Garcia-Gomez v. State

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NOT DESIGNATED FOR PUBLICATION

No. 116,018

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

ALEJANDRO GARCIA-GOMEZ,
Appellant,

v.

STATE OF KANSAS,
Appellee.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; KEVIN J. O'CONNOR, judge. Opinion filed August 11,
2017. Affirmed.

Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellant.

Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before BUSER, P.J., MALONE, J., and HEBERT, S.J.

Per Curiam: This is an appeal of the district court's denial of a K.S.A. 60-1507
motion filed by Alejandro Garcia-Gomez. On appeal, Garcia-Gomez claims the district
court erred when it ruled his motion was untimely filed and there was no showing of
manifest injustice to excuse the late filing. Upon our review of the pro se motion, the
record on appeal, and appellate briefs, we find no error and affirm the ruling of the
district court.


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FACTUAL AND PROCEDURAL BACKGROUND

Our court has previously summarized the facts of this case and the litigation
history that preceded the filing of this motion in State v. Gomez, No. 107,936, 2013 WL
3970182, at *1-2 (Kan. App. 2013) (unpublished opinion):

"Alejandro Gomez was babysitting A.M., his ex-girlfriend's daughter, on the
evening of January 21, 2007. A.M. told investigators Gomez carried her from her
bedroom to the living room, where he 'touched her with his hand and his penis.' She
further 'clarified that he put his penis in her vagina, not just between her legs.' A.M. also
told investigators Gomez had touched her 'with just his hands' on a previous occasion.

"Gomez was charged with rape in violation of K.S.A. 2006 Supp. 21-3502(a)(2),
but an amended complaint charged him with aggravated indecent liberties with a child in
violation of K.S.A. 2006 Supp. 21-3504(a)(3). . . . Gomez entered into a plea agreement
and pled guilty to the amended charge. At the plea hearing, the district court verified that
Gomez understood his rights and the potential consequences of his plea. The district court
also verified the factual basis for the plea . . . .

. . . .

"Gomez was then sentenced to a term of imprisonment for life with no possibility
of parole for 25 years and 'lifetime electronic monitoring.' . . .

"In Gomez' direct appeal, he argued lifetime sentences for sex crimes were
disproportionate and constituted cruel and unusual punishment under the Eighth
Amendment to the United States Constitution and under Section 9 of the Kansas
Constitution Bill of Rights. Our Supreme Court affirmed . . . .

"Immediately after the Supreme Court denied his direct appeal, Gomez filed a
motion to correct an illegal sentence. Gomez argued the district court 'did not make a
specific inquiry into the defendant's age at the time of the alleged offense, and therefore
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cannot sentence the defendant to anything more than what was admitted by the
defendant.'"

The district court denied Gomez' motion and he appealed. After considering Gomez'
claims on appeal, our court affirmed the sentence. Gomez, 2013 WL 3970182, at *4.

On February 2, 2015, Garcia-Gomez filed a pro se K.S.A. 60-1507 motion that is
the subject of this appeal. He raised ineffective assistance of trial counsel claims, and he
also asserted that his appellate counsel was ineffective for not raising those claims. On
March 30, 2016, after appointing counsel for Garcia-Gomez and holding a preliminary
hearing on the motion, the district court denied it. In particular, the district court found
the motion was time barred with no showing of manifest injustice to justify an extension
of the time limit provided in K.S.A. 60-1507(f). That same day, Garcia-Gomez filed a
timely notice of appeal.

ANALYSIS

On appeal, Garcia-Gomez contends "[t]he district court erred in dismissing Mr.
Garcia-Gomez' petition because he has presented a manifest injustice that warrants
review." The State counters that the "motion was filed well after the one-year time
limitation for such filings. The district court did not err in denying the motion as
untimely, as consideration of the motion was not necessary to prevent a manifest
injustice."

When considering a K.S.A. 60-1507 motion the district court has three options:

"'(1) The court may determine that the motion, files, and case records conclusively show
the prisoner is entitled to no relief and deny the motion summarily; (2) the court may
determine from the motion, files, and records that a potentially substantial issue exists, in
which case a preliminary hearing may be held. If the court then determines there is no
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substantial issue, the court may deny the motion; or (3) the court may determine from the
motion, files, records, or preliminary hearing that a substantial issue is presented
requiring a full hearing.' [Citation omitted.]" Sola-Morales v. State, 300 Kan. 875, 881,
335 P.3d 1162 (2014).

In the present case, the district court employed the second option, appointed
counsel for Garcia-Gomez, and conducted a preliminary hearing prior to denying the
motion. As a result, an appellate court is in just as good a position as the district court to
consider the merits of the motion. Under these circumstances, our review is de novo.
Grossman v. State, 300 Kan. 1058, 1061, 337 P.3d 687 (2014).

