Gonzalez v. State

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NOT DESIGNATED FOR PUBLICATION

No. 117,966

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

SONNY CHAVARRIA GONZALEZ,
Appellant,

v.

STATE OF KANSAS,
Appellee.


MEMORANDUM OPINION

Appeal from Wyandotte District Court; WESLEY K. GRIFFIN, judge. Opinion filed August 10,
2018. Reversed and remanded with directions.

Michelle A. Davis, of Kansas Appellate Defender Office, for appellant.

Candice Alcaraz, assistant district attorney, Mark A. Dupree Sr., district attorney, and Derek
Schmidt, attorney general, for appellee.

Before BUSER, P.J., MALONE and STANDRIDGE, JJ.

PER CURIAM: Sonny Chavarria Gonzalez appeals from the district court's
summary denial of his K.S.A. 60-1507 motion. Upon our review, we reverse and remand
with directions to the district court to apply the three-factor test enunciated in Vontress v.
State, 299 Kan. 607, Syl. ¶ 8, 325 P.3d 1114 (2014), and to reconsider whether manifest
injustice would occur if Gonzalez was procedurally barred from seeking K.S.A. 60-1507
relief.


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FACTUAL AND PROCEDURAL BACKGROUND

In 2010, Gonzalez pled guilty to first-degree felony murder and aggravated
robbery. The district court sentenced Gonzalez to life in prison for the first-degree murder
conviction and an additional 24 months' imprisonment for the aggravated robbery
conviction. Gonzalez did not appeal.

Six years later, on June 23, 2016, Gonzalez filed a K.S.A. 60-1507 motion seeking
to set aside his pleas because they were not knowingly made and his trial counsel was
allegedly ineffective. Gonzalez also claimed the criminal complaint was defective and he
lacked the intent to commit the crimes because of intoxication. Gonzalez asked the
district court to hold an evidentiary hearing "to correct a manifest injustice."

The district court summarily denied Gonzalez' motion, ruling that it was untimely
and there was no manifest injustice in enforcing the time limitations of K.S.A. 60-
1507(f). Gonzalez appeals.

ANALYSIS

When considering a K.S.A. 60-1507 motion, a district court has three options:

"'(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).

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Here, the district court selected the first option and summarily denied Gonzalez'
K.S.A. 60-1507 motion, finding that it "was not timely filed and that it is not manifestly
unjust to apply the time limitations." Under these circumstances, we review a district
court's decision to deny a K.S.A. 60-1507 motion de novo 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.

The district court sentenced Gonzalez on March 12, 2010. Gonzalez did not pursue
a direct appeal from his convictions or sentences. Consequently, his direct criminal
proceedings terminated on March 22, 2010, 10 days after his sentencing. See K.S.A. 22-
3608(c). Under K.S.A. 60-1507(f)(1) Gonzalez was required to file his motion on or
before March 22, 2011. As a result, the district court correctly determined: "This
[motion] was brought over six years after the judgment was entered in this matter and is
certainly not timely filed."

On appeal, Gonzalez concedes the untimeliness of his motion, and we agree with
this concession and the district court's finding of untimeliness. However, the gravamen of
this appeal is Gonzalez' claim that the district court erred by not finding manifest
injustice would occur without consideration of his untimely motion. In this regard,
K.S.A. 60-1507(f)(2) provides that a district court may extend the one-year time period to
prevent manifest injustice.

Preliminarily, it is important to establish the legal standard to be applied in the
determination of whether Gonzalez established manifest injustice. The appropriate legal
standard depends on the application of a statutory amendment to K.S.A. 60-1507(f)(2),
which the Kansas legislature enacted on July 1, 2016, a few days after Bailey filed his
motion. See K.S.A. 2017 Supp. 60-1507(f)(2)(A); L. 2016, ch. 58, § 2. We must
determine whether this amendment applies retroactively to Gonzalez' motion.
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Prior to this amendment, our Supreme Court held that manifest injustice must be
determined from the totality of the circumstances, which includes, but is not limited to, a
consideration of

"whether (1) the movant provides persuasive reasons or circumstances that prevented him
or her from filing the 60-1507 motion within the 1-year time limitation; (2) the merits of
the movant's claim raise substantial issues of law or fact deserving of the district court's
consideration; and (3) the movant sets forth a colorable claim of actual innocence, i.e.,
factual, not legal, innocence." Vontress, 299 Kan. at 616.

But the Legislature amended K.S.A. 60-1507, effective July 1, 2016. The new
subsection, (f)(2)(A), states:

"For purposes of finding manifest injustice under this section, the court's inquiry
shall be 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.
As used herein, the term actual innocence requires the prisoner to show it is more likely
than not that no reasonable juror would have convicted the prisoner in light of new
evidence." K.S.A. 2017 Supp. 60-1507(f)(2)(A).

