text:
    David A. NOYCE, Appellant, v. STATE of Kansas, Appellee.
    No. 114,971
    Supreme Court of Kansas.
    Opinion filed August 23, 2019.
    Michael P. Whalen and Krystle M.S. Dalke, of Law Office of Michael P. Whalen, of Wichita, were on the brief for appellant.
    Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, were on the brief for appellee.
   The opinion of the court was delivered by Johnson, J.:

The State of Kansas petitions this court for review of the Court of Appeals' decision reversing the summary denial of David A. Noyce's untimely K.S.A. 60-1507 motion. The Court of Appeals held Noyce had shown that an extension of the one-year time period to file his motion was necessary to prevent a manifest injustice on two issues. The State's petition for review argues the Court of Appeals erred by applying incorrect legal standards in evaluating manifest injustice, thereby resulting in an erroneous determination that Noyce's motion established the requisite manifest injustice.

Given the unique circumstances of this capital murder case, we reverse the Court of Appeals and affirm the district court's summary denial of Noyce's untimely motion.

FACTUAL AND PROCEDURAL OVERVIEW

In 1998, the State filed a complaint charging Noyce with capital murder, premeditated first-degree murder, and aggravated arson. The State alleged that on September 14, 1998, Noyce set fire to a residence, which resulted in the deaths of his wife, Dalene Noyce, and two-year-old son, C.N. The first-degree murder charge stemmed from C.N.'s death, and the capital murder charge alleged the killing of both Dalene and C.N. as part of the "same act or transaction or two or more acts or transactions connected together or constituting parts of a common scheme or course of conduct."

In February of 1999, Noyce pled guilty as charged and the State agreed not to seek the death penalty against Noyce. With respect to sentencing, the parties agreed to recommend two consecutive life sentences with mandatory minimums of 40 years' imprisonment each (hard 40) for the murders, to be served consecutive to the aggravated arson sentence. The district court accepted the recommended sentences in the parties' plea agreement. Noyce did not appeal.

In November 2013, Noyce filed a pro se motion to correct an illegal sentence under K.S.A. 22-3504, arguing his first-degree murder sentence was illegal because the capital murder and first-degree murder convictions both punished him for killing C.N. In legal parlance, Noyce argued his convictions for killing C.N. were multiplicitous. State v. Noyce , 301 Kan. 408, 409, 343 P.3d 105 (2015) ( Noyce I ). The district court summarily denied Noyce's claim.

Noyce appealed and for the first time also challenged his hard 40 sentences as being unconstitutional under Alleyne v. United States , 570 U.S. 99, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013). This court held that the district court reached the correct result because multiplicity and Alleyne claims cannot be raised through a motion to correct an illegal sentence. Noyce I , 301 Kan. at 410, 343 P.3d 105. We further held that Noyce's 22-3504 motion could not be saved by construing it as a motion under K.S.A. 60-1507 because Noyce's brief expressly stated he was not arguing under K.S.A. 60-1507, and because Noyce had not demonstrated manifest injustice to allow him to bring an untimely 60-1507 motion. 301 Kan. at 410, 343 P.3d 105.

Shortly after this court issued its opinion on Noyce's 22-3504 motion, Noyce filed his 60-1507 motion, which is the subject of this appeal. Noyce alleged numerous instances of ineffective assistance of counsel, which are summarized in the Court of Appeals' opinion. Noyce v. State , No. 114,971, 2017 WL 3112821, at *2 (Kan. App. 2017) (unpublished opinion) ( Noyce II ). At this juncture, two of Noyce's ineffective assistance of counsel claims are before this court.

First, Noyce acknowledged that his claims should have been dealt with on direct appeal but alleged his defense counsel, Ronald Evans, chief attorney of the State of Kansas Death Penalty Defense Unit, and the judge told him he could not appeal a plea bargain. He also attached his plea bargain, which advised him that the appellate court would not review a sentence agreed to in a plea agreement. Second, Noyce argued Evans was ineffective for not informing him of a multiplicity issue with his murder convictions and in failing to file multiplicity motions on his behalf.

Noyce additionally discussed legal and factual developments in 2013, in an apparent attempt to excuse his delayed filing. Legally, he claimed he discovered his "sentence was unconstitutional" after Astorga v. Kansas , 570 U.S. 913, 133 S. Ct. 2877, 186 L. Ed. 2d 902 (2013), was announced. See 570 U.S. at 913, 133 S.Ct. 2877 (remanding hard 50 sentencing case to this court for further consideration in light of Alleyne ). Factually, he claimed he discovered that Evans "was the counsel in State v. Scott [, 286 Kan. 54, 183 P.3d 801 (2008), overruled on other grounds by State v. Dunn , 304 Kan. 773, 375 P.3d 332 (2016),] and in that case, tried before movant's, ... multiplicity motions and KSA 21-3107 motions had been filed." See K.S.A. 21-3107 (multiple prosecutions for the same act; lesser included crimes). Noyce said he learned that Evans had not filed such motions on his behalf when he obtained a copy of the filings from his case.

As to relief, Noyce sought to vacate his convictions with prejudice "due to ineffective assistance of counsel, a manifest injustice" and because he suffered the prejudice of "an unknowing plea bargain into a sentence that violated KSA 21-3107 as well as the Fifth Amendments [sic ] protections against multiplicity." Noyce recognized that his requested relief was unusual but argued his case was unusual in light of collusion among his counsel, the district attorney, and the district court.

When the State did not respond to his motion, Noyce filed a motion for summary judgment. Thereafter, the State responded and the district court summarily denied the motion. The district court found that Noyce did not present manifest injustice to overcome the applicable time bar.

Noyce appealed to the Court of Appeals and argued that the district court violated his due process rights when it failed to appoint counsel to represent him after receiving the State's formal response. Alternatively, Noyce argued he showed manifest injustice warranting review of his petition.

The Court of Appeals held the district court did not violate Noyce's due process rights by failing to appoint counsel for Noyce. Noyce II , 2017 WL 3112821, at *4-5. But the panel held that the district court erred in summarily denying Noyce's motion. In evaluating manifest injustice, the panel rejected the State's claim that the 2016 amendments to K.S.A. 60-1507(f) should apply retroactively to Noyce's motion. Instead, the panel held that Vontress v. State , 299 Kan. 607, 325 P.3d 1114 (2014), superseded by statute as stated in White v. State , 308 Kan. 491, 421 P.3d 718 (2018), applied. Noyce II , 2017 WL 3112821, at *7. After considering the three nonexclusive factors for evaluating manifest injustice under Vontress , the Court of Appeals held Noyce had shown that extension of the one-year time period for filing his motion was necessary to prevent a manifest injustice on two issues: "(1) Did Noyce's attorney provide ineffective assistance of counsel in advising the defendant he could not appeal his convictions and sentences?" and, "(2) Did Noyce's counsel provide ineffective assistance of counsel by failing to advise him that his guilty plea to premeditated murder under the circumstances would result in a multiplicitous conviction for the premeditated murder of [C.N.]?" Noyce II , 2017 WL 3112821, at *11. The panel remanded for an evidentiary hearing with appointed counsel on those two issues. The panel rejected the remainder of Noyce's ineffective assistance of counsel claims. 2017 WL 3112821, at *11.

The State petitioned this court for review. This court has jurisdiction under K.S.A. 20-3018(b), providing for petitions for review of Court of Appeals' decisions.

Noyce did not cross-petition for us to consider his arguments that the Court of Appeals rejected, nor did he respond to the State's petition. Therefore, we will not consider his due process argument or the ineffective assistance of counsel claims that the Court of Appeals rejected. See Supreme Court Rule 8.03(b), (c)(3), (h)(1) (2017 Kan. S. Ct. R. 53).

SUMMARY DENIAL OF THE K.S.A. 60-1507 MOTION

Standard of Review

The district court denied Noyce's motion without conducting a hearing. "When 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 any relief." Wimbley v. State , 292 Kan. 796, 804, 275 P.3d 35 (2011). " ' "[A] movant has the burden to prove his or her K.S.A. 60-1507 motion warrants an evidentiary hearing; the movant must make more than conclusory contentions and must state an evidentiary basis in support of the claims or an evidentiary basis must appear in the record." ' " Holmes v. State , 292 Kan. 271, 274, 252 P.3d 573 (2011).

Analysis

As the Court of Appeals recognized, there is no question that Noyce's motion is untimely. Noyce pled guilty in 1999 and did not appeal his convictions and sentences. Noyce II , 2017 WL 3112821, at *1. The one-year time limit in K.S.A. 60-1507 was added to the statute effective July 1, 2003. L. 2003, ch. 65, § 1. For movants, like Noyce, who had claims preexisting the statutory amendment, the deadline for filing a 60-1507 motion was June 30, 2004. See Pabst v. State , 287 Kan. 1, 22, 192 P.3d 630 (2008) ; Noyce II , 2017 WL 3112821, at *6. Noyce filed his motion on April 13, 2015, nearly 11 years after the statutory deadline. That 60-1507(f) time limit, however, "may be extended by the court only to prevent a manifest injustice." K.S.A. 60-1507(f)(2).

As a preliminary matter, the State argues that in evaluating manifest injustice, the Court of Appeals erred by relying on the Vontress analysis and instead should have retroactively applied the 2016 amendments to K.S.A. 60-1507(f)(2). But after the State filed its petition, this court held that the 2016 legislative changes to 60-1507(f) do not apply retroactively. White , 308 Kan. at 498, 421 P.3d 718. Noyce's motion was filed on April 13, 2015; accordingly, the Court of Appeals correctly relied upon Vontress in evaluating whether Noyce established manifest injustice.

