Cash v. State

NOT DESIGNATED FOR PUBLICATION
No. 123,471
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
EDRICK LADON CASH f/k/a EDRICK LADON MCCARTY,
Appellant,
v.
STATE OF KANSAS,
Appellee.
MEMORANDUM OPINION
Appeal from Pawnee District Court; BRUCE T. GATTERMAN, judge. Opinion filed March 11,
2021. Affirmed.
Kristen B. Patty, of Wichita, for appellant.
Steven J. Obermeier, assistant solicitor general, and Derek Schmidt, attorney general, for
appellee.
Before GARDNER, P.J., HILL and ISHERWOOD, JJ.
PER CURIAM: Edrick Ladon Cash appeals the district court's summary denial of
his K.S.A. 60-1507 motion. His motion argued (1) the Larned State Hospital had violated
his Miranda rights; (2) the State should have presented the charges to a grand jury for an
indictment rather than file a complaint; and (3) the State had overcharged Cash with
aggravated battery by intentional, great bodily harm. The district court reviewed the
motion and the records and summarily denied Cash's motion as untimely. The district
court also found that Cash failed to show that he would suffer a manifest injustice if the
district court did not extend the one-year time limit. Finding no error, we affirm.
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Factual and Procedural Background
Cash (formerly McCarty—changed last name in February 2021) is serving a life
sentence and 136 months in prison for his 1998 convictions of aggravated robbery and
first-degree felony murder. The Kansas Supreme Court affirmed those convictions. State
v. McCarty, 271 Kan. 510, 519, 23 P.3d 829 (2001).
In 2016, Cash and another patient at Larned State Hospital had an altercation—the
other patient suffered a broken nose and fractured eye orbit yet Cash suffered no injuries.
The State originally charged Cash with aggravated battery, by intentional, great bodily
harm, a severity level 4 felony. At the preliminary hearing, the magistrate judge bound
Cash over on the lesser charge of aggravated battery, a severity level 7 felony. Cash
pleaded not guilty and filed a "Motion of Intent to Rely Upon the Affirmative Defense of
Mental Disease or Defect."
The Larned State Hospital evaluated Cash but determined he did not lack the
mental state required as an element of the aggravated battery charge. The district court
granted Cash's motion for an independent evaluation, but the independent evaluation also
found that he was fully aware of his actions on the date of the altercation. It also
explained that Cash most likely did not suffer from mental disease or defect at the time.
In 2018, Cash pleaded no contest to the lesser charge of attempted aggravated
battery, a severity level 9 felony. A presentence investigation report showed Cash's
criminal history score was A, carrying a presumptive prison sentence. Cash moved the
district court for a downward dispositional departure to supervised probation, to begin if
the Prisoner Review Board paroled Cash from his life sentence. The district court granted
Cash's motion, sentenced him to 16 months' imprisonment, then suspended that sentence
to 12 months' probation. Because Cash had committed the attempted aggravated battery
felony while he was incarcerated for a felony, the district court was required by law to
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order that sentence run consecutive to Cash's previous sentences, including his life
sentence plus 136 months' imprisonment for aggravated robbery and first-degree felony
murder, mentioned above.
In March 2020, Cash filed a K.S.A. 60-1501 habeas petition in Butler District
Court, arguing the State had violated his rights against self-incrimination. Another panel
of this court affirmed the district court's summary denial of relief. McCarty v. Cline, No.
122,877, 2020 WL 6935620, at *3 (Kan. App. 2020) (unpublished opinion).
In September 2020, while Cash's appeal of his K.S.A. 60-1501 habeas petition was
still pending, Cash filed a K.S.A. 60-1507 motion in Pawnee County District Court. That
motion alleged three grounds: (1) the guards did not read Cash his Miranda rights; (2)
the facility did not allow Cash to have his case "handed to the People"; and (3) the State
"over charged" Cash, thereby stripping him of his liberty and Fourteenth Amendment
rights.
As factual support for this motion, Cash first stated Larned State Hospital
employees had failed to read him his Miranda rights after his altercation with another
patient, and had he known of his rights, he would not have pleaded to the reduced charge.
Second, Cash argued that the charge could have been "put in the hands of the People" but
that, instead, the State of Kansas charged him through a complaint, thereby violating the
Fifth Amendment to the United States Constitution. And third, Cash argued he was
"charged with battery, then battery again in 2016, without being Mirandized at Larned
State Hospital" and that this violated his due process rights.
