Quinn v. State
| Decision Date | 23 November 2022 |
| Docket Number | 124,674 |
| Citation | 522 P.3d 282 |
| Parties | Robert QUINN, Appellant, v. STATE of Kansas, Appellee. |
| Court | Kansas Court of Appeals |
Rosie M. Quinn, of Rosie M. Quinn Attorney LLC, of Kansas City, for appellant.
Kayla Roehler, deputy district attorney, Mark A. Dupree Sr., district attorney, and Derek Schmidt, attorney general, for appellee.
Before Arnold-Burger, C.J., Bruns and Hurst, JJ.
Robert Quinn appeals the summary denial of his claim for relief under K.S.A. 60-1507 as well as the court's failure to appoint an attorney to represent him. Because we find that Quinn was not entitled to an attorney to help him file a K.S.A. 60-1507 motion and because Quinn's motion is both untimely and barred by res judicata, we affirm.
A jury convicted Quinn of rape in 2011. He appealed and this court affirmed his conviction. State v. Quinn , No. 109,321, 2015 WL 423653 (Kan. App. 2015) (unpublished opinion). In his direct appeal, he argued that the district court erred in denying him a new trial based on the ineffectiveness of his trial counsel, Charles Lamb. The district court held an evidentiary hearing on his claim of Lamb's ineffectiveness in which several witnesses including himself and Lamb testified. The court issued detailed findings in denying his motion. On appeal this court agreed that Quinn had failed to establish that Lamb's representation was ineffective and affirmed his conviction. 2015 WL 423653, at *11. The clerk of the appellate courts issued the mandate in August 2015 after his petition for review was denied by the Supreme Court.
Over five years later, in January 2021, Quinn filed his only motion under K.S.A. 60-1507 alleging ineffective assistance of counsel and the "victim lied." In detailing his claim against Lamb he wrote, As to the veracity of the victim, he claimed "[s]he lied about using drugs that night" and "[s]he lied when she said I ripped her clothes." He asked that the court appoint a lawyer for him. Quinn did not make these specific claims about Lamb in his direct appeal although he made many others. The court denied the request and summarily denied his motion as untimely in September 2021. Quinn filed a timely notice of appeal in November 2021.
In March 2022, Quinn's appellate counsel filed a motion with the clerk of the appellate courts to recall the mandate it had issued in August 2015. She argued that the mandate did not adhere to the usual and customary procedures of mandates because it did not recite the denial of the petition for review by the Supreme Court or the date of it, did not have the seal of the court affixed to it, and the copy of the decision was not certified. This court granted the motion and issued a corrected mandate on April 19, 2022.
Prisoners must file motions under K.S.A. 2021 Supp. 60-1507(f) for postconviction relief within one year of "[t]he final order of the last appellate court in this state to exercise jurisdiction on a direct appeal or the termination of such appellate jurisdiction." Here, the Kansas Supreme Court denied Quinn's petition for review in his direct appeal on August 20, 2015. The clerk of the appellate courts issued the mandate August 25, 2015. Nothing else was filed by Quinn, such as a motion of rehearing or modification or a notice of intent to file a petition for a writ of certiorari. Quinn was therefore required to file any motion under K.S.A. 60-1507 no later than August 2016. His motion was not filed until January 2021, over four years after the statutory deadline.
Quinn argues, for the first time on appeal, that his K.S.A. 60-1507 motion was not untimely because the one-year time limit did not start until the filing of the corrected mandate in April 2022.
Generally, parties cannot raise issues on appeal that they did not raise before the trial court. See State v. Kelly , 298 Kan. 965, 971, 318 P.3d 987 (2014). There are a few exceptions to this rule that may be invoked at the discretion of the appellate court. State v. Gray , 311 Kan. 164, 170, 459 P.3d 165 (2020) (). Quinn invokes such an exception here. He argues that it is a question of law that should determine this case.
Since the answer is clear in our existing caselaw and does not require any fact-finding by the district court, we elect to address Quinn's new claim.
