Requena v. State

         SYLLABUS 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.

         2. The 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.

         3. When 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.

         Review of the judgment of the Court of Appeals in an unpublished opinion filed September 22, 2017.

          Appeal 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.

          Joseph M. Penney, assistant county attorney, and Derek Schmidt, attorney general, were on the brief for appellee.

          STEGALL, J.

         Adrian 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 affirm.

         A jury 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 App. 2006) (unpublished opinion).

         In 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 arguments.

         The 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 inapplicable.

         The 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 happened ...