Wimbley v. State

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NOT DESIGNATED FOR PUBLICATION

No. 118,336

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

WILL A. WIMBLEY,
Appellant,

v.

STATE OF KANSAS,
Appellee.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; STEPHEN J. TERNES, judge. Opinion filed August 17, 2018.
Affirmed.

Will A. Wimbley, appellant pro se.

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

Before SCHROEDER, P.J., LEBEN, J., and BURGESS, S.J.

PER CURIAM: Will A. Wimbley was convicted of first-degree felony murder and
criminal possession of a firearm in 1999. Following his direct appeal, Wimbley filed
K.S.A. 60-1507 motions in 2002 and 2008, which were denied. He filed his third K.S.A.
60-1507 motion, the subject of this appeal, in 2017. The district court summarily denied
Wimbley's motion because it was untimely, successive, and failed to establish manifest
injustice to overcome the time limitations or exceptional circumstances to warrant the
consideration of a successive motion. We agree that Wimbley's K.S.A. 60-1507 motion
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was untimely and successive and he failed to establish manifest injustice or exceptional
circumstances permitting its consideration. We affirm.

FACTUAL AND PROCEDURAL HISTORY

In 1999, a jury convicted Wimbley of first-degree felony murder and criminal
possession of a firearm following the murder of his ex-girlfriend. Wimbley was
sentenced to a hard 40 life sentence for the murder conviction and 17 months'
imprisonment for the criminal possession of a firearm conviction. The Kansas Supreme
Court affirmed his convictions on direct appeal. State v. Wimbley, 271 Kan. 843, 26 P.3d
657 (2001).

In 2002, Wimbley filed his first 60-1507 motion, arguing various evidentiary
errors, ineffective assistance of counsel, and prosecutorial misconduct during closing
argument. His motion was denied and the Court of Appeals affirmed. Wimbley v. State,
No. 90,025, 2004 WL 1191449, at *9 (Kan. App. 2004) (unpublished opinion).

In 2008, Wimbley filed his second 60-1507 motion, asserting prosecutorial
misconduct during closing argument; various evidentiary issues, including the DNA on
the murder weapon; ineffective assistance counsel; and actual innocence. See Wimbley v.
State, 292 Kan. 796, 275 P.3d 35 (2011). The Kansas Supreme Court found that his
motion was successive and untimely and that no exceptional circumstances warranted
consideration of the merits of Wimbley's 60-1507 motion. 292 Kan. at 806-12.

On June 27, 2017, Wimbley filed his third 60-1507 motion. In it, he asserted
claims of ineffective assistance of trial counsel and counsel that represented him on his
first 60-1507 motion, prosecutorial misconduct, and evidentiary issues, including the
DNA testing done on the murder weapon. The district court denied Wimbley's motion as
successive and untimely. Wimbley appeals.
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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).

The standard of review depends on which of these options a district court utilizes.
300 Kan. at 881. Here, the district court denied Wimbley's 60-1507 motion without
conducting a hearing, so we conduct a de novo review to determine whether the motion,
files, and records of the case conclusively establish if Wimbley is entitled to relief. See
300 Kan. at 881.

Wimbley contends that the district court erred when it denied his 60-1507 motion
for being successive and untimely. However, in his brief on appeal, Wimbley presents
arguments relating only to the merits of his 60-1507 motion. In fact, the argument section
of his brief is his 60-1507 motion. Wimbley does nothing to establish that he met the
burden of showing manifest injustice or exceptional circumstances that is necessary to
overcome the untimely and successive nature of his motion. Despite his arguments, we
agree with the district court. Wimbley's 60-1507 motion is both untimely and successive,
and the district court did not err in its denial.


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First, Wimbley's 60-1507 motion is untimely. Generally, a defendant has one year
after a conviction becomes final to file a motion under K.S.A. 60-1507(a). K.S.A. 60-
1507(f)(1). Defendants who had claims preexisting the 2003 statutory amendment had
until June 30, 2004, to file a 60-1507 motion. Pabst v. State, 287 Kan. 1, 22, 192 P.3d
630 (2008). Wimbley filed his motion long after this deadline. These statutory time
limitations may be extended to prevent manifest injustice. K.S.A. 60-1507(f)(2). State v.
Trotter, 296 Kan. 898, 905, 295 P.3d 1039 (2013). To determine whether manifest
injustice would exist without extension of the statutory time limitations, we are now
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."
K.S.A. 2017 Supp. 60-1507(f)(2)(A); L. 2016, ch. 58, § 2 (effective July 1, 2016).

Wimbley provides no explanation why his motion is not within the time
limitations described in K.S.A. 2017 Supp. 60-1507(f). Because he failed to provide
persuasive reasons or circumstances that prevented him from filing his 60-1507 motion
within the time limitations, Wimbley failed to meet the first factor. See Cox v. State, No.
116,449, 2018 WL 1660452, at *2-3 (Kan. App. 2018) (unpublished opinion). Second,
although Wimbley maintains his innocence, he does so unconvincingly. In his motion,
Wimbley claims that "no reasonable jury would have found him guilty but not for the
constitutional errors that occurred during his trial." Wimbley's convictions were affirmed
on direct appeal, his two previous 60-1507 motions provided him no relief, and his guilt
is supported by the record. Therefore, despite his claims otherwise, Wimbley has not
shown that it was more likely than not that no reasonable juror would have convicted
him. Wimbley has not met the burden of showing us that manifest injustice will result
without the extension of the time limitation to file his motion.

Second, Wimbley's 60-1507 motion is successive. Kansas courts need not
entertain successive motions. K.S.A. 2017 Supp. 60-1507(c). A successive motion is
considered only upon a showing of exceptional circumstances justifying consideration.
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State v. Kelly, 291 Kan. 868, Syl. ¶ 2, 248 P.3d 1282 (2011); Walker v. State, 216 Kan. 1,
Syl. ¶ 2, 530 P.2d 1235 (1975) (stating that a movant is presumed to have listed all
grounds for relief and subsequent motion need not be considered with no circumstances
justifying the original failure to list a ground). Exceptional circumstances that will permit
review include unusual events or intervening changes in the law that prevented the
movant from raising the issue in a previous 60-1507 motion. Upchurch v. State, 36 Kan.
App. 2d 488, 492, 141 P.3d 1175 (2006).

Wimbley does not argue exceptional circumstances. Wimbley brings claims of
prosecutorial misconduct, ineffective assistance of trial counsel, ineffective assistance of
direct appeal counsel, and ineffective assistance of his first 60-1507 counsel. Every court
from which Wimbley has sought relief has previously denied his claims. Claims that were
actually raised or could have been raised in prior 60-1507 motions, as well as successive
motions, are barred and may be denied under K.S.A. 2017 Supp. 60-1507(c). The
rationale for this rule is the need for finality in the criminal appeal process and to prevent
endless piecemeal litigation. Toney v. State, 39 Kan. App. 2d 944, 948, 187 P.3d 122
(2008); see Dawson v. State, No. 115,129, 2017 WL 262027, *3 (Kan. App. 2017)
(unpublished opinion), rev. granted 307 Kan. 986 (2017). Wimbley does not argue that
any unusual events or changes in the law allow him to overcome the successive nature of
his current 60-1507 motion. He does not successfully persuade us that exceptional
circumstances warrant our consideration.

The district court correctly denied Wimbley relief as his motion was both untimely
and successive and failed to establish manifest injustice or exceptional circumstances.

Affirmed.