Walker v. State

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NOT DESIGNATED FOR PUBLICATION

No. 115,479

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

DANIEL E. WALKER,
Appellant,

v.

STATE OF KANSAS,
Appellee.


MEMORANDUM OPINION

Appeal from Wyandotte District Court; MICHAEL GROSKO, judge. Opinion filed September 22,
2017. Affirmed.

Kristen B. Patty, of Wichita, for appellant, and Daniel Walker, appellant pro se.

Adam Sokoloff, assistant district attorney, Mark A. Dupree, Sr., district attorney, and Derek
Schmidt, attorney general, for appellee.

Before GREEN, P.J., BUSER and LEBEN, JJ.

PER CURIAM: Daniel E. Walker appeals from the trial court's summary denial of
his K.S.A. 60-1507 motion. The trial court denied Walker's motion as untimely and
successive and ruled that no evidentiary support for the motion existed. On appeal,
Walker concedes that his current K.S.A. 60-1507 motion is the second K.S.A. 60-1507
motion that he has filed and that his current K.S.A. 60-1507 motion was filed untimely.
Walker argues, however, that we should excuse those procedural defects because State v.
Brown, 295 Kan. 181, 284 P.3d 977 (2012), provided a new development in Kansas
courts' alternative means analyses that was not available when his conviction became
final or when he filed his first K.S.A. 60-1507 motion. Nevertheless, Brown does not
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constitute an intervening change in law excusing the successiveness of his motion. Nor
does the analysis from Brown indicate that the untimeliness of Walker's motion should be
excused to avoid manifest injustice. Accordingly, we affirm the trial court's summary
denial of Walker's K.S.A. 60-1507 motion.

On January 31, 2006, Daniel Eugene Walker was charged with one count of
aggravated robbery in Wyandotte County. On May 16, 2006, a jury convicted Walker of
aggravated robbery. On June 23, 2006, Walker was sentenced to 228 months'
imprisonment.

Walker appealed his conviction to this court. On appeal, the following factual
background was established:

"Walker was apprehended after he was identified in a photo lineup by the victim
of a street robbery and beating in Kansas City. Walker was charged with aggravated
robbery in violation of K.S.A. 21-3427. During his incarceration, Walker made
incriminating statements to a detective and in two recorded phone calls to a third party.
At trial, he asserted an alibi defense, but the jury found him guilty as charged. He was
sentenced to 228 months' imprisonment, the high number in the applicable grid box."
State v. Walker, No. 97,213, 2008 WL 440741, at *1 (Kan. App. 2008) (unpublished
opinion).

Walker's conviction and sentence were affirmed on appeal. This court's unpublished
opinion was filed February 15, 2008, and its mandate to the trial court was issued
September 23, 2008.

On September 11, 2009, Walker filed his first K.S.A. 60-1507 motion. The trial
court held an evidentiary hearing on January 27, 2010. The trial court denied Walker's
motion and he appealed to this court. On appeal, this court affirmed the trial court's denial
of Walker's motion. Particularly relevant to Walker's current motion, this court held that
"Walker's claim that the information was defective because it alleged the taking was from
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the victim's presence rather tha[n] from the victim's person fails to raise a jurisdictional
issue that should be addressed in a collateral proceeding brought pursuant to K.S.A. 60-
1507." Walker v. State, No. 105,373, 2012 WL 1237890, at *1 (Kan. App. 2012)
(unpublished opinion), rev. denied 296 Kan. 1136 (2013).

On April 1, 2014, Walker filed his current K.S.A. 60-1507 motion. In his motion,
Walker stated the reasons for his allegation that he was being held unlawfully as (1) an
insufficient evidence to convict; (2) an alternative means issue; and (3) a right to a
unanimous jury verdict. Walker provided further details for his claims in his
memorandum of law in support of his motion. He specifically argued that our Supreme
Court's holding in Brown showed that his conviction for aggravated robbery presented an
alternative means issue. He further argued that because his case presented an alternative
means issue, the trial court erred in failing to properly instruct the jury to ensure that it
reached a unanimous verdict. Accordingly, Walker asserted that his conviction and
sentence should be vacated.

On July 7, 2014, the trial court summarily denied Walker's K.S.A. 60-1507
motion. The court ruled that Walker's motion was untimely as it was filed more than one
year after the final disposition of his direct appeal. The court further ruled that Walker
had failed to show manifest injustice excusing the untimeliness of his motion.
Additionally, the court ruled that Walker's motion was a second or successive motion
"seeking relief similar to that which has been previously denied." The court further ruled
that Walker had failed to show exceptional circumstances excusing the successiveness of
his motion. Finally, the court ruled that Walker's motion was "[w]holly without
evidentiary merit."

