Angelo v. State ( 2022 )

NOT DESIGNATED FOR PUBLICATION
No. 123,237
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
PATRICK ANGELO JR.,
Appellant,
v.
STATE OF KANSAS,
Appellee.
MEMORANDUM OPINION
Appeal from Wyandotte District Court; WESLEY K. GRIFFIN, judge. Opinion filed February 25,
2022. Affirmed.
Reid T. Nelson, of Kansas Capital and Conflicts Appeals Office, for appellant.
Kayla Roehler, assistant district attorney, Mark A. Dupree Sr., district attorney, and Derek
Schmidt, attorney general, for appellee.
Before POWELL, P.J., SCHROEDER, J., and JAMES L. BURGESS, S.J.
PER CURIAM: Patrick Angelo Jr. appeals the district court's summary denial of his
third K.S.A. 60-1507 motion, claiming the district court erred in denying his motion
because he made a showing of both exceptional circumstances and manifest injustice
allowing the district court to consider his successive and untimely motion. Contrary to
Angelo's assertions, we find he has failed to establish either. Accordingly, the district
court was correct to deny his 60-1507 motion as both successive and untimely. We
affirm.
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FACTUAL AND PROCEDURAL BACKGROUND
In November 2005, Angelo was convicted by a jury of two counts of first-degree
murder. On direct appeal to our Supreme Court, Angelo raised issues concerning Kansas'
speedy trial statute; his challenge under Batson v. Kentucky, 476 U.S. 79, 106 S. C. 1712,
90 L. Ed. 2d 69 (1986); the failure to instruct on a lesser included offense; the admittance
of Angelo's prior conviction into evidence; the district court's denial of Angelo's motion
for a mistrial; the use of a recorded statement of a witness; and cumulative error. Our
Supreme Court affirmed Angelo's convictions in December 2008. State v. Angelo, 287
Kan. 262, 265, 197 P.3d 337 (2008).
Following his direct appeal, Angelo timely filed his first K.S.A. 60-1507 motion in
September 2009. Angelo's motion raised numerous claims of trial error, ineffectiveness
of counsel, and an illegal sentence claim. Of relevance to this appeal, Angelo specifically
argued his appellate counsel was ineffective for failing to raise the issue of juror
misconduct in Angelo's direct appeal. He also alleged he was entitled to a new trial based
upon the recanted testimony of a witness who apparently claimed in an unsigned affidavit
that Angelo had not struck him, contrary to the witness' testimony at trial. The district
court held an evidentiary hearing and ultimately denied Angelo's motion for failing to
state a claim for which relief could be granted.
On appeal, a panel of our court agreed that Angelo's sentence for second-degree
murder was ambiguous and remanded for resentencing. Angelo v. State, No. 109,660,
2014 WL 1096834, at *4-5 (Kan. App. 2014) (unpublished opinion). However, the panel
denied relief on Angelo's remaining allegations, concluding he had not met his burden of
proof. In particular, the panel found that Angelo had not presented any evidence
concerning his claim that his appellate counsel had been ineffective for not raising the
issue of juror misconduct. 2014 WL 1096834, at *8. It also rejected Angelo's claim
regarding his entitlement to a new trial based upon alleged recanted testimony, in part
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concluding that there was no evidence the witness would recant his testimony as the
affidavit was unsigned and the witness was never called to testify at the 60-1507
evidentiary hearing. 2014 WL 1096834, at *9.
On remand, the district court resentenced Angelo. He then appealed his sentence,
which was affirmed by the Kansas Supreme Court. State v. Angelo, 306 Kan. 232, 236,
392 P.3d 556 (2017).
Angelo then filed his second 60-1507 motion and once again argued, among other
things, ineffective assistance of trial and appellate counsel. The district court denied
Angelo's claims on res judicata grounds, holding that movants are presumed to have
listed all claims of error in their initial 60-1507 motion. Angelo appealed this ruling, and
on September 12, 2019, our court summarily affirmed pursuant to Supreme Court Rule
7.041 (2022 Kan. S. Ct. R. at 48).
Three months later, Angelo filed his present 60-1507 motion—his third. The sole
issue raised in this motion was Angelo's allegation that his appellate counsel had been
ineffective for failing to raise the issue of juror misconduct in his direct appeal. Angelo
conceded the motion "may be time barred" but argued exceptional circumstances
permitted review of the motion. Relying on the register of actions (ROA) by the district
court contained in the record, Angelo argued the periods of inactivity reflected in the
ROA established an exceptional circumstance. He also argued the district court should
hold an evidentiary hearing on the motion because relief on his claim of juror misconduct
would prevent manifest injustice.
