Alcena M. Dawson, Appellant,
State of Kansas, Appellee.
BY THE COURT
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.
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.
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.
of the judgment of the Court of Appeals in an unpublished
opinion filed January 20, 2017.
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.
A. Koon, assistant district attorney, Marc Bennett, district
attorney, and Derek Schmidt, attorney general, were on the
brief for appellee.
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
and Procedural Overview
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.
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).
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.
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