As a general rule, a K.S.A. 60-1507 motion must be filed within 1 year of 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. K.S.A. 2016 Supp. 60-1507(f)(1). In this
case, our Supreme Court filed its opinion regarding Garcia-Gomez' direct appeal on July
9, 2010. See State v. Gomez, 290 Kan. 858, 860, 235 P.3d 1203 (2010). However, Garcia-
Gomez did not file his K.S.A. 60-1507 motion until February 2, 2015. As a result,
Garcia-Gomez concedes that his motion was untimely but he argues that under K.S.A.
2016 Supp. 60-1507(f)(2) the 1-year time limitation may be extended to prevent manifest
injustice.

The critical issue on appeal, therefore, is whether Garcia-Gomez made a sufficient
showing that the district court erred because it should have considered his untimely
motion to avoid a manifest injustice.

Importantly, on appeal, Garcia-Gomez acknowledges that on July 1, 2016, our
legislature amended K.S.A. 60-1507 by adding, in part, the following language to
subsection (f)(2):

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"(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." (Emphasis added.) K.S.A. 2016 Supp. 60-1507(f)(2)(A); L. 2016, ch.
58, sec. 2.

Prior to the amendment, our Supreme Court had set forth a three-factor standard to
be employed by Kansas courts in determining whether a movant had made a sufficient
case for manifest injustice. Vontress v. State, 299 Kan. 607, 616-17, 325 P.3d 1114
(2014). When considering whether the 1-year time limitation should be extended to
prevent a manifest injustice, our Supreme Court advised that the totality of the
circumstances should be considered in light of the following three factors:

"(1) the movant provides persuasive reasons or circumstances that prevented him or her
from filing the 60-1507 motion within the 1-year time limitation; (2) the merits of the
movant's claim raise substantial issues of law or fact deserving of the district court's
consideration; and (3) the movant sets forth a colorable claim of actual innocence, i.e.,
factual, not legal, innocence." 299 Kan. at 616.

As is readily apparent, the 2016 amendment eliminated the second factor of the
Vontress test while statutorily adopting the first and third factors. The 2016 amendment,
therefore, narrowed the focus of a Kansas court's inquiry into the matter of manifest
injustice.

As noted earlier, Garcia-Gomez filed his motion on February 2, 2015, and the
district court held the preliminary hearing and denied the motion on December 15,
2015—both events which were subsequent to Vontress but prior to the July 1, 2016,
amendment. As a result, the district court considered the Vontress standards in making its
ruling. Both appellate briefs, however, were filed subsequent to the 2016 amendment and
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while both parties mention Vontress, they argue as if the 2016 amendment is applicable
rather than the Vontress standards.

The newly amended version of K.S.A. 2016 Supp. 60-1507(f) does not indicate
whether the legislature intended the amendment to apply prospectively or retrospectively.
Statutory interpretation is a question of law subject to unlimited appellate review. Dester
v. Dester, 50 Kan. App. 2d 914, 917, 335 P.3d 119 (2014). As a general rule, a statute
operates prospectively unless: (1) the statutory language clearly indicates the legislature
intended the statute to operate retrospectively, or (2) the change is procedural or remedial
in nature. See State v. Bernhardt, 304 Kan. 460, 479, 372 P.3d 1161 (2016); Norris v.
Kansas Employment Security Bd. of Review, 303 Kan. 834, 841, 367 P.3d 1252 (2016).
Importantly, under either exception, however, the statute may not be applied
retrospectively if it would prejudicially affect a party's substantive or vested rights.
Bernhardt, 304 Kan. at 479.

On at least three occasions, panels of our court have held that the 2016 amendment
to K.S.A. 2016 Supp. 60-1507 applies retroactively because the amendment is
procedural. See Rojas-Marceleno v. State, No. 115,140, 2017 WL 1196731, at *4 (Kan.
App. 2017) (unpublished opinion), petition for rev. filed May 1, 2017; Olga v. State, No.
115,334, 2017 WL 840296, at *3 (Kan. App. 2017) (unpublished opinion), petition for
rev. filed April 3, 2017; Perry v. State, No. 115,073, 2017 WL 462659, at *2-3 (Kan.
App. 2017) (unpublished opinion), petition for rev. filed March 2, 2017. However, at
least one panel declined to address whether the amendment to K.S.A. 2016 Supp. 60-
1507 applies retroactively because the K.S.A. 60-1507 motion at issue failed under the
less restrictive preamendment test. Robinson v. State, No. 115,555, 2017 WL 2494964, at
*3-6 (Kan. App. 2017) (unpublished opinion).

