Reyna v. State

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NOT DESIGNATED FOR PUBLICATION

No. 120,635

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

ISRAEL REYNA,
Appellant,

v.

STATE OF KANSAS,
Appellee.


MEMORANDUM OPINION

Appeal from Saline District Court; JARED B. JOHNSON, judge. Opinion filed November 22, 2019.
Affirmed.

Kristen B. Patty, of Wichita, for appellant.

Ellen Mitchell, county attorney, and Derek Schmidt, attorney general, for appellee.

Before SCHROEDER, P.J., PIERRON and STANDRIDGE, JJ.

PER CURIAM: Israel Reyna was convicted of four counts of aggravated indecent
liberties with a child in 2007 and sentenced to life in prison without the possibility of
parole for 25 years. He appealed, first to a panel of this court and then to the Kansas
Supreme Court, but his convictions were affirmed. Reyna then filed a number of
postconviction motions to correct an illegal sentence, but each was summarily denied and
those denials also were affirmed on appeal. Most recently, Reyna filed a pro se motion
seeking habeas corpus relief under K.S.A. 60-1507. The district court summarily denied
the motion on grounds that Reyna failed to demonstrate the manifest injustice necessary
to justify its untimeliness. Reyna appeals.
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FACTS

In 2007, Reyna was convicted of four counts of aggravated indecent liberties with
a child and sentenced to life in prison without the possibility of parole for 25 years.
Reyna filed a posttrial motion for a new trial and a motion for sentencing under the
Kansas Sentencing Guidelines Act (KSGA), alleging that the State's failure to plead and
prove Reyna's age, an element of the off-grid offense, required the court to sentence him
under the KSGA rather than treating the convictions as off-grid felonies. The district
court denied him relief. Reyna appealed, claiming the complaint upon which his
convictions were based was defective because, while it identified him by name and year
of birth, it did not specifically allege that he was over 18 years of age. State v. Reyna, 290
Kan. 666, 234 P.3d 761 (2010) (Reyna I). The complaint set out his year of birth, and he
testified at trial that he was 37 years of age; however, the complaint did not allege as part
of the charges of aggravated indecent liberties with a child that he was over the age of 18
at the time of the offenses, nor was the jury instructed to determine his age.
The Kansas Supreme Court ultimately rejected Reyna's claim and affirmed both his
convictions and his sentence. 290 Kan. at 690. That decision was handed down on
June 11, 2010, and the mandate was filed with the Saline County District Court on July 9,
2010.

Almost two years later, on May 3, 2012, Reyna filed a pro se motion to correct an
illegal sentence in which he, again, argued that the complaint upon which his convictions
were based was defective because it failed to allege that he was over 18 years of age. The
district court summarily denied the motion, finding that Reyna's arguments previously
had been litigated, appealed, and decided by the Kansas Supreme Court. Reyna appealed,
and a panel of this court affirmed the district court's ruling. See State v. Reyna, No.
108,874, 2013 WL 5870074, at *2 (Kan. App. 2013) (unpublished opinion) (Reyna II).
That decision was handed down on October 25, 2013, and, after his petition for review to
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the Kansas Supreme Court was denied, the mandate was filed with the Saline County
District Court on October 28, 2014.

Reyna filed another pro se motion to correct an illegal sentence on September 11,
2014, where, for the third time, he argued that the complaint upon which his convictions
were based was defective because it failed to allege that he was over 18 years of age. The
district court initially denied Reyna's motion because it believed that his first motion to
correct an illegal sentence was still on appeal. But after Reyna filed a motion to amend
the judgment showing that the appeal on his first motion had ended, the district court
issued a second order summarily denying Reyna's second motion. As with the first
summary denial, the district court found that Reyna's claims already had been litigated
and decided. Reyna appealed, and a panel of this court affirmed the district court's ruling.
State v. Reyna, No. 115,276, 2016 WL 7178267, at *3-4 (Kan. App. 2016) (unpublished
opinion) (Reyna III). That decision was handed down on December 9, 2016, and, after his
petition for review to the Kansas Supreme Court was denied, the mandate was filed with
the Saline County District Court on October 2, 2017.

