Cash v. State ( 2022 )

NOT DESIGNATED FOR PUBLICATION
No. 123,418
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
EDRICK L. CASH,
Appellant,
v.
STATE OF KANSAS,
Appellee.
MEMORANDUM OPINION
Appeal from Sedgwick District Court; WILLIAM S. WOOLLEY, judge. Opinion filed January 28,
2022. Affirmed.
Edrick L. Cash, appellant pro se.
Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.
Before CLINE, P.J., GREEN, J., and PATRICK D. MCANANY, S.J.
PER CURIAM: Edrick L. Cash—an incarcerated person at the El Dorado
Correctional Facility—appeals the trial court's summary dismissal of his fourth K.S.A.
60-1507 motion. The trial court found that Cash's motion was untimely and successive,
and that Cash failed to establish manifest injustice or exceptional circumstances existed
to justify its consideration. Cash seeks various relief on appeal, including reversal of his
convictions in case Nos. 99CR391 and 99CR562. But because Cash has failed to show
that he is entitled to the requested relief, we affirm the trial court's dismissal.
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FACTS
The movant changed his name from Edrick Ladon McCarty to Edrick Ladon Cash
in February 2021. Because he did this after he filed his brief, his appellant's brief uses his
former name "McCarty" throughout. We have recognized his name change and updated it
in this case caption.
The State charged Cash with one count of first-degree murder and one count of
attempted aggravated robbery in 99CR391. On April 23, 1999, a jury convicted Cash of
both charges. The trial court sentenced Cash to life imprisonment for his first-degree
murder conviction and to a 136-month imprisonment for his attempted aggravated
robbery conviction, running concurrently. Cash appealed, and his convictions were
affirmed by our Supreme Court in State v. McCarty, 271 Kan. 510, 23 P.3d 829 (2001).
The mandate was issued on June 1, 2001.
Cash filed his first K.S.A. 60-1507 motion on June 26, 2002, asserting ineffective
assistance of trial counsel and other various claims. The trial court dismissed the motion,
and Cash appealed. On January 20, 2004, this court affirmed the dismissal in McCarty v.
State, 32 Kan. App. 2d 402, 83 P.3d 249 (2004). Cash next filed an application for a writ
of habeas corpus under 28 U.S.C. § 2254, which the trial court denied. See McCarty v.
Roberts, No. 04-3214-JWL, 2005 WL 2367543 (D. Kan. 2005) (unpublished opinion).
Cash filed his second K.S.A. 60-1507 motion in 2006. The trial court denied it as
successive and untimely. Cash appealed, and this court affirmed the denial in McCarty v.
State, No. 98,711, 2008 WL 5401324 (Kan. App. 2008) (unpublished opinion). Cash then
filed his third K.S.A. 60-1507 motion in 2009. On October 28, 2009, the trial court
denied the motion. Cash did not appeal.
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On August 31, 2020, Cash filed his fourth K.S.A. 60-1507 motion, which is the
subject of this appeal. Cash's motion raised multiple arguments, including the following:
(1) His $500,000 bail was excessive, given his age at the time of arrest;
(2) there were no African Americans on his jury, in violation of his constitutional
rights;
(3) he was not allowed to vote while incarcerated, in violation of his
constitutional rights;
(4) he was prosecuted as an adult, in violation of his constitutional rights; and
(5) the witness identification of the murder weapon was tainted, in violation of
his constitutional rights.
The trial court summarily dismissed Cash's motion, ruling his motion was
untimely and successive. The trial court noted that "under any stretching of the
jurisprudence," Cash's fourth motion was untimely by nearly a decade. The trial court
also ruled that Cash's motion was successive and that he had not established exceptional
circumstances existed for it to consider the motion.
Cash timely filed a pro se notice of appeal.
ANALYSIS
Did the trial court err in summarily dismissing Cash's fourth K.S.A. 60-1507 motion as
untimely and successive?
On appeal, Cash restates the five arguments in his K.S.A. 60-1507 motion and
seems to add an argument that the trial court judge violated Kansas Supreme Court Rule
183(b) (2022 Kan. S. Ct. R. at 242) by dismissing his motion as untimely without making
manifest injustice findings. Cash listed seven requests for relief, asking for us to do the
following:
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(1) Reverse his convictions in 99CR391 and 99CR562;
(2) if no reversal, vacate his sentences "on any cases over his head";
(3) uphold the United States Constitution;
(4) grant him $300,000 for his wrongful conviction;
(5) exclude him from any parole obligations;
(6) expunge his criminal record; and
(7) allow him to exercise his "rights to pursue life, liberty, and the pursuit of
happiness."
The State contends that the trial court's summary dismissal of Cash's motion as untimely
and successive was appropriate and asks for us to affirm the trial court's dismissal. When
reviewing a trial court's summary dismissal of a K.S.A. 60-1507 motion, this court
conducts a de novo review of the motion, files, and records of the case to determine
whether they conclusively establish that the movant is not entitled to relief. Beauclair v.
State, 308 Kan. 284, 293, 419 P.3d 1180 (2018).
