Elnicki v. State ( 2021 )

NOT DESIGNATED FOR PUBLICATION
No. 121,877
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
JUSTIN D. ELNICKI,
Appellant,
v.
STATE OF KANSAS,
Appellee.
MEMORANDUM OPINION
Appeal from Shawnee District Court; STEVEN R. EBBERTS, judge. Opinion filed August 6, 2021.
Affirmed.
Jason W. Belveal, of Holton, for appellant.
Kurtis Wiard, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.
Before GREEN, P.J., SCHROEDER, J., and WALKER, S.J.
PER CURIAM: Justin D. Elnicki appeals the trial court's denial of his pro se motion
to amend his pro se K.S.A. 60-1507 motion under K.S.A. 60-215(c)(2). Elnicki asserts
that the trial court wrongly denied his pro se motion to amend because he sought the
amendment to address his former appellate counsel's refusal to argue that his statutory
and constitutional speedy trial rights had been violated before his second and third jury
trials. Because the record on appeal establishes that Elnicki was not entitled to the
amendment he requested, we affirm the trial court's denial of Elnicki's pro se motion to
amend.
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BACKGROUND
In Elnicki's most recent appeal to this court, which was an appeal from the
summary denial of his pro se K.S.A. 60-1507 motion, we summarized the procedural
history of Elnicki's criminal case as follows:
"Elnicki's [pro se K.S.A. 60-1507] motion follows three jury trials on the charges
underlying this case. He was originally charged with aggravated kidnapping, rape, and
aggravated sodomy for events occurring in November 2001. During his first trial in 2002,
the district court dismissed the kidnapping charge, and Elnicki was convicted of rape and
aggravated criminal sodomy. On direct appeal, the Kansas Supreme Court reversed the
convictions, finding that the videotape of a police interrogation introduced into evidence
unduly prejudiced Elnicki and the prosecutor made unsupported attacks on Elnicki's
credibility in closing argument, thereby depriving Elnicki of a fair trial. State v. Elnicki,
279 Kan. 47, 67-68, 105 P.3d 1222 (2005) (Elnicki I ).
"Before his second trial, Elnicki moved to dismiss the charges based on a
claimed violation of his statutory speedy trial rights. His motion was denied, and in his
second jury trial he was convicted of rape but acquitted of the aggravated criminal
sodomy charge. After Elnicki filed a direct appeal from his rape conviction, he moved for
a remand to the district court pursuant to State v. Van Cleave, 239 Kan. 117, 716 P.2d
580 (1986), to determine whether his attorney at the second trial was unconstitutionally
ineffective. See State v. Elnicki, 43 Kan. App. 2d 555, 556-57, 228 P.3d 1087, rev. denied
290 Kan. 1097 (2010) (Elnicki II ). A panel of this court granted Elnicki's motion and
remanded the case to the district court for an evidentiary hearing.
"At the Van Cleave hearing, the district court determined that Elnicki's counsel's
performance was inadequate due to counsel's failure to investigate and to call new
witnesses discovered after the first trial. The district court ruled that Elnicki was
prejudiced by counsel's inadequate performance and ordered a new trial. Elnicki appealed
the order for a new trial, claiming that the charges should have been dismissed altogether
because his speedy trial rights had been violated. We rejected Elnicki's speedy trial claim,
and our Supreme Court denied Elnicki's petition for review. The State cross-appealed
from the order for a new trial, but this court held that we lacked jurisdiction to consider
the cross-appeal. 43 Kan. App. 2d at 562.
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"Elnicki's third trial took place in 2010. He again was convicted of rape. Elnicki
moved for a new trial, arguing that he was denied a fair trial due to ineffective assistance
of trial counsel. He also reasserted his argument that his right to a speedy trial had been
violated. The district court denied Elnicki's motion and sentenced him to 267 months in
prison.
"Elnicki appealed and this court affirmed his conviction. See State v. Elnicki, No.
110,516, 2015 WL 1882098, at *14 (Kan. App. 2015) (unpublished opinion), rev. denied
October 7, 2015 (Elnicki III ). The mandate was issued in November 2015.
....
"In March 2016 Elnicki brought his current [pro se] K.S.A. 60-1507 motion, in
which he raised several issues including prosecutorial error, ineffective assistance of trial
counsel and appellate counsel, abuse of discretion by the district court, and statutory and
constitutional speedy trial claims.
