Woods v. State

W
                           NOT DESIGNATED FOR PUBLICATION

                                             No. 122,604

               IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                          CLINT E. WOODS,
                                             Appellant,

                                                       v.

                                         STATE OF KANSAS,
                                             Appellee.


                                   MEMORANDUM OPINION

        Appeal from Sedgwick District Court, KEVIN M. SMITH, judge. Opinion filed May 21, 2021.
Affirmed.


        Wendie C. Miller, of Wichita, for appellant.


        Boyd K. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.


Before GARDNER, P.J., GREEN and BUSER, JJ.

        PER CURIAM: Clint E. Woods appeals the district court's summary denial of his
fourth K.S.A. 2020 Supp. 60-1507 motion as untimely and successive. Woods argues the
State's original complaint was so defective that it deprived the district court of subject
matter jurisdiction over his criminal case. Woods further argues that because the district
court did not originally have jurisdiction to hear the case, he does not need to establish
exceptions to an otherwise untimely and successive K.S.A. 60-1507 motion. But, because
Woods' motion was untimely and he fails to overcome that procedural bar, we affirm.



                                                       1
Factual and Procedural Background


       In 2003, the State charged Woods with two counts of first-degree murder and one
count of aggravated battery stemming from a gang fight that killed two people and
injured a third. State v. Woods, No. 93,417, 

2006 WL 851245

, *1 (Kan. App. 2006)
(unpublished opinion) (Woods I). Attorneys Steven Mank and Kurt Kerns represented
Woods and, in accordance with a plea agreement, Woods pleaded guilty to one count of
second-degree murder. At the plea hearing, Woods understood that both parties were
recommending a sentence of 258 months, but that the district court was not bound by the
recommendation and could sentence him to between 147 and 653 months' imprisonment.
Woods provided a factual basis for his guilty plea, and the court accepted his plea and
found him guilty of second-degree murder. 

2006 WL 851245

, at *1.


       Before sentencing, Woods moved to withdraw his plea, arguing he was innocent,
that his attorneys had not told him about the consequences of his plea, and that they had
improperly induced him to plead guilty. The district court appointed Michael Brown to
represent Woods and held an evidentiary hearing on his motion. The district court then
denied Woods' motion to withdraw his plea and sentenced him to 258 months'
imprisonment. Woods I, 

2006 WL 851245

, at *1.


       Woods appealed but this court affirmed. Woods I, 

2006 WL 851245

, at *2-3. The
Kansas Supreme Court then denied Woods' petition for review. Woods then began a
series of post-conviction motions. We summarize them here because the district court
relied on some of the earlier motions in ruling on his fourth K.S.A. 60-1507 motion,
which Woods now appeals.




                                            2
       Woods' First K.S.A. 60-1507 Motion

       In September 2007, Woods filed a timely pro se K.S.A. 60-1507 motion, arguing
Mank and Kerns provided unconstitutionally ineffective assistance of counsel by failing
"'to adequately investigate the facts and circumstances' of his case." Woods v. State, No.
105,948, 

2012 WL 6734507

, at *2 (Kan. App. 2012) (unpublished opinion) (Woods II).
Woods argued that Mank and Kerns failed to locate or interview two people who would
have established his alibi and failed to tell him before he entered his plea that another
witness had recanted his incriminating statements against him. 

2012 WL 6734507

, at *2.
Woods asserted that he had not raised this argument to the district court during his
motion to withdraw his plea because he did not realize the factual and legal significance
of these issues. 

2012 WL 6734507

, at *2.


       In May 2009, the district court held an evidentiary hearing on Woods' motion.
Woods II, 

2012 WL 6734507

, at *3. The district court then denied Woods' motion,
finding the eyewitness' recantation would not produce enough evidence to rise to the
level of the alleged alibi. The district court also held that Mank and Kerns were effective
and Woods was not prejudiced by their representation because he received a beneficial
plea bargain that substantially lessened the sentence he would have received had he been
convicted in a trial. 

2012 WL 6734507

, at *4.