In October 2020, the district court summarily denied Cash's K.S.A. 60-1507
motion. The district court found that under K.S.A. 2020 Supp. 60-1507, aggrieved
inmates must bring the motion within a year from the final order of an appellate court on
direct appeal or from the termination of appellate jurisdiction. Because Cash had not done
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so, he had to show manifest injustice. The district court found that Cash failed to meet
that burden of injustice because:
• Although the inmate must show facts supporting manifest injustice in the
60-1507 motion, Cash had failed to plead manifest injustice—he had
merely referenced that phrase when arguing he had been ignorant of the
law so he could not have filed a 60-1507 motion earlier;
• Cash failed to show events that were "obviously unfair" or "shocking to the
conscience";
• Cash made no colorable claim of innocence; and
• Cash did not allege ineffective assistance of counsel.
As a result, the district court found Cash failed to show that its review was necessary to
prevent manifest injustice.
The district court also found Cash should have raised his three grounds for relief
on direct appeal and could no longer do so. The district court denied Cash's motion and
his request for appointment of counsel, finding he failed to raise a substantial question of
law or triable issue of fact warranting an evidentiary hearing.
Cash moved for reconsideration and filed a timely notice of appeal. The district
court denied Cash's motion, finding no basis to reconsider. Cash does not challenge the
district court's denial of his motion to reconsider.
Did the District Court Err in Summarily Denying Cash's K.S.A. 60-1507 Motion?
Cash argues the district court erred in summarily denying his K.S.A. 60-1507
motion because he successfully established that the district court must hold an evidentiary
hearing to prevent a manifest injustice.
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When, as here, the district court summarily dismissed a K.S.A. 60-1507 motion,
we conduct a de novo review to determine whether the motion, files, and records of the
case conclusively establish that the movant is entitled to no relief. Beauclair v. State, 308
Kan. 284, 293, 419 P.3d 1180 (2018).
General law
A defendant may not appeal from a judgment of conviction after pleading no
contest, except to raise jurisdictional or other grounds going to the legality of the
proceedings as provided in K.S.A. 2020 Supp. 60-1507. Because Cash pleaded no contest
to the reduced charge of attempted aggravated battery and chose not to file a direct
appeal, his K.S.A. 60-1507 motion is limited to raising jurisdiction or the "legality of the
proceedings." K.S.A. 2020 Supp. 22-3602(a); State v. Smith, 311 Kan. 109, 118, 456 P.3d
1004 (2020).
The purpose of a K.S.A. 60-1507 motion is to collaterally attack an inmate's
underlying sentence and confinement. The statute provides the inmate a collateral vehicle
to challenge his or her sentence if the district court imposed it (1) in violation of the
United States Constitution, the Kansas Constitution, federal laws, or state laws; (2)
without jurisdiction; or (3) in excess of the maximum authorized by law. The statute also
provides an inmate may challenge the sentence if it is "otherwise subject to collateral
attack." K.S.A. 2020 Supp. 60-1507(a). The statute allows the inmate to ask the district
court to vacate, set aside, or correct the inmate's sentence. K.S.A. 2020 Supp. 60-1507(a).
Unless the motion, files, and records conclusively show the inmate is entitled to no
relief, the district court must hold a hearing on the motion. K.S.A. 2020 Supp. 60-
1507(b). To avoid a summary dismissal, the inmate bears the burden of showing the
district court by a preponderance of the evidence that he or she is entitled to an
evidentiary hearing. Holt v. State, 290 Kan. 491, Syl. ¶ 3, 232 P.3d 848 (2010). "To carry
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this burden, he or she must do more than make conclusory statements; the motion must
cite to supporting evidence in the record or identify individuals who would provide that
evidence." Love v. State, No. 123,298, 2021 WL 3234387, at *2 (Kan. App. 2021)
(unpublished opinion). And although the district court must generally accept the motion's
factual allegations as true, the factual allegations must be specific and may not be mere
conclusions. Skaggs v. State, 59 Kan. App. 2d 121, 130-31, 479 P.3d 499 (2020), rev.
denied 313 Kan. 1042 (2021).
Application
We first review the district court's finding that Cash's motion was untimely.
An inmate must file a K.S.A. 60-1507 motion within one year of either (1) "[t]he final
order of the last appellate court in this state to exercise jurisdiction on a direct appeal or
the termination of such appellate jurisdiction"; or (2) "the denial of a petition for writ of
certiorari to the United States supreme court or issuance of such court's final order
following granting such petition." K.S.A. 2020 Supp. 60-1507(f)(1)(A)-(B). The court
may extend the time limit only to prevent a manifest injustice. K.S.A. 2020 Supp. 60-
1507(f)(2).
Cash did not appeal his 2016 attempted aggravated battery conviction. The district
court sentenced Cash in April 2018 after he pleaded no contest to that charge. As a result,
the one-year time limitation for Cash to file a K.S.A. 60-1507 motion began running 14
days after he was sentenced and expired in April or May of 2019. See K.S.A. 2020 Supp.
