Sherwood v. State

• Decision Date: 12 July 2019
• Docket Number: No. 115,899,115,899
• Citation: 444 P.3d 966
• Parties: Edgar I. SHERWOOD, Appellant, v. STATE of Kansas, Appellee.
• Court: Kansas Supreme Court

444 P.3d 966

Edgar I. SHERWOOD, Appellant,

v.STATE of Kansas, Appellee.

No. 115,899

Supreme Court of Kansas.

Opinion filed July 12, 2019.

Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, was on the brief for appellant.

Matt J. Maloney, 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 Stegall, J.:

Edgar I. Sherwood filed a pro se K.S.A. 60-1507 motion about 18 years after he was convicted of rape and aggravated criminal sodomy in Sedgwick County. The State filed a written response to Sherwood's motion, claiming the motion was untimely and Sherwood failed to establish that a manifest injustice excused the delay. The district court agreed and summarily denied the motion. On appeal, Sherwood argues the district court denied him due process when it failed to appoint counsel to represent him after the State filed its response. We affirm because Sherwood's due process rights were not violated and summary denial was appropriate.

FACTUAL AND PROCEDURAL BACKGROUND

In 1997, Sherwood pled no contest to rape and aggravated criminal sodomy of a five-year-old child. The district court sentenced him to 404 months' imprisonment. The Court of Appeals affirmed, and we denied Sherwood's petition for review. State v. Sherwood , No. 79,794, 996 P.2d 848, unpublished opinion filed January 21, 2000 (Kan. App.), rev. denied 269 Kan. 939 (2000).

In January 2015, Sherwood filed a pro se K.S.A. 60-1507 motion and a poverty affidavit, alleging ineffective assistance of trial and appellate counsel and various sentencing errors. He explained that his motion was delayed because he had a learning disability and only recently found a prisoner willing to help him draft the motion. Sherwood later filed two more pro se motions: a motion asking for a copy of the transcripts and plea agreement in his case and a motion requesting the appointment of counsel.

In September 2015, the State filed a written response to Sherwood's K.S.A. 60-1507 motion. The State asked the court to summarily deny the motion because the motion was untimely, Sherwood's claims were conclusory, and he failed to establish a manifest injustice. Three days later, the district court summarily denied the motion with an order stating:

"Petitioner's demands are based on conclusory statements without any sufficient evidentiary references to support such. Further the petition is time barred due to a 10 year delay in filing this action with no argument suggesting or supporting the existence of manifest injustice to overcome the statutory time limit in filing."

Nine days after the order issued, Sherwood filed a pro se reply to the State's response. He acknowledged that his motion was untimely but claimed that a manifest injustice excused the delay. To this end, he argued that his learning disability prevented him from filing the motion on time and he struggled to find legal assistance. That same day, Sherwood also filed a motion to alter or amend the judgment, claiming the district court failed to address all of his arguments and to give him enough time to reply to the State's response. He also reiterated his manifest injustice arguments and requested an evidentiary hearing to resolve his K.S.A. 60-1507 motion. The district court denied these motions as well.

Sherwood raises two due process challenges on appeal. First, he argues the district court violated his due process rights when it failed to appoint counsel to represent him after the State filed a response to his K.S.A. 60-1507 motion. Second, he argues the Judicial Council's pro se K.S.A. 60-1507 form, which he allegedly used to draft his motion, violated his due process rights because it did not adequately inform him about the statutory requirements. See July 1, 2013 Judicial Council K.S.A. 60-1507 form.

Sherwood also argues the district court did not comply with Supreme Court Rule 183(j) (2019 Kan. S. Ct. R. 230), because it failed to "make findings of fact and conclusions of law on all issues presented," which precludes meaningful appellate review. Specifically, he claims the court failed to make findings on the Vontress factors to determine whether he established a manifest injustice. See Vontress v. State , 299 Kan. 607, 616, 325 P.3d 1114 (2014). Finally, he claims that his motion established a manifest injustice under Vontress . For these reasons, Sherwood asks us to reverse summary denial and remand for a hearing with appointed counsel.

The Court of Appeals affirmed, holding Sherwood's due process rights were not violated; the district court's findings were sufficient for appellate review; and summary denial was appropriate. Sherwood v. State , No. 115,899, 2017 WL 4321116, at *1, *3 (Kan. App. 2017) (unpublished opinion). We granted Sherwood's petition for review of these holdings, and he makes the same arguments as before.

