Opinion
No. 106,815.
2012-11-9
Willie Jason WILSON, Appellant, v. STATE of Kansas, Appellee.
Appeal from Montgomery District Court; Roger L. Gossard, Judge. John J. Gillett, of Chanute, for appellant. David Maslen, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Montgomery District Court; Roger L. Gossard, Judge.
John J. Gillett, of Chanute, for appellant. David Maslen, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, P.J., PIERRON and BRUNS, JJ.
MEMORANDUM OPINION
PER CURIAM.
Willie Jason Wilson appeals the district court's denial of his K.S.A. 60–1507 motion. He argues that the district court erred in determining that his motion was time-barred without addressing whether consideration of his motion was necessary to prevent manifest injustice. We conclude that Wilson has failed to raise a meritorious argument for allowing his motion to be filed out of time based on manifest injustice. We also conclude that the files and records of the case conclusively establish that Wilson was not entitled to any relief. Accordingly, we affirm the district court's judgment.
In 1985, Wilson was charged with the December 3, 1985, homicides of his mother, stepfather, and brother. In February 1986, the district court ordered Wilson to undergo a competency evaluation at Larned State Security Hospital. In May 1986, after receiving the competency report, the district court found that Wilson was incompetent to stand trial and that there was a substantial probability that he would not attain competency to stand trial in the foreseeable future. The district court ordered the commencement of involuntary civil commitment proceedings. In 1988, the district court again found Wilson incompetent and ordered the renewal of civil commitment proceedings. Wilson was discharged from civil commitment in January 1992.
In June 1995, the State filed new charges against Wilson for the same three homicides. The original complaint charged Wilson with three counts of first-degree murder under K.S.A. 21–3401 (Ensley 1981), but the complaint was later amended to three counts of second-degree murder under K.S.A. 21–3402 (Ensley 1981). The district court ordered a competency evaluation. The record on appeal does not specifically indicate the outcome of that evaluation, but in April 1996, Wilson entered no contest pleas to three counts of second-degree murder as charged in the amended complaint. He was sentenced to three consecutive terms of 15 years to life in prison. Wilson filed a motion to modify sentence, which was denied by the district court. On direct appeal, our Supreme Court upheld Wilson's sentence and the district court's denial of his motion to modify sentence. State v. Wilson, No. 77,760, unpublished opinion filed July 11, 1997. The mandate was issued on August 15, 1997.
On November 16, 2009, Wilson filed a pro se K.S.A. 60–1507 motion, arguing that the original complaint charging him with three counts of first-degree murder was fatally defective and that the defect was not cured even where he pled guilty to the amended complaint. He also argued that the State was prohibited from filing new charges against him for the 1985 homicides where it failed to request a competency hearing under K.S.A. 22–3305(2) (Ensley 1988) within 10 days of his discharge from civil commitment in January 1992.
The district court appointed counsel to represent Wilson in the K .S.A. 60–1507 proceedings and held a hearing on the matter. At the hearing, Wilson testified and argued that he should receive a full evidentiary hearing based on the two grounds presented in his motion. Wilson acknowledged that he had not filed the motion within the 1–year statute of limitations under K.S.A. 60–1507(f), but he argued that consideration of the motion was necessary to prevent manifest injustice. Wilson contended that there was manifest injustice because the original complaint was fatally defective and because the State failed to follow the statutory procedures under K.S.A. 22–3305(2) (Ensley 1988) and thus failed to prosecute him for the crimes for over 3 years after his discharge from civil commitment in January 1992.
On August 12, 2010, the district court issued a written decision. The district court found that Wilson's K.S.A. 60–1507 motion was time-barred by the 1–year statute of limitations and furthermore that the files and records of the case conclusively established that Wilson was not entitled to any relief. The district court's decision did not explicitly address whether extension of the time limitation was necessary to prevent manifest injustice. Wilson timely appealed the district court's decision.
