Thuko v. State, 444 P.3d 927

Background

Thuko was convicted of rape and attempted rape in 2004 and sentenced to 202 months' imprisonment; direct appeal and prior collateral challenges were denied.
He filed a second K.S.A. 60-1507 motion in 2014 claiming (1) newly discovered evidence that he or trial counsel were absent during communications between the trial court and jury, (2) trial court erred by not giving a battery lesser-included instruction, and (3) appellate counsel was ineffective for failing to raise multiplicity.
The district court requested and received the State's written response, then summarily denied the motion as untimely (filed >1 year after direct appeal) and successive, finding no manifest injustice or exceptional circumstances.
The Court of Appeals affirmed, holding the court need not appoint counsel when it only reviews the State's written response and that Thuko failed to show manifest injustice or exceptional circumstances.
The Kansas Supreme Court affirmed, applying its decision in Stewart to hold no statutory or due-process right to appointed counsel arose from the court's receipt of a written response and concluding Thuko failed to meet the burdens for an evidentiary hearing (manifest injustice and exceptional circumstances).

Issues

Issue	Plaintiff's Argument (Thuko)	Defendant's Argument (State)	Held
Whether appointment of counsel was required after the court solicited and received the State's written response to a pro se 60-1507 motion	District court’s solicitation of the State’s response triggered a need for appointed counsel; failure violated due process and protocol	Reviewing a written response is not the functional equivalent of a hearing and does not require appointment; appointment only required if court determines motion presents substantial questions or holds a hearing	Court held no requirement to appoint counsel where court concluded motion, files, and record showed no substantial question and no hearing was held; affirmed Court of Appeals
Whether failure to appoint counsel violated due process because State was represented in the preliminary process	Thuko: due process barred the court from considering the State’s submission without appointed counsel for movant	State: due process requires counsel only if a preliminary hearing is held with State’s counsel present; mere written submissions do not trigger that right	Court held due process requires counsel only when an actual preliminary hearing occurs with State represented; mere written response review does not implicate due process
Whether Thuko established manifest injustice to excuse untimeliness of his 60-1507 motion	Thuko: newly discovered evidence (absence during jury communications) excuses delay and merits an evidentiary hearing	State: claimed the asserted evidence was discoverable earlier and Thuko did not detail what was newly discovered or when; merits are not colorable	Court held Thuko failed to show newly discovered evidence with particulars, failed Vontress factors, and did not carry the burden of proving manifest injustice
Whether exceptional circumstances justify entertaining a successive 60-1507 motion	Thuko: ineffective assistance of appellate counsel and newly articulated arguments justify a successive motion	State: alleged appellate ineffectiveness occurred before his first 60-1507 and was already raised; no intervening event or new law; no exceptional circumstances	Court held Thuko did not show exceptional circumstances (claims were previously raised or could have been raised); successive motion properly denied

Key Cases Cited

Lujan v. State, 270 Kan. 163 (outlining district court options on handling 60-1507 motions)
Vontress v. State, 299 Kan. 607 (defines "manifest injustice" and factors to consider)
Sola-Morales v. State, 300 Kan. 875 (movant must plead more than conclusory allegations to obtain evidentiary hearing)
State v. King, 297 Kan. 955 (defendant's presence required for answering certain jury questions; harmless-error analysis applies)
Beauclair v. State, 308 Kan. 284 (discusses exceptional circumstances and actual innocence standard)
Nguyen v. State, 309 Kan. 96 (treatment of successive 60-1507 motions and exceptions)
Dunlap v. State, 221 Kan. 268 (successive 60-1507 motions disfavored absent exceptional circumstances)