Thuko v. State

• Decision Date: 12 July 2019
• Docket Number: No. 115,662,115,662
• Parties: Fidelis K. THUKO, Appellant, v. STATE of Kansas, Appellee.
• Court: Kansas Supreme Court

444 P.3d 927

Fidelis K. THUKO, Appellant,

v.STATE of Kansas, Appellee.

No. 115,662

Supreme Court of Kansas.

Opinion filed July 12, 2019.

Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, and Krystle M.S. Dalke, of the same firm, were on the brief for appellant.

Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, Wichita, and Derek Schmidt, attorney general, Topeka, were on the brief for appellee.

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

Fidelis K. Thuko seeks our review of the Court of Appeals' decision affirming the district court's summary denial of his second K.S.A. 60-1507 motion. He argues that the district court violated his due process rights when it failed to appoint counsel to represent him after requesting and receiving the State's response to his pro se motion. Thuko also contends that he is entitled to an evidentiary hearing on his motion based upon exceptions that would permit his untimely and successive filing. Finding no error, we affirm the lower courts.

FACTUAL AND PROCEDURAL OVERVIEW

In 2004, the State charged Thuko in two separate cases with a total of five counts of rape and one count of attempted rape. The charges were based on incidents involving four women: M.A.S.; N.N.K; E.A.B.; and S.L.S. On the State's motion, the trial court consolidated the cases for a jury trial. The jury found Thuko guilty of rape and attempted rape of M.A.S.; not guilty of another count of rape of M.A.S.; not guilty of rape of N.N.K.; and not guilty of rape of E.A.B. The jury could not reach a verdict on the charge of rape of S.L.S. and the State later dismissed this charge. The court sentenced Thuko to 147 months' imprisonment for rape and 55 months' imprisonment for attempted rape, to run consecutive to each other, for a total of 202 months' imprisonment.

On direct appeal, Thuko argued: (1) the trial court abused its discretion in consolidating the two cases against him, (2) his speedy trial rights were violated, (3) prosecutorial misconduct denied him a fair trial, and (4) cumulative error. State v. Thuko , No. 94,228, 2007 WL 92642 (Kan. App. 2007) (unpublished opinion), rev. denied 284 Kan. 951 (2007) ( Thuko I ). The Court of Appeals rejected Thuko's claims and affirmed the district court. 2007 WL 92642, at *4. This court denied review.

In 2008, Thuko filed his first 60-1507 motion. According to the Court of Appeals' opinion in that case, Thuko raised five claims: (1) he was denied effective assistance of trial counsel; (2) the district court's failure to guide the jury and answer a jury question denied him a fair trial; (3) he was denied effective assistance of appellate counsel; (4) he was denied his right to DNA testing; and (5) the State withheld exculpatory evidence. The district court dismissed the motion and Thuko appealed. Thuko v. State , No. 101,168, 2010 WL 1253623, at *1 (Kan. App. 2010) (unpublished opinion) ( Thuko II ).

The Thuko II panel rejected all of Thuko's claims except for his DNA testing claim, which the panel remanded to the district court for consideration. 2010 WL 1253623, at *1-3 (Kan. App. 2010). On remand, the district court denied Thuko's request for DNA testing, the Court of Appeals affirmed, and this court denied review. Thuko v. State , No. 106,535, 2012 WL 5974014 (Kan. App. 2012) (unpublished opinion), rev. denied 297 Kan. 1257 (2013) ( Thuko III ).

In 2013, Thuko filed a K.S.A. 22-3504 motion to correct an illegal sentence, arguing his convictions for rape and attempted rape of M.A.S. were multiplicitous in violation of double jeopardy and K.S.A. 21-3107(2)(c). The district court summarily denied the motion as "without merit." The Court of Appeals summarily affirmed the district court. Thuko did not petition this court for review.

On December 30, 2014, Thuko filed his second 60-1507 motion, which is the motion currently before this court. Thuko moved for an evidentiary hearing based on "[n]ewly discovered evidence that [Thuko] or [Thuko's] attorney was never present during all communication by the Court to the Jury during trial concerning all jury questions." He also claimed that (1) the trial court erred in failing to instruct the jury on battery as a lesser included offense, and (2) his appellate counsel was ineffective for failing to raise a multiplicity argument.

With regard to his jury questions claim, Thuko argued "the Court[']s failure to call the Jury, the defendant, his counsel and the prosecutor in open court in order to answer the jury question cumulated into a manifest injustice on the defendant because it violated his sixth amendments [sic ] right to confront the jury, offer any assistance to his counsel and exert psychological influence on the jury." He additionally asserted a violation of his right to be present at all critical stages of the proceedings.

