                           NOT DESIGNATED FOR PUBLICATION

                                               No. 120,219


               IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                          STATE OF KANSAS,
                                              Appellee,

                                                     v.

                                           SAMUEL L. REED,
                                              Appellant.


                                    MEMORANDUM OPINION


        Appeal from Sedgwick District Court; JAMES R. FLEETWOOD, judge. Opinion filed April 24,
2020. Affirmed.


        Kristin B. Patty, of Wichita, for appellant, and Samuel L. Reed, appellant pro se.


        Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.


Before ARNOLD-BURGER, C.J., HILL and GARDNER, JJ.


        PER CURIAM: Samuel L. Reed appeals the district court's summary denial of his
untimely K.S.A. 60-1507 motion. He argues that he is entitled to an evidentiary hearing
on the merits of his motion because he showed manifest injustice to overcome the one-
year time limit for filing such a motion. Because the motion, files, and records of the case
conclusively show that Reed has no right to relief, we affirm the district court.




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Almost ten years later, Reed asks to withdraw his pleas in a 2009 prosecution.


       Reed was convicted upon pleas of no contest to five of seven charges stemming
from a September 2008 arrest:
       • two counts of criminal threat, each a person felony;
       • one count of battery against a law enforcement officer, a person felony;
       • one count of criminal possession of a firearm by a juvenile, a nonperson
            felony; and
       • one count of criminal damage to property, a nonperson misdemeanor.


Reed wanted to enter pleas "[b]ecause I'm willing to be found guilty and I no longer want
to fight the charges." Reed was 18 years old with 11 years of education at the time of his
pleas. He acknowledged the rights he was waiving and did not have any questions. The
district court found Reed "understands the charges against him, the consequences of a
plea of no contest, and that he has knowingly, intelligently, freely and voluntarily waived
his rights in this matter."


       Reed had two prior convictions from 2006 and 2007 for criminal possession of a
firearm by a juvenile—a nonperson misdemeanor and a nonperson felony, respectively.
The parties anticipated Reed's criminal history score would be G. Reed's attorney
explained to him how his criminal history score would determine his presumptive
sentence.


       Reed told the district court that he believed his lawyer did a good job counseling
and assisting him, and he was satisfied with his attorney's advice and help. He also stated
he was satisfied with the way the courts had treated him. Based on the State's factual
summary of the basis for the charges, Reed entered his pleas of no contest. The district
court then found there was an enough factual basis to find Reed guilty of the charges and
then dismissed the remaining two charges. Reed was released on his own recognizance—
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pending sentencing and after agreeing to conditions of bond that included gang
nonassociation conditions.


       The court found Reed's criminal history score was G and followed the plea
agreement in sentencing Reed to 26 months in prison. The court granted Reed probation
for 24 months with conditions that included the gang nonassociation conditions. The
court told Reed of his right to appeal. Reed did not appeal.


       After he was sentenced, Reed's probation was revoked, modified, and reinstated.
Then in March 2011, Reed's probation was revoked based on a new conviction for
attempted first-degree murder. The court ordered Reed to serve his prison sentence. Reed
did not appeal.


       In November 2013, Reed filed a pro se "Motion to Withdraw Plea to Correct
Manifest Injustice." The court summarily denied Reed's motion, stating: "Defendant
failed to file his motion in a timely manner. Having proffered no substantive grounds
showing the existence of incompetent counsel or manifest injustice the motion is denied."


       Reed unsuccessfully appealed the district court's denial of his motion to withdraw
his pleas. See State v. Reed, No. 111,663, 2015 WL 4716290, at *5 (Kan. App. 2015)
(unpublished opinion) (Reed I). A panel of this court determined that because Reed could
not meet his burden to show excusable neglect to allow his late motion to withdraw his
plea under K.S.A. 2012 Supp. 22-3210, the district court properly determined the motion
was untimely. 2015 WL 4716290, at *5.


       About 18 months after the mandate was issued in Reed I, Reed filed this 60-1507
motion. The district court in January 2018 summarily denied the motion.




