Greene v. State

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NOT DESIGNATED FOR PUBLICATION

No. 118,020

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

ANDREW GREENE,
Appellant,

v.

STATE OF KANSAS,
Appellee.


MEMORANDUM OPINION

Appeal from Johnson District Court; KEVIN P. MORIARTY, judge. Opinion filed June 8, 2018.
Affirmed.

Richard P. Klein, of Olathe, for appellant.

Shawn E. Minihan, assistant district attorney, Stephen M. Howe, district attorney, and Derek
Schmidt, attorney general, for appellee.

Before SCHROEDER, P.J., MALONE, J., and STUTZMAN, S.J.

PER CURIAM: Andrew Greene appeals the denial of his motion for a new trial
based on DNA evidence involving his conviction for rape. At the hearing on his motion,
after the attorney completed her argument, Greene asked to address the district court. The
court allowed him to do so, and he admitted to touching the victim. Greene now claims
the district court violated his due process right by not advising him of his right against
self-incrimination. We find no error. We affirm.


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Greene was convicted of the rape of A.F. who "was incapable of giving consent
due to mental deficiency or disease which was known or reasonably apparent" to Greene.
The Kansas Supreme Court ultimately affirmed his conviction, vacated his sentence, and
remanded the case to the district court for resentencing. State v. Greene, 299 Kan. 1087,
1099, 329 P.3d 450 (2014). On December 16, 2014, through the assistance of counsel,
Greene filed a motion under K.S.A. 60-1507 for postconviction DNA testing, which was
ordered. Then on July 22, 2016, Greene filed another motion pursuant to K.S.A. 21-2512
for further DNA testing and a new trial based on the test results.

At the hearing for a new trial, Greene's counsel argued there was a substantial
possibility someone else engaged in contact with A.F because the DNA test results were
exceptionally low. Greene's counsel further argued the testing evidence could be used to
impeach A.F.'s testimony about Greene's contact with her. At the conclusion of his
attorney's comments, Greene asked to address the district court directly. Greene engaged
in a back-and-forth conversation with the district court judge about the theory of his
motion. After reading sections of the trial transcript to the district court, Greene argued
A.F. gave him permission to touch her. Greene admitted to touching A.F. but denied
inserting his penis into her. Greene's counsel made no objections but guided the district
court to the trial transcript pages Greene referenced.

The district court noted A.F.'s disability prevented her from giving consent, but
Greene was arguing the same defense he had argued at trial—A.F. consented to his
contact. The district court found the DNA test results were insufficient to grant a new
trial because the test results would have no bearing since Greene admitted to touching
A.F. and continued to argue she consented. The district court denied Greene's motion for
a new trial.

Greene claims he was denied his procedural due process right to counsel because
the district court allowed him to argue his motion, rendering him a pro se litigant. Greene
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also claims his procedural due process right against self-incrimination was violated
because the district court did not warn him against self-incrimination before he admitted,
at the DNA and new trial hearing, to touching A.F. Neither of these claims were raised at
the district court. Generally, issues not raised before the district court cannot be raised on
appeal. See State v. Kelly, 298 Kan. 965, 971, 318 P.3d 987 (2014). However, a new legal
theory may be asserted for the first time on appeal when the newly asserted theory
involves only a question of law arising on proved or admitted facts and is finally
determinative of the case, consideration of the theory is necessary to serve the ends of
justice or to prevent denial of fundamental rights, and the judgment of the district court
may be upheld on appeal despite its reliance on the wrong ground or having assigned a
wrong reason for its decision. State v. Phillips, 299 Kan. 479, 493, 325 P.3d 1095 (2014).
Greene's claims of rights to counsel and against self-incrimination may be raised for the
first time on appeal. See State v. Frye, 294 Kan. 364, 368-69, 277 P.3d 1091 (2012)
(noting the fundamental right to counsel may be raised for the first time on appeal); State
v. Wahweotten, 36 Kan. App. 2d 568, 578, 143 P.3d 58 (2006) (addressing defendant's
claims against self-incrimination for the first time on appeal).

