State v. Davis

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NOT DESIGNATED FOR PUBLICATION

No. 113,891

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

ANTHONY LEROY DAVIS,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; WARREN M. WILBERT and JAMES R. FLEETWOOD, judges.
Opinion filed June 17, 2016. Affirmed.

Carl F.A. Maughan, of Maughan Law Group LC, of Wichita, for appellant.

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

Before BRUNS, P.J., POWELL and GARDNER, JJ.

Per Curiam: Anthony L. Davis appeals the district court's summary denial of his
postconviction motion to request transcripts and his subsequent motion for
reconsideration, arguing he is entitled to a copy of transcripts despite the fact that he did
not have a postconviction motion before the district court. For the reasons stated below,
we affirm.

In 1989, Davis was convicted of felony first-degree murder, aggravated arson, and
aggravated robbery and was sentenced to a controlling term of life imprisonment. The
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Kansas Supreme Court affirmed Davis' convictions on direct appeal. State v. Davis, 247
Kan. 566, 575, 802 P.2d 541 (1990). Thereafter, Davis unsuccessfully filed multiple
postconviction motions challenging his conviction and sentence. See, e.g., State v. Davis,
271 Kan. 892, 26 P.3d 681 (2001); Davis v. State, No. 99,288, 2009 WL 311817 (Kan.
App.) (unpublished opinion), rev. denied 289 Kan. 1277 (2009); Davis v. State, No.
95,179, 2006 WL 3740850 (Kan. App. 2006) (unpublished opinion), rev. denied 283
Kan. 930 (2007).

In April 2014, Davis filed a pro se motion requesting certain portions of his
transcripts "for appeal purposes." In its response, the State argued the district court was
not required to provide transcripts because Davis did not have an appeal or a
postconviction motion pending. The State further stated its belief that Davis had received
a copy of the transcripts when he pursued his direct appeal. The district court adopted the
State's response as its findings of fact and conclusions of law and summarily denied
Davis' motion. Davis then filed a pro se motion to reconsider, which the district court
denied. Davis timely appeals.

Proper notice of appeal

Before addressing the merits, we address the State's preliminary challenge that
Davis' appeal is not properly before this court. The State contends that Davis' notice of
appeal references only the order denying his motion to reconsider, but his brief on appeal
addresses the denial of his request for transcripts. We are not persuaded that we lack
jurisdiction. In State v. Wilkins, 269 Kan. 256, 270, 7 P.3d 252 (2000) (relying on State v.
Griffen, 241 Kan. 68, 69-70, 734 P.2d 1089 (1987), our Supreme Court stated:

"Given that the notice of appeal 'should not be overly technical or detailed'; that
the 'State does not generally take any significant action when receiving a notice of
appeal'; that the typographical error in this case 'does not harm or even affect the State in
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any appreciable way'; that the State has not shown surprise or prejudice; that this court is
to construe K.S.A. 60-2103(b) liberally to assure justice in every proceeding; and that
actions should be just, speedy, and inexpensively determined, we hold that the 'judgment
of sentence' language found in Wilkins' notice of appeal sufficiently conferred
jurisdiction on the Court of Appeals to determine the substantive issues raised in the
robbery case."

The State has not shown that the notice of appeal was misleading or that anyone was
surprised or prejudiced by the issue on appeal. Accordingly, we liberally construe the
notice of appeal as sufficient to vest us with jurisdiction, preferring to address the issues
on the merits.

Request for transcripts

On appeal, Davis argues the district court erred by denying his request for
transcripts. He further contends he has a statutory right to obtain a copy of transcripts.
Davis recognizes State v. McKinney, 10 Kan. App. 2d 459, Syl., 701 P.2d 701 (1985),
holds to the contrary, but he argues that a later case, Griffen, 241 Kan. 68, requires the
district court to provide him copies of the transcripts.

