State v. Kingsley

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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 108,849

STATE OF KANSAS,
Appellee,

v.

ALAN W. KINGSLEY,
Appellant.


SYLLABUS BY THE COURT

1.
K.S.A. 60-1507 provides the exclusive statutory procedure for collaterally
attacking a criminal conviction and sentence. Therefore, neither K.S.A. 2011 Supp. 60-
260(b) nor K.S.A. 60-2606 can be used for that purpose.

2.
If a direct appeal has been taken from a criminal conviction or sentence, the
doctrine of res judicata provides that the parties to the appeal are barred from relitigating
any issue decided in the direct appeal. Further, those issues that could have been
presented in the direct appeal, but were not, are deemed waived in a collateral
proceeding.

Appeal from Sedgwick District Court; WARREN M. WILBERT, judge. Opinion filed June 13,
2014. Affirmed.

Mark Sevart, of Derby, was on the brief for appellant.

Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek
Schmidt, attorney general, were on the brief for appellee.

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The opinion of the court was delivered by

LUCKERT, J.: Alan W. Kingsley appeals from a summary denial of his pro se
motion for relief from his first-degree murder conviction, which he filed pursuant to
K.S.A. 2011 Supp. 60-260(b)(4), K.S.A. 2011 Supp. 60-260(b)(6), and K.S.A. 60-2606.
The district court summarily denied Kingsley's motion, concluding his claims are
foreclosed under the doctrine of res judicata. We affirm that ruling and also hold that
relief from a criminal conviction cannot be obtained pursuant to K.S.A. 2011 Supp. 60-
260(b) or K.S.A. 60-2606.

FACTS AND PROCEDURAL BACKGROUND

In 1991, a jury convicted Alan W. Kingsley of premeditated first-degree murder,
in violation of K.S.A. 1990 Supp. 21-3401(a); aggravated robbery, in violation of K.S.A.
21-3427 (Weeks 1988); aggravated arson, in violation of K.S.A. 21-3719 (Weeks 1988);
and forgery, in violation of K.S.A. 21-3710(b) (Weeks 1988). The sentencing court
imposed three consecutive life sentences—a term of 15 years to life for aggravated
robbery, life without parole for 40 years for premeditated murder, and another term of 15
years to life for aggravated arson. (This conviction was later reversed and remanded on
direct appeal, reduced to a charge of arson, and resentenced to a term of 5 to 20 years, to
run concurrent with his other sentences). A sentence of 1 to 5 years for forgery was run
concurrent with the other sentences.

During the jury trial, the court instructed the jury by giving the pattern
premeditated murder instruction, PIK Crim. 2d 56.01. As it relates to Kingsley's current
arguments, the pertinent portion of the instruction stated: "Deliberately and with
premeditation means to have thought over the matter beforehand." After having received
that instruction, Kingsley's jury, while deliberating, asked for clarification of the time
frame required for premeditation. The trial court further instructed: "Premeditation under
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the law does not require any specific time frame. Please review instruction No. 5," which
was PIK Crim. 2d 56.01. On direct appeal, Kingsley argued the judge's response to the
jury's question, which incorporated the language about which Kingsley now complains,
was erroneous. This court rejected Kingsley's argument, citing State v. Patterson, 243
Kan. 262, 268-69, 755 P.2d 551 (1988), in which this court found the same instruction
"'correctly stat[ed] the law.'" State v. Kingsley, 252 Kan. 761, 770-72, 851 P.2d 370
(1993).

In another issue raised by Kingsley in his direct appeal, he argued his mandatory
hard 40 life sentence should be vacated because the jury's verdict on premeditated first-
degree murder was not unanimous. The trial court had instructed the jury that Kingsley
was charged in Count One with murder in the first degree, which required proof that the
killing was done with premeditation. In addition, the court instructed that Kingsley was
charged in Count Two with felony murder in the first degree, which required proof that
the killing was done while in the commission of aggravated robbery. 252 Kan. at 785.
Further, the trial court told the jury that its "agreement upon a verdict must be
unanimous." 252 Kan. at 786. The court gave the jury two verdict forms—one for
premeditated first-degree murder and another for first-degree felony murder. The jury
indicated on each verdict form that it was unanimous in finding Kingsley guilty on the
respective counts, thus indicating a unanimous finding of guilt on both premeditated first-
degree murder and first-degree felony murder. Because the verdict form made it clear the
jury was unanimous in finding Kingsley guilty of premeditated first-degree murder, this
court rejected Kingsley's argument and concluded he could be sentenced to a hard 40 life
sentence for that conviction. 252 Kan. at 784-87.

