Buehler-May v. State

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NOT DESIGNATED FOR PUBLICATION

No. 115,759

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

ROBERT BUEHLER-MAY,
Appellant,

v.

STATE OF KANSAS,
Appellee.


MEMORANDUM OPINION

Appeal from Wyandotte District Court; WESLEY K. GRIFFIN, judge. Opinion filed July 28, 2017.
Affirmed.

Gerald E. Wells, of Jerry Wells Attorney-at-Law, of Lawrence, for appellant.

Daniel G. Obermeier, assistant district attorney, Mark A. Dupree Sr., district attorney, and Derek
Schmidt, attorney general, for appellee.

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

Per Curiam: Robert Buehler-May appeals the district court's dismissal of his
second K.S.A. 60-1507 motion as untimely and successive. Upon review of the record,
we agree with the district court's findings, and we affirm.

FACTS

In 2003, a jury convicted Buehler-May of first-degree murder, conspiracy to
commit first-degree murder, and aggravated kidnapping. The district court sentenced
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Buehler-May to lifetime imprisonment without the possibility of parole for 50 years
(Hard 50) for first-degree murder. He was sentenced to 155 months' imprisonment for
aggravated kidnapping and 117 months' imprisonment for conspiracy to commit first-
degree murder, concurrent to his Hard 50. His convictions and sentence were upheld on
direct appeal. See State v. Buehler-May, 279 Kan. 371, 110 P.3d 425 (2005).

In August 2006, Buehler-May filed a K.S.A. 60-1507 motion, arguing his trial
counsel was ineffective. After an evidentiary hearing and after a nearly 4 1/2-year delay,
the district court issued its decision denying Buehler-May's motion. Another panel of this
court affirmed the district court. See Buehler-May v. State, No. 108,990, 2014 WL
1302612, at *1 (Kan. App. 2014) (unpublished opinion), rev. denied 301 Kan. 1045
(2015).

On April 13, 2015, Buehler-May filed a second K.S.A. 60-1507 motion, raising 28
issues. His claims can be broadly characterized as: ineffective assistance of counsel;
prosecutorial error; perjury by trial witnesses; judicial bias and error; illegal sentence; and
due process violations relating to his first 60-1507 motion. The district court summarily
dismissed his motion, finding his Hard 50 claim had already been addressed on direct
appeal and could not be addressed on collateral review. It further found several of his
claims were conclusory in nature and without legal or factual support. Additionally, it
found his motion was untimely and successive. Buehler-May timely appealed.

ANALYSIS

Buehler-May argues the district court erred in summarily denying his K.S.A. 60-
1507 motion. To be entitled to relief under K.S.A. 60-1507, the movant must establish by
a preponderance of the evidence "the judgment was rendered without jurisdiction, or that
the sentence imposed was not authorized by law or is otherwise open to collateral attack,
or that there has been such a denial or infringement of the constitutional rights of the
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prisoner as to render the judgment vulnerable to collateral attack." K.S.A. 60-1507(b);
Supreme Court Rule 183(g) (2017 Kan. S. Ct. R. 222).

To avoid the summary denial of a motion brought under K.S.A. 60-1507, a
movant bears the burden of establishing entitlement to an evidentiary hearing. To meet
this burden, a movant's contentions must be more than conclusory, and either the movant
must set forth an evidentiary basis to support those contentions or the basis must be
evident from the record. If such a showing is made, the court is required to hold a hearing
unless the motion is a second or successive motion seeking similar relief. When the
district court summarily denies a K.S.A. 60-1507 motion, an appellate court conducts a
de novo review to determine whether the motion, files, and records of the case
conclusively establish that the movant is not entitled to relief. Sola-Morales v. State, 300
Kan. 875, 881, 335 P.3d 1162 (2014).

Untimely and Successive

The majority of Buehler-May's claims cannot be reviewed because his motion is
untimely and successive. "[U]nder K.S.A. 60-1507(c), a court is not required to entertain
successive motions on behalf of the same prisoner." State v. Trotter, 296 Kan. 898, 904,
295 P.3d 1039 (2013) (citing State v. Mitchell, 284 Kan. 374, 379, 162 P.3d 18 [2007]).
"A movant in a K.S.A. 60-1507 motion is presumed to have listed all grounds for relief,
and a subsequent motion need not be considered in the absence of a showing of
circumstances justifying the original failure to list a ground." Trotter, 296 Kan. 898, Syl.
¶ 2. A defendant has 1 year from when a conviction becomes final to file a motion under
K.S.A. 60-1507(a). K.S.A. 60-1507(f)(1).