On appeal, Wilson concedes that his motion was not timely filed under K.S.A. 60–1507(f)(1), but he argues that the district court erred in dismissing his motion as time-barred without explicitly addressing under K.S.A. 60–1507(f)(2) whether consideration of his motion was necessary to prevent manifest injustice. Wilson contends that the district court could have found manifest injustice based on his long-term incompetency, learning disability, inability to read or write, and pro se status, all of which hindered him in filing a timely K.S.A. 60–1507 motion. Wilson also argues that the district court erred in finding that the files and records of the case conclusively established that he was not entitled to any relief because his K.S.A. 60–1507 motion raised two jurisdictional issues that had never been ruled upon and because the district court allegedly failed to review the records from the 1985 case.
The State argues that the district court properly found the motion was time-barred under K.S.A. 60–1507(f) and that there was no manifest injustice in refusing to consider Wilson's claims where the record on appeal indicates that Wilson was mentally competent and could communicate effectively at the time he was convicted and sentenced. The State also argues that the district court correctly found that the files and records of the case conclusively established that Wilson was not entitled to any relief. The State specifically contends that Wilson failed to overcome the strong presumption of the validity of the complaint and that as a matter of law, the State's failure to request a competency hearing under K.S.A. 22–3305(2) (Ensley 1988) when Wilson was released in January 1992 did not cause the State to waive its right to prosecute Wilson for the 1985 homicides.
An appellate court's standard of review depends upon which of three available options the district court employs in resolving a K.S.A. 60–1507 motion. First, the district court may conclude that the motion, files, and records of the case conclusively show that 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. Bellamy v. State, 285 Kan. 346, 353, 172 P.3d 10 (2007).
At a preliminary hearing, as here, the district court may admit limited evidence and consider counsel's arguments. It must then issue findings of fact and conclusions of law as required by Supreme Court Rule 183(j) (2011 Kan. Ct. R. Annot 259). Thus, an appellate court applies the findings of fact and conclusions of law standard of review. Under this standard, the appellate court must determine whether substantial competent evidence supports the district court's findings of fact and whether those findings are sufficient to support the district court's conclusions of law. The district court's ultimate conclusions of law are reviewed de novo. Bellamy, 285 Kan. at 354. Additionally, resolution of this issue requires the interpretation of K.S.A. 60–1507(f). Interpretation of a statute is a question of law over which an appellate court exercises unlimited review. Unruh v. Purina Mills, 289 Kan. 1185, 1193, 221 P.3d 1130 (2009).
K.S.A. 60–1507(f) states:
“(1) Any action under this section must be brought within one year of: (i) The final order of the last appellate court in this state to exercise jurisdiction on a direct appeal or the termination of such appellate jurisdiction; or (ii) the denial of a petition for writ of certiorari to the United States supreme court or issuance of such court's final order following granting such petition.
“(2) The time limitation herein may be extended by the court only to prevent a manifest injustice.”
Manifest injustice under K.S.A. 60–1507(f)(2) has been interpreted to mean “ ‘obviously unfair’ “ or “ ‘shocking to the conscience.’ “ See, e.g., Ludlow v. State, 37 Kan.App.2d 676, 686, 157 P.3d 631 (2007). It is the movant's burden to establish manifest injustice by a preponderance of the evidence. Supreme Court Rule 183(g) (2011 Kan. Ct. R. Annot. 259).
Here, Wilson raised the issue of manifest injustice before the district court and the district court failed to explicitly address the issue in its written decision. Under Supreme Court Rule 183(j), the district court must make findings of fact and conclusions of law on all issues presented in a K.S.A. 60–1507 action. But Wilson failed to object below to the district court's allegedly inadequate findings of fact or conclusions of law and thus deprived the district court of an opportunity to correct them. In the absence of an objection, the district court is presumed to have found all facts necessary to support its judgment; omissions in findings will not be considered on appeal. Gilkey v. State, 31 Kan.App.2d 77, 77–78, 60 P.3d 351, rev. denied 275 Kan. 963 (2003).