In Vontress , we stated "manifest injustice" in the context of habeas corpus means " 'obviously unfair' " or " 'shocking to the conscience.' " 299 Kan. at 614, 325 P.3d 1114. We established a nonexhaustive list of factors for judges to consider in evaluating whether a movant has shown a manifest injustice, including whether:

"(1) the movant provides persuasive reasons or circumstances that prevented him or her from filing the 60-1507 motion within the 1-year time limitation; (2) the merits of the movant's claim raise substantial issues of law or fact deserving of the district court's consideration; and (3) the movant sets forth a colorable claim of actual innocence, i.e. , factual, not legal, innocence." 299 Kan. at 616, 325 P.3d 1114.

In evaluating these factors, "courts consider all factors under the totality of the circumstances rather than balancing factors against each other, need not give the factors equal weight, and should not consider any single factor dispositive." White , 308 Kan. at 504, 421 P.3d 718. The movant bears the "burden to establish manifest injustice by a preponderance of the evidence." White , 308 Kan. at 496, 421 P.3d 718 (citing Supreme Court Rule 183(g) [2018 Kan. S. Ct. R. 223] ).

On the first factor, the Court of Appeals held Noyce raised a colorable claim to excuse his untimely filing based on his assertion that his counsel told him he could not appeal from a guilty plea. Noyce II , 2017 WL 3112821, at *8.

The Court of Appeals noted it was at a disadvantage in analyzing the first Vontress factor because the district court made no findings regarding defense counsel's advice to Noyce about "whether he could appeal his convictions or sentences, and whether he could make a postconviction attack on those convictions or sentences (and, if so, under what circumstances)." Noyce II , 2017 WL 3112821, at *8. The Court of Appeals also noted that the plea hearing and sentencing transcripts are not in the record on appeal, which "could [have] at least shed some light on what, if anything, the trial judge and defense counsel personally informed Noyce regarding these matters." 2017 WL 3112821, at *8. So the panel remanded for an evidentiary hearing to determine whether Noyce's counsel was ineffective in advising Noyce about his appeal rights. 2017 WL 3112821, at *9, 11.

On petition for review, the State argues that the panel should not have construed the paucity of the record in Noyce's favor, as Noyce had the burden to designate a record. The State's point is well taken. The transcripts of the plea hearing and sentencing may well have shed light on what Noyce was (or was not) told by counsel and the district court about his right to appeal; but it was Noyce's burden to provide that information to the appellate courts. See State v. Reu-El , 306 Kan. 460, 473, 394 P.3d 884 (2017) ("A court considering a motion to withdraw a plea should look at the entire plea process-the written plea agreement, if any, counsel's advice, and the plea colloquy-to see whether, when all aspects are considered, the defendant understands the nature and consequences of a plea."); State v. Sisson , 302 Kan. 123, 128, 351 P.3d 1235 (2015) ("A party asserting that prejudicial error has occurred has the burden of designating a record that affirmatively shows the error.").

The State further argues that even assuming trial counsel told Noyce he could not appeal his plea and sentence, that advice was not deficient under the circumstances. To analyze this argument, we begin with the relevant statutes pertaining to Noyce's right to appeal. K.S.A. 22-3602(a) provides:

"No appeal shall be taken by the defendant from a judgment of conviction before a district judge upon a plea of guilty or nolo contendere , except that jurisdictional or other grounds going to the legality of the proceedings may be raised by the defendant as provided in K.S.A. 60-1507, and amendments thereto."

And K.S.A. 22-3208(4) provides:

"A plea of guilty or a consent to trial upon a complaint, information or indictment shall constitute a waiver of defenses and objections based upon the institution of the prosecution or defects in the complaint, information or indictment other than it fails to show jurisdiction in the court or to charge a crime."

Under these provisions, we have recognized that a defendant generally waives a double jeopardy argument by entering a plea. See Reu-El , 306 Kan. at 474-75, 394 P.3d 884 (noting under K.S.A. 2016 Supp. 22-3602 [a] and 22-3208[4], defendant waives double jeopardy arguments by entering a no contest plea); State v. Edwards , 281 Kan. 1334, 1339-41, 135 P.3d 1251 (2006) (holding guilty plea "waives all nonjurisdictional defects," and "the idea that a court lacks jurisdiction to impose sentences for multiplicitous convictions is contradicted by the rule that a defendant who enters a voluntary plea of guilty waives the right to subsequently assert a double jeopardy attack on his or her sentences"); see also United States v. Broce , 488 U.S. 563, 569-76, 109 S. Ct. 757, 102 L. Ed. 2d 927 (1989) (holding guilty plea generally forecloses double jeopardy claim; setting out exceptions); Thompson v. State , 23 Kan. App. 2d 305, 308, 929 P.2d 803 (1996) ("Absent a claim of ineffectiveness of counsel, [movant's] argument that he did not knowingly and voluntarily waive his double jeopardy rights fails."); State v. Glaze , No. 95,323, 2007 WL 518979, at *2 (Kan. App. 2007) (unpublished opinion) (reasoning movant was not entitled to relief under 60-1507 because guilty plea waived multiplicity claim).

Granted, Broce opined that there were exceptions, to-wit:

"A plea of guilty and the ensuing conviction comprehend all of the factual and legal elements necessary to sustain a binding, final judgment of guilt and a lawful sentence. Accordingly, when the judgment of conviction upon a guilty plea has become final and the offender seeks to reopen the proceeding, the inquiry is ordinarily confined to whether the underlying plea was both counseled and voluntary . If the answer is in the affirmative then the conviction and the plea, as a general rule, foreclose the collateral attack. There are exceptions where on the face of the record the court had no power to enter the conviction or impose the sentence ." ( Emphases added.) 488 U.S. at 569, 109 S.Ct. 757.

Here, Noyce does not convince us that any exceptions are applicable.

The State also argues that appellate courts would have been statutorily prohibited from considering challenges to Noyce's sentence in a direct appeal, because the parties agreed on the sentence and it was approved by the district court. K.S.A. 21-4721(c)(2) provides "the appellate court shall not review ... any sentence resulting from an agreement between the state and the defendant which the sentencing court approves on the record." We have recognized that when K.S.A. 21-4721 applies, it limits an appellate court's jurisdiction " 'to those grounds authorized by the statute or a claim that the sentence is otherwise illegal. ' " State v. Duncan , 291 Kan. 467, 470, 243 P.3d 338 (2010). As noted above, the multiplicity of Noyce's two murder convictions did not render them illegal, as a matter of law, because that defect can be waived.

Nevertheless, we are not concerned with whether Noyce could have raised the issue in a direct appeal. Instead, the focus now is on whether counsel's alleged advice about Noyce's right to appeal, if proven true, is a significant factor in evaluating manifest injustice. See White , 308 Kan. at 508, 421 P.3d 718 ("[W]e agree with the panel that [movant's] reason for the delayed filing, if true, would support concluding he asserted persuasive reasons or circumstances that would be a significant factor in evaluating the totality of the circumstances.").

Under the totality of the circumstances, advising Noyce that the agreed-upon sentence was not appealable does not rise to the level of being obviously unfair or shocking to the conscience. Noyce was facing the death penalty without his plea agreement. Vontress clarified that its list of factors was nonexclusive; accordingly, the fact that Noyce's counsel negotiated an agreement to avoid the death penalty is a significant factor. In essence, defense counsel bought his client's life with the offer to plead guilty to two consecutive hard 40 life sentences. An appeal overturning the plea agreement could bring back the possibility that the State could kill Noyce. Consequently, the argument that Noyce did not appeal his agreed upon sentence because of faulty advice from counsel or inadequate notice from the court is suspect, at best. It is more likely that he did not appeal the mutually agreed upon sentence because he wanted to live.

Indeed, it is telling that Noyce's 60-1507 motion did not ask to withdraw his plea to the first-degree premeditated murder charge and did not ask for a remand to disturb the plea agreement. He asked that all of his convictions be vacated with prejudice. Pointedly, Noyce does not explain how he could have sought that remedy in a direct appeal.

Likewise, the panel's assessment of the multiplicity issue fails to take into consideration the totality of the circumstances. The panel ruminated on whether trial counsel was ineffective for not informing Noyce of a multiplicity problem with his first-degree murder conviction. Noyce II , 2017 WL 3112821, at *9-10. Noyce's claim was that, since the capital defender's office successfully argued the multiplicity issue in Scott , it was unconstitutionally ineffective for that office to fail to raise the issue in his case before Noyce pled to multiplicitous murder charges. That argument is unpersuasive on multiple levels.

First, as the State points out, the multiplicity argument by Scott's trial counsel was unsuccessful; the efficacy of the argument would not be determined until this court handed down the Scott decision some nine years after Noyce pled. Noyce II , 2017 WL 3112821, at *10. Trial counsel should not be labeled unconstitutionally deficient for failing to divine that a losing argument in the trial court would be transformed into a winner years later by an appellate court.

Next, the version of the multiple prosecutions statute applicable to Scott, K.S.A. 21-3107 (Furse 1995), was not applicable in this case. See Scott , 286 Kan. at 68, 183 P.3d 801. Counsel for Scott had based his multiplicity argument on the "necessarily proved" language of K.S.A. 21-3107(2)(d) (Furse 1995), which was deleted from the statute effective July 1, 1998, some two months prior to the double homicide at issue here, which took place in September 1998. L. 1998, ch. 185, § 1. Statutorily, then, Noyce's trial counsel could not have made the precise argument that was made in Scott's trial.