Timeliness and Manifest Injustice
A defendant has one year from the date their conviction becomes final to file a
K.S.A. 60-1507 motion. K.S.A. 2020 Supp. 60-1507(f)(1). At the earliest, Cash needed to
file his motion within a year of the Kansas Supreme Court's mandate affirming his
convictions—by June 1, 2002. At the latest, Cash needed to file within a year of the
dismissal of his third K.S.A. 60-1507 motion—by October 28, 2010. Cash filed his fourth
motion well after either deadline, and the trial court correctly classified it as untimely.
As an untimely K.S.A. 60-1507 motion, it could be heard by the trial court only if
it was necessary to prevent manifest injustice. K.S.A. 2020 Supp. 60-1507(f)(2). If
manifest injustice is not shown, the untimely K.S.A. 60-1507 motion is procedurally
barred. See K.S.A. 2020 Supp. 60-1507(f)(3); State v. Trotter, 296 Kan. 898, 905, 295
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P.3d 1039 (2013). For the purposes of finding manifest injustice, this 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). Colorable claims of actual innocence
require a showing that it is more likely than not that no reasonable juror would have
convicted the defendant in light of new evidence. K.S.A. 2020 Supp. 60-1507(f)(2)(A).
Cash does not seem to put forth a claim of actual innocence on appeal. Rather, he
argues that his untimely motion should be heard under the manifest injustice exception
because he only recently became competent of his legal rights. Cash asserts that he
"previously knew nothing . . . of [his] constitutional rights" and so he "is just now able to
raise these issues." But pro se K.S.A. 60-1507 movants, like all other pro se civil
litigants, are required to be aware of and follow the rules of procedure. See Guillory v.
State, 285 Kan. 223, 229, 170 P.3d 403 (2007). And many panels of this court have held
that a movant's lack of legal knowledge does not establish manifest injustice. See, e.g.,
Martinez v. State, No. 120,488, 2019 WL 6798971, at *3 (Kan. App. 2019) (unpublished
opinion), rev. denied 311 Kan. 1046 (2020); Gaona v. State, No. 119,244, 2019 WL
1496295, at *4 (Kan. App.) (unpublished opinion), rev. denied 310 Kan. 1061 (2019);
Little v. State, No. 119,167, 2019 WL 985415, at *4 (Kan. App.) (unpublished opinion),
rev. denied 310 Kan. 1062 (2019); Dupree v. State, No. 116,693, 2018 WL 1440515, at
*4 (Kan. App. 2018) (unpublished opinion). Considering Cash's lack of legal knowledge
is the only argument he provides to explain his nearly decade-long delay in filing his
K.S.A. 60-1507 motion, he has not made a sufficient showing of manifest injustice. Thus,
the trial court properly summarily dismissed Cash's motion as untimely.
Successive Filings and Exceptional Circumstances
While the trial court's finding that Cash's motion was untimely was sufficient for
summary dismissal, the trial court also dismissed Cash's motion as successive. Kansas
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courts need not entertain successive motions for similar relief on behalf of the same
incarcerated person. K.S.A. 2020 Supp. 60-1507(c); Trotter, 296 Kan. at 904. K.S.A. 60-
1507(c) bars claims raised in prior motions and claims that could have been raised in
prior motions. See Dunlap v. State, 221 Kan. 268, 269-70, 559 P.2d 788 (1977). Movants
can avoid having successive motions dismissed by establishing that exceptional
circumstances existed. Exceptional circumstances are "'unusual events or intervening
changes in the law that prevented the defendant [from] raising the issue in a preceding
[K.S.A.] 60-1507 motion.'" Beauclair, 308 Kan. at 304. Movants carry the burden of
showing exceptional circumstances. 308 Kan. at 304.
In the trial court's summary dismissal, the court noted that this is Cash's fourth
K.S.A. 60-1507 motion and that his second and third K.S.A. 60-1507 motions were
denied as successive. The court further stated the following:
"[Cash] has not provided the court with any grounds which would cause the court to
conclude that there are exceptional circumstances which prevented [Cash] from raising
all the alleged trial errors in the first petition or that there has been an intervening change
in the law warranting relief [sic] 60-1507 relief."
For those reasons, the trial court also denied Cash's motion as successive.
Cash did not make an exceptional circumstances argument below, nor does Cash
seem to make an exceptional circumstances argument on appeal. This court liberally
construes pro se pleadings to give effect to their content. State v. Gilbert, 299 Kan. 797,
798, 326 P.3d 1060 (2014). But even liberally construing Cash's pleadings, he has not
carried his burden of showing exceptional circumstances exist. Cash presented no
evidence to the trial court establishing that exceptional circumstances warranted
consideration of his successive motion. And even if we were to credit Cash's argument
that he only recently acquired the legal knowledge to bring these claims as an exceptional
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circumstances argument, it does not constitute "unusual events" or "intervening changes
in the law" that would have prevented Cash from raising his claims in any of his previous
K.S.A. 60-1507 motions. Because Cash has failed to establish exceptional circumstances
existed, his K.S.A. 60-1507 motion is procedurally barred, and the trial court properly
summarily dismissed it as successive.
Affirmed.
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