Brown v. State

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NOT DESIGNATED FOR PUBLICATION

No. 119,112


IN THE COURT OF APPEALS OF THE STATE OF KANSAS

DANIEL ALLEN BROWN,
Appellant,

v.

STATE OF KANSAS,
Appellee.


MEMORANDUM OPINION

Appeal from Atchison District Court; ROBERT J. BEDNAR, judge. Opinion filed February 15,
2019. Affirmed.

Kelly J. Fuemmeler, of Troy, for appellant.

Gerald R. Kuckelman, county attorney, and Derek Schmidt, attorney general, for appellee.

Before STANDRIDGE, P.J., PIERRON and GREEN, JJ.

PER CURIAM: Daniel Allen Brown appeals the trial court's dismissal of his K.S.A.
60-1507 motion. Because Brown's K.S.A. 60-1507 motion was untimely, we affirm.

Following a trial, a jury convicted Brown of rape under K.S.A. 2009 Supp. 21-
3502(a)(2) and aggravated indecent liberties of a child under K.S.A. 2009 Supp. 21-
3504(a)(3). State v. Brown, 298 Kan. 1040, 1042, 318 P.3d 1005 (2014). The crimes were
against his then 11-year-old stepdaughter, J.D. The trial court sentenced Brown to two
consecutive terms of hard 25 life imprisonment. Brown appealed his convictions and
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sentences to our Supreme Court. Our Supreme Court affirmed his convictions and
sentences, except for the imposition of lifetime electronic monitoring and lifetime
postrelease supervision, which it vacated. 298 Kan. at 1057-58. Our Supreme Court's
mandate issued March 24, 2014. See Supreme Court Rule 7.03(b) (2019 Kan. S. Ct. R.
44).

Less than a year later, on February 20, 2015, Brown moved for relief under K.S.A.
60-1507. He made several arguments, including that his trial counsel, Rex Lane, provided
ineffective assistance of counsel. Brown v. State, No. 114,530, 2016 WL 6392890 (Kan.
App. 2016) (unpublished opinion). The trial court rejected Brown's arguments, and
Brown appealed to this court. This court affirmed the denial of Brown's K.S.A. 60-1507
motion. 2016 WL 63922890, at *2-4.

On February 6, 2017, Brown filed a pro se K.S.A. 60-1507 motion alleging that
Lane never told him that he could move for a durational departure from an off-grid
sentence to an on-grid sentence. He alleged that his lack of criminal history and positive
work history supported that the trial court would have granted a durational departure to
be sentenced on-the-grid had he made the motion. Brown also asserted that he was
innocent.

The trial court appointed counsel to represent Brown. Moreover, the trial court
held an evidentiary hearing on Brown's motion.

At the hearing, Brown testified that Lane never told him that moving for a
departure was an option. He explained that he learned that he could have moved for a
departure in "2015." He repeated that he believed that the trial court would have granted a
durational departure had he moved for the departure. Lane testified that it was "[his]
understanding of the law" that persons facing "off-grid Hard 25 sentences" cannot receive
departures.
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Ultimately, the trial court ruled that Brown's K.S.A. 60-1507 motion was untimely
under subsection (f) because he had filed his motion almost three years after "the final
action" in his direct appeal. The trial court found that Brown had not established manifest
injustice to extend the K.S.A. 60-1507 time limitations given that Brown never argued
manifest injustice. Additionally, the trial court found that regardless of Brown's failure to
argue manifest injustice, Brown failed to establish (1) that Lane's representation was
deficient or (2) that "the result of the trial would have been different" but for Lane's
performance. Thus, the trial court dismissed Brown's K.S.A. 60-1507 motion.

Did the Trial Court Err by Dismissing Brown's K.S.A. 60-1507 Motion?

On appeal, Brown asserts that the trial court erred by dismissing his K.S.A. 60-
1507 motion because Lane was ineffective for failing to move for a durational departure.
He asserts that Lane's testimony establishes that Lane never told him that he could move
for a departure. Moreover, he asserts that this fact "creates both a manifest injustice and
exceptional circumstances." As a result, according to Brown, he has satisfied K.S.A. 60-
1507's time requirements. The State simply responds that the trial court rulings and
findings were correct; thus, this court should affirm.

To successfully establish ineffective assistance of counsel, a defendant must
establish (1) that defense counsel provided deficient representation under the totality of
the circumstances, and (2) that defense counsel's representation resulted in prejudice.
Sola-Morales v. State, 300 Kan. 875, 882, 335 P.3d 1162 (2014) (relying on Strickland v.
Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674, reh. denied 467 U.S.
1267 [1984]).

