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White v. State

Supreme Court of Kansas

July 6, 2018

Stephen Douglas White, Appellant,
State of Kansas, Appellee.


         1. The Legislature's amendments to K.S.A. 60-1507(f), L. 2016, ch. 58, § 2, do not apply retroactively to 60-1507 motions filed before July 1, 2016.

         2. If an untimely motion was filed under K.S.A. 60-1507 before July 1, 2016, and the movant asserts the court should apply the manifest injustice exception to the one-year limitation period imposed in K.S.A. 60-1507(f), the test set out in Vontress v. State, 299 Kan. 607, 325 P.3d 1114 (2014), governs the analysis of whether the exception applies.

         3. Under the circumstances of this case, the district court's findings of fact and conclusions of law are insufficient for appellate review of a decision that the manifest injustice exception in K.S.A. 60-1507(f) does not apply.

         Review of the judgment of the Court of Appeals in an unpublished opinion filed June 10, 2016.

          Appeal from Butler District Court; David A. Ricke, judge.

          Joshua S. Andrews, of Cami R. Baker & Associates, P.A., of Augusta, argued the cause and was on the brief for appellant.

          Joseph M. Penney, assistant county attorney, argued the cause, and Derek Schmidt, attorney general, was with him on the brief for appellee.


          LUCKERT, JUDGE

         Around one year after a statutory deadline, Stephen D. White filed a motion under K.S.A. 60-1507 (Furse 2005). In his motion, White asked the district court to apply the manifest injustice exception in 60-1507(f), which allows consideration of 60-1507 motions even if filed late. The district court rejected White's manifest injustice argument, and White appealed. While his appeal was pending, the Legislature amended 60-1507 and changed the manifest injustice factors. As a matter of first impression for this court, we hold the amendments do not apply retroactively, and the preamendment factors govern White's appeal. Although the district court applied the preamendment factors, we conclude the court's findings of fact are insufficient for appellate review. As a result, we remand this case to the district court.


         White pleaded no contest to a charge of rape of a child under age 14. In exchange for his plea, the State dismissed two additional counts of the same charge. The State agreed to a departure sentence from a hard 25 life sentence to a sentence for a specified term of months, as defined in an agreed-upon sentencing guidelines grid box. The State's agreement was contingent on White presenting, and the court finding, substantial and compelling reasons to depart. The State also agreed to remain silent if White sought an additional downward departure and to file an amended information to reflect the parties' agreement. The district court questioned White about the agreement and ultimately accepted his plea under the agreement.

         At the later sentencing hearing, the district court heard arguments on White's departure motion. It found that White had failed to present substantial and compelling reasons for a departure. The district court then imposed a sentence of life imprisonment with a mandatory minimum imprisonment term of 25 years.

         White filed an appeal in which the Appellate Defender's Office (ADO) represented him. The ADO filed a motion asking that the Court of Appeals consider his appeal without full briefing given the limited grounds for an appeal from a plea and statutorily authorized sentence. See Supreme Court Rule 7.041A (2018 Kan. S.Ct. R. 47). The Court of Appeals granted the request and summarily affirmed White's sentence in January 2013. The Clerk of the Appellate Court issued the mandate, which made White's judgment of conviction and sentence final on February 12, 2013.

         White filed a pro se motion for relief under K.S.A. 60-1507 on April 10, 2015. A motion under K.S.A. 60-1507 must be filed within one year of specified events-here, within one year of the mandate. A court may extend that period to prevent manifest injustice. K.S.A. 60-1507(f). White conceded he failed to meet the one-year deadline but argued the court should find manifest injustice and extend the filing deadline. To support a finding of manifest injustice, White asserted he did not learn of the outcome of his direct appeal until about two years after the Court of Appeals' mandate. The district court appointed counsel for White and held a preliminary hearing to determine whether manifest injustice justified extending the deadline.

         During the preliminary hearing, White's appointed counsel questioned White about his direct appeal. White testified about his limited contacts with the appellate defender who represented him. Specifically, White testified he received no correspondence from his appellate defender before January 2015, other than one communication. At trial he could not remember the substance of that communication, but in his pro se motion he stated he had received a letter from his appellate defender that enclosed a copy of the motion for summary disposition. In January 2015, White sent a letter to his appellate defender in which he asked about the status of his appeal.

         The appellate defender sent a letter in response, which the court admitted into evidence at the preliminary hearing. In the letter, the appellate defender referenced an earlier letter mailed to White in January 2013. The appellate defender recapped the contents of the January 2013 letter. In that letter, the appellate defender had explained White lost before the Court of Appeals. The letter also stated the ADO would not file a petition seeking review by the Kansas Supreme Court unless it heard back from White.

         The district court also admitted into evidence other letters between White and his appellate defender. In one letter, the appellate defender admitted he had failed to inform White when the Appellate Clerk issued the mandate in his direct appeal. The appellate defender also explained the ADO had closed White's file when it did not hear from him in response to the January 2013 letter. Thus, no petition for review of the Court of Appeals decision was filed. Because the ADO had failed to give White notice that the mandate had issued, his appellate defender offered to submit an affidavit to support White's late 60-1507 submission.

         At the preliminary hearing, the district court also admitted the appellate defender's affidavit into evidence. In the affidavit the appellate defender stated his office had failed to notify White when the mandate issued. The appellate defender also said White wrote to ask about the status of his appeal in early January 2015. The affidavit mentioned no January 2013 letter, and no one offered a copy of that letter as evidence.

