Zeiner v. State

1

NOT DESIGNATED FOR PUBLICATION

No. 114,376

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

ANDREW ZEINER,
Appellant,

v.

STATE OF KANSAS,
Appellee.


MEMORANDUM OPINION

Appeal from Lyon District Court; JEFFRY J. LARSON, judge. Opinion filed April 29, 2016.
Affirmed in part, reversed in part, and remanded with directions.

James Bordonaro, of Emporia, for appellant.

Jonathon L. Noble, assistant county attorney, Marc Goodman, county attorney, and Derek
Schmidt, attorney general, for appellee.

Before POWELL, P.J., ARNOLD-BURGER, J., and BURGESS, S.J.

Per Curiam: Andrew Zeiner was convicted of, among other things, aggravated
battery of a law enforcement officer in 2008. He has previously filed both a direct appeal
and a K.S.A. 60-1507 motion and received no relief. Now he appeals two rulings by the
district court, the denial of his second K.S.A. 60-1507 motion and the denial of a motion
for judgment of acquittal. Because we find that the district court denied his K.S.A.
60-1507 motion on the erroneous ground that Zeiner had no right to effective assistance
of counsel in a collateral proceeding, we reverse the district court's decision and remand
for further proceedings. We affirm, however, the district court's ruling that his motion for
2

judgment of acquittal was untimely, having been filed more than 6 years after his
sentencing.

FACTUAL AND PROCEDURAL HISTORY

In 2008, a jury found Zeiner guilty of aggravated battery of a law enforcement
officer, driving with a suspended license, fleeing or attempting to elude a law
enforcement officer, and several traffic violations for which he was sentenced to serve
144 months in prison. Zeiner filed a direct appeal, and his conviction was affirmed by
this court in State v. Zeiner, No. 102,088, 2010 WL 2545665 (Kan. App. 2010)
(unpublished opinion), rev. denied 290 Kan. 1104 (2010). Zeiner then filed a K.S.A.
60-1507 motion alleging ineffective assistance of both trial and appellate counsel. The
district court denied the motion and this court affirmed the denial on appeal in Zeiner v.
State, No. 108,834, 2013 WL 5507448 (Kan. App. 2013) (unpublished opinion), rev.
denied 300 Kan. 1108 (2014).

In January 2015, Zeiner filed a second K.S.A. 60-1507 motion, this time alleging
ineffective assistance of counsel on his first K.S.A. 60-1507 motion. Zeiner later
amended the motion to add an allegation that his trial counsel failed to properly
"understand and defend [against] the [essential] statutory element of Battery 'Physical
contact with another Person,'" and that his counsel on direct appeal erred when she failed
to raise the issue of the deficient performance. While this motion was pending in the
district court, Zeiner filed a motion for judgment of acquittal.

The district court denied both motions for reasons that will be discussed below.
Zeiner now appeals.



3

ANALYSIS

The district court erred when it denied Zeiner's K.S.A. 60-1507 motion on the grounds
that he had no right to the effective assistance of counsel in a collateral proceeding.

Zeiner argues that the district court erred when it denied his K.S.A. 60-1507
motion, concluding that Zeiner did not have a right to effective assistance of counsel
during the appeal of the denial of his first K.S.A. 60-1507 motion. Whether Zeiner had a
right to effective assistance of counsel during his first K.S.A. 60-1507 hearing and appeal
is a question of law that this court reviews de novo. Robertson v. State, 288 Kan. 217,
227, 201 P.3d 691 (2009).

The district court erroneously cited to Holt v. Saiya, 28 Kan. App. 2d 356, 362, 17
P.3d 368 (2000), for the proposition that "'Kansas law is clear that in collateral post-
conviction proceedings, an inmate does not have a constitutional right to counsel and
without a constitutional right, there can be no claim of ineffective assistance of counsel.'"
Since Holt was decided, the Kansas Supreme Court has weighed in on the right of
prisoners to effective assistance of counsel during post-conviction proceedings. See
Robertson, 288 Kan. at 228. In Robertson, the Kansas Supreme Court clarified that while
prisoners do not have a constitutional right to effective assistance of counsel, they do
have a statutory right that attaches once an attorney has been appointed to assist an
indigent prisoner with a post-conviction proceeding. 288 Kan. at 228. The State concedes
that the district court erred in finding that Zeiner had no right to effective counsel at his
K.S.A. 60-1507 hearing.

