Kedrin D. Littlejohn, Appellant,
State of Kansas, Appellee.
BY THE COURT
inmate filing a second or successive motion under K.S.A.
60-1507 must show exceptional circumstances to avoid having
the motion dismissed as an abuse of remedy.
of the judgment of the Court of Appeals in an unpublished
opinion filed June 30, 2017.
from Sedgwick District Court; James R. Fleetwood, judge.
Michael P. Whalen, of Law Office of Michael P. Whalen, of
Wichita, argued the cause, and Krystle M.S. Dalke, of the
same firm, was with him on the brief for appellant.
K. Isherwood, chief assistant district attorney, argued the
cause, and Julie A. Koon, assistant district attorney, Marc
Bennett, district attorney, and Derek Schmidt, attorney
general, were with him on the briefs for appellee.
The State petitions this court for review of the Court of
Appeals' decision reversing the district court's
summary denial of Kedrin D. Littlejohn's K.S.A. 60-1507
motion and remanding the case to the district court for an
evidentiary hearing on the issue of whether Littlejohn's
trial counsel was ineffective for failing to pursue a defense
of mental defect and to request jury instructions regarding
the same defense. Littlejohn v. State, No. 115, 904,
2017 WL 2833312 (Kan. App. 2017) (unpublished opinion). The
State contends that the panel applied an incorrect standard
to determine whether the district court should have
considered a second or successive K.S.A. 60-1507 motion. We
agree and remand to the Court of Appeals to apply the correct
and Procedural Overview
complete recitation of the facts underlying Littlejohn's
crimes is set forth in our opinion from the direct appeal,
State v. Littlejohn, 298 Kan. 632, 316 P.3d 136
(2014). During a May 2008 botched robbery by Littlejohn and
Shannon Bogguess, the intended victim was shot, kidnapped,
and then run over and killed by a vehicle driven by Bogguess.
Littlejohn was arrested; police matched the blood at the
scene with blood on Littlejohn's shoes; and Littlejohn
eventually confessed to participating in the crimes. 298 Kan.
at 634-38. See also State v. Bogguess, 293 Kan. 743,
744-45, 268 P.3d 481 (2012).
trial, Littlejohn's counsel filed a motion to determine
competency, as well as a motion to suppress Littlejohn's
statements to police on the grounds that Littlejohn's
Miranda waiver was involuntary or coerced.
Littlejohn had several attorneys during the pretrial district
court proceedings, and the record on appeal is not always
clear as to which attorney filed which motion. Quentin
Pittman represented Littlejohn during the jury trial.
hearing on December 4, 2009, the district court found that
Littlejohn could understand the charges and assist in his
defense, and, therefore, he was competent to stand trial. The
court relied upon a report produced by Comcare (Comcare
report). That report, while finding Littlejohn competent to
stand trial, noted that "it may be helpful to have IQ
testing completed on Mr. Littlejohn."
Comcare report referred to a previous IQ test that had been
administered by the Wichita Child Guidance Center in 2006,
when Littlejohn was 16, and that had revealed Littlejohn to
be moderately mentally retarded. That 2006 report is included
in the record on appeal as an attachment to Littlejohn's
60-1507 motion. It includes a number of different scores on
various types of tests and designates Littlejohn's full
scale IQ as 49, which is less than the 0.1 percentile and
considered to be in the moderate mental retardation range.
2006 report noted a concern that another report from 1997,
when Littlejohn was 7 years old, indicated that
Littlejohn's IQ levels were normal at that point, with a
full scale IQ of 100. The 2006 report questioned whether this
was due to an intervening decline in mental abilities or
whether the 1997 testing was flawed. The 1997 report is not
in the record on appeal. ...