Finally, and most importantly, Scott did not voluntarily enter into a plea agreement to avoid a death sentence. To the contrary, a jury convicted Scott of capital murder and sentenced him to death. Scott , 286 Kan. at 61, 183 P.3d 801. In a jury trial scenario, there is no downside to defense counsel filing motions based on previously unsuccessful legal theories. Not so when counsel is attempting to secure certainty for his or her client through a favorable plea agreement with the prosecutor. Moreover, based on his guilty plea, Noyce admitted that he killed his wife and two-year-old son by setting fire to a residence. See Beauclair v. State , 308 Kan. 284, 296, 419 P.3d 1180 (2018) (reasoning guilty plea admits all of the facts underlying the criminal charge). Consequently, the defense would be expected to have to make a substantial offer to take the death penalty out of consideration.

Nevertheless, the Court of Appeals held that Noyce had raised "a colorable claim of ineffectiveness that implicates the potential reversal of his premeditated murder conviction ." (Emphasis added.)

Noyce II , 2017 WL 3112821, at *10. Apparently, the Court of Appeals did not consider the impact of such a reversal on the plea bargain that had saved Noyce's life. As the United States Supreme Court reasoned in Padilla v. Kentucky , 559 U.S. 356, 372-73, 130 S. Ct. 1473, 176 L. Ed. 2d 284 (2010), "[t]hose who collaterally attack their guilty pleas lose the benefit of the bargain obtained as a result of the plea." Therefore, if Noyce were successful in withdrawing his plea to the premeditated murder charge, he may ultimately receive "a less favorable outcome ..., whereas a collateral challenge to a conviction obtained after a jury trial has no similar downside potential." 559 U.S. at 373, 130 S.Ct. 1473 ; see also State v. Rodriguez , 254 Kan. 768, 775, 869 P.2d 631 (1994) ("If indeed the trial judge misinformed Rodriguez of the consequences of his plea, Rodriguez can have the plea set aside as not voluntarily and intelligently made. This, of course, would expose him to trial on the other five felonies dismissed under his plea bargain."); cf. State v. Ceretti , 871 N.W.2d 88, 97 (Iowa 2015) ("If we were simply to sever Ceretti's sentence for attempted murder, defendants might be motivated to enter plea agreements quietly-even if they have double punishment concerns-and then appeal them to obtain a more lenient sentence.").

There is some precedent, however, for precluding the State from rescinding the remainder of the plea agreement. Compare United States v. Barron , 172 F.3d 1153, 1155, 1157-58 (9th Cir. 1999) (holding district court does not have the authority to set aside entire plea agreement and return the parties to their pre-plea agreement position when district court vacated habeas petitioner's conviction and sentence based on later Supreme Court precedent rendering evidence of conviction insufficient; appropriate remedy was to resentence on remaining counts), with United States v. Lewis , 138 F.3d 840, 842-43, 842 n.3 (10th Cir. 1998) (holding district court has authority to vacate entire plea agreement when a conviction that is part of the plea package is vacated in habeas action based on later Supreme Court precedent rendering evidence of conviction insufficient), and United States v. Sternberg , 5 Fed. Appx. 806, 809 (10th Cir. 2001) (unpublished opinion) ("Despite [movant's] contentions, we are not required to follow the Ninth Circuit's final decision in Barron as it represents nonbinding, nonprecedential authority, which this circuit is not required to follow."). See generally State v. Boley , 279 Kan. 989, 994-98, 113 P.3d 248 (2005) (holding in a direct appeal, upon remand for resentencing pursuant to State v. McAdam , 277 Kan. 136, 83 P.3d 161 [2004], the State was not released from its obligations to abide by plea agreement under the frustration of purpose doctrine). But the choice of whether to take that risk should belong to the person who would be facing the death sentence, not a panel of the Court of Appeals. To reiterate, Noyce did not ask to withdraw his plea or to remand for a trial; he asked to have all of his convictions simply vacated with prejudice.

Perhaps more fundamentally, Noyce's claim that his counsel's performance was deficient in failing to challenge the multiplicity of the two murder charges, even if true, was not enough for him to get relief. He had to show that he was prejudiced by that performance. See State v. Morris , 298 Kan. 1091, 1103-04, 319 P.3d 539 (2014) ("When a defendant seeks to withdraw a plea, he or she must show that, but for counsel's unreasonably deficient performance, the defendant would not have entered a plea but would have insisted on going to trial.").

Even if Noyce's counsel would have successfully asserted a multiplicity claim in the district court, he could have received the exact same sentence to which he agreed. The State could have amended the charging document from charging one first-degree premeditated murder and one capital murder to charging two first-degree premeditated murders, one for each victim. Under then applicable law, Noyce would have been amenable to receiving the two, consecutive hard 40 life sentences to which he agreed. See State v. Brady , 261 Kan. 109, 110-20, 929 P.2d 132 (1996) (holding double jeopardy not violated when defendant, initially charged with two capital murders for murdering two people in one setting, pled guilty to two counts of premeditated first-degree murder and district court sentenced defendant to consecutive hard 40 sentences under K.S.A. 21-4635 [Furse 1995], K.S.A. 21-4636(b), (f) [Furse 1995], and K.S.A. 21-4638 [Furse 1995] ); see also State v. Jamison , 269 Kan. 564, 577, 7 P.3d 1204 (2000) ("It does not violate double jeopardy to apply the same aggravating factor-that the defendant killed more than one person-to both [first-degree murder] convictions in imposing the hard 40 sentence on each count or in running those terms consecutively."). In other words, if Noyce's trial counsel's multiplicity motion had not caused the State to withdraw its plea offer, it would have most certainly caused the State to require the defense to agree to the aforementioned amendment to effect the same agreed-upon sentence.

Consequently, the claim that, if Noyce had known of the multiplicity issue, he would have rejected the plea agreement and insisted on going to jury trial to face the death penalty is simply unpersuasive. Cf. State v. Sanchez-Cazares , 276 Kan. 451, 458, 78 P.3d 55 (2003) ("Given the potential for the death penalty and given the substantial evidence against him ... trial would have contained considerable risk. Under these facts, a reasonable person could have concluded Sanchez-Cazares would not have insisted on going to trial."). In short, there is nothing here in the performance of Noyce's trial counsel that is obviously unfair or that shocks the conscience. Noyce failed to establish manifest injustice.

In sum, we reverse the Court of Appeals' decision remanding Noyce's case for an evidentiary hearing and affirm the district court's summary denial of Noyce's motion.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Kansas, Appellee, v. Samuel CHAVEZ, Appellant.
    No. 115,602
    Supreme Court of Kansas.
    Opinion filed August 23, 2019.
    Randall L. Hodgkinson, of Kansas Appellate Defender Office, argued the cause and was on the briefs for appellant.
    Daniel G. Obermeier, assistant district attorney, argued the cause, and Edward J. Bain, assistant district attorney, Mark A. Dupree Sr., district attorney, and Derek Schmidt, attorney general, were on the briefs for appellee.
   The opinion of the court was delivered by Johnson, J.:

A jury convicted Samuel Chavez of aggravated burglary, stalking, and criminal threat. On direct appeal, the Court of Appeals reversed Chavez' aggravated burglary conviction but affirmed his stalking and criminal threat convictions. Chavez petitioned this court for review and argues that the Court of Appeals erred in: (1) rejecting his argument that the stalking conviction was legally impossible under Kansas statutes; (2) failing to address his claim that he was entitled to an instruction and argument regarding a defense that the victim waived her right to enforce a protection from abuse order; (3) holding that a limiting instruction is not legally appropriate if prior crimes or civil wrongs evidence is admitted to prove an actual element of the charged crime; and (4) refusing to grant him a new trial due to cumulative error. On the issues before this court, we find no reversible error and affirm the Court of Appeals' decision to affirm the stalking and criminal threat convictions.

FACTUAL AND PROCEDURAL OVERVIEW

The State charged Chavez with multiple crimes stemming from events that allegedly took place between Chavez and his estranged wife, Sandra Jaimes-Martinez (hereinafter Jaimes), on August 31, 2014 and September 1, 2014. The State alleged that on August 31, Chavez committed aggravated burglary, aggravated assault, stalking, domestic battery, and criminal damage to property; and that on September 1, Chavez committed aggravated burglary, stalking, and criminal threat. Chavez' case proceeded to a jury trial on all charges, but Chavez was only convicted of the crimes that the State alleged occurred on September 1, 2014.

At Chavez' jury trial, Jaimes testified that she and Chavez lived together at a particular residence from 2009 to March 2014, when their relationship ended and Chavez moved out. The couple had a child together.

In July 2014, Jaimes obtained a "Final Order of Protection from Abuse" (PFA) listing Jaimes as the plaintiff and Chavez as the defendant. The district judge initialed the order indicating that "[t]he matter was heard and submitted to the court which finds that Plaintiff has proved the allegations of abuse by the preponderance of the evidence as required by K.S.A. 60-3107." The PFA granted Jaimes exclusive possession of the particular residence. The PFA further provided "[t]he defendant shall not contact the protected person(s), either directly or indirectly, except as authorized by the court in paragraph 8(b) of this order." In paragraph 8(b), the district court granted Jaimes sole temporary legal custody of the couple's child. The PFA was effective until July 16, 2015, and stated "ONLY THE COURT CAN CHANGE THIS ORDER."

Jaimes and Chavez related different accounts of their relationship following Chavez' receipt of the PFA. According to Jaimes, between July and September 2014, Chavez was not allowed at her home. But Chavez would frequently text and call her. Jaimes said she was scared of Chavez, but she answered some of his calls because he had previously left her voicemails threatening to come home if she did not answer.

On August 31, 2014, Jaimes said Chavez arrived uninvited at her house and beat her, threw a beer bottle at her, pushed her onto the sofa, held her down, retrieved some children's scissors, and threatened to kill her. Jaimes eventually got away from Chavez and called the police. By that time, Chavez was leaving. As he left, he knocked over a television sitting on the porch.

