Appeal from Wyandotte District Court; J. DEXTER BURDETTE, judge.
bye THE COURT
An individual who is in prison at the time he or she files a petition for postconviction DNA testing under K.S.A. 21-2512 satisfies the " in state custody" requirement of the statute.
Paul M. Dent, of Kansas City, argued the cause and was on the brief for appellant.
Jerome A. Gorman, district attorney, argued the cause, and Derek Schmidt, attorney general, was on the brief for appellee.
BEIER, J. ROSEN, J., dissenting.
This appeal arises from a second district court denial of defendant Jerome Cheeks' petition for postconviction DNA testing. We reverse and remand for further proceedings.
Factual and Procedural Background
Cheeks was convicted in 1993 of the second-degree murder of his wife. Cheeks received a prison sentence of 15 years to life imprisonment. This court affirmed his case on direct appeal. State v. Cheeks, 258 Kan. 581, 908 P.2d 175 (1995). We also affirmed a later district court denial of Cheeks' pro se motion to correct an illegal sentence. State v. Cheeks, 280 Kan. 373, 121 P.3d 989 (2005).
In March 2009, Cheeks filed a pro se petition for postconviction DNA testing under K.S.A. 21-2512. The petition was summarily denied because the statute limited the availability of such testing to cases involving convictions of first-degree murder under K.S.A. 21-3401 or of rape under K.S.A. 21-3502. Cheeks appealed to this court and prevailed. State v. Cheeks, 298 Kan. 1, 3, 310 P.3d 346 (2013). We extended K.S.A. 21-2512 to Cheeks and other similarly situated individuals under the authority of the Equal Protection Clause of the United States Constitution. 298 Kan. at 11.
While this last appeal was still pending, in May 2013, Cheeks was released from prison and placed on lifetime parole. His DNA testing petition was taken up again in district court, and the judge denied it after hearing. The judge rejected Cheeks' argument that Cheeks' satisfaction of the statute's " in state custody" requirement should be evaluated as of the time the petition was filed; instead the judge evaluated it as of the time the petition was heard in district court. ...