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Beauclair v. State

Supreme Court of Kansas

June 22, 2018

Danny E. Beauclair, Appellant,
State of Kansas, Appellee.


         1. When a K.S.A. 60-1507 movant advances a claim of actual innocence as a gateway to overcome the procedural bar of untimeliness under K.S.A. 60-1507(f), he or she is entitled to consideration of the merits of the motion if the claim of actual innocence meets the standard outlined in Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986).

         2. A colorable claim of actual innocence based on a crime victim's recantation of the testimony that forms the basis for the charge against a defendant qualifies as an unusual event that prevented the defendant from raising the issue previously, and it excuses the procedural bar of successiveness under K.S.A. 60-1507(e).

          Review of the judgment of the Court of Appeals in an unpublished opinion filed March 4, 2016.

          Appeal from Shawnee District Court; Evelyn Z. Wilson, judge.

          Jonathan B. Phelps, of Phelps-Chartered, of Topeka, argued the cause and was on the brief for appellant.

          Natalie Chalmers, assistant solicitor general, argued the cause, and Jodi E. Liftin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, were on the brief for appellee.


          BEIER, J.

         This appeal addresses current law on whether a criminal defendant's claim of actual innocence excuses procedural defaults that would otherwise bar litigation of motions filed under K.S.A. 60-1507.

         Defendant Danny E. Beauclair pleaded no contest in 2001 to one count of rape of a child under 14 years of age and one count of aggravated criminal sodomy of a child under 14 years of age. After an unsuccessful direct appeal, approximately two years after his original plea, Beauclair filed a motion to withdraw plea. The motion was based in part on a claim of newly discovered evidence, which consisted of a signed affidavit from the victim that, if believed, would have exonerated Beauclair of both crimes. At an evidentiary hearing on the motion, Beauclair's attorney did not secure the attendance of the recanting victim or admit live testimony from her. Because the victim was absent, the district court judge treated her affidavit as inadmissible hearsay and did not reach the merits of Beauclair's motion. On appeal, that decision was upheld.

         Since that time, Beauclair has filed multiple pro se motions seeking relief on a variety of grounds. In this case, arising from a K.S.A. 60-1507 motion filed in August 2012, Beauclair raised a claim of ineffective assistance of counsel on an intervening K.S.A. 60-1507 motion. It is undisputed that the motion underlying this appeal was untimely and successive. To avoid the resulting procedural bars, Beauclair has argued manifest injustice based on his claim of actual innocence. The district judge summarily denied Beauclair's August 2012 motion without an evidentiary hearing. A Court of Appeals panel affirmed. We granted Beauclair's petition for review.

         As explained below, we hold that Beauclair's assertion of actual innocence entitles him to an evidentiary hearing to determine its credibility, specifically, whether it establishes manifest injustice or exceptional circumstances sufficient to require the district court to address the merits of his ineffective assistance of counsel claim.

         Further Factual and Procedural Background

         In 2001, two years after he was charged, Beauclair entered his no contest pleas. See State v. Beauclair, 281 Kan. 230, 231, 130 P.3d 40 (2006) (Beauclair III). The victim was Beauclair's stepdaughter. Beauclair's direct appeal, which challenged a technical error in his sentence, provided him no relief. See State v. Beauclair, No. 88, 885, slip op. at 2 (Kan. App.) (Beauclair I) (unpublished opinion), rev. denied 276 Kan. 970 (2003).

         In the motion to withdraw plea that followed, Beauclair advanced several arguments, including newly discovered evidence. The new evidence was that the victim had recanted her accusations in a signed declaration, which was attached to the motion. As mentioned, at the hearing on the motion, Beauclair's counsel did not require the recanting victim to appear and testify. District Judge Matthew J. Dowd rejected Beauclair's motion to withdraw plea, treating the declaration as inadmissible hearsay.

         Beauclair appealed Judge Dowd's decision. A Court of Appeals panel reversed because Beauclair had been misinformed about the maximum sentence he faced. See State v. Beauclair, No. 91, 999, 2005 WL 1805159, at *2 (Kan. App. 2005) (Beauclair II) (unpublished opinion), rev'd 281 Kan. 230. The panel did not reach the merits of Beauclair's remaining issues, including his assertion that newly discovered evidence demonstrated his actual innocence.

         This court granted review and reversed the panel's decision on the one sentencing issue it had addressed. The case was remanded to the Court of Appeals to address the remainder of Beauclair's issues. Beauclair III, 281 Kan. at 242.

         On remand, the panel affirmed Judge Dowd's denial of Beauclair's motion to withdraw plea. See State v. Beauclair, No. 91, 999, 2006 WL 3409225 (Kan. App. 2006) (Beauclair IV) (unpublished opinion), rev. denied 283 Kan. 930 (2007). It touched only briefly-and dismissively-on Beauclair's claim of exonerating new evidence.

"Beauclair claims the trial court abused its discretion by ignoring the affidavit of the victim he presented which he claims exonerates him. When Beauclair pled, he waived the right to confront his accusers. State v. Solomon, 257 Kan. 212, 221, 891 P.2d 407 (1995).
"Further, at any trial, the recantation affidavit would be looked upon '"with utmost suspicion."'State v. Bryant, 227 Kan. 385, 391, 607 P.2d 66 (1980)." Beauclair IV, 2006 WL 3409225, at *2.

