutionally obtained, that the prosecutor had used " privileged information" against him, and that both his trial and appellate counsel had been ineffective. Woodward sought to withdraw his guilty pleas and to have the charges against him dismissed with prejudice.
The district court summarily denied the motion, memorializing its decision by handwriting on a preprinted motion minutes sheet that " [t]he court adopts the rationale set out in paragraphs 1-6 of the State's response as its findings and denies defendant's motion." The State's response consisted of six paragraphs, i.e., the court adopted by reference the State's entire response.
Woodward appealed the summary denial and was provided with counsel. The appointed counsel's brief recites two issues: (1) whether the district court erred in summarily denying the defendant's motion to withdraw his guilty pleas; and (2) whether the district court erred in summarily denying the defendant's motion for DNA testing. Included in the first issue is a complaint that the district court's findings of fact and conclusions of law were inadequate to comply with Supreme Court Rule 183(j) (2010 Kan. Ct. R. Annot. 255). Woodward filed a pro se supplemental brief that included multiple allegations of constitutional violations.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
We begin by considering the efficacy of using the district court's handwritten motion minutes sheet as the journal entry of the court's ruling. Supreme Court Rule 183(j) directs that " [t]he court shall make findings of fact and conclusions of law on all issues presented." 2010 Kan. Ct. R. Annot. at 257. In State v. Moncla, 269 Kan. 61, 65, 4 P.3d 618 (2000), we emphasized the importance of the rule, and explained that " the district court must tell us what its findings are and why it concluded the motion to be without merit if we are to conduct any sort of meaningful appellate review." Woodward contends that the State's response did not address all of the issues he raised, so that the court's adoption of that response did not provide adequate findings and conclusions.
The State counters that State v. Hoge, 283 Kan. 219, 221, 150 P.3d 905 (2007), held that Rule 183(j) only applies to K.S.A. 60-1507 motions. However, the State concedes that meaningful appellate review in other types of postconviction motions requires the district court to make sufficient findings of fact and conclusions of law on all presented issues. Nevertheless, the State suggests that the record clearly establishes that Woodward is precluded from relitigating issues previously raised or which could have been previously raised and, therefore, a remand for further findings is unnecessary.
We agree with Woodward that the district court's blanket adoption of all of the State's responsive pleading as the court's findings of fact and conclusions of law is highly suspect, at best. It gives the appearance that the court has abdicated its role in the proceedings and ceded control to the State. While the adoption-by-reference method might be easy and expeditious for the district court, it can make appellate review more difficult, especially if the State fails to respond to all of the movant's arguments or if any of the State's stated facts or conclusions of law are imprecise or inaccurate. Nevertheless, we agree with the State that in this case the record of prior proceedings allows us to dispose of this appeal without surrendering to the temptation to remand for the court to make its own findings of fact and conclusions of law.
RES JUDICATA
In his first issue, Woodward contends that the district court should not have summarily denied his motion to withdraw plea. This same issue was resolved adversely to Woodward in our opinion filed just 2 months prior to Woodward filing the current motion. See Woodward, 288 Kan. at 303, 202 P.3d 15 (" The district court did not err in summarily denying Woodward's motion to withdraw his plea." ).
It is well-settled that " where an appeal is taken from the sentence imposed and/or a conviction, the judgment of the reviewing court is res judicata as to all issues actually raised, and those issues that could have been presented, but were not presented, are deemed waived." State v. Neer, 247 Kan. 137, 140-41, 795 P.2d 362 (1990). Here, we need not rely on any waiver to apply the doctrine of res judicata. In the motion reviewed in the immediately preceding appeal, Woodward's claim of manifest injustice was supported in part by the same arguments he asserts to claim manifest injustice in the current motion.
Granted, appellate counsel chose to focus on different arguments on the merits in the two appeals. Nevertheless, Woodward presented his manifest injustice arguments to the district court in two successive motions to withdraw plea. The successive motion was an abuse of remedy. Cf. Dunlap v. State, 221 Kan. 268, 270, 559 P.2d 788 (1977) (finding successive 60-1507 motion an abuse of remedy). Our review of the current motion to withdraw plea is precluded by the doctrine of res judicata.
REQUEST FOR DNA TESTING
Woodward's second contention is that he was summarily denied the benefit of K.S.A. 21-2512, which provides for DNA testing after a murder conviction. The brief of Woodward's counsel suggests that the " Motion to Comply with K.S.A. 21-2512(f)(2)(A) & (B)" should be liberally construed to be a request for the DNA testing of any material in the State's possession. However, Woodward's pro se brief clarifies that his complaint involves that portion of K.S.A. 21-2512 that he identified in the caption to his motion, i.e., subsection (f)(2), which deals with a hearing and court order after testing, as follows:
" (2) If the results of DNA testing conducted under this section are favorable to the petitioner, the court shall:
(A) Order a hearing, notwithstanding any provision of law that would bar such a hearing; and
(B) enter any order that serves the interests of justice, including, but not limited to, an order:
(i) Vacating and setting aside the judgment;
(ii) discharging the petitioner if the petitioner is in custody;
(iii) resentencing the petitioner;
(iv) or granting a new trial."
During the homicide investigation, police recovered a hair. Woodward asserts that a comparison of his DNA to that of the evidentiary hair yielded a favorable result for him. However, he claims that he did not learn of the exculpatory test result until after he had pled because the State " buried" the evidence. Therefore, he claims he should be provided the hearing described in K.S.A. 21-2512(f)(2) to permit the district court to determine the relief to which he is entitled.
The gravamen of Woodward's complaint is that the State wrongfully failed to disclose exculpatory evidence and, as a result of that misconduct, Woodward's guilty plea was not knowingly and intelligently entered. Woodward could have pursued redress for the State's wrongful withholding of exculpatory evidence through a 60-1507 motion. He could have included the argument that the withholding of evidence precluded a knowing and intelligent plea in his first motion to withdraw plea under K.S.A. 22-3210.
Accordingly, Woodward's reliance on K.S.A. 21-2512(f)(2) is misplaced. The directive in K.S.A. 21-2512(f)(2)(A) for the court to order a hearing applies where favorable DNA results are obtained from " testing conducted under this section " (Emphasis added.) K.S.A. 21-2512(f)(2). It is not a stand-alone remedy to be used as a substitute for a 60-1507 motion or a motion to withdraw plea, where favorable DNA results were previously obtained by the prosecution without a request for testing from the defendant. The district court did not err in summarily denying the request for a K.S.A. 21-2512(f)(2)(A) hearing.
Even if the district court had liberally construed Woodward's pleading to be a 60-1507 motion, a summary denial was appropriate. Woodward had previously used the 60-1507 remedy. Absent a showing of exceptional circumstances, the court can dismiss a second or successive motion as an abuse of remedy. Toney v. State, 39 Kan.App.2d 944, 947, 187 P.3d 122, rev. denied 287 Kan. 769 (2008). " ‘ Exceptional circumstances are unusual events or intervening changes in the law which prevent a movant from reasonably being able to raise all of the trial errors in the first postconviction proceeding.’ Brooks v. State, 25 Kan.App.2d 466, Syl. ¶ 2, 966 P.2d 686 (1998)." Woodberry v. State, 33 Kan.App.2d 171, 175, 101 P.3d 727, rev. denied 278 Kan. 852 (2004). Woodward does not explain the unusual events or changes in the law which have occurred since he filed his first 60-1507 motion, and we can discern no such exceptional circumstances. The district court's summary denial was not erroneous.
Affirmed.