State v. Phoenix

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NOT DESIGNATED FOR PUBLICATION

No. 115,694


IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

JERSHAWN L. PHOENIX,
Appellant.


MEMORANDUM OPINION

Appeal from Wyandotte District Court; WESLEY K. GRIFFIN, judge. Opinion filed May 5, 2017.
Affirmed.

Kai Tate Mann, of Kansas Appellate Defender Office, for appellant.

Jennifer S. Tatum, assistant district attorney, Jerome A. Gorman, district attorney, and Derek
Schmidt, attorney general, for appellee.

Before STANDRIDGE, P.J., MCANANY, J., and HEBERT, S.J.

Per Curiam: Jershawn L. Phoenix filed a pro se motion seeking relief from his
conviction of aggravated criminal sodomy due to ineffective assistance of counsel.
Although the motion requested an evidentiary hearing pursuant to State v. Van Cleave,
239 Kan. 117, 716 P.2d 580 (1986), the district court construed it as a request for relief
pursuant to K.S.A. 60-1507 and summarily dismissed the motion as being untimely.

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We find that the motion was untimely on its face and that Phoenix has failed to
establish manifest injustice to extend the 1-year limitation of K.S.A. 60-1507(f). The
order of the district court is affirmed.

Factual and procedural background

On October 26, 2007, Phoenix was charged with one count of rape and one count
of aggravated criminal sodomy. The charges were based on allegations that on or about
October 13, 2007, Phoenix entered a bedroom in which his 13-year-old cousin was
sleeping and engaged in oral sodomy and digital penetration without her consent.
Phoenix was arrested at his home and, as he was being led away, he spontaneously
acknowledged that he knew why he was being arrested. He thereafter gave a formal
statement to a police investigator in which he indicated his guilt.

On April 30, 2009, a Jackson v. Denno hearing was held at which the district court
upheld the admissibility of the spontaneous utterance and the subsequent formal
statement. The district court also ruled that evidence of an incriminating phone call made
by Phoenix from jail was also admissible.

On August 27, 2009, Phoenix pled guilty to one count of aggravated criminal
sodomy, admitting that he had oral sex with the 13-year-old victim. In exchange for the
plea, the State dismissed the rape charge and also dismissed another separate case
pending against Phoenix. The plea bargain also included a recommendation that Phoenix
should receive a downward durational departure prison sentence of 129 months in lieu of
the presumptive guideline sentence of life without possibility of parole for 25 years. The
district court imposed the recommended departure sentence on October 21, 2009.
Phoenix did not take a direct appeal from the conviction and sentence.

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On July 2, 2013, Phoenix filed a motion to correct illegal sentence, alleging
procedural irregularities in the charging document. The district court summarily denied
that motion, finding that the charging document was not defective as claimed. Phoenix
did not appeal this ruling.

On March 26, 2015, Phoenix filed a pro se motion for an evidentiary hearing
pursuant to Van Cleave. He alleged that both of his appointed trial counsel were
ineffective. He claimed his arrest was the result of an illegal search and seizure because a
police officer had forced his way into Phoenix's home to arrest him without a warrant.
The State responded on May 4, 2015, and on the following day, the district court entered
an order summarily dismissing Phoenix's motion.

Phoenix now appeals that ruling.

The district court did not err in summarily dismissing Phoenix's motion.

Phoenix contends the district court erred in denying his motion for a Van Cleave
hearing without appointing counsel and holding at least a preliminary hearing on his
claims. The parties agree Phoenix's pro se motion should be liberally construed as a
motion for habeas corpus relief under K.S.A. 60-1507. This court is not bound by the
parties' agreement regarding the legal effect of Phoenix's motion since the issue presents
a question of law. See State v. Gilbert, 299 Kan. 797, 802, 326 P.3d 1060 (2014)
("Whether the district court correctly construed a pro se pleading is a question of law
subject to unlimited review."). But, in this case, the parties are correct.

A motion for a Van Cleave hearing is a procedural device affording a litigant on
direct criminal appeal an opportunity to obtain a remand from an appellate court to the
district court for the limited purpose of conducting a hearing on claims of ineffective
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assistance of counsel. See Rowland v. State, 289 Kan. 1076, 1084, 219 P.3d 1212 (2009);
Van Cleave, 239 Kan. at 119-20.

"Because [claims of ineffective assistance of counsel] nevertheless become
apparent during the pendency of some direct appeals, we have developed a procedure for
remand to the district court to consider a claim that trial counsel was ineffective before
the appeal is finally decided. This procedure, referred to as a Van Cleave hearing,
[citation omitted], may begin with a party's motion for such a remand or with the court's
sua sponte order, so that facts relevant to determination of the legal issue may be
developed and an evidentiary record established." Rowland, 289 Kan. at 1084.

