Wheeler v. State ( 2021 )

NOT DESIGNATED FOR PUBLICATION
No. 122,956
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
BRETT WHEELER,
Appellant,
v.
STATE OF KANSAS,
Appellee.
MEMORANDUM OPINION
Appeal from Shawnee District Court; NANCY E. PARRISH, judge. Opinion filed October 15, 2021.
Affirmed.
Michelle David, of The David Law Office LLC, of Lawrence, for appellant.
Michael R. Serra, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.
Before ATCHESON, P.J., HILL and CLINE, JJ.
PER CURIAM: This is another chapter in Brett Wheeler's 30-year saga to escape
his convictions for raping and sodomizing two women in separate attacks. The Shawnee
County District Court found this habeas corpus motion, filed under K.S.A. 60-1507, to be
both untimely and impermissibly successive and summarily denied Wheeler any relief.
He has appealed. We see no error and affirm.
By way of background, Wheeler was charged in late 1986 with one count of rape
and one count of aggravated sodomy stemming from an incident involving J.T. and with
precisely the same offenses for a separate incident involving D.T. A jury convicted
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Wheeler of all four charges in a trial in mid-1987. Under the criminal code in effect then,
the district court imposed a sentence of 10 years to life for each conviction and ordered
Wheeler to serve the sentences concurrently. Wheeler filed a direct appeal. The Kansas
Supreme Court affirmed the convictions, and the appeal became final in May 1989. See
State v. Wheeler, No. 61,437, unpublished opinion filed April 14, 1989, slip op. at 7.
Wheeler has made a near vocation of challenging the convictions and resulting
sentences since then in various postconviction proceedings, including multiple habeas
corpus motions. They have all been unsuccessful. Wheeler was conditionally released
from prison on parole and didn't succeed at that either. After his reincarceration, Wheeler
resumed his legal challenges to the convictions. We recently outlined the course of
Wheeler's postconviction efforts in Wheeler v. State, No. 120,189, 2020 WL 34552, at
*1-2 (Kan. App. 2d) (unpublished opinion), rev. denied 312 Kan. 902 (2020). We do not
repeat those circumstances here, except to point out that this habeas corpus motion is the
latest in a series and, therefore, is indisputably successive. It is, likewise, untimely.
Individuals launching collateral attacks on their criminal convictions under K.S.A.
60-1507 are expected to raise all of their claimed grounds for relief in a single, timely
motion. See State v. Trotter, 296 Kan. 898, 904, 295 P.3d 1095 (2013); Ridge v. State,
No. 118,744, 2019 WL 638736, at *1 (Kan. App. 2019) (unpublished opinion). A 60-
1507 motion is considered untimely if it is filed more than a year after the last order of an
appellate court in the direct appeal or the expiration of the time to seek direct appellate
review. K.S.A. 2020 Supp. 60-1507(f). (Because the one-year time limit went into effect
in 2003, Wheeler had a grace period that expired June 30, 2004, to file a timely 60-1507
motion from his convictions.)
But there are exceptions to the bars on successive or untimely 60-1507 motions.
By statute, a district court may consider a 60-1507 motion filed outside the one-year
period if the movant establishes "manifest injustice" meaning either adequate cause for
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having missed the deadline or "a colorable claim of actual innocence." K.S.A. 2020 Supp.
60-1507(f)(2)(A). Similarly, a district court may consider a successive 60-1507 motion if
the movant demonstrates "exceptional circumstances" entailing unusual events or
changes in the law that could not have been anticipated or considered in an earlier
motion. See Nguyen v. State, 309 Kan. 96, 109, 431 P.3d 862 (2018). Sufficient
circumstances include legally ineffective representation in an initial 60-1507 motion or a
showing of actual innocence. 309 Kan. at 108-09 (actual innocence as exceptional
circumstance); Rowland v. State, 289 Kan. 1076, 1087, 219 P.3d 1212 (2009) (ineffective
assistance of counsel as exceptional circumstance).
Upon receiving a 60-1507 motion, a district court essentially has three options.
The district court can summarily dismiss the motion after reviewing it and the contents of
the criminal case file. Sola-Morales v. State, 300 Kan. 875, 881, 335 P.3d 1162 (2014);
Bellamy v. State, 285 Kan. 346, 353-54, 172 P.3d 10 (2007). The motion should be
dismissed without a hearing only if the allegations and the case records "conclusively
show that the prisoner is entitled to no relief." K.S.A. 2020 Supp. 60-1507(b); Supreme
Court Rule 183(f) (2021 Kan. S. Ct. R. 239). The district court followed that course here.