       Woods appealed, arguing he had shown manifest injustice to permit withdrawal of
his guilty plea. This court declined to consider Woods' unpreserved claims regarding his
attorneys' alleged failure to interview additional individuals. Woods II, 

2012 WL
6734507

, at *6. This court also held that Woods' claims were barred by the doctrine of
res judicata because his 60-1507 motion raised "the exact same issue" that the district
court resolved on its merits during Woods' presentencing motion to withdraw his plea.

2012 WL 6734507

, at *6. The Kansas Supreme Court denied Woods' petition for review.



                                              3
       Woods' Second K.S.A. 60-1507 Motion

       In May 2014, Woods filed a second K.S.A. 60-1507 motion, again arguing that his
trial counsel provided ineffective representation by failing to investigate two witnesses'
changing statements and by misrepresenting the terms of his plea agreement. Woods v.
State, 

52 Kan. App. 2d 958

, 960-61, 

379 P.3d 1134

 (2016) (Woods III). Woods also
argued that Brown—his counsel at the hearing on his motion to withdraw his plea—was
ineffective because he failed to call Manuel Roach to testify despite knowing that Roach
would recant his statements implicating Woods. 

52 Kan. App. 2d at 959, 962

. With this
second 60-1507 motion, Woods submitted signed statements from supporting witnesses
which he characterized as newly discovered evidence. He argued these supported his
colorable claim of actual innocence and required the district court to consider his
arguments on their merits to avoid manifest injustice. 

52 Kan. App. 2d at 962

.


       The district court summarily denied the motion, holding that Woods made "'no
showing of manifest injustice'" and that his claims were barred by res judicata. Woods
appealed. Woods III, 

52 Kan. App. 2d at 962

.


       This court agreed that res judicata barred Woods' claims about "his attorney's
failure to fully investigate witnesses and their changing stories" and "his attorney's
representation about the length of his sentence." Woods III, 

52 Kan. App. 2d at 965

. As
for his first 60-1507 proceeding, the panel found that Woods waived and abandoned any
claims based on his attorney's failure to investigate a certain witness' changing stories,
noting that a defendant "cannot revive an abandoned point in a subsequent proceeding."

52 Kan. App. 2d at 966

.


       This court also addressed the effect of Woods' claim of actual innocence:




                                              4
       "[W]hat makes this case different from most K.S.A. 60-1507 cases is that we are faced
       with a guilty plea—and, more pressingly, one that has already withstood a challenge by
       way of a motion to withdraw a plea and a challenge under K.S.A. 60-1507 for ineffective
       assistance of counsel." 

52 Kan. App. 2d at 966

.


The panel held that Kansas courts presume "'[a] plea of guilty is admission of the truth of
the charge and every material fact alleged therein.'" Woods III, 

52 Kan. App. 2d at 966

-
67. And "[w]here judgment and sentence have been entered upon a plea of guilty, there
can be no review of the sufficiency of the evidence in a 60-1507 proceeding." 

52 Kan.
App. 2d at 967

. This court concluded:


       "Clearly a colorable claim of innocence can be the basis to find manifest injustice. That
       said, we do not need to reach Woods' assertion that a colorable claim of innocence may
       also be the basis for a finding of exceptional circumstances, because even if we did find
       that a colorable claim of innocence opens both gateways, it is still insufficient to override
       the longstanding rule that a freely and voluntarily entered guilty plea bars a collateral
       attack on the sufficiency of the evidence. Accordingly, we find that the district court did
       not err in summarily denying Woods' untimely and successive K.S.A. 60-1507 motion.
       [Citation omitted.]" 

52 Kan. App. 2d at 967-68

.


After this court affirmed the district court, Woods petitioned for review, which the
Kansas Supreme Court denied.


       Woods' Third K.S.A. 60-1507 Motion

       In December 2017, Woods filed a third pro se K.S.A. 60-1507 motion, once again
seeking to set aside his guilty plea. Woods v. State, No. 121,466, 

2020 WL 4250651

, at
*3 (Kan. App. 2020) (unpublished opinion) (Woods IV). This time, he argued the
following:




                                                     5
       "(1) Mank, Kerns, and Brown provided ineffective assistance of counsel; (2) the district
       court judge, the prosecutor, Mank, and Kerns conspired to deny Woods fair proceedings;
       (3) the State erred by initially charging him with first-degree murder and by arguing false
       facts at the sentencing hearing; (4) there was insufficient evidence to support a conviction
       for intentional second-degree murder; and (5) the district court erred when it failed to rule
       on a motion in the proceedings on his second K.S.A. 60-1507 motion." 