"In July 2016, the district court summarily denied Elnicki's [pro se] K.S.A. 60-
1507 motion. In denying the motion, the district court noted that Elnicki 'briefly
claim[ed] that his appellate attorney was not "diligent" and "mis-briefed" issues on
appeal,' but Elnicki failed to provide facts to support this claim and there was no
supporting evidence in the record. Moreover, Elnicki's speedy trial claims related
specifically to Elnicki II and had been previously resolved by a panel of this court."
Elnicki v. State, No. 116,982, 2017 WL 6396449, at *1-2 (Kan. App. 2017) (unpublished
opinion) (Elnicki IV).
On appeal in Elnicki IV, Elnicki argued that the trial court erred by summarily
denying his pro se K.S.A. 60-1507 motion without holding an evidentiary hearing for two
reasons: First, he argued that his appellate counsel from Elnicki III was ineffective "for
failing to adequately brief two evidentiary issues." 2017 WL 6396449, at *2. Second, he
argued that this same Elnicki III appellate counsel was ineffective for failing to argue that
his statutory and constitutional speedy trial rights had been violated before his second and
third jury trials. 2017 WL 6396449, at *4.
Yet, in his appellant's brief, Elnicki's then-appointed counsel, i.e., Elnicki IV
appellate counsel, also recognized that Elnicki had not expressly raised these two issues
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in his pro se K.S.A. 60-1507 motion. Instead, Elnicki IV appellate counsel conceded that
in his pro se K.S.A. 60-1507 motion, Elnicki had made several distinct arguments,
including (1) that Elnicki III appellate counsel generally provided deficient performance
and (2) that his statutory and constitutional speedy trial rights had been violated before
his second and third jury trials. Even so, Elnicki IV appellate counsel argued that we
should liberally construe Elnicki's pro se K.S.A. 60-1507 motion to consider all of
Elnicki's appellate arguments for the first time on appeal. Furthermore, Elnicki IV
appellate counsel argued that we should consider whether Elnicki III appellate counsel
provided deficient performance by not arguing that Elnicki's statutory and constitutional
speedy trial rights had been violated for the first time on appeal because consideration of
this issue involved a question of law that was necessary to prevent the denial of Elnicki's
fundamental rights.
In its appellee's brief, however, the State countered that we should not consider
either of Elnicki's ineffective assistance of Elnicki III appellate counsel arguments since
he was raising them for the first time on appeal. Alternatively, the State asserted that both
of Elnicki's complaints about Elnicki III appellate counsel's performance were meritless.
On Elnicki's contention that Elnicki III appellate counsel was ineffective for failing to
raise certain speedy trial arguments, the State specifically asserted that Elnicki's
arguments were meritless because he could not establish that either his statutory or
constitutional speedy trial rights had been violated at any point throughout his criminal
proceedings. And in making this assertion, the State noted that the trial court and this
court had previously rejected Elnicki's arguments about his statutory and constitutional
speedy trial rights being violated.
Ultimately, the Elnicki IV court agreed with the State, affirming the trial court's
summary denial of Elnicki's pro se K.S.A. 60-1507 motion. In doing so, it quickly
rejected Elnicki's argument about Elnicki III appellate counsel failing to adequately brief
the two evidentiary issues because Elnicki had raised this conclusory argument for the
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first time on appeal. 2017 WL 6396449, at *2-4. It then rejected Elnicki's argument that
Elnicki III appellate counsel provided deficient performance by not arguing that his
statutory and constitutional speedy trial rights had been violated before his second and
third jury trials for the following reasons:
"In his [pro se] K.S.A. 60-1507 motion, Elnicki asserted that his speedy trial
rights were violated. But nearly all of Elnicki's arguments refer to alleged violations that
occurred during the time period before his second trial. In Elnicki II, a panel of this court
determined that Elnicki's speedy trial rights were not violated. 43 Kan. App. 2d at 560.
Therefore, we will not consider Elnicki's speedy trial arguments that relate to events
preceding his second trial. Consideration of those issues is barred by the doctrine of res
judicata. 'The doctrine of res judicata applies to a K.S.A. 60-1507 movant who attempts
to raise issues which have previously been resolved by a final appellate court order in his
or her criminal proceeding.' Woods v. State, 52 Kan. App. 2d 958, Syl. ¶ 1, 379 P.3d 1134(2016).