We begin by noting that Wilson has failed to renew on appeal the two grounds for manifest injustice that he raised before the district court— i.e., the allegedly defective original complaint and the State's failure to follow the statutory procedure under K.S.A. 22–3305(2) (Ensley 1988). An issue not briefed by the appellant is deemed waived and abandoned. National Bank of Andover v. Kansas Bankers Surety Co., 290 Kan. 247, 281, 225 P.3d 707 (2010). Likewise, we note that the grounds Wilson argues on appeal to establish manifest injustice—his long-term incompetency, learning disability, inability to read or write, and pro se status—were not argued in district court. Generally, subject to certain exceptions, an issue not raised before the district court cannot be raised on appeal. In re Care & Treatment of Miller, 289 Kan. 218, 224–25, 210 P.3d 625 (2009); see also Wilkerson v. State, 38 Kan.App.2d 732, 734, 171 P.3d 671 (2007) (holding that “manifest injustice sufficient to extend the time limitations of K.S.A. 60–1507[f] is generally fact sensitive in part and must be raised in the motion itself or at least presented to the district court or it will not be considered on appeal”). Wilson does not argue that any exceptions apply to circumvent this procedural rule.
Despite these procedural barriers, we will address the two grounds Wilson raised before the district court alleging manifest injustice. First, Wilson argued that the original complaint was fatally defective, apparently because it failed to allege malice, an essential element of the crimes of first-degree murder and second-degree murder. Relying on State v. Browning, 245 Kan. 26, 774 P.2d 935 (1989), Wilson contended that this fatal defect could not be cured by the State's later filing of an amended complaint charging him with second-degree murder. The amended complaint included the element of malice.
In Browning, the defendant was originally charged with first-degree murder, but the complaint did not include the element of malice. At the plea hearing, the State orally moved to amend the charge to second-degree murder but did not otherwise indicate specific places where language should be changed or inserted. On appeal, our Supreme Court agreed that the original complaint was fatally defective because it failed to allege malice and found that the oral amendment to second-degree murder was also defective because it was not detailed and specific and did not add the element of malice. Thus, our Supreme Court found that the trial court did not have jurisdiction and reversed the defendant's conviction. 245 Kan. at 28–31.
Wilson's case is easily distinguishable from Browning because here the State actually filed an amended complaint alleging malice as an essential element of second-degree murder. And as the State points out, a complaint challenged for the first time in a collateral appeal is construed liberally in favor of validity and the document is reviewed as a whole. The complaint will be upheld unless it is so defective that it does not, by any reasonable construction, charge an offense for which the defendant is convicted. State v. Hall, 246 Kan. 728, 764, 793 P.2d 737 (1990), overruled on other grounds by Ferguson v. State, 276 Kan. 428, 78 P.3d 40 (2003).
We note that the State—and not Wilson—pointed out in its brief that the amended complaint charging Wilson with second-degree murder did not include the statutory language “without deliberation.” See K.S.A. 21–3402 (Ensley 1981). Nevertheless, this omission does not make the amended complaint fatally defective. Wilson has not argued that the amended complaint was so defective as to prejudice the preparation of his defense, impair his ability to plead the conviction in a subsequent prosecution, or limit his right to a fair trial. See State v. Gonzales, 289 Kan. 351, 366–68, 212 P.3d 215 (2009). Thus, Wilson failed to show that consideration of his first ground was necessary to prevent manifest injustice.
Next, Wilson argued that the State was prohibited from filing new charges against him for the 1985 homicides because the State failed to request a competency hearing under K.S.A. 22–3305(2) (Ensley 1988) within 10 days of his discharge from civil commitment in January 1992. K.SA. 22–3305(2) (Ensley 1988) states in relevant part:
“Whenever involuntary commitment proceedings have been commenced ... and the defendant is committed to a treatment facility as a patient but thereafter is to be discharged pursuant to the treatment act for mentally ill persons, the defendant shall remain in the institution where committed ... and the head of the treatment facility shall promptly notify the court and the county or district attorney of the county in which the criminal proceedings are pending that the defendant is to be discharged.
