[Copyrighted Material Omitted]
Appeal from Geary District Court; MARITZA SEGARRA, judge.
BY THE COURT
1. An appellate court reviews a district court's decision on a motion for new trial for an abuse of discretion.
2. Statutory interpretation and construction are subject to unlimited appellate review.
3. The fundamental rule to which all other rules are subordinate is that the intent of the legislature governs if that intent can be ascertained. When language is plain and unambiguous, there is no need to resort to statutory construction. An appellate court merely interprets the language as it appears; it is not free to speculate and cannot read into the statute language not readily found there.
4. The following factors are among those to be considered in determining whether the legislature's use of the word " shall" makes a particular provision mandatory or directory: (1) legislative context and history; (2) substantive effect on a party's rights versus merely form or procedural effect; (3) the existence or nonexistence of consequences for noncompliance; and (4) the subject matter of the statutory provision.
5. The 14-day time limit set forth in K.S.A. 2012 Supp. 22-3501(1) for motions for new trial based on grounds other than newly discovered evidence is mandatory, not discretionary.
6. A motion for new trial may be granted in the interest of justice, but only if the motion is timely filed.
7. Mislabeled pro se motions for new trial under K.S.A. 2012 Supp. 22-3501 may be considered as K.S.A. 60-1507 motions.
8. To avoid the 1-year time limit for filing a K.S.A. 60-1507 motion, the movant must show that an extension of time is necessary to prevent a manifest injustice. " Manifest injustice" has been described as meaning obviously unfair or shocking to the conscience.
9. Issues not presented to the trial court generally will not be considered for the first time on appeal.
Sam S. Kepfield, of Hutchinson, argued the cause and was on the brief for appellant.
Steven L. Opat, county attorney, argued the cause, and Derek Schmidt, attorney general, was with him on the brief for appellee.
[298 Kan. 470] NUSS, C.J.
Stanton Holt directly appeals the district court's summary dismissal of his motion for new trial filed 16 years after his convictions. Because we agree the motion was untimely, we affirm. Our jurisdiction is under K.S.A. 22-3601(b) (convicted of Class A felony; maximum sentence of life imprisonment imposed).
In 1994, Holt was convicted by a jury of more than 60 offenses, including two counts of first-degree murder that arose out of a series of burglaries and related offenses in Junction City, Kansas. His controlling sentence is life plus 123 to 355 years. On direct appeal, Holt claimed jury instruction errors, insufficient evidence, and double jeopardy violations. This court affirmed in State v. Holt ( Holt I ), 260 Kan. 33, 917 P.2d 1332 (1996).
Holt has pursued many avenues of postconviction relief in Geary County District Court. He has filed four pro se habeas corpus motions under K.S.A. 60-1507; two pro se motions to correct an illegal sentence under K.S.A. 22-3504; a letter to the district court, which was treated as a motion for reconsideration; and the motion for new trial under K.S.A. 2010 Supp. 22-3501 (republished without amendment as K.S.A. 2012 Supp. 22-3501 and hereafter K.S.A. 2012 Supp. 22-3501), which is the subject of this appeal. He has also filed two habeas corpus motions under 28 U.S.C. § 2254 in United States District Court for the District of Kansas. Each of these motions was denied and affirmed on appeal, except for one motion to correct an illegal sentence that was granted by the Kansas [298 Kan. 471] Court of Appeals for one count that did not affect Holt's controlling sentence. See Holt v. State (Holt III),
No. 89,273, 2003 WL 22990148, at *1 (Kan. App. 2003) (unpublished opinion).
Holt filed his first 60-1507 motion in 1997. It raised several issues, including defective and multiplicitous complaint/information, prosecutorial misconduct, and ineffective assistance of trial counsel. The district court appointed counsel and set an evidentiary hearing. Before the hearing, the State filed a motion to dismiss, which Holt's attorney acquiesced to and the district court granted. The Court of Appeals affirmed the dismissal, noting: " In the opinion of Holt's lawyer and the district court, the 60-1507 petition failed to raise substantial issues of law or triable issues of fact. On appeal, Holt cites nothing in the record to support his petition." Holt v. State ( Holt II
), No. 81,489, unpublished opinion filed January 29, 1999 (Kan. App.), slip op. at 2.
Holt's second 60-1507 motion raised issues similar to the first, ...