Chavez came back uninvited the next day, knocked strongly on the door, and told Jaimes to open it or he would kill her. Chavez eventually forced the door open but left because Jaimes was on the phone with the police.

According to Chavez, he knew about the PFA and therefore knew he should not have been communicating with Jaimes. But despite the PFA and troubles in their relationship, he and Jaimes were in regular contact and planned to get back together. Chavez presented text messages as evidence of consensual communication.

Chavez denied Jaimes' version of events leading to the criminal charges against him. With respect to September 1, Chavez said that during a phone conversation, Jaimes agreed to lend Chavez some money and told Chavez to come to her house to get it. When he arrived, he knocked and Jaimes opened the door. Jaimes said she would give him the money if she could have his cell phone to erase text messages and phone calls she made to him. After he refused, Jaimes tried to close the door. Chavez pushed the door with his arm to keep it from closing, which broke the chain on the door. Jaimes then called the police and Chavez left.

The district court granted Chavez' request for a directed verdict on the August 31 criminal damage to property charge, and the jury acquitted Chavez on the remaining August 31 charges. For his convictions on the September 1 charges, the district court sentenced Chavez to 41 months for aggravated burglary, 6 months for stalking, and 6 months for criminal threat, to run concurrent to each other.

The Court of Appeals reversed Chavez' aggravated burglary conviction. State v. Chavez , No. 115,602, 2017 WL 3321375, at *4-6 (Kan. App. 2017) (unpublished opinion). The panel affirmed the remainder of Chavez' convictions, rejecting his argument that his stalking conviction required the State to prove legally impossible mental states. 2017 WL 3321375, at *7-8. The panel further held that Chavez was not entitled to a K.S.A. 60-455 limiting instruction regarding the PFA because existence of the PFA was an element of the stalking charge. 2017 WL 3321375, at *8-9. The panel did not address Chavez' claim that he was entitled to an instruction on implied waiver of a PFA before it rejected Chavez' cumulative error argument. 2017 WL 3321375, at *9.

Chavez petitioned this court for review of the rulings adverse to him. The State did not cross-petition on the Court of Appeals' reversal of the aggravated burglary conviction.

STALKING UNDER K.S.A. 2018 SUPP. 21-5427(a)(3)

Preservation

Chavez was charged with stalking under K.S.A. 2018 Supp. 21-5427(a)(3). For the first time on appeal, Chavez asserted that K.S.A. 2018 Supp. 21-5427 is internally inconsistent because subsection (a)(3) requires proof of reckless conduct while subsection (c) creates a presumption the defendant's conduct was knowing. Consequently, he contended that when the State charges and presents evidence that a person committed stalking after being served with a protective order, it has the statutory burden to prove the defendant acted recklessly at the same time he or she is presumed to be acting knowingly, which he labels as a legal impossibility.

Chavez ultimately argued to the Court of Appeals that his stalking conviction had to be reversed for insufficient evidence. Specifically, he pointed out that the State did not-and could not-present sufficient evidence that Chavez simultaneously acted recklessly and acted knowingly. But the panel reframed the issue as being a challenge to the charging document. 2017 WL 3321375, at *2-3. We decline to follow that path; we will address Chavez' sufficiency of the evidence issue, which is not constrained by a preservation requirement. See State v. Farmer , 285 Kan. 541, 545, 175 P.3d 221 (2008) ("There is no requirement that a criminal defendant challenge the sufficiency of the evidence before the trial court in order to preserve it for appeal.").

Standard of Review

Chavez' sufficiency of the evidence challenge is predicated on interpretation of the stalking and culpable mental states statutes. Statutory interpretation is a question of law over which this court has unlimited review. State v. Ward , 307 Kan. 245, 251, 408 P.3d 954 (2018). Once we have interpreted these statutes, the remaining question is whether the State presented sufficient evidence to support Chavez' stalking conviction under our interpretation. See 307 Kan. at 251, 259-60, 408 P.3d 954. " 'When the sufficiency of the evidence is challenged in a criminal case, this court reviews the evidence in a light most favorable to the State to determine whether a rational fact-finder could have found the defendant guilty beyond a reasonable doubt.' " State v. Rosa , 304 Kan. 429, 432-33, 371 P.3d 915 (2016).

Analysis

Chavez was charged with stalking under K.S.A. 2018 Supp. 21-5427(a)(3). While subsection (a)(3) is the focus of Chavez' argument, it is helpful to review all of subsection (a), along with subsection (c), to understand the culpable mental states at issue in the stalking statute:

"(a) Stalking is:
(1) Recklessly engaging in a course of conduct targeted at a specific person which would cause a reasonable person in the circumstances of the targeted person to fear for such person's safety, or the safety of a member of such person's immediate family and the targeted person is actually placed in such fear;
(2) engaging in a course of conduct targeted at a specific person with knowledge that the course of conduct will place the targeted person in fear for such person's safety or the safety of a member of such person's immediate family; or
(3) after being served with, or otherwise provided notice of, any protective order included in K.S.A. 21-3843, prior to its repeal or K.S.A. 2018 Supp. 21-5924, and amendments thereto, that prohibits contact with a targeted person, recklessly engaging in at least one act listed in subsection (f)(1) that violates the provisions of the order and would cause a reasonable person to fear for such person's safety, or the safety of a member of such person's immediate family and the targeted person is actually placed in such fear.
....
"(c) For the purposes of this section, a person served with a protective order as defined by K.S.A. 21-3843, prior to its repeal or K.S.A. 2018 Supp. 21-5924, and amendments thereto, or a person who engaged in acts which would constitute stalking, after having been advised by a law enforcement officer, that such person's actions were in violation of this section, shall be presumed to have acted knowingly as to any like future act targeted at the specific person or persons named in the order or as advised by the officer." (Emphases added.) K.S.A. 2018 Supp. 21-5427.

Subsection (f)(1) goes on to define "course of conduct," in relevant part as "two or more acts over a period of time, however short, which evidence a continuity of purpose." K.S.A. 2018 Supp. 21-5427(f)(1). Subsection (f)(1) also provides a nonexclusive list of such acts. Relevant here, the State relied upon an act set out in subsection (f)(1)(B), "... confronting the targeted person ...." K.S.A. 2018 Supp. 21-5427(f)(1)(B).

First time offenders under subsections (a)(1) and (a)(2), whether the stalking conduct was reckless or knowing, are charged with a Class A person misdemeanor. K.S.A. 2018 Supp. 21-5427(b)(1)-(2). But even first time offenders of subsection (a)(3) are charged with a felony. K.S.A. 2018 Supp. 21-5427(b)(3).

Important to the issue at hand, subsection (c) provides that a person served with a protective order shall be presumed to have acted knowingly as to any like future acts targeted at the specific person or persons named in the order. In addition to proving a violation of a protective order, subsection (a)(3) requires the State to prove that the prohibited contact would cause a reasonable person to fear for such person's safety or immediate family member's safety and that the targeted person is actually placed in such fear.

Chavez contends that subsection (a)(3) applies to a person who, after having been served with a PFA, commits one or more reckless acts. Yet, K.S.A. 2018 Supp. 21-5427(c) clearly states that a person committing a stalking act after having been served with a PFA is acting knowingly . He then points to our opinion in State v. O'Rear , 293 Kan. 892, 270 P.3d 1127 (2012), as establishing that reckless conduct and knowing conduct are mutually exclusive, so that it is legally impossible for the State to prove a presumptively knowing act was done recklessly. But Chavez fails to acknowledge that the alleged crime at issue in O'Rear took place before the 2011 recodification of the Kansas criminal code, which included a new culpable mental state paradigm that undermines Chavez' legal impossibility argument.

O'Rear was convicted of reckless aggravated battery. At the time O'Rear shot the victim, K.S.A. 21-3201 separated criminal intent into two categories: "intentional" conduct and "reckless" conduct. The term "knowing" was included in the definition of "intentional" conduct. K.S.A. 21-3201(b) ("Intentional conduct is conduct that is purposeful and willful and not accidental. As used in this code, the terms 'knowing,' 'willful,' 'purposeful,' and 'on purpose' are included within the term 'intentional.' "). Applying K.S.A. 21-3201, this court held insufficient evidence supported O'Rear's conviction because O'Rear intentionally shot his victim; a mental state incompatible with recklessness:

"The mental state of recklessness is incompatible with a mental state where a person acts with knowledge, willfulness, or purposefulness, meaning a person cannot act both intentionally and recklessly with respect to the same act. State v. Shannon, 258 Kan. 425, 429, 905 P.2d 649 (1995). Rather, an act is either intended or not intended; it cannot simultaneously be both. Consequently, guilt of one necessarily negates guilt of the other." 293 Kan. at 903, 270 P.3d 1127.

After O'Rear committed the acts in question, the Legislature repealed K.S.A. 21-3201, and replaced it with K.S.A. 2018 Supp. 21-5202, which created three categories of criminal intent. K.S.A. 2018 Supp. 21-5202(b) delineates the "[c]ulpable mental states ... classified according to relative degrees, from highest to lowest, as follows: (1) Intentionally; (2) knowingly; [and] (3) recklessly." And, unlike its predecessor K.S.A. 21-3201, K.S.A. 2018 Supp. 21-5202 explicitly provides:

"(c) Proof of a higher degree of culpability than that charged constitutes proof of the culpability charged. If recklessness suffices to establish an element, that element also is established if a person acts knowingly or intentionally. If acting knowingly suffices to establish an element, that element also is established if a person acts intentionally."

