Avila v. State, 083019 KSCA, 119, 800

Docket Nº:119, 800
Opinion Judge:PER CURIAM
Party Name:Eric J. Avila, Appellant, v. State of Kansas, Appellee.
Attorney:Christina M. Kerls, of Kansas Appellate Defender Office, for appellant. Boyd K. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Judge Panel:Before Buser, P.J., Green and Malone, JJ.
Case Date:August 30, 2019
Court:Court of Appeals of Kansas

Eric J. Avila, Appellant,

v.

State of Kansas, Appellee.

No. 119, 800

Court of Appeals of Kansas

August 30, 2019

NOT DESIGNATED FOR PUBLICATION

Appeal from Sedgwick District Court; Deborah Hernandez Mitchell, judge.

Christina M. Kerls, of Kansas Appellate Defender Office, for appellant.

Boyd K. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.

Before Buser, P.J., Green and Malone, JJ.

MEMORANDUM OPINION

PER CURIAM

This is an appeal of the district court's summary denial of Eric J. Avila's K.S.A. 60-1507 motion alleging ineffective assistance of counsel. Upon our review, we find no reversible error and, therefore, affirm the district court's summary denial of the motion.

Factual and Procedural Background

In 2012, in a consolidated proceeding, Avila was found guilty upon his no contest pleas to kidnapping, second-degree murder, and burglary. The district court sentenced Avila to a controlling sentence of 289 months in prison.

In January 2013, Avila filed a motion to withdraw his pleas on the ground that his counsel was ineffective. First, Avila alleged that his counsel failed to explain that if he went to trial he could be convicted of a lesser included offense. Second, Avila complained that his counsel failed to discuss and explain case strategies. Avila also claimed that he was not in the right state of mind when he entered the pleas because he was taking psychotropic drugs. The district court denied the motion, and our court affirmed after allowing Avila to file a late notice of appeal. State v. Avila, No. 110, 597, 2014 WL 7566045 (Kan. App. 2014) (unpublished opinion). Our Supreme Court denied Avila's petition for review on August 20, 2015.

Over two years later, on December 7, 2017, Avila filed a pro se K.S.A. 60-1507 motion that is the subject of this appeal. The motion alleged ineffective assistance of counsel. In particular, Avila stated he recently discovered that his counsel "made many blunders and serious errors before coming to him with a Plea Agreement." He claimed his counsel prevented him from participating in his defense by depriving him of discovery materials and facts.

Avila also alleged that he was not guilty of the crimes because of his mental status on the night of the murder. He claimed that he informed his counsel that on that evening he had ingested Xanax, OxyContin, and whiskey and, as a result, had drifted in and out of consciousness. Avila further complained that his counsel failed to obtain a toxicology report and failed to investigate his mental illnesses of schizophrenia and post-traumatic stress disorder (PTSD).

Because of his diminished mental status, Avila asserted that had he gone to trial his counsel could have argued for the lesser included offense of manslaughter. Moreover, Avila claimed he would not have pled no contest if his trial counsel had informed him of all possible defenses. In summary, Avila asserted that his counsel's performance fell below an objective standard of reasonableness.

The State responded that Avila's motion was untimely and that he failed to assert manifest injustice or a colorable claim of innocence to justify an extension of time to file the K.S.A. 60-1507 motion.

The district court summarily denied Avila's K.S.A. 60-1507 motion. At the outset, it found that Avila's motion was filed several years after the deadline established by K.S.A. 60-1507(f). The district court further explained: "Mr. Avila argues several reasons why he believes the representation of his counsel fell below an objective standard of reasonableness; however, Mr. Avila provides no support for any of his arguments that the result of the case would have been different if other action had been taken by Counsel. Mr. Avila merely makes conclusory statements alleging he would not have pled, or a jury not convicted had a trial occurred if other action was pursued by counsel. These conclusory statements fail to establish a colorable claim of actual innocence [which is] insufficient to show manifest injustice under the statute."

Avila filed a timely notice of appeal.

Summary Denial of K.S.A. 60-1507 Motion

Our standard of review provides that a district court may summarily deny a K.S.A. 60-1507 motion when the court finds that the motion, files, and case records conclusively show the movant is not entitled to relief. K.S.A. 2018 Supp. 60-1507(b); Sola-Morales v. State, 300 Kan. 875, 881, 335 P.3d 1162 (2014). Summary denial of a K.S.A. 60-1507 motion receives de novo review. Bellamy v. State, 285 Kan. 346, 354, 172 P.3d 10 (2007).

The procedural requirements of K.S.A. 2018 Supp. 60-1507(f)(1) provide that a movant must file a motion for relief within one year of either: "(A) The final order of the last appellate court in this state to exercise jurisdiction on a direct appeal or the termination of such appellate jurisdiction; or

"(B) the denial of a petition for writ of certiorari to the United States supreme court or issuance of such court's final order following granting such petition."

If, based on the district court's own inspection of the motions, files, and records of the case, the district court determines that the time limitations have been exceeded, the district court must dismiss the motion as untimely. K.S.A. 2018 Supp. 60-1507(f)(3). However, a district court may address the merits of the motion if the movant can show manifest injustice will occur if the movant is not permitted to file the motion out of time. On appeal, Avila candidly concedes his motion was filed beyond the one-year time limitation and that it is untimely. As a result, a manifest injustice analysis is necessary.

In determining whether manifest injustice exists,...

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