Adrian M. Requena, 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of the judgment of the Court of Appeals in an unpublished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 22, 2017.
from Butler District Court; Michael E. Ward, judge.
Michael P. Whalen, of Law Office of Michael P. Whalen, of
Wichita, was on the brief for appellant, and Adrian M.
Requena was on a supplemental brief pro se.
M. Penney, assistant county attorney, and Derek Schmidt,
attorney general, were on the brief for appellee.
M. Requena filed a pro se K.S.A. 60-1507 motion almost 15
years after his rape conviction. The Butler County District
Court summarily denied the motion after considering a written
response by the State. On appeal, Requena argues the district
court violated his due process rights when it failed to
appoint counsel to represent him. We hold Requena's due
process rights were not violated, and summary denial was
appropriate because he failed to establish a manifest
injustice to excuse his untimely filing. Accordingly, we
convicted Requena of rape in December 1999. The Court of
Appeals affirmed his conviction, and we denied Requena's
petition for review. State v. Requena, 30 Kan.App.2d
200, 41 P.3d 862 (2001), rev. denied 273 Kan. 1039
(2002). A few years later, Requena filed his first pro se
K.S.A. 60-1507 motion, arguing that his trial counsel was
ineffective. The district court summarily denied the motion
and the Court of Appeals affirmed. Requena v. State,
No. 95, 443, 2006 WL 3740879 (Kan. App. 2006) (unpublished
2014, Requena filed his second pro se K.S.A. 60-1507 motion,
the one at issue in this appeal. This time, he argued: (1)
his criminal history score was incorrect based on State
v. Murdock, 299 Kan. 312, 323 P.3d 846 (2014),
overruled by State v. Keel, 302 Kan. 560, 357 P.3d
251 (2015); (2) his attorney on direct appeal was
ineffective; (3) a letter from a new witness proved his
innocence; and (4) the district court lacked jurisdiction to
convict him because he is a sovereign citizen. The State
filed a response a few months later arguing Requena's
criminal history score was correct because Murdock
did not apply. The State did not address Requena's other
district court summarily denied the motion in a written
order. The court agreed with the State that Murdock
did not affect Requena's criminal history score. In
Murdock, we held that all out-of-state
crimes committed before 1993 must be classified as nonperson
offenses. 299 Kan. at 319. At sentencing, Requena received a
criminal history score of C because he was previously
convicted of several nonperson felonies and one 1989 person
felony. See K.S.A. 21-4709 (stating a score of C is required
when the offender's criminal history includes one
conviction for a person felony and one or more conviction for
a nonperson felony). But importantly, his prior person felony
conviction occurred in Kansas, making Murdock
district court rejected Requena's ineffective assistance
of appellate counsel claim, finding his arguments were
time-barred and he failed to establish a manifest injustice.
The court also rejected Requena's actual innocence claim
because the letter "prove[d] nothing" and
"contain[ed] no newly discovered evidence." The
letter was written in 2000 by someone who did not witness the
rape, and it contained a hypothesis about what might have