State v. Mitchell, 107,022.

• Decision Date: 12 April 2013
• Docket Number: No. 107,022.,107,022.
• Parties: STATE of Kansas, Appellee, v. Michael J. MITCHELL, Appellant.
• Court: Kansas Supreme Court

297 Kan. 118

298 P.3d 349

STATE of Kansas, Appellee,

v.Michael J. MITCHELL, Appellant.

No. 107,022.

Supreme Court of Kansas.

April 12, 2013.

Syllabus by the Court

1. K.S.A. 60–1507 provides the exclusive statutory remedy to collaterally attack a criminal conviction and sentence. K.S.A.2012 Supp. 60–260(b)(4) cannot be used in a criminal proceeding to collaterally attack a criminal conviction and sentence.

2. A district court's erroneous refusal to give a requested jury instruction does not render the judgment of conviction void.

3. Generally, when an appellate court decision changes the law, that change acts prospectively and applies only to all cases, state or federal, that are pending on direct review or not yet final on the date of the appellate court decision.

Serena A. Hawkins, of Kansas City, was on the brief for appellant.

Cathy A. Eaton, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, were on the brief for appellee.

The opinion of the court was delivered by JOHNSON, J.:

In 1995, a jury convicted Michael Mitchell of felony murder. On direct appeal, this court affirmed the conviction. State v. Mitchell, 262 Kan. 687, 942 P.2d 1 (1997) (Mitchell I ). Mitchell then unsuccessfully sought relief based on allegations of ineffective assistance of counsel through two K.S.A. 60–1507 motions, one filed in 1998 and the other in 2005. In this proceeding, Mitchell filed a motion pursuant to K.S.A.2012 Supp. 60–260(b)(4) in 2011, claiming that the district court's refusal to give his requested lesser included offense instructions on the felony-murder charge rendered void his conviction and sentence for that charge. Although Mitchell raises three issues in his brief, the case is resolved by our determination that K.S.A.2012 Supp. 60–260(b)(4) does not provide a procedure for a criminal defendant to obtain postconviction relief from his or her conviction or sentence. Accordingly, we affirm the district court's summary denial of Mitchell's motion to void judgment.

Factual and Procedural Overview

The facts that led to Mitchell's convictions for felony murder and cocaine possession are detailed in Mitchell I and need not be fully recited here. It is enough to know that the murder occurred during a drug deal “gone wrong,” in which Mitchell was an armed cocaine dealer and the shot-to-death victim was an armed cocaine buyer. 262 Kan. at 688, 942 P.2d 1. Accordingly, Mitchell's felony-murder charge was based on the underlying inherently dangerous felony of sale of cocaine. 262 Kan. at 691, 942 P.2d 1.

At trial, defense counsel requested that the district court instruct the jury on the crimes of voluntary manslaughter and involuntary manslaughter as lesser included offenses of the felony-murder charge. The district court applied the then-existing law and determined that lesser included offense instructions were not warranted for the felony-murder charge in this case because “there is substantial evidence that this all arose out of a drug transaction,” that is, the evidence of the underlying felony was not so weak as to permit lesser included offense instructions.

Mitchell did not include the district court's refusal of the requested lesser included offense instructions among the issues that he raised in his direct appeal. Likewise, he did not complain about the omitted instructions in his two postconviction motions under K.S.A. 60–1507. Instead, he waited until 16 years after his conviction to seek relief on that basis by filing a 60–260(b)(4) motion in September 2011, alleging that his judgment of conviction was void because of the omitted lesser included offense instructions.

The district court summarily denied the 60–260(b)(4) motion for three reasons. First, the district court determined that the motion was filed outside of the applicable statute of limitations for motions to correct an illegal sentence and K.S.A. 60–1507, respectively, making the motion untimely. Second, the district court found that the issues could have and should have been raised in Mitchell's direct appeal or two prior 60–1507 motions, making the current motion a successive claim. Finally, the district court determined that failure to instruct the jury on lesser included offenses of felony murder was not erroneous, i.e., the motion was without merit. Mitchell filed a direct appeal to this court.

Application of K.S.A.2012 Supp. 60–260(b)(4) in Criminal Cases

Mitchell's pro se motion did not cite to State v. Berry, 292 Kan. 493, 254 P.3d 1276 (2011), albeit the arguments in the motion make it apparent that Berry 's change in the law was the impetus behind the current motion. Moreover, Mitchell's appellate brief cites to and relies upon Berry 's holding.