In reviewing a determination of whether an indigent litigant is entitled to free
transcripts, we use the abuse of discretion standard. State v. Brown, 266 Kan. 563, 572,
973 P.2d 773 (1999). To the extent this case turns on matters of statutory interpretation,
we have unlimited review. State v. Eddy, 299 Kan. 29, 32, 321 P.3d 12 (2014).

K.S.A. 22-4506(a) permits an indigent defendant to file either a petition for writ of
habeas corpus or a K.S.A. 60-1507 motion and an indigency affidavit. For purposes of
convenience, we will address those petitions and motions as "motions." The district court
examines the motion and its supporting documentation to determine whether the motion
presents substantial issues of law or fact and if the movant is indigent. If so, K.S.A. 22-
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4506(b) requires the court to appoint counsel and supply the movant with a free
transcript, if and to the extent a transcript is necessary to properly present the issues
raised in the motion. Furthermore, K.S.A. 22-4509 provides:

"Whenever it is determined that a transcript of all or some part of the trial or
other proceeding is necessary to enable a person who is entitled to appeal, or to pursue
another post-conviction remedy, to present such person's cause adequately and it is
further determined that the appellant or petitioner or movant is financially unable to pay
for the preparation of such transcript, the district court shall order that the transcript be
supplied to the appellant or petitioner or movant by the official reporter of the district
court."

In McKinney, the Kansas Court of Appeals held that K.S.A. 22-4506 requires a
prisoner to file either a petition or motion under K.S.A. 60-1501 or K.S.A. 60-1507 and
an affidavit of indigency before the district can determine whether a free transcript should
be ordered. Because McKinney failed to file either, we found the district court did not err
in denying his motion for a free transcript. 10 Kan. App. 2d at 460. Our court has
routinely followed this compelling practical approach. See, e.g., State v. Taylor, No.
104,773, 2011 WL 4357834 (Kan. App. 2011) (unpublished opinion), rev. denied 293
Kan. 1113 (2012) (until a postconviction motion is filed, the district court was unable to
determine whether a transcript was necessary to enable Taylor to obtain relief); State v.
Johnson, No. 95,115, 2006 WL 3773722 (Kan. App. 2006) (unpublished opinion)
("Johnson's request for transcripts [was] nothing more than a fishing expedition."), rev.
denied 283 Kan. 932 (2007).

Davis' reliance on Griffen, 241 Kan. 68, and Britt v. North Carolina, 404 U.S. 226,
92 S. Ct. 431, 30 L. Ed. 2d 400 (1971), is misplaced. Those cases are distinguishable
because they examine an indigent defendant's right to a free transcript to prepare a trial
defense or to perfect an appeal. Davis seeks a free transcript to prepare a future
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postconviction motion, not to prepare a trial defense or to perfect an appeal, claiming the
transcripts will permit him to file a more well-reasoned and well-documented motion.

The free transcript described in K.S.A. 22-4509 is predicated upon a determination
that a transcript is necessary to enable Davis to obtain relief on his postconviction
motion. Until a K.S.A. 60-1501 petition or K.S.A. 60-1507 motion is filed, the district
court is unable to make that determination. Thus, the district court did not err in denying
Davis' motion for a free transcript.

Kansas Open Records Act

Davis next argues that the district court erred in failing to liberally construe his
motion as a request for documents under the Kansas Open Records Act (KORA), K.S.A.
45-215 et seq. Whether the district court correctly construed a pro se motion is a question
of law over which this court has unlimited review. State v. Kelly, 291 Kan. 563, 565, 244
P.3d 639 (2010).

Davis raises this argument for the first time on appeal. His brief cites no authority
supporting his argument that his motion should be construed as a KORA request. He
argues only that we should either remand the case to the district court for review under
KORA or grant his request because the State failed to show the documents were not
subject to KORA. We decline this invitation, concluding that Davis has waived or
abandoned his KORA argument. See State v. Tague, 296 Kan. 993, 1001, 298 P.3d 273
(2013) (points raised without supporting authority are waived or abandoned).
If Davis wishes to make a KORA request, he should follow the procedure set forth in
K.S.A. 45-220.

Affirmed.