                           NOT DESIGNATED FOR PUBLICATION

                                             No. 121,733

               IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                           STATE OF KANSAS,
                                               Appellee,

                                                   v.

                                            DOUG MORRIS,
                                              Appellant.

                                    MEMORANDUM OPINION


        Appeal from Johnson District Court; JAMES CHARLES DROEGE, judge. Opinion filed August 14,
2020. Affirmed.


        Jonathan Laurans, of Kansas City, Missouri, for appellant.


        Shawn E. Minihan, assistant district attorney, Stephen M. Howe, district attorney, and Derek
Schmidt, attorney general, for appellee.


Before ARNOLD-BURGER, C.J., BRUNS and SCHROEDER, JJ.


        PER CURIAM: Doug Morris appeals the district court's summary denial of his
untimely and successive motion for habeas corpus relief under K.S.A. 2019 Supp. 60-
1507. Morris argues he was entitled to a hearing on his claims because the change in the
law announced by our Supreme Court in State v. Dunn, 304 Kan. 773, 375 P.3d 332
(2016), should be applied retroactively and creates the exceptions to allow his untimely
and successive motion to be set for hearing. We disagree and affirm the district court.




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                                             FACTS


       Morris was originally charged with attempted first-degree murder, burglary, and
conspiracy to commit first-degree murder. Through plea negotiations, he agreed to enter
an Alford plea of guilty to the attempted first-degree murder charge in exchange for the
State's dismissal of the remaining two charges and recommendation of a 15 years to life
sentence. See North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162
(1970) (guilty plea entered while defendant maintains innocence). At the plea hearing, the
State presented a four-page statement of facts thoroughly detailing what the State would
prove if the case went to trial. The statement was signed at the plea hearing by Morris, his
attorney, and the prosecuting attorney. After the hearing, it was then filed with the clerk
of the district court for inclusion in the court file. The district court also discussed the
four-page statement in detail with Morris on the record, as well as the process of waiving
his right to a jury trial and the effect of his Alford plea. Morris is still serving his sentence
of 15 years to life.


       Morris never filed a direct appeal, but, over the years, he has filed many
postconviction motions, including a K.S.A. 60-1507 motion in 1989, which raised the
same issues now before us. His 1989 motion was summarily denied by the district court,
and its decision was affirmed by a panel of this court. Morris v. State, No. 64,659, 1990
WL 155418, at *1 (Kan. App. 1990) (unpublished opinion). The Kansas Supreme Court
denied Morris' petition for review. 248 Kan. 996 (1991). Morris also filed a federal action
for habeas corpus relief under 28 U.S.C. § 2254 (1966), without success. Morris v.
McKune, 1 F.3d 1249 (10th Cir. 1993) (unpublished opinion).


       In 2017, Morris filed his second K.S.A. 60-1507 motion—the subject of this
appeal—through counsel. Raising the same argument he raised in his first K.S.A. 60-
1507 motion, Morris claimed his conviction was void for lack of subject matter
jurisdiction because the State's complaint failed to allege all the essential elements of


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attempted first-degree murder. For the first time, however, he argued our Supreme
Court's decision in Dunn supported his argument and should be applied retroactively to
his case. Morris filed a legal memorandum along with his motion in which he also
challenged the facts alleged in the complaint and issues of federal due process and notice
under the United States Constitution. He later filed a supplemental memorandum in
which he claimed Dunn established the manifest injustice and exceptional circumstances
necessary for the district court to consider the merits of his arguments.


       The district court summarily denied Morris' K.S.A. 60-1507 motion in 2019. It
found the Kansas Supreme Court's decision in Dunn was an intervening change in the
law, but it could not be applied retroactively to Morris' case. The district court noted even
if Dunn could be retroactively applied, the decision could not give Morris relief because
it limited issues of subject matter jurisdiction arising from a defective complaint rather
than expanding them. The district court held Morris' motion did not warrant a hearing on
the merits because his claims were untimely, successive, and failed to establish manifest
injustice or exceptional circumstances. It also found Morris had argued in previous
postconviction motions the allegedly defective complaint divested the district court of
subject matter jurisdiction.