         In 2007, Beauclair filed a motion to correct his sentence. Among the issues he raised was a challenge to his sentence based on conviction of a "general" rather than a "specific" offense. According to Beauclair, "aggravated incest is a 'specific' offense, as compa[]red to rape and sodomy, a 'general' offense." In support of this argument, Beauclair noted that "the alleged victim has now done not just one, not just two, but now three signed 'Decla[]rations' against interest exonerating this Defendant of all Counts here." Beauclair did not, however, argue directly that actual innocence entitled him to relief.

         Less than a month later, Beauclair filed a Motion to Withdraw Plea and Set Aside Judgment of Conviction and Memorandum in Support Thereof. One of the issues Beauclair raised was new evidence from the recanting victim. But the 30-plus-page pleading said little else on the topic:

"Recantation would be a job for a jury to decide, this case is an extraordinary and unusual case, as such the court should grant the illegal sentence here, and dismiss case for no jurisdiction and for Due Process violations also. . . . There is a showing of 'manifest injustice' by clear and convincing evidence here. But for counsel's performance was both deficient and prejudicial by not citing the statutes and how they appl[i]ed was deficient and prejudicial as the court in[ ]turn refused to consider the 'recantation' of the only witness that had 'direct examination' on Feb 27, 2001. As such, caused the defendant to stay in prison needlessly causing cruel and unusual punishment.
"The alleged victim has now signed a 3rd declaration dated 3-30-2007, which exonerates the defendant of all counts."

         Then District Judge Evelyn Z. Wilson denied Beauclair's motion and later issued an order summarily denying Beauclair's motion to withdraw plea and a motion for rehearing of his motion to withdraw plea. According to Judge Wilson's order, the issues had already been "fully litigated."

         Beauclair appealed all of Judge Wilson's rulings. In State v. Beauclair, No. 100, 161, 2010 WL 596992, at *6 (Kan. App.) (Beauclair V) (unpublished opinion), rev. denied 290 Kan. 1096 (2010), a Court of Appeals panel affirmed. The panel applied the procedural rules for a K.S.A. 60-1507 motion to Beauclair's motion to withdraw plea and treated it as successive. The panel held that Beauclair had failed to allege, much less demonstrate, manifest injustice, which was necessary for it to entertain a successive motion. 2010 WL 596992, at *4. In addition, the panel addressed a new ineffective assistance of counsel claim raised for the first time on appeal. Beauclair had argued that counsel at the original motion to withdraw hearing was ineffective for failing to present live testimony from the recanting victim. The panel concluded that Beauclair "never [sought] to justify the applicability of one of the exceptions" to permit the court to entertain an issue raised for the first time on appeal, a reference to the following exceptions: "(1) that the newly asserted theory involves only a question of law arising on proved or admitted facts and is finally determinative of the case; (2) that consideration of the theory is necessary to serve the ends of justice or to prevent denial of fundamental rights; and (3) that the judgment of the trial court may be upheld on appeal despite its reliance on the wrong ground or assign[ment of] a wrong reason for its decision." 2010 WL 596992, at *5 (citing State v. Hawkins, 285 Kan. 842, 845, 176 P.3d 174');">176 P.3d 174 [2008]). The panel also noted that "a recantation is generally viewed with suspicion" and said "Beauclair's admission of guilt to multiple individuals makes the victim's recantation suspect. Therefore, it is highly doubtful the court would have given much weight to [the victim's] testimony." Beauclair V, 2010 WL 596992, at *6.

         After the Court of Appeals decision, Beauclair continued to file pro se motions:

• March 22, 2011: Motion to Correct Breach of Plea Bargain.
• March 22, 2011: Motion for Recusal.
• April 11, 2011: Motion to Correct Illegal Sentence.
• April 20, 2011: Motion to Correct Breach of Diversion.
• June 2, 2011: Motion for Resentencing Hearing.

         In a July 2011 Memorandum Decision and Order, Judge Wilson denied Beauclair's motion for recusal. A month later she issued another Memorandum Decision and Order addressing the four remaining motions, denying each as "successive and an abuse of remedy."

         This pattern continued the next year when Judge Wilson denied another of Beauclair's motions-this time, a Motion to Correct Illegal Sentence-in March 2012. Again, Judge Wilson denied the motion as successive and an abuse of remedy.

         On August 2, 2012, Beauclair filed the pro se K.S.A. 60-1507 motion that has led to this appeal. The motion raised five issues: (1) actual innocence; (2) violation of due process through the State's reliance on diversion statements; (3) violation of due process because of the judge's failure to inform Beauclair of his right against compulsory self-incrimination; (4) violation of due process through failure to inform Beauclair that he would have to serve postrelease supervision; and (5) violation of due process because Beauclair was convicted without a recitation of facts supporting each element of the crimes. Beauclair also asserted that his claim of actual innocence constituted manifest injustice entitling him to withdraw his pleas.

         Beauclair noted that

"he is actually innocent of the offense asserting that his main accusers have now recanted/repudiated prior recantations. He attaches the affidavits which delve deeper into the substantive allegations, than that testified to by [M.M.] There . . . are also substantive affidavits by other family members who were privy to the allegations and offer intrinsic evidence and extrinsic evidence as to why the allegations were made in the first place."

         Beauclair attached 22 affidavits and declarations from the victim and others who had previously alleged abuse by Beauclair and from family members familiar with the circumstances surrounding the original allegations and his subsequent plea agreement. Rather than arguing actual innocence as a stand-alone claim for relief, Beauclair appears to have argued it as a "gateway" ...

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