"Our sole focus is on Elnicki's claim that his statutory and constitutional rights to
a speedy trial were violated by events occurring between his second trial in September
2005 and his third trial in September 2010. Elnicki claims that during this period (1) the
court reporter took too long filing her transcripts; (2) the State should not have been
allowed to appeal from the Van Cleave hearing in Elnicki II; and (3) the Court of Appeals
allowed and promoted the delays which resulted in an approximate five-year delay
between the second and third trials.
"But Elnicki concedes that the district court ruled on all these issues while his
third trial was pending and again when the district court denied his posttrial motion for a
new trial. The district court denied Elnicki's speedy trial claim and reiterated its ruling
when it denied Elnicki's motion for a new trial. Elnicki failed to raise this issue in his
direct appeal. Elnicki III, 2015 WL 1882098. '[W]hen a criminal defendant files a direct
appeal from his or her conviction and sentence, "the judgment of the reviewing court is
res judicata as to all issues actually raised; those issues that could have been raised, but
were not presented, are deemed waived." [Citation omitted.]' Woods, 52 Kan. App. 2d at
965. Having failed to raise the speedy trial issue in his direct appeal following his third
trial, the issue has been waived and abandoned. State v. Williams, 303 Kan. 750, 758, 368
P.3d 1065 (2016); Woods, 52 Kan. App. 2d at 965.
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"Elnicki provides no persuasive argument that we should make an exception and
now consider his speedy trial claim. The issue was extensively litigated, and Elnicki fails
to convince us that a review of his newly asserted claim of ineffective assistance of
appellate counsel is necessary to serve the ends of justice or to prevent denial of
fundamental rights. We see no probability of a different result if the speedy trial issue had
been raised on direct appeal. The district court thoroughly considered Elnicki's claim of
violation of his right to a speedy trial, and it found no such violation. Elnicki has not
shown any flaw in the district court's reasoning. As such, we find no prejudice resulting
from appellate counsel's decision not to pursue the issue on Elnicki's direct appeal.
"The district court did not err in summarily denying Elnicki's claims. None of the
issues he now raises on appeal [were] raised in his K.S.A. 60-1507 motion. Thus, an
evidentiary hearing was not warranted." (Emphases added.) 2017 WL 6396449, at *5.
The Elnicki IV court issued its opinion on December 15, 2017. Afterwards, Elnicki
petitioned our Supreme Court to review Elnicki IV. Nevertheless, our Supreme Court
denied Elnicki's petition for review. This resulted in the Elnicki IV court's mandate being
issued at 2:41 p.m. on September 17, 2018.
At 3:47 p.m. that same day, Elnicki filed a pro se motion to amend his pro se
K.S.A. 60-1507 motion—the same pro se K.S.A. 60-1507 motion that was at issue in
Elnicki IV—under K.S.A. 60-215(c)(2). According to Elnicki, he was entitled to amend
his pro se K.S.A. 60-1507 motion under K.S.A. 60-215(c)(2) to more fully address
whether Elnicki III appellate counsel wrongly refused to argue that his statutory and
constitutional speedy trial rights had been violated before his second and third jury trials
since he had "begged" her to raise the speedy trial issues on appeal. Also, in making his
argument, although Elnicki recognized that Elnicki III appellate counsel had told him that
his desired statutory and constitutional speedy trial claims were meritless, he questioned
Elnicki III appellate counsel's assessment of his speedy trial claims.
In the end, however, the trial court denied Elnicki's pro se motion to amend his pro
se K.S.A. 60-1507 motion under K.S.A. 60-215(c)(2) for three reasons. First, the trial
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court ruled that Elnicki was not entitled to amend his pro se K.S.A. 60-1507 motion as a
matter of right because he had moved to amend his motion after K.S.A. 60-1507(f)'s
deadline to timely file a K.S.A. 60-1507 motion had passed. Thus, the trial court
determined that under the assumption that Elnicki sought to raise a new claim of
ineffective assistance of counsel against Elnicki III appellate counsel, this new claim of
ineffective assistance of counsel was time-barred under K.S.A. 60-1507(f). Second, the
trial court ruled that Elnicki had used his pro se motion to amend as a vehicle to repeat
arguments he had raised in his pro se K.S.A. 60-1507 motion. In turn, the trial court
determined that Elnicki was not entitled to his requested amendment under the plain
language of K.S.A. 60-215(c)(2) because he was not requesting to amend his pro se
K.S.A. 60-1507 motion to raise a new claim that arose out of the same conduct,
transaction, or occurrence he set out, or attempted to set out, in that motion. Finally, the
trial court further ruled that even if it allowed Elnicki to amend his pro se K.S.A. 60-1507
motion as requested, at best, Elnicki's amended pro se K.S.A. 60-1507 motion constituted
an impermissible successive postconviction motion because "[Elnicki] ha[d] already
raised the speedy trial issue in his direct appeal from Elnicki II, and [the Elnicki IV court
had] already denied the claim because of res judicata."