We note that in the Court of Appeals, Sherwood also argued tangentially that the district court erred in denying his motion to alter or amend the judgment. The panel found this argument was abandoned for lack of briefing. 2017 WL 4321116, at *4. Sherwood did not petition this issue for review, so we decline to address it. See Supreme Court Rule 8.03(b)(6)(C)(i) (2019 Kan. S. Ct. R. 53).

ANALYSIS

Sherwood alleges two procedural due process violations that stem from his pro se status. He first argues the district court denied him due process when it failed to appoint counsel to represent him after the State filed a response to his K.S.A. 60-1507 motion. Then he argues the 2013 version of the Judicial Council's pro se K.S.A. 60-1507 form—which he relied on to draft his motion without the help of counsel—did not adequately inform him about the statutory time limits or the need to establish a manifest injustice to excuse his untimely motion. See K.S.A. 2018 Supp. 60-1507(f)(1)(A) (requiring an action to "be brought within one year of:

... 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"); K.S.A. 2018 Supp. 60-1507(f)(2) ("The time limitation herein may be extended by the court only to prevent a manifest injustice."). He claims these errors, taken together, compounded the due process violation.

Whether due process has been afforded is a question of law subject to unlimited review. Hogue v. Bruce , 279 Kan. 848, 850, 113 P.3d 234 (2005). We address each argument in turn and conclude Sherwood's due process rights were not violated for either reason.

Sherwood claims the filing of the State's response to his K.S.A. 60-1507 motion triggered his due process right to appointed counsel. He analogizes the district court's consideration of the State's written response to a hearing where the State was represented by counsel but he was not. In support, he points to decisions like State v. Hemphill , 286 Kan. 583, 596, 186 P.3d 777 (2008), which hold that due process requires a postconviction movant to be represented by counsel at a hearing where the State is represented by counsel unless the movant waives the right to counsel. See, e.g., Stevenson v. State , No. 96,082, 2007 WL 438745, at *2 (Kan. App. 2007) (unpublished opinion). The State does not challenge this precedent but counters that Sherwood's due process rights were not violated because considering a written response is different from holding a hearing. The Court of Appeals held that due process requires the appointment of counsel when a hearing takes place on a postconviction motion, but considering the State's response did not amount to holding a hearing. Sherwood , 2017 WL 4321116, at *3.

Today in Stewart v. State , 309 Kan. ––––, Syl. ¶ 2, 444 P.3d 955, 2019 WL 3047724 (No. 115149, this day decided), we considered the same arguments and affirmed that "if the court conducts a hearing at which the State will be represented by counsel, due process of law requires that the [ K.S.A. 60-1507 ] movant be represented by counsel unless the movant waives that right to counsel." But we also clarified that an actual hearing triggers the right. Stewart , 309 Kan. at ––––, slip op. at 15, 444 P.3d 955. Consequently, we held: "The State is permitted to file a written response to a K.S.A. 60-1507 motion. The district court's consideration of the State's response, standing alone, does not constitute a hearing for purposes of determining whether due process of law requires the movant to be represented by counsel." Stewart , 309 Kan. ––––, Syl. ¶ 3, 444 P.3d 955.

Following Stewart , we hold the filing of the State's response did not trigger Sherwood's right to appointed counsel. Moreover, the district court's consideration of the State's written response to Sherwood's pro se K.S.A. 60-1507 motion did not constitute a hearing. As a result, the district court did not violate due process when it declined to appoint counsel for Sherwood. Put simply, Sherwood's due process right to appointed counsel was not triggered because the court did not hold a hearing where the State was represented by counsel.

Next, Sherwood claims he modeled his motion after the Judicial Council's pro se K.S.A. 60-1507 form, and this form violated his due process rights because it did not adequately inform him about the statutory time limits or the manifest injustice exception. He argues the form encouraged him to file an invalid motion that would, inevitably, be summarily denied. The Court of Appeals rejected this argument, holding Sherwood was on constructive notice of K.S.A. 60-1507's timeliness requirements. Sherwood , 2017 WL 4321116, at *3.

Sherwood does not dispute that his motion was untimely and that, as a result, he needed to establish a manifest injustice to prevent summary dismissal. And we assume for purposes of this appeal that Sherwood relied on the 2013 Judicial Council form to draft his motion, even though he did not write his motion on that form. Indeed, Su...