The opinion of the court was delivered by
Alan W. Kingsley appeals from a summary denial of his pro se motion for relief from his first-degree murder conviction, which he filed pursuant to K.S.A. 2011 Supp. 60-260(b)(4), K.S.A. 2011 Supp. 60-260(b)(6), and K.S.A. 60-2606. The district court summarily denied Kingsley’s motion, concluding his claims are foreclosed under the doctrine of res judicata. We affirm that ruling and also hold that relief from a criminal conviction cannot be obtained pursuant to K.S.A. 2011 Supp. 60-260(b) or K.S.A. 60-2606.
Facts and Procedural Background
In 1991, a jury convicted Alan W. Kingsley of premeditated first-degree murder, in violation of K.S.A. 1990 Supp. 21-3401(a); aggravated robbery, in violation of K.S.A. 21-3427 (Weeks 1988); aggravated arson, in violation of K.S.A. 21-3719 (Weeks 1988); and forgery, in violation of K.S.A. 21-3710(b) (Weeks 1988). The sen
During the jury trial, the court instructed the jury by giving the pattern premeditated murder instruction, PIK Crim. 2d 56.01. As it relates to Kingsley’s current arguments, the pertinent portion of the instruction stated: “Deliberately and with premeditation means to have thought over the matter beforehand.” After having received that instruction, Kingsley’s jury, while deliberating, asked for clarification of the time frame required for premeditation. The trial court further instructed: “Premeditation under the law does not require any specific time frame. Please review instruction No. 5,” which was PIK Crim. 2d 56.01. On direct appeal, Kingsley argued the judge’s response to the jury’s question, which incorporated the language about which Kingsley now complains, was erroneous. This court rejected Kingsley’s argument, citing State v. Patterson,
In another issue raised by Kingsley in his direct appeal, he argued his mandatory hard 40 life sentence should be vacated because the jury’s verdict on premeditated first-degree murder was not unanimous. The trial court had instructed the jury that Kingsley was charged in Count One with murder in the first degree, which required proof that the killing was done with premeditation. In addition, the court instructed that Kingsley was charged in Count Two with felony murder in the first degree, which required proof that the killing was done while in the commission of aggravated robbery.
After that appeal, Kingsley brought several collateral attacks on his convictions and sentences, all of which have been unsuccessful. See Kingsley v. McKune,
In the current case, Kingsley filed a pro se “Motion for Relief from Judgment” and accompanying memorandum of law in 2012, which was more than 19 years after the entry of the final order in his direct appeal. In the motion, Kingsley cited K.S.A. 2011 Supp. 60-260(b)(4), K.S.A. 2011 Supp. 60-260(b)(6), and K.S.A. 60-2606 as the procedural statutes entitling him to relief from his first-degree murder conviction and sentence. He asserted two substantive reasons his first-degree murder conviction should be reversed and his hard 40 sentence should be set aside. First, he claimed the trial court had “constructively amended the complaint and usurped legislative authority to define crimes when it instructed the jury that 'deliberately and with premeditation’ means to have thought over the matter beforehand as elements of first degree murder.” Second, he argued it was error to instruct the juiy on both premeditated murder and felony murder. On appeal, Kingsley’s counsel summarizes Kingsley’s second pro se argument on this point as a request for “relief from the Hard 40 Sentence, as it is not clear whether the Jury unanimously found him guilty of First Degree Premeditated Murder.”
In the district court, the State filed a response to Kingsley’s pro se motion, noting that Kingsley had raised the same issues in his direct appeal. Citing State v. Neer,
Analysis
On appeal, Kingsley argues the summary dismissal of his motion was error. We reject his argument for a host of reasons relating to both procedural defects and a lack of merit. We need not address all of those reasons, however, because two threshold defects preclude Kingsleys success: (1) Kingsley filed his motion pursuant to statutes that do not apply to collateral attacks on a criminal conviction and sentence, and (2) his claims are barred under the doctrine of res judicata. Both of these defects present questions of law subject to our unlimited review. See State v. Mitchell,
Regarding the procedural deficiency, this court has previously held K.S.A. 2011 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.” Mitchell,
Kingsley’s appellate counsel, apparently recognizing that relief cannot be afforded Kingsley pursuant to K.S.A. 2011 Supp. 60-260 or K.S.A. 60-2606, asks this court to liberally construe Kingsley’s pro se motion as a K.S.A. 60-1507 motion. In making this request, however, Kingsley’s counsel fails to mention the limitation in K.S.A. 60-1507(f), which states that an action filed pursuant to that statute must be “brought within one year of: (i) The final order of the last appellate court in this state to exercise jurisdiction on a direct appeal or tire termination of such appellate jurisdiction; or (ii) tire denial of a petition for writ of certiorari to the United States supreme court.” While this limitation can be extended under a manifest injustice exception, Kingsley, who has tire burden of showing the exception applies, did not request such an extension and did not explain the 19-year delay. Therefore, Kingsley has failed to meet his burden and has waived any argument that he should be allowed to bring an untimely request for relief under K.S.A. 60-1507. See, e.g., State v. Rojas-Marceleno,
Instead, Kingsley seems to suggest we should address the merits of his pro se motion because the district court did not determine the motion was procedurally defective. Rather, the district court summarily denied Kingsley’s motion after concluding the issues
The doctrine of res judicata provides that “where an appeal is taken from the sentence imposed and/or a conviction, the judgment of the reviewing court is res judicata as to all issues actually raised, and those issues that could have been presented, but were not presented, are deemed waived.” Neer,
Kingsley’s direct appeal from his convictions obviously involved the same parties, and it resulted in a final judgment on the merits. Further, the current action involves the same claims as those which were or could have been raised in his direct appeal. More specifically, as we previously noted, on Kingsley’s direct appeal this court found the jury instructions regarding premeditation, which included the language about which Kingsley now complains, appropriately reflected the law. Kingsley,
We note, however, that Kingsley’s counsel attempts to put a new twist on die argument by suggesting the manner in which the juiy was polled made it unclear whether the jury was indeed unanimous on both alternatives. Kingsley does not persuade us tiiat this polling issue is not barred by the doctrines of res judicata or waiver because the essence of this issue—unanimity—was or could have been
Accordingly, the claims raised by Kingsley in his pro se motion are barred by the doctrine of res judicata. As a result, contrary to Kingsley s argument, the district court did not err in summarily dismissing Kingsley’s motion without appointing counsel or conducting an evidentiary hearing because the motion, files, and records of his cases conclusively showed Kingsley was not entitled to relief. See, e.g., Fisher v. State,
Affirmed.