Appeal from Wyandotte District Court; R. WAYNE LAMPSON, judge.
SYLLABUS BY THE COURT 1. K.S.A. 60-1507 provides the exclusivestatutory remedy to collaterally attack a criminal conviction and sentence. K.S.A. 2012 Supp. 60-260(b)(4) cannot be used in a criminal proceeding to collaterally attack a criminal conviction and sentence. 2. A district court's erroneous refusal to give a requested jury instruction does not render the judgment of conviction void. 3. Generally, when an appellate court decision changes the law, that change acts prospectively and applies only to all cases, state or federal, that are pending on direct review or not yet final on the date of the appellate court decision.
The opinion of the court was delivered by: Johnson, J.:
The opinion of the court was delivered by
In 1995, a jury convicted Michael Mitchell of felony murder. On direct appeal, this court affirmed the conviction. State v. Mitchell, 262 Kan. 687, 942 P.2d 1 (1997) (Mitchell I). Mitchell then unsuccessfully sought relief based on allegations of ineffective assistance of counsel through two K.S.A. 60-1507 motions, one filed in 1998 and the other in 2005. In this proceeding, Mitchell filed a motion pursuant to K.S.A. 2012 Supp. 60-260(b)(4) in 2011, claiming that the district court's refusal to give his requested lesser included offense instructions on the felony-murder charge rendered void his conviction and sentence for that charge. Although Mitchell raises three issues in his brief, the case is resolved by our determination that K.S.A. 2012 Supp. 60-260(b)(4) does not provide a procedure for a criminal defendant to obtain post-conviction relief from his or her conviction or sentence. Accordingly, we affirm the district court's summary denial of Mitchell's motion to void judgment.
FACTUAL AND PROCEDURAL OVERVIEW
The facts that led to Mitchell's convictions for felony murder and cocaine possession are detailed in Mitchell I and need not be fully recited here. It is enough to know that the murder occurred during a drug deal "gone wrong," in which Mitchell was an armed cocaine dealer and the shot-to-death victim was an armed cocaine buyer. 262 Kan. at 688. Accordingly, Mitchell's felony-murder charge was based on the underlying inherently dangerous felony of sale of cocaine. 262 Kan. at 691.
At trial, defense counsel requested that the district court instruct the jury on the crimes of voluntary manslaughter and involuntary manslaughter as lesser included offenses of the felony-murder charge. The district court applied the then-existing law and determined that lesser included offense instructions were not warranted for the felony-murder charge in this case because "there is substantial evidence that this all arose out of a drug transaction," that is, the evidence of the underlying felony was not so weak as to permit lesser included offense instructions.
Mitchell did not include the district court's refusal of the requested lesser included offense instructions among the issues that he raised in his direct appeal. Likewise, he did not complain about the omitted instructions in his two post-conviction motions under K.S.A. 60-1507. Instead, he waited until 16 years after his conviction to seek relief on that basis by filing a 60-260(b)(4) motion in September 2011, alleging that his judgment of conviction was void because of the omitted lesser included offense instructions.
The district court summarily denied the 60-260(b)(4) motion for three reasons. First, the district court determined that the motion was filed outside of the applicable statute of limitations for motions to correct an illegal sentence and K.S.A. 60-1507, respectively, making the motion untimely. Second, the district court found that the issues could have and should have been raised in Mitchell's direct appeal or two prior 60-1507 motions, making the current motion a successive claim. Finally, the district court determined that failure to instruct the jury on lesser included offenses of felony murder was not erroneous, i.e., the motion was without merit. Mitchell filed a direct appeal to this court.
APPLICATION OF K.S.A. 2012 SUPP. 60-260(b)(4) IN CRIMINAL CASES
Mitchell's pro se motion did not cite to State v. Berry, 292 Kan. 493, 254 P.3d 1276 (2011), albeit the arguments in the motion make it apparent that Berry'schange in the law was the impetus behind the current motion. Moreover, Mitchell's appellate brief cites to and relies upon Berry's holding.
Berry eliminated the court-made rule that assessed the propriety of lesser included offense instructions for felony-murder charges by looking at whether the evidence of the underlying felony was weak and inconclusive. 292 Kan. at 513. Instead of the special rule for felony murder, which was utilized at Mitchell's trial, Berry simply applied the then-existing statutory provisions of K.S.A. 2012 Supp. 22-3414(3) to assess whether "there is some evidence which would reasonably justify a conviction of [the] lesser included crime[s]." ...