Upon reviewing "the motion, the underlying criminal action, the files relating to
all post-conviction matters and the records of each case relation to Angelo," the district
court concluded Angelo was not entitled to relief. The district court's order reiterated
Angelo's six posttrial motions and summarized the issues raised in each 60-1507 motion.
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The district court found Angelo's third motion was successive and Angelo had failed to
argue an exceptional circumstance that would justify consideration of a successive
motion. The district court also found Angelo's motion to be untimely and determined he
had failed to establish manifest injustice or actual innocence justifying review of his
untimely claim.
Angelo appeals.
DID THE DISTRICT COURT ERR IN SUMMARILY DENYING
ANGELO'S K.S.A. 60-1507 MOTION?
To be entitled to relief under K.S.A. 2020 Supp. 60-1507, the movant must
establish by a preponderance of the evidence "the judgment was rendered without
jurisdiction, or that the sentence imposed was not authorized by law or is otherwise open
to collateral attack, or that there has been such a denial or infringement of the
constitutional rights of the prisoner as to render the judgment vulnerable to collateral
attack . . . ." K.S.A. 2020 Supp. 60-1507(b); Supreme Court Rule 183(g) (2022 Kan. S.
Ct. R. at 242).
To avoid the summary denial of a motion brought under K.S.A. 60-1507, a
movant bears the burden of establishing entitlement to an evidentiary hearing. To meet
this burden, a movant's contentions must be more than conclusory, and either the movant
must set forth an evidentiary basis to support those contentions or the basis must be
evident from the record. When the district court summarily denies a 60-1507 motion, our
review is de novo to determine whether the motion, files, and records of the case
conclusively establish that the movant is not entitled to relief. Thuko v. State, 310 Kan.
74, 80, 444 P.3d 927 (2019).
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1. Angelo's motion is successive.
A district court may refuse to hear a 60-1507 motion if it is "a second or
successive motion for similar relief on behalf of the same prisoner." K.S.A. 2020 Supp.
60-1507(c). "[T]he prohibition against successive motions under K.S.A. 60-1507(c) bars
not only claims actually raised in prior motions but also those claims that could have
been raised . . . . See Dunlap v. State, 221 Kan. 268, 269-70, 559 P.2d 788 (1977)." Toney
v. State, 39 Kan. App. 2d 944, 948, 187 P.3d 122 (2008). When a 60-1507 movant sets
forth grounds for relief, the movant is presumed to have listed all grounds relied upon,
and a second 60-1507 motion alleging additional grounds for relief may be denied as
successive and an abuse of remedy. 39 Kan. App. 2d at 948.
To avoid dismissal of a second or successive K.S.A. 60-1507 motion, the movant
must show that exceptional circumstances exist. To make this showing, the movant must
point to "'unusual events or intervening changes in the law that prevented [him or her
from] raising the issue in a preceding [K.S.A.] 60-1507 motion.'" Thuko, 310 Kan. at 84.
A court considering a successive 60-1507 motion should determine whether the movant
"presented exceptional circumstances to justify reaching the merits of the motion,
factoring in whether justice would be served by doing so." Littlejohn v. State, 310 Kan.
439, 446, 447 P.3d 375 (2019).
Angelo admits his 60-1507 motion is successive. Nevertheless, he argues the
district court should have granted him an evidentiary hearing because exceptional
circumstances excuse his successive filing.
In his motion, while Angelo used the phrase "exceptional circumstances" to justify
the district court's consideration of his successive motion, his argument only focused on
the periods of inactivity within the ROA to support his claim. Before us, he argues his
claim was "not previously considered or decided by the Court of Appeals." Angelo also
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makes the conclusory argument that his juror misconduct claim "qualifies as an unusual
event."
Unfortunately, the record on appeal does not contain any of the documents related
to Angelo's prior 60-1507 motions. None of the prior motions, hearing transcripts, and
appellate briefs are in the record on appeal. The district court's journal entry concerning
Angelo's present motion verifies Angelo's concession that he raised his juror misconduct
claim in his 2009 motion and indicates he may have raised the same claim in his second
60-1507 filing as well. These omissions from the record on appeal are consequential
because most of Angelo's motion rests on his contention that the district court did not
make proper findings of fact or conclusions of law when denying his 2009 motion.
Angelo contends the district court's failure to make proper findings resulted in the waiver
of his claim on appeal. We disagree.
The 2009 panel noted that "at the evidentiary hearing, Angelo neither provided
testimony from his appellate counsel nor put on other evidence to support his claim of
ineffective assistance of appellant counsel." Angelo, 2014 WL 1096834, at *8.
