Hall v. State

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NOT DESIGNATED FOR PUBLICATION

No. 118,040


IN THE COURT OF APPEALS OF THE STATE OF KANSAS

TYLER R. HALL,
Appellant,

v.

STATE OF KANSAS,
Appellee.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; JAMES R. FLEETWOOD, judge. Opinion filed August 24,
2018. Affirmed.

Korey A. Kaul, of Kansas Appellate Defender Office, for appellant.

Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before GARDNER, P.J., GREEN and HILL, JJ.

PER CURIAM: Tyler R. Hall pled guilty to several crimes, including criminal
discharge of a firearm at an unoccupied dwelling. Although Hall did not file a direct
appeal, he eventually filed a K.S.A. 60-1507 motion after the one-year time limitation.
The trial court dismissed Hall's motion as untimely. Hall then moved to reconsider the
dismissal and he filed an amended K.S.A. 60-1507 motion. The trial court held a
preliminary, nonevidentiary hearing to decide whether Hall had established manifest
injustice excusing the untimeliness of his motion. The trial court concluded that Hall did
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not establish manifest injustice and again denied the motion as untimely. On appeal, Hall
argues that he established a colorable claim of actual innocence by claiming that he
accidentally fired the gun at issue. Because Hall's argument is conclusory, we affirm the
trial court's decision.

On January 31, 2011, Hall pled guilty to several crimes, including battery of a law
enforcement officer and criminal discharge of a firearm at an unoccupied dwelling.
Before accepting Hall's plea, the trial court required Hall to give a factual basis for each
offense. As for the discharge of a firearm charge, Hall simply told the court that he
"discharged a firearm at an unoccupied dwelling." Hall also acknowledged the address of
the dwelling and that he did not have permission to fire the gun. Although the trial court
did not read or explain the elements of any of the crimes Hall was pleading guilty to, it
accepted Hall's guilty pleas. At sentencing, the trial court granted Hall a dispositional
departure to probation with an underlying 92-month prison sentence. Hall did not directly
appeal his conviction or sentence.

The trial court revoked Hall's probation on October 14, 2011. Hall appealed the
revocation. This court affirmed Hall's probation revocation on August 9, 2013. Our
Supreme Court denied review on February 13, 2014. See State v. Hall, No. 108,468, 2013
WL 4046464 (Kan. App. 2013) (unpublished opinion).

In May 2014, Hall filed a K.S.A. 60-1507 motion. Hall argued that he accidentally
fired the gun. Hall was charged under K.S.A. 21-4219(a), which requires "malicious,
intentional and unauthorized discharge of any firearm at an unoccupied dwelling." Hall
also argued that his trial counsel was ineffective for failing to explain the intentional
element of the charge against him. The trial court dismissed Hall's motion as untimely.

Hall moved for reconsideration of his K.S.A. 60-1507 motion on July 3, 2014. In
it, Hall argued that his original K.S.A. 60-1507 motion was timely because it was filed
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within one year of the final appellate court's decision regarding his probation revocation.
Days later, Hall filed an amended K.S.A. 60-1507 motion and reasserted his original
claims and cited additional authority.

The trial court did not respond to Hall's motion to reconsider until almost two
years later when Hall requested documents concerning his pending case. Hall then moved
for acquittal, after which, the trial court reinstated Hall's case and appointed counsel.

The State responded to Hall's motion to reconsider. The State argued that Hall
failed to establish manifest injustice to warrant an extension of the time limitation under
K.S.A. 60-1507(f)(2). The State also argued that the 2016 legislative changes made in
K.S.A. 2016 Supp. 60-1507(f)(2)(A) required that Hall prove actual innocence by
showing that no reasonable juror would have convicted Hall in light of new evidence.
The State also contended that because Hall could not meet this burden, his claim was
insufficient.

The trial court held a nonevidentiary hearing on February 22, 2017. The trial court
adopted the arguments presented by the State in its response and found that Hall did not
establish manifest injustice to allow review of his untimely K.S.A. 60-1507 motion.

On March 8, 2017, Hall filed a second motion to reconsider, restating his original
claims. The trial court denied Hall's motion as repetitive.

Hall timely appealed from all the trial court's decisions rendered on February 22,
2017. Hall did not properly appeal from the trial court's decision regarding his second
motion to reconsider.


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Did the Trial Court Err by Denying Hall's K.S.A. 60-1507 Motion?

