                                              No. 118,875

               IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                          STATE OF KANSAS,
                                              Appellee,

                                                       v.

                                       JOSE J. MUNDO-PARRA,
                                              Appellant.

                                   SYLLABUS BY THE COURT


1.
        Postconviction discovery sought by the defendant should be allowed when the
defendant shows that it is necessary to protect substantial rights. To get discovery, the
defendant must make a good-cause showing by identifying the specific subject matter for
discovery and explaining why discovery about those matters is necessary to protect
substantial rights.


2.
        An appellate court reviews the district court's ruling on a request for
postconviction discovery only for abuse of discretion.


        Appeal from Sedgwick District Court; JEFFREY E. GOERING, judge. Opinion filed March 27,
2020. Affirmed.


        Kristen B. Patty, of Wichita, for appellant.


        Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.


Before BRUNS, P.J., LEBEN, J., and BURGESS, S.J.
       LEBEN, J.: Jose Mundo-Parra pleaded no contest in 2005 to the kidnapping and
rape of a Wichita woman. In 2017, still serving his prison sentence, he asked that
prosecutors be required to provide him the State's investigatory files in the case,
including anything that might show his innocence. The district court denied that request.


       Kansas doesn't have a statute or court rule authorizing what lawyers call
discovery—requests for information from other parties—after a criminal conviction. But
Kansas courts have recognized that discovery may be required when the defendant's
substantial rights are at stake.


       Here, though, Mundo-Parra confessed to his crimes, the victim identified him, and
Mundo-Parra said at his sentencing that he was "sorry for what I did" and that he
"accept[ed] responsibility" for his crimes. He has not shown that any of his substantial
rights require discovery, and we affirm the district court's judgment.


                         FACTUAL AND PROCEDURAL BACKGROUND


       At about six in the morning one day in August 2004, a woman called Wichita
police from the parking lot of a fast-food establishment. She told them that she had been
abducted earlier that morning when she was trying to place a phone call at a pay phone
outside another business in the area. She described the suspect, gave police the license-
plate number from the car he had been driving, and even told them where the man had
said he lived—he had told her where in the area he lived when he first tried to get her to
come into his car voluntarily.


       When she didn't get into the car, the man had followed her as she ran to another
business, grabbed her, and hit her several times in the face. He threw her to the pavement.
And when she briefly got away, he hit her again several times in the face and forced her

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into his car. He then took her away before forcing her to give him oral sex and repeatedly
raping her. The man threatened to kill her several times during the two hours that he held
her. He eventually let her out of the car, and she called police.


       Given her description of his car and license plate—as well as a general
understanding of where he lived—police quickly located Mundo-Parra. They had him
come outside his apartment building, and the victim confirmed he was the man who had
kidnapped and raped her. A police detective then interviewed Mundo-Parra (after giving
him Miranda warnings). Mundo-Parra admitted that he had seen the victim walking
down the street, decided he wanted to have sex with her, forced her into his car, held her
against her will for about two hours, hit her, threatened to kill her, forced her to perform
oral sex on him, and raped her.


       In 2005, Mundo-Parra pleaded no contest to one count of aggravated kidnapping,
one count of rape, and one count of criminal threat. At his plea hearing, a prosecutor
summarized the facts we have just reviewed. Neither Mundo-Parra nor his attorney
disagreed with any of those facts, and Mundo-Parra told the court that he understood that
by pleading no contest he would "have no capacity to take an exception or to contest the
summary of facts just now provided."


       At sentencing, Mundo-Parra asked for a shorter sentence than provided by our
state's sentencing guidelines. In a written motion supporting that request, his attorney said
that Mundo-Parra had "accepted responsibility for and is showing remorse for[] his
actions in this matter." The motion said that Mundo-Parra had "committed these offenses
while under the influence of narcotics." Mundo-Parra personally told the court: "I just say
I am sorry for what I did, I accept responsibility, and I would just ask for the least
sentence possible."




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       The court found that Mundo-Parra had committed "a vicious, violent attack" on
the woman and gave him the highest guideline sentence on both the rape and aggravated-
kidnapping convictions, 165 months for each, to be served consecutively. The court also
sentenced Mundo-Parra to 7 months for criminal threat but made that sentence concurrent
with the others, so his controlling sentence is 330 months in prison.


       Mundo-Parra did not appeal his sentence. Nor has he moved to withdraw his no-
contest pleas. But in 2017, he filed a written request asking that the State be ordered to
give him all of the witness statements police had gathered, the results of all examinations
or tests, any evidence that might impeach the credibility of any of the witnesses against
him, and any materials that might tend to show his innocence.


