                 IN THE SUPREME COURT OF THE STATE OF KANSAS


                                              No. 115,904

                                       KEDRIN D. LITTLEJOHN,
                                            Appellant,

                                                    v.

                                          STATE OF KANSAS,
                                              Appellee.


                                    SYLLABUS BY THE COURT

        An inmate filing a second or successive motion under K.S.A. 60-1507 must show
exceptional circumstances to avoid having the motion dismissed as an abuse of remedy.


        Review of the judgment of the Court of Appeals in an unpublished opinion filed June 30, 2017.
Appeal from Sedgwick District Court; JAMES R. FLEETWOOD, judge. Opinion filed August 23, 2019.
Judgment of the Court of Appeals reversing the district court is reversed, and the case is remanded to the
Court of Appeals with directions.


        Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, argued the cause, and
Krystle M.S. Dalke, of the same firm, was with him on the brief for appellant.


        Boyd K. Isherwood, chief assistant district attorney, argued the cause, and Julie A. Koon, assistant
district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, were with him on
the briefs for appellee.


The opinion of the court was delivered by


        JOHNSON, J.: The State petitions this court for review of the Court of Appeals'
decision reversing the district court's summary denial of Kedrin D. Littlejohn's K.S.A.
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60-1507 motion and remanding the case to the district court for an evidentiary hearing on
the issue of whether Littlejohn's trial counsel was ineffective for failing to pursue a
defense of mental defect and to request jury instructions regarding the same defense.
Littlejohn v. State, No. 115,904, 2017 WL 2833312 (Kan. App. 2017) (unpublished
opinion). The State contends that the panel applied an incorrect standard to determine
whether the district court should have considered a second or successive K.S.A. 60-1507
motion. We agree and remand to the Court of Appeals to apply the correct standard.


                          FACTUAL AND PROCEDURAL OVERVIEW


        A more complete recitation of the facts underlying Littlejohn's crimes is set forth
in our opinion from the direct appeal, State v. Littlejohn, 298 Kan. 632, 316 P.3d 136
(2014). During a May 2008 botched robbery by Littlejohn and Shannon Bogguess, the
intended victim was shot, kidnapped, and then run over and killed by a vehicle driven by
Bogguess. Littlejohn was arrested; police matched the blood at the scene with blood on
Littlejohn's shoes; and Littlejohn eventually confessed to participating in the crimes. 298
Kan. at 634-38. See also State v. Bogguess, 293 Kan. 743, 744-45, 268 P.3d 481 (2012).


        Before trial, Littlejohn's counsel filed a motion to determine competency, as well
as a motion to suppress Littlejohn's statements to police on the grounds that Littlejohn's
Miranda waiver was involuntary or coerced. Littlejohn had several attorneys during the
pretrial district court proceedings, and the record on appeal is not always clear as to
which attorney filed which motion. Quentin Pittman represented Littlejohn during the
jury trial.


        After a hearing on December 4, 2009, the district court found that Littlejohn could
understand the charges and assist in his defense, and, therefore, he was competent to
stand trial. The court relied upon a report produced by Comcare (Comcare report). That
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report, while finding Littlejohn competent to stand trial, noted that "it may be helpful to
have IQ testing completed on Mr. Littlejohn."


       The Comcare report referred to a previous IQ test that had been administered by
the Wichita Child Guidance Center in 2006, when Littlejohn was 16, and that had
revealed Littlejohn to be moderately mentally retarded. That 2006 report is included in
the record on appeal as an attachment to Littlejohn's 60-1507 motion. It includes a
number of different scores on various types of tests and designates Littlejohn's full scale
IQ as 49, which is less than the 0.1 percentile and considered to be in the moderate
mental retardation range.


       The 2006 report noted a concern that another report from 1997, when Littlejohn
was 7 years old, indicated that Littlejohn's IQ levels were normal at that point, with a full
scale IQ of 100. The 2006 report questioned whether this was due to an intervening
decline in mental abilities or whether the 1997 testing was flawed. The 1997 report is not
in the record on appeal. Comcare's suggestion of an updated IQ test was premised on the
discrepancy between the 1997 and 2006 test results.


       The district court again discussed Littlejohn's mental capacity at a suppression
hearing on the eve of the jury trial on October 8, 2010. Dr. Mitchell Flesher, a
psychologist, testified as an expert for the defense in the context of the voluntariness of
Littlejohn's statements to the police. Based upon an in-jail evaluation of Littlejohn in
September 2009, Dr. Flesher said Littlejohn read at a third grade level, spelled at a fourth
grade level, and displayed fourth grade level math skills. All of these scores were in the
first or second percentile, meaning that Littlejohn's scores would have been the lowest
1 or 2 out of every 100 people. Dr. Flesher conducted other tests and evaluations with
similar low results. He scored Littlejohn's verbal IQ at 70 and his full scale IQ at 71.
Dr. Flesher said that although Littlejohn's full scale score was technically above the
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threshold IQ of 70 to be considered mentally retarded, Dr. Flesher diagnosed Littlejohn
as mentally retarded and provided his reasons for doing so.