An appellate court exercises a mixed standard of review when reviewing an appeal
from the trial court's denial of a K.S.A. 60-1507 motion after a full evidentiary hearing.
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We review the trial court's findings of fact to determine whether the findings are
supported by substantial competent evidence. Yet, we review the trial court's conclusions
of law de novo. State v. Adams, 297 Kan. 665, 669, 304 P.3d 311 (2013). An appellate
court reviews the trial court's factual findings and legal conclusions on claims of
ineffective assistance of counsel under the same standard of review. State v. Butler, 307
Kan. 831, 853, 416 P.3d 116 (2018).


K.S.A. 2017 Supp. 60-1507(f)(1)-(2) creates time limitations for movants:

"(f)Time limitations. (1) Any action under this section must be brought within one year
of:
(A) 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
. . . .
(2) The time limitation herein may be extended by the court only to prevent a manifest
injustice.
(A) For purposes of finding manifest injustice under this section, the court's
inquiry shall be limited to determining why the prisoner failed to file the motion
within the one-year time limitation or whether the prisoner makes a colorable
claim of actual innocence. As used herein, the term actual innocence requires the
prisoner to show it is more likely than not that no reasonable juror would have
convicted the prisoner in light of new evidence.
(B) If the court makes a manifest-injustice finding, it must state the factual and
legal basis for such finding in writing with service to the parties."

Our Supreme Court issued its mandate in Brown's direct appeal on March 24,
2014. But here, Brown did not move for relief under K.S.A. 2017 Supp. 60-1507 until
over 2 years and 10 days later, on February 6, 2017. As a result, he must establish
manifest injustice as stated under K.S.A. 2017 Supp. 60-1507(f)(2) to successfully move
for relief.
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Again, Brown contends that Lane's failure to tell him about the possibility of a
departure motion and Lane's failure to move for a departure constitutes manifest injustice.
This argument, however, necessarily fails because Brown never argued manifest injustice
below. To review, the trial court ruled that Brown's motion was untimely partly because
it found that Brown filed his motion more than three years after the last action in his
direct appeal without ever arguing manifest injustice. Issues not raised below, even issues
involving a party's constitutional rights, cannot be properly asserted for the first time on
appeal. State v. Daniel, 307 Kan. 428, 430, 410 P.3d 877 (2018). Although there are
exceptions to this rule, an appellant must invoke one of those exceptions for this court to
consider an argument for the first time on appeal. Brown has not invoked one of those
exceptions on appeal.

Moreover, Brown fails to recognize that he is arguing manifest injustice for the
first time on appeal. His failure to recognize that he is arguing manifest injustice for the
first time on appeal further impedes his argument's success. See Supreme Court Rule
6.02(a)(5) (2019 Kan. S. Ct. R. 34). State v. Godfrey, 301 Kan. 1041, 1044, 350 P.3d
1068 (2015) (recognizing the strict enforcement of Rule 6.02[a][5]).

Next, we note that Brown's argument is unpersuasive because at his evidentiary
hearing, he testified that he learned of the ability to move for a departure in 2015. Yet, he
provides no explanation why he did not raise this argument in a K.S.A. 60-1507 motion
until February 6, 2017. Thus, Brown's motion is also untimely because he waited two
years between learning about his ability to depart and filing his K.S.A. 60-1507 motion
complaining about the departure.

Last, we hold that regardless of the preceding, Brown could not establish manifest
injustice because his underlying argument is unpersuasive. In Gould v. State, No. 96,309,
2007 WL 2695827, at *5-6 (Kan. App. 2007) (unpublished opinion), rev. denied 286
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Kan. 1177 (2008), this court affirmed the denial of Gould's K.S.A. 60-1507 motion, in
which Gould argued that his defense counsel was deficient for failing to advise him on
filing a departure motion. The Gould court held that even if it assumed his counsel was
deficient under the first Strickland factor, Gould could not establish prejudice under the
second Strickland factor because he provided no substantial or compelling reasons to
justify the departure. 2007 WL 2695827, at *5-6.

Using the Gould court's analysis as guidance, we turn to Brown's arguments.
Brown asserts that his lack of criminal history and positive work history constituted
"substantial and compelling reasons" for a departure under K.S.A. 2009 Supp. 21-
4643(d)(1). Nevertheless, Brown has not included his journal entry of judgment or his
presentencing investigation report in the record on appeal. Thus, nothing in the record on
appeal establishes Brown's lack of criminal history. Because appellants have the burden
to support their arguments in the record on appeal, Brown's contention necessarily fails.
See State v. Sisson, 302 Kan. 123, 128, 351 P.3d 1235 (2015). Furthermore, Brown's case
involved two crimes against his 11-year-old stepdaughter. Accordingly, regardless of
Brown's previous lack of criminal history, his current crime involved more than one
crime. And his current crimes of conviction were against a person with whom he had a
fiduciary relationship.

The mitigating factor of positive work history is neither substantial nor
compelling. In turn, Brown's argument that Lane's failure to depart on his behalf, in itself,
creates manifest injustice to extend the K.S.A. 60-2017 Supp. 60-1507(f) time limits
fails.

Affirmed.