                                         ANALYSIS


       Our analysis upon the summary denial of a K.S.A. 60-1507 motion depends on the
means the district court used to resolve it. Beauclair v. State, 308 Kan. 284, 293, 419
P.3d 1180 (2018). Here, the district court summarily denied Morris' K.S.A. 60-1507
motion without an evidentiary hearing, making our review unlimited. Like the district
court, we must determine whether the motion, court files, and records of the case
conclusively show Morris has no right to relief. See Sherwood v. State, 310 Kan. 93, 99,
444 P.3d 966 (2019).



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       In his K.S.A. 60-1507 motion, supporting legal memoranda, and his brief on
appeal, Morris has consistently maintained Dunn supports his claim that his conviction is
void for lack of subject matter jurisdiction, arguing the State's complaint failed to allege
all essential elements of attempted first-degree murder. Our independent review of the
record reveals the district court was right, and several procedural hurdles prevent the
consideration of Morris' underlying claims.


The district court properly denied Morris' motion as untimely.


       First, Morris' latest K.S.A. 60-1507 motion is untimely. A K.S.A. 60-1507 motion
must be filed within one year from the date the movant's conviction becomes final.
K.S.A. 2019 Supp. 60-1507(f)(1)(A). This one-year time limit was added to the statute
and became effective on July 1, 2003. L. 2003, ch. 65, § 1. For movants, like Morris, who
had a preexisting case before the amendment became effective, "the deadline for filing a
60-1507 motion was June 30, 2004." See Noyce v. State, 310 Kan. 394, 399, 447 P.3d
355 (2019). Morris entered his Alford plea in 1987 and did not appeal his conviction or
sentence. Morris filed his current motion on May 8, 2017, nearly 13 years after the
statutory deadline and more than 29 years after he entered his Alford plea, was found
guilty, and sentenced. The deadline for filing a K.S.A. 60-1507 motion can be extended
only to prevent manifest injustice. In considering whether manifest injustice compels the
court to consider his untimely motion, we only consider the movant's reasons for failing
to timely file or the movant's claims of actual innocence. K.S.A. 2019 Supp. 60-
1507(f)(2)(A); see White v. State, 308 Kan. 491, 503, 421 P.3d 718 (2018) (statutory
amendment applies to any motions filed after its effective date—July 1, 2016).


       Here, Morris does not claim actual innocence, nor does he present a valid claim
based upon the reasons for an untimely filing. Instead, he claims he could not file this
motion earlier because he is now basing his claim on Dunn—a case that was not decided
until July 16, 2016. The existence of an intervening case may be a basis to find


                                              4
exceptional circumstances to overcome a dismissal for successiveness, but the reasons for
failing to timely file is a different analysis. In this case, it has been 13 years since his
deadline for filing a K.S.A. 60-1507 action. Morris seems to suggest we should consider
his untimely claim because this court, the Kansas Supreme Court, and the federal courts
have denied his claim in the past and now he has a better argument. We do not find this
reasoning persuasive.


       The merits of the movant's case cannot serve as the sole basis for extending the
time to file. Even before the Legislature limited the manifest injustice inquiry to the
factors under K.S.A. 2019 Supp. 60-1507(f)(2)(A), our Supreme Court rejected the
argument that "manifest injustice necessarily occurs when the merits of a movant's time-
barred claim will never be considered by a court." Vontress v. State, 299 Kan. 607, 618,
325 P.3d 1114 (2014). The court reasoned that such a rule would make the one-year time
limit meaningless. 299 Kan. at 618. Rather, the movant must explain why the claim could
not have been filed within the one-year time limit. K.S.A. 2019 Supp. 60-15071(f)(2)(A).
For example, in White, the defendant alleged he was not informed of the end of his direct
appeal, the event which would have started the one-year deadline to run. Our Supreme
Court found the movant's allegation, if true, was an acceptable explanation. 308 Kan. at
508. But Morris does not make such an allegation here. Morris provides no real
explanation other than Dunn applies to establish manifest injustice. We disagree.


