McIntyre v. State, 385 P.3d 930

Terry D. McIntyre was convicted by a Douglas County jury of multiple violent felonies and sentenced to 645 months; his convictions were affirmed on direct appeal (rev. denied).
McIntyre filed a pro se K.S.A. 60-1507 motion in 2002 alleging ineffective assistance of trial and appellate counsel; the district court denied relief and the Court of Appeals affirmed in 2007.
McIntyre retained John W. Fay for the 2007 60-1507 appeal; Fay handled the appeal that was ultimately affirmed by the Court of Appeals.
In December 2012 McIntyre filed a new K.S.A. 60-1507 motion asserting Fay had provided ineffective assistance on the prior 60-1507 appeal. The State did not respond in district court.
The district court denied the 2012 motion on the ground McIntyre had no Sixth Amendment right to counsel in a collateral appeal. The Court of Appeals affirmed, holding the 2012 motion was untimely under K.S.A. 60-1507(f)(1) and that timeliness was a nonwaivable jurisdictional bar.
The Kansas Supreme Court granted review, held that when a trial court decides the merits without objection the appellate courts will presume the court found facts necessary to support its judgment, and remanded to the Court of Appeals to decide the substantive ineffective-assistance claim.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a K.S.A. 60-1507 motion filed after the statutory 1-year deadline can be considered when the district court addresses the merits without the State objecting	McIntyre: district court addressed the substantive claim; absence of State objection means the court must have treated the motion as timely or as saved by manifest injustice	State: the statutory 1-year limitation in K.S.A. 60-1507(f)(1) bars the late filing as a matter of law and is not waivable by the State	Court: when the district court addresses the merits and the State did not object, appellate courts will presume the district court found the motion timely or applied the manifest-injustice exception; remanded for consideration of the ineffective-assistance claim
Whether McIntyre has a Sixth Amendment right to appointed counsel on collateral appeal	McIntyre argued ineffective assistance of retained appellate counsel justifies review on the merits	State argued there is no Sixth Amendment right to counsel on collateral proceedings, so the claim fails	Court did not decide the constitutional question; presumption about the district court s finding made resolution unnecessary at this stage

O'Brien v. Leegin Creative Leather Prods., Inc., 294 Kan. 318 (court presumes trial court found facts necessary to support its judgment when no objection was made)
State v. Dern, 303 Kan. 384 (similar rule on appellate presumption where trial court findings were unchallenged)
State v. McIntyre, 274 Kan. 1116 (denial of review of the direct-appeal affirmance)