Keesee v. State

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NOT DESIGNATED FOR PUBLICATION

No. 112,553

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

DOUGLAS K. KEESEE,
Appellant,

v.

STATE OF KANSAS,
Appellee.


MEMORANDUM OPINION

Appeal from Wyandotte District Court; WESLEY K. GRIFFIN, judge. Opinion filed December 18,
2015. Affirmed.

Michael J. Nichols, of Michael J. Nichols, P.A., of Kansas City, for appellant.

Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.

Before SCHROEDER, P.J., PIERRON, J., and HEBERT, S.J.

Per Curiam: Douglas K. Keesee appeals from the order of the district court
summarily dismissing his K.S.A. 60-1507 motion as successive. We affirm that
judgment.

Factual and Procedural Background

In 1991, Keesee pled guilty to 16 counts of aggravated robbery and 2 counts of
kidnapping. The district court imposed a controlling prison sentence of 60 years to life.
The Kansas Supreme Court affirmed the conviction and sentence. See State v. Keesee,
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No. 67,970, unpublished opinion filed December 10, 1993 (Kan.). In 1993, Keesee filed a
motion to modify his sentence which was also denied by the district court. The Kansas
Supreme Court affirmed the denial. See State v. Keesee, No.71,989, unpublished opinion
filed April 21, 1995 (Kan.).

Keesee next filed a motion for habeas corpus relief pursuant to K.S.A. 60-1507,
although the exact timing is not clear. The district court denied the motion, and the ruling
was affirmed by this court. See Keesee v. State, No 75,733, slip op. at 3, 8, 9, unpublished
opinion filed July 11, 1997, rev. denied 262 Kan. 961 (1997). Although this first motion
is not included in the record of this appeal, it can be gleaned from the court's opinion that
the issues presented were that the district court allegedly erred by failing to inform him of
his right to withdraw his plea if the court did not follow the plea agreement and that his
attorney was allegedly ineffective in several respects. See Keesee, No. 75,733, slip op. at
2.

On September 14, 2001, Keesee filed a second K.S.A. 60-1507 motion, in which
he alleged that the district court violated his due process rights at sentencing by not
allowing him access to the presentence investigation report and by not allowing him to
question the sentencing procedure. This motion languished in the district court until it
was denied for failure to prosecute. On appeal, this court reversed the dismissal and
remanded the case for reconsideration by a different district judge. See Keesee v. State,
No. 103,974, 2011 WL 4716345 (Kan. App. 2011) (unpublished opinion). Following the
remand, the new district judge determined that the motion was successive and that
Keesee had failed to allege or establish any exceptional circumstances that would justify
review of the sentencing issues presented.

Keesee appeals from the summary denial of his motion.


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The Second K.S.A. 60-1507 Motion Was Properly Dismissed as Successive.

Keesee argues the district court erred in summarily denying his K.S.A. 60-1507
motion. Specifically, Keesee argues that the court should not have found his motion
successive because the issue raised therein—that his due process rights were violated
because he was not given the opportunity to review the presentence investigation in his
case—has never been litigated on its merits.

When the district court summarily denies a K.S.A. 60-1507 motion, an appellate
court conducts 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).

In a K.S.A. 60-1507 proceeding, the district court is not required to entertain a
second or successive motion for similar relief on behalf of the same prisoner. State v.
Trotter, 296 Kan. 898, 904, 295 P.3d 1039 (2013) (citing K.S.A. 60-1507[c]). A second
or successive motion for relief under K.S.A. 60-1507 need not be considered in the
absence of a showing of exceptional circumstances justifying consideration of such a
motion. Dunlap v. State, 221 Kan. 268, 270, 559 P.2d 788 (1977). Such exceptional
circumstances are unusual events or intervening changes in the law that prevented the
movant from reasonably being able to raise all of the claimed trial errors in the preceding
K.S.A. 60-1507 motion. State v. Kelly, 291 Kan. 868, 872, 248 P.3d 1282 (2011). Absent
a showing of exceptional circumstances, the district court can dismiss a second or
successive K.S.A. 60-1507 motion as an abuse of remedy. Kelly, 291 Kan. at 872.

In his current K.S.A. 60-1507 motion, Keesee neither acknowledges his burden to
show circumstances justifying consideration of this successive motion nor does he
suggest any arguments to support a finding of exceptional circumstances. Instead, he
argues that the current motion should not be construed as successive because even though
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he has previously challenged his sentences on direct appeal and in his prior K.S.A. 60-
1507 motion, no court has ever considered the specific issue he raises in the current
motion. Keesee claims that he did raise the current sentencing issue in his first K.S.A. 60-
1507 motion, but that the district court failed to rule on it. However, neither that prior
motion nor the district court's ruling denying the motion is included in the record on
appeal. As the party claiming error, Keesee has the burden of designating a record that
affirmatively shows prejudicial error. State v. Bridges, 297 Kan. 989, 1001, 306 P.3d 244
(2013). Keesee also fails to suggest any reason why the district court's alleged failure to
rule upon the issue was not presented to this court on his appeal from the denial of his
first motion. Simply put, the record before us is insufficient to support a conclusion that
the current sentencing issue was raised and unresolved in the prior proceeding.

Our Supreme Court has repeatedly recognized that the prohibition against
successive motions under K.S.A. 60-1507(c) bars not only claims actually raised in prior
motions but also those claims that could have been raised in a prior motion. See Dunlap,
221 Kan. at 269-70. In Trotter, 296 Kan. 898, Syl. ¶ 2, the principle was succinctly
stated: "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." See also State v. Martin,
294 Kan. 638, 640-41, 279 P.3d 704 (2012), cert. denied 134 S. Ct 114 (2013) (again
holding that issues raised and previously decided in prior K.S.A. 60-1597 motions, or that
could have been presented but were not, are res judicata and cannot be raised in
subsequent motions).

Keesee has provided us with no exceptional circumstances under which the district
court should have entertained his current, successive K.S.A. 60-1507 motion. The district
court properly dismissed the motion, and we affirm that judgment.

Affirmed.