Opinion
No. 107,794.
2013-04-5
Carrie LOCKHART, Appellant, v. STATE of Kansas, Appellee.
Appeal from Chautauqua District Court; Frederick William Cullins, Judge. Janine Cox, deputy appellate defender, of Kansas Appellate Defender Office, for appellant. Natalie Chalmers, assistant solicitor general, of Office of Kansas Attorney General, for appellee.
Appeal from Chautauqua District Court; Frederick William Cullins, Judge.
Janine Cox, deputy appellate defender, of Kansas Appellate Defender Office, for appellant. Natalie Chalmers, assistant solicitor general, of Office of Kansas Attorney General, for appellee.
Before BUSER, P.J., ATCHESON, J., and BUKATY, S.J.
MEMORANDUM OPINION
PER CURIAM.
The Chautauqua County District Court dismissed the motion Carrie R. Lockhart filed under K.S.A. 60–1507 challenging her conviction on a felony drug offense. The district court reasoned that because Lockhart had entered a plea and had taken no direct appeal, her 60–1507 motion failed as a matter of law. We disagree and, therefore, reverse and remand with directions that the district court consider the merits of the motion.
The underlying circumstances of Lockhart's crime of conviction and her plea are immaterial given the narrow issue on appeal. Similarly, Lockhart's contentions in her 60–1507 motion are really beside the point, since the district court never considered them. Lockhart does allege she received constitutionally inadequate legal representation on the criminal charge in violation of her rights under the Sixth and Fourteenth Amendments to the United States Constitution.
The district court essentially held that a defendant's failure to take a direct appeal of his or her conviction prohibits review of the criminal proceedings under K.S.A. 60–1507 and dismissed Lockhart's motion on that basis. Lockhart has timely appealed. The issue presents a question of law over which an appellate court exercises plenary review.
The district court cited Bledsoe v. State, 283 Kan. 81, 88–89, 150 P.3d 868 (2007), for the proposition that a defendant's failure to take a direct appeal of a criminal conviction bars review of any issues raised in a 60–1507 motion. But Bledsoe did not address that issue and does not stand for such a sweeping rule. The Bledsoe court noted that a movant may assert issues in his or her 60–1507 motion that could have been raised on direct appeal and were not if he or she demonstrates exceptional circumstances. One exceptional circumstance is the ineffective assistance of counsel that, if proven, constitutionalizes the failure to have raised the issue in the direct appeal. 283 Kan. at 88–89.
A defendant's failure to take a direct appeal of a conviction certainly complicates a 60–1507 motion and may well curtail the issues properly raised. The absence of a direct appeal does not, however, automatically bar a 60–1507 motion or habeas corpus relief. See Wilkerson v. State, 38 Kan.App.2d 732, 734, 171 P.3d 671 (2007) (finding a 60–1507 motion untimely when filed more than a year after the time to appeal a conviction had run where no direct appeal of plea or sentencing had been taken); Baker v. State, No. 101,360, 2009 WL 3738911, at *2 (Kan.App.2009) (unpublished opinion) (same); Collins v. State, No. 99,462, 2009 WL 196194, at *2 (Kan.App.2009) (unpublished opinion) (same). Nothing in K.S.A. 60–1507 or Supreme Court Rule 183 (2012 Kan. Ct. R. Annot. 274) even hints that a direct appeal might be a procedural prerequisite for filing a motion. Such a rule would deprive a criminal defendant of any collateral review of a conviction when constitutionally ineffective counsel failed to preserve or pursue a direct appeal. That would be inimical to the basic purpose of habeas proceedings—to insure no substantially prejudicial constitutional error infects a criminal conviction—and would deny relief on a procedural bar when it might most urgently be needed. See K.S.A. 60–1507(a) (basis of motion is “right to be released upon the ground that the sentence was imposed in violation of the constitution or laws of the United States, or the constitution and laws of the state of Kansas”).
Accordingly, we reverse the direct court's dismissal of Lockhart's motion and remand with directions that the court consider the motion on the merits. See Bellamy v. State, 285 Kan. 346, 353–54, 172 P.3d 10 (2007).