Appeal from Sedgwick district court; DAVID W. KENNEDY, judge.
1. Jurisdiction is a question of law over which this court exercises unlimited review. When the record discloses a lack of jurisdiction, it is the duty of the appellate court to dismiss the appeal.
2. Under the facts of this case, an actual controversy exists which permits appellate review.
3. The scheme for post-conviction forensic DNA testing contained in K.S.A. 2006 Supp. 21-2512 is not the equivalent of a criminal prosecution.
4. When the results of post-conviction DNA testing received by the court are unfavorable to the petitioner as described in K.S.A. 2006 Supp. 21-2512(f)(1), the petition for testing shall be dismissed.
5. When the results of post-conviction DNA testing are unfavorable to the petitioner as described in K.S.A. 2006 Supp. 21-2512(f), the petitioner has no right to confront the individual who conducted the testing and no right to be present at any hearing where the test results are received by the court.
6. When the results of post-conviction DNA testing are unfavorable to the petitioner as described in K.S.A. 2006 Supp. 21-2512(f)(1), the court's acceptance of the report is not subject to the strict rules of evidence.
The opinion of the court was delivered by: Nuss, J.
Dale M.L. Denney appeals the district court's dismissal of his petition for post-conviction forensic DNA testing under K.S.A. 2006 Supp. 21-2512 and of various satellite motions. We transferred his appeal from the Court of Appeals pursuant to K.S.A. 20-3018(c).
The issues on appeal, and this court's accompanying holdings, are as follows:
1. Does an actual controversy exist, warranting review? Yes.
2. Did the district court err in dismissing Denney's petition for post-conviction forensic DNA testing? No.
3. Did the district court err in dismissing Denney's pro se motions?
Accordingly, we affirm the district court.
The procedural history was previously set out in State v. Denney, 278 Kan. 643, 101 P.3d 1257 (2004). The summary relevant to the instant matter is as follows:
"Criminal Acts and Convictions
"In 1987, Denney was convicted of rape and aggravated burglary. His sentences were of indeterminate length, and his sentence begin date was January 7, 1988. He was paroled on July 20, 1992, and was on parole at the times of the offenses described below.
"Among other things, Denney held a steak knife against the throat of his sister-in-law, P.D., and penetrated her anus with his penis. Because these offenses occurred in October 1992, the new Kansas Sentencing Guidelines Act (KSGA), K.S.A. 21-4701 et seq., did not yet apply. See K.S.A. 21-4723. Accordingly, Denney was charged with, and eventually convicted of a Class B felony, aggravated criminal sodomy; a Class D felony, aggravated sexual battery; and a Class E felony, aggravated weapons violation. The sentences for aggravated sexual battery (6-20 years) and aggravated weapons violations (2-10 years) were to run concurrent with each other but consecutive to the aggravated criminal sodomy sentence of 30 years to life.
"After beating and choking his former girlfriend, A.L., and placing a belt around her throat, Denney penetrated her anus with his penis. Because these offenses occurred on July 16, 1993, the KSGA did apply. See K.S.A. 21-4723. These charges were consolidated for trial with the charges in 93 CR 1343. Denney was convicted in 93 CR 1268 of aggravated criminal sodomy (severity level 2 person felony), aggravated battery (severity level 4 person felony), aggravated sexual battery (severity level 5 person felony), and aggravated weapons violation (severity level 9 nonperson felony). The accompanying sentences were to run consecutively, for a total of 228 months. They were also to run consecutive to the sentences of 93 CR 1343.
"This court upheld the convictions from both 1993 cases in State v. Denney, 258 Kan. 437, 905 P.2d 657 (1995). Additionally, based upon these additional convictions, Denney's parole in 87 CR 944 was revoked on April 15, 1994.
"On September 12, 2002, Denney filed a pro se motion requesting that DNA testing be performed in 93 CR 1268 and 93 CR 1343 pursuant to K.S.A. 2003 Supp. 21-2512. The trial court denied the motion without appointing counsel and without oral argument, noting that the statute expressly limits testing to those cases in which an offender has been convicted of rape or murder and that Denney had been convicted of neither." 278 Kan. at 643-46.
On appeal, this court held that there was no rational basis for allowing post-conviction DNA testing for rapists -- those convicted of penetration of the female sex organ by the male sex organ when consent is obtained through knowing misrepresentation -- and not allowing testing for Denney, who was convicted of aggravated criminal sodomy for penetrating his victims' anuses with his penis through force or fear. Denney, 278 Kan. at 656. We held that K.S.A. 2003 Supp. 21-2512 violated the Equal Protection Clause because it failed to include Denney's specific situation.
Rather than nullify the statute, we extended it to include DNA testing for conduct like Denney's. We also remanded to the district court for further determination of whether Denney met the remaining qualifications for testing under the statute. 278 Kan. at 660-61.
On remand, the district court concluded that because the crimes alleged in 93 CR 1343 -- concerning Denney's sister-in-law -- were not reported until months after the episode, no evidence existed that could be submitted for DNA testing. However, evidence was available for testing in 93 CR 1268 -- concerning Denney's former girlfriend -- including rape kit swabs, light blue panties, and one blue washrag. Per the court's order in accordance with 21-2512(c), on March 4, 2005, the evidence was submitted to the Sedgwick County Regional Forensic Science Center (Center) for testing, along with a recent sample of DNA obtained from Denney by law enforcement. The Center's forensic laboratory division is an ASCLD/Lab accredited laboratory. A lab report of the Center's test results was submitted on May 31, 2005.
On July 21, 2005, Denney filed a motion of "judicial notice of defendant's DNA expert witness with motion to extend court's July 22nd & 29th, 2005 hearings and to subpoena DNA expert witness to counter State's erroneous DNA profile." In the motion, Denney asserted that he had acquired the services of Dr. Edward Blake of Richmond, California; that Dr. Blake had reviewed the State's DNA profile; and that Blake "stated said profile is erroneous and inconclusive."
Despite Denney's motion to extend, a hearing was held on July 29, 2005. There, the State summarized the Center's lab report: "[T]here's no -- absolutely no question that the semen detected in the rectal swab of the victim was the defendant's." While no DNA testing of the victim's light blue panties could be done, semen was detected on the blue washrag and the DNA from the sperm cell fraction obtained there was consistent with Denney's DNA.
The three-page lab report stated that Polymerase Chain Reaction (PCR) DNA analysis had been ...