Mashaney v. Bd. of Indigents' Def. Servs., No. 108,353.

CourtCourt of Appeals of Kansas
Writing for the CourtMcANANY
Citation49 Kan.App. 596,313 P.3d 64
PartiesJason MASHANEY, Appellant, v. BOARD OF INDIGENTS' DEFENSE SERVICES, Sarah E. Sweet–McKinnon, and Virginia A. Girard–Brady, Appellees.
Decision Date08 November 2013
Docket NumberNo. 108,353.

49 Kan.App. 596
313 P.3d 64

Jason MASHANEY, Appellant,
v.
BOARD OF INDIGENTS' DEFENSE SERVICES, Sarah E. Sweet–McKinnon, and Virginia A. Girard–Brady, Appellees.

No. 108,353.

Court of Appeals of Kansas.

Nov. 8, 2013.


[313 P.3d 66]



Syllabus by the Court

1. The Board of Indigents' Defense Services (BIDS), a subordinate governmental agency, lacks the capacity to sue or to be sued in the absence of an authorizing statute. There is no such authorizing statute for BIDS. Thus, BIDS may not be sued as an entity.

2. The four general rules for determining the accrual of a cause of action for attorney malpractice, for the purpose of establishing when the 2–year limitation period of K.S.A. 60–513 commences, are: (1) the occurrence rule (when the negligent act occurred), (2) the damage rule (when plaintiff suffers damages), (3) the discovery rule (when the facts giving rise to the claim are discoverable), and (4) the continuous representation rule (when the attorney-client relationship ends).

3. A criminal defendant's cause of action against his or her lawyer for legal malpractice does not accrue, for the purpose of establishing when the 2–year limitation period of K.S.A. 60–513 commences, until the criminal defendant has been “exonerated” through postconviction relief.

4. Exoneration is not the same as actual innocence. Exoneration occurs when a criminal defendant has his or her conviction overturned and a new trial is ordered.

5. Ordinarily, when the district court ruling on a motion to dismiss considers matters beyond the face of the pleading, the rules relating to summary judgments apply. K.S.A. 60–212(b)(6). But when matters outside the face of the pleading are proper objects of judicial notice, a motion to dismiss need not be treated as a summary judgment motion.

[313 P.3d 67]

6. In order to prevail on a legal malpractice claim, a criminal defendant suing his or her trial or appellate counsel must establish at trial by a preponderance of the evidence that he or she was innocent of the charge which formed the basis of the conviction.

7. In Kansas, an Alford plea is characterized as a guilty plea, even though the defendant publicly maintains his or her innocence. A plea of guilty is admission of the truth of the charge and every material fact alleged therein. Kansas does not distinguish between an Alford plea and a guilty plea in terms of their effect on the defendant once he or she enters the plea. See K.S.A. 22–3209(1).

8. Here, the plaintiff in his criminal case entered an Alford plea to amended charges after his original convictions were reversed and remanded for a new trial. In the present legal malpractice case, the plaintiff does not contend that the charges to which he entered his Alford plea were based on facts that were different from the facts that supported his original conviction. Thus, he cannot establish that he was actually innocent of the original charges which led to his convictions. Without such a showing, the plaintiff cannot prevail in this malpractice action and, therefore, the district court did not err in dismissing his claim.


Larry G. Michel and Angela D. Coble, of Kennedy Berkley Yarnevich & Williamson, Chartered, of Salina, for appellant.

Marty M. Snyder, assistant attorney general, for appellee State Board of Indigents' Defense Services.


Timothy J. Finnerty and Charles E. Hill, of Wallace, Saunders, Austin, Brown & Enochs, Chartered, of Wichita, for appellee Sarah Sweet–McKinnon.

Lyndon W. Vix and Sylvia B. Penner, of Fleeson, Gooing, Coulson & Kitch, L.L.C., of Wichita, for appellee Virginia Girard–Brady.

Before ATCHESON, P.J., GREEN and McANANY, JJ.

McANANY, J.

Jason Mashaney's convictions for sex crimes were set aside and a new trial was ordered. Before the retrial Mashaney pled guilty to amended charges. He then sued his criminal defense lawyers for malpractice, but the district court dismissed his claims. Mashaney's appeal raises the following issues: (1) whether the Board of Indigents' Defense Services (BIDS) may be sued for legal malpractice; (2) whether Mashaney's civil malpractice claims against the individual attorneys are barred by our 2–year statute of limitations; (3) whether such malpractice claims are dependent upon Mashaney showing that he was actually innocent of the criminal charges for which he was convicted; and (4) if so, whether an Alford plea of guilty to amended charges foreclosed Mashaney from proving his innocence.