2020 WL
4250651

, at *3.


       Woods argued that the State erred by charging him with first-degree murder when
the facts, in his opinion, supported only a charge of involuntary manslaughter. Woods IV,

2020 WL 4250651

, at *4. He also alleged that the district judge did not specifically find
him guilty of second-degree intentional murder, so his conviction must be changed to
second-degree unintentional murder. 

2020 WL 4250651

, at *4. He also raised a new
claim that Mank and Kerns were ineffective in failing to obtain relevant Giglio and Brady
evidence about Detective Robert Chisholm and Officer James Espinoza. 

2020 WL
4250651

, at *3; see Giglio v. United States, 

405 U.S. 150

, 

92 S. Ct. 763

, 

31 L. Ed. 2d 104

(1972); Brady v. Maryland, 

373 U.S. 83

, 

83 S. Ct. 1194

, 

10 L. Ed. 2d 215

 (1963).


       In January 2019, Woods moved to amend his 60-1507 motion to add claims of a
defective complaint and lack of jurisdiction. Woods IV, 

2020 WL 4250651

, at *4. He
argued that his conviction should be reversed and vacated because the 2003 complaint
was fatally defective in charging him with crimes that the State knew were not supported
by the evidence. 

2020 WL 4250651

, at *4.


       The district court held that Woods' prior proceedings had addressed the issues in
his motion but ordered the parties to submit proposed findings of facts and conclusions of
law. Woods IV, 

2020 WL 4250651

, at *4. In May 2019, the district court held: "'All
claims by movant in this motion and his motion to alter and amend either have been or
could have been raised in his prior motions, and are therefore barred from subsequent
litigation.'" 

2020 WL 4250651

, at *4. The district court found Woods' motion untimely

                                                    6
and successive and held that Woods had failed to show why the court should have
considered it anyway. The district court denied the motion and Woods' motion to alter or
amend. 

2020 WL 4250651

, at *8-9.


       Woods timely appealed. On appeal, Woods argued that the district court's denial of
his third 60-1507 motion led to manifest injustice because the motion stemmed from the
"newly discovered" Brady and Giglio evidence, and because he alleged actual innocence.
Woods IV, 

2020 WL 4250651

, at *4. He also argued that the exceptional circumstance of
"'a colorable claim of actual innocence based on the failure to the State of Kansas to
disclose Giglio and Brady information on the investigating law enforcement officers'"
justified consideration of his third 60-1507 motion despite it being successive. 

2020 WL
4250651

, at *4.


       Because Woods was unable to show when he "received" the purported Giglio and
Brady impeachment evidence, a panel of this court found he failed to prove by a
preponderance of the evidence a valid reason as to why the motion was untimely. Woods
IV, 

2020 WL 4250651

, at *6. The panel held that Woods failed to establish manifest
injustice would result from a failure to consider his untimely K.S.A. 60-1507 motion
because he did not argue and could not prove by a preponderance of the evidence that he
had a colorable claim of innocence. The panel also held that because he could not
articulate when or how he learned of this alleged impeachment evidence, he failed to
establish by a preponderance of the evidence that an exceptional circumstance had
prevented him from raising the Giglio and Brady claims in a prior K.S.A. 60-1507
motion. 

2020 WL 4250651

, at *6-7.


       The panel also reviewed Woods' motion to alter or amend the third K.S.A. 60-
1507 motion. The motion raised the new issue of a defective complaint and the effect it
had on the district court's subject matter jurisdiction to hear the original criminal case.
The panel then held that Woods did not successfully argue an exceptional circumstance

                                              7
prevented him from arguing a defective complaint issue in earlier K.S.A. 60-1507
proceedings. The panel also held Woods' motion to alter or amend was untimely and that
he had not successfully argued manifest injustice would occur if the merits of his current
claims went unconsidered. 

2020 WL 4250651

, at *8-9.


       The panel affirmed the district court's summary dismissal of the K.S.A. 60-1507
motion and the motion to alter or amend. 

2020 WL 4250651

, at *10.