K.S.A. 2018 Supp. 21-5202(c) undermines Chavez' legal impossibility argument. Granted, O'Rear 's logic is still valid; it is factually impossible for a person not to intend to commit an act while simultaneously intending to commit the same act. That logic would create the statutory inconsistency that Chavez contends exists in the stalking statute, i.e., a presumption of knowing conduct under K.S.A. 2018 Supp. 21-5427(c) would negate the recklessness element of K.S.A. 2018 Supp. 21-5427(a)(3). But the Legislature has made it legally possible for a person to be guilty of a reckless act by knowingly or intentionally committing that same act. K.S.A. 2018 Supp. 21-5202(c) ("If recklessness suffices to establish an element, that element also is established if a person acts knowingly or intentionally."); see also State v. Louis , 305 Kan. 453, 461-62, 384 P.3d 1 (2016) (noting that under K.S.A. 2018 Supp. 21-5202, "[c]onduct designed to cause death-and, for that matter, conduct the actor knows is reasonably certain to cause death-is now sufficient to establish the defendant acted recklessly"); State v. Green , 55 Kan. App. 2d 595, 614, 419 P.3d 83 (2018) ("According to K.S.A. 2017 Supp. 21-5202 [a]-[c], the State here satisfied the knowingly element in the knowing aggravated battery charges by proving the defendant intentionally committed the aggravated batteries."); 1 LaFave, Substantive Criminal Law, § 5.4(f) n.47 (3d ed. 2018) ("It is thus quite logical to provide, as does Model Penal Code § 2.02 [5], that when recklessness suffices to establish an element of a crime, 'such element is also established if a person acts purposely or knowingly.' ").

Consequently, the State had four ways by which it could prove the culpable mental state element of the charged crime. The State could prove that, after Chavez was served with the PFA order: (1) he recklessly confronted Jaimes; (2) he knowingly confronted Jaimes; (3) he intentionally confronted Jaimes; or (4) he met the conditions to invoke the presumption of knowing conduct under K.S.A. 2018 Supp. 21-5427(c).

Given K.S.A. 2018 Supp. 21-5202(c)'s conflation of culpable mental states, one could make a case for the State having hit for the cycle on that element. But clearly the State established that Chavez acted knowingly. Chavez conceded knowing about the PFA order, yet he went to Jaimes' residence two days in a row to effect contact with the targeted person. Even Chavez' self-serving testimony describing the September 1 events had him breaking the chain on Jaimes' door in order to prevent her from discontinuing an unwanted contact. Certainly, viewing the evidence in a light most favorable to the State, a rational fact-finder could have found beyond a reasonable doubt that Chavez knowingly confronted Jaimes after being served with a court order not to do so. As we have discussed above, that knowing conduct satisfies the reckless element of the charged crime.

Chavez makes no credible argument about the sufficiency of the evidence on the other elements of the crime under K.S.A. 2018 Supp. 21-5427(a)(3). Any reasonable person would have feared for such person's safety when Chavez demanded entry into the house and forced open the door by breaking the security chain. And it was rational for the jury to conclude that Jaimes was actually placed in such fear when she responded by calling the police. Again, viewing the evidence in a light most favorable to the State, a rational fact-finder could have found all of the elements necessary to determine that Chavez was guilty of stalking, as charged.

IMPLIED WAIVER OF PROTECTION FROM ABUSE ORDER

In the Court of Appeals, Chavez argued that the district court should have instructed the jury regarding implied waiver of the right to enforce the PFA and allowed defense counsel to argue that Jaimes had waived her right to enforce that civil order. He concedes that he did not request an implied waiver instruction in the district court. Chavez' petition for review points out that the Court of Appeals did not address this issue and did not explain why it declined to do so.

Standard of Review

We have a standard paradigm for reviewing jury instruction issues:

"[T]he progression of analysis and corresponding standards of review on appeal are: (1) First, the appellate court should consider the reviewability of the issue from both jurisdiction and preservation viewpoints, exercising an unlimited standard of review; (2) next, the court should use an unlimited review to determine whether the instruction was legally appropriate; (3) then, the court should determine whether there was sufficient evidence, viewed in the light most favorable to the defendant or the requesting party, that would have supported the instruction; and (4) finally, if the district court erred, the appellate court must determine whether the error was harmless, utilizing the test and degree of certainty set forth in Ward . " State v. Plummer , 295 Kan. 156, 163, 283 P.3d 202 (2012).

Because Chavez failed to request the implied waiver instruction he now contends should have been given, the harmless error analysis is not governed by Ward . See K.S.A. 2018 Supp. 22-3414(3) (without a timely objection only clearly erroneous instructions may be assigned as error on appeal). An error in omitting an unrequested instruction is not reversible unless the appellate court is firmly convinced that the omission adversely affected the jury's verdict. State v. Ingham , 308 Kan. 1466, 1477, 430 P.3d 931 (2018). "Reversibility is subject to unlimited review and is based on the entire record. It is the defendant's burden to establish clear error under K.S.A. 22-3414(3)." State v. Betancourt , 299 Kan. 131, 135, 322 P.3d 353 (2014).

Analysis

Chavez argues that the district court clearly erred in failing to instruct the jury that " 'waiver is an intentional relinquishment of a known right and intention may be inferred from conduct.' " Chavez must first establish that this instruction was legally appropriate for this stalking prosecution.

Chavez argues that protected persons can, through conduct, waive their statutory right to enforce protection from abuse orders. But Chavez cites no authority-either controlling or persuasive-to support the notion that a protected person can waive enforcement of a district court's PFA order, much less to support the contention that a stalker is entitled to a jury instruction on an implied waiver of such an order. Moreover, Chavez acknowledges the State's reliance on State v. Branson , 38 Kan. App. 2d 484, 167 P.3d 370 (2007), which undermines his theory of implied waiver. His response is to assert that Branson was wrongly decided.

Branson held that consent is not a defense to the crime of violating a protective order.

38 Kan. App. 2d 484, Syl. ¶ 3, 167 P.3d 370. The Court of Appeals first noted that the applicable statute at that time did not mention consent. 38 Kan. App. 2d at 486, 167 P.3d 370 ; see also K.S.A. 2018 Supp. 21-5924 (same). Then, for multiple reasons, the panel refused to judicially create an affirmative defense to violating a protective order based on the protected person's consent to the violation.

The panel began by adopting the district court's suggestion that a consent defense derogates the issuing court's authority. 38 Kan. App. 2d at 487, 167 P.3d 370. Such a defense would allow a protected person to unilaterally modify or extinguish a court order without the consent-or even knowledge-of the issuing court.

In that vein, the Branson panel also reasoned that the defendant's actions implicated the State, as well as the victim. The prosecution of crimes is effected in the name of the State because criminal acts in general occur " 'against the peace and dignity of the State of Kansas.' " 38 Kan. App. 2d at 487, 167 P.3d 370. Indeed, the statute defining the crime of violating a protective order is codified in Article 38 of the Kansas Statutes Annotated, which is titled "Crimes Affecting Government Functions." 38 Kan. App. 2d at 487, 167 P.3d 370 ; see also K.S.A. 2018 Supp. 21-5924 (continuing to house violation of a protective order in article titled "Crimes Affecting Government Functions").

From a legislative intent perspective, the Branson panel opined that the Legislature's decision to criminalize a violation of a PFA order reflects a concern for the public peace, as "[p]ersons granted a PFA order have already proven 'the allegation of abuse by a preponderance of the evidence' on a prior occasion[,] K.S.A. 60-3106(a)." 38 Kan. App. 2d at 488, 167 P.3d 370. And nothing in the text of the statute suggested "legislative intent to excuse an abuser just because the victim later consents to contact in violation of the PFA order." 38 Kan. App. 2d at 488, 167 P.3d 370. So, the panel reasoned, "[t]he legislature saw fit to provide for court supervision over the parties, [which] continues until the PFA order is modified or dismissed." 38 Kan. App. 2d at 488, 167 P.3d 370.

Finally, the panel pointed to Branson's failure to cite to any authority that would support a holding that consent is a defense to a violation of a Kansas court's protective order. Moreover, the panel noted that its research had failed to disclose the existence of any such authority. 38 Kan. App. 2d at 488-89, 167 P.3d 370.

Chavez criticizes Branson for being too formalistic about the authority of the court that issues a PFA order. He asserts the court's authority must be subject to equitable principles and such doctrines make it clear that a protected person can waive enforcement of a known right through conduct. The cases Chavez relies upon to support his argument, however, are simply inapposite. One, First Nat'l Bank of Omaha v. Centennial Park, 48 Kan. App. 2d 714, 303 P.3d 705 (2013), is a mortgage foreclosure case, which is an equitable action dealing with property. Another, State v. Hargrove , 48 Kan. App. 2d 522, 293 P.3d 787 (2013), discusses how the invited error doctrine should be applied by appellate courts. A third, In re Interest of J.M.D. , 233 Neb. 540, 446 N.W.2d 233 (1989), is an out-of-state termination of parental rights.

In contrast, out-of-state authority addressing issues akin to that presented here does not align with Chavez' position. For example, in State v. Dejarlais , 136 Wash. 2d 939, 969 P.2d 90 (1998), the Washington Supreme Court rejected the defendant's argument that the district court erred in failing to give defense counsel's proposed instruction, "which would have told the jury a person is not guilty of violating a protection order if the person protected by that order expressly invited or solicited the defendant's presence." 136 Wash. 2d at 940, 969 P.2d 90. The court held "consent is not a defense to the charge of violating a domestic violence order for protection." 136 Wash. 2d at 942, 969 P.2d 90. Therefore, the defendant was not entitled to an instruction which inaccurately represented the law. 136 Wash. 2d at 942, 946, 969 P.2d 90. In reaching these conclusions, the court reasoned that the violation of a protection order statute did not address consent; the Legislature did not affirmatively establish consent as a defense elsewhere in the statute; the statute reflected the Legislature's belief that there is a public interest in preventing domestic violence; and the statutory act required notice and a hearing to modify a protection order, whereas consent would result in de facto modification. 136 Wash. 2d at 943-45, 969 P.2d 90 ; see also In re Shirley , 28 A.3d 506, 513 (D.C. 2011) (holding "consent of the petitioner does not bar a conviction of criminal contempt for violation of a [civil protection order]"); People v. Van Guilder , 29 A.D.3d 1226, 1228, 815 N.Y.S.2d 337 (2006) (holding protected person's "express invitation to defendant to resume cohabitation-in violation of the orders of protection-provides no defense" to criminal contempt convictions for violating protection orders); Hotsenpiller v. Morris , No. 16CA1337, --- P.3d ----, ----, 2017 WL 2981215, at *11 (Colo. App. 2017) (unpublished opinion) (holding consent is not an affirmative defense to the charge of violation of a civil protection order; while a defendant could argue that protected person's assent shows that the prosecution did not prove all the elements of a crime, such a defense is a traverse defense and "the defendant is not entitled to a consent defense instruction").