We conclude that (1) BIDS, a subordinate government agency, does not have the capacity to sue or be sued. Therefore, BIDS was properly dismissed as a party. (2) With respect to the statute of limitations issue, Mashaney's cause of action for legal malpractice did not accrue until he obtained postconviction relief. Here, the postconviction relief resulted in Mashaney being granted a new trial. But the retrial did not take place because Mashaney pled guilty to reduced charges. (3) In his legal malpractice case Mashaney would have been required to show that he was actually innocent of the sex crimes for which he was tried and convicted in order to prevail. (4) But Mashaney pled guilty to amended charges, and he cannot show that the factual bases for his guilty pleas were different from the facts that led to his original convictions at trial. Thus, the district court did not err in determining that based upon his guilty pleas Mashaney was foreclosed from proving at a malpractice trial that he was innocent of the acts for which he was originally convicted. Based upon these determinations, we affirm the ultimate ruling of the district court.

Facts and Procedural History

In September 2003, Jason Mashaney was accused of committing indecent sexual acts with his 5–year–old daughter. Mashaney

[313 P.3d 68]

was charged in Sedgwick County with aggravated criminal sodomy and two counts of aggravated indecent liberties with a child. After a preliminary hearing, Mashaney was bound over for trial. The court appointed attorney (now defendant) Sarah Sweet–McKinnon to represent him in the criminal proceedings.

Mashaney's first trial resulted in a mistrial. In July 2004, Mashaney was retried and convicted on all three counts. Mashaney moved pro se for posttrial relief, claiming his trial lawyer had been ineffective. The district court appointed counsel for Mashaney and conducted a hearing on his motion. In November 2004, the district court denied Mashaney's motion, and he was sentenced to prison.

Mashaney appealed his convictions to this court where he was represented by attorney (now defendant) Virginia A. Girard–Brady. In April 2007, this court affirmed Mashaney's convictions, and the Supreme Court declined further review. See State v. Mashaney, No. 94,298, 2007 WL 1109456 (Kan.App.2007) (unpublished opinion), rev. denied 284 Kan. 949 (2007).

In April 2008, Mashaney moved for relief under K.S.A. 60–1507 based on ineffective assistance of appellate counsel. The district court denied relief, but in September 2010 our court reversed and remanded for an evidentiary hearing. See Mashaney v. State, No. 101,978, 2010 WL 3731341 (Kan.App.2010) (unpublished opinion). In April 2011, following the mandated evidentiary hearing on Mashaney's motion, the district court set aside Mashaney's convictions. The district court found that due to appellate counsel's deficient performance, Mashaney “ ‘ “was prejudiced to the extent that there is a reasonable probability that, but for counsel's deficient performance, the appeal would have been successful.” [Citations omitted.]’ State v. Smith, 278 Kan. 45, 51–52, 92 P.3d 1096 (2004).” Mashaney's case was placed back on the trial calendar.

In December 2011, in advance of his retrial and pursuant to a plea agreement with the State, Mashaney entered an Alford plea of guilty to two counts of attempted aggravated battery and one count of aggravated endangering of a child. See North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). The court accepted his plea and imposed a 72–month prison sentence to be followed by 12 months of postrelease supervision, a sentence that was somewhat less than the time Mashaney had already served on his original conviction. Mashaney was released from custody.

In January 2012, Mashaney commenced this action for legal malpractice against BIDS, Sweet–McKinnon, and Girard–Brady, claiming that on account of their negligent representation in his criminal case he was “forced to serve nearly eight (8) years in prison which would not have occurred had he received proper representation.” Mashaney claimed he was innocent of the charges. He alleged that he “adamantly contested the allegations from the very beginning and strongly denies that he ever abused his young daughter.”

Mashaney claimed both economic and noneconomic damages. He claimed that when he was arrested he was employed by his stepfather in a home improvement business and that as a result of his wrongful conviction he “lost eight (8) years of wages and development of his career while improperly imprisoned.” He also claimed his imprisonment interfered with his relationship with his children as well as with “several family members and friends who passed away while he was in prison.”

BIDS moved to dismiss on the grounds that it lacked the capacity to be sued. Sweet–McKinnon answered the petition, claiming that Mashaney was estopped from pursuing this action by the guilty plea he entered in December 2011. In her answer Girard–Brady claimed estoppel and waiver and contended that Mashaney's claim was barred by the 2–year statute of limitations. These defenses came before the court on motions to dismiss and for judgment on the pleadings, which the court granted.