Greene does not have a constitutional right to counsel for claims brought under his
60-1507 motion because the claims are civil, not criminal. Brown v. State, 278 Kan. 481,
483, 101 P.3d 1201 (2004). Greene asks this court to apply the constitutional due process
analysis found in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 47 L. Ed. 2d 18
(1976), but cites no cases where Kansas appellate courts applied this analysis to 60-1507
claims. Instead, Kansas courts address the statutory right to counsel by deciding if
counsel's assistance was ineffective. See, e.g., Kargus v. State, 284 Kan. 908, 916, 169
P.3d 307 (2007) (weighing whether it was ineffective assistance of appellate counsel for
failing to file a petition for review in a 60-1507 matter); Davis v. State, No 89,688, 2004
WL 794437 (Kan. App. 2004) (unpublished opinion) (reviewing appellant's 60-1507
claims to determine whether trial counsel was ineffective). Greene has not asked this
court to decide if his attorney provided ineffective counsel and, therefore, has waived the
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right to do so. See State v. Williams, 303 Kan. 750, 758, 368 P.3d 1065 (2016) (finding
an issue not briefed by the appellant is deemed waived or abandoned).

Greene fails to show he was denied a specific procedural protection since the
record indicates Greene received his right to counsel. Procedural due process requires
notice and an opportunity to be heard at a meaningful time and in a meaningful manner.
State v. Wilkinson, 269 Kan. 603, 608, 9 P.3d 1 (2000). The person claiming a due
process violation has the burden to show he was denied a specific procedural protection.
See Wilkinson, 269 Kan. at 609.

Prior to the hearing at the district court, Greene's counsel filed motions for DNA
testing and a new trial. Both Greene and his attorney were present at the hearing and
actively participated in it. Greene's counsel argued the motion for a new trial and the
district court did not limit counsel's arguments. At the conclusion of his counsel's
arguments, Greene voluntarily requested to speak with the district court. The district
court then heard Greene's arguments. Greene's counsel assisted him by directing the
district court to the page numbers in the trial transcript Greene referenced. The district
court did not prevent Greene's counsel from making any objections or inhibit counsel's
ability to aid Greene.

Greene cites to Brown and Windholz v. Willis, 1 Kan. App. 2d 683, 684, 573 P.2d
1100 (1977), yet these cases are factually distinguishable from Greene's circumstances. In
Brown, the defendant's appointed attorney participated in a 60-1507 hearing and the
district court denied relief. For over two years, defense counsel failed to notify the
defendant of the hearing, the court's denial, and the right to appeal. The defendant only
learned of the hearing after the Commission on Judicial Qualifications investigated the
defendant's complaint that the district court never addressed his 60-1507. Thereafter, the
defendant appealed and the Brown court allowed the appeal to proceed because counsel's
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failures did not meet the "most minimal of standards" of effective assistance. 278 Kan. at
484.

In Windholz, our court remanded a case for a new trial because the change in the
code of civil procedure prevented the parties from going to trial with counsel after a small
claims case was decided. The parties in Windholz were required to appear pro se to
resolve a small claims case before the magistrate judge in the magistrate court. Under
K.S.A. 1975 Supp. 61-2709, an appeal from the magistrate judge would go to the district
court. As part of the court unification process, the Legislature abolished the magistrate
courts before the magistrate judge rendered his decision. As a result, the magistrate judge
became an associate district judge and later rendered his decision. Under K.S.A. 1976
Supp. 61-2102(a), a case originally heard by an associate district judge had to be
appealed directly to the Court of Appeals and could not be sent to the district court for a
trial. After the now-converted associate district judge issued his decision against the
appellant, she was required by statute to proceed to the Court of Appeals without any
option for a trial with counsel at the district court. Based on these unique circumstances, a
panel of our court found the due process right to counsel was violated and the case was
remanded to the district court. Windholz, 1 Kan. App. 2d at 684-85.

Greene's circumstances are not similar to those in Brown and Wilholz. Unlike in
Wilholz, Greene was not statutorily or procedurally barred from having an attorney
present at his hearing for a new trial. Unlike in Brown, Greene was present with his
attorney for the hearing on his motion. Both Greene and his attorney submitted their
arguments to the district court. Procedural due process requires notice and an opportunity
to be heard at a meaningful time and in a meaningful manner. By allowing Greene and
counsel to both argue his motion for a new trial, the district court gave Greene notice of
and a meaningful time and manner to exercise his statutory right to counsel. See
Wilkinson, 269 Kan. at 608.

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Greene's brief primarily focuses on his right to counsel; he incidentally argues his
due process right against self-incrimination was violated. He has abandoned this
argument. See State v. Sprague, 303 Kan. 418, 425, 362 P.3d 828 (2015) (finding an
issue raised incidentally in a brief and not argued therein is deemed abandoned).

Even if this issue was not abandoned, Greene's right against self-incrimination is
not implicated here. Greene's claim is civil in a K.S.A. 60-1507 motion and the right
against self-incrimination does not apply to civil matters. Bankes v. Simmons, 265 Kan.
341, 350-51, 963 P.2d 412 (1998).

Affirmed.