       Woods' Fourth and Current K.S.A. 60-1507 Motion


       In February 2019, Woods filed a fourth K.S.A. 60-1507 motion, once again asking
the court to reverse his conviction and vacate his sentence. Woods argued that the facts
could have supported only a voluntary or involuntary manslaughter conviction, not a
second-degree murder conviction. He also argued that the original charging document
omitted facts that the State was aware of. For example, the State "had full knowledge"
that "each victim was in fact shot with different guns, there [were] multiple shooters, this
'shoot-out' was the result[] from a group fight that 'all of a sudden' turned into a shooting
match," and that Woods' "co-defendant M. Roach had already admitted to shooting [one
of the victims] and was charged with this." He argued that the prosecutor's factual basis at
sentencing was insufficient and contradicted the crimes charged in the complaint.
Because of these reasons, Woods argued that the complaint was defective and that the
State had failed to properly invoke the subject matter jurisdiction of the district court.


       The district court summarily denied Woods' fourth K.S.A. 60-1507 motion. The
district court determined that Woods' motion was untimely, successive, and barred for
reasons already provided in 17 CV 2789 (Woods II). The court found that Woods had or
could have raised his claims in previous motions, and that it had addressed his arguments
in 17 CV 2789 (Woods II). The district court also referenced this court's previous ruling


                                              8
and found that any claims raised in Woods' second 60-1507 motion were barred by res
judicata or otherwise waived.


        Woods timely appeals.


Did the District Court Commit Error by Summarily Denying Woods' Fourth K.S.A. 2020
Supp. 60-1507 Motion?


        Woods argues that the district court erred in summarily denying his fourth K.S.A.
60-1507 motion because a defective complaint challenge raises a jurisdictional issue,
which he can raise at any time. He argues that the original complaint charging him with
two counts of first-degree murder and one count of aggravated assault was so defective
that it failed to invoke the district court's subject matter jurisdiction over the case. As
support for his claim, Woods argues that the State had insufficient evidence to charge
him with the crimes listed in the original complaint and thus lacked subject matter
jurisdiction over the case.


        But Woods' argument that the original complaint is defective is irrelevant—Woods
did not plead guilty to the original complaint. Rather, Woods pleaded guilty to an
amended complaint of only one count of second-degree murder. And Woods does not
argue the amended complaint was defective; thus, he waives and abandons this argument.
See State v. Roberts, 

310 Kan. 5

, 13, 

444 P.3d 982

 (2019). Although we could deny
Woods' motion on this basis alone, we address the district court's ruling that his motion
was untimely, although other grounds to deny or dismiss the motion may be correct as
well.




                                               9
       Standard of Review and Basic Legal Principles


       A movant has the burden to prove his or her K.S.A. 60-1507 motion warrants an
evidentiary hearing in the district court. Thuko v. State, 

310 Kan. 74

, 80-81, 

444 P.3d 927

(2019). A district court may summarily dismiss a 60-1507 motion that is untimely or
successive. See K.S.A. 2020 Supp. 60-1507(c), (f). When the district court summarily
dismisses a 60-1507 motion, an appellate court conducts a de novo review to determine
whether the motion, files, and records of the case conclusively establish that the movant
is not entitled to relief. Beauclair v. State, 

308 Kan. 284

, 293, 

419 P.3d 1180

 (2018).


       Woods contends that the district court lacked jurisdiction to take his plea because
the complaint was defective. But the Kansas Supreme Court has held that procedural bars
to untimely and successive 60-1507 motions also apply to motions arguing that a
defective complaint deprived the district court of jurisdiction. See State v. Robertson, 

309
Kan. 602

, 608-09, 

439 P.3d 898

 (2019). The district court held that Woods' fourth motion
was both untimely and successive.


       Woods' Motion Was Untimely.


       Courts are required to dismiss a motion as untimely if, after an inspection of the
motion, files, and records of the case, the court determines that the time limitations have
been exceeded and that dismissing the motion would not amount to manifest injustice.
K.S.A. 2020 Supp. 60-1507(f)(3). The district court did that.


