Moll v. State

• Decision Date: 10 April 2009
• Docket Number: No. 99,028.,99,028.
• Citation: 204 P.3d 659
• Parties: Shea MOLL, Appellee, v. STATE of Kansas, Appellant.
• Court: Kansas Court of Appeals

204 P.3d 659

Shea MOLL, Appellee, v. STATE of Kansas, Appellant.

No. 99,028.

Court of Appeals of Kansas.

April 10, 2009.

Matt J. Maloney, assistant district attorney, Nola Tedesco Foulston, district attorney, and Stephen N. Six, attorney general, for appellant.

Kurt P. Kerns, Ariagno, Kerns, Mank & White L.L.C., of Wichita, for appellee.

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

GREENE, J.

The State appeals from the district court's order granting Shea Moll's motion pursuant to K.S.A. 60-1507, arguing the court's fact findings were unsupported and its conclusions of law were insufficient to support a vacatur of Moll's convictions and a new trial. Initially, we examine our jurisdiction to review the court's order for a new trial and conclude that our jurisdiction is proper because the civil proceedings under K.S.A. 60-1507 were final upon the district court's order reassigning the case to the criminal trial docket. We then examine the district court's journal entry in the 60-1507 proceeding and conclude that it fails to support the relief granted, thus requiring that we reverse and remand for further proceedings.

Factual and Procedural Background

In Sedgwick County Case No. 04 CR 831, the State charged Moll with aggravated escape from custody, in violation of K.S.A. 21-3810(a)(1), arising from Moll's failure to return to residential community corrections following work release on February 11, 2004. Before the State located him, Moll became intoxicated and caused a vehicle collision, which severely injured the occupants of the other vehicle. Consequently, in Sedgwick County Case No. 04 CR 3254, the State charged Moll with two counts of aggravated battery, in violation of K.S.A. 21-3414(a)(2)(A), and driving under the influence of alcohol (DUI), in violation of K.S.A.2004 Supp. 8-1567(a)(2). The second count of aggravated battery was subsequently amended to K.S.A. 21-3414(a)(2)(B), a severity level 8 felony. Because Moll had been on probation for another offense, the State also moved to revoke his probation in Sedgwick County Case No. 02 CR 611.

Moll's retained counsel, Danny Saville, entered plea negotiations with the State. Initially, the State was unwilling to offer any substantial incentive for Moll's plea. Ultimately, the State offered a sentencing recommendation of the mitigated sentence within the appropriate grid box for the aggravated escape charge in 04 CR 831 but warned Saville that the State planned to seek the aggravated sentence within the appropriate grid box for aggravated battery charges in 04 CR 3254 and planned to seek consecutive sentencing on all counts.

Moll rejected the State's proposal for 04 CR 3254 but accepted the offer for 04 CR 831, and he subsequently signed plea forms in both cases, admitting responsibility for all charged offenses. At the plea hearing, the district court specifically noted that Moll had entered an agreement in 04 CR 831 but was pleading without an agreement in 04 CR 3254. Saville affirmed the State's recitation of the plea agreement, and Moll indicated that he understood the plea agreement as articulated by the State.

When the district court questioned Moll about his understanding of his rights and the consequences of entering guilty pleas, Moll specifically acknowledged that Saville had fully discussed the charges and the rights contained in the plea form, that he was satisfied with Saville's representation, and that he had no complaints about Saville's representation or the court's treatment of him. Moll asserted that he had read the plea form, discussed the form with Saville, believed the pleas were in his best interests, and voluntarily made the decision to enter the pleas. Moll also stated that he understood that the court was not bound by any agreements entered by the parties and that he could receive as severe a penalty as he would receive if he were convicted after a trial, including consecutive sentencing. The court asked Moll for an account of the events for which he was entering a plea, and Moll admitted that he had driven while intoxicated to the extent that he possessed a breath-alcohol concentration of .224 and that he had been involved in an automobile accident which recklessly caused severe bodily injuries to the victims. The court accepted the pleas, finding them voluntarily and knowingly entered.

Moll filed motions for downward durational and dispositional sentencing departures, which were subsequently denied. At sentencing, the district court revoked Moll's probation in 02 CR 611 and ordered Moll to serve 11 months in prison. In 04 CR 831, the court imposed a 19-month sentence, the mitigated sentence within the appropriate grid box, and ordered the sentence to be served consecutive to the sentence in 02 CR 611. In 04 CR 3254, the court imposed a 114-month prison term for the severity level 5 aggravated battery conviction, a 7-month prison term for the severity level 8 aggravated battery conviction, and 6 months in jail for the misdemeanor DUI conviction. The court ordered the three sentences to be served concurrent to one another but consecutive to the sentence imposed in 04 CR 831.