On May 23, 2018, Reyna filed a pro se motion seeking habeas corpus relief under
K.S.A. 2018 Supp. 60-1507. In that motion, which included a number of attachments,
Reyna argued that he received ineffective assistance of counsel from every attorney that
represented him at his trial and in his numerous appeals. And while he appeared to
acknowledge that his motion was being filed out of time, he argued that it should be
allowed to proceed to prevent a manifest injustice; namely that he was actually innocent
because "[h]e was prosecuted and convicted by a defect[ive] complaint, information or
indictment which [is incurable]." The district court disagreed, finding that Reyna failed to
make a colorable claim of actual innocence. The district court also found that Reyna
provided no explanation as to why he failed to file his motion within the one-year statute
of limitations. For all of these reasons, the district court summarily denied and dismissed
Reyna's motion, concluding that "[t]he motions, files, and records of the case
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conclusively show that [Reyna] has exceeded the time limitations of K.S.A. 60-1507(f)
and that dismissal of the action would not equate with manifest injustice." Reyna filed a
pro se objection to the district court's findings of fact and conclusions of law under
Kansas Supreme Court Rule 183(j) (2019 Kan. S. Ct. R. 228) as well as a motion to alter
or amend judgment to correct insufficient findings to facilitate appellate review under
K.S.A. 2018 Supp. 60-259(a)(2). The district court denied both of these motions. Reyna
now timely appeals.

ANALYSIS

Reyna argues the district court erred when it summarily denied his K.S.A. 60-1507
motion as untimely. A district court has three options when handling a K.S.A. 60-1507
motion:

'"(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).

An appellate court's standard of review depends upon which of the three options a district
court utilizes. Where, as here, 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. 300 Kan. at 881.

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A defendant has one year from when a conviction becomes final to file a motion
under K.S.A. 2018 Supp. 60-1507(a), (f)(1). This one-year time limitation for bringing an
action may be extended by the district court only to prevent a manifest injustice. K.S.A.
2018 Supp. 60-1507(f)(2). To determine whether manifest injustice would exist without
extension of the statutory time limitations, we are now 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." K.S.A. 2018 Supp. 60-
1507(f)(2)(A); L. 2016, ch. 58, § 2.

First, Reyna provides no explanation why his motion was not filed within the time
limitations described in K.S.A. 2018 Supp. 60-1507(f). Because he failed to provide
persuasive reasons or circumstances that prevented him from filing his 60-1507 motion
within the time limitations, Reyna failed to meet the first factor. Second, although Reyna
maintains his innocence, he does so unconvincingly. In his motion, Reyna claims that he
"is actually innocent of the charges he was convicted of" because he "was prosecuted and
convicted by defect[ive] complaint, information or indictment which [is incurable]." But
as the State correctly notes, this argument was fully litigated, appealed, and decided by
the Kansas Supreme Court in Reyna's direct appeal. See Reyna I, 290 Kan. at 674-82.
And although that decision was later overruled by State v. Dunn, 304 Kan. 773, 813, 375
P.3d 332 (2016), the Kansas Supreme Court did so in a way that specifically rejects the
actual innocence argument that Reyna makes here. Specifically, the Dunn court held:

"The Reyna line of Jessica's Law cases challenging, for the first time on appeal, a
charging document's omission of the defendant's age of 18 or over at the time of the
crime provides a contemporary illustration of how today's rule should relieve analytical
tension arising from [State v.] Minor[, 197 Kan. 296, 416 P.2d 724 (1966),] and [State v.]
Hall[, 246 Kan. 728, 793 P.2d 737 (1990), overruled in part on other grounds by
Ferguson v. State, 276 Kan. 428, 78 P.3d 40 (2003)]. We have recognized in such cases
that the charging document did not include an allegation of the defendant's age, an
element of the crime, but ultimately ruled that the omission did not prejudice the
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defendant's rights as long as the evidence presented to the factfinder on that subject was
overwhelming or undisputed. Under the rule we announce today, assuming a defendant
succeeds in persuading us to reach the merits of the claim despite a lack of preservation
in the district court, we would be more likely to hold that there is no charging document
sufficiency problem in the first place. A complaint, indictment, or information that names
a defendant or otherwise identifies him or her inherently includes his or her age on the
date of the alleged offense. No question of adequate notice to the defendant of his or her
own age on the given date is logically possible, and the charging document will have
served its purpose of providing notice and a fair opportunity to defend. In other words,
there would be no error and we would not reach the prejudice or harmlessness question.
[Citations omitted.]" 304 Kan. at 813.

Therefore, despite his claims otherwise, Reyna has not shown that it was more
likely than not that no reasonable juror would have convicted him. In sum, Reyna has not
met the burden of showing us that manifest injustice will result without the extension of
the time limitation to file his motion.

Affirmed.