Legislatively, we note that K.S.A. 60-3101(b) instructs that the Protection from Abuse Act "shall be liberally construed to promote the protection of victims of domestic violence from bodily injury or threats of bodily injury and to facilitate access to judicial protection for the victims, whether represented by counsel or proceeding pro se. " The protection of domestic violence victims is diluted, not promoted, by allowing an abuser to avoid prosecution for violating the PFA order by claiming to have perceived that the victim's conduct manifested a consent to the violation.

Moreover, K.S.A. 2018 Supp. 60-3107(f) specifically provides that "[t ]he court may amend its order or agreement at any time upon motion filed by either party." (Emphasis added.) That explicit directive is contrary to the suggestion that a party can unilaterally amend the order without court involvement.

Perhaps the disconnect in Chavez' implied waiver argument is the suggestion that a court's protective order is intended to invest the protected person with a statutory right that is personally exercised at the protected person's discretion, rather than being a court order that restrains the defendant's actions as a matter of law. The protected person makes the initial decision to invoke the power of the law by initiating the PFA process. But if the ensuing PFA order is violated, the victim does not exercise any personal right. Rather, the State enforces the court-ordered restraints through law enforcement officers, prosecutors, and ultimately the judicial system.

In short, the protected person under a PFA order does not have the authority to unilaterally modify the court order by waiving its restraints or consenting to its violation. Consequently, in a prosecution under K.S.A. 2018 Supp. 21-5427(a)(3), the defendant is not entitled to a jury instruction on the principles of implied waiver of a PFA. Therefore, Chavez' implied waiver jury instruction was not legally appropriate and its omission was not error, much less clear error.

LIMITING INSTRUCTION

Chavez next argues the district court erred in failing to give the jury a K.S.A. 2018 Supp. 60-455 limiting instruction concerning the PFA.

Standard of Review

Chavez concedes he did not request the instruction that he now argues the district court erred in failing to provide; therefore, as in the previous issue, he must prove that failure to provide a limiting instruction was clearly erroneous. See also State v. Breeden , 297 Kan. 567, 582, 304 P.3d 660 (2013) (failure to object to the admission of K.S.A. 2012 Supp. 60-455 [b] evidence does not waive the right to raise on appeal the issue of whether the failure to give a limiting instruction was clearly erroneous).

Analysis

Under K.S.A. 2018 Supp. 60-455, evidence of a prior crime or civil wrong is generally inadmissible solely to show propensity in criminal cases not involving a sex crime. When such evidence is admitted for other purposes, a limiting instruction is required. See State v. Sims , 308 Kan. 1488, 1505, 431 P.3d 288 (2018), petition for cert. filed April 29, 2019.

Chavez concedes that the PFA was admissible because the State was required to prove the existence of a valid protective order in order to convict Chavez of stalking. But Chavez argues it is equally apparent that a limiting instruction was appropriate because the evidence constituted evidence of prior crimes or civil wrongs under K.S.A. 2018 Supp. 60-455.

The Court of Appeals disagreed, siding with the State's argument that Chavez was not entitled to a limiting instruction because the existence of the PFA was an element of Chavez' crime of stalking. Chavez , 2017 WL 3321375, at *9. The panel relied on Charles , where this court held " ' K.S.A. 60-455 does not prohibit the admission of evidence regarding other crimes and civil wrongs if the evidence relates to acts committed as part of the events surrounding the crimes or civil wrongs at issue in the trial.' " State v. Charles , 304 Kan. 158, 175, 372 P.3d 1109 (2016), abrogated on other grounds by State v. Huey , 306 Kan. 1005, 399 P.3d 211 (2017) ; see also State v. Butler , 307 Kan. 831, 861-62, 416 P.3d 116 (2018) (rejecting request for a limiting instruction for acts deemed to be part of the charged crime).

Chavez argues that the prior crimes/civil wrongs evidence in this case did not involve acts that were closely related to the charged crimes. Instead, he argues the prior acts at issue in the PFA occurred on another specified occasion and are entirely unrelated to the charged crimes, except for how they could prove an element of stalking. Chavez therefore argues that a limiting instruction was required to ensure that the jury did not use the prior acts evidence for an improper purpose.

Recently, in Sims , we considered a similar circumstance. Sims complained that the district court failed to sua sponte provide a limiting instruction on the evidence contained in the stipulation to a prior felony conviction Sims gave to satisfy an element of the charged crime. We recognized that caselaw finding no requirement for a limiting instruction for prior acts deemed to be part of the charged crime predated our decision in State v. Gunby , 282 Kan. 39, 49, 144 P.3d 647 (2006). Gunby held that the " 'lines of cases allowing admission of [evidence of other crimes and civil wrongs] independent of K.S.A. 60-455 are contrary to long-held common law and the text of the statute itself.' " Sims , 308 Kan. at 1506, 431 P.3d 288 (quoting Gunby , 282 Kan. at 49, 144 P.3d 647 ). Sims assumed without deciding that Gunby would require a limiting instruction when a defendant stipulates to a prior crime even though the stipulation was proof of an element in the current prosecution. But Sims declined to reverse because the defense had not established clear error.

Similar to our approach in Sims , we will assume that the PFA in this case falls within the ambit of the K.S.A. 2018 Supp. 60-455 requirement for a limiting instruction. Nevertheless, Chavez has not established that the absence of a limiting instruction would have been a game changer in this case, i.e., was clearly erroneous.

Chavez points out that the PFA states "Plaintiff has proved the allegations of abuse by the preponderance of the evidence." But the PFA did not detail the allegations of abuse, and there was scant trial testimony regarding the specific abusive acts that supported the PFA. In fact, the prosecutor directed Jaimes not to discuss why she sought the PFA, and when Jaimes testified that she obtained the PFA "because [Chavez] went to the house one time and he tried to get in from the window," the prosecutor again directed Jaimes not to discuss the details of the PFA. The specific events leading Jaimes to obtain the order were not discussed further, albeit Jaimes did testify generally without objection that Chavez was "always violent" and threatened to come to her house if she did not answer her phone.

Under the totality of the circumstances, the impact of the PFA and the testimony regarding the events leading to its issuance were de minimus in light of the evidence presented to establish the charged crimes.

The jury's split decision indicates that it carefully considered the evidence presented on the charged crimes without being unduly influenced by the prior incidents upon which the PFA was issued. In sum, Chavez has failed to carry his burden to firmly convince us that the giving of a limiting instruction with respect to the PFA would have affected the jury's verdict.

CUMULATIVE ERROR

Finally, Chavez argues cumulative error denied him a fair trial. " 'Cumulative trial errors, when considered collectively, may require reversal of the defendant's conviction when the totality of circumstances substantially prejudiced the defendant and denied the defendant a fair trial.' " State v. McLinn , 307 Kan. 307, 334, 409 P.3d 1 (2018). "By necessity, if this court must apply a totality of the circumstances test, we must review the entire record and engage in an unlimited review." State v. Cruz , 297 Kan. 1048, 1074, 307 P.3d 199 (2013).

The Court of Appeals rejected Chavez' cumulative error challenge, reasoning Chavez had only established one error-that the district court lacked subject matter jurisdiction over Chavez' aggravated burglary conviction because Chavez was charged with acts that could have never resulted in the commission of a crime under Kansas law. Chavez , 2017 WL 3321375, at *6, 9. Because the State did not cross-petition, we assume this error stands. But on review we have assumed without deciding that it was error for the district court to fail to give a limiting instruction on K.S.A. 2018 Supp. 60-455 evidence.

The error found by the Court of Appeals led to a reversal of Chavez' aggravated burglary conviction. Chavez does not explain how that corrected error "transcends the effect of ... individual error[ ]" and taints the other convictions. Cruz , 297 Kan. at 1074, 307 P.3d 199. Nevertheless, combining that error with the assumed K.S.A. 2018 Supp. 60-455 limiting instruction error does not create the substantial prejudice that would deny Chavez his right to a fair trial. Chavez has failed to establish reversible cumulative error.

CONCLUSION

The portion of the Court of Appeals' decision reversing Chavez' aggravated burglary conviction stands, as this issue is not before our court. The portion of the Court of Appeals' decision affirming Chavez' convictions for stalking and criminal threat is affirmed.

Affirmed.


text:
    Kedrin D. LITTLEJOHN, Appellant, v. STATE of Kansas, Appellee.
    No. 115,904
    Supreme Court of Kansas.
    Opinion filed August 23, 2019.
    Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, argued the cause, and Krystle M.S. Dalke, of the same firm, was with him on the brief for appellant.
    Boyd K. Isherwood, chief assistant district attorney, argued the cause, and Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, were with him on the briefs for appellee.
   The opinion of the court was delivered by Johnson, J.:

The State petitions this court for review of the Court of Appeals' decision reversing the district court's summary denial of Kedrin D. Littlejohn's K.S.A. 60-1507 motion and remanding the case to the district court for an evidentiary hearing on the issue of whether Littlejohn's trial counsel was ineffective for failing to pursue a defense of mental defect and to request jury instructions regarding the same defense. Littlejohn v. State , No. 115,904, 2017 WL 2833312 (Kan. App. 2017) (unpublished opinion). The State contends that the panel applied an incorrect standard to determine whether the district court should have considered a second or successive K.S.A. 60-1507 motion. We agree and remand to the Court of Appeals to apply the correct standard.

