Opinion
No. 105,691.
2012-06-1
Timothy A. RIGGLE, Appellant, v. STATE of Kansas, Appellee.
Appeal from Montgomery District Court; David W. Rogers, Judge. Janine Cox, of Kansas Appellate Defenders Office, for appellant. Andrew D. Bauch, assistant attorney general, for appellee.
Appeal from Montgomery District Court; David W. Rogers, Judge.
Janine Cox, of Kansas Appellate Defenders Office, for appellant. Andrew D. Bauch, assistant attorney general, for appellee.
Before GREENE, C.J., GREEN and BUSER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Timothy Riggle appeals the denial of his K.S.A. 60–1507 motion. Riggle also raises arguments concerning a motion to withdraw plea he filed in the underlying criminal case. We affirm in part and dismiss in part.
Factual and Procedural Background
On March 28, 2005, Riggle was charged with six counts of aggravated criminal sodomy in the criminal case, 05CR133. On June 22, 2005, he was evaluated for competency to stand trial. Although testing showed Riggle was “in the upper limits of the borderline range in regard to intellectual functioning,” the evaluator concluded Riggle's “intellectual deficits” were not “at a level that would render him incompetent.” The evaluator also found no “psychiatric/psychological symptoms that would interfere with competency to stand trial.”
On August 30, 2005, Riggle pled no contest to one count of aggravated criminal sodomy and two counts of aggravated indecent liberties with a minor. On October 11, 2005, he was sentenced to 245 months' imprisonment. Riggle did not appeal.
On July 9, 2009, Riggle filed the present civil case, 09CV117. Riggle claimed he was denied arraignment and a preliminary hearing in the criminal case, arguing “[t]his all proves Innefective [ sic ] Assistance of Counsel.” On the same day, Riggle filed a pro se motion to withdraw plea in the criminal case. Riggle again claimed denial of arraignment and preliminary hearing.
On November 9, 2010, Riggle appeared with appointed counsel. The district court announced the civil case and noted the parties were appearing both on Riggle's K.S.A. 60–1507 motion and on the State's motion to dismiss based on the time limitation at K.S.A. 60–1507(f). The district court asked Riggle's counsel if he was ready to proceed on the motion to dismiss, and counsel responded affirmatively. Counsel did not dispute that Riggle had filed the K.S.A. 60–1507 motion beyond the time limitation. Counsel instead argued Riggle “simply did not understand the time issues” and that it was “obviously unfair that my client in his mental capacity be held to a one year standard.” Counsel presented no evidence aside from making reference to the 2005 competency evaluation.
The district court began by stating its “objective or ... goal in any case of any nature [is] to give everyone their opportunity ... to be fully heard on something.... In this situation, however, the statute is abundantly clear.” Because Riggle had not filed his motion within the 1–year time limitation of K.S.A. 60–1507(f)(1), the district court would “look at the wording of the statute” for an “alternative that the Court can consider.” The sole alternative was “for the Court to find that there is a manifest injustice” allowing “the time limit here [to] be extended” under K.S.A. 60–1507(f)(2).
The district court then considered Riggle's claim of low mental capacity. The district court observed Riggle was found competent in 2005. The district court did not “see that there has been enough evidence presented today for the Court to make a finding ... of ... manifest injustice.” Because the evidence of manifest injustice was “insufficient,” the district court granted the State's motion to dismiss.
The district court then separately announced the criminal case and noted the parties were appearing both on Riggle's motion to withdraw and on the State's motion to dismiss based on the time limitation of K.S.A.2010 Supp. 22–3210(e)(1). After hearing argument, the district court granted the State's motion to dismiss pursuant to the 1–year limitation period, which had taken effect a few months before Riggle filed his motion to withdraw plea.
On November 24, 2010, Riggle filed a pro se notice of appeal in the civil case. Riggle stated he “appeals from [the judge's] ... denial of the above case number of the K.S.A. 60–1507 of habeaus Corpus [ sic ].” Riggle included the text, “In Re Criminal Case No: 05CR133I,” in the caption underneath the civil case number, and in the body of his motion Riggle referred to “K.S.A. 20, 22, 23, of books –2–A,” which apparently refers to the criminal codes. But the record does not show this notice of appeal was cross-filed in the criminal case or that Riggle took any other steps to appeal in the criminal case.