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We find no manifest injustice that would allow an untimely motion.


       Reed argues the district court erred when it summarily denied his 60-1507 motion.
He wants this court to either grant his motion or remand it to the district court for an
evidentiary hearing. The State contends Reed's motion presented no basis for a finding of
manifest injustice to justify the out-of-time filing and argues the district court's summary
dismissal should be affirmed. We agree with the State.


       A defendant has one year from when a conviction becomes final to file a motion
under K.S.A. 60-1507(a). K.S.A. 2018 Supp. 60-1507(f)(1). Because Reed did not file a
direct appeal, he had until mid-December 2010 to file his motion under K.S.A. 60-1507.
The one-year time limitation for bringing an action under K.S.A. 60-1507(f)(1) may be
extended by the district court, but only to prevent a manifest injustice. K.S.A. 2018 Supp.
60-1507(f)(2). Courts must dismiss a motion as untimely filed if, after inspection of the
motion, files, and records of the case, the court determines that the time limitations have
been exceeded and dismissing the motion would not equate with manifest injustice.
K.S.A. 2018 Supp. 60-1507(f)(3). A defendant who files a motion under K.S.A. 60-1507
outside the one-year time limitation in K.S.A. 60-1507(f) and fails to affirmatively assert
manifest injustice is procedurally barred from maintaining the action. State v. Trotter,
296 Kan. 898, 905, 295 P.3d 1039 (2013).


       Reed concedes his 60-1507 motion was untimely, but argues substantial issues of
law and fact, as well as a colorable claim of actual innocence, warrant consideration of
his motion on the merits. He argues the "totality of the circumstances" establish manifest
injustice. See Vontress v. State, 299 Kan. 607, 616, 325 P.3d 1114 (2014). But Reed
argues for the wrong standard in his motion—something he tries to correct on appeal.


       The Legislature amended K.S.A. 60-1507(f)(2) to define manifest injustice. Courts
are now "limited to determining why the prisoner failed to file the motion within the one-

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year time limitation or whether the prisoner makes a colorable claim of actual
innocence." K.S.A. 2018 Supp. 60-1507(f)(2)(A). We are thus restricted to considering
why he failed to file his motion within the statutory time limit or whether he made a
colorable claim of actual innocence.


       Here, Reed uses a similar argument that he used in the appeal of his first K.S.A.
60-1507 motion. He again claims that he was embroiled with his defense in his attempted
murder case. A panel of this court found that Reed's argument ignored relevant
overlapping timelines in his criminal cases, which showed Reed had about nine months
between his 2009 convictions and his 2010 charge of attempted first-degree murder.
Similarly, Reed was sentenced in the attempted murder case in 2011. But he waited
almost two years before moving to withdraw his pleas. "[T]he fact that Reed was charged
with, and convicted of, attempted first-degree murder does not meet the definition of
excusable neglect [. . .], and therefore, cannot be used as a justification for failing to file
his motion in a timely manner." 2015 WL 4716290, at *4.We find the panel's findings on
the overlapping timelines persuasive here. We, too, conclude these reasons cannot justify
an untimely motion.


       Reed tries to lessen the impact on this appeal of the prior panel's criticisms by now
claiming to us that he did not timely file his 60-1507 motion because he was "attending
to" his minor son, working, and adhering to his probation conditions after his 2009
convictions. The record paints a different picture. We see two probation revocations here
and his conviction for attempted murder—all during his original term of probation. We
see no evidence of diligent concentration on his obligations and family responsibilities.
With this record, we simply cannot conclude that he has shown that it would be
manifestly unjust for us to rule he is not entitled to a hearing on his motion.


       We must point out another aspect of this case. The mandate after his appeal of his
first 60-1507 motion was issued by this court in April 2016. Reed did not file his motion

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under K.S.A. 60-1507 until October 2017—18 months later. His filing here is still outside
the one-year time limit in K.S.A. 2018 Supp. 60-1507(f)(1). Reed fails to explain the 18-
month time gap.


Reed does not claim he is innocent.