       The district court denied Mundo-Parra's request, and he appealed to our court.


                                         JURISDICTION


       The State suggests that we lack jurisdiction over the appeal because Mundo-Parra
didn't file his notice of appeal within 30 days of the district court's denial of his request.
See K.S.A. 2019 Supp. 60-2103(a). But the time for filing an appeal does not begin to run
if the court fails to give notice of the ruling to a party and the party isn't aware of it. See
McDonald v. Hannigan, 262 Kan. 156, 163-64, 936 P.2d 262 (1997). Here, the district
court entered its order electronically, and there's no record in the district court's file that
the court clerk mailed a copy of the order to Mundo-Parra. He made several requests
asking the court to rule after the court actually had first done so, and he filed the notice of
appeal well within 30 days of the district court's denial of his last request for a ruling
(which noted that his original request had been made more than 150 days earlier). We
find no jurisdictional hurdle to considering this appeal in the State's argument.




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       We should perhaps note one potential jurisdictional argument that the State did not
make since we have a duty to question our own jurisdiction. State v. Tims, 302 Kan. 536,
540, 355 P.3d 660 (2015). For us to have proper jurisdiction, the district court must also
have had jurisdiction to consider Mundo-Parra's discovery request. See Ryser v. Kansas
Bd. of Healing Arts, 295 Kan. 452, 456, 284 P.3d 337 (2012). He filed the request in his
criminal case, but there was no pending motion before the court (such as a motion for a
new trial). Nor did Mundo-Parra file a separate civil action challenging his confinement
for which discovery might be needed. With no pending motion in the criminal case and
no pending civil action challenging his confinement, one might question whether there's
any statutory authority to allow discovery. But Kansas district courts "have general
original jurisdiction of all matters, both civil and criminal, unless otherwise provided by
law." K.S.A. 20-301. Because there's no statute governing postconviction discovery,
there's no statutory limit on the district court's general jurisdiction over it. See City of
Overland Park v. Niewald, 258 Kan. 679, 681-82, 907 P.2d 885 (1995); In re A.A., 51
Kan. App. 2d 794, 803-04, 354 P.3d 1205 (2015). Consistent with that rule, the Kansas
Supreme Court did not question its jurisdiction to determine whether a district court had
properly denied discovery in a similar postconviction criminal-case setting. See State v.
Robinson, 309 Kan. 159, 432 P.3d 75 (2019). We conclude that the district court had
jurisdiction to consider Mundo-Parra's request.


                                           ANALYSIS


       While the factual and procedural history we've set out is straightforward, the law
that applies to Mundo-Parra's request is a bit murky. There are provisions in criminal
cases that provide for limited discovery by the defendant. See K.S.A. 2019 Supp. 22-
3212; K.S.A. 2019 Supp. 22-3213. But we understand those provisions to apply only
before trial (or, as here, conviction through a plea). Mundo-Parra brought his discovery
request 12 years after his conviction. No provision in the Kansas Code of Criminal
Procedure covers postconviction discovery.

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       A statute or court rule could provide guidance; such a statute or rule could provide
for discovery in situations in which it's merely good policy to provide for it although not
legally required. See K.S.A. 2019 Supp. 21-2512 (providing when postconviction DNA
testing may be ordered). In addition, a statute or rule could address a prosecutor's duty, if
any, to provide exculpatory information to the defendant after conviction. Compare
American Bar Association Model Rule 3.8(g) (providing that prosecutors must disclose
"new, credible and material evidence creating a reasonable likelihood that a convicted
defendant did not commit an offense of which the defendant was convicted") with KRPC
3.8 (2019 Kan. S. Ct. R. 359) (lacking any specific provision about a prosecutor's
postconviction disclosure duties). With no statute or rule, however, we begin our analysis
with a review of past Kansas cases about postconviction discovery.