FACTUAL AND PROCEDURAL OVERVIEW

A more complete recitation of the facts underlying Littlejohn's crimes is set forth in our opinion from the direct appeal, State v. Littlejohn , 298 Kan. 632, 316 P.3d 136 (2014). During a May 2008 botched robbery by Littlejohn and Shannon Bogguess, the intended victim was shot, kidnapped, and then run over and killed by a vehicle driven by Bogguess. Littlejohn was arrested; police matched the blood at the scene with blood on Littlejohn's shoes; and Littlejohn eventually confessed to participating in the crimes. 298 Kan. at 634-38, 316 P.3d 136. See also State v. Bogguess , 293 Kan. 743, 744-45, 268 P.3d 481 (2012).

Before trial, Littlejohn's counsel filed a motion to determine competency, as well as a motion to suppress Littlejohn's statements to police on the grounds that Littlejohn's Miranda waiver was involuntary or coerced. Littlejohn had several attorneys during the pretrial district court proceedings, and the record on appeal is not always clear as to which attorney filed which motion. Quentin Pittman represented Littlejohn during the jury trial.

After a hearing on December 4, 2009, the district court found that Littlejohn could understand the charges and assist in his defense, and, therefore, he was competent to stand trial. The court relied upon a report produced by Comcare (Comcare report). That report, while finding Littlejohn competent to stand trial, noted that "it may be helpful to have IQ testing completed on Mr. Littlejohn."

The Comcare report referred to a previous IQ test that had been administered by the Wichita Child Guidance Center in 2006, when Littlejohn was 16, and that had revealed Littlejohn to be moderately mentally retarded. That 2006 report is included in the record on appeal as an attachment to Littlejohn's 60-1507 motion. It includes a number of different scores on various types of tests and designates Littlejohn's full scale IQ as 49, which is less than the 0.1 percentile and considered to be in the moderate mental retardation range.

The 2006 report noted a concern that another report from 1997, when Littlejohn was 7 years old, indicated that Littlejohn's IQ levels were normal at that point, with a full scale IQ of 100. The 2006 report questioned whether this was due to an intervening decline in mental abilities or whether the 1997 testing was flawed. The 1997 report is not in the record on appeal. Comcare's suggestion of an updated IQ test was premised on the discrepancy between the 1997 and 2006 test results.

The district court again discussed Littlejohn's mental capacity at a suppression hearing on the eve of the jury trial on October 8, 2010. Dr. Mitchell Flesher, a psychologist, testified as an expert for the defense in the context of the voluntariness of Littlejohn's statements to the police. Based upon an in-jail evaluation of Littlejohn in September 2009, Dr. Flesher said Littlejohn read at a third grade level, spelled at a fourth grade level, and displayed fourth grade level math skills. All of these scores were in the first or second percentile, meaning that Littlejohn's scores would have been the lowest 1 or 2 out of every 100 people. Dr. Flesher conducted other tests and evaluations with similar low results. He scored Littlejohn's verbal IQ at 70 and his full scale IQ at 71. Dr. Flesher said that although Littlejohn's full scale score was technically above the threshold IQ of 70 to be considered mentally retarded, Dr. Flesher diagnosed Littlejohn as mentally retarded and provided his reasons for doing so.

Littlejohn's trial counsel did not mount a mental defect defense and did not request any jury instructions relative to his mental retardation. The defense focused on inconsistencies in the evidence and tried to portray Littlejohn as a victim of, and not a participant in, the crimes. Littlejohn , 2017 WL 2833312, at *8. The jury convicted Littlejohn of felony murder, aggravated robbery, aggravated kidnapping, and aggravated assault. His convictions were affirmed on direct appeal, and the mandate issued February 10, 2014. Littlejohn , 298 Kan. at 660, 316 P.3d 136.

Littlejohn filed his first 60-1507 motion in June 2014, which was summarily denied "because the claims were conclusory." Littlejohn filed an untimely appeal of that denial in October 2014 but later voluntarily withdrew it. Neither the first 60-1507 motion nor any of the court orders associated with it are included in the record on appeal. But both parties refer to the existence of the first 60-1507 motion, and the facts surrounding it are not in dispute.

Littlejohn filed his second 60-1507 motion-the subject of this appeal-on January 16, 2015. In his pro se memorandum in support of the motion, Littlejohn argued that his trial counsel was ineffective for failing to protect various constitutional rights, which constituted exceptional circumstances that would allow him to proceed with a second 60-1507. Among the several issues Littlejohn raised in the motion was an ineffective assistance of counsel claim for his trial attorney's failure to utilize a mental defect defense and a claim that the trial court erred in failing to give a jury instruction on mental defect as a defense.

The district court failed to take any action on the motion for some 10 months. After the State belatedly filed a response to the motion on November 4, 2015, in which it ignored the merits of Littlejohn's claims and simply argued for a dismissal based upon the motion being successive, Sedgwick County District Judge James Fleetwood finally addressed the motion on November 10, 2015. Chief Judge Fleetwood's order appears to be a copy-and-paste of the State's response, denying the motion as successive and an abuse of remedy.

On appeal, Littlejohn argued that the district court erred in summarily denying his 60-1507 motion without appointing counsel, despite receiving a response from the State, and that the district court erred in dismissing the 60-1507 motion as successive because he demonstrated exceptional circumstances that would permit a second motion.

The Court of Appeals held that the failure to appoint counsel was not error but reversed and remanded for a hearing on whether trial counsel was ineffective for failing to investigate Littlejohn's mental defect defense. Littlejohn , 2017 WL 2833312, at *10. The panel held that justice would be served by considering Littlejohn's successive 60-1507 motion and the issue of ineffective assistance of counsel, taking note of evidence in the record on appeal of Littlejohn's diminished mental capacity, full scale IQ of 71, and diagnosis of mild mental retardation. 2017 WL 2833312, at *10. In doing so, the panel opined that Supreme Court Rule 183(d) (2017 Kan. S. Ct. R. 222) does not require a court to find that exceptional circumstances exist that would allow a court to consider a second or successive 60-1507 motion, so long as the motion includes any colorable claims. 2017 WL 2833312, at *7.

The State timely petitioned for review, arguing that the panel erred in holding that the district court did not have to find exceptional circumstances to consider the merits of Littlejohn's second 60-1507 motion. Littlejohn did not cross-petition on the appointment of counsel issue; that issue is not before this court.

SECOND OR SUCCESSIVE MOTIONS UNDER K.S.A. 60-1507

The State contends that our precedent has required that a K.S.A. 60-1507 movant demonstrate exceptional circumstances before a district court is required to consider the merits of a second or successive 60-1507 motion. Accordingly, the State argues that the Court of Appeals erroneously interpreted Supreme Court Rule 183(d) (2018 Kan. S. Ct. R. 223) as requiring that a district court consider the merits of a second or successive motion if the movant "asserts any colorable claims." 2017 WL 2833312, at *7. We agree with the State; the panel applied an incorrect standard.

Standard of Review

When a district court summarily denies a K.S.A. 60-1507 motion, appellate review of that ruling is de novo. See Sola-Morales v. State , 300 Kan. 875, 881, 335 P.3d 1162 (2014). The interpretation of statutes and Supreme Court rules involves questions of law reviewable de novo. Stewart v. State , 310 Kan. ----, 444 P.3d 955, 959-60 (2019).

Analysis

Obviously, a K.S.A. 60-1507 motion is a creature of statute, and, therefore, we start by looking at the language of the statute. The statute contains a subsection that specifically deals with successive motions, to-wit: "The sentencing court shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner." K.S.A. 2018 Supp. 60-1507(c).

In Nguyen v. State , 309 Kan. 96, 107, 431 P.3d 862 (2018), we pointed out that "[a] plain language reading of [ K.S.A. 60-1507(c) ] might well suggest that the district court has unfettered discretion to decline to consider a second or successive 60-1507 motion, notwithstanding the reason for the subsequent motion and regardless whether injustice may result from the refusal to consider the motion's merits." But we clarified that, for decades, our caselaw has not interpreted the provision as being without exception. See Dunlap v. State , 221 Kan. 268, 270, 559 P.2d 788 (1977) ("The sentencing court should not entertain a second or successive motion for relief under K.S.A. 60-1507 on behalf of the same person unless the errors affect constitutional rights and there are exceptional circumstances which justify entertaining a second or successive motion." [Emphasis added.] ). Nguyen "confirmed that a movant could avoid having a second or successive K.S.A. 60-1507 motion dismissed as an abuse of remedy by establishing exceptional circumstances." 309 Kan. at 108, 431 P.3d 862. Accord Beauclair v. State , 308 Kan. 284, 304-05, 419 P.3d 1180 (2018) (claim of innocence founded upon victim's recantation sufficient exceptional circumstance to avoid dismissal as successive motion).

On the other hand, Nguyen pointed to Supreme Court Rule 183 as explaining and implementing the procedure to be followed under K.S.A. 60-1507 and recited the successive motions rule under subsection (d):

"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." Supreme Court Rule 183(d) (2018 Kan. S. Ct. R. 225).

