Gaddis v. State

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NOT DESIGNATED FOR PUBLICATION

No. 113,112

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

LONNIE R. GADDIS,
Appellant,

v.

STATE OF KANSAS,
Appellee.


MEMORANDUM OPINION

Appeal from Wyandotte District Court; J. DEXTER BURDETTE, judge. Opinion filed November
13, 2015. Affirmed.

Richard P. Klein, of Olathe, for appellant.

Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.

Before MALONE, C.J., BRUNS, J., and ROBERT W. FAIRCHILD, District Judge, assigned.

Per Curiam: Lonnie R. Gaddis appeals the district court's summary dismissal of
his second K.S.A. 60-1507 motion, which the district court found was untimely and
successive. On appeal, Gaddis contends that we should allow him to withdraw his plea
or, in the alternative, that he is entitled to an evidentiary hearing on several alleged
instances of ineffective assistance by his trial counsel. Nevertheless, Gaddis has failed to
meet his burden of showing that his untimely motion should be considered to prevent
manifest injustice. Additionally, he has not shown that circumstances exist to warrant a
successive motion. Thus, we affirm.

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FACTS

On March 11, 1992, Gaddis pled guilty to one count of second-degree murder. On
May 5, 1992, he filed a motion to withdraw his plea. At the hearing on the motion,
Gaddis argued that he did not know the definition of second-degree murder when he
decided to enter the plea and that he did not believe his actions constituted second-degree
murder. Ultimately, the district court determined that there was a sufficient factual basis
for Gaddis' plea to the charge of second-degree murder and denied the motion.

On May 8, 1992, the district court sentenced Gaddis to an indeterminate sentence
of not less than 10 nor more than 20 years in the custody of the Secretary of Corrections
or until otherwise discharged by law. The district court also denied a motion to modify
Gaddis' sentence. Although counsel was appointed for a direct appeal, it does not appear
from the record that one was ever filed.

On May 27, 1993, Gaddis filed his first K.S.A. 60-1507 motion arguing that his
trial counsel provided ineffective assistance and that his plea was not voluntarily entered.
After holding an evidentiary hearing, at which Gaddis' trial counsel testified, the district
court denied his K.S.A. 60-1507 motion. His subsequent appeal was involuntarily
dismissed on March 5, 1997.

More than 17 years later, on March 19, 2014, Gaddis filed another K.S.A. 60-1507
motion, which is the subject of this appeal. Once again, he alleged ineffective assistance
of trial counsel. The State filed a motion to dismiss Gaddis' K.S.A. 60-1507 motion,
arguing that it was filed outside of the 1-year time limit and did not show the manifest
injustice necessary to extend the time limit. In addition, the State argued that the district
court should dismiss the motion as successive because Gaddis could have argued the
issues in the current motion in his first K.S.A. 60-1507 motion, and he failed to show that
exceptional circumstances excused his failure to do so.
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On May 22, 2014, the district court filed a memorandum decision and order
summarily dismissing Gaddis' motion because he filed it outside of the 1-year time
limitation and failed to show that it should be considered to prevent a manifest injustice.
The district court also reasoned that Gaddis did not provide any exceptional
circumstances justifying the filing of a second K.S.A. 60-1507 motion. Thereafter,
Gaddis timely appealed.

ANALYSIS

Standard of Review

When the district court summarily denies a K.S.A. 60-1507 motion, we conduct a
de novo review to determine whether 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).

Untimely Filing of Motion

K.S.A. 60-1507(f)(1) requires that a motion under that statute be filed within 1
year of the final order of the last appellate court to exercise jurisdiction on a direct
appeal. Here, Gaddis was sentenced on May 8, 1992, and evidently did not file a direct
appeal. Therefore, Gaddis' motion—which was filed on March 19, 2014—is untimely on
its face. Nevertheless, K.S.A. 60-1507(f)(2) allows for an extension of time to be granted
to prevent manifest injustice. Thus, we must determine whether Gaddis has shown that
manifest injustice would occur unless he is allowed to file his motion out of time.

To determine whether manifest injustice exists, we consider the totality of the
circumstances, including—but not limited to—whether Gaddis provided persuasive
reasons that prevented him from timely filing his motion, whether the merits of his claim
raise substantial issues of law or fact that deserve the district court's consideration, or
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whether he sets forth "a colorable claim of actual innocence, i.e., factual, not legal,
innocence." See Vontress v. State, 299 Kan. 607, 616, 325 P.3d 1114 (2014).

Gaddis does not allege that he is actually innocent of the crime. Likewise, he does
not provide any reason or circumstance that prevented him from timely filing the current
60-1507 motion. Instead, he argues only that the attorney representing him on his initial
K.S.A. 60-1507 motion failed to properly argue his trial counsel's ineffectiveness
somehow constitutes manifest injustice.

Moreover, Gaddis argues this version of manifest injustice for the first time on
appeal. As a general rule, issues not raised before the trial court cannot be raised on
appeal. See State v. Kelly, 298 Kan. 965, 971, 318 P.3d 987 (2014). In his current 60-
1507 motion, Gaddis did not mention his first K.S.A. 60-1507 counsel and only argued
that the merits of his claims of ineffective assistance of trial counsel constituted sufficient
reason for the district court to consider his untimely motion.

It is important to note that Gaddis had already argued in his first 60-1507 motion
that his trial counsel was ineffective at his plea hearing and on his motion to withdraw his
plea. Moreover, the district court held an evidentiary hearing on October 6, 1993, at
which trial counsel testified. Accordingly, we do not find that the alleged merits of
Gaddis' claim raise substantial issues of law or fact that deserve the district court's
consideration since they have previously been addressed. Therefore, we conclude that the
district court did not err in finding that Gaddis failed to show that his untimely motion
must be considered in order to prevent manifest injustice.

Successive Motions

Alternatively, the district court dismissed Gaddis' motion because it was
successive. A district court does not need to consider a subsequent motion brought
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pursuant to K.S.A. 60-1507 unless the movant shows circumstances justifying the
original failure to list a particular ground for relief. See State v. Trotter, 296 Kan. 898,
Syl. ¶ 2, 295 P.3d 1039 (2013).

"A sentencing court may not consider a second or successive motion for relief by the
same movant when: (1) the ground for relief was determined adversely to the movant on
a prior motion; (2) the prior determination was on the merits; and (3) justice would not be
served by reaching the merits on the subsequent motion." Supreme Court Rule 183(d)
(2014 Kan. Ct. R. Annot. 286).

As stated previously, Gaddis' current K.S.A. 60-1507 motion simply rehashes his
previous claims that his trial counsel was ineffective. Furthermore, the district court held
an evidentiary hearing on Gaddis' initial K.S.A. 60-1507 motion—at which time it heard
the testimony of trial counsel—and decided the issue on the merits. We do not find that
Gaddis' current motion alleges circumstances justifying reconsideration of those issues.
We conclude, therefore, that the district court did not err in dismissing the current motion
as successive.

Affirmed.