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Noyce v. State

Supreme Court of Kansas

August 23, 2019

David A. Noyce, Appellant,
State of Kansas, Appellee.


         1. K.S.A. 60-1507 places a time limit on the filing of a motion under that statute. For inmates whose claims accrued prior to the enactment of the statutory amendment establishing the time limit, the deadline for filing a 60-1507 motion was June 30, 2004.

         2. The time limit for filing a K.S.A. 60-1507 motion may be extended beyond the one-year deadline only to prevent manifest injustice, which is defined in this context as being obviously unfair or shocking to the conscience.

         3. A defendant generally waives an argument that a conviction is multiplicitous by pleading guilty to that charge.

         4. When a defendant challenges the effectiveness of trial counsel with respect to a charge to which the defendant pled guilty, the defendant must show not only that counsel's performance was deficient, but also that, but for counsel's unreasonably deficient performance, the defendant would not have entered a plea but would have insisted on going to trial.

         Review of the judgment of the Court of Appeals in an unpublished opinion filed July 21, 2017. Appeal from Sedgwick District Court; James R. Fleetwood, judge. Judgment of the Court of Appeals affirming in part and reversing in part the district court is reversed. Judgment of the district court is affirmed.

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

          Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, were on the brief for appellee.


          JOHNSON, J.

         The State of Kansas petitions this court for review of the Court of Appeals' decision reversing the summary denial of David A. Noyce's untimely K.S.A. 60-1507 motion. The Court of Appeals held Noyce had shown that an extension of the one-year time period to file his motion was necessary to prevent a manifest injustice on two issues. The State's petition for review argues the Court of Appeals erred by applying incorrect legal standards in evaluating manifest injustice, thereby resulting in an erroneous determination that Noyce's motion established the requisite manifest injustice.

         Given the unique circumstances of this capital murder case, we reverse the Court of Appeals and affirm the district court's summary denial of Noyce's untimely motion.

         Factual and Procedural Overview

         In 1998, the State filed a complaint charging Noyce with capital murder, premeditated first-degree murder, and aggravated arson. The State alleged that on September 14, 1998, Noyce set fire to a residence, which resulted in the deaths of his wife, Dalene Noyce, and two-year-old son, C.N. The first-degree murder charge stemmed from C.N.'s death, and the capital murder charge alleged the killing of both Dalene and C.N. as part of the "same act or transaction or two or more acts or transactions connected together or constituting parts of a common scheme or course of conduct."

         In February of 1999, Noyce pled guilty as charged and the State agreed not to seek the death penalty against Noyce. With respect to sentencing, the parties agreed to recommend two consecutive life sentences with mandatory minimums of 40 years' imprisonment each (hard 40) for the murders, to be served consecutive to the aggravated arson sentence. The district court accepted the recommended sentences in the parties' plea agreement. Noyce did not appeal.

         In November 2013, Noyce filed a pro se motion to correct an illegal sentence under K.S.A. 22-3504, arguing his first-degree murder sentence was illegal because the capital murder and first-degree murder convictions both punished him for killing C.N. In legal parlance, Noyce argued his convictions for killing C.N. were multiplicitous. State v. Noyce, 301 Kan. 408, 409, 343 P.3d 105 (2015) (Noyce I). The district court summarily denied Noyce's claim.

         Noyce appealed and for the first time also challenged his hard 40 sentences as being unconstitutional under Alleyne v. United States, 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013). This court held that the district court reached the correct result because multiplicity and Alleyne claims cannot be raised through a motion to correct an illegal sentence. Noyce I, 301 Kan. at 410. We further held that Noyce's 22-3504 motion could not be saved by construing it as a motion under K.S.A. 60-1507 because Noyce's brief expressly stated he was not arguing under K.S.A. 60-1507, and because Noyce had not demonstrated manifest injustice to allow him to bring an untimely 60-1507 motion. 301 Kan. at 410.

         Shortly after this court issued its opinion on Noyce's 22-3504 motion, Noyce filed his 60-1507 motion, which is the subject of this appeal. Noyce alleged numerous instances of ineffective assistance of counsel, which are summarized in the Court of Appeals' opinion. Noyce v. State, No. 114, 971, 2017 WL 3112821, at *2 (Kan. App. 2017) (unpublished opinion) (Noyce II) ...

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