Brown v. State

1

NOT DESIGNATED FOR PUBLICATION

No. 120,315

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

CHARLES E. BROWN,
Appellant,

v.

STATE OF KANSAS,
Appellee.


MEMORANDUM OPINION

Appeal from Wyandotte District Court; J. DEXTER BURDETTE, judge. Opinion filed August 30,
2019. Appeal dismissed.

Cline I. Boone, of Shawnee, for appellant.

Adam Sokoloff, assistant district attorney, Mark A. Dupree Sr., district attorney, and Derek
Schmidt, attorney general, for appellee.

Before ARNOLD-BURGER, C.J., BRUNS and WARNER, JJ.

PER CURIAM: Charles E. Brown appeals from the district court's summary denial
of his K.S.A. 2018 Supp. 60-1507 motion. However, we find that Brown's notice of
appeal is insufficient in that it fails to comply with the requirements of K.S.A. 2018
Supp. 60-2103(b) and Kansas Supreme Court Rule 2.02 (2019 Kan. S. Ct. R. 14). In
particular, the notice of appeal fails to identify the judgment from which Brown is
appealing and fails to identify the court to which he is directing his appeal. We also note
that even if we had jurisdiction to hear this appeal, summary denial by the district court
was appropriate. Accordingly, we dismiss this appeal for lack of appellate jurisdiction.
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FACTS

This is Charles E. Brown's fourth appearance before the Kansas appellate courts in
connection with his 1997 criminal case in which a jury convicted him of first-degree
murder. The district court imposed a life sentence and applied the hard 25 sentencing
rule. The Kansas Supreme Court affirmed Brown's conviction on January 22, 1999. State
v. Brown, 266 Kan. 563, 973 P.2d 773 (1999). In its decision, the Kansas Supreme Court
briefly summarized the facts of the underlying case and we will not repeat them here.

Three years later, Brown filed a pro se motion to correct illegal sentence. In his
motion filed on November 14, 2002, Brown argued that the first-degree murder statute
was unconstitutional and he also objected to the jury instructions. He further claimed that
the district court denied his right to due process when it instructed the jury. Brown later
added an "Addendum to Motion to Correct Illegal Sentence" attempting to explain his
claims. The district court summarily denied the motion, finding "no factual issues nor
substantial questions of law exist." The Kansas Supreme Court affirmed the denial of
Brown's motion to correct illegal sentence on February 3, 2006. State v. Brown, 280 Kan.
898, 127 P.3d 257 (2006).

On January 15, 2008, Brown filed a "Motion for D.N.A. Hearing per K.S.A. 21-
2512." In the motion, he requested DNA testing on teeth and bone fragments that were
recovered at the scene of the crime. Brown alleged that the evidence was "planted or
somehow dropped there by person or persons whom were instr[u]mental in framing him
for a first degree murder charge." In denying the motion, the district court concluded that
"[t]here can be no showing that such testing would result in the discovery of exculpatory
evidence. The identity of the deceased was never an issue."

Several years later, on November 2, 2011, Brown again filed a motion for DNA
testing. The district court denied the motion in a memorandum decision entered on March
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13, 2012. In denying the motion, the district court explained that "[n]one of these
conclusory allegations are supported by facts or evidence" and that "[n]o showing has
been made by [Brown] that DNA testing would result in the discovery of exculpatory
evidence as the identity of the deceased was never in issue." By an order issued
November 7, 2012, this court dismissed Brown's appeal.

On May 5, 2017, Brown filed the K.S.A. 60-1507 motion that is the subject of this
appeal. In his motion, Brown argued that "[e]xceptional circumstances exist[ed] thus
excusing" his "lateness in raising these issues." Specifically, he argued that two letters
from his former trial counsel, Barry Albin, dated March 1, 2016, and March 22, 2016,
raised "additional questions of law." Brown attached the letters to his motion and
included them in the record on appeal.

In a memorandum opinion issued on August 31, 2017, the district court concluded
that it has been "shown that the movant is entitled to no relief and his petition is
summarily denied." The district court further explained that the K.S.A. 60-1507 motion
was filed "well outside the one year time limitation" and that Brown "has shown no
manifest injustice or extraordinary circumstances that would provide an exception to this
limitation."

On September 14, 2017, Brown filed a notice of appeal. The notice stated in its
entirety "Petitioner attached letters from Trial counsel to Petition which conclusively
show Judge Burdett[e']s prior ruling to be on false grounds. There is no time limit on a
Brady claim." The notice of appeal did not list the judgment or orders from which Brown
is appealing. Furthermore, the notice of appeal did not indicate the court to which he was
appealing.



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ANALYSIS

At the outset, we will address the issues of whether Brown's notice of appeal is
sufficient to provide us with appellate jurisdiction. "[A]n appellate court has a duty to
question jurisdiction on its own initiative." State v. Marinelli, 307 Kan. 768, 774, 415
P.3d 405 (2018). Whether jurisdiction exists is a question of law over which our review is
unlimited. State v. Smith, 304 Kan. 916, 919, 377 P.3d 414 (2016).