In contrast to the plain language of the statutory provision, we noted that "a plain reading of [ Supreme Court Rule 183(d)(3) ] would suggest that a district court is permitted to decline to consider a successive motion only 'when ... justice would not be served by reaching the merits of the subsequent motion.' Supreme Court Rule 183(d)(3) (2018 Kan. S. Ct. R. 225)." 309 Kan. at 108, 431 P.3d 862.

We reconciled the contradictory implications of the respective plain language of the statute and the rule by incorporating the Rule 183(d)(3) determination-whether justice would be served by reaching the merits of a successive motion-into the statutorily driven analysis-whether exceptional circumstances exist. In discussing the exceptional circumstances in that case, e.g., movant's inability to understand English and counsel's dilatory performance, Nguyen noted that the district court must at least read the motion and consider the merits before dismissing the motion as successive. Moreover, Nguyen intimated that serving justice has to be part of analyzing the exceptional nature of the circumstances. 309 Kan. at 111, 431 P.3d 862.

The panel below, however, ignored the statutory provision and focused entirely on Rule 183(d). It noted that the phrase "exceptional circumstances" does not appear in that subsection of the rule, but rather the phrase only appears in Rule 183(c)(3) which directs that a 60-1507 motion is not to be used as a substitute for a direct appeal of mere trial errors or a substitute for a second appeal. Littlejohn , 2017 WL 2833312, at *10. Consequently, the panel held that a showing of exceptional circumstances was unnecessary for a movant filing a second or successive 60-1507 motion. 2017 WL 2833312, at *5. Rather, it chose the plain reading of subsection Rule 183(d)(3) that we subsequently rejected in Nguyen , i.e., that a district court is permitted to decline to consider a successive motion only when justice would not be served by reaching the merits of the subsequent motion.

Then, after rejecting our long-standing requirement for a showing of exceptional circumstances, the panel veered further off-course by creating a new test to determine whether justice would not be served by reaching the merits of a successive 60-1507 motion. It held that the question of whether justice requires reaching the merits of a successive motion is answered by determining whether the movant "asserts any colorable claims." 2017 WL 2833312, at *7. That test not only confuses decades of precedent and is unnecessary, it is unsupported by any precedent, except perhaps a passing reference in the previous unpublished opinion in Saleem v. State , No. 94,945, 2006 WL 3353769, at *13 (Kan. App. 2006) (unpublished opinion). Certainly, as we say above, the merit of a movant's claims will factor into the calculus of whether a movant has presented exceptional circumstances to avoid dismissal of a successive motion. But the presentation of any colorable claim is not the determinative factor on whether a successive motion gets an evidentiary hearing on the merits.

In sum, the Court of Appeals applied the wrong standard in determining whether the district court erred in summarily denying Littlejohn's 60-1507 motion as being an abuse of remedy. The test should have been whether Littlejohn had presented exceptional circumstances to justify reaching the merits of the motion, factoring in whether justice would be served by doing so. We remand to the Court of Appeals to apply the correct standard. In doing so, we do not intend to indicate any opinion as to the result of that correct analysis.

Reversed and remanded with directions.

Nuss, C.J. and Biles and Stegall, JJ., concur in the result.


author: Pierron, J.:

text:
    Cedric PETERSON, Appellant, v. Dan SCHNURR, Appellee.
    No. 119,869
    Court of Appeals of Kansas.
    Opinion filed July 19, 2019.
    Shannon S. Crane, of Hutchinson, for appellant.
    Jon D. Graves, legal counsel, Kansas Department of Corrections, for appellee.
    Before Buser, P.J., Pierron and Bruns, JJ.
   Pierron, J.:

Cedric Peterson is an inmate at Hutchinson Correctional Facility (HCF). HCF withheld several editions of a newspaper he had subscribed to, and he appealed the seizure of two of the seized editions. The Secretary of Corrections' designee affirmed the seizures. Peterson later filed a K.S.A. 2017 Supp. 60-1501 challenging the seizures. The district court summarily dismissed the petition because it was not timely filed. Peterson appeals. Finding no error, we affirm.

FACTS

In 2017, the publication review officer at HCF withheld the May through November editions of a newspaper Peterson had subscribed to. The newspaper's content was found to pose a threat to the safety and security of the facility under K.A.R. 44-12-601 (2017 Supp.). Peterson appealed the seizure of the June edition, and the Secretary's designee affirmed the review officer's decision on July 31, 2017. Peterson also appealed the seizure of the October edition, and the Secretary's designee again affirmed the review officer's decision on December 6, 2017. He did not appeal the seizures of the other editions.

Peterson then filed an inmate grievance on December 12, 2017. He complained about "the practices of the HCF mailroom" and claimed "the practice and policy to censor this newspaper is explicitly raced-based." The grievance was denied, stating that under Internal Management Policies and Procedures (IMPP) 12-134, all incoming mail would be reviewed and someone would determine whether to allow it into the facility. Peterson forwarded the grievance to the warden. On December 18, 2017, the warden responded that K.A.R. 44-15-101a(d)(2) does not permit inmates to use the grievance procedure in place of, or as part of, the procedure for censoring publications.

Peterson then filed a K.S.A. 2017 Supp. 60-1501 petition in the district court on January 16, 2018. He argued the Kansas Department of Corrections (KDOC) was not properly applying K.A.R. 44-12-601 (2017 Supp.), and its policies for the censorship of mail violated his First Amendment right to receive mail. The court summarily denied his petition. The court found Peterson had exhausted his administrative remedies for the seizures of the June and October editions, and his K.S.A. 2017 Supp. 60-1501 petition was untimely because he did not file it within 30 days from the date those actions were final. Peterson appeals.

ANALYSIS

Peterson argues the district court erred in summarily dismissing his K.S.A. 2017 Supp. 60-1501 petition. He points out that he filed a grievance on December 12, 2017. He claims this grievance tolled the time he had to file his K.S.A. 2017 Supp. 60-1501 petition.

Whether a district court erred by summarily dismissing a K.S.A. 2017 Supp. 60-1501 petition raises a question of law. An appellate court exercises unlimited review of a summary dismissal. Johnson v. State , 289 Kan. 642, 649, 215 P.3d 575 (2009).

K.S.A. 2017 Supp. 60-1501(b) provides that an inmate wanting to file a habeas petition challenging some action taken against him or her must do so "within 30 days from the date an action becomes final." This deadline is extended while the inmate timely tries to exhaust his or her administrative remedies. K.S.A. 2017 Supp. 60-1501(b). An inmate's failure to file a petition within 30 days, plus the extension while the inmate exhausts administrative remedies, bars the petition. Peters v. Kansas Parole Board , 22 Kan. App. 2d 175, 180, 915 P.2d 784 (1996).

Peterson challenged the seizure of his mail. Under Kansas administrative regulation, inmates' incoming mail may be censored if there is reason to believe it poses a threat to institutional safety or security. K.A.R. 44-12-601(d)(1)(A) (2017 Supp.). When mail is censored, the inmate must be given a written notice and has 15 days to protest the decision. K.A.R. 44-12-601(d)(2)(A) and (C) (2017 Supp.). The Secretary of Corrections or the Secretary's designee reviews the protest and issues a final disposition. K.A.R. 44-12-601(d)(2)(D) (2017 Supp.). IMPP 12-134A provides more detail on the policies and procedures for the review of mail by correctional facilities. It also states that an inmate has 15 days to appeal the censorship of any publication, and the Secretary or Secretary's designee will issue the final disposition. IMPP 12-134 was revoked and incorporated into IMPP 12-134A in April 2016.

Because Peterson challenged the seizure of only the June and October editions of his newspaper, the district court properly found he did not exhaust his administrative remedies for the other editions. See K.S.A. 75-52,138 (requiring inmates to exhaust all administrative remedies before filing civil action). Peterson's protest of the decisions to seize his newspaper would have become final when the Secretary's designee upheld the decision. See K.A.R. 44-12-601(d)(2)(D) (2017 Supp.) ; IMPP 12-134A. So to be timely, Peterson would have had to file his K.S.A. 2017 Supp. 60-1501 petition within 30 days of those dates.

The Secretary's designee affirmed the decision to seize the June edition of Peterson's newspaper on July 31, 2017, 169 days before he filed his K.S.A. 2017 Supp. 60-1501 petition on January 16, 2018. The Secretary's designee affirmed the decision to seize the November edition of Peterson's newspaper on December 6, 2017, 41 days before he filed his K.S.A. 2017 Supp. 60-1501 petition. Thus, Peterson's petition is not timely for either final action.

Peterson responds that his petition is timely because his grievance tolled the deadline for filing. He filed his grievance on December 12, 2017, six days after the Secretary's designee upheld the seizure of the October edition of his newspaper. On December 18, 2017, he received a response from Schnurr informing him that his challenge was not a grievable issue. Based on these facts, Peterson argues that the action became final on December 18. He then had 30 days to file his K.S.A. 2017 Supp. 60-1501 petition. Because he filed his petition 29 days later on January 16, 2018, he contends he was within the 30-day time limit.

Peterson's argument lacks merit. Administrative regulation governs the inmate grievance procedure. K.A.R. 44-15-101a. That regulation states that the grievance procedure applies "to a broad range of matters that directly affect the inmate." K.A.R. 44-15-101a(d)(1).

Inmates may not use the grievance procedure "as a substitute for, or a as a part of ... the procedure for censorship of publications specified in the secretary's internal management policy and procedure." K.A.R. 44-15-101a(d)(2).

In his grievance, Peterson challenged HCF's censorship policy and the seizure of his newspaper. But by regulation, Peterson could not use the grievance procedure as part of the procedure for censorship of publications under internal management policies. Because this was not an available administrative remedy for Peterson, the 30-day time limit was not tolled while he needlessly filed an administrative grievance. We affirm the dismissal.

Affirmed.