On April 7, 2015, Walker filed a notice of appeal. Walker's notice of appeal was
untimely but was accepted by this court after an order to show cause was issued.

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Did the Trial Court Err in Summarily Denying Walker's K.S.A. 60-1507 Motion?

A district court has three options when considering 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.' [Citations omitted.]" Sola-Morales v. State, 300 Kan. 875, 881,
335 P.3d 1162 (2014).

The standard of review on appeal depends upon which of the three options the trial
court utilizes. 300 Kan. at 881. Here, the trial court summarily denied Walker's motion.
When a trial court summarily denies a K.S.A. 60-1507 motion, an appellate court
conducts de novo review. The appellate court must determine whether the motion, files,
and records of the case definitively establish that the movant is not entitled to relief. 300
Kan. at 881.

To avoid summary denial, a movant bears the burden of showing he or she is
entitled to an evidentiary hearing. To make such a showing, the movant's assertions must
be more than conclusory, and an evidentiary basis in support of those assertions must be
shown by the movant or be apparent in the record. If such a showing is made, the trial
court is required to hold a hearing unless the motion is a "second" or "successive" motion
seeking similar relief. Sola-Morales, 300 Kan. at 881 (citing Holt v. State, 290 Kan. 491,
495, 232 P.3d 848 [2010]; see State v. Sprague, 303 Kan. 418, 425, 362 P.3d 828
[2015]).

The trial court is not required to entertain a second or successive K.S.A. 60-1507
motion for similar relief on behalf of the same movant. State v. Trotter, 296 Kan. 898,
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904, 295 P.3d 1039 (2013) (citing K.S.A. 60-1507[c]). "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." 296 Kan. 898, Syl. ¶ 2. See Supreme Court Rule 183(d) (2017
Kan. S. Ct. R. 223) providing:

"A sentencing court may not consider a second or successive motion for relief by the
same movant when:
(1) the ground for relief was determined adversely to the movant on a prior motion;
(2) the prior determination was on the merits; and
(3) justice would not be served by reaching the merits of the subsequent motion."

Even so, a successive motion may be considered, provided exceptional
circumstances excuse the movant's failure to bring the claim in an earlier motion.
Holt, 290 Kan. at 496. "Exceptional circumstances" include "'unusual events or
intervening changes in the law which prevent a movant from reasonably being
able to raise all of the trial errors in the first post-conviction proceeding.'" State v.
Mitchell, 297 Kan. 118, 123, 298 P.3d 349 (2013).

Additionally, a movant has one year from when a conviction becomes final to file
a K.S.A. 60-1507 motion. K.S.A. 60-1507(f)(1). The one-year filing limitation may be
extended by the trial court only to prevent manifest injustice. K.S.A. 60-1507(f)(2).
Manifest injustice must be determined from the totality of the circumstances. Vontress v.
State, 299 Kan. 607, 616, 325 P.3d 1114 (2014). To determine whether manifest injustice
exists, the court considers the following nonexhaustive list of factors: (1) whether the
movant provides persuasive reasons or circumstances that prevented him or her from
timely filing the K.S.A. 60-1507 motion; (2) whether the merits of the movant's claim
raise substantial issues of law or fact; and (3) whether the movant sets forth a colorable
claim of actual innocence. 299 Kan. 607, Syl. ¶ 8.

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Effective July 1, 2016, the Legislature amended K.S.A. 60-1507 to address the
Vontress factors. K.S.A. 2016 Supp. 60-1507(f)(2)(A) now reads:

"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 of 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."

Thus, "[t]he revised statute has essentially eliminated the second Vontress factor from the
manifest injustice consideration." State v. Tran, No. 115,813, 2017 WL 3202966, at *5
(Kan. App. 2017) (unpublished opinion). At least one panel from this court has held that
the amendment overriding the Vontress factors applies retroactively. See Perry v. State,
No. 115,073, 2017 WL 462659, at *3 (Kan. App. 2017) (unpublished opinion). Still,
another panel from this court has held that applying the amendment retroactively when
the trial court's ruling predates the amendment's effective date would result in prejudice
to the movant. See Noyce v. State, No. 114,971, 2017 WL 3112821, at *7 (Kan. App.
2017) (unpublished opinion).