As is readily apparent, this amendment limits the Supreme Court's holding in
Vontress and precludes courts from considering the merits of a K.S.A. 60-1507 movant's
claim when determining whether manifest injustice would occur without the extension of
the one-year filing period.

In its appellee's brief, the State argued that the statutory amendment applies
retroactively, limiting our court's inquiry and preventing us from considering whether the
merits of the motion raised substantial issues of law or fact. In his appellant's brief,
Gonzalez did not address whether the limiting amendment applied to this case. Whether
the amendment applies retroactively to Gonzalez' motion is an issue of statutory
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interpretation and our court has unlimited review. See State v. Brownlee, 302 Kan. 491,
508, 354 P.3d 525 (2015).

During the pendency of this appeal, our Supreme Court answered the retroactivity
question in White v. State, No. 114,284, 2018 WL 3321186 (Kan. 2018). In White, our
Supreme Court definitively held: "The Legislature's amendments to K.S.A. 60-1507(f),
L. 2016, ch. 58, § 2, do not apply retroactively to 60-1507 motions filed before July 1,
2016." 308 Kan. ___, Syl. ¶ 1. Notably, it is undisputed that Gonzalez filed his K.S.A.
60-1507 motion on June 23, 2016.

Given the importance of White and the parties' inability to brief the significance of
this new opinion which was filed after all appellate briefs were submitted in this case, our
court directed the parties to discuss this new precedent at oral argument. During oral
argument, both the State and Gonzalez agreed that, in keeping with White, the limiting
amendment of K.S.A. 60-1507(f)(2) did not apply to Gonzalez' motion, and the issue of
manifest injustice should be evaluated using the three-factor Vontress standard. See
White, 308 Kan. ___, Syl. ¶ 2.

Having established that the Vontress standard controls the analysis of whether
Gonzalez has shown manifest injustice in order to extend the time limitation, we next
consider the district court's summary findings:

"In paragraph 12 of his motion Gonzalez request[s] a new trial '. . . to correct
manifest injustice . . . .' The remaining portions in the motion do not explain any reason
why manifest injustice has occurred. State v. Kelly, 291 Kan. [868, 873, 249 P.3d 1282
(2011)], defines manifest injustice as meaning 'obviously unfair' or 'shocking to the
conscience.' Gonzalez'[] motion provides no reason to excuse the delay in this filing. As
repeated in Vontress[, 299 Kan. at 617], the burden is on the movant in a habeas corpus
action to show reasons or excuses for a filing delay and the movant has the burden to
show manifest injustice. Gonzalez has failed this requirement."
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In short, focusing exclusively on the first Vontress factor, the district court found
that Gonzalez failed to show any persuasive reasons or circumstances that prevented him
from filing a timely K.S.A. 60-1507 motion.

On appeal, Gonzalez does not contest his failure to explain why his motion was
untimely filed. Rather, he suggests that he has limited English language skills. Second, he
complains that the K.S.A. 60-1507 form motion that he used in this case failed to inform
him of the need to explain the reason for his untimeliness. The State counters that a pro se
K.S.A. 60-1507 movant is required to be aware of and follow the rules of civil procedure
applicable to all civil litigants.

We are persuaded that, in his motion, Gonzalez presented no circumstances or
reasons why he failed to timely file his claims within the one-year time limitation of
K.S.A. 60-1507(f)(1). Moreover, on appeal, Gonzalez has failed to adequately explain
this failure. As a result, we find no error in the district court's ruling regarding the first
Vontress factor.

But that determination does not end our inquiry. As Gonzalez points out, given
Vontress' totality of circumstances approach: "Manifest injustice can be found even if a
[movant] does not articulate reasons for a delay in filing." We agree. Under the Vontress
approach "no single factor is dispositive." 299 Kan. at 616. However, "failing to plead
excuses for the filing delay may result in a greater risk that the movant's claim will be
dismissed as untimely." 299 Kan. at 617.

Next, we consider the second Vontress factor—whether the merits of Gonzalez'
motion raise substantial issues of law or fact deserving of the district court's
consideration. The district court did not mention or discuss the second Vontress factor or
analyze the merits of the issues raised.

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Gonzalez' motion raises several issues. As summarized in his appellant's brief:

"Specifically, in his pro se pleadings, [Gonzalez] expressed that, (1) he had not
understood 'the complex language' of the plea when he accepted it and he had not known
the difference between the degrees of homicide; (2) he had a viable defense because he
was intoxicated and sleep deprived at the time of the offense; (3) his attorney was
incompetent, misleading on the law, and had failed to properly investigate the underlying
facts or pursue his legal defense; and (4) he had not attempted to seek post-conviction
relief, having been 'informed the right to appeal was not possible,' yet there were aspects
of his sentence that he wanted to challenge."