Mashaney's appeal again brings the matter before us.

BIDS's Capacity to be Sued

BIDS claims that under the rule expressed in

[313 P.3d 69]

Hopkins v. State, 237 Kan. 601, 702 P.2d 311 (1985), as a subordinate government agency BIDS lacks the capacity to be sued. Whether BIDS can be sued is a question...

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8 practice notes
  • Mashaney v. Bd. of Indigents' Def. Servs., No. 108,353
    • United States
    • United States State Supreme Court of Kansas
    • August 28, 2015
    ...actual innocence of the charges leading to the conviction.Review of the judgment of the Court of Appeals in 49 Kan. App. 2d 596, 313 P.3d 64 (2013). Appeal from Sedgwick District Court; DOUGLAS R. ROTH, judge. Opinion filed August 28, 2015. Judgment of the Court of Appeals affirming the dis......
  • Mashaney v. Bd. of Indigents' Def. Servs., 108,353.
    • United States
    • United States State Supreme Court of Kansas
    • August 28, 2015
    ...Appeals, Mashaney challenged each of the three district court rulings. See Mashaney v. Board of Indigents' Def. Servs., 49 Kan.App.2d 596, 313 P.3d 64 (2013). All three panel members agreed that BIDS lacked the capacity to be sued. All three disagreed that Mashaney's claim was time barred, ......
  • Merryfield v. Hands, 112,210.
    • United States
    • Court of Appeals of Kansas
    • April 24, 2015
    ...motion to dismiss, ruling treated as one on summary judgment); Mashaney v. Board of Indigents' Defense Services, 49 Kan.App.2d 596, 610, 313 P.3d 64 (2013), rev. granted 299 Kan. –––– (2014).We, therefore, review the appeal as one from a grant of summary judgment. In seeking summary judgmen......
  • Garcia v. Ball, No. 108,817.
    • United States
    • United States State Supreme Court of Kansas
    • December 31, 2015
    ...Alford plea prevented him from establishing the requisite innocence. Mashaney v. Board of Indigents' Defense Services, 49 Kan.App.2d 596, 313 P.3d 64 (2013). One panel member dissented, criticizing a rigid actual innocence rule. 49 Kan.App.2d at 638, 313 P.3d 64 (Atcheson, J., dissenting).O......
  • Request a trial to view additional results
8 cases
  • Mashaney v. Bd. of Indigents' Def. Servs., No. 108,353
    • United States
    • United States State Supreme Court of Kansas
    • August 28, 2015
    ...actual innocence of the charges leading to the conviction.Review of the judgment of the Court of Appeals in 49 Kan. App. 2d 596, 313 P.3d 64 (2013). Appeal from Sedgwick District Court; DOUGLAS R. ROTH, judge. Opinion filed August 28, 2015. Judgment of the Court of Appeals affirming the dis......
  • Mashaney v. Bd. of Indigents' Def. Servs., 108,353.
    • United States
    • United States State Supreme Court of Kansas
    • August 28, 2015
    ...Appeals, Mashaney challenged each of the three district court rulings. See Mashaney v. Board of Indigents' Def. Servs., 49 Kan.App.2d 596, 313 P.3d 64 (2013). All three panel members agreed that BIDS lacked the capacity to be sued. All three disagreed that Mashaney's claim was time barred, ......
  • Merryfield v. Hands, 112,210.
    • United States
    • Court of Appeals of Kansas
    • April 24, 2015
    ...motion to dismiss, ruling treated as one on summary judgment); Mashaney v. Board of Indigents' Defense Services, 49 Kan.App.2d 596, 610, 313 P.3d 64 (2013), rev. granted 299 Kan. –––– (2014).We, therefore, review the appeal as one from a grant of summary judgment. In seeking summary judgmen......
  • Garcia v. Ball, No. 108,817.
    • United States
    • United States State Supreme Court of Kansas
    • December 31, 2015
    ...Alford plea prevented him from establishing the requisite innocence. Mashaney v. Board of Indigents' Defense Services, 49 Kan.App.2d 596, 313 P.3d 64 (2013). One panel member dissented, criticizing a rigid actual innocence rule. 49 Kan.App.2d at 638, 313 P.3d 64 (Atcheson, J., dissenting).O......
  • Request a trial to view additional results

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