Walker relied on the Vontress factors in his K.S.A. 60-1507 motion, which was
filed on April 1, 2014. The trial court then summarily denied Walker's motion on July 7,
2014, well before the effective date of the amendment to K.S.A. 60-1507 overriding the
Vontress factors. Accordingly, as this court did in Noyce, we acknowledge that applying
K.S.A. 2016 Supp. 60-1507(f)(2)(A) retroactively would prejudice Walker. So, we will
consider any manifest injustice argument advanced by Walker through the lens of
Vontress.

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Here, the trial court summarily denied Walker's motion as both untimely and
successive. Even though we do not owe the trial court any deference, an examination of
Walker's motion will show that the trial court was correct.

On appeal, Walker's counsel argues that

"he provided the district court with a K.S.A. 60-1507 motion that fully detailed both a
factual and a legal basis for the relief he seeks, centering on his claim that the Supreme
Court's directive to district courts in State v. Brown, 295 Kan. 181, 284 P.3d 977
(2012)—that they must analyze whether the legislature listed two or more alternative
distinct, material elements of a crime or, instead, options within a means that merely
describe a material element or describe a factual circumstance that would prove the
element—applied to Instruction No. 8 given to his jury."

Thus, Walker's counsel specifically argues

"that an alternative means issue is created in Instruction No. 8 by the alternative distinct,
material elements in Claim 1 ('That the defendant intentionally took property, to-wit:
driver's license from the person or presence of [victim]') and Claim 3 ('That the defendant
inflicted bodily harm on [victim] in the course of such conduct.')."

But Walker also filed his own supplemental brief in which he asserts that "[t]he
base issue here is 'insufficient evidence to convict.'" Walker "believes his use of the
alternative means doctrine is an appropriate way to bring forth his 'insufficient evidence'
issue."

What becomes clear, then, is that the alleged alternative means issue presented by
Brown is the actual issue on appeal. This is true for two reasons. First, because Walker
asserts that Brown amounts to an "intervening change in law" that constitutes an
exceptional circumstance excusing the successiveness of his motion. And second,
because Walker asserts that his argument based on Brown shows manifest injustice
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excusing the untimeliness of his motion. Thus, Walker concedes that his current motion
is successive and out of time. Accordingly, an examination of Brown and its impact, if
any, on Walker's conviction and sentence will be determinative of his appeal.

In Brown, our Supreme Court addressed an alternative means argument relating to
a conviction for aggravated indecent liberties with a child. The appellant's argument in
Brown was based on the court's rule from State v. Timley, 255 Kan. 286, Syl. ¶ 1, 875
P.2d 242 (1994), disapproved by State v. Brooks, 298 Kan. 672, 317 P.3d 54 (2014), that
"where a single offense may be committed in more than one way, there must be jury
unanimity as to guilt for the single crime charged. Unanimity is not required, however, as
to the means by which the crime was committed so long as substantial evidence supports
each alternative means." The specific argument of the appellant in Brown is not pertinent
to this appeal, as Walker is only concerned with the directive the court issued to future
trial courts considering alleged alternative means issues. To that end, the court held:

"[I]n determining if the legislature intended to state alternative means of committing a
crime, a court must analyze whether the legislature listed two or more alternative distinct,
material elements of a crime—that is, separate or distinct mens rea, actus reus, and, in
some statutes, causation elements. Or, did the legislature list options within a means, that
is, options that merely describe a material element or describe a factual circumstance that
would prove the element? The listing of alternative distinct, material elements, when
incorporated into an elements instruction, creates an alternative means issue demanding
super-sufficiency of the evidence. Often this intent can be discerned from the structure of
the statute. On the other hand, the legislature generally does not intend to create
alternative means when it merely describes a material element or a factual circumstance
that would prove the crime. Such descriptions are secondary matters—options within a
means—that do not, even if included in a jury instruction, raise a sufficiency issue that
requires a court to examine whether the option is supported by evidence." Brown, 295
Kan. at 199-200.

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Here, Walker argues that Jury Instruction No. 8 created an alternative means issue
where it alleged "[t]hat the defendant intentionally took property . . . from the person or
presence of Joe Craver." (Emphasis added.) In his motion, Walker specifically argued
that "even after favoring all the evidence in a light most favorable to the prosecution, the
[S]tate did not under any circumstances produce a crumb of evidence, that the defendant
intentionally took property to wit; drivers [sic] license from the person [first option] of
Joe Craver." Walker further alleged in his motion that "[t]he record will show that it is in
fact undisputed that Eric Ferguson took the drivers [sic] license." Thus, Walker is
effectively arguing that the trial court failed to address the alleged alternative means issue
and, therefore, failed to ensure each alternative means was supported by sufficient
evidence.