The timely filing of a notice of appeal meeting the statutory requirements triggers
appellate jurisdiction. See Albright v. State, 292 Kan. 193, 197, 251 P.3d 52 (2011).
K.S.A. 2018 Supp. 60-2103(b) requires that a "notice of appeal shall specify the parties
taking the appeal; shall designate the judgment or part thereof appealed from; and shall
name the appellate court to which the appeal is taken." Furthermore, the Kansas Supreme
Court requires that the "notice of appeal must be filed in the district court, be under the
caption of the district court case, and be in substantial compliance with the judicial
council form." Supreme Court Rule 2.02 (2019 Kan. S. Ct. R. 14).

Here, the notice of appeal reads in its entirety:

"Petitioner attached letters from Trial counsel to Petition which conclusively
show Judge Burdett[e']s prior rulings to be on false grounds.

"There is no time limit on a Brady claim."

Accordingly, the notice of appeal fails to identify the judgment from which Brown
is appealing. It also fails to identify the appellate court to which he is directing his appeal.
Although we recognize that Brown filed his notice of appeal pro se, he is still required to
substantially comply with the notice of appeal requirements. See Dawson v. State, 310
Kan. __, 444 P.3d 974, 980-81 (2019); Nguyen v. State, 309 Kan. 96, 104, 431 P.3d 862
(2018). Hence, we conclude that Brown's appeal fails for lack of jurisdiction.
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We note, however, that even if Brown had complied with K.S.A. 2018 Supp. 60-
2103(b) and Supreme Court Rule 2.02 in filing his notice of appeal, the district court did
not err in summarily denying his K.S.A. 60-1507 motion. As the parties recognize,
K.S.A. 2018 Supp. 60-1507(f)(1)(A) requires a movant to bring a motion "within one
year of . . . [t]he final order of the last appellate court in this state to exercise jurisdiction
on a direct appeal or the termination of such appellate jurisdiction." Here, it is undisputed
that the mandate was filed in Brown's direct appeal on January 22, 1999. As such, the
deadline for Brown to file a K.S.A. 60-1507 motion expired many years ago.

We also note that the statutory time limit can be extended by the district court to
prevent manifest injustice. K.S.A. 2018 Supp. 60-1507(f)(2). To determine "manifest
injustice," the district court must determine if there is "a colorable claim of innocence."
K.S.A. 2018 Supp. 60-1507(f)(2)(A). In other words, the district court must determine
whether the movant has shown that "it is more likely than not that no reasonable juror
would have convicted [him or her] in light of new evidence." K.S.A. 2018 Supp. 60-
1507(f)(2)(A).

Based on our review of the record, we find that Brown failed to establish manifest
injustice to support the belated filing of his K.S.A. 60-1507 motion. Manifest injustice
requires some "new evidence" which would make it more likely than not that a
reasonable juror would have acquitted the movant. See K.S.A. 2018 Supp. 60-
1507(f)(2)(A). Brown fails to provide any new evidence. Instead, he submitted two letters
from his former trial attorney—evidently written in response to a request made by
Brown—that contained information previously known or that could have been attained at
any point over the last 20 years.

Based on the plain language in the letters, we do not find that they include new
evidence or a colorable claim of innocence. Simply because Brown may have neglected
to ask his former attorney about some of these matters previously does not make the
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information contained in them new. Although Brown asserts that the letters contain an
admission of ineffective assistance of counsel, the plain language of the letters does not
support this interpretation.

We find nothing in the record to suggest that it is "more likely than not that no
reasonable juror would have convicted [Brown] in light of new evidence." See K.S.A.
2018 Supp. 60-1507(f)(2)(A). Rather, we find that Brown has failed to establish manifest
injustice. Accordingly, we conclude that the district court appropriately denied Brown's
K.S.A. 60-1507 motion as untimely.

In addition, we find that Brown's K.S.A. 60-1507 motion to be successive. Under
K.S.A. 2018 Supp. 60-1507(c), a "sentencing court shall not be required to entertain a
second or successive motion for similar relief on behalf of the same prisoner." Not only
are issues that have been previously addressed deemed to be successive but also issues
that could have been raised previously. See Toney v. State, 39 Kan. App. 2d 944, 948,
187 P.3d 122 (2008). As the State correctly notes, the issues raised by Brown in the
present motion are issues that were previously known or should have been known to him
when he pursued his direct appeal as well as when he filed his various postappeal
motions. Moreover, Brown has failed to argue exceptional circumstances to justify his
successive motion.

A review of the record reveals that many of the issues Brown attempts to assert in
his present K.S.A. 60-1507 motion were addressed in his prior motions and/or appeals.
For example, in Brown's direct appeal, our Supreme Court found no error in the
admission of physical evidence or expert testimony. Likewise, no error was found in the
denial of the request for funds to hire an investigator. See Brown, 266 Kan. at 569-79.
Similarly, Brown's claims regarding DNA evidence were previously addressed by the
district court and his appeal was dismissed for failure to properly submit a brief. See
Brown v. State, No. 108,104 (order dated November 7, 2012) (unpublished).
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Consequently, we find that even if we had appellate jurisdiction to hear this matter,
Brown's K.S.A. 60-1507 motion fails because it is both untimely and successive.

Appeal dismissed.