After that appeal, Kingsley brought several collateral attacks on his convictions
and sentences, all of which have been unsuccessful. See Kingsley v. McKune, 191 Fed.
Appx. 748 (10th Cir. 2006) (unpublished opinion); State v. Kingsley, No. 96,059, 2007
WL 570298 (Kan. App.) (unpublished opinion), rev. denied 284 Kan. 949 (2007);
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Kingsley v. State, No. 90,133, 2004 WL 719260 (Kan. App.) (unpublished opinion), rev.
denied 278 Kan. 846 (2004).

In the current case, Kingsley filed a pro se "Motion for Relief from Judgment" and
accompanying memorandum of law in 2012, which was more than 19 years after the
entry of the final order in his direct appeal. In the motion, Kingsley cited K.S.A. 2011
Supp. 60-260(b)(4), K.S.A. 2011 Supp. 60-260(b)(6), and K.S.A. 60-2606 as the
procedural statutes entitling him to relief from his first-degree murder conviction and
sentence. He asserted two substantive reasons his first-degree murder conviction should
be reversed and his hard 40 sentence should be set aside. First, he claimed the trial court
had "constructively amended the complaint and usurped legislative authority to define
crimes when it instructed the jury that 'deliberately and with premeditation' means to have
thought over the matter beforehand as elements of first degree murder." Second, he
argued it was error to instruct the jury on both premeditated murder and felony murder.
On appeal, Kingsley's counsel summarizes Kingsley's second pro se argument on this
point as a request for "relief from the Hard 40 Sentence, as it is not clear whether the Jury
unanimously found him guilty of First Degree Premeditated Murder."

In the district court, the State filed a response to Kingsley's pro se motion, noting
that Kingsley had raised the same issues in his direct appeal. Citing State v. Neer, 247
Kan. 137, 140-41, 795 P.2d 362 (1990), the State argued Kingsley's motion for relief
from judgment was barred by the doctrine of res judicata. The district court adopted the
State's response as its findings of fact and conclusions of law and summarily denied the
motion without appointing counsel or conducting a hearing. Kingsley filed a timely
notice of appeal, and counsel was appointed to represent him. This court has jurisdiction
under K.S.A. 2012 Supp. 22-3601(b)(3) (off-grid; maximum sentence of life
imprisonment imposed).


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ANALYSIS

On appeal, Kingsley argues the summary dismissal of his motion was error. We
reject his argument for a host of reasons relating to both procedural defects and a lack of
merit. We need not address all of those reasons, however, because two threshold defects
preclude Kingsley's success: (1) Kingsley filed his motion pursuant to statutes that do
not apply to collateral attacks on a criminal conviction and sentence, and (2) his claims
are barred under the doctrine of res judicata. Both of these defects present questions of
law subject to our unlimited review. See State v. Mitchell, 297 Kan. 118, 120-24, 298
P.3d 349 (2013) (questions of statutory and caselaw interpretation, which are questions of
law subject to de novo review, led to holdings that [1] K.S.A. 2011 Supp. 60-260[b] does
not apply to collateral attack on conviction and [2] K.S.A. 60-1507 provides exclusive
remedy present); Edgar v. State, 294 Kan. 828, 836-37, 283 P.3d 152 (2012) ("When a
district judge summarily denies a K.S.A. 60-1507 motion, an appellate court reviews that
decision using a de novo standard of review. . . . This standard requires an appellate court
to determine whether the motion, files, and records of the case conclusively show the
movant is not entitled to any relief.").