Our first question, then, is whether Walker's charged crime actually presented an
alternative means issue. Walker was charged with aggravated robbery under K.S.A. 21-
3427, which defined aggravated robbery as "a robbery, as defined in K.S.A. 21-3426 and
amendments thereto, committed by a person who is armed with a dangerous weapon or
who inflicts bodily harm upon any person in the course of such robbery." K.S.A. 21-3426
defined robbery as "the taking of property from the person or presence of another by
force or by threat of bodily harm to any person."

But before we apply the court's directive from Brown to determine whether an
alternative means issue existed, we note that this court has already addressed the issue.
Our court has held that "[t]aking property from the person of the victim and taking
property from the presence of the victim do not constitute alternative means of
committing aggravated robbery under K.S.A. 21-3427." State v. Edwards, 48 Kan. App.
2d 383, Syl. ¶ 5, 290 P.3d 661 (2012); see State v. Cato-Perry, 50 Kan. App. 2d 623, Syl.
¶ 2, 332 P.3d 191 (2014) (same). This court has further held that

"[t]he use of 'person or presence' in the aggravated robbery instruction merely describes
the victim's proximity to the property taken, and the two words are simply two options
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used to describe different factual circumstances in which aggravated robbery can occur.
Therefore, the phrase 'person or presence' in the aggravated robbery statute does not
create an alternative means of committing the crime." State v. Jackson, 49 Kan. App. 2d
116, Syl. ¶ 5, 305 P.3d 685 (Kan. App. 2013).

It is clear, then, that neither K.S.A. 21-3427 nor Jury Instruction No. 8 created an
alternative means issue in Walker's criminal case. Thus, we reject Walker's argument that
his case presented an alternative means issue.

Moreover, Walker's main argument from his motion seems to be predicated on a
misunderstanding of the State's case against him. The State never presented any evidence
that Walker actually took the license from the victim, nor was the State required to do so
to obtain a conviction. This is because Walker was charged under accomplice liability.
Jury Instruction No. 9 confirmed the State's theory:

"A person who, either before or during its commission, intentionally aids, abets,
advises, hires, counsels or procures another to commit a crime with the intent to promote
or assist in tis commission is criminally responsible for the crime committed regardless of
the extent of the defendant's participation, if any, in the actual commission of the crime."

This court has held "that the words 'aids' or 'abets' as they appear in the aiding and
abetting statute are not alternative means of committing the crime of aggravated
robbery." Jackson, 49 Kan. App. 2d at 134. Thus, the lack of evidence regarding Walker
taking the license off of the victim would not implicate the super-sufficiency requirement
of the alternative means analysis. This further undermines Walker's argument that an
alternative means issue existed in his criminal case.

With that analysis settled, we now return to our inquiry as to whether the
successiveness and untimeliness of Walker's motion are excused. First, we consider
whether Brown amounts to an exceptional circumstance excusing the fact that Walker's
current K.S.A. 60-1507 motion is successive. Because we have shown that Walker's
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aggravated robbery charge did not present an alternative means issue under Brown, we
cannot hold that Brown constituted an intervening change of law—or an exceptional
circumstance. And because Brown does not constitute an exceptional circumstance
excusing the successiveness of Walker's motion, the trial court was not required to
consider its merits.

Moreover, a brief review of the Vontress factors will prove that Walker has failed
to show that he is excused from failing to timely file his K.S.A. 60-1507 motion. Walker
fails to meet his burden under the first Vontress factor to show persuasive reasons or
circumstances that prevented him from timely filing his motion. Walker's reason for
failing to timely file his motion is that Brown was not available. But because we have
shown that Brown does not affect Walker's conviction, it is not a persuasive reason for
failing to file. Walker also fails to meet his burden under the second Vontress factor to
show that his claim presents substantial issues of law or fact. As our discussion of Brown
showed, Walker's alternative means argument fails. And finally, Walker failed to meet
his burden under the third Vontress factor to set forth a colorable claim of actual
innocence. As we noted before, Walker's claim of innocence is based on a
misunderstanding of the State's case against him, which was based on a theory of
accomplice liability. Thus, even if we were to excuse the successiveness of Walker's
motion, we could not excuse the fact that Walker filed his motion out of time and failed
to show manifest injustice excusing such untimeliness.

For those reasons, we hold that the motion, files, and case records conclusively
show that Walker is entitled to no relief. Accordingly, we affirm the denial of his K.S.A.
60-1507 motion.

Affirmed.