       In this context of considering late motions for relief from criminal convictions, the
Legislature has defined actual innocence to mean that the prisoner must "show it is more
likely than not that no reasonable juror would have convicted the prisoner in light of new
evidence." K.S.A. 2018 Supp. 60-1507(f)(2)(A). A claim is "'colorable' if there is
'sufficient doubt' about [a movant's] guilt 'to undermine confidence' in his [or her]
conviction 'without the assurance' that the conviction 'was untainted by constitutional
error.'" Beauclair v. State, 308 Kan. 284, 303, 419 P.3d 1180 (2018).


       But Reed does not claim that it is more likely than not that no reasonable juror
would have convicted him considering new evidence, nor does he even claim he is
actually innocent. He merely makes a conclusory statement that he asserted a colorable
claim of actual innocence and then proceeds to argue the merits of his motion. Reed
requests only that he be allowed to withdraw his plea and move forward with a trial.


       This is not enough to show that he would not have been convicted based on new
evidence, or to show that there is enough doubt to undermine confidence in his 2009
convictions.


       Reed fails to establish that consideration of the merits of his untimely motion is
necessary to prevent a manifest injustice.




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Uncounseled arguments


       Turning to the issues raised by Reed in his pro se brief, we see no grounds to grant
relief. He raises three points. First, he claims that K.S.A. 22-4506 requires a court to
appoint an attorney for him and hold a preliminary hearing on his motion. He is mistaken.
Second, Reed suggests that the court could have used a teleconference to resolve his
claims and it was error for the court not to do so. We see no error here because we see no
need for a teleconference in a case in which the motion was barred, and there is no
showing of manifest injustice so the court could waive the statutory bar. Finally, he
contends that just because he made a claim that could require relief, he is entitled to a
hearing. We hold that argument ignores too much law and we are unconvinced. We will
address the points in that order.


       While it is true that K.S.A. 22-4506 applies to collateral attacks on criminal
convictions, it does not apply to all. In some cases, timely filed motions raise serious
issues that require a deeper inquiry by the court. In those cases, counsel are appointed and
at least a preliminary hearing is held to see if evidence is required. But in cases that raise
only superficial issues that are meritless, there is no requirement by the statute that an
attorney be appointed and the court hold a preliminary hearing. Said another way, the
statute is not mandatory in every case. It does set the procedure in some. For untimely
motions that have no showing of manifest injustice, the statute simply does not apply.
That is true here.


       After all, K.S.A. 60-1507(b) directs a court to screen these motions and dismiss
them if they are meritless as shown by the files and records of the case. And then K.S.A.
60-1507(f)(3) mandates that the court dismiss untimely motions that do not show
manifest injustice. That statute controls this case.




                                               7
        Next, we turn to Reed's argument about teleconferences. He cites Fischer v. State,
296 Kan. 808, 295 P.3d 560 (2013). Fischer offers him little support. The Supreme Court
held that when a court finds a substantial issue requiring an evidentiary hearing and the
defendant's presence is necessary to help resolve issues of fact, the defendant must appear
and can do so through a teleconference. 296 Kan. 808, Syl. ¶ 5. The Supreme Court Rules
allow teleconferences to achieve this. See Supreme Court Rule 183(h) (2019 Kan. S. Ct.
R. 228) and Rule 145 (2019 Kan. S. Ct. R. 217).


        But there were no substantial questions of fact for the court to resolve here. This
was an untimely motion that failed to show manifest injustice. The Fischer rule does not
apply to Reed's motion.


        As for Reed's last point, he seems to contend that just because he made this
argument, the court should consider it. He ignores the time limits placed by the
Legislature for prisoners to file these motions. The statute, K.S.A. 60-1507, creates a
procedure for the courts to follow and defines certain important concepts, such as
manifest injustice. Timely filed motions are screened by the court—some are set for a
preliminary hearing, and some for evidentiary hearings. But untimely filed motions are
not to be considered unless the prisoner can show manifest injustice. We grant no relief to
Reed.

        Affirmed.




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