Noyce v. State

• Decision Date: 23 August 2019
• Docket Number: No. 114,971,114,971
• Citation: 447 P.3d 355
• Parties: David A. NOYCE, Appellant, v. STATE of Kansas, Appellee.
• Court: Kansas Supreme Court

447 P.3d 355

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)...