       Most of the time, postconviction challenges to a person's conviction or sentence
are made in a habeas corpus action. That's a civil case in which the defendant can seek
release from confinement. See K.S.A. 2019 Supp. 60-1507. And while the Kansas Rules
of Civil Procedure usually apply to civil cases, Kansas Supreme Court Rule 183(a)(2)
(2019 Kan. S. Ct. R. 229) provides that they apply in postconviction habeas cases only
"to the extent the rules are applicable." Our court has held that civil discovery rules don't
generally apply in postconviction habeas cases. LaPointe v. State, 42 Kan. App. 2d 522,
551, 214 P.3d 684 (2009); see also White v. Shipman, 54 Kan. App. 2d 84, 89-93, 396
P.3d 1250 (2017). Consistent with that view, the Kansas Supreme Court said (in a case in
which the appellant conceded the point) that one specific statute, the civil-procedure rule
for document production, doesn't apply to a motion seeking postconviction discovery in a
criminal case. Robinson, 309 Kan. 159, Syl.


       As was true in Robinson, Mundo-Parra hasn't filed a civil habeas case; he has
merely filed a request for a discovery order in the criminal case in which he was
convicted. So we must determine as a general matter—in the absence of a statute or court

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rule specifically authorizing it—whether a convicted defendant has some postconviction
right to discovery and, if so, whether that right applies to Mundo-Parra's request.


       The published Kansas appellate opinions discussing postconviction discovery in a
criminal case suggest a limited right to discovery when necessary to protect a defendant's
due-process rights.


       In State v. Nirschl, 208 Kan. 111, 116, 490 P.2d 917 (1971), our Supreme Court
said it was "arguable . . . that disclosure and post trial discovery may be necessary on
certain occasions to insure due process." But the court found the request at issue was
more of a fishing expedition than a targeted request related to a serious issue and
affirmed the district court's denial of discovery. 208 Kan. at 116.


       In State v. Riis, 39 Kan. App. 2d 273, Syl. ¶ 3, 178 P.3d 684 (2008), our court
deleted the "arguable" language from Nirschl; we stated this rule: "Posttrial discovery in
a criminal case may be necessary on certain occasions to ensure due process." But our
court in Riis did more than eliminate a bit of language; it ordered some discovery—an
initial review of certain documents by the trial judge. Riis makes clear, then, that our
courts will in some cases allow postconviction discovery to protect a defendant's rights.


       In Riis, the police officer who obtained the search warrant had been found to have
presented non-credible information in other cases, leading to the dismissal of 27 cases.
Our court said that Riis was entitled to have the trial judge review the materials related to
the officer to see whether anything in the investigation suggested impropriety in Riis'
case. If it did, we said, the material would be provided to the defendant because "it may
amount to a manifest injustice not to allow Riis to withdraw his plea." 39 Kan. App. 2d at
278. That was another way of saying that the information might affect Riis' substantial
rights because, under K.S.A. 2019 Supp. 22-3210(d)(2), a defendant may withdraw the
plea even after sentencing if necessary to prevent manifest injustice. At least in that

                                              7
circumstance, our court held in Riis, due process required some limited discovery to
make sure the defendant's substantial rights were protected.


       With so little Kansas caselaw on this point, we have also looked elsewhere for
additional guidance. The United States Supreme Court has said that "[a] habeas petitioner
. . . is not entitled to discovery as a matter of ordinary course." Bracy v. Gramley, 520
U.S. 899, 904, 117 S. Ct. 1793, 138 L. Ed. 2d 97 (1997). But a federal rule for habeas
cases provides a right of discovery when supported by "good cause." Rule 6(a), Rules
Governing Section 2254 Cases. Under that rule, good cause is shown when "discovery
would assist the court to resolve a factual dispute that, if resolved in petitioner's favor,
would entitle him to relief." 7 LaFave, Israel, King & Kerr, Criminal Procedure § 28.7(d)
(4th ed. 2015). In other words, good cause exists when the discovery relates to a factual
matter that could affect the defendant's substantial rights. See Black's Law Dictionary
1584 (11th ed. 2019) (defining a "substantial right" as "[a]n essential right that potentially
affects the outcome . . . and is capable of legal enforcement").


       Many states have rules or statutes providing for limited postconviction discovery.
E.g., Alaska R. Crim. Pro. 35.1(g); Cal. Penal Code § 1054.9; Mont. Code Ann. § 46-21-
201(4); Pa. R. Crim. Pro. 902(E). In states that have no rule or statute, courts generally
say that it's within the trial court's discretionary authority to order postconviction
discovery when good cause to do so is shown. E.g., Woodward v. State, 276 So. 3d 713,
734-35 (Ala. Crim. App. 2018); Cabrera v. State, 173 A.3d 1012, 1032-33 (Del. 2017);
Rodriguez v. State, 919 So. 2d 1252, 1279 (Fla. 2005); People ex rel. Daley v. Fitzgerald,
123 Ill. 2d 175, 183-84, 526 N.E.2d 131 (1988); State v. Marshall, 148 N.J. 89, 270, 690
A.2d 1 (1997); Personal Restraint of Gentry, 137 Wash. 2d 378, 390-91, 972 P.2d 1250
(1999). Most of these courts say that the trial court has inherent authority to order this
discovery. Cabrera, 173 A.3d at 1032-33; Rodriguez, 919 So. 2d at 1279; Fitzgerald, 123
Ill. 2d at 183-84; Marshall, 148 N.J. at 269-70. Allowing at least some discovery seems
to be the rule: In deciding that some postconviction discovery should be allowed, the