       A defendant has one year from when a conviction becomes final to file a motion
under K.S.A. 2020 Supp. 60-1507(a). K.S.A. 2020 Supp. 60-1507(f)(1)(A). But Woods'
fourth 60-1507 motion was filed more than 11 years after the termination of appellate
jurisdiction over his direct appeal. See K.S.A. 2020 Supp. 60-1507(f) (stating that 60-


                                             10
1507 motions must be brought within one year of the termination of state appellate
jurisdiction). His motion was thus untimely.


       Woods Fails to Establish Manifest Injustice.


       If the defendant fails to timely file, he or she must establish that a manifest
injustice would result if the district court does not review the motion. K.S.A. 2020 Supp.
60-1507(f)(2)(A). Because Woods' 60-1507 motion was untimely, he must show that
manifest injustice would occur if the district court declined to consider the merits of his
claim. See Thuko, 

310 Kan. at 80-81

. Woods fails to meet his burden here.


       "For purposes of finding manifest injustice under this section, the court's inquiry
shall be limited to determining why the prisoner failed to file the motion within the one-
year time limitation or whether the prisoner makes a colorable claim of actual
innocence." K.S.A. 2020 Supp. 60-1507(f)(2)(A). The movant bears the burden to prove
manifest injustice by a preponderance of the evidence. Supreme Court Rule 183(g) (2021
Kan. S. Ct. R. 239). We address these two factors below.


              Reasons for Untimely Filing


       Woods asserts only that he can raise jurisdictional issues at any time, so he need
not prove "manifest injustice" for the panel to consider his fourth 60-1507 motion. But
Woods essentially provides no argument to support why he could not have filed within
the one-year time limit required under the statute. He unsuccessfully raised these same
arguments in a motion to alter or amend a previous 60-1507 motion, when a panel of this
court held that charging instruments are not jurisdictional. See Woods IV, 

2020 WL
4250651

, at *8-9. And because Woods' third 60-1507 motion was untimely, it follows
that his current motion, filed later, was also untimely.


                                             11
       By failing to argue any circumstance that prevented him from filing on time,
Woods fails to prove by a preponderance of the evidence that he could not have filed this
60-1507 motion within the required time restrictions.


              Colorable Claim of Actual Innocence


       The district court can extend the time limitation for K.S.A. 60-1507 motions if the
movant makes a "colorable claim of actual innocence." K.S.A. 2020 Supp. 60-
1507(f)(2)(A). This requires the movant to show "it is more likely than not that no
reasonable juror would have convicted the prisoner in light of new evidence." K.S.A. 60-
1507(f)(2)(A). But Woods does not argue that he has a colorable claim of innocence;
thus, he has waived or abandoned this claim. See Roberts, 

310 Kan. at 13

.


       Nor does he argue that either actual innocence or "new evidence" warrants an
exception under the manifest injustice exception. Although he argues the State had
insufficient evidence to charge him with first-degree murder, he does not make an
explicit plea of innocence. Instead, he argues the State could have charged him with only
one count of voluntary or involuntary manslaughter. But Woods unsuccessfully argued
this insufficient evidence claim in his previous 60-1507 motion. Woods III, 

52 Kan. App.
2d at 967

. There, a panel held that even if Woods had made a colorable claim of
innocence "it [was] still insufficient to override the longstanding rule that a freely and
voluntarily entered guilty plea bars a collateral attack on the sufficiency of the evidence."

52 Kan. App. 2d at 967-68

. That rule applies here as well.


       Woods fails to show by a preponderance of the evidence that manifest injustice
would result from the district court's refusal to consider the merits of his untimely K.S.A.
60-1507 motion. Thus, the district court did not err in denying the motion as untimely.




                                             12
       Illegal Sentence


       Although Woods does not mention such a challenge in his original brief, he argues
in his reply brief that the district court imposed an illegal sentence. He then asks the panel
to remand for resentencing. Supreme Court Rule 6.05 provides: "A reply brief may not
be submitted unless made necessary by new material contained in the appellee's or cross-
appellee's brief." (2021 Kan. S. Ct. R. 37.) Kansas caselaw provides that an appellant
may not raise new issues in a reply brief. State v. McCullough, 

293 Kan. 970

, 984, 

270
P.3d 1142

 (2012). Woods does so here. Because the illegal sentence issue was first raised
in Woods' reply brief, we decline to address this issue.


       Affirmed.




                                             13

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