Opinion
No. 108,674.
2013-08-2
Johnny WIGGINS, Appellant, v. STATE of Kansas, Appellee.
Appeal from Leavenworth District Court; Gunnar A. Sundey, Judge. Johnny Wiggins, appellant pro se. Todd Thompson, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Leavenworth District Court; Gunnar A. Sundey, Judge.
Johnny Wiggins, appellant pro se. Todd Thompson, county attorney, and Derek Schmidt, attorney general, for appellee.
Before STANDRIDGE, P.J., ARNOLD–BURGER and POWELL, JJ.
MEMORANDUM OPINION
PER CURIAM.
Johnny Wiggins appeals from the district court's summary denial of his K.S.A. 60–1507 motion. Wiggins claims that he is entitled to reversal of his second-degree murder conviction based on the retroactive effect of the no duty to retreat provision of the self-defense statute, K.S.A.2012 Supp. 21–5222(c). For the reasons stated below, we affirm.
Facts
In 1989, Wiggins was convicted of second-degree murder for fatally stabbing a fellow inmate in the Lansing Correctional Facility. He received a sentence of 15 years to life. The Kansas Supreme Court affirmed Wiggins' conviction in State v. Wiggins, 248 Kan. 526, 808 P.2d 1383 (1991). The relevant facts are set forth in this opinion:
“Wiggins and [Chris] Brownfield were cellmates at the Kansas State Penitentiary. On September 7, 1988, both men went to work at the prison laundry. Upon returning from work, Brownfield discovered someone had entered their cell and stolen cigarettes, snacks, toilet articles, and three billfolds from a locked footlocker. Wiggins and Brownfield learned from other inmates that Lee Degraftenreed and several other inmates had been seen near the cell and that Degraftenreed had been observed carrying a stuffed pillowcase. Wiggins reported the theft to a unit team officer and several other officers but was informed his only remedy was to fill out a property claim form. Wiggins and Brownfield then asked another inmate, McCarther, to speak to Degraftenreed for them. Degraftenreed became angry with McCarther and stated he would not give anything back to Wiggins and Brownfield. Eventually, Degraftenreed came to Wiggins' and Brownfield's cell and threatened to kill them if he heard any more about the incident.
“The same evening many rumors circulated throughout the prison concerning the theft. Wiggins and Brownfield were warned that something would happen to them in the morning.
“The next morning, September 8, Wiggins and Brownfield reported to work at the laundry as usual. Wiggins testified that he saw Degraftenreed and a group of inmates observing the laundry and that he recovered a hidden knife to protect himself. When Degraftenreed entered the main gate of the laundry, Wiggins locked Degraftenreed inside. Wiggins testified that Degraftenreed laid down a laundry bag and came towards Wiggins. Wiggins told Degraftenreed there was no need for trouble but Degraftenreed claimed he would kill Wiggins. As Degraftenreed made his threat, Wiggins believed he was about to attack because Degraftenreed jumped back and reached under his shirt as if to retrieve a knife. Wiggins stated he stabbed Degraftenreed because he believed he was in a life and death situation. Degraftenreed ran to the back of the laundry and Wiggins, afraid that Degraftenreed would seize a weapon, chased him and continued to stab him until officers arrived at the scene. Brownfield came to Wiggins' aid and hit Degraftenreed on the head with a metal bar. Wiggins testified he felt it was necessary to kill Degraftenreed before Degraftenreed killed him.
“At trial several witnesses stated they had not seen a weapon in Degraftenreed's possession, nor was any weapon ever discovered. A homemade knife and metal bar were found in the laundry. An autopsy revealed that Degraftenreed suffered eighteen stab wounds, one of which pierced the heart, and had six lacerations on the head from a blunt instrument.
“Wiggins' only defense at trial was that he acted in self-defense.” Wiggins, 248 Kan. at 527–28.