       Littlejohn's trial counsel did not mount a mental defect defense and did not request
any jury instructions relative to his mental retardation. The defense focused on
inconsistencies in the evidence and tried to portray Littlejohn as a victim of, and not a
participant in, the crimes. Littlejohn, 2017 WL 2833312, at *8. The jury convicted
Littlejohn of felony murder, aggravated robbery, aggravated kidnapping, and aggravated
assault. His convictions were affirmed on direct appeal, and the mandate issued February
10, 2014. Littlejohn, 298 Kan. at 660.


       Littlejohn filed his first 60-1507 motion in June 2014, which was summarily
denied "because the claims were conclusory." Littlejohn filed an untimely appeal of that
denial in October 2014 but later voluntarily withdrew it. Neither the first 60-1507 motion
nor any of the court orders associated with it are included in the record on appeal. But
both parties refer to the existence of the first 60-1507 motion, and the facts surrounding it
are not in dispute.


       Littlejohn filed his second 60-1507 motion—the subject of this appeal—on
January 16, 2015. In his pro se memorandum in support of the motion, Littlejohn argued
that his trial counsel was ineffective for failing to protect various constitutional rights,
which constituted exceptional circumstances that would allow him to proceed with a
second 60-1507. Among the several issues Littlejohn raised in the motion was an
ineffective assistance of counsel claim for his trial attorney's failure to utilize a mental
defect defense and a claim that the trial court erred in failing to give a jury instruction on
mental defect as a defense.




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       The district court failed to take any action on the motion for some 10 months.
After the State belatedly filed a response to the motion on November 4, 2015, in which it
ignored the merits of Littlejohn's claims and simply argued for a dismissal based upon the
motion being successive, Sedgwick County District Judge James Fleetwood finally
addressed the motion on November 10, 2015. Chief Judge Fleetwood's order appears to
be a copy-and-paste of the State's response, denying the motion as successive and an
abuse of remedy.


       On appeal, Littlejohn argued that the district court erred in summarily denying his
60-1507 motion without appointing counsel, despite receiving a response from the State,
and that the district court erred in dismissing the 60-1507 motion as successive because
he demonstrated exceptional circumstances that would permit a second motion.


       The Court of Appeals held that the failure to appoint counsel was not error but
reversed and remanded for a hearing on whether trial counsel was ineffective for failing
to investigate Littlejohn's mental defect defense. Littlejohn, 2017 WL 2833312, at *10.
The panel held that justice would be served by considering Littlejohn's successive 60-
1507 motion and the issue of ineffective assistance of counsel, taking note of evidence in
the record on appeal of Littlejohn's diminished mental capacity, full scale IQ of 71, and
diagnosis of mild mental retardation. 2017 WL 2833312, at *10. In doing so, the panel
opined that Supreme Court Rule 183(d) (2017 Kan. S. Ct. R. 222) does not require a
court to find that exceptional circumstances exist that would allow a court to consider a
second or successive 60-1507 motion, so long as the motion includes any colorable
claims. 2017 WL 2833312, at *7.


       The State timely petitioned for review, arguing that the panel erred in holding that
the district court did not have to find exceptional circumstances to consider the merits of


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Littlejohn's second 60-1507 motion. Littlejohn did not cross-petition on the appointment
of counsel issue; that issue is not before this court.


                SECOND OR SUCCESSIVE MOTIONS UNDER K.S.A. 60-1507


       The State contends that our precedent has required that a K.S.A. 60-1507 movant
demonstrate exceptional circumstances before a district court is required to consider the
merits of a second or successive 60-1507 motion. Accordingly, the State argues that the
Court of Appeals erroneously interpreted Supreme Court Rule 183(d) (2018 Kan. S. Ct.
R. 223) as requiring that a district court consider the merits of a second or successive
motion if the movant "asserts any colorable claims." 2017 WL 2833312, at *7. We agree
with the State; the panel applied an incorrect standard.


Standard of Review


       When a district court summarily denies a K.S.A. 60-1507 motion, appellate review
of that ruling is de novo. See Sola-Morales v. State, 300 Kan. 875, 881, 335 P.3d 1162
(2014). The interpretation of statutes and Supreme Court rules involves questions of law
reviewable de novo. Stewart v. State, 310 Kan. ___, No. 115,149, 2019 WL 3047724, at
*3 (2019).