The district court properly denied Morris' motion as successive.


       Second, his motion is successive, meaning Morris has already filed a K.S.A. 60-
1507 motion seeking similar relief. "The rationale for the limitations on the availability of
postconviction relief under K.S.A. 60-1507 is the necessity for some degree of finality in
the criminal appeal process in order to prevent endless piecemeal litigation in the state
and federal courts." Toney v. State, 39 Kan. App. 2d 944, 948, 187 P.3d 122, rev. denied
November 4, 2008. Accordingly, a K.S.A. 60-1507 movant "'is presumed to have listed


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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.'" State v.
Trotter, 296 Kan. 898, 904, 295 P.3d 1039 (2013) (quoting Walker v. State, 216 Kan. 1,
Syl. ¶ 2, 530 P.2d 1235 [1975]); see K.S.A. 2019 Supp. 60-1507(c); Kansas Supreme
Court Rule 183(d) (2020 Kan. S. Ct. R. 223). To avoid dismissal of his current motion as
an abuse of remedy, Morris had the burden to show exceptional circumstances—
"'unusual events or intervening changes in the law'"—prevented him from raising the
issue in his first K.S.A. 60-1507 motion. See Beauclair, 308 Kan. at 304 (quoting State v.
Mitchell, 284 Kan. 374, Syl. ¶ 5, 162 P.3d 18 [2007]). Morris appears to argue he can
establish exceptional circumstances because Dunn is an intervening change in the law.


       An intervening change in the law for the purpose of showing exceptional
circumstances is generally "an abrogation of a prior rule." Alires v. State, 21 Kan. App.
2d 676, 678, 906 P.2d 172 (1995). As our Supreme Court has recognized: "[Dunn] made
significant changes to the law on charging document sufficiency, the effect of deficient
charging documents, and appellate review of deficient charging document claims." State
v. Sayler, 306 Kan. 1279, 1280, 404 P.3d 333 (2017); see State v. Rodriguez, 305 Kan.
1139, 1145, 390 P.3d 903 (2017) ("Dunn overruled a substantial amount of the law that
had been applicable to charging document challenges for at least the last half-century.").
In particular, the Dunn court overruled our Supreme Court's prior decisions in State v.
Minor, 197 Kan. 296, 301, 416 P.2d 724 (1966) (finding omitted element in charging
document will result in reversal for lack of jurisdiction), and State v. Hall, 246 Kan. 728,
765, 793 P.2d 737 (1990) (establishing special preservation treatment of defective
charging instrument errors). See Dunn, 304 Kan at 810-11. For these reasons, we find
Dunn constitutes an intervening change in the law.


       However, not all intervening changes in the law rise to the level of exceptional
circumstances. See Coleman v. State, No. 106,003, 2012 WL 3822699, at *6 (Kan. App.
2012) (unpublished opinion). Intervening changes in the law generally do not apply


                                              6
retroactively to cases, like Morris', that are already final. See State v. Mitchell, 297 Kan.
118, 124-25, 298 P.3d 349 (2013). And as we explain more fully below, even if we were
to apply Dunn retroactively to Morris' arguments, the decision cannot give him the relief
he seeks. Thus, we find even though Dunn is an intervening change in the law, it cannot
demonstrate exceptional circumstances to permit Morris' successive K.S.A. 60-1507
motion.


       We also note that Morris' current K.S.A. 60-1507 motion raises the same exact
challenge to the State's complaint the district court and this court ruled against in his first
K.S.A. 60-1507 motion—that the deficiencies with the State's complaint make his
conviction void for lack of subject matter jurisdiction. Generally, a second K.S.A. 60-
1507 motion supported by different arguments is still successive when it seeks
consideration of the same issue. See Thuko v. State, 310 Kan. 74, 84, 444 P.3d 927
(2019) (finding movant's second K.S.A. 60-1507 successive despite different supporting
arguments because both motions alleged ineffective assistance of direct appeal counsel);
Dawson v. State, No. 94,720, 2006 WL 3877559, at *2 (Kan. App. 2006) (unpublished
opinion) (finding movant failed to establish exceptional circumstances preventing him
from presenting all permutations of ineffective assistance of counsel in first K.S.A. 60-
1507 motion; thus, movant "should not be permitted to piecemeal an issue of ineffective
assistance of counsel to circumvent Supreme Court Rule 183[d]"). Although Morris has
reframed his arguments under Dunn, we find he essentially seeks successive
consideration of the same issue. This does not constitute an exceptional circumstance
warranting review of a successive motion.


