Payton v. State

NOT DESIGNATED FOR PUBLICATION
No. 124,979
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
WALTER A. PAYTON,
Appellant,
v.
STATE OF KANSAS,
Appellee.
MEMORANDUM OPINION
Appeal from Sedgwick District Court; JEFFREY SYRIOS. Opinion filed January 27, 2023.
Affirmed.
Walter Payton, appellant pro se.
Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.
Before HILL, P.J., BRUNS and WARNER, JJ.
PER CURIAM: Walter A. Payton—who has also been known as Walter A. Peyton,
Walter L. Payton, Manuel Lacey, and Arron A. Johnson—appeals the summary dismissal
of his K.S.A. 60-1507 motion. The district court found the motion was filed outside the
one-year statutory time limit and was successive (as it was Payton's third K.S.A. 60-1507
motion, and Payton had previously filed several other postconviction motions). The court
also ruled that Payton failed to demonstrate manifest injustice or exceptional
circumstances that would allow the court to consider the merits of his motion. Because
Payton's motion is untimely, we affirm the district court's decision.
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FACTUAL AND PROCEDURAL HISTORY
In 1998, a jury convicted Payton of two counts of statutory rape of a minor and
one count of rape of an adult woman, and the district court sentenced him to 712 months
in prison. Payton unsuccessfully appealed these convictions to this court, which rejected
several claims of trial error and an ineffective-assistance-of-counsel claim. State v.
Peyton, No. 81,569, unpublished opinion filed February 18, 2000 (Peyton I), rev. denied
269 Kan. 939 (2000).
Since his direct appeal, Payton has filed many postconviction motions challenging
aspects of his convictions and sentences, resulting in various appellate decisions by this
court. See, e.g., Peyton v. State, No. 88,293, unpublished opinion filed January 24, 2003
(Payton II) (affirming district court's denial of K.S.A. 60-1507 motion), rev. denied 275
Kan. 965 (2003); State v. Payton, No. 96,637, summary order filed November 9, 2006
(Payton III) (affirming district court's denial of motion for additional DNA testing), rev.
denied February 14, 2007; State v. Payton, No. 99,293, 2009 WL 77911 (Kan. App.)
(unpublished opinion) (Payton IV) (affirming district court's denial of motion to set aside
convictions and for DNA testing), rev. denied 289 Kan. 1284 (2009); Payton v. State, No.
105,822, 2012 WL 1352837, at *3-4 (Kan. App. 2012) (unpublished opinion) (Payton V)
(affirming district court's denial of second K.S.A. 60-1507 motion), rev. denied 296 Kan.
1130 (2013); State v. Peyton, No. 117,996, 2018 WL 3946000, at *2-3 (Kan. App. 2018)
(unpublished opinion) (Payton VI) (affirming denial of pro se motion to correct illegal
sentence on res judicata grounds), rev. denied 309 Kan. 1352 (2019); State v. Payton, No.
123,433, 2021 WL 4128246, at *5 (Kan. App. 2021) (unpublished opinion) (Payton VII)
(affirming summary denial of pro se motion to correct illegal sentence).
Payton filed the current K.S.A. 60-1507 motion in October 2021. In the motion,
Payton asserted his right to a fair trial was violated and that he received ineffective
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assistance of counsel because his attorney stipulated—without his permission—that DNA
evidence exonerated Payton for one of the rape allegations against him; Payton argued
the defense should have been given the opportunity to present the evidence giving rise to
the stipulation at trial. He attached an exhibit containing a portion of the trial transcript in
which the parties discussed the stipulation on the record and the court relayed the
stipulation to the jury.
The State responded to Payton's motion, arguing that the motion was procedurally
barred because it was filed long after the statutory time limit for postconviction motions
expired and was successive, given his multiple previous filings. The State also argued
Payton failed to explain how excluding the stipulation would have resulted in a different
result because it was favorable to the defense.
The district court summarily dismissed Payton's motion, agreeing with the State
on all three grounds: The court found that the motion did not demonstrate that
consideration of the untimely motion was necessary to avoid manifest injustice, that the
motion did not provide any exceptional circumstances to explain why the claim was not
asserted in any of Payton's previous filings, and that the motion failed to present a
substantial question of law or fact. Payton appeals.
DISCUSSION
K.S.A. 60-1507(a) provides a collateral vehicle for people convicted of crimes to
challenge their convictions and sentences. When a district court dismisses a K.S.A. 60-
1507 motion without an evidentiary hearing—as the district court did here—the appellate
court is in just as good a position as the district court to consider the motion. Our review
of the court's ruling is thus unlimited. Grossman v. State, 300 Kan. 1058, 1061, 337 P.3d
687 (2014).
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Generally, a person must file a K.S.A. 60-1507 motion within one year of the
completion of his or her direct appeal. K.S.A. 2021 Supp. 60-1507(f)(1)(A). But for
movants like Payton, whose claims preexist the statutory amendment that created this
deadline, the deadline for filing a timely K.S.A. 60-1507 motion was June 30, 2004. See
L. 2003, ch. 65, § 1; Noyce v. State, 310 Kan. 394, 399, 447 P.3d 355 (2019). In fact,
another panel of our court previously determined a prior K.S.A. 60-1507 motion filed by
Payton was untimely because it was not filed within one year of the effective date of this
statute. Payton V, 2012 WL 1352837, at *3-4.
A court may only consider a K.S.A. 60-1507 motion filed outside the one-year
period if the movant shows that consideration is necessary "to prevent a manifest
injustice." K.S.A. 2021 Supp. 60-1507(f)(2). This exception is a narrow one. K.S.A. 2021
Supp. 60-1507(f)(2)(A) limits the scope of "manifest injustice" to two considerations—
whether the movant has provided a compelling explanation for "fail[ing] to file the
motion within the one-year time limitation" and whether the person "makes a colorable
claim of actual innocence." If the movant has not shown that dismissal will result in
manifest injustice under either of these definitions, the court must dismiss an untimely
motion. K.S.A. 2021 Supp. 60-1507(f)(3).
There is no question that Payton filed his current K.S.A. 60-1507 motion well
outside the one-year time frame. Although his motion addressed manifest injustice,
Payton makes no attempt now to explain why or how manifest injustice would result if
we did not reach the merits of his untimely claim. See State v. Davis, 313 Kan. 244, 248,
485 P.3d 174 (2021) (issues not briefed are deemed waived or abandoned). Even
considering the assertions made in Payton's K.S.A. 60-1507 motion, he fails to address
the only questions relevant under K.S.A. 2021 Supp. 60-1507(f)(2)(A)—"why [he] failed
to file the motion within the one-year time limitation" or how his claims demonstrate a
"colorable claim of actual innocence." Put simply, Payton offers nothing to demonstrate
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that consideration of the claims in his K.S.A. 60-1507 motion is necessary to prevent
manifest injustice or excuse his untimely filing.
Because Payton did not provide a persuasive explanation for why the district court
could review Payton's untimely K.S.A. 60-1507 motion, the court was required to
summarily dismiss the motion. See K.S.A. 2021 Supp. 60-1507(f)(3). We thus need not
consider the court's other conclusions that the motion was successive and failed to present
a substantial question of law or fact. The district court did not err when it dismissed
Payton's K.S.A. 60-1507 motion.
Affirmed.
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