“... Upon request of the county or district attorney, the court may set a hearing on the issue of whether or not the defendant has been restored to competency. If no such request is made within 10 days after receipt of notice ..., the court shall order the defendant to be discharged from commitment and shall dismiss without prejudice the charges against the defendant, and the period of limitation for the prosecution for the crime charged shall not continue to run until the defendant has been determined to have attained competency....” (Emphasis added.)
By the plain language of K.S.A. 22–3305(2) (Ensley 1988), the State is not required to request a competency hearing. And even if the State fails to request a hearing and the defendant is discharged from civil commitment, the criminal charges are dismissed without prejudice—meaning the State can later refile the charges—and the statute of limitations is tolled until the defendant attains competency. Clearly, the State's failure to request a competency hearing when Wilson was discharged from civil commitment in 1992 did not bar the State from later refiling the homicide charges against him. Thus, Wilson also failed to show that consideration of his second ground was necessary to prevent manifest injustice.
Turning to Wilson's arguments, raised for the first time on appeal, that manifest injustice can be found where his long-term incompetency, learning disability, inability to read or write, and pro se status prevented him from timely filing his K.S.A. 60–1507 motion, he cites no authority to support his proposition. In numerous unpublished opinions, this court has held that a movant's pro se status is insufficient to excuse his or her failure to abide by the 1–year filing deadline of K.S.A. 60–1507(f). See, e.g., Patterson v. State, No. 106,149, 2012 WL 2924608, at *4 (Kan.App.2012) (finding that pro se K.S.A. 60–1507 movants are in the same position as all other pro se civil litigants and must be aware of and follow the rules of civil procedure) petition for rev. filed August 13, 2012. This court has also found that a movant's communication difficulties were insufficient to show manifest injustice. Pacheco v. State, No. 100,656, 2009 WL 3172783, at *2 (Kan.App.2009) (unpublished opinion) (finding that movant's language barrier did not justify extension of 1–year filing deadline where movant failed to allege any specific instance of manifest injustice resulting from the language barrier) rev. denied 290 Kan. 1094 (2010). Finally, this court has found that a movant's mental disease or defect not reaching the level of incompetency was insufficient to show manifest injustice. Riggle v. State, No. 105,691, 2012 WL 2045352, at *2 (Kan.App.2012), petition for rev . filed July 2, 2012.
These cases are consistent with federal courts' approach to determining whether a movant has demonstrated “rare and exceptional circumstances” that justify equitable tolling of the 1–year statute of limitations on federal habeas corpus actions. See, e.g., United States v. Sosa, 364 F.3d 507, 512–13 (4th Cir.2004) (stating that federal courts generally apply equitable tolling based on a movant's mental condition only in cases of profound mental incapacity, such as institutionalization or adjudged mental incompetence); Turner v. Johnson, 177 F.3d 390, 391–92 (5th Cir.), cert. denied528 U.S. 1007 (1999) (finding that neither a petitioner's unfamiliarity with the legal process, whether due to illiteracy or any other reason, nor his lack of legal representation during the filing period merit equitable tolling). Therefore, Wilson's long-term incompetency, learning disability, inability to read or write, and pro se status are not sufficient bases for a finding of manifest injustice.
In summary, the arguments Wilson made in district court to support manifest injustice have not been renewed on appeal. And the arguments Wilson raises on appeal to support manifest injustice were not made in district court. Even if we disregard these procedural barriers, Wilson has failed to raise a meritorious argument for allowing his motion to be filed out of time based on manifest injustice. For these reasons, we conclude the district court did not err in denying Wilson's K.S.A. 60–1507 motion as untimely. Moreover, because Wilson's grounds for supporting manifest injustice were the same as his substantive grounds for relief in his K.S.A. 60–1507 motion, we also conclude the district court did not err in finding that the files and records of the case conclusively established that Wilson was not entitled to any relief.
Affirmed.