Otherwise, a district court has two choices after appointing a lawyer for an unrepresented
movant. It can conduct a preliminary hearing during which the prosecutor and lawyer for
the defendant present legal argument and otherwise address whether the circumstances
call for a full evidentiary hearing. The district court may receive a limited amount of
evidence at a preliminary hearing. Bellamy, 285 Kan. at 354. Finally, the district court
can dispense with a preliminary hearing and hold a full evidentiary hearing. See Sola-
Morales, 300 Kan. at 881.
When the district court summarily denies a 60-1507 motion, we exercise unlimited
review. We can examine the motion and the case file just as well as the district court, and
the district court's determination requires no weighing of conflicting testimony or other
evidence to which we would owe deference. See Bellamy, 285 Kan. at 354.
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On appeal, Wheeler contends he alluded to being actually innocent in his 60-1507
motion, so we should remand to the district court for an evidentiary hearing. We disagree.
Wheeler was obligated to offer factual representations in his motion supported with
evidentiary materials setting out a colorable claim of actual innocence. Beauclair v. State,
308 Kan. 284, 302, 419 P.3d 1180 (2018). His bare assertion of or reference to actual
innocence was insufficient to warrant an evidentiary hearing. In Beauclair, the court
expressly rejected the notion an unsupported claim of actual innocence was enough to
avoid the time limit on 60-1507 motions. 308 Kan. at 302; see also Makthepharak v.
State, No. 121,285, 2020 WL 5994108, at *1 (Kan. App. 2020) (unpublished
opinion)(citing Beauclair for proposition that "conclusory and unsupported
representations. . . do not establish a bona fide claim of actual innocence lifting the time
bar" in K.S.A. 60-1507[f]), rev. denied 313 Kan. 1041 (2021). Apart from his cursory
claim of actual innocence, Wheeler has offered no other legal reason warranting
consideration of a motion that is successive several times over and years late. He,
therefore, cannot overcome the bar on successive motions. The district court properly
denied Wheeler's motion as both untimely and impermissibly successive without an
evidentiary hearing.
Although that is sufficient to dispose of this appeal, we have examined Wheeler's
underlying claim for relief as a double-check on our decision. His legal theory is empty.
Based on State v. Cantrell, 234 Kan. 426, Syl. ¶ 9, 673 P.2d 1147 (1983), Wheeler
correctly asserts that in 1986 rape was a general intent crime, meaning defendants did not
have to subjectively believe or understand they were committing rape, i.e., a
nonconsensual act of sexual intercourse. And we presume, as Wheeler does, the same
would have been true of criminal sodomy. But Wheeler's legal argument falters on his
next premise: The district court in his criminal case improperly instructed the jurors that
rape and sodomy were specific intent crimes when it informed them Wheeler had to
engage in the sex acts "intentionally." The instructions then defined "intentionally" as
being "willful" in the sense of "purposeful. . . and not accidental." The language in the
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jury instructions identified and accurately explained what was then considered general
criminal intent. See State v. Sterling, 235 Kan. 526, 527, 680 P.2d 301 (1984); State v.
Lassley, 218 Kan. 752, 756, 545 P.2d 379 (1976).
In short, what Wheeler described in his 60-1507 motion as a legal error in the jury
instructions simply wasn't. He has sought relief based on a correct statement of the law
the district court provided the jurors during the trial. To momentarily wallow in the
obvious, correct legal statements do not reversible error make. Nor do they support a
claim of constitutionally inadequate representation or a comparable defect warranting
habeas corpus relief.[*]
[*]The recodification of the Kansas Criminal Code that went into effect in 2011
includes revised definitions of culpable mental states, altering the concepts of general and
specific criminal intent in some respects. K.S.A. 2020 Supp. 21-5202(h)-(j) (culpable
mental states defined); see State v. Hobbs, 301 Kan 203, 210-11, 340 P.3d 1179 (2015)
(recognizing after 2011 recodification general criminal intent no longer "mean[s] what it
once did"). Those statutory changes have no impact on Wheeler's 1987 convictions and
the substantive law governing them.
Affirmed.
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