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Dawson v. State

Supreme Court of Kansas

July 12, 2019

Alcena M. Dawson, Appellant,
v.
State of Kansas, Appellee.

         SYLLABUS BY THE COURT

         1. A K.S.A. 60-1507 movant has no constitutional right to the effective assistance of counsel in the postconviction proceedings, but under K.S.A. 22-4506(b) a district court has a statutory duty to appoint an attorney to represent an indigent 60-1507 movant whenever the motion presents substantial questions of law or triable issues of fact.

         2. As a matter of procedural due process, a K.S.A. 60-1507 movant has the right to counsel when the court holds a hearing to determine whether the motion, files, and records present a substantial question of law or triable issue of fact and the State is represented by counsel at the hearing.

         3. The district court's solicitation of a written response to a K.S.A. 60-1507 motion from the State's attorney, and the court's review of the State's response, is not the functional equivalent of a hearing and does not trigger the movant's due process right to an attorney.

         4. A district court is not required to entertain successive K.S.A. 60-1507 motions on behalf of the same movant unless there are exceptional circumstances. If the K.S.A. 60-1507 movant files a second or successive motion, the movant has the burden of establishing exceptional circumstances to avoid dismissal of the motion as an abuse of remedy.

         Review of the judgment of the Court of Appeals in an unpublished opinion filed January 20, 2017.

          Appeal from Sedgwick District Court; James R. Fleetwood, judge.

          Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, and Krystle M.S. Dalke, of the same firm, were on the brief for appellant.

          Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, were on the brief for appellee.

          JOHNSON, J.

         Alcena M. Dawson petitions for our review of the Court of Appeals' affirmance of the district court's summary denial of his fourth K.S.A. 60-1507 motion. He claims the district court violated his due process rights when it asked the State for a response to the motion and reviewed that response without appointing counsel for Dawson. Dawson also contends that he is entitled to an evidentiary hearing on his motion based upon exceptions that would permit his untimely and successive filing. Finding no error, we affirm the lower courts.

         Factual and Procedural Overview

         In 1997, a jury found Dawson guilty of the rape of his then girlfriend's seven-year-old daughter, D.C. The allegations of Dawson's genitalia-to-genitalia touching of D.C. came to light after Dawson moved out of the girlfriend's house. The girlfriend called the police and subsequently took her daughter to the hospital for a sexual assault examination. During a colposcopic examination, one of the two sexual assault nurse examiners (SANE) involved noted some debris inside D.C., and collected it with a swab. The SANE could not say whether the debris contained DNA material. The swab was apparently never submitted to laboratory testing and at some point was destroyed.

         On direct appeal, Dawson challenged the SANEs' qualifications, the sufficiency of the evidence, and his criminal history. The Court of Appeals affirmed his conviction and sentence. State v. Dawson, No. 79, 652, unpublished opinion filed December 23, 1999 (Kan. App.), rev. denied 269 Kan. 935 (2000) (Dawson I).

         Since his direct appeal, Dawson has filed multiple postconviction motions, several of which are relevant here. In 2001, Dawson filed what appears to be his first K.S.A. 60-1507 motion. This motion is not included in the record of this appeal, but according to the district court's final order dismissing Dawson's current motion, Dawson's 2001 motion raised a Batson challenge and a claim of ineffective assistance of counsel. The district court denied the 2001 motion and Dawson did not appeal.

         In 2002, Dawson filed his second K.S.A. 60-1507 motion, which is also not included in the record of this appeal. According to the resulting Court of Appeals opinion, that motion asserted ineffective ...


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