Hall argues that the trial court erred by summarily denying his untimely filed
K.S.A. 60-1507 motion because he established a colorable claim of actual innocence.
Hall further asserts that the trial court's holding should be reversed and remanded for an
evidentiary hearing on his claim that his attorney was ineffective for failing to properly
advise him of the required intent for the crime to which Hall pled guilty.

The State asserts that Hall's untimely motion was properly dismissed because Hall
did not establish manifest injustice. The State argues that Hall's claim of innocence was
insufficient because Hall simply argued that the discharge of the gun was accidental and
that he told two of the State's witnesses that it was accidental. Hall did not identify the
witnesses and presented only self-serving evidence, which the State suggests did not
outweigh the evidence against him. The State also argues that if this court finds in favor
of Hall, the case should be remanded for a preliminary, nonevidentiary hearing to
consider whether an evidentiary hearing is warranted.

When a movant files a K.S.A. 60-1507 motion, a trial court may:

"'(a) determine that the motion, files, and case records conclusively show the prisoner is
entitled to no relief and deny the motion summarily; (b) determine from the motion, files,
and records that a potentially substantial issue exists, in which case a preliminary hearing
may be held after appointment of counsel. If the court then determines there is no
substantial issue, the court may deny the motion; or (c) determine from the motion, files,
records, or preliminary hearing that there is a substantial issue requiring an evidentiary
hearing. Wahl v. State, 301 Kan. 610, 617, 344 P.3d 385 (2015) (quoting Sola-Morales v.
State, 300 Kan. 875, Syl. ¶ 1, 335 P.3d 1162 [2014]).'" Hayes v. State, 307 Kan. 9, 12,
404 P.3d 676 (2017).

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When the trial court denies a K.S.A. 60-1507 motion based only on the motions, files,
and records after a preliminary hearing, as occurred here, the appellate court is in just as
good a position as the trial court to consider the merits. Thus, the standard of review is de
novo. Hayes, 307 Kan. at 12.

A K.S.A. 60-1507 motion must be filed 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"; or "the denial of a petition for writ of
certiorari to the United States Supreme Court or issuance of such court's final order
following granting such petition." K.S.A. 60-1507(f)(1). Courts may extend this time
limitation "only to prevent a manifest injustice." K.S.A. 60-1507(f)(2).

Our Supreme Court has interpreted the phrase "manifest injustice" to mean
"'obviously unfair' or 'shocking to the conscience.'" State v. Kelly, 291 Kan. 868, 873, 248
P.3d 1282 (2011). It is the movant's burden to establish manifest injustice by a
preponderance of the evidence. Supreme Court Rule 183(g) (2018 Kan. S. Ct. R. 223).

Our Supreme Court expanded the definition of "manifest injustice" in Vontress v.
State, 299 Kan. 607, 325 P.3d 1114 (2014). In that case, the court held that manifest
injustice included situations in which a movant can show actual innocence. Our Supreme
Court provided the following standard:

"[C]ourts conducting a manifest injustice inquiry under K.S.A. 60-1507(f)(2) should
consider a number of factors as a part of the totality of the circumstances analysis. This
nonexhaustive list includes 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.
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"All of the factors considered under the totality of the circumstances need not be
given equal weight, and no single factor is dispositive. . . .
"So a movant's failure to address other reasons why imposition of the 1-year time
limitation is a manifest injustice is not necessarily fatal to the movant's claim. But
because the burden is on the movant in a 60-1507 action, failing to plead excuses for the
filing delay may result in a greater risk that the movant's claim will be dismissed as
untimely. [Citations omitted.]" 299 Kan. at 616-17.

After the Vontress decision, our Legislature amended K.S.A. 60-1507. L. 2016,
ch. 58, § 2. The statute now requires that courts consider only (1) a movant's reasons for
the failure to timely file the motion or (2) a movant's claim of actual innocence. Thus,
"the Legislature did not adopt the second Vontress factor of whether there existed a
'substantial issue of law or fact,' nor did it incorporate Vontress' allowance for other,
nonlisted factors." White v. State, 308 Kan. ___, 421 P.3d 718, 723 (2018).

In White, our Supreme Court ultimately held that the K.S.A. 60-1507 amendments
did not apply retroactively. 421 P.3d at 727. Our Supreme Court emphasized that
"movants had a vested right to argue the Vontress test, including the second factor and
any other factor that might establish manifest injustice." 421 P.3d at 726.

