State v. Fraley

1

NOT DESIGNATED FOR PUBLICATION

No. 113,178
No. 113,892

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

MARK A. FRALEY,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; JOHN J. KISNER, JR., judge. Opinion filed June 10, 2016.
Affirmed.

Carl Maughan, of Maughan Law Group, of Wichita, for appellant.

Mark A. Fraley, appellant pro se.

Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before HILL, P.J., STANDRIDGE and ATCHESON, JJ.

Per Curiam: This appeal brings us the latest chapters in Mark A. Fraley's
continuing efforts to escape convictions and sentences for an attack on his then-estranged
wife 15 years ago. Fraley has presented one challenge as a motion to arrest the judgment
in the long concluded criminal case and the other challenge as a motion to correct an
illegal sentence based on the Kansas Supreme Court's now-inert decision in State v.
Murdock, 299 Kan. 312, 323 P.3d 846 (2014), modified by Supreme Court order
2

September 19, 2014, overruled by State v. Keel, 302 Kan. 560, 357 P.3d 251 (2015), cert.
denied 136 S. Ct. 865 (2016). In separate rulings, the Sedgwick County District Court
denied those motions, and Fraley has appealed. We have consolidated the appeals and
now affirm the district court.

In late 2001, Fraley and his wife had separated and were in the process of
divorcing. She obtained a protection from abuse order precluding Fraley from entering
their home. Despite the order, Fraley broke in and sexually assaulted his wife. A jury
convicted Fraley of aggravated burglary and rape about 7 months later, and the district
court sentenced him to 272 months in prison. This court upheld the verdicts and the
sentence on direct appeal. State v. Fraley, No. 89,392, 2004 WL 1443894, at *1 (Kan.
App.) (unpublished opinion), rev. denied 278 Kan. 849 (2004).

Fraley has since filed an unsuccessful habeas corpus attack on the judgment under
K.S.A. 60-1507. Fraley v. State, No. 104,227, 2011 WL 3795474 (Kan. App. 2011)
(unpublished opinion), rev. denied 293 Kan. 1105 (2012). During the habeas corpus
proceeding, Fraley filed a pro se motion in the criminal case asking the district court to
approve funds for him to hire an investigator. The district court denied the motion, and
this court affirmed that ruling. State v. Fraley, No. 105,823, 2012 WL 2326006, at *1
(Kan. App. 2012) (unpublished opinion), rev. denied 296 Kan. 1132 (2013).

In May 2014, Fraley filed a motion to correct an illegal sentence, as permitted in
K.S.A. 22-3504, arguing that the district court overstated his criminal history. Fraley
based his argument on an extension of the Murdock decision to suggest a past felony
conviction should have been treated as a nonperson offense for criminal history purposes.
The Murdock decision provided the essential legal foundation for Fraley's argument. The
Kansas Supreme Court, however, overruled Murdock in Keel, 302 Kan. 560, Syl. ¶ 9. The
Keel decision turned the foundation for Fraley's argument to dust. And without that
foundation, his argument cannot prevail. (We question whether Fraley's position reflected
3

a legitimate extrapolation of Murdock in any event. But we needn't plumb the issue more
deeply.) On that point, we, therefore, affirm the district court's denial of Fraley's motion
to correct an illegal sentence.

Apart from the substantive issue, Fraley also argues the district court procedurally
erred in denying the motion to correct an illegal sentence without conducting a hearing at
which he personally was present. The Kansas Supreme Court has held that a district court
need not hold a hearing if a motion to correct an illegal sentence is obviously without
merit. See State v. Conley, 287 Kan. 696, 703, 197 P.3d 837 (2008); State v. Edwards,
281 Kan. 1334, 1342-43, 135 P.3d 1251 (2006). This is such a case.

In July 2014, Fraley drafted and filed a motion in the criminal case to arrest the
judgment of conviction. As provided in K.S.A. 2015 Supp. 22-3502, a criminal defendant
may file such a motion within 14 days of the guilty verdict or within such additional time
as the district court may allow by order filed within that 14-day period. Fraley's motion
missed the statutory deadline by about 12 years. Expiration of the filing deadline in
K.S.A. 2015 Supp. 22-3502 interposes a jurisdictional bar to the district court's
consideration of an untimely motion. See State v. McCoin, 278 Kan. 465, 467-68, 101
P.3d 1204 (2004); State v. Adams, No. 110,218, 2014 WL 3907102, at *2 (Kan. App.
2014) (unpublished opinion), rev. denied 302 Kan. ___ (July 27, 2015). The district court
lacked jurisdiction to rule on the motion. In turn, we have no jurisdiction to review the
issue on appeal. McCoin, 278 Kan. at 468; see Ryser v. State, 295 Kan. 452, 456, 284
P.3d 337 (2012).

On appeal, Fraley's lawyer argues we should consider the motion as another one
for habeas corpus relief under K.S.A. 60-1507—something the district court did not do.
But the motion would then be both untimely and successive. Typically, a convicted
criminal must bring all of his or her collateral constitutional challenges to a conviction in
a single 60-1507 motion filed within a year of the final disposition of the criminal case.
4

See K.S.A. 60-1507(c), (f). A court may consider a serially or late filed 60-1507 motion
to prevent manifest injustice. See Vontress v. State, 299 Kan. 607, 616, 325 P.3d 1114
(2014). In the interest of fairness, we indulge the argument and have reviewed Fraley's
motion to arrest judgment as if it were a 60-1507 motion. The somewhat discursive
assertions appear to simply repackage what Fraley presented in his initial 60-1507
motion. We find nothing warranting relief let alone tilting toward manifest injustice. No
remand is required, since an appellate court can assess a 60-1507 motion on the papers
without deference to any district court ruling. See Bellamy v. State, 285 Kan. 346, 354,
172 P.3d 10 (2007).

When the lawyer handling this appeal for Fraley did not file a reply brief, Fraley
filed a motion requesting leave to submit one himself. This court granted the request.
Fraley drafted and presented a reply.

An appellant may not raise new issues in a reply brief. State v. McCullough, 293
Kan. 970, 984-85, 270 P.3d 1142 (2012). The purpose of the brief is to offer a pertinent
rebuttal to an appellee's arguments. 293 Kan. at 984-85. Fraley gets no dispensation from
that rule because he wrote his own reply brief. See Guillory v. State, 285 Kan. 223, 229,
170 P.3d 403 (2007).

The only issue Fraley raises that is even arguably appropriate for a reply brief is a
challenge to the timeliness of the State's brief. The State presented its brief to the Clerk of
the Appellate Courts after its last continuance had expired and simultaneously filed a
motion to allow the brief out of time. This court granted the motion and directed the
State's brief be received and filed. In light of that order, Fraley's argument necessarily
fails.

We have carefully reviewed the remainder of Fraley's reply and find nothing that
could even be remotely characterized as fair rebuttal. Rather, Fraley raises additional
5

arguments about the substantive fairness of his trial and the legal propriety of his
sentence. Those points are procedurally inappropriate and, in any event, appear to lack
substantive merit. Having reviewed them, we find no reason to discuss them further or to
extend any relief to Fraley based on them.

Affirmed.