Given the parties' arguments on appeal, we will consider the question of manifest
injustice by applying the 2016 amendment to K.S.A. 2016 Supp. 60-1507. Given the
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parties' arguments below and the district court's ruling, however, we will also analyze the
second factor of the Vontress test—whether the merits of Garcia-Gomez' claim raise
substantial issues of law or fact that deserved the district court's consideration.

What Are the Reasons for the Failure to File the Motion in a Timely Manner?

In his K.S.A. 60-1507 motion, Garcia-Gomez alleged that he had not previously
presented his claims because: "I am a [c]itizen of Mexico. I do not understand my rights.
I am given no material in Spanish to help me in my legal work in preparing anything. I
am an innocent man." In response, the State argued that "[Garcia-Gomez] alleges that he
is not knowledgeable in the law and has language barriers but fails to acknowledge that
these alleged barriers did not prevent him from filing two motions to correct illegal
sentence and from filing extensive 1507 pleadings."

The parties reprise their arguments on appeal. The State adds that "[t]ellingly,
none of the issues in the 1507 motion are based on information that movant would not
have been aware of within one year of the termination of his direct appeal."

In addressing this first factor the district judge found "there is no reason why these
issues that are being raised here today could not have been raised within the one-year
limitation." We agree.

Garcia-Gomez knew or should have known of his trial and appellate counsel's
alleged inadequacies by the summer of 2011, about 1 year after our Supreme Court's
opinion in his direct appeal. Garcia-Gomez primarily complains about how his trial
counsel handled his plea and sentencing, yet over 3 years passed from the date of our
Supreme Court's opinion in the direct appeal before he initiated this particular litigation.
The subject matter of Garcia-Gomez' complaints were or should have been known to him
years before he filed this motion. Garcia-Gomez does not claim surprise or newly
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discovered evidence. Moreover, the State's argument that Garcia-Gomez had the
knowledge and ability to file other legal pleadings in the years following his conviction
and sentence clearly suggests that he was able to overcome any language difficulties in
order to file pleadings in a timely fashion. We find that Garcia-Gomez has not shown any
persuasive reasons for the untimely filing of his K.S.A. 60-1507 motion.

Do the Merits of the Claims Raise Substantial Issues of Law or Fact?

Prior to the preliminary hearing on his motion, Garcia-Gomez' attorney filed a
pretrial questionnaire stating the nature of his claims. With regard to ineffective
assistance of trial counsel, Garcia-Gomez asserted that his trial counsel misled him
because he suggested that if he pled guilty "he would likely receive a grid sentence of 55-
61 months, rather than the life sentence he received." Second, Garcia-Gomez claimed his
trial counsel failed to investigate his defense that he was innocent of the crimes charged
and he only confessed because he was "coerced by the police, and as a citizen of Mexico,
did not understand the implications of confessing." Finally, it was alleged that trial
counsel did not preserve arguments attacking Garcia-Gomez' life sentence as being cruel
and unusual punishment. With regard to appellate counsel, Garcia-Gomez claimed
ineffectiveness for the failure to raise the issue of cruel and unusual punishment on
appeal.

For its part, the State argued that Garcia-Gomez was fully informed of the
potential to receive a life sentence rather than a downward durational departure.
Additionally, "[a]lthough he now claims a coerced confession and to not understanding
his rights, [Garcia-Gomez] acknowledges that he confessed to the crime, that he was
informed of his constitutional rights before entering his plea, and that he waived those
rights."

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With regard to the constitutionality of his sentence, the State acknowledged that
our Supreme Court found, on direct appeal, that Garcia-Gomez had not preserved or had
abandoned the issue of the disproportionality of his sentence as cruel and unusual
punishment under the United State and Kansas Constitutions. However, the State cited
State v. Newcomb, 296 Kan. 1012, 1021, 298 P.3d 285 (2013) (finding that a life sentence
for aggravated indecent liberties with an 8-year-old child is not disproportionate under
the Kansas Constitution), and State v. Woodard, 294 Kan. 717, 727, 280 P.3d 203 (2012)
(finding that a life sentence for aggravated indecent liberties involving two 7-year-old
victims is not disproportionate under the United States or Kansas Constitutions), as
authority that Garcia-Gomez' sentence did not violate the cruel and/or unusual
punishment clauses of the United States and Kansas Constitutions. As a result, the State
argued that no ineffectiveness was shown by the failure of trial or appellate counsel to
properly preserve or present a challenge to the constitutionality of Garcia-Gomez'
sentence.