In 2006, the Kansas Legislature amended the self-defense statute to include a broad no duty to retreat provision. L.2006, ch. 194, sec. 3. It provided: “Nothing in this section [establishing self-defense] shall require a person to retreat if such person is using force to protect” himself or herself or a third person. K.S.A.2006 Supp. 21–3211(c) (now codified at K.S.A.2012 Supp. 21–5222[c] ). In 2010, the Kansas Legislature recodified the entire Kansas Criminal Code and declared that the new legislation containing the use of force statutes, which included the self-defense statute, was to be applied retroactively. See L.2010, ch. 124, sec. 1; K.S.A.2012 Supp. 21–5220.
On June 11, 2012, Wiggins filed a pro se K.S.A. 60–: 507 motion, alleging that the retroactive change to the no duty to retreat provision of the self-defense statute rendered his conviction invalid or in the alternative, entitled him to a new trial. The district court summarily dismissed Wiggins' motion, holding that (1) the motion was untimely under K.S.A. 60–1507(f); (2) the motion was moot because the jury at Wiggins' trial had been instructed on self-defense, and that instruction “included language about no duty to retreat”; and (3) claims on collateral review must apply the law in effect at the time of trial.
Standard of Review
The district court is required to conduct an evidentiary hearing on a K.S.A. 60–1507 motion and make findings of fact and conclusions of law with respect thereto, unless the motion and the files and records of the case conclusively show the prisoner is not entitled to relief. K.S.A. 60–1507(b); Supreme Court Rule 183(f) (2012 Kan. Ct. R. Annot. 274). To meet the burden of proving his or her K.S.A. 60–1507 motion warrants an evidentiary hearing, the movant “ ‘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 v. State, 288 Kan. 112, 131–32, 200 P.3d 1236 (2009).
When the district court summarily denies a K.S.A. 60–1507 motion, an appellate court conducts 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, 288 Kan. at 132.
Analysis
Wiggins claims that the change in the no duty to retreat provision of the self-defense statute should be retroactively applied to his case and that a failure to do so constitutes a violation of his due process rights under the Fourteenth Amendment to the United States Constitution.
1. One–Year Time Limitation of K.S.A. 60–1507(f)
The district court first relied on K.S.A. 60–1507(f) to dismiss Wiggins' motion as untimely. Pursuant to K.S.A. 60–1507(f)(l), a defendant has 1 year from when his or her conviction becomes final to file a motion under K.S.A. 60–1507(a). Individuals who had claims preexisting the 2003 statutory amendment that added this time limitation had until June 30, 2004, to file a K.S.A. 60–1507 motion. Pabst v. State, 287 Kan. 1, 22, 192 P.3d 630 (2008). The 1–year time limitation of K.S.A. 60–1507(:) may be extended by the district court only to prevent manifest injustice. K.S.A. 60–1507(f)(2). The phrase “manifest injustice” has been interpreted to mean “ ‘obviously unfair’ or ‘shocking to the conscience.’ “ Ludlow v. State, 37 Kan.App.2d 676, 686, 157 P .3d 631 (2007).
Wiggins recognizes that his K.S.A. 60–1507 motion was not filed until June 11, 2012. Nevertheless, he argues manifest injustice permits extension of the 1–year time limit in his case because the intervening change in Kansas' use of force statutes renders his conviction obviously unfair or shocking to the conscience because the outcome of his trial would have been different if the jury had been instructed that he had no duty to retreat from Degraftenreed.
Wiggins cites no authority for his argument that an intervening change in law supports a finding of manifest injustice. Moreover, the no duty to retreat provision in the self-defense statute became effective May 25, 2006. See L.2006, ch. 194, sec. 36. The Kansas Legislature declared the use of force statutes containing the no duty to retreat provision retroactive on April 29, 2010. See L.2010, ch. 124, sec. 13. Wiggins fails to explain why he waited more than 2 years after the provision became retroactive to file his K.S.A. 60–1507 motion. Wiggins' manifest injustice argument is significantly undermined by his failure to timely raise the issue. See Sinnett v. State, No. 97,257, 2007 WL 4571103, at *3 (Kan.App.2007) (unpublished opinion) (permitting movant who did not diligently pursue claims to avoid statutory time limitation would create an exception to K.S.A. 60–1507[f] that would “proverbially ‘swallow the rule’ ”).