Analysis


       Obviously, a K.S.A. 60-1507 motion is a creature of statute, and, therefore, we
start by looking at the language of the statute. The statute contains a subsection that
specifically deals with successive motions, to-wit: "The sentencing court shall not be
required to entertain a second or successive motion for similar relief on behalf of the
same prisoner." K.S.A. 2018 Supp. 60-1507(c).
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       In Nguyen v. State, 309 Kan. 96, 107, 431 P.3d 862 (2018), we pointed out that
"[a] plain language reading of [K.S.A. 60-1507(c)] might well suggest that the district
court has unfettered discretion to decline to consider a second or successive 60-1507
motion, notwithstanding the reason for the subsequent motion and regardless whether
injustice may result from the refusal to consider the motion's merits." But we clarified
that, for decades, our caselaw has not interpreted the provision as being without
exception. See Dunlap v. State, 221 Kan. 268, 270, 559 P.2d 788 (1977) ("The sentencing
court should not entertain a second or successive motion for relief under K.S.A. 60-1507
on behalf of the same person unless the errors affect constitutional rights and there are
exceptional circumstances which justify entertaining a second or successive motion."
[Emphasis added.]). Nguyen "confirmed that a movant could avoid having a second or
successive K.S.A. 60-1507 motion dismissed as an abuse of remedy by establishing
exceptional circumstances." 309 Kan. at 108. Accord Beauclair v. State, 308 Kan. 284,
304-05, 419 P.3d 1180 (2018) (claim of innocence founded upon victim's recantation
sufficient exceptional circumstance to avoid dismissal as successive motion).


       On the other hand, Nguyen pointed to Supreme Court Rule 183 as explaining and
implementing the procedure to be followed under K.S.A. 60-1507 and recited the
successive motions rule under subsection (d):


              "A sentencing court may not consider a second or successive motion for relief by
       the same movant when:


                      (1) the ground for relief was determined adversely to the movant on a
              prior motion;


                      (2) the prior determination was on the merits; and



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                     (3) justice would not be served by reaching the merits of the subsequent
              motion." Supreme Court Rule 183(d) (2018 Kan. S. Ct. R. 225).


In contrast to the plain language of the statutory provision, we noted that "a plain reading
of [Supreme Court Rule 183(d)(3)] would suggest that a district court is permitted to
decline to consider a successive motion only 'when . . . justice would not be served by
reaching the merits of the subsequent motion.' Supreme Court Rule 183(d)(3) (2018 Kan.
S. Ct. R. 225)." 309 Kan. at 108.


       We reconciled the contradictory implications of the respective plain language of
the statute and the rule by incorporating the Rule 183(d)(3) determination—whether
justice would be served by reaching the merits of a successive motion—into the
statutorily driven analysis—whether exceptional circumstances exist. In discussing the
exceptional circumstances in that case, e.g., movant's inability to understand English and
counsel's dilatory performance, Nguyen noted that the district court must at least read the
motion and consider the merits before dismissing the motion as successive. Moreover,
Nguyen intimated that serving justice has to be part of analyzing the exceptional nature of
the circumstances. 309 Kan. at 111.


       The panel below, however, ignored the statutory provision and focused entirely on
Rule 183(d). It noted that the phrase "exceptional circumstances" does not appear in that
subsection of the rule, but rather the phrase only appears in Rule 183(c)(3) which directs
that a 60-1507 motion is not to be used as a substitute for a direct appeal of mere trial
errors or a substitute for a second appeal. Littlejohn, 2017 WL 2833312, at *10.
Consequently, the panel held that a showing of exceptional circumstances was
unnecessary for a movant filing a second or successive 60-1507 motion. 2017 WL
2833312, at *5. Rather, it chose the plain reading of subsection Rule 183(d)(3) that
we subsequently rejected in Nguyen, i.e., that a district court is permitted to decline to

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consider a successive motion only when justice would not be served by reaching the
merits of the subsequent motion.


       Then, after rejecting our long-standing requirement for a showing of exceptional
circumstances, the panel veered further off-course by creating a new test to determine
whether justice would not be served by reaching the merits of a successive 60-1507
motion. It held that the question of whether justice requires reaching the merits of a
successive motion is answered by determining whether the movant "asserts any colorable
claims." 2017 WL 2833312, at *7. That test not only confuses decades of precedent and
is unnecessary, it is unsupported by any precedent, except perhaps a passing reference in
the previous unpublished opinion in Saleem v. State, No. 94,945, 2006 WL 3353769, at
*13 (Kan. App. 2006) (unpublished opinion). Certainly, as we say above, the merit of a
movant's claims will factor into the calculus of whether a movant has presented
exceptional circumstances to avoid dismissal of a successive motion. But the presentation
of any colorable claim is not the determinative factor on whether a successive motion
gets an evidentiary hearing on the merits.


       In sum, the Court of Appeals applied the wrong standard in determining whether
the district court erred in summarily denying Littlejohn's 60-1507 motion as being an
abuse of remedy. The test should have been whether Littlejohn had presented exceptional
circumstances to justify reaching the merits of the motion, factoring in whether justice
would be served by doing so. We remand to the Court of Appeals to apply the correct
standard. In doing so, we do not intend to indicate any opinion as to the result of that
correct analysis.


       Reversed and remanded with directions.


       NUSS, C.J. and BILES and STEGALL, JJ., concur in the result.
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