Based on these issues, Gonzalez contends that "[a]ny analysis under the totality of
the circumstances test would lead to the conclusion that [Gonzalez] was raising a
significant claim of ineffective assistance of counsel and a lack of due process of law."
For its part, in its appellee's brief the State did not address the merits of Gonzalez' claims
because the State contended the second Vontress factor did not apply.

As to the merits of the motion, some of Gonzalez' claims appear more appropriate
for a direct appeal than a K.S.A. 60-1507 motion. As a general rule, a movant may not
use a K.S.A. 60-1507 motion as a substitute for a direct appeal. Supreme Court Rule
183(c)(3) (2018 Kan. S. Ct. R. 223). Gonzalez' claims of a defective complaint, lack of
intent to commit the crime for which he pled guilty, improper sentencing, and an
improper registration requirement are arguably matters for a direct appeal rather than this
collateral attack. But Gonzalez pled guilty and did not prosecute a direct appeal.

Do Gonzalez' claims of ineffective assistance of counsel rise to a level of
substantial issues of law or fact deserving of judicial consideration? Gonzalez cites a
somewhat similar case, Bellamy v. State, 285 Kan. 346, 172 P.3d 10 (2007), wherein the
district court appointed counsel and conducted a preliminary hearing before denying the
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K.S.A. 60-1507 motion without an evidentiary hearing. Gonzalez cites with approval our
Supreme Court's admonition in Bellamy that

"the district court must conduct an evidentiary hearing unless the motion, files, and
records of the case conclusively show that the movant is not entitled to relief. There are
not sufficient facts in the record to establish what advice Bellamy received from his trial
counsel prior to entering his guilty plea or how that advice influenced Bellamy's decision
to plead guilty. When substantial questions of fact remain, the matter must be remanded
to the district court for a hearing." 285 Kan. at 357.

Gonzalez' argument, supported by Bellamy, is persuasive. As a general rule, an
appellate court will not consider an allegation of ineffective assistance of counsel raised
for the first time on appeal. State v. Dull, 298 Kan. 832, 839, 317 P.3d 104 (2014).

"[G]enerally the factual aspects of a claim of ineffective assistance of counsel require that
the matter be resolved through a K.S.A. 60-1507 motion or through a request to remand
the issue to the district court for an evidentiary hearing under State v. Van Cleave, 239
Kan. 117, 119-21, 716 P.2d 580 (1986). [Citation omitted.]" State v. Galaviz, 296 Kan.
168, 192, 291 P.3d 62 (2012).

Here, although Gonzalez has raised substantial claims of ineffective assistance of
counsel in his motion, there was no preliminary hearing or evidentiary hearing, and as a
result, we are unable to evaluate those claims. Moreover, since the district court did not
make findings regarding the merits of the claims, we also do not know if it reached any
conclusions regarding the validity of these fact-intensive assertions. Under these
circumstances, we believe a remand for further proceedings is necessary to fully develop
a record and appropriately evaluate the second Vontress factor.

The third Vontress factor—whether the movant set forth a colorable claim of
actual innocence—also was not addressed or analyzed by the district court. In his motion,
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Gonzalez makes no colorable claim of actual innocence, and on appeal, he does not
specifically argue this factor. As a general rule, an issue not briefed by the appellant is
deemed waived or abandoned. Superior Boiler Works, Inc. v. Kimball, 292 Kan. 885,
889, 259 P.3d 676 (2011). For its part, the State points out that Gonzalez confessed to the
crime and pled guilty; and in his K.S.A. 60-1507 motion, he handwrote: "[Y]our
defendant states on record [that] he was responsible for the act that caused the death of
his victim." On this record, the motion, files, and case records conclusively show that
Gonzalez has failed to make a colorable claim of actual innocence.

In summary, our de novo review has determined that Gonzalez has failed to make
the necessary showing with regard to the first and third Vontress factors. But a remand is
necessary in order for the district court to develop a record and consider the merits of
Gonzalez' claims of due process violations and ineffective assistance of counsel which
relate to the second Vontress factor.

Moreover, a remand is also necessary to afford the district court an opportunity,
after assessing the second Vontress factor, to consider the totality of circumstances and
determine whether it would constitute a manifest injustice to not extend the statutory time
to consider the motion. Such a consideration of the totality of circumstances is necessary
because

"courts should not simply tally the factors and determine, for example, that a movant had
established manifest injustice simply because two out of the three factors favored that
outcome. Instead, a court applying the Vontress factors must consider all the
circumstances and determine if, in total, those circumstances create a situation in which it
would be obviously unfair or shocking to the conscience to not allow a movant to pursue
relief under 60-1507." White, 2018 WL 3321186, at *6.

Accordingly, the district court is reversed and the case is remanded with directions
for further proceedings.