         White responded to questions from his habeas counsel at the preliminary hearing. He testified about waiting to receive the mandate and his plan to file a 60-1507 motion alleging ineffective assistance of counsel as soon as the mandate issued. He explained he had no knowledge of the appellate system and had been informed that the process moves slowly. At some point, someone suggested he write his appellate counsel to ask about his appeal. This prompted him to send the January 2015 letter. White's habeas counsel did not ask White any questions related to the merits of the issues raised in White's 60-1507 motion. Nor did habeas counsel ask about White's claims of innocence.

         On cross-examination, White testified that he had not received the appellate defender's January 2013 letter. The State then asked White a question related to the merits of his 60-1507 motion. In particular, the State asked what White understood when he entered the plea about the possible sentence he faced. White's habeas counsel objected on relevance grounds. The State then cited Vontress v. State, 299 Kan. 607, 325 P.3d 1114 (2014), and its totality-of-the-circumstances test. The State noted the test set out three factors, one of which requires consideration of whether "the merits of the movant's claim raise substantial issues of law or fact deserving of the district court's consideration." 299 Kan. at 616. Given that factor, the State argued its questions would elicit relevant testimony about the merits of White's claims. The district court allowed the State to continue its merits-related questioning.

         Once the attorneys finished with their questions, the district court questioned White. The court first asked White to list the prisons in which the Department of Corrections had housed him. The court then asked whether White had notified the ADO of his changes in location, and White testified he had. White also testified he received all communications from his appellate defender except the January 2013 letter. In response to the court's questions, White testified he had access to the internet; typed his motion on a typewriter, not a word processor; and had the ability to communicate with his appellate defender as long as he had the funds to pay for the postage. The court then offered the State and habeas counsel another opportunity to question White. Both declined to do so.

         Following the attorneys' arguments, the district court took a recess to review Vontress. When court resumed, the court ruled from the bench. The district court began by explaining that manifest injustice meant something shocking to the conscience or obviously unfair.

         Addressing the first Vontress factor, the district court commented that White "now claims in rather self-serving fashion that he actually didn't receive that communication even though he apparently received other communications sent from the same appellate defender's office without a problem." The court then cited Kansas law indicating the adoption of the one-year limit for habeas actions put all persons on constructive notice of the new provision of law. The court found White had some responsibility for monitoring the progress of his litigation.

         The court then considered the third Vontress factor, a claim of actual innocence. The court weighed the third factor against White based on its determination "that there's been no claim here of actual innocence, rather just procedural deficiencies are alleged."

         Finally, the district court turned to the second Vontress factor, finding no merit to White's claimed errors after reviewing the transcript of the plea hearing. The court denied relief, having concluded all three factors weighed against White.

         White appealed, and the Court of Appeals affirmed. White v. State, No. 114, 284, 2016 WL 3202889 (Kan. App. 2016) (unpublished opinion). The panel departed from the district court's analysis of the Vontress factors in some areas, as we will discuss more fully in our analysis. White then petitioned for review, which we granted.


         As we stated in our factual discussion, K.S.A. 60-1507(f) imposes a one-year time limit for filing a motion under its provisions. The time begins to run when specified events occur. In White's case, the time was measured from the date of the Court of Appeals mandate in his direct appeal. But that time "may be extended by the court only to prevent a manifest injustice." K.S.A. 60-1507(f). White had the burden to establish manifest injustice by a preponderance of the evidence. See Supreme Court Rule 183(g) (2018 Kan. S.Ct. R. 223).

         In Vontress, we interpreted the words "manifest injustice," which are not defined in 60-1507. We determined the words mean "obviously unfair" or "shocking to the conscience." 299 Kan. at 614. We then reviewed decisions from the Kansas Court of Appeals and federal courts to determine how to evaluate whether manifest injustice exists. 299 Kan. at 614-17. Synthesizing those decisions, we identified a nonexhaustive list of three factors for judges to consider under a totality of the circumstances approach. The three listed factors are:

"(1) the movant provides persuasive reasons or circumstances that prevented him or her from filing the 60-1507 motion within the 1-year time limitation; (2) the merits of the movant's claim raise substantial issues of law or fact deserving of the district court's consideration; and (3) the movant sets forth a colorable claim of actual innocence, i.e., factual, not legal, innocence." 299 Kan. at 616.

         We also explained: "All of the factors considered under the totality of the circumstances need not be given equal weight, and no single factor is dispositive." 299 Kan. at 616. As our factual discussion indicates, both the district court and the Court of Appeals considered these three factors.

         After the Court of Appeals decision, the Legislature amended K.S.A. 60-1507. L. 2016, ch. 58, § 2. These amendments listed the factors a court may consider when determining whether the manifest injustice exception applies to an untimely 60-1507 motion. K.S.A. 2017 Supp. 60-1507 now allows courts to consider only (1) a movant's reasons for the failure to timely file the motion (Vontress' first factor) or (2) a movant's claim of actual innocence (Vontress' third factor). The Legislature did not adopt the second Vontress factor of whether there existed a "substantial issue of law or fact," nor did it incorporate Vontress' allowance for other, nonlisted factors. See Hayes v. State, 307 Kan. 9, 14, 404 P.3d ...

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