2. Retroactivity of K.S.A.2012 Supp. 21–5222(c)
Relying on Drach v. Bruce, 281 Kan. 1058, 1072, 136 P.3d 390 (2006), cert. denied549 U.S. 1278 (2007), the district court also dismissed Wiggins' motion on grounds that a new law established after a case is final is generally not applied to the case on collateral attack. On appeal, Wiggins argues Drach is distinguishable from his case because it did not deal with a statutory change in law that was given unlimited retroactivity.
As a general rule, criminal statutes and penalties in effect at the time of a criminal offense are controlling. State v. Denney, 278 Kan. 643, 646, 101 P.3d 1257 (2004). Additionally, a statute operates prospectively unless its language clearly indicates a legislative intent to apply it retrospectively. State v. Jaben, 294 Kan. 607, 612–13, 277 P.3d 417 (2012). An appellate court must first attempt to ascertain legislative intent through the statutory language enacted, giving common words their ordinary meanings. State v. Urban, 291 Kan. 214, 216, 239 P.3d 837 (2010).
The statute at issue here, K.S.A.2012 Supp. 21–5222(c), was obviously not in effect at the time of Wiggins' crime, but the legislature gave it retroactive effect in 2010 by stating: “The provisions of this act are to be construed and applied retroactively .” L.2010, ch. 124, sec. 1; see K.S.A.2012 Supp. 21–5220 (“The provisions of K.S.A.2012 Supp. 21–5250 through 21–5230, and amendments thereto, are to be construed and applied retroactively.”).
When a statute is plain and unambiguous, an appellate court does not speculate as to the legislative intent behind it and will not read into the statute something not readily found in it. Urban, 291 Kan. at 216. The legislature expressed a clear intent that the use of force statutes are to be applied retroactively, and it did not place any limits on their retroactive effect. Therefore, the statutes—which include the no duty to retreat provision—would arguably apply to any case, even one on collateral attack. Accordingly, the district court wrongly relied on Drach as support for its dismissal of Wiggins' K.S.A. 60–1507 motion.
3. Retroactive Application of K.S.A.2012 Supp. 21–5222(c) to Wiggins' Case
But even if the no duty to retreat provision could be applied to Wiggins' case, he is not entitled to reversal of his conviction or a new trial if this court concludes beyond a reasonable doubt that there would be no impact on the trial's outcome. See State v. Ward, 292 Kan. 541, 565, 256 P.3d 801 (2011), cert. denied132 S.Ct. 1594 (2012) (setting forth the constitutional harmless error test). Relevant to this analysis is a comparison of the self-defense instruction given at Wiggins' trial and the current instruction to which he now claims he was entitled.
Prior to the 2006 amendments, the no duty to retreat language was not included in the self-defense statute. See K.S.A. 21–3211 (Furse 1995). Providing the jury with a no duty to retreat instruction as a supplement to the general self-defense instruction was endorsed only in those rare circumstances where a nonaggressor defendant was attacked on his or her home ground. See State v. Scobee, 242 Kan. 421, 428–29, 748 P.2d 862 (1988) (holding that a no duty to retreat instruction was required where victim had attacked defendant at defendant's home and State built its case around the failure of defendant to retreat); PIK Crim.3d 54.17–A (now deleted); see also State v. Saleem, 267 Kan. 100, 113–15, 977 P.2d 921 (1999) (finding that a no duty to retreat instruction was not required in mutual combat situation where evidence was conflicting as to which person was the aggressor); State v. Ricks, 257 Kan, 435, 437, 894 P.2d 191 (1995) (limiting Scobee's holding to the “infrequent factual situations ... with such elements as a nonag[g]ressor defendant being followed to and menaced on home ground”).
During the instructions conference at Wiggins' trial, the parties discussed the trial court's proposed self-defense instruction, which contained a paragraph referencing no duty to retreat. The State argued that this language was unnecessary because duty to retreat was not an issue in the case. In response, defense counsel argued that the language should be included in the self-defense instruction because the State could claim during closing argument that Wiggins could have fled from Degraftenreed in the prison laundry. The trial judge kept the instruction as written, stating:
“Well I think the last line that I have added to the self-defense instruction states the law of Kansas and as set forth in Scobee. In fact, it states it word for word as set forth in Scobee. I don't know whether self-defense is really involved in the case or not, that's a part for the jury to decide. And whether there was a possibility of retreat is also something for the jury to decide. I will leave the instruction as it stands.”