Almost a year after sentencing, Moll filed the present action, seeking to withdraw his plea because of ineffective assistance of counsel. Moll alleged that his counsel was ineffective for failing to conduct any meaningful investigation into the charged offenses, failing to file any pretrial motions, and failing to conduct a meaningful defense. The motion attached an affidavit of Jay Greeno, who opined that Saville's representation of Moll had deprived Moll of his constitutional right to effective assistance of counsel.

After a preliminary hearing, the district court concluded that Moll's motion presented substantial claims warranting an evidentiary hearing. The district court held an evidentiary hearing on April 12, 2007. At the conclusion of the hearing, the district court directed the parties to submit findings of fact and conclusions of law. Ultimately, the district court adopted the findings of fact and conclusions of law presented by Moll and ordered Moll's convictions in 04 CR 831 and 04 CR 3254 vacated and reassigned the cases to the criminal docket for trial.

When the State objected to the journal entry pursuant to Kansas Supreme Court Rule 170 (2008 Kan. Ct. R. Annot. 241), the district court held a hearing to settle the journal entry. At the hearing, the State argued that the journal entry failed to accurately reflect the testimony presented during the evidentiary hearing and that the journal entry did not enable the State to ascertain the basis for the court's ruling. Without addressing the State's concerns, the district court affirmed its adoption of Moll's proposed findings of fact and conclusions of law.

Is the District Court's Order Granting Relief Under K.S.A. 60-1507 Subject to Appeal by the State?

After initial briefing in this appeal, we questioned jurisdiction on our own motion and ordered the parties to submit supplemental briefs on the question whether the district court's order granting relief under K.S.A. 60-1507 was subject to appeal by the State. Our order noted that the State may appeal only in situations specifically enumerated within K.S.A. 22-3602(b) and that the only appeal allowed the State from an order granting a new trial is limited to off-grid or indeterminate A or B felonies. K.S.A. 22-3602(b)(4). Here, the crimes do not qualify for such an appeal. Moreover, we noted that a K.S.A. 60-1507 action is civil in nature and is governed by the Kansas Code of Civil Procedure, which limits appeals of right to final decisions. K.S.A. 60-2102(a)(4). The order appealed from by the State is not final in the sense that it reassigns the matter to the criminal docket for a new trial. An order granting a new trial in a civil case is not a final order from which a party may appeal as a matter of right. Oertel v. Phillips, 197 Kan. 113, 117, 415 P.2d 223 (1966).

The State argues that the district court's order granting relief to Moll under 60-1507 is a final decision "as it terminates the civil case at the district court level." We agree. Viewing a habeas corpus action under K.S.A. 60-1507 as an independent and original civil proceeding, such an action is terminated by the district court's order either granting or denying relief to the movant. Drach v. Bruce, 281 Kan. 1058, 1080, 136 P.3d 390 (2006), cert. denied 549 U.S. 1278, 127 S.Ct. 1829, 167 L.Ed.2d 317 (2007) (finding the law of the case doctrine inapplicable in an appeal from a K.S.A. 60-1507 proceeding because the proceeding was a separate action from Drach's direct criminal proceedings); State v. Thomas, 239 Kan. 457, 459, 720 P.2d 1059 (1986) (citing Heflin v. United States, 358 U.S. 415, 79 S.Ct. 451, 3 L.Ed.2d 407 [1959], for the proposition that a motion under K.S.A. 60-1507 created a new, civil proceeding independent of the criminal case); State v. Andrews, 228 Kan. 368, 375, 614 P.2d 447 (1980) ("[H]abeas corpus proceedings and motions under 60-1507 are civil in nature and not controlled by the constitutional or statutory requirements applicable in criminal cases."). Once a district court has ruled on the relief requested, the civil proceeding has ended, except for any appeal of the decision.

Our conclusion is consistent with aspects of statutory language contained in K.S.A. 60-1507. K.S.A. 60-1507(d) provides: "An appeal may be taken to the appellate court as provided by law from the order entered on the motion as from a final judgment on application for a writ of habeas corpus." Moreover, Supreme Court Rule 183(k) (2008 Kan. Ct. R. Annot. 249) provides that "[a]n appeal may be taken to the Court of Appeals from the order entered on the motion as in a civil case."

We are also persuaded by the State that if we held otherwise, the State would have no vehicle to seek meaningful appellate review of a district court order granting relief under 60-1507. Once a new...