On May 19, 2015, the district court requested a response from the State. On July 1, 2015, the State's attorney filed a response to Thuko's motion, asserting that Thuko was raising trial errors that were evident at the time of trial and that should have been raised in his direct appeal and/or in his first 60-1507 motion. Further, the State argued Thuko had not met his burden of establishing manifest injustice and exceptional circumstances to avoid the procedural bars of 60-1507 and allow the district court to reach the merits of his untimely and successive motion.

The district court summarily denied Thuko's motion for failure to meet the procedural requirements of K.S.A. 60-1507. The court found Thuko's motion was untimely and Thuko did not recognize or request application of the manifest injustice exception or explain the delay in filing his new claims. The court reasoned that the issues Thuko raised were evident and actionable since the time of trial. The court further found the motion was successive and Thuko failed to establish exceptional circumstances to excuse his failure to raise the issues in his prior 60-1507 motion.

Thuko appealed and the Court of Appeals affirmed the district court's summary denial. The panel rejected Thuko's claim that the district court violated his due process rights when it failed to appoint counsel to represent him after requesting and receiving the State's response. Thuko v. State , No. 115,662, 2017 WL 2709779, at *3 (Kan. App. 2017) (unpublished opinion) ( Thuko IV ). The panel further found that Thuko failed to demonstrate manifest injustice or exceptional circumstances to allow the district court to consider his untimely, successive motion. 2017 WL 2709779, at *3-6.

Thuko 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.

RIGHT TO APPOINTED COUNSEL IN A K.S.A. 60-1507 MOTION PROCEEDING

Thuko contends that the district court violated his due process rights when it solicited a written response from the State's attorney, but then failed to appoint counsel to represent Thuko. He also asserts that the failure to appoint him counsel violated the protocol on handling 60-1507 motions established by caselaw. See, e.g. Lujan v. State , 270 Kan. 163, 170-71, 14 P.3d 424 (2000) (outlining three avenues a district court can take upon receiving a 60-1507 motion).

One of the cases upon which Thuko relies is the Court of Appeals' decision in Stewart v. State , No. 115,149, 2017 WL 2901146 (Kan. App. 2017) (unpublished opinion), which is now supplanted by our decision in that case, Stewart v. State , 309 Kan. ––––, 444 P.3d 955, 2019 WL 3047724 (2019) (No. 115,147, this day decided). See Supreme Court Rule 8.03(k)(2) (2019 Kan. S. Ct. R. 53) (if petition for review granted, Court of Appeals decision has no force or effect).

Standard of Review

The extent of Thuko's statutory right to counsel during a K.S.A. 60-1507 proceeding is a question of law over which this court has unlimited review. See Mundy v. State , 307 Kan. 280, 294, 408 P.3d 965 (2018) (quoting Robertson v. State , 288 Kan. 217, 227, 201 P.3d 691 [2009] ); see also Thompson v. State , 293 Kan. 704, 710, 270 P.3d 1089 (2011) (interpretation of statutes and Supreme Court rules reviewable de novo). Likewise, Thuko's due process claim presents a question of law over which we exercise unlimited review. See Hogue v. Bruce , 279 Kan. 848, 850, 113 P.3d 234 (2005).

Analysis

As noted, in Stewart , we addressed the question of whether the district court's consideration of a written response from an attorney for the State mandated the appointment of counsel for an indigent 60-1507 movant. We held that the district court's review of the State's response to a 60-1507 motion, standing alone, did not trigger an indigent movant's right to be appointed counsel. That portion of the Court of Appeals' decision was overruled. Stewart , 309 Kan. at ––––, 444 P.3d 955, slip op. at 3.

In Stewart , we reiterated that a 60-1507 movant has no constitutional right to the effective assistance of counsel in the postconviction proceedings, but that, under some circumstances, a statutory right to counsel exists for such a collateral attack. Stewart , 309 Kan. at ––––, 444 P.3d 955, slip op. at 7-9. Specifically, pursuant to K.S.A. 22-4506(b), "a district court has a statutory duty to appoint an attorney to represent an indigent 60-1507 movant whenever the motion presents substantial questions of law or triable issues of fact." Stewart , 309 Kan. at ––––, 444 P.3d 955, slip op. at 9.

But during the period in which the district court is making its determination of whether the motion, files, and record present a substantial question of law or triable issue of fact—for example, after the district court has discerned a potentially substantial issue—"the district court may, but is not required to, appoint an indigent 60-1507 movant an attorney." Stewart , 309 Kan. at ––––, 444 P.3d 955, slip op. at 11-12. On the other hand, if the district court conducts a preliminary hearing to determine whether substantial issues...