Despite this significant legal error, the State asserts that the district court's denial
of Zeiner's K.S.A. 60-1507 motion should still be affirmed. See State v. Overman, 301
Kan. 704, 712, 348 P.3d 516 (2015) (concluding that when a district court reaches the
correct result, its decision will be upheld even though it relied upon the wrong ground or
4

assigned erroneous reasons for its decision). The State contends that Zeiner's second
K.S.A. 60-1507 motion, and its amendment, raise issues that could have been raised on
appeal of his prior motion, making it successive. See K.S.A. 60-1507(c). Additionally,
this motion was filed after the 1 year window for filing had passed. See K.S.A.
60-1507(f)(1). And finally, the State argues that Zeiner fails to make a showing that 60-
1507 counsel's performance was deficient. But the State only moved to dismiss in the
district court based on its erroneous theory that Zeiner had no right to effective assistance
of counsel, therefore the district court has not made a ruling on successiveness,
timeliness, or on the merits of Zeiner's claims against 60-1507 counsel. We agree with
the findings of the district court that the claims in Zeiner's amended K.S.A. 60-1507
motion concerning the ineffectiveness of trial counsel are successive and there is no
showing of exceptional circumstances. But that was a different claim than his claim
regarding the ineffectiveness of his 60-1507 counsel.

We do not mean to suggest by this ruling that we believe Zeiner has a colorable
claim, only that it was dismissed in error without consideration of issues of
successiveness, timeliness, and the merits of his claim if his claim is deemed to be neither
successive nor untimely. Accordingly, we reverse the decision of the district court
dismissing Zeiner's K.S.A. 60-1507 action and remand for further proceedings related
solely to his claims of ineffectiveness of 60-1507 counsel, including an opportunity for
Zeiner to respond to any allegations the State makes concerning successiveness,
timeliness, and the merits of Zeiner's claim.

Zeiner's motion for judgment of acquittal was not timely filed, therefore the district court
lacked jurisdiction to consider it.

Zeiner next argues that the district court erred when it failed to consider the merits
of his motion for judgment of acquittal because it was untimely filed. Whether the district
5

court had jurisdiction to consider Zeiner's motion is a question of law that this court
reviews de novo. See State v. Looney, 299 Kan. 903, 906, 327 P.3d 425 (2014).

K.S.A. 22-3419(3) provides: "If [a] jury returns a verdict of guilty or is
discharged without having returned a verdict, a motion for judgment of acquittal may be
made or renewed within seven days after the jury is discharged or within such further
time as the court may fix during the seven-day period." Despite this seemingly short,
well-defined window of opportunity, Zeiner cites to State v. Thomas, 12 Kan. App. 2d
743, 755 P.2d 562, rev. denied 243 Kan. 781 (1988), for the proposition that district
courts have "the inherent authority to consider a claim for acquittal even though it is not
timely presented."

In Thomas, this court held:

"While a desire for finality might justify ending a trial court's power to overturn a jury's
guilty verdict shortly after the jury is discharged, it is somewhat difficult to see any
reason to restrict that power where the jury failed to return a verdict and the prosecution
may, as was done in this case, decide to proceed with another trial. . . . [T]he purpose of
the statute is to limit the defendant's power to force the trial court to consider a motion for
judgment of acquittal to the times stated. After those times, the court could properly deny
the motion summarily due to the late filing. The court would retain the power, however,
to consider the motion if it felt it should, at least so long as it retained jurisdiction over
the case." 12 Kan. App. 2d at 745.

This excerpt, while empowering district courts to consider motions for acquittal
outside of the 7-day statutory limitation in certain situations, draws attention to the key
procedural distinction between Thomas and Zeiner. Thomas filed a motion for acquittal
while the possibility of a new trial was still pending in the district court; Zeiner filed his
motion 6 years after he was sentenced by the district court—well beyond the 7-day limit
and after the district court clearly ceased to have jurisdiction of the case. In two other
6

cases that are procedurally more similar to the one here, panels of this court determined
that district courts lacked jurisdiction to consider motions for judgment of acquittal when
they were not filed within 7 days of the jury verdict. See State v. Mitchell, No. 108,912,
2014 WL 113441, at *4 (Kan. App.) (unpublished opinion), rev. denied 301 Kan. ___
(2014); State v. Parks, No. 95,231, 2007 WL 3146676, at *2 (Kan. App. 2007)
(unpublished opinion), rev. denied 286 Kan. 1184 (2008).

Because Zeiner filed his motion for judgment of acquittal more than 7 days after
the jury returned its verdict, at a time when the district court no longer had jurisdiction to
exercise its discretion to consider the motion, the district court was correct to deny Zeiner
relief. The district court should be affirmed.

Affirmed in part, reversed in part, and remanded with directions.