The district court made lengthy and detailed findings at the completion of the
preliminary hearing. With regard to Garcia-Gomez' claim that his trial attorney misled
him into believing that he would receive a departure sentence of 55 to 61 months, the
district judge stated:

"The plea agreement in this case made it very clear that the sentence that the
defendant was facing was a possibility of life. And it said it in more than one place in
bold underlined language, that the possible sentence was a life sentence, and that there
was no guarantee that he would receive a departure sentence.
"At the plea hearing . . . the defendant, when asked if he was satisfied with his
attorney, answered, Yes. It asked if he had reviewed [the] plea agreement. He said he had
with his attorney, and that he understood what the plea agreement said."

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The district court also took notice of the district judge's findings made in ruling on
Garcia-Gomez' motion to correct illegal sentence. At that hearing, the district judge noted
that the district judge who accepted the plea

"informed [Garcia-Gomez] he faced a life sentence with parole eligibility after 25 years.
He made it clear to the defendant that there was no guarantee that he would ever be
granted parole. He made it clear that the District Attorney was going to recommend a life
sentence. He went on to note the language in the plea agreement, specifically noting to
the defendant, that the sentencing judge did not have to grant a departure and could
impose a life sentence."

Upon the district judge's own review of the plea hearing transcript, he concluded:

"And I would make those same findings, is that that was made clear, that Mr. Garcia-
Gomez was never promised a departure sentence. And that it was made clear to him that
the possibility that he would face a life sentence was very, very, clearly made to Mr.
Garcia-Gomez at the time of his plea."

Still, the district judge said that trial counsel's strategy to seek a durational
departure sentence made sense because Garcia-Gomez "had departure factors that are
oftentimes successful. The lack of a criminal history, the taking responsibility, which
[are] some of the arguments that were made. Accepting responsibility and remorse for his
actions, which have been successful arguments before for departure factors."

With regard to Garcia-Gomez' allegation that his attorney was ineffective for not
challenging his coerced confession to the police, the district court found: "This is the
first time that this issue has been raised by the defendant." The district court found that
Garcia-Gomez "gave a statement of admission to a detective after being provided with an
interpreter and a Spanish Miranda form, too." As a result, the district court found this
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claim was based on conclusory statements and did not raise a substantial issue of law or
fact.

Finally, with regard to Garcia-Gomez' claim that his trial and appellate attorneys
were ineffective by failing to raise the issue of whether his sentence violated the United
States and Kansas Constitutions, the district court adopted the legal citations proffered by
the State and concluded that "issue has been resolved by our Kansas Supreme Court and
is not an issue that raises a substantial issue of law or fact deserving of the Court's
consideration."

On appeal, the parties once again make their arguments which they made in the
district court. Upon our review of the district court's findings of fact and conclusions of
law pertaining to the merits of the claims raised by Garcia-Gomez, we find no error. The
district court's factual findings are supported by the record and its legal conclusions,
based on those factual findings, are correct. We conclude that Garcia-Gomez has not
presented substantial issues of law or fact in this motion.

Does the Motion Set Forth a Colorable Claim of Actual Innocence?

In his pro se motion, Garcia-Gomez asserted that "he is an innocent man being
forced to serve a sentence for a crime that never occurred. That he at no time committed
the crime of aggravated indecent liberties." On appeal, Garcia-Gomez' argument is
limited to one sentence, that "he never committed the acts for which he was accused." In
response, the State counters: "In his motion, while [Garcia-Gomez] claimed that he was
innocent on multiple occasions, these references were purely conclusory in nature. [He]
pointed to no new evidence that had come to light since he pled guilty."



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The district judge found

"there is nothing in the record in his motion other than his own conclusory statements that
he didn't do what he is charged with. Even though in his plea agreement, part of his
argument that he was making to the court is that he accepted responsibility, that he was
remorseful, and he was relying upon those issues to try to argue to the sentencing judge
that he should receive a departure sentence, contrary to [the] confession that he made to
the detectives in this case. And it's contrary to the statements that he made at his plea."

As a result, the district court found that Garcia-Gomez had failed to present a colorable
claim of innocence.

In assessing this factor we are mindful of the new statutory definition 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." K.S.A. 2016 Supp. 60-1507(f)(2)(A). Of course, in his motion
and appellate briefing, Garcia-Gomez does not assert new evidence to prove his
innocence. While he questions the voluntariness of his confession, we are still left with
the considerable evidence of his guilt as previously recited in detail in the Factual and
Procedural Background section and his admissions of guilt at his plea hearing and
sentencing. Under the totality of circumstances, we are convinced that Garcia-Gomez has
not made a sufficient claim of actual innocence.

Applying the two-factor test set forth in K.S.A. 2016 Supp. 60-1507(f)(2)(A) and
also considering the three-factor test enunciated in Vontress, we conclude the district
court did not err in ruling that Garcia-Gomez failed to show that it was necessary to
consider his K.S.A. 60-1507 motion to prevent a manifest injustice. Accordingly, the
district court did not err in denying the motion at the preliminary hearing.

Affirmed.