Regarding the procedural deficiency, this court has previously held K.S.A. 2011
Supp. 60-260(b)(4) "does not provide a procedure for a criminal defendant to obtain
postconviction relief from his or her conviction or sentence." Mitchell, 297 Kan. at 118-
19. Mitchell reaffirmed a prior holding designating K.S.A. 60-1507 as the exclusive
statutory remedy for a collateral attack on a criminal conviction and sentence. 297 Kan. at
121-23; see Smith v. State, 199 Kan. 132, 135, 427 P.2d 625 (1967) (holding K.S.A. 60-
1507 is "the exclusive statutory remedy authorizing a prisoner in custody under sentence
of a court of general jurisdiction to make a collateral attack upon the sentence in a
criminal case, and that K.S.A. 60-260 is not available . . . for this purpose"). The
exclusive nature of K.S.A. 60-1507 likewise excludes K.S.A. 60-2606 as a procedural
mechanism for relief from Kingsley's convictions and sentences.
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Kingsley's appellate counsel, apparently recognizing that relief cannot be afforded
Kingsley pursuant to K.S.A. 2011 Supp. 60-260 or K.S.A. 60-2606, asks this court to
liberally construe Kingsley's pro se motion as a K.S.A. 60-1507 motion. In making this
request, however, Kingsley's counsel fails to mention the limitation in K.S.A. 60-1507(f),
which states that an action filed pursuant to that statute must be "brought within one year
of: (i) The final order of the last appellate court in this state to exercise jurisdiction on a
direct appeal or the termination of such appellate jurisdiction; or (ii) the denial of a
petition for writ of certiorari to the United States supreme court." While this limitation
can be extended under a manifest injustice exception, Kingsley, who has the burden of
showing the exception applies, did not request such an extension and did not explain the
19-year delay. Therefore, Kingsley has failed to meet his burden and has waived any
argument that he should be allowed to bring an untimely request for relief under K.S.A.
60-1507. See, e.g., State v. Rojas-Marceleno, 295 Kan. 525, 543, 285 P.3d 361 (2012)
(issue abandoned for failure to adequately brief it); McCain Foods USA, Inc. v. Central
Processors, Inc., 275 Kan. 1, 15, 61 P.3d 68 (2002) (simply pressing a point without
pertinent authority, or without showing why it is sound despite a lack of supporting
authority, is akin to failing to brief an issue; when appellant fails to brief an issue, that
issue is waived or abandoned); see also Supreme Court Rule 6.02(a)(5) (2013 Kan. Ct. R.
Annot. 39) (appellant's brief must include the "arguments and authorities relied on").

Instead, Kingsley seems to suggest we should address the merits of his pro se
motion because the district court did not determine the motion was procedurally
defective. Rather, the district court summarily denied Kingsley's motion after concluding
the issues were barred by the doctrine of res judicata. The problem with Kingsley's
argument is that the district court correctly ruled that his action was barred.

The doctrine of res judicata provides that "where an appeal is taken from the
sentence imposed and/or a conviction, the judgment of the reviewing court is res judicata
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as to all issues actually raised, and those issues that could have been presented, but were
not presented, are deemed waived." Neer, 247 Kan. at 140-41; see State v. Martin, 294
Kan. 638, 641, 279 P.3d 704 (2012) (res judicata consists of four elements: "'[1] same
claim; [2] same parties; [3] claims were or could have been raised; and [4] a final
judgment on the merits'"). The essence of the doctrine of res judicata is that issues "once
finally determined . . . cannot afterwards be litigated." Jayhawk Equipment Co. v.
Mentzer, 191 Kan. 57, 61, 379 P.2d 342 (1963).

Kingsley's direct appeal from his convictions obviously involved the same parties,
and it resulted in a final judgment on the merits. Further, the current action involves the
same claims as those which were or could have been raised in his direct appeal. More
specifically, as we previously noted, on Kingsley's direct appeal this court found the jury
instructions regarding premeditation, which included the language about which Kingsley
now complains, appropriately reflected the law. Kingsley, 252 Kan. at 771-72. Likewise,
in Kingsley's direct appeal, this court rejected his contention that "the mandatory 40-year
sentence should be vacated on the ground that the jury's verdict on first-degree
premeditated murder may not have been unanimous." 252 Kan. at 784. Hence, Kingsley's
argument regarding the uncertainty of a unanimous verdict—the only issue related to
giving the alternative theories of premeditated first-degree murder and felony first-degree
murder that Kingsley argues on appeal—was addressed in the direct appeal.

We note, however, that Kingsley's counsel attempts to put a new twist on the
argument by suggesting the manner in which the jury was polled made it unclear whether
the jury was indeed unanimous on both alternatives. Kingsley does not persuade us that
this polling issue is not barred by the doctrines of res judicata or waiver because the
essence of this issue—unanimity—was or could have been raised on direct appeal. Plus,
this twist is raised for the first time before us and fails on that basis alone. See State v.
Cheffen, 297 Kan. 689, 696-99, 303 P.3d 1261 (2013) (declining to address jury polling
issue for first time on appeal).
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Accordingly, the claims raised by Kingsley in his pro se motion are barred by the
doctrine of res judicata. As a result, contrary to Kingsley's argument, the district court did
not err in summarily dismissing Kingsley's motion without appointing counsel or
conducting an evidentiary hearing because the motion, files, and records of his cases
conclusively showed Kingsley was not entitled to relief. See, e.g., Fisher v. State, 296
Kan. 808, 819-20, 295 P.3d 560 (2013) ("[A] district court's initial review of the files and
record may be enough to show the issues raised do not warrant further review and the
matter may be summarily denied. K.S.A. 60-1507[b]."); State v. Conley, 287 Kan. 696,
703-04, 197 P.3d 837 (2008) (same); State v. Hoge, 283 Kan. 219, 223-24, 150 P.3d 905
(2007) (same).

Affirmed.

MORITZ, J., not participating.