Kebert v. State

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NOT DESIGNATED FOR PUBLICATION

No. 114,193

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

LOUIS E. KEBERT,
Appellant,

v.

STATE OF KANSAS,
Appellee.

MEMORANDUM OPINION

Appeal from Sedgwick District Court; JAMES R. FLEETWOOD, judge. Opinion filed August 26,
2016. Affirmed.

Michael P. Whalen and Krystle M.S. Dalke, of the 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 LEBEN, P.J., PIERRON and MCANANY, JJ.

Per Curiam: Louis E. Kebert pled guilty to second-degree murder and five counts
of aggravated battery. In May 2006, the district court sentenced him to a controlling
prison term of 276 months. Over a year later, in July 2007, Kebert sought to pursue a
direct appeal. His appeal was dismissed.

Kebert then moved under K.S.A. 60-1507 to withdraw his guilty pleas because:
(1) his attorney's representation was inadequate due to a conflict of interests; and (2) his
attorney should have realized that Kebert did not have the capacity to enter a plea
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because he was mentally impaired by medications. The district court summarily denied
the motion, and Kebert appealed. On appeal we found no merit to the claim of mental
impairment due to medications, but remanded the case for a hearing on Kebert's claim
that his lawyer had a conflict of interests. Kebert v. State (Kebert I), No. 101,568, 2010
WL 198509, at *1 (Kan. App. 2010) (unpublished opinion). On remand, the district court
held an evidentiary hearing, found no merit to Kebert's conflict of interests claim, and
denied relief. Kebert appealed again, and we affirmed the district court. Kebert v. State
(Kebert II), No. 106,566, 2012 WL 5974015, at *1 (Kan. App. 2012) (unpublished
opinion), rev. denied 297 Kan. 1246 (2012).

Kebert filed a second K.S.A. 60-1507 motion in July 2014. This time he claimed
that his trial counsel had been ineffective because (1) he deliberately misled Kebert into
entering a plea for second-degree murder rather than involuntary manslaughter while
driving under the influence; (2) he misled Kebert into waiving a preliminary hearing; (3)
he coerced and manipulated Kebert into entering a plea while Kebert was incoherent
from brain trauma and under the influence of heavy medication; (4) he was more
concerned about the victim's family than with Kebert's best interests; and (5) he deceived
Kebert about his criminal history score. Kebert also claimed the district court deprived
him of a fair trial.

Kebert conceded that his motion was untimely, but he relied on a claim of
manifest injustice to excuse his late filing. The manifest injustice he claimed was that (1)
his trial counsel lied and misled him to enter a plea while he was suffering from a brain
injury and heavily medicated; and (2) the prosecution falsified the plea agreement to
obtain the maximum sentence. He also claimed that his sentence was illegal and the
statute of limitations did not prevent challenging it and that a "powerful political
influence" deprived him of a fair trial and plea bargain under due process of law, leaving
him without an appellate remedy.

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The district court summarily denied relief, finding it was "repetitive, without merit
and time barred." Again, Kebert appeals.

Kebert argues the district court erred in failing to make detailed factual findings
and legal conclusions as required by Supreme Court Rule 183(j) (2015 Kan. Ct. R.
Annot. 271). He asserts that this failure renders the district court's decision not ripe for
review. He asks us to reverse and remand his case to the district court to consider the
merits of his claims.

But whether the district court made findings of fact and conclusions of law is of no
moment because the district court summarily disposed of Kebert's motion without an
evidentiary hearing. As a result, our review is de novo. Thus, it makes no difference
whether the district court made findings and conclusions or, if it did, what those findings
and conclusion were. We examine Kebert's motion anew. See Bellamy v. State, 285 Kan.
346, 354, 172 P.3d 10 (2007).

Next, Kebert argues that the district court should have held an evidentiary hearing
on his motion. But no hearing is necessary, and the district court can summarily deny
relief if the motion, files, and records of the case conclusively show that the movant is not
entitled to relief. Edgar v. State, 294 Kan. 828, 836, 283 P.3d 152 (2012).

Kebert's motion was untimely. He had to file his motion within 1 year of the final
order on his direct appeal in the original criminal case. K.S.A. 60-1507(f)(1). Kebert's
current motion was filed well past that deadline.

But Kebert relies on the exception to this rule which allows us to consider the
motion when manifest injustice would occur if we did not. Manifest injustice has been
defined as something that is obviously unfair or shocking to the conscience. State v.
Kelly, 291 Kan. 868, 873, 248 P.3d 1282 (2011).
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Kebert has the burden to establish manifest injustice. K.S.A. 60-1507(f)(2); State
v. Holt, 298 Kan. 469, 480, 313 P.3d 826 (2013). In considering Kebert's claim of
manifest injustice, our examination includes (1) whether he convinces us that
circumstances prevented him from filing the 60-1507 motion within the 1-year time
limitation; (2) whether his motion raises substantial issues of law or fact deserving
consideration; and (3) whether he makes a colorable claim of actual innocence. See
Vontress v. State, 299 Kan. 607, 616, 325 P.3d 1114 (2014),

The factual bases for Kebert's claim of manifest injustice are that his attorney lied
and misled him into entering a plea while he was suffering from a brain injury and
heavily medicated and that the prosecution falsified the plea agreement to obtain the
maximum sentence. These claims arise from events occurring before the district court
accepted Kebert's pleas and found him guilty. Even if true, neither of these reasons
explains the delay in filing Kebert's motion. Further, Kebert makes no claim in his
motion that he was innocent. To the contrary, his argument is that his lawyer should have
negotiated a better deal for his criminal conduct. Kebert fails to show manifest injustice
to excuse the untimely filing of his motion. The district court did not err in finding
Kebert's motion untimely.

Kebert's motion was also successive. Under K.S.A. 60-1507(c), a district court is
not required to entertain a second or successive motion on behalf of the same prisoner.
State v. Trotter, 296 Kan. 898, 904, 295 P.3d 1039 (2013). This was Kebert's second
K.S.A. 60-1507 motion. In his original motion he raised claims about his lawyer's
performance at the time of Kebert's pleas. Those claims were ultimately found by this
court to have no merit. Kebert does not get a second bite of the apple on those claims.

The other claims Kebert raises in the present motion clearly could have been
brought in his original motion, but they were not. The rule regarding successive motions
applies not only to claims already brought, but claims that could have been brought in the
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original motion. See State v. Martin, 294 Kan. 638, 640-41, 279 P.3d 704 (2012), cert.
denied 134 S. Ct. 114 (2013); Dunlap v. State, 221 Kan. 268, 269-70, 559 P.2d 788
(1977).

Exceptional circumstances could excuse a successive motion, but that only applies
when there are "'unusual events or intervening changes in the law which prevent a
movant from reasonably being able to raise all of the trial errors in the first post-
conviction proceeding.' [Citation omitted.]" Woodberry v. State, 33 Kan. App. 2d 171,
175, 101 P.3d 727, rev. denied 278 Kan. 853 (2004); see Supreme Court Rule 183(c) and
(d) (2015 Kan. Ct. R. Annot. 271). Kebert does not show any exceptional circumstances
that prevented him from raising all these issues in his first K.S.A. 60-1507 motion. Thus,
the district court did not err in concluding that Kebert's present K.S.A. 60-1507 motion
was successive.

Affirmed.