WILLIAM L. SCAIFE, Appellant,
STATE OF KANSAS, Appellee
Appeal from Wyandotte District Court; R.WAYNE LAMPSON, judge.
BY THE COURT
1. Any prisoner in custody under a sentence of a court of general jurisdiction may challenge his or her confinement and sentence, provided the challenge is brought either (a) within 1 year from the final order of the last appellate court to exercise jurisdiction on a direct appeal or (b) within 1 year from the termination of appellate jurisdiction. However, no challenge may be brought while a direct appeal is pending or during the time within which an appeal may be perfected.
2. If a defendant's sentence for a single conviction has been vacated and remanded for resentencing at the conclusion of the direct appeal, any issues relating to that sentence are still appealable, meaning appellate jurisdiction does not terminate under Supreme Court Rule 183(c) (2014 Kan. Ct. R. Annot. 285) thereby barring a motion under K.S.A. 60-1507, until the conclusion of appellate jurisdiction following resentencing. Moreover, a motion under K.S.A. 60-1507 is premature during that period because the defendant is not yet a prisoner in custody under sentence until after his or her resentencing.
3. Each charge in a case is to be considered its own information, meaning the final result in an affirmed conviction and sentence is unaffected by the reversal of another conviction and vice versa.
4. When one count of a defendant's convictions is vacated and the rest are affirmed, the defendant is free to file a motion under K.S.A. 60-1507 challenging any irregularities as to such affirmed convictions and sentences as of the date of the mandate on the defendant's direct appeal because appellate jurisdiction as to the affirmed charges terminated and the defendant became a prisoner in custody under a sentence on that date. In such an instance, the defendant has 1 year from the date of the mandate to file a motion under K.S.A. 60-1507.
5. Because it is fundamental to any claim under K.S.A. 60-1507(b) that prejudice to a defendant must result from the errors alleged, when one or more convictions are reversed and remanded for a new trial, all previous errors as to such charge or charges are cured. Should error infect the subsequent proceeding, then a collateral challenge under K.S.A. 60-1507 would not be based on the same grounds.
Gerald E. Wells, of Jerry Wells Attorney-at-Law, of Lawrence, for appellant.
Edmond Brancart, chief deputy district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Before POWELL, P.J., MCANANY, J., and BUKATY, S.J.
[51 Kan.App.2d 578]
William L. Scaife appeals the summary denial of his motion filed pursuant to K.S.A. 60-1507. Scaife argues the district court improperly denied his motion because (1) the court erroneously determined it was untimely and (2) it was manifest injustice for the court to summarily deny his timely motion without an evidentiary hearing. Because we agree with the district court that Scaife's motion was untimely, we affirm.
Factual and Procedural Background
The relevant facts are not in dispute. Scaife was convicted by a jury of (1) murder in the first degree, (2) attempted murder in the first degree, (3) two counts of aggravated robbery, and (4) felony fleeing to elude police. On direct appeal, the Kansas Supreme Court affirmed every conviction and sentence except the court vacated and remanded for retrial the conviction of murder in the first degree. State v. Scaife, 286 Kan. 614, 623, 186 P.3d 755 (2008). The Kansas Supreme Court announced its opinion on July 3, 2008, and issued its mandate on September 24, 2008. Scaife did not petition for writ of certiorari with the United States Supreme Court.
On December 31, 2008, upon remand to the district court, Scaife entered into a plea agreement in which he pled guilty to a reduced charge of voluntary manslaughter, agreed to accept a sentence under the Kansas Sentencing Guidelines Act, and waived his right to appeal. The district court accepted Scaife's plea and sentenced him to a guideline sentence on January 15, 2009. In accordance with his waiver, no direct appeal was filed by Scaife.
[51 Kan.App.2d 579] On January 6, 2010, Scaife filed his present K.S.A. 60-1507 motion in Wyandotte County District Court, alleging: (1) Scaife's original trial attorney was wrongly disqualified in violation of Scaife's rights under the Sixth and Fourteenth Amendments to 4 the United States Constitution, (2) Scaife's replacement counsel was ineffective during Scaife's trial and direct appeal in violation of Scaife's Sixth Amendment rights, and (3) a fatal variance existed between the information and the evidence produced at trial in violation of Scaife's Sixth and Fourteenth Amendment rights.
On December 12, 2011, after an unexplained delay of nearly 2 years, the district court summarily dismissed Scaife's motion solely because the motion had not been filed prior to the 1-year statutory deadline pursuant to K.S.A. 60-1507(f). Scaife appealed the district court's dismissal, and after a series of procedural ...