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State v. Phillips

Supreme Court of Kansas

March 29, 2019

State of Kansas, Appellee,
v.
Michael E. Phillips, Appellant.

         SYLLABUS BY THE COURT

         1. Whether a K.S.A. 22-3501 motion for new trial is timely is a question of law over which an appellate court exercises plenary review.

         2. If an appellate court's decision and mandate is fully determinative of the issues presented in the proceedings below, they become a part of the judgment of the case without further order of the trial court.

          Appeal from Sedgwick District Court; John J. Kisner, Jr., judge.

          Carl F.A. Maughan, of Maughan Law Group LC, of Wichita, was on the brief for appellant.

          Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, were on the brief for appellee.

          OPINION

          Nuss, C.J.

         Michael E. Phillips challenges the district court's denial of his motion for a new trial as untimely. The issue presented asks: for purposes of the timeliness of a K.S.A. 22-3501 motion for new trial based on newly discovered evidence, when is a judgment final?

         We conclude the district court correctly held the two-year period in which the motion must be filed began from the date the Supreme Court mandate was issued, i.e., when the judgment became final. Because Phillips' motion was not filed during this time, we affirm the district court.

         Facts and Procedural History

         A jury convicted Phillips of first-degree felony murder, two counts of attempted aggravated robbery, and criminal possession of a firearm. He was sentenced to life in prison, with a mandatory minimum of 20 years and lifetime postrelease supervision for felony murder; a consecutive 47 months for one attempted aggravated robbery conviction; a consecutive 34 months on the other attempted aggravated robbery conviction; and a concurrent 9 months for criminal possession of a firearm. Phillips appealed his conviction, resulting in our upholding all four counts and the term of imprisonment. State v. Phillips, 295 Kan. 929, 287 P.3d 245 (2012).

         But we did make one change to Phillips' sentence. Phillips, 295 Kan. at 950. The district court had ordered postrelease supervision for life. We vacated that part of his sentence, holding a "sentencing court has no authority to order a term of postrelease supervision in conjunction with an off-grid indeterminate life sentence." Phillips, 295 Kan. at 950. We did not include an order of remand in our opinion. The Clerk of the Supreme Court issued a mandate on February 11, 2013, notifying the district court that the Supreme Court had affirmed its judgment, except for vacating the postrelease supervision.

         Phillips later filed a K.S.A. 60-1507 motion to vacate, amend, or set aside the judgment. The motion was summarily denied at the district court level.

         Although the February 11, 2013 mandate contained no order of remand, the last paragraph read, "You are therefore commanded, [t]hat without delay you cause execution to be had of the judgment of the Supreme Court, according to law." Apparently acting on this language, the district court held a hearing on August 15, 2014, to discuss the mandate, stating it "appears that the Court has remanded this case back to this [c]ourt . . . ...


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