Thereafter, the trial court instructed the jury on self-defense in accordance with PIK Crim.2d 54.17 and K.S.A. 21–3211. Wiggins, 248 Kan. at 528. The instruction provided:
“The defendants have claimed their conduct was justified as self-defense.
“ ‘A person is justified in the use of force against an aggressor when and to the extent it appears to him and he reasonably believes that such conduct is necessary to defend himself or another against such aggressor's imminent use of unlawful force. Such justification requires both a belief on the part of the defendant and the existence of facts that would persuade a reasonable person to that belief.
“ ‘A person may stand his ground and use deadly force if this reasonably seems necessary to save himself.’ “ (Emphasis added.) 248 Kan. at 528.
Turning to the current self-defense statute, it contains the no duty to retreat language added in 2006: “Nothing in this section [establishing self-defense] shall require a person to retreat if such person is using force to protect” himself or herself or a third person. K.S.A.2012 Supp. 21–5222(c). This language is reflected in the current version of the pattern jury instruction on self-defense: “When use of force is permitted as [self-defense], there is no requirement to retreat.” PIK Crim. 4th 52.200.
In denying Wiggins' K.S.A. 60–1507 motion, the district court held that the motion was moot on the grounds that language relating to no duty to retreat was included in the self-defense instruction given to the jury at Wiggins' trial, and the Kansas Supreme Court had affirmed the use of this instruction on appeal. Wiggins asserts that the “ ‘stand your ground’ “ language given to the jury differs greatly from the current no duty to retreat language.
But Wiggins fails to explain how he is prejudiced by any purported difference between the self-defense instruction as given to the jury and the current self-defense instruction containing the no duty to retreat language. The facts in this case can be readily distinguished from those in Scobee, where a nonaggressor defendant was attacked at his home. 242 Kan. at 421–22; see also K.S.A.2012 Supp. 21–5230 (“A person who is not engaged in an unlawful activity and who is attacked in a place where such person has a right to be has no duty to retreat and has the right to stand such person's ground and use any force which such person would be justified in using [under prior or current use of force statutes].”). In this case, Wiggins presumably believed a physical altercation was likely at the time he approached Degraftenreed because he armed himself with a knife beforehand; thus, the evidence supports a reasonable inference that Wiggins agreed to engage in mutual combat with Degraftenreed. And even if, as Wiggins contends, Degraftenreed was the initial aggressor and appeared to be reaching for a knife when walking toward him, Wiggins cannot be characterized as a nonaggressor because he armed himself prior to the confrontation, locked Degraftenreed in the prison laundry, and responded to what he believed to be Degraftenreed reaching for a knife by stabbing Degraftenreed 18 times.
Moreover, and despite Wiggins' argument to the contrary, it does not appear that duty to retreat was ever at issue during trial. The prosecutor did not rely on a theory that Wiggins had a duty to retreat from Degraftenreed or otherwise suggest that Wiggins could not claim self-defense because he might have retreated. Finally, the jury heard and rejected Wiggins' theory of self-defense, even after receiving the self-defense instruction containing the “stand your ground” language added by the trial court. This language is not materially different from the current no duty to retreat instruction, as both statements convey the same point-a person is not required to retreat before defending himself or herself.
In sum, the facts presented in this case do not warrant the relief requested by Wiggins. As a preliminary matter, Wiggins failed to timely file his K.S.A. 60–1507 motion after the no duty to retreat provision of the self-defense statute was declared retroactive and thereafter failed to establish that the time limitation had to be extended in order to prevent manifest injustice. And even if the no duty to retreat provision of the self-defense statute were to be retroactively applied to Wiggins' case, we find beyond a reasonable doubt that providing that instruction to the jury would not have had any impact on the trial's outcome.
Affirmed.