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Nebraska Supreme Court concluded that a rule that "prevented prisoners from seeking
any discovery at the postconviction stage[] would make Nebraska unique among
American jurisdictions." State v. Jackson, 275 Neb. 434, 452, 747 N.W.2d 418 (2008).


       Although Idaho has a rule allowing some discovery, that rule is so limited that the
scope of discovery has been determined by caselaw. The Idaho rule says that normal civil
discovery does not apply "except as and only to the extent ordered by the trial court."
Idaho R. Crim. Pro. 39(b). Much like in Kansas, that has left it up to the courts to decide
the limited circumstances in which discovery would occur. The Idaho Supreme Court has
decided that "discovery is required when a petitioner demonstrates it is necessary to
protect his substantial rights." State v. Abdullah, 158 Idaho 386, 482, 348 P.3d 1 (2015).
As our Supreme Court said in Nirschl, 208 Kan. at 116, fishing expeditions aren't
allowed. Abdullah, 158 Idaho at 482. But where the habeas petitioner "'identif[ies] the
specific subject matter where discovery is requested and why discovery as to those
matters is necessary,'" Idaho courts allow it when the discovery relates to the petitioner's
substantial rights. 158 Idaho at 482.


       We think the rules set out in Abdullah, which are consistent with other cases
around the country, also reflect the same principles that guided the Kansas decisions in
Nirschl and Riis. Abdullah also fits well with another Kansas case, State v. Matson, 260
Kan. 366, 921 P.2d 790 (1996). There, to support a new-trial motion, the defendant
sought a postconviction examination of the tape recordings of the defendant's statements
to police to see if the tapes had been altered. But the court said the defendant hadn't put
forth a clear statement of what might have been altered on the tapes. 260 Kan. at 383-84.
In essence, with no showing of what might have been altered "or that there was a
likelihood that the evidence would change the result of the trial," the defendant hadn't
shown that discovery was necessary to protect a substantial right. 260 Kan. at 384.




                                              9
          We conclude that postconviction discovery should be allowed when the defendant
shows that it is necessary to protect substantial rights. To get discovery, the defendant
must make a good-cause showing by identifying the specific subject matter for discovery
and explaining why discovery about those matters is necessary to protect substantial
rights.


          With that test now established, we conclude that Mundo-Parra has not met it.
While he has identified the materials he seeks, he has simply listed just about everything
that might have been collected in his case. It's a classic fishing expedition, with no stated
connection to any claim that could lead to setting aside either his no-contest pleas or his
convictions.


          As we already noted in the factual section of our opinion, Mundo-Parra not only
confessed to these crimes to a police detective, but he also told the court at sentencing
that he accepted responsibility for having committed them. He has made no suggestion
that his confession was untrue, and there's ample evidence to confirm it. The victim gave
police the license-plate number for Mundo-Parra's car, and she identified Mundo-Parra as
the rapist.


          All of the factual information we've recited about the case comes from the court
file as it existed when Mundo-Parra entered his no-contest pleas and was sentenced.
We've relied on an affidavit from the police detective who interviewed Mundo-Parra and
the transcripts of his plea and sentencing hearings. While we recognize that Mundo-Parra
may not have these documents in his prison cell today, he was present for the plea
hearing and sentencing, and at least the attorney who represented Mundo-Parra had
access to the detective's affidavit before Mundo-Parra entered his pleas. There's simply
no suggestion in our record or in Mundo-Parra's request for discovery that there is any
substantive reason that either his pleas or his convictions should be questioned in any


                                              10
way. In sum, he has not explained why any discovery is necessary to protect his
substantial rights.


       We review a district court's decision to grant or deny postconviction discovery
only for abuse of discretion. Riis, 39 Kan. App. 2d 273, Syl. ¶ 3. We find no abuse of
discretion here.


       We affirm the district court's judgment.




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