Ultimately, the panel did not reach the merits of the claim because "[t]he district court did
not mention this claim in its journal entry, and there are no findings of fact or conclusions
of law for this court to review." 2014 WL 1096834, at *8. The panel concluded by
holding Angelo waived his claim for ineffective assistance of appellate counsel because
he failed to present any evidence to support the claim to the district court. 2014 WL
1096834, at *8.
Angelo now argues the district court's findings from 2009 were inadequate and the
2009 panel "should have remanded [the case] to the district court for a clear fact finding
and conclusions of law to be reviewed." But, if Angelo wanted to challenge the district
court's findings as being inadequate, then he should have made that challenge in his 2009
appeal.
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Another panel of our court recently refused to consider a successive 60-1507
motion under similar facts. In Crawford v. State, No. 121,553, 2021 WL 744523 (Kan.
App.) (unpublished opinion), rev. denied 314 Kan. ____ (September 30, 2021), the panel
was asked to review the summary dismissal of Crawford's third 60-1507 motion. Citing
the law of the case doctrine, the panel denied consideration of the claims because
Crawford asserted the same claims in prior appeals or prior posttrial motions. 2021 WL
744523, at *3; see State v. Parry, 305 Kan. 1189, 1194-95, 390 P.3d 879 (2017) ("Courts
adhere to the law of the case '"to avoid indefinite relitigation of the same issue . . . and to
assure the obedience of lower courts to the decisions of appellate courts."' [Citations
omitted.]"). Of relevance here, the panel explicitly refused to consider claims alleged in
Crawford's prior 60-1507 motions. In reaching this conclusion, the panel quoted the
opinion from Crawford's appeal of his second 60-1507 motion, wherein the panel
concluded "'that the ends of justice do not require that he be allowed a successive K.S.A.
60-1507 motion to raise similar claims to the ones he has already pursued.' Crawford,
2009 WL 500952, at *1." 2021 WL 744523, at *3.
Additionally, even if we were in a position to review Angelo's 2009 60-1507
motion, Angelo has failed to supply us with a record to do so. As the party claiming error,
Angelo has the burden of designating a record that affirmatively shows prejudicial error.
See State v. Miller, 308 Kan. 1119, 1157, 427 P.3d 907 (2018). Without such a record,
we presume the action of the district court was proper. State v. Simmons, 307 Kan. 38, 43,
405 P.3d 1190 (2017).
Other panels of this court have found similar omissions from the record fatal to
any appellate review. See Bloom v. State, No. 120,739, 2020 WL 1074704, at *3 (Kan.
App.) (unpublished opinion) ("The claims advanced by Bloom in his second motion are
predicated on events, statements, pleadings, briefs, and hearings that occurred in his first
K.S.A. 60-1507 proceeding. Without a complete record on appeal, our court is unable to
evaluate the propriety of the district court's summary dismissal of the second motion."),
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rev. denied 312 Kan. 890 (2020). Like Bloom, Angelo's claim is predicated on events,
pleadings, briefs, and hearings that were the basis of his 2009 60-1507 motion. Without a
record detailing the 2009 motion, it is impossible for us to evaluate the propriety of his
alleged exceptional circumstance that would justify consideration of the successive
motion.
As Angelo fails to point to any change in the law or advance any argument
explaining why he did not raise errors from the consideration of his 2009 motion in his
second 60-1507 motion, we are unpersuaded that any exceptional circumstances exist to
justify consideration of his third 60-1507 motion. Finally, even if we were somehow
disposed to consider the merits of Angelo's motion, Angelo fails to designate a record
that would allow us to do so. The district court did not err in finding Angelo's motion
successive and Angelo failed to establish an exceptional circumstance that would justify
reviewing the motion.
2. Angelo's motion is also untimely.
A movant has one year from when a conviction becomes final to file a motion
under K.S.A. 60-1507. K.S.A. 2020 Supp. 60-1507(f)(1). The one-year time limitation
may be extended by the district court "only to prevent a manifest injustice." K.S.A. 2020
Supp. 60-1507(f)(2). A movant who files a 60-1507 motion outside the one-year time
limitation 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).