Elnicki now, with the assistance of counsel, appeals the trial court's denial of his
pro se motion to amend his pro se K.S.A. 60-1507 motion under K.S.A. 60-215(c)(2).
ANALYSIS
K.S.A. 2020 Supp. 60-1507(a) provides that prisoners may collaterally attack their
convictions "pursuant to the time limitations imposed by subsection (f)." Meanwhile,
subsection (f) states that prisoners collaterally attacking their convictions under K.S.A.
2020 Supp. 60-1507 must do so no later than one year after the final order of the last
appellate court to exercise jurisdiction over their direct appeals. K.S.A. 2020 Supp. 60-
1507(f). When reviewing the trial court's summary denial of a K.S.A. 60-1507 motion,
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we exercise de novo review. Thompson v. State, 293 Kan. 704, 709, 270 P.3d 1089(2011).
On the other hand, K.S.A. 2020 Supp. 60-215(c) provides that parties may move
to amend their previously filed pleadings to add arguments, even outside of the applicable
statute of limitations for filing those pleadings, as long as the requested amendments
"relate back" to their timely filed original pleading. Under K.S.A. 2020 Supp. 60-
215(c)(2), an amendment will relate back if it "arose out of the conduct, transaction or
occurrence set out, or attempted to be set out, in the original pleading." Previously, our
Supreme Court has interpreted this language as meaning that "relation back is permitted
only if the new claim is similar in time and type to the original claim . . . ." (Emphasis
added.) Thompson, 293 Kan. 704, Syl. ¶ 3. In other words, our Supreme Court precedent
establishes that an amendment under K.S.A. 2020 Supp. 60-215(c)(2) is permissible only
if the party raises a claim that is related but distinct from the party's previously pleaded
claims. Also, when reviewing the trial court's denial of a motion to amend under K.S.A.
2020 Supp. 60-215(c)(2), we review the trial court's decision under the lenient abuse of
discretion standard. 293 Kan. at 709. A trial court abuses its discretion if its decision was
premised on an error of law, an error of fact, or is an otherwise unreasonable decision.
State v. Ingham, 308 Kan. 1466, 1469, 430 P.3d 931 (2018).
In the past, we have consistently upheld the trial court's denial of successive
K.S.A. 60-1507 motions. For instance, we have explained "that a sentencing court is not
required to entertain a second or successive K.S.A. 60-1507 motion that raises the same
or substantially the same issues as a previous motion that was decided on the merits."
McPherson v. State, 38 Kan. App. 2d 276, 286, 163 P.3d 1257 (2007). As a result, when
K.S.A. 60-1507 movants raise the same or substantially the same issue in a successive
K.S.A. 60-1507 motion, the trial "court may dismiss [the] successive motion on the
ground its use constitutes an abuse of remedy." 38 Kan. App. 2d at 286. Similarly, we
have consistently upheld the trial court's denial of a K.S.A. 60-1507 motion under the
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doctrine of res judicata as to all issues which have been resolved by a final appellate court
in their previous appeals. See Woods v. State, 52 Kan. App. 2d 958, 964, 379 P.3d 1134(2016).
Here, Elnicki's sole argument on appeal is that the trial court abused its discretion
when it denied his pro se motion to amend his pro se K.S.A. 60-1507 motion under
K.S.A. 60-215(c)(2). He contends that he was entitled to amend his pro se K.S.A. 60-
1507 motion under K.S.A. 60-215(c)(2) because he has no other "legal recourse to seek
justice" for Elnicki III appellate counsel's failure to argue that his statutory and
constitutional speedy trial rights had been violated before his second and third jury trials.
