Tapedo v. State

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NOT DESIGNATED FOR PUBLICATION

No. 116,011

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

DEAN OLIVER TAPEDO,
Appellant,

v.

STATE OF KANSAS,
Appellee.


MEMORANDUM OPINION

Appeal from Douglas District Court; BARBARA KAY HUFF, judge. Opinion filed March 3, 2017.
Affirmed.

Dean Oliver Tapedo, appellant pro se.

Kate Duncan Butler, assistant district attorney, Charles E. Branson, district attorney, and Derek
Schmidt, attorney general, for appellee.

Before LEBEN, P.J., POWELL and SCHROEDER, JJ.

Per Curiam: Dean Oliver Tapedo appeals the summary dismissal of his K.S.A.
60-1507 motion. Our review of Tapedo's argument reflects the district court had subject
matter jurisdiction. Additionally, we find it was not improper to charge Tapedo in Count I
in the alternative with rape or aggravated indecent liberties and in Count II with
aggravated criminal sodomy. We affirm.




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FACTS

In 2012, a jury convicted Tapedo of aggravated indecent liberties and aggravated
criminal sodomy. The district court sentenced him to imprisonment for life with a
mandatory minimum sentence of 25 years. Tapedo appealed, and this court affirmed his
convictions and sentence in State v. Tapedo, No. 109,536, 2014 WL 1707635 (Kan. App.
2014), rev. denied 302 Kan. 1020 (2015).

On March 10, 2016, Tapedo timely filed a motion pursuant to K.S.A. 60-1507,
alleging the district court did not have subject matter jurisdiction to convict him because
the charging document was defective. The State responded, arguing Tapedo's complaints
are trial errors barred by res judicata and Tapedo's claims were conclusory. The district
court summarily denied Tapedo's 60-1507 motion finding the trial court had jurisdiction
over the criminal offenses. Tapedo timely appealed.

ANALYSIS

A district court has three options when handling a K.S.A. 60-1507 motion:

"'(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
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).

Our standard of review depends upon which option the district court utilized. 300 Kan. at
881. When the district court summarily denies a K.S.A. 60-1507 motion, an appellate
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court conducts de novo review to determine whether the motion, files, and records of the
case conclusively establish that the movant is not entitled to relief. 300 Kan. at 881.

Both of Tapedo's arguments assert the district court did not have jurisdiction to
convict him because the charging document was defective. Recently however, the Kansas
Supreme Court held:

"Charging documents do not bestow or confer subject matter jurisdiction on state courts
to adjudicate criminal cases; the Kansas Constitution does. Charging documents need
only show that a case has been filed in the correct court, e.g., the district court rather than
municipal court; show that the court has territorial jurisdiction over the crime alleged;
and allege facts that, if proved beyond a reasonable doubt, would constitute a Kansas
crime committed by the defendant." State v. Dunn, 304 Kan. 773, 811, 375 P.3d 332
(2016).

Here, in accordance with Dunn, for the district court to have jurisdiction to
proceed with charging Tapedo, it must be shown the alleged criminal conduct occurred in
Douglas County. Additionally, criminal conduct can be charged in the alternative. See
State v. Garza, 290 Kan. 1021, 1035-36, 236 P.3d 501 (2010). Tapedo was charged with
rape or in the alternative with aggravated indecent liberties with a child. The record
reflects the alleged criminal conduct occurred in Douglas County (territorial jurisdiction),
and therefore, Douglas County had jurisdiction over the trial and to convict him. We also
find the aggravated criminal sodomy charge was not defective because it was drawn in
the language of K.S.A. 2016 Supp. 21-5504(b)(1). See Dunn, 304 Kan. at 811-12
(holding a charging document is deemed sufficient if it is "'drawn in the language of the
statute'").

Tapedo is not entitled to relief. The district court did not err when it summarily
denied Tapedo's 60-1507 motion.

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Affirmed.