In his brief, Buehler-May concedes all of his claims except the Hard 50 and the
delay in the district court's decision on his first 60-1507 motion are barred as successive
and untimely. However, he raises the issues to preserve them for potential federal review.
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His claim regarding the delay in deciding his first 60-1507 motion is not untimely or
successive. He filed it 53 days after our Supreme Court denied review in Buehler-May,
2014 WL 1302612. It does not relate to or arise from an issue at trial or on direct appeal;
rather, it relates to the timeliness of the district court's resolution of his first 60-1507
motion and not to the original sentence imposed.

Hard 50 Sentence

With regard to his challenge to the Hard 50 sentence, Buehler-May is technically
raising a claim of an illegal sentence. K.S.A. 22-3504(1) provides that a court may
correct an illegal sentence at any time. A defendant may challenge a sentence even for the
first time on appeal. State v. Fisher, 304 Kan. 263, 264, 373 P.3d 781 (2016). K.S.A. 22-
3504(1), however, has very limited applicability. See State v. Gray, 303 Kan. 1011, 1014,
368 P.3d 1113 (2016). Because the definition of an illegal sentence does not encompass
violations of constitutional provisions, a defendant may not challenge a sentence on
constitutional grounds under K.S.A. 22-3504. State v. Lee, 304 Kan. 416, 418, 372 P.3d
415 (2016).

Here, Buehler-May "attacks the sentencing scheme as unconstitutional," arguing
his sentence was imposed in violation of Alleyne v. United States, 570 U.S. __, 133 S. Ct.
2151, 186 L. Ed. 2d 314 (2013). As our Supreme Court found in State v. Brown, 306
Kan. __, 393 P.3d 1049, 1051-52 (2017), "a defendant cannot use a motion to correct an
illegal sentence under K.S.A. 22-3504 to seek relief based on the constitutional holding in
Alleyne." Therefore, we cannot construe Buehler-May's claim as a motion to correct
illegal sentence under K.S.A. 22-3504. His claim must be construed as a collateral
challenge under K.S.A. 60-1507 and is subject to the timeliness requirements thereunder.

Buehler-May's second K.S.A. 60-1507 motion was filed more than 1 year after the
date his conviction became final. He acknowledges his conviction became final before
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Alleyne was decided but argues he is entitled to relief under State v. Soto, 299 Kan. 102,
322 P.3d 334 (2014). In Brown, our Supreme Court clarified Soto only applied Alleyne to
cases that were not final at the time Alleyne was decided. See Brown, 393 P.3d at 1052.
Thus, Buehler-May is not entitled to relief under Soto. He incidentally raises a due
process argument regarding his sentence but fails to fully explain or argue the point. A
point raised incidentally in a brief and not argued therein is deemed abandoned. State v.
Sprague, 303 Kan. 418, 425, 362 P.3d 828 (2015).

4 1/2-Year Delay

Buehler-May asserts his due process rights were violated due to the 4 1/2-year
delay between the evidentiary hearing and the district court's decision on his first 60-1507
motion. He argues the factors set forth in Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct.
2182, 33 L. Ed. 2d 101 (1972), should be applied to his claim. The State argues Barker
should not apply because it dealt with a constitutional speedy trial issue, whereas
Buehler-May has already been tried, convicted, and sentenced. In support of its argument,
the State cites to the United States Supreme Court's recent decision in Betterman v.
Montana, 578 U.S. __, 136 S. Ct. 1609, 1612, 194 L. Ed. 2d 723 (2016) (rejecting the
application of Barker to a delay in sentencing). The State argues there is even less of a
reason to apply Barker to a 60-1507 motion than sentencing. We agree with the State—
Barker does not apply.

Buehler-May did not suffer any loss or denial of legal remedy as a result of the
delay. He was able to appeal the denial of his first 60-1507 motion. The Buehler-May
panel noted the delay, stating: "We . . . observe that this case presents a rather protracted
and unexplained procedural history. . . . Nothing in the record would indicate that
Buehler-May filed any motions or took any other procedural steps to expedite the district
court's decision." 2014 WL 1302612, at *1. Nevertheless, it affirmed the district court's
denial of his first 60-1507 motion. 2014 WL 1302612, at *7. Because his claim was
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found to be without merit we observe no prejudice. The result would have been the same
irrespective of the delay. Even assuming there was a due process violation, the error, if
any, would be harmless.

Affirmed.