Interpretation of an appellate court mandate and its effect is a question of law subject to de novo review. State v. Morningstar , 299 Kan. 1236, 1240-41, 329 P.3d 1093 (2014). Likewise, to the extent that our analysis requires statutory interpretation, our review is de novo. State v. Alvarez , 309 Kan. 203, 205, 432 P.3d 1015 (2019). And finally, the interpretation of a Supreme Court rule, like interpreting a statute, is a question of law. Kansas Judicial Review v. Stout , 287 Kan. 450, 459, 196 P.3d 1162 (2008).
The most fundamental rule of statutory construction is that the intent of the Legislature governs if that intent can be established. State v. LaPointe , 309 Kan. 299, 314, 434 P.3d 850 (2019). An appellate court must first attempt to ascertain legislative intent through the statutory language enacted, giving common words their ordinary meanings. Nauheim v. City of Topeka , 309 Kan. 145, 149, 432 P.3d 647 (2019). When a statute is plain and unambiguous, an appellate court should not speculate about the legislative intent behind that clear language, and it should refrain from reading something into the statute that is not readily found in its words. State v. Ayers , 309 Kan. 162, 164, 432 P.3d 663 (2019).
So we start with the language of the statute governing 60-1507 actions:
Procedures governing petitions for review "shall be prescribed by rules of the supreme court." K.S.A. 20-3018(b). Next, we turn to the rules of the Kansas Supreme Court to determine when a Court of Appeals decision is final. "The Court of Appeals decision is final as of the date of the decision denying review." Rule 8.03(h) (2022 Kan. S. Ct. R. at 59). This rule is repeated in subsection (k)(4) (2022 Kan. S. Ct. R. at 61): "If a petition for review is denied, the Court of Appeals decision is final as of the date of the denial." We believe the plain language of the statute and Rule 8.03 control the result here. The final order of the last appellate court in this state to exercise jurisdiction on a direct appeal would be the denial of the petition for review by our Supreme Court. The termination of such appellate jurisdiction would be the date of the Court of Appeals opinion when no petition for review is filed, or the date of dismissal of the appeal for any variety of reasons. Accordingly, the time frame for filing a 60-1507 motion runs from the date of the decision denying review, not the date the clerk of the appellate courts issues the mandate as Quinn suggests.
We recognize that both the Supreme Court and our court have filed cases measuring the time to file a 60-1507 motion from the date the mandate was issued—although the issue has never been squarely presented to it, nor was the date of the mandate versus the date the judgment was final determinative. See, e.g., White v. State , 308 Kan. 491, 421 P.3d 718 (2018) ; Rowell v. State , 60 Kan. App. 2d 235, 490 P.3d 78 (2021). Our court has often cited Tolen v. State , 285 Kan. 672, 176 P.3d 170 (2008), for the proposition that appellate jurisdiction ends upon the denial of a petition for review, not the date of the mandate. See Sellers v. State , No. 116,923, 2018 WL 2072656, at *2 (Kan. App. 2018) (unpublished opinion) (); Burton v. State , No. 100,555, 2009 WL 4639354, at *1 (Kan. App. 2009) (unpublished opinion) (same). Given the unique facts of Tolen , which revolved around whether Tolen could take advantage of a one-year grace period following the amendment to K.S.A. 60-1507 in 2003, its citation for a conclusion that the date of the mandate is irrelevant is a bit of a stretch. But it is clear that the court did not track the loss of jurisdiction to the date of the mandate.
We also concede that our holding here is contrary to Supreme Court Rule 183(c)(4) (2022 Kan. S. Ct. R. at 243) which does appear to tether a 60-1507 action to the date of the mandate:
But our Supreme Court has made clear that a court rule cannot expand a statutory deadline. Jones v. Continental Can Co. , 260 Kan. 547, 557-58, 920 P.2d 939 (1996). And the Legislature clearly knows how to tether the...
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