Clearly, Phoenix's motion for a Van Cleave hearing was filed in the district court
long after any time for filing a direct criminal appeal from his conviction and sentence
had passed. As a result, a Van Cleave hearing is not the appropriate procedural vehicle
for presenting his claims for ineffective assistance of counsel.

However, the courts of this state are admonished to liberally construe a pro se
pleading to give effect to the substance of the pleading, not its form. See Gilbert, 299
Kan. at 798; State v. Kelly, 291 Kan. 563, 565, 244 P.3d 639 (2010). A motion for relief
under K.S.A. 60-1507 is the proper procedural vehicle for bringing a collateral challenge
to a criminal conviction based on allegations of ineffective assistance of counsel. See
K.S.A. 2016 Supp. 60-1507(a). A movant under K.S.A. 60-1507 bears the burden of
establishing an evidentiary basis supporting the claims for relief in order to warrant an
evidentiary hearing; mere conclusory contentions are insufficient. See Grossman v. State,
300 Kan. 1058, 1062, 337 P.3d 687 (2014). K.S.A. 2016 Supp. 60-1507(b) provides:

"Unless the motion and the files and records of the case conclusively show that the
prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the
county attorney, grant a prompt hearing thereon, determine the issues and make findings
of fact and conclusions of law with respect thereto."
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Absent a clear demonstration of manifest injustice, however, claims for relief
under K.S.A. 60-1507 are subject to timely proceeding within the 1-year limitation period
set forth in K.S.A. 2016 Supp. 60-1507(f):

"(f) Time limitations. (1) Any action under this section must be brought within
one year of:
(A) The 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
(B) 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.
(2) The time limitation herein may be extended by the court only to prevent a
manifest injustice.
(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.
(B) If the court makes a manifest-injustice finding, it must state the factual and
legal basis for such finding in writing with service to the parties.
(3) If the court, upon its own inspection of the motions, files and records of the
case, determines the time limitations under this section have been exceeded and that the
dismissal of the motion would not equate with manifest injustice, the district court must
dismiss the motion as untimely filed."

Phoenix did not take a direct appeal from his conviction and sentence. Therefore,
his direct criminal proceedings terminated 14 days after his sentencing, i.e., on November
4, 2009. Phoenix's ability to file a motion under K.S.A. 60-1507 without demonstrating
manifest injustice expired on November 4, 2010. His motion for a Van Cleave hearing
was filed on March 26, 2015, nearly 4-1/2 years after this deadline. Consequently, before
the district court could properly consider his claims, Phoenix was required to establish
that manifest injustice warranted extension of the 1-year limitation.
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We would first note that Phoenix offers no suggestion or discussion as to why he
failed to file his motion within the 1-year time limitation. Further, while he simply states
in his motion that at the time of his plea he maintained his innocence, this conclusory
assertion is clearly controverted by his statements to the court during the plea colloquy,
as well as his statements to police which were ruled admissible evidence. Since Phoenix
does not brief or argue either of these issues on appeal, he has waived and abandoned any
arguments he might have had on such claims. State v. Cheever, 304 Kan. 866, 875-76,
375 P.3d 979 (2016).

Instead, Phoenix argues that he should not be limited by the scope of the manifest
injustice inquiry as set forth in the 2016 amendments to K.S.A. 60-1507, since K.S.A.
2016 Supp. 60-1507(f)(2)(A) was not in effect at the time he filed his motion. He
contends that the statute should not be applied retroactively to prevent him from arguing
manifest injustice based upon the evidence of substantial issues of law or fact, as
described in the "totality of circumstances" examination prescribed in State v. Vontress,
299 Kan. 607, 616, 325 P.3d 1114 (2014). However, the 2016 statute amendments were
adopted by the legislature in response to Vontress in order to clarify the scope of inquiry.
Two panels of this court, in separate opinions, have held that the 2016 amendments are
procedural rather than substantive and thus apply retroactively. See Olga v. State, No.
115,334, 2017 WL 840296, at *3 (Kan. App. 2017) (unpublished opinion); Perry v. State,
No. 115,073, 2017 WL 462659, at *3 (Kan. App. 2017) (unpublished opinion). While
these opinions are unpublished, we find the rationale to be persuasive and supportive of
our finding that the 2016 statute amendments are procedural and are to be applied
retroactively. Phoenix's claims are limited by the express language of K.S.A. 2016 Supp.
60-1507(f)(2)(A).

Phoenix contends his motion should properly be understood to raise a single issue
alleging ineffective assistance of trial counsel in failing to seek suppression of his
statements to police as being the fruit of an illegal warrantless arrest. He would argue that
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the facts would show the police officer illegally entered his home by placing his foot in
the doorway to prevent Phoenix from retreating into his house to avoid the arrest.

