Milton v. State

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NOT DESIGNATED FOR PUBLICATION

No. 119,821

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

RICHARD D. MILTON,
Appellant,

v.

STATE OF KANSAS,
Appellee.


MEMORANDUM OPINION

Appeal from Wyandotte District Court; BILL KLAPPER, judge. Opinion filed June 21, 2019.
Affirmed.

Joseph A. Desch, of Law Office of Joseph A. Desch, of Topeka, for appellant.

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

Before LEBEN, P.J., MALONE and GARDNER, JJ.

PER CURIAM: Richard D. Milton appeals the district court's summary denial of his
K.S.A. 60-1507 motion. Milton claims the district court erred in denying his motion on
the ground that it was untimely filed because he established manifest injustice to allow
the motion to be filed out of time. We disagree with Milton's claim and affirm the district
court's judgment.


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FACTUAL AND PROCEDURAL BACKGROUND

In July 2007, Milton was convicted of four counts of rape, two counts of
aggravated criminal sodomy, and two counts of aggravated indecent liberties with a child
involving his biological daughter and two of her friends. The facts of the case are fully
set out in State v. Milton, No. 99,584, 2010 WL 5139871, at *1-2 (Kan. App. 2010)
(unpublished opinion):

"Richard and Anna Mae Milton were married in 1989. Their daughter, J.M., was
born in 1991. In the fall of 2003, Anna Mae left Milton. After 1 or 2 weeks of living with
Anna Mae, J.M. returned to live with her father. In January 2005, however, J.M. moved
back with Anna Mae. On May 10, 2006, J.M. told Anna Mae that Milton had raped her.
The next day, J.M. and Anna Mae went to the Bonner Springs police station and reported
the rape to Detective Victoria Fogarty. J.M. told Fogarty about two other victims, E.H.
and O.W., who were friends with J.M. E.H. was born in 1992 and O.W. was born in
1990. All three girls were subsequently interviewed at Sunflower House and confirmed
that Milton had molested them.
"On June 14, 2006, at approximately 9 p.m., Fogarty interviewed Milton at the
Bonner Springs police station. Prior to the interview, Fogarty instructed Milton as to his
rights and Milton signed a written waiver. The interview was tape recorded. Milton
admitted to having sex multiple times with J.M., admitted to touching O.W.'s genitals,
and said that E.H. had tried to have sex with him. After the interview, Milton was
arrested and transported to the Wyandotte County detention center.
"At a later date, while the recording of the interview was being transcribed, the
tape player malfunctioned and the tape became stuck in the machine. When police
department clerks attempted to remove the tape from the machine, the tape broke.
Fogarty sent the tape to Heart of America regional forensic computer lab, where
technicians repaired it as much as possible and transferred the audio onto a CD. Because
of the tape breakage, however, 12 seconds or less of the audio was lost and not
transferred to the CD.
"On June 19, 2006, the State charged Milton with four counts of rape of J.M.,
three counts of rape of E.H., two counts of aggravated indecent liberties with E.H., and
one count of aggravated indecent liberties with O.W. On January 8, 2007, Milton filed a
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motion to suppress, claiming that the statements made to Fogarty during the June 2006
interview were not given knowingly and voluntarily because Milton was so intoxicated
during the interrogation that he did not know what he was doing or saying. Milton
subsequently amended his motion to suppress to include the argument that he was not
informed of his Miranda rights until after the custodial interrogation was completed.
"At the hearing on the motion to suppress, Officer Adam Doran of the Bonner
Springs Police Department, who had transported Milton from the police station to the jail
after his arrest, testified that he did not recall anything unusual about Milton or that
Milton smelled like alcohol. Fogarty testified that she had advised Milton of his rights
before beginning the interview and Milton appeared sober and coherent and understood
her well enough that he corrected her several times throughout the interview. Fogarty
stated that after she discussed Milton's rights with him but before she turned on the tape
recorder to begin recording the interview, she discussed all of the allegations with Milton.
After this conversation, which lasted about 30 minutes, Fogarty turned on the tape
recorder.
"Milton also testified at the hearing. He stated that he had been drinking the
entire day of his interview with Fogarty and that he was intoxicated when officers picked
him up around 7:45 p.m. and took him to the police department to meet Fogarty. Further,
Milton testified that he and Fogarty discussed all the facts of the case before she advised
him of his rights. Milton also claimed Fogarty did not go over the Miranda warnings or
give him the waiver to sign until after the statement was taped. Ultimately, the district
court denied the motion and ruled that the statements could be used at trial.
"On May 17, 2007, the State filed an amended information, charging Milton with
four counts of rape of J.M., one count of rape of E.H., two counts of aggravated indecent
liberties with E.H., one count of aggravated indecent liberties with O.W., and two counts
of aggravated criminal sodomy of J.M. The jury trial commenced on May 22, 2007. The
State presented testimony from O.W.; E.H.; J.M.; the Sunflower House employees who
interviewed the three girls; Juli Hurley, a police clerk who was present when the tape of
Milton's statement to Fogarty broke; Robert Brown, a detective assigned to the forensic
lab who repaired the tape and transferred the audio recording of the statement; Fogarty;
Doran; and Anna Mae. During the trial, Milton objected to the admission of the
statements he had made to Fogarty and to the admission of the recording.

