When a defendant's conviction is affirmed on direct appeal but the case is remanded for resentencing, the 1-year time limitation for bringing an action under K.S.A. 60-1507 begins to run after the period for taking a direct appeal from the new sentence expires.
Modified opinion filed August 5, 2013.
Review of the judgment of the Court of Appeals in 42 Kan.App.2d 949, 219 P.3d 827 (2009). Appeal from Sedgwick District Court; Anthony J. Powell, judge
Elizabeth Seale Cateforis, of Paul E. Wilson Defender Project, University of Kansas School of Law, of Lawrence, argued the cause and was on the brief for appellant.
Boyd K. Isherwood, assistant district attorney, argued the cause, and Nola Tedesco Foulston, district attorney, and Steve Six, attorney general, were with him on the brief for appellee.
On direct appeal, this court affirmed Lynwood Baker's conviction for first-degree murder but remanded the case for resentencing. Within 1 year of the resentencing hearing, but more than a year after the remand, Baker filed a K.S.A. 60-1507 motion alleging ineffective assistance of trial counsel. The district court appointed counsel, conducted a hearing, and dismissed the motion as untimely. The Court of Appeals reversed, holding that the time limitation under K.S.A. 60-1507 began 10 days after resentencing. On the State's petition for review, we consider when the time limitation provided in K.S.A. 60-1507(f) begins to run in a case where the defendant's conviction was affirmed on direct appeal, but the case was remanded for resentencing.
Facts and Procedural Background
Lynwood Baker was convicted of first-degree murder and sentenced to life in prison without the possibility of parole for 50 years. On direct appeal, this court affirmed his conviction but vacated his sentence and remanded for resentencing. The opinion was issued June 9, 2006. State v. Baker, 281 Kan. 997, 135 P.3d 1098 (2006). The mandate issued July 5, 2006. On December 21, 2006, Baker was resentenced to life in prison without the possibility of parole for 25 years. Baker did not file a direct appeal of the new sentence imposed on December 21, 2006.
On August 6, 2007, Baker filed a motion under K.S.A. 60-1507 alleging ineffective assistance of trial counsel. The district court appointed counsel to represent Baker. After a hearing, the district court denied Baker's motion as untimely filed.
On appeal, the Court of Appeals reversed the district court's finding that the motion was untimely filed and remanded for "further proceedings and a determination by the trial court of whether Baker's K.S.A. 60-1507 motion raised a substantial question of law or triable issue of fact regarding whether trial counsel was ineffective." Baker v. State, 42 Kan.App.2d 949, 219 P.3d 827 (2009). The State filed its petition for review. We granted review to consider when the time for filing a K.S.A. 60-1507 motion begins when a conviction is upheld on direct appeal but the sentence is vacated and the matter is remanded for resentencing.
Time for Filing K.S.A. 60-1507 Motion
This court has not considered when the 1-year time limitation begins to run in a case where the defendant prevailed on direct appeal and the conviction was affirmed but the case was remanded for resentencing. The Court of Appeals held: "In a case where our Supreme Court has ordered that a defendant is to be resentenced after a direct appeal, the 1-year time period, under K.S.A. 60-1507(f), for bringing a timely action under K.S.A. 60-1507 will start to ...