Manifest injustice can be established by either explaining the reasons for the delay
or by asserting a colorable claim of actual innocence. K.S.A. 2020 Supp. 60-
1507(f)(2)(A). The explanation must provide "'persuasive reasons or circumstances'"
reflecting why the motion was not timely filed. White v. State, 308 Kan. 491, 496, 421
P.3d 718 (2018). The actual innocence exception is a narrow one, and a movant may only
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satisfy it in "'extraordinary'" cases. Beauclair v. State, 308 Kan. 284, 302, 419 P.3d 1180(2018) (citing Schlup v. Delo, 513 U.S. 298, 321, 115 S. Ct. 851, 130 L. Ed. 2d 808[1995]). A colorable claim of actual innocence requires a showing that, based on new
evidence, "it is more likely than not that no reasonable juror would have convicted" the
movant. K.S.A. 2020 Supp. 60-1507(f)(2)(A). Absent manifest injustice, a court must
dismiss the motion as untimely. K.S.A. 2020 Supp. 60-1507(f)(3).
It is undisputed that Angelo's current 60-1507 motion is untimely. Nevertheless,
Angelo argues we should consider his claim to prevent manifest injustice on the grounds
that the district court did not make adequate findings that would permit our review.
However, we previously have plowed this ground without benefit to Angelo.
As we have noted, the 2009 panel refused to consider Angelo's claim of ineffective
assistance of counsel on appeal because Angelo did not present evidence to support the
claim at the evidentiary hearing. Angelo, 2014 WL 1096834, at *8. Angelo now says this
erroneous ruling was the result of the district court's inadequate findings, but Angelo has
not designated a record that affirmatively shows prejudicial error because he did not
include any of the documents from his 2009 60-1507 motion. Without such a record, we
presume the district court's action was proper. Simmons, 307 Kan. at 43.
Angelo's only remaining argument supporting manifest injustice is his claim of
actual innocence. However, like his arguments for exceptional circumstances, Angelo's
motion merely utters the phrase "actual innocence" without attempting to make a
showing of actual innocence. This alone is not good enough. Perhaps recognizing this,
Angelo expands on his actual innocence argument on appeal, arguing an affidavit
submitted by a trial witness "is new evidence raising and supporting a colorable claim of
innocence."
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Although Angelo attached the purported affidavit to his motion, the actual
innocence argument he makes on appeal was not raised at the district court. Generally,
issues not raised before the district court cannot be raised on appeal. State v. Kelly, 298
Kan. 965, 971, 318 P.3d 987 (2014). Because Angelo did not make a claim of actual
innocence to the district court, the district court was not given an opportunity to review
the old evidence and determine the likely effect of the trial witness' affidavit on a jury. In
this respect, Angelo did not preserve this issue for appellate review. See 298 Kan. at 971.
But even if he had, Angelo's argument neither shows the evidence was new nor
that the evidence establishes prejudicial error. When presented with new evidence
justifying a new trial, a district court must review the old evidence, including the
credibility of trial witnesses, to determine the likely effect of the new evidence on a jury.
See Beauclair, 308 Kan. at 300-01 (quoting House v. Bell, 547 U.S. 518, 538, 126 S. Ct.
2064, 165 L. Ed. 2d 1 [2006]). Angelo claims the affidavit is new, but that claim is not
supported by the record. In the affidavit, the trial witness apparently recants his testimony
that Angelo struck him in the head with the butt of a pistol. But the content of the
affidavit appears to be the subject of an issue the 2009 panel addressed from Angelo's
first 60-1507 motion. The opinion indicated the trial witness had not signed the affidavit
and did not testify at the 60-1507 evidentiary hearing. Angelo, 2014 WL 1096834, at *8.
Even assuming the trial witness recanted this testimony, the panel concluded the recanted
testimony "would not have been material to the outcome." 2014 WL 1096834, at *9.
Angelo acknowledges this court has "considered this affidavit previously" but
contends the panel did not "comment on whether the retracted evidence had unfairly
influenced the jury by demonstrating that Angelo had a violent character." But Angelo's
argument is misplaced because he made the exact argument to the previous panel,
claiming the trial witness' "testimony regarding their altercation was crucial because it
demonstrated Angelo was prone to violence and indicated Angelo was in possession of a
gun." 2014 WL 1096834, at *9. The panel found Angelo's argument unpersuasive and
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concluded that the recanted testimony was "not crucial to whether the jury believed
Angelo shot the two victims." 2014 WL 1096834, at *9.
Although the previous panel was reviewing the recanted testimony under a motion
for new trial, the panel's reasoning is nevertheless appliable here. As the party asserting
the claim of error, Angelo has the burden of designating a record that affirmatively
establishes prejudicial error. See Miller, 308 Kan. at 1157. Angelo's claim of actual
innocence within his motion does not meet his burden, and his claim on appeal was not
raised at the district court and does not show prejudicial error.
The district court did not err in summarily denying Angelo's untimely and
successive 60-1507 motion because Angelo did not meet his burden of establishing
entitlement to an evidentiary hearing.
Affirmed.
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