The district court appointed appellate counsel for Riggle, using a proposed order of appointment provided by Riggle himself. Like Riggle's pro se notice of appeal, Riggle's pro se proposed order included “In Re Criminal Case No: 05CR133I” in the caption. Aside from that, nothing in the order indicated appellate counsel should pursue an appeal in the criminal case. Riggle's appellate counsel then docketed an appeal only in the civil case. The docketing statement stated as the sole issue: “The court erred by denying petitioner's motion pursuant to K.S.A. 60–1507.”
K.S.A. 60–1507 Motion
Riggle argues he “deserves his day in court” because of “mental health issues.” Riggle is thus claiming a right to file his K.S.A. 60–1507 motion out of time because he has a mental disease or defect. Since Riggle was provided with an evidentiary hearing, we review the district court's findings of fact for substantial competent evidence and its ultimate conclusions of law de novo. See Bellamy v. State, 285 Kan. 346, 354–55, 172 P.3d 10 (2007).
The competency report showed that Riggle was competent at the time he entered his plea, and Riggle presented no evidence to the contrary for any time thereafter. It was, therefore, not obviously unfair or shocking to the conscience to apply K.S.A. 60–1507(f)(1) here. See Ludlow v. State, 37 Kan.App.2d 676, 686, 157 P.3d 631 (2007) (defining manifest injustice). “[A] pro se K.S.A. 60–1507 movant is in the same position as all other pro se civil litigants and is required to be aware of and follow the rules of procedure that apply to all civil litigants, pro se or represented by counsel. [Citation omitted.]” Guillory v. State, 285 Kan. 223, 229, 170 P.3d 403 (2007). Riggle has not shown that he should be held to a different standard.
Riggle makes other complaints, such as a “lack of a preliminary hearing,” a “failure of the trial court to engage in a meaningful discussion of the rights ... [waived] should he enter a nolo contendere plea,” the district court's use of a probable cause or search warrant affidavit to provide the factual basis for the plea, and the district court's failure to inform Riggle of his right to appeal. These issues, however, were not argued below as a basis for manifest injustice. Because the district court did not decide them, we should not review them. Riggle is asking us to consider them for the first time on appeal, but this is outside our scope of review. See In re Care & Treatment of Miller, 289 Kan. 218, 224–25, 210 P.3d 625 (2009). There are exceptions, see State v. Dukes, 290 Kan. 485, 488, 231 P.3d 558 (2010), but Riggle does not brief them.
Even if we were to review Riggle's other complaints, they do not show manifest injustice. Riggle personally waived the preliminary hearing at his plea hearing. When the district court inquired at the plea hearing whether Riggle had read and understood his plea agreement, Riggle said he had. The district court informed Riggle he would “be giving up your rights to a jury trial, to your day in court, to contest the charges, to tell your side of the story, to have an attorney help you through all of that.” Riggle again said he understood. The district court stated it was “personally aware” of the factual basis for the plea based on Riggle's first appearance and the contents of the affidavit, and Riggle does not explain how this was inadequate. The district court did fail to inform Riggle of his right to appeal at sentencing, but Riggle does not claim he would have appealed or otherwise demonstrate prejudice. Accordingly, we affirm the district court's decision to dismiss the K.S.A. 60–1507 motion.
Jurisdiction over Criminal Case
Riggle also briefs the motion to withdraw plea in the criminal case. “An appellate court has the duty of questioning jurisdiction on its own motion. If the record discloses a lack of jurisdiction, the appeal must be dismissed.” McDonald v. Hannigan, 262 Kan. 156, 160, 936 P.2d 262 (1997).
We acquire jurisdiction only if the appeal is taken according to the statutes. Harsch v. Miller, 288 Kan. 280, 287, 200 P.3d 467 (2009). A party must file a notice of appeal in order to appeal. See K.S.A. 22–3606; K.S.A.2010 Supp. 60–2103(a). Since the record does not show Riggle filed a notice of appeal in the criminal case, we lack jurisdiction to consider the district court's ruling on Riggle's motion to withdraw plea.
Even if the notice of appeal in the civil case somehow sufficed for the criminal case, Riggle did not docket an appeal from the criminal case. Jurisdiction over that case, therefore, did not transfer from the district court to this court. See K.S.A. 22–3606; K.S.A.2010 Supp. 60–2103(g); ARY Jewelers v. Krigel, 277 Kan. 464, 473, 85 P.3d 1151 (2004); Supreme Court Rule 2.04 (2011 Kan. Ct. R. Annot. 12); Supreme Court Rule 5.051 (2011 Kan. Ct. R. Annot. 36). Once again, we lack jurisdiction to consider the district court's ruling on Riggle's motion to withdraw plea. That portion of Riggle's appeal is dismissed.
Affirmed in part and dismissed in part.