Danny E. Beauclair, Appellant,
State of Kansas, Appellee.
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
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).
of the judgment of the Court of Appeals in an unpublished
opinion filed March 4, 2016.
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.
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.
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.
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
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.
Factual and Procedural Background
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).
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.
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
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
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
"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.
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
compared 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 'Declarations'
against interest exonerating this Defendant of all Counts
here." Beauclair did not, however, argue directly that
actual innocence entitled him to relief.
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
"The alleged victim has now signed a 3rd declaration
dated 3-30-2007, which exonerates the defendant of all
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
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
). 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.
the Court of Appeals decision, Beauclair continued to file
pro se motions:
• March 22, 2011: Motion to Correct Breach of Plea
• 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.
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."
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.
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.
"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."
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