Edgar I. Sherwood, Appellant,
State of Kansas, Appellee.
BY THE COURT
1. If a
district court conducts a hearing on a K.S.A. 60-1507 motion
where the State will be represented by counsel, due process
of law requires the movant to be represented by counsel
unless the movant waives that right to counsel.
State may file a written response to a K.S.A. 60-1507 motion.
The district court's consideration of the State's
response, standing alone, does not constitute a hearing for
purposes of determining whether due process of law requires
the movant to be represented by counsel.
a K.S.A. 60-1507 motion and the files and records of the
case, including any response to the motion from the State,
conclusively show that the movant is entitled to no relief
under that motion, the district court may summarily deny the
motion without appointing counsel for the movant.
of the judgment of the Court of Appeals in an unpublished
opinion filed September 29, 2017.
from Sedgwick District Court; James R. Fleetwood, judge.
Michael P. Whalen, of Law Office of Michael P. Whalen, of
Wichita, was on the brief for appellant.
J. Maloney, assistant district attorney, Marc Bennett,
district attorney, and Derek Schmidt, attorney general, were
on the brief for appellee.
I. Sherwood filed a pro se K.S.A. 60-1507 motion about 18
years after he was convicted of rape and aggravated criminal
sodomy in Sedgwick County. The State filed a written response
to Sherwood's motion, claiming the motion was untimely
and Sherwood failed to establish that a manifest injustice
excused the delay. The district court agreed and summarily
denied the motion. On appeal, Sherwood argues the district
court denied him due process when it failed to appoint
counsel to represent him after the State filed its response.
We affirm because Sherwood's due process rights were not
violated and summary denial was appropriate.
and Procedural Background
1997, Sherwood pled no contest to rape and aggravated
criminal sodomy of a five-year-old child. The district court
sentenced him to 404 months' imprisonment. The Court of
Appeals affirmed, and we denied Sherwood's petition for
review. State v. Sherwood, No. 79, 794, unpublished
opinion filed January 21, 2000 (Kan. App.), rev.
denied 269 Kan. 939 (2000).
January 2015, Sherwood filed a pro se K.S.A. 60-1507 motion
and a poverty affidavit, alleging ineffective assistance of
trial and appellate counsel and various sentencing errors. He
explained that his motion was delayed because he had a
learning disability and only recently found a prisoner
willing to help him draft the motion. Sherwood later filed
two more pro se motions: a motion asking for a copy of the
transcripts and plea agreement in his case and a motion
requesting the appointment of counsel.
September 2015, the State filed a written response to
Sherwood's K.S.A. 60-1507 motion. The State asked the
court to summarily deny the motion because the motion was
untimely, Sherwood's claims were conclusory, and he
failed to establish a manifest injustice. Three days later,
the district court summarily denied the motion with an order
"Petitioner's demands are based on conclusory
statements without any sufficient evidentiary references to
support such. Further the petition is time barred due to a 10
year delay in filing this action with no argument suggesting
or supporting the existence of manifest injustice to overcome
the statutory time limit in filing."
days after the order issued, Sherwood filed a pro se reply to
the State's response. He acknowledged that his motion was
untimely but claimed that a manifest injustice excused the
delay. To this end, he argued that his learning disability
prevented him from filing the motion on time and he struggled
to find legal assistance. That same day, Sherwood also filed
a motion to alter or amend the judgment, claiming the
district court failed to address all of his arguments and to
give him enough time to reply to the State's response. He
also reiterated his ...