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"At the end of the State's case, the district court granted Milton's request to
dismiss one count of aggravated indecent liberties with E.H. due to the State's failure to
present any evidence of the conduct. Milton called only one witness, Deanna Conner,
who had lived with Milton and J.M. for 2 months. Conner testified that she had never
seen Milton act inappropriately with any of the girls. Rather, Conner testified she had
seen E.H. act like she had a crush on Milton.
"The jury found Milton guilty of four counts of rape, two counts of aggravated
criminal sodomy, and two counts of aggravated indecent liberties with a child. The
district court imposed a controlling sentence of 429 months' imprisonment. Milton timely
appealed." 2010 WL 5139871, at *1-2.

On direct appeal, Milton claimed that the district court erred by denying his
motion to suppress his statements to the police and by admitting into evidence the
recording of his police interrogation. He also claimed he was denied a fair trial based on
prosecutorial misconduct during opening statement. 2010 WL 5139871, at *1. This court
affirmed his convictions. 2010 WL 5139871, at *7. Our Supreme Court denied Milton's
petition for review and the mandate was issued on February 15, 2011.

In November 2013, Milton filed a K.S.A. 60-1507 motion alleging ineffective
assistance of trial counsel and many other claims. Milton v. State, No. 111,428, 2015 WL
6630375, at *2 (Kan. App. 2015) (unpublished opinion), rev. denied 305 Kan. 1252
(2016). The district court dismissed Milton's motion, finding that it was filed out of time
and that Milton failed to establish manifest injustice to extend the deadline for filing the
motion. 2015 WL 6630375, at *3. This court affirmed the dismissal of the K.S.A. 60-
1507 motion based on it being untimely filed. 2015 WL 6630375, at *5. Specifically, this
court found that Milton failed to provide "the trial court or this court with persuasive
reasons or circumstances that prevented him from filing his K.S.A. 60-1507 motion
within the 1-year time limitation." 2015 WL 6630375, at *4.

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Milton filed the current pro se K.S.A. 60-1507 motion on May 10, 2017. Milton
raised several issues in his motion, including ineffective assistance of trial counsel.
Milton also filed a pro se memorandum of law in support of his claims.

Milton's K.S.A. 60-1507 motion made no claim that the time limit for filing the
motion should be extended to prevent a manifest injustice. But Milton's 45-page
memorandum of law in support of his motion discussed manifest injustice at various
places in the memorandum. Milton argued that manifest injustice would exist because of
cumulative error at trial and ineffective assistance of his trial counsel. He attached several
letters from KU Law School's Project for Innocence to his memorandum discussing his
claim of ineffective assistance of trial counsel. Ultimately, the law school declined to take
Milton's case, finding that his counsel was not ineffective. Milton's memorandum also
alluded to the fact that he had limited access to legal resources. Finally, the memorandum
asserted actual innocence based on an affidavit from Emilio Juarez, a fellow inmate. In
the affidavit, Juarez claimed to have had sex with one of Milton's victims. Juarez claimed
he has a sexually transmitted disease that he might have given to Milton's victim, as
opposed to the State's claim that Milton transmitted the disease to the victim.