Although his arguments are often unclear, Elnicki seemingly believes that Elnicki III
appellate counsel had a duty to argue that his speedy trial rights had been violated
because he repeatedly told Elnicki III appellate counsel that he wanted her to argue that
his speedy trial rights had been violated.
The State counters that the trial court "correctly recognized Elnicki's [pro se]
motion [to amend] was not amending his prior [pro se K.S.A. 60-1507] motion to add a
new claim, but rather, lodging precisely the same claim." According to the State, Elnicki
was using his pro se motion to amend to relitigate his previously rejected arguments
about Elnicki III appellate counsel being ineffective for failing to argue that his statutory
and constitutional speedy trial rights had been violated before his second and third jury
trials. As a result, the State argues that we should affirm the trial court's denial of
Elnicki's pro se motion to amend his pro se K.S.A. 60-1507 motion under K.S.A. 60-
215(c)(2) because in his pro se motion to amend, Elnicki essentially asked to file a
successive K.S.A. 60-1507 motion.
Simply put, the State's arguments on appeal are persuasive. To review, in his pro
se K.S.A. 60-1507 motion, Elnicki alleged that his appellate counsel in Elnicki III was
ineffective. Likewise, in his pro se K.S.A. 60-1507 motion, Elnicki also argued that his
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speedy trial rights had been violated before his second and third jury trials. Then, on
appeal from the trial court's summary denial of Elnicki's K.S.A. 60-1507 motion in
Elnicki IV, Elnicki, through Elnicki IV appellate counsel, recognized that he had not
explicitly argued that Elnicki III appellate counsel provided deficient performance by not
raising his requested statutory and constitutional speedy trial issues on appeal in Elnicki
III. Even so, Elnicki asserted that we should consider his speedy trial arguments for the
first time on appeal (1) under the rule that courts should liberally construe pro se motions
to give effect to their content and (2) under the rule that appellate courts may consider a
question of law for the first time on appeal when consideration of that question of law is
necessary to prevent the denial of a party's fundamental rights.
But the Elnicki IV court rejected Elnicki's contention that his Elnicki III appellate
counsel provided deficient performance by not arguing that his statutory and
constitutional speedy trial rights had been violated for two reasons: (1) because his
claims were barred under the doctrine of res judicata and (2) because his claims did not
otherwise establish that the trial court's and this court's previous rejections of his speedy
trial arguments were erroneous. Accordingly, the Elnicki IV court rejected Elnicki's
contention that Elnicki III appellate counsel provided deficient performance by not
raising his desired speedy trial arguments because there was "no probability" that we
would have reversed his rape conviction but for Elnicki III appellate counsel's failure to
raise his desired speedy trial arguments. Elnicki IV, 2017 WL 6396449, at *5. Thus,
although Elnicki did not expressly argue in his pro se K.S.A. 60-1507 motion that Elnicki
III appellate counsel provided deficient performance by not raising his desired speedy
trial arguments, on Elnicki's request to consider this argument for the first time on appeal,
the Elnicki IV court determined that any speedy trial argument Elnicki could have raised
was groundless. In other words, the Elnicki IV court determined that Elnicki's argument
was fatally flawed that his Elnicki III appellate counsel had provided deficient
performance by not raising his desired speedy trial arguments. Elnicki IV, 2017 WL
6396449, at *5.
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As a result, when it denied Elnicki's pro se motion to amend, the trial court
correctly ruled that Elnicki was using his pro se motion to amend as a vehicle to relitigate
the ineffective assistance of Elnicki III appellate counsel and speedy trial arguments that
we had already rejected in Elnicki IV. And because the trial court had no duty to consider
any argument previously raised by Elnicki and rejected by us, the trial court properly
denied Elnicki's pro se motion to amend his pro se K.S.A. 60-1507 motion under K.S.A.
60-215(c) as an attempt to file an impermissible successive K.S.A. 60-1507 motion.
Therefore, the trial court did not abuse its discretion when it denied Elnicki's pro se
motion to amend as an attempt to file an impermissible successive K.S.A. 60-1507
motion. See Woods, 52 Kan. App. 2d at 964-65; McPherson, 38 Kan. App. 2d at 286. For
this reason, we affirm.
Affirmed.
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