Berry eliminated the court-made rule that assessed the propriety of lesser included offense instructions for felony-murder charges by looking at whether the evidence of the underlying felony was weak and inconclusive. 292 Kan. at 513, 254 P.3d 1276. Instead of the special rule for felony murder, which was utilized at Mitchell's trial, Berry simply applied the then-existing statutory provisions of K.S.A.2012 Supp. 22–3414(3) to assess whether “there is some evidence which would reasonably justify a conviction of [the] lesser included crime[s].” Mitchell would apparently have us find that the effect of Berry was to retroactively void his 16-year-old conviction for felony murder.

Mitchell acknowledges that the current caselaw, specifically Smith v. State, 199 Kan. 132, 135, 427 P.2d 625 (1967), clearly establishes that K.S.A. 60–1507 is the exclusive remedy for a prisoner to collaterally attack a conviction and sentence in a criminal case; K.S.A.2012 Supp. 60–260(b) is not available for that purpose. But Mitchell asserts that he is foreclosed from seeking relief under K.S.A. 60–1507 because he has already filed two previous 1507 motions and the time limitation of K.S.A. 60–1507(f) has run, i.e., a 1507 motion now would be susceptible to dismissal as being untimely and successive, just like his second, 2005 motion. Accordingly, Mitchell urges us to overrule Smith in order to permit K.S.A.2012 Supp. 60–260(b)(4) to be available to correct an allegedly void criminal conviction and sentence where all other avenues available to a criminal defendant have been exhausted. For the several reasonsset forth below, we decline Mitchell's invitation to create an alternate postconviction relief mechanism for criminal defendants through the relief from civil judgment procedure of K.S.A.2012 Supp. 60–260(b)(4).

Standard of Review

Our determination of whether K.S.A.2012 Supp. 60–260(b) can be utilized by a criminal defendant to present a postconviction challenge to his or her conviction or sentence, after the generally exclusive remedy under K.S.A. 60–1507 has been foreclosed, involves issues of statutory and caselaw interpretation and is therefore a question of law. See State v. Carapezza, 293 Kan. 1071, 1075, 272 P.3d 10 (2012). This court exercises unlimited review over questions of law. State v. May, 293 Kan. 858, 862, 269 P.3d 1260 (2012).

Analysis

We begin with the precedent that Mitchell concedes is directly contrary to his position. In Smith, the defendant sought to challenge the voluntariness of his guilty plea to a charge of second-degree burglary. He first sought to collaterally attack his sentence through a K.S.A. 60–1507 motion, but he was denied relief because he was incarcerated on other sentences at the time. The defendant then attempted to file a motion pursuant to 60–260(b), claiming that procedure was available because he was foreclosed from using a 60–1507 motion. The Smith court disagreed with that rationale, explaining:

“The legislature by enacting K.S.A. 60–1507 specifically authorized a prisoner in custody under a sentence of a court of general jurisdiction claiming the right to be released to initiate action in the sentencing court upon the grounds specified therein to vacate, set aside or correct the sentence. We hold this to be the exclusive statutory remedy authorizing a prisoner in custody under sentence of a court of general jurisdiction to make a collateral attack upon the sentence in a criminal case, and that K.S.A. 60–260 is not available to him for this purpose.” 199 Kan. at 135, 427 P.2d 625.

Obviously, if we simply apply Smith 's holding—that K.S.A. 60–1507 is the exclusive statutory remedy to collaterally attack a sentence and that K.S.A.2012 Supp. 60–260 is not available to a criminaldefendant for that purpose—we must affirm the district court's denial of Mitchell's motion. Although Mitchell appears to concede that he loses this appeal unless this court overrules Smith, he fails to present any credible legal reason for our abandoning the prior ruling. Rather, he appears to make an equitable argument based upon our changing the felony-murder rule on lesser included offense instructions in Berry. In that vein, Mitchell contends that we should abandon or modify the Smith rule to allow prisoners to attack their sentences with a 60–260(b)(4) motion whenever relevant new caselaw is established after the prisoner is foreclosed from pursuing a K.S.A. 60–1507 motion. That argument is statutorily, equitably, and logically unsupportable.

The Smith rule finds support in our statutes and Supreme Court Rules addressing K.S.A. 60–1507. K.S.A. 60–1507(e), labeled “Exclusiveness of remedy,” provides that the remedy of a writ of habeas corpus is excluded where a prisoner is authorized to apply for relief with a 1507 motion, suggesting that K.S.A. 60–1507 is the exclusive postconviction procedure. Further, Supreme Court Rule 183(b) (2012 Kan. Ct. R. Annot. 275) provides: “The remedy afforded by K.S.A. 60–1507 is exclusive unless it is inadequate or ineffective to test the legality of a movant's custody.”

On the flip side, K.S.A.2012 Supp. 60–260(b) is part of the Kansas Code of Civil Procedure and is contained within Article 2 of...