In May 2014, Hall filed an untimely K.S.A. 60-1507 motion. After the trial court
dismissed that motion, Hall moved for reconsideration of his K.S.A. 60-1507 motion on
July 3, 2014. The trial court held a nonevidentiary hearing on February 22, 2017, from
which Hall timely appealed.

Because Hall's motion was filed before July 1, 2016, the amendments to K.S.A.
60-1507 do not apply retroactively to his claim. See White, 421 P.3d at 727. Still, Hall's
claim fails because he did not argue that the second Vontress factor applied to his case.
Instead, Hall argued that he had a colorable claim of innocence. Nevertheless, Hall failed
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to set forth a colorable claim of actual innocence, i.e., factual, not legal, innocence as
required by Vontress, 299 Kan. at 616.

In his original motion, Hall stated that he would testify that the discharge of the
gun was accidental. Hall also claimed that he told two of the State's witnesses that the
discharge of the gun was accidental. In his amended K.S.A. 60-1507 motion, Hall argued
that he would rely on the following to prove his claims: his trial counsel, the trial court
judge, the discovery, the transcripts, the exhibits, and the witness statements from case
Nos. 10 CR 2573 and 10 CR 3514. The record reflects that the State subpoenaed a sum of
10 witnesses in connection to case Nos. 10 CR 2573 and 10 CR 3514. Five of the State's
subpoenaed witnesses were police officers. When referencing "two of the [S]tate's
witnesses," Hall never specified exactly whom he was referring to. Without at least
naming the witnesses or providing any additional evidentiary support, Hall failed to
provide the trial court with an evidentiary basis for his claim. Hall's conclusory statement
is insufficient to rise to the level of a colorable claim of actual innocence. See Robinson
v. State, No. 115,555, 2017 WL 2494964, at *5-6 (Kan. App. 2017) (unpublished
opinion) (finding movant's conclusory claim that he was not a participant in robbery
insufficient to rise to the level of a colorable claim of actual innocence); Aguilera v.
State, No. 112,929, 2016 WL 299078, at *3 (Kan. App. 2016) (unpublished opinion)
(finding movant's claim that evidence against him at trial was "not completely
convincing" was conclusory statement and insufficient to demonstrate a colorable claim
of actual innocence), rev. denied 305 Kan. 1251 (2017); State v. Olds, No. 112,576, 2015
WL 6456511, at *3 (Kan. App. 2015) (unpublished opinion) (holding that without more
than a conclusory statement, movant failed to establish a colorable claim of actual
innocence), rev. denied 304 Kan. 1020 (2016).

Additionally, while Hall asserts that he fired the gun accidentally, he still
implicitly concedes that he committed the act intentionally. First, he admits that he fired
the gun. There is no dispute about this fact. Additionally, he pleaded guilty to firing the
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gun at an unoccupied dwelling. Thus, he implicitly concedes that he pointed and fired the
gun at the unoccupied dwelling, which was an intentional act. He presents no evidence
that the gun was fired accidentally.

As a final point, Hall is also attempting to raise an argument that he should have
raised in the form of a direct appeal. Supreme Court Rule 183(c)(3) (2018 Kan. S. Ct. R.
224) provides:

"A proceeding under K.S.A. 60-1507 ordinarily may not be used as a substitute
for direct appeal involving mere trial errors or as a substitute for a second appeal. Mere
trial errors must be corrected by direct appeal, but trial errors affecting constitutional
rights may be raised even though the error could have been raised on appeal, provided
exceptional circumstances excuse the failure to appeal."

Hall provides no exceptional circumstances and cannot now use a K.S.A. 60-1507
motion as a direct appeal absent evidentiary support for his claim of actual innocence.
See Kelly, 291 Kan. 868, Syl. ¶¶ 1-2; Robinson, 2017 WL 2494964, at *5-6.

For these reasons, Hall has failed to show that it is more likely than not that based
on his new assertion, no reasonable jury would have convicted him. Hall, therefore, failed
to show manifest injustice or a colorable claim of actual innocence as required to excuse
his failure to file his K.S.A. 60-1507 motion within the one-year time limitation.
Moreover, Hall's claims are improperly raised for the first time in a K.S.A. 60-1507
motion.

Affirmed.