Opinion
111,099.
07-24-2015
Terry ADAMS, Appellant, v. STATE of Kansas, Appellee.
Craig A. Lubow, of Kansas City, for appellant. Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Craig A. Lubow, of Kansas City, for appellant.
Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Before BRUNS, P.J., HILL and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
PER CURIAM.
We agree with the trial court and hold that Terry Adams' second K . S.A. 60–1507 motion is untimely filed and must be dismissed as successive.
This is not the first trip to the appellate courts of Kansas for Adams. In State v. Adams, 269 Kan. 681, 8 P.3d 724 (2000), the Supreme Court affirmed his convictions for first-degree felony murder, aggravated battery, aggravated assault, and criminal possession of a firearm. Then, 8 years later, Adams filed his first K.S.A. 60–1507 motion. A panel of this court affirmed the trial court's denial of his motion, finding that manifest injustice would not result if the trial court applied the statutory 1–year time limit. See Adams v. State, No. 104,758, 2011 WL 5833481 (Kan.App.2011)rev. denied 296 Kan. 1129 (2013).
On March 15, 2013, Adams filed his second K.S.A. 60–1507 motion raising trial errors in the direct appeal proceedings and errors in the prior K.S.A. 60–1507 proceeding. The trial court summarily dismissed the motion.
Adams raises six points.
• The jury should have been given the lesser included offense instruction of second-degree reckless murder based on a newly judicially created law that rescinded the prior law that prevented juries from receiving lesser included offense instructions for felony murder cases;
• His trial attorney, Carl Cornwell, waived Adams' rights to a speedy trial without first seeking Adams' consent to waive this right in both trials;
• Adams' constitutional equal protection rights were violated due to his ineffective assistance of trial counsel, who did not properly represent Adams when trial counsel waived Adams' speedy trial rights;
• Adams was deprived of a fair trial due to a Brady violation, the suppression of exculpatory evidence or witnesses;
• Appellate counsel in Adams' direct appeal-Cornwell again-was ineffective for failing to raise and perfect in his direct appeal the issues raised in Adams' second K.S.A. 60–1507 motion; and
• Appellate counsel in Adams' K.S.A. 60–1507 appeal was also ineffective for failing to raise and perfect in his first K.S.A. 60–1507 motion the issues raised in Adams' second K.S.A. 60–1507 motion.
We must affirm the trial court because a sentencing court is not required to entertain a second or successive motion for similar relief on behalf of the same prisoner. See K.S.A. 60–1507(c) ; State v. Trotter, 296 Kan. 898, 295 P.3d 1039 (2013). A movant in a K.S.A. 60–1507 motion is presumed to have listed all grounds for relief, and a subsequent motion need not be considered in the absence of a showing of circumstances justifying the original failure to list a ground. Kansas Supreme Court Rule 183(d) (2014 Kan. Ct. R. Annot. 285); Trotter, 296 Kan. 898, Syl. ¶ 2.
Adams makes no attempt to explain the circumstances justifying his failure in his first K.S.A. 60–1507 motion to consider the grounds of error asserted in this motion. Our review of the record does not indicate such circumstances exist. In our view, the trial court could have denied Adams' second K.S.A. 60–1507 motion as an improper, successive motion. See Love v. State, 280 Kan. 553, 563, 124 P.3d 32 (2005). The Love court held that appellate courts may affirm the trial court when it is right, even if it is for the wrong reason.
We affirm.