Notwithstanding that such argument would not be relevant under K.S.A. 2016
Supp. 60-1507(f)(2)(A), the allegation fails to establish an issue of fact or law deserving
of the court's attention even under the prior Vontress standard.

First of all, an issue regarding Phoenix's arrest at his home was raised and argued
by trial counsel, albeit somewhat indirectly, during the Jackson v. Denno hearing.
Arguably, Phoenix's claims regarding his statements are subsumed into the trial court
ruling that the statements were admissible into evidence.

More pointedly however, by pleading guilty and admitting to the factual basis for
the crime of aggravated criminal sodomy, Phoenix has waived any defects or
irregularities in the proceedings prior to the plea. State v. Edgar, 281 Kan. 30, 40, 127
P.3d 986 (2006). This rule applies even if the defect in the proceedings rises to
constitutional dimension. See McMann v. Richardson, 397 U.S. 759, 767-68, 90 S. Ct.
1441, 25 L. Ed. 2d 763 (1970) (an entry of plea based upon the strength of the State's
evidence is not subject to challenge on the basis of a coerced confession unless the
coerced confession impacted and tainted the plea); Parker v. North Carolina, 397 U.S.
790, 797, 90 S. Ct. 1458, 25 L. Ed. 2d 785 (1970) ("[E]ven if Parker's counsel was wrong
in his assessment of Parker's confession, it does not follow that his error was sufficient to
render the plea unintelligent and entitle Parker to disavow his admission in open court
that he committed the offense with which he was charged.").

Unless and until Phoenix seeks to withdraw his plea, counsel's performance during
the suppression hearing is immaterial. Nothing within Phoenix's pro se motion or his
appellate brief suggests that he is seeking to withdraw his plea, and there are substantial
reasons why Phoenix might not wish to withdraw his plea. As charged, Phoenix was
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facing two felony counts that each carried a potential maximum sentence of 25 years to
life in prison, along with whatever offenses were charged in Wyandotte County District
Court case no. 07CR1096. Pursuant to the plea agreement, Phoenix obtained a durational
departure onto the sentencing grid and then the maximum departure authorized by law to
129 months, nearly 11 years, in prison for the single offense of aggravated criminal
sodomy. If he successfully withdrew his plea, the State could pursue all of the dismissed
charges in addition to the aggravated criminal sodomy. If convicted, Phoenix would face
a minimum of 25 years in prison. He would be taking a substantial chance on his ability
to persuade a jury that he did not commit those crimes.

Based on the record before us, even a motion to withdraw the plea would also be
time barred. K.S.A. 2016 Supp. 22-3210 provides, in pertinent part:

"(d)(1) A plea of guilty or nolo contendere, for good cause shown and within the
discretion of the court, may be withdrawn at any time before sentence is adjudged.
(2) To correct manifest injustice the court after sentence may set aside the
judgment of conviction and permit the defendant to withdraw the plea.
"(e)(1) Any action under subsection (d)(2) must be brought within one year of:
(A) The 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 (B) the denial of a
petition for a writ of certiorari to the United States supreme court or issuance of such
court's final order following the granting of such petition.
(2) The time limitation herein may be extended by the court only upon an
additional, affirmative showing of excusable neglect by the defendant."

Excusable neglect as used in various civil procedure statutes generally means
"'something more than the unintentional inadvertence or neglect common to all who share
the ordinary frailties of mankind.' [Citations omitted.]" State v. Davisson, 303 Kan. 1062,
1069, 370 P.3d 423 (2016) (discussing "excusable neglect" related to motion to withdraw
plea by referencing that term as used in civil procedure statutes); State v. Reed, No.
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111,663, 2015 WL 4716290, at *3-4 (Kan. App. 2015) (unpublished opinion) (discussing
meaning of excusable neglect for filing motion to withdraw plea, citing Black's Law
Dictionary and caselaw arising under civil statutes), rev. denied 304 Kan. 1021 (2016).

By the plain language of the statute, any request by Phoenix to withdraw his guilty
plea would require him to establish that a refusal to permit the withdrawal would
constitute a manifest injustice and that circumstances demonstrating excusable neglect
justified consideration of his motion outside the 1-year limitation. As we noted above,
Phoenix has presented no argument in his motion or in his appellate brief that there were
good reasons why he could not have brought his claim of ineffective assistance of
counsel within 1 year from the end of his criminal case. The district court could not
permit Phoenix to withdraw his plea based on the allegations presented in his pro se
motion. Since the plea stands, Phoenix's claim of ineffective assistance of counsel in
preparing for and arguing the suppression issue provides no basis for relief.

Simply put, Phoenix has not established a manifest injustice warranting extension
of the 1-year time limitation of K.S.A. 2016 Supp. 60-1507(f)(2)(A). The district court
properly dismissed his motion without appointing counsel or holding a hearing.

Affirmed.