In a memorandum decision filed on October 27, 2017, the district court denied
Milton's K.S.A. 60-1507 motion without holding an evidentiary hearing. The district
court noted that Milton filed his first K.S.A. 60-1507 motion in November 2013, and the
motion was denied as untimely with no finding of manifest injustice. The district court
found that Milton's current motion "fails to establish any basis for a finding of manifest
injustice and is therefore time barred by K.S.A. 60-1507." Milton timely appealed.

ANALYSIS

On appeal, Milton claims the district court erred in denying his K.S.A. 60-1507
motion on the ground that it was untimely filed because he established manifest injustice
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to allow the motion to be filed out of time. Milton also argues that exceptional
circumstances exist to allow him to file a successive motion raising issues not previously
addressed by the court. The State asserts that the district court properly denied Milton's
motion as untimely because he failed to establish manifest injustice to allow the motion
to be filed out of time.

When the district court summarily denies a K.S.A. 60-1507 motion, this court
reviews the district court's decision de novo. Sola-Morales v. State, 300 Kan. 875, 881,
335 P.3d 1162 (2014). This court must determine whether the motion, files, and records
of the case show that the movant is entitled to no relief. Beauclair v. State, 308 Kan. 284,
293, 419 P.3d 1180 (2018).

The district court dismissed Milton's K.S.A. 60-1507 motion solely because it was
untimely filed. Milton had one year from the date the mandate was issued in his direct
appeal to file a K.S.A. 60-1507 motion. K.S.A. 2018 Supp. 60-1507(f)(1). The one-year
limit "may be extended by the court only to prevent a manifest injustice." K.S.A. 2018
Supp. 60-1507(f)(2). The statute then states:

"(A) 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. 2018 Supp. 60-1507(f)(2)(A).

On appeal, Milton asserts that he filed his most recent motion outside the one-year
time limit because (1) the correspondence from Project for Innocence caused a delay in
filing his motion, and (2) he had limited access to legal resources while in custody. He
also argues that he asserted a colorable claim of actual innocence based on the Juarez
affidavit. We will examine each assertion based on the record before us.
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First, the letter from the Project for Innocence declining to take the case was sent
to Milton in November 2011. After receiving the letter, Milton had another three months
until February 15, 2012, to timely file his motion under K.S.A. 60-1507. He failed to do
so, leading to his first K.S.A. 60-1507 motion being dismissed as untimely. Milton fails
to explain why the November 2011 response from the Project for Innocence is relevant to
his current motion filed more than five years later.

Second, Milton's argument that he had limited access to legal resources is also not
enough to establish manifest injustice. According to Milton's memorandum in support his
K.S.A. 60-1507 motion, he was only allowed to visit the law library every other day for
one hour and he was not allowed to check out books. But Milton attached a list of rules
related to the law library. The rules state that copies of legal materials can be made and
taken out of the library itself, so Milton's access to the legal materials was not limited to
just one hour every other day according to the library rules. In any event, this court has
consistently held that limited access to a law library cannot establish manifest injustice.
Conley v. State, No. 111,777, 2015 WL 7434746, at *4-5 (Kan. App. 2015) (unpublished
opinion), rev. denied 305 Kan. 1251 (2016); Roediger v. State, No. 107,746, 2013 WL
1688890, at *3 (Kan. App. 2013) (unpublished opinion).

Finally, Milton argues manifest injustice exists because he has a colorable claim of
actual innocence. To support his claim of actual innocence, Milton provides an affidavit
from Juarez, a fellow inmate, who claimed to have had sex with one of Milton's victims.
Juarez claims he has a sexually transmitted disease that he might have given to Milton's
victim, as opposed to the State's claim that Milton transmitted the disease to the victim.

Milton fails to establish a colorable claim of actual innocence based on Juarez'
affidavit. K.S.A. 2018 Supp. 60-1507(f)(2)(A) states that "the term actual innocence
requires the prisoner to show that it is more likely than not that no reasonable juror would
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have convicted the prisoner in light of new evidence." The Juarez affidavit falls far short
of making a colorable claim of actual innocence based on the statutory standard.

Based on the motion, files, and records of the case, the district court did not err by
dismissing Milton's K.S.A. 60-1507 motion as untimely. Milton failed to establish that
manifest injustice would exist if he was not allowed to file his motion outside the one-
year time limit. Because the district court dismissed Milton's motion solely because it
was untimely filed, we need not address Milton's arguments on appeal that exceptional
circumstances exist to allow a successive motion.

Affirmed.