       Morris' attempt to revive the challenges to the State's complaint through Dunn
leads to the kind of piecemeal litigation K.S.A. 2019 Supp. 60-1507 was meant to limit.




                                               7
Even if we considered the merits of Morris' arguments, Dunn cannot give him the relief
he seeks.

       Notwithstanding any of the above-mentioned procedural hurdles, Morris' claim
still fails on the merits. As a general rule, "a change in the law acts prospectively,
applying only 'to all cases, state or federal, pending on direct review or not yet final.'"
Mitchell, 297 Kan. at 124-25. Morris' criminal proceeding was final in 1989 when he did
not file a direct appeal, long before Dunn was decided. Morris now claims Dunn should
be applied retroactively to him based on the three-step analysis Kansas appellate courts
use "for determining whether a change in the law should be applied retroactively in a
criminal case under collateral attack." Drach v. Bruce, 281 Kan. 1058, 1072, 136 P.3d
390 (2006). But even if we were to assume—for purposes of argument only—that Dunn
applies retroactively to Morris, Dunn does not provide Morris the relief he seeks.


       We begin with Morris' claim the complaint is fatally deficient. It alleged that
Morris, on or about May 8, 1986,


       "did then and there unlawfully, feloniously, maliciously, willfully, deliberately and with
       premeditation attempt to kill a human being, to-wit: Richard Liddeke, but failed in the
       perpetration thereof, in violation of K.S.A. 21-3301, K.S.A. 21-3401 and K.S.A. 21-
       4501(b)."


       Morris claims the complaint failed to allege (1) the specific overt act he took
toward the completion of first-degree murder and (2) he acted with the premeditation
required for first-degree murder. He asks us to vacate his conviction because it is
"unavoidably void" for lack of subject matter jurisdiction. We will address each of these
issues and follow it with a discussion of whether Dunn changes the analysis.




                                                   8
       A complaint charging attempt need not specify the overt act committed toward
       perpetration of the completed crime.

       "An attempt crime has three essential elements: the intent to commit the crime, an
overt act toward the perpetration of the crime, and a failure to consummate the crime."
State v. Wilson, 30 Kan. App. 2d 498, 499-500, 43 P.3d 851 (2002); see K.S.A. 2019
Supp. 21-5301(a). In State v. Sweat, 30 Kan. App. 2d 756, Syl. ¶ 3, 48 P.3d 8 rev. denied
274 Kan. 1118 (2002), a panel of this court interpreted the plain language of the attempt
statute and held: "The attempt statute is different from the conspiracy statute because
attempt does not include a requirement that the overt act be 'alleged' as well as proved. A
complaint charging attempt need not specify the overt act committed toward perpetration
of the completed crime." The panel ruled the complaint, which alleged Sweat committed
"'an overt act towards the perpetration of the crime of Murder in the First Degree,'" was
sufficient in regard to the attempted murder charge. 30 Kan. App. 2d at 759-62. In State
v. Shirley, 277 Kan. 659, 665, 89 P.3d 649 (2004), our Supreme Court agreed with Sweat
and noted that conspiracy is the only crime that statutorily requires a specific allegation
of an overt act. Neither Shirley nor Sweat were expressly overruled by Dunn; thus,
Morris' first argument fails regardless of Dunn.


       A complaint charging attempted first-degree murder is sufficient even if it does not
       advise a defendant that he or she acted with the premeditation element of first-
       degree murder.

