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Vontress v. State

Supreme Court of Kansas

May 30, 2014


Page 1115

Review of the judgment of the Court of Appeals in 45 Kan.App.2d 430, 249 P.3d 452 (2011).

Appeal from Sedgwick District Court; TIMOTHY H. HENDERSON, judge.

Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed.



1. Statutory interpretation is a question of law, and the appellate court's review is unlimited.

2. When interpreting a statute, 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.

3. Generally, an appellate court does not consider issues raised for the first time at oral arguments. However, it has authority to address issues that it has raised there on its own.

4. An action under K.S.A. 60-1507 is a separate civil action that is generally governed by the rules of civil procedure. But those rules do not apply if they are displaced by a more specific provision.

5. Statutes complete in themselves, relating to a specific subject, take precedence over general statutes or over other statutes that deal only incidentally with the same question. When a statute dealing generally with a subject conflicts with another statute dealing specifically with a certain phase of that subject, the specific statute controls.

6. K.S.A. 60-1507(f) alone controls whether a 60-1507 motion is timely because it is more specific than the general time limitation exception in K.S.A. 2013 Supp. 60-206(b).

7. Manifest injustice under K.S.A. 60-1507 must be determined under the totality of the circumstances.

8. In determining whether the defendant has shown a manifest injustice under the totality of the circumstances, the district court should consider the following, non-exhaustive factors: (1) whether the prisoner provides persuasive reasons or circumstances that prevented him or her from filing the K.S.A. 60-1507 motion within the 1-year time limitation; (2) whether the merits of the prisoner's claim raise substantial issues of law or fact deserving of the district court's consideration; and (3) whether the prisoner sets forth a colorable claim of actual innocence.

9. Under the totality of the circumstances in this case, movant has failed to prove a manifest injustice to extend the 1-year time limitation in K.S.A. 60-1507(f).

Michael P. Whalen, Law Office of Michael P. Whalen, of Wichita, argued the cause and was on the brief for appellant.

Julie A. Koon, assistant district attorney, argued the cause, and Nola Tedesco Foulston, district attorney and Steve Six, attorney general, were with her on the brief for appellee.


Page 1116

[299 Kan. 608] NUSS, C.J.

Damon Vontress contends the district court and Court of Appeals both erred in denying his motion for habeas relief as untimely under K.S.A. 60-1507(f). While admitting his motion was untimely filed after the 1-year limit in K.S.A. 60-1507(f)(1), Vontress argues the summary denial of his motion caused " a manifest injustice" which entitled him to an extension of the time limit under K.S.A. 60-1507(f)(2). Both lower courts rejected this argument with varying rationales. We granted review to clarify the manifest injustice standard in K.S.A. 60-1507(f)(2).

We conclude a prisoner's failure to provide the reasons for the delay does not automatically exclude the late-filed motion. Rather, manifest injustice must be determined based on the totality of the circumstances in each case. But because there was no manifest injustice established under the totality of the circumstances here, we affirm the denial of Vontress' motion.

Facts and Procedural Background

A jury convicted Vontress of first-degree murder, aggravated robbery, aggravated battery, and criminal possession of a firearm. The district court imposed a mandatory 40-year prison sentence [299 Kan. 609] for the murder conviction

Page 1117

and consecutive sentences of 78 months, 41 months, and 8 months for the remaining counts. On direct appeal, we concluded that the convictions for aggravated robbery and aggravated battery were multiplicitous and reversed the conviction for the latter. We otherwise affirmed. See State v. Vontress, 266 Kan. 248, 257, 970 P.2d 42 (1998).

Ten years after this court's decision, Vontress filed the present motion for habeas relief under K.S.A. 60-1507, asserting Kansas law on premeditation is unconstitutional. The State responded Vontress' motion was untimely and therefore barred by K.S.A. 60-1507(f). The district court conducted a nonevidentiary ...

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