       "In charging an attempt to commit crime, the essential elements of the crime
attempted need not be meticulously enumerated in the charging document, but the charge
must advise the defendant of the offense he or she is alleged to have attempted to
commit." Wilson, 30 Kan. App. 2d at 500. Further, our Supreme Court has determined
that a complaint charging attempted first-degree murder is sufficient even if it does not
advise a defendant that he or she acted with the premeditation element of first-degree
murder. Swenson v. State, 284 Kan. 931, 942-43, 169 P.3d 298 (2007) (adopting



                                              9
reasoning of Wilson). Again, as neither Swenson nor Wilson were expressly overruled by
Dunn, Morris' argument fails regardless of Dunn.


Dunn does nothing to advance Morris' argument.


       In Dunn, 304 Kan. at 811, our Supreme Court held: "Charging documents do not
bestow or confer subject matter jurisdiction on state courts to adjudicate criminal cases;
the Kansas Constitution does." Thus, even where a charging document is deficient
because it fails to allege facts constituting a crime, the district court would still have
subject matter jurisdiction over the criminal case.


       The Dunn court noted three types of charging document insufficiency a defendant
may challenge.


       "First, either a district or appellate court may be asked to decide whether the document shows that
       the Kansas constitutional minimums of correct court and correct territory are met. Second, a court
       may be asked to evaluate whether the document alleges facts about the intent and action on the
       part of the defendant that, if proved beyond a reasonable doubt, would constitute violation of a
       Kansas criminal statute. And, third, a court may be asked to determine whether the charging
       document meets federal and state constitutional standards for due process and notice, such that
       the defendant has an opportunity to meet and answer the State's evidence and prevent double
       jeopardy. These types of charging document error may be raised at various points in a
       prosecution, and attendant circumstances may dictate various forms of relief." 304 Kan. at 815.


       Only the first type of insufficiency, filing in the wrong court or territory,
implicates subject matter jurisdiction. The other two are "amenable to remedy or cure by
amendment before verdict." 304 Kan. at 816.




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      Morris claims the State's complaint failed to allege the facts constituting attempted
first-degree murder and failed to meet federal constitutional standards of due process and
notice—implicating only the second and third deficiencies noted above.


      As to sufficiency of the facts charged, Dunn explained:


              "The plain language of K.S.A. 22-3201(b) is relatively clear: A charging
      document shall state 'essential facts' constituting the crime charged, and the document
      'shall be deemed sufficient' if it is 'drawn in the language of the statute.' The statute's
      emphasis on 'facts' rather than 'elements' is repeated in other related statutes and legally
      significant. A Kansas charging document should be regarded as sufficient now, as it was
      before Minor, when it has alleged facts that would establish the defendant's commission
      of a crime recognized in Kansas." 304 Kan. at 811-12.


      Morris' charging document meets the standard explained in Dunn. Here, the State
alleged


      "that on or about the 8th day of May, 1986, in the city of Leawood, County of Johnson
      and the State of Kansas, Doug Morris did then and there unlawfully, feloniously,
      maliciously, willfully, deliberately and with premeditation attempt to kill a human being,
      to-wit: Richard Liddeke, but failed in the perpetration thereof, in violation of K.S.A. 21-
      3301, K.S.A. 21-3401 and K.S.A. 21-4501(b)."


If the facts alleged were proven beyond a reasonable doubt, Morris would be guilty of a
Kansas crime—attempted first-degree murder.


      As to whether the charging document meets state and federal constitutional
requirements for due process and notice, the Dunn court opined that "even prejudicial
deficiencies in due process or notice do not render the outcome of a prosecution void for
lack of subject matter jurisdiction." 304 Kan. 814. The charging document here clearly
put Morris on notice regarding the crime charged. Moreover, when entering his Alford

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plea, Morris signed a four-page statement of facts detailing the allegations related to the
charged offense. The record reflects he understood what he was charged with and the
benefit he received by entering his Alford plea. Even if Dunn applied, it does not provide
Morris with the relief he seeks, and it does not provide any exceptions to his untimely
and successive K.S.A. 60-1507 motion. The district court did not err in summarily
denying his K.S.A. 60-1507 motion filed in 2017.


       Affirmed.




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