60-1507(f)(1)(A)-(B); K.S.A. 2020 Supp. 22-3608(c) (providing 14 days to perfect
appeal after district court's judgment); Baker v. State, 297 Kan. 486, Syl., 303 P.3d 675(2013) ("[T]he 1-year time limitation for bringing an action under K.S.A. 60-1507 begins
to run after the period for taking a direct appeal from the [resentencing] expires.").Thus
Cash's K.S.A. 60-1507 motion, filed September 2020, was untimely.
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Cash thus had the burden to show manifest injustice. See State v. Trotter, 296 Kan.
898, 905, 295 P.3d 1039 (2013) (if an inmate files outside the one-year time limit and
fails to affirmatively assert manifest injustice, the inmate is procedurally barred from
pursuing the motion). In the context of a habeas corpus proceeding, "'manifest injustice'"
means obviously unfair or shocking to the conscience. Thuko v. State, 310 Kan. 74, 81,
444 P.3d 927 (2019). In considering manifest injustice, the court's inquiry is limited to
determining whether the inmate has made a compelling explanation as to why he or she
failed to file the motion within the one-year time limitation or whether the inmate makes
a colorable claim of actual innocence. White v. State, 308 Kan. 491, 496, 421 P.3d 718(2018). Cash asserts both of these reasons on appeal.
To show actual innocence, the inmate must show it is more likely than not that no
reasonable juror would have convicted the inmate in light of new evidence. K.S.A. 2020
Supp. 60-1507(f)(2)(A). Cash's brief on appeal claims he argues "actual innocence" on
pages six and seven. But our review shows no such argument anywhere in his brief. This
issue is inadequately briefed, and we consider it waived and abandoned. State v. Salary,
309 Kan. 479, 481, 437 P.3d 953 (2019). Nor did Cash make a colorable claim of
innocence in his K.S.A. 60-1507 motion to the district court or on appeal. An issue not
raised in the district court may not be raised on appeal, absent an exception. See State v.
Kelly, 298 Kan. 965, 971, 318 P.3d 987 (2014).
As a result, our review is limited to determining whether Cash has compellingly
explained why he failed to file his motion within the one-year time limit. See K.S.A.
2020 Supp. 60-1507(f)(2)(A). Although Cash's motion does not explain why he missed
the one-year time limit, his 60-1507 form states that he had not previously raised these
three issues for review because he was ignorant of the law and could not challenge what
he did not know. Having reviewed the motion, as well as the record, we find no other
stated reason for delay.
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Still, Cash's motion failed to persuasively argue why the district court should have
extended the one-year time period to prevent a manifest injustice. Cash's motion merely
stated: "Movant sees a manifest injustice if [Cash's motion is] denied, which he sees
because movant knew not of the law, and how it applied to him, previously thereto."
Cash's nod to "manifest injustice" in his motion is this conclusory statement without
explanation and is therefore insufficient to establish manifest injustice. See Love, 2021
WL 3234387, at *2 ("he or she must do more than make conclusory statements").
And the Kansas Supreme Court has repeatedly held that ignorance of the timeline
under K.S.A. 2020 Supp. 60-1507 does not constitute manifest injustice. See Tolen v.
State, 285 Kan. 672, 676, 176 P.3d 170 (2008) ("The legislature's adoption of a 1-year
time limit for filing motions under K.S.A. 60-1507 put all persons, including inmates
. . . , on constructive notice of the new provision."); Guillory v. State, 285 Kan. 223, 229,
170 P.3d 403 (2007). Thus, the fact that Cash became aware, or chose to act, after the
one-year time limitation in K.S.A. 2020 Supp. 60-1507(f)(1) is not alone sufficient to
warrant a manifest injustice finding.
Cash gives us no more. He fails to allege facts or legal errors that are obviously
unfair or shocking to the conscience. See Thuko, 310 Kan. at 81. Although he alleged
three issues, none of them explain why Cash failed to file within the statutory timeline or
show that failure to revisit the issues would establish an injustice. Cash offered no
substantive explanation why he did not file within the statutory time limit.
Cash tries to fill the factual and legal void by arguing that "[a]ny resulting
deficiencies" could be easily cured by reviewing the record in his underlying criminal
case. But the underlying criminal case cannot explain why Cash's motion is untimely—
which is the procedural hurdle Cash must overcome to get review under K.S.A. 2020
Supp. 60-1507(f)(1)-(3).
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Review of the motion, files, and records of this case suggests no other reason for
the district court, or this court on appeal, to find that manifest injustice would result from
dismissing Cash's untimely motion. The district court properly dismissed the motion as
untimely. See K.S.A. 2020 Supp. 60-1507(f)(3) (If the court reviews all the motions,
files, and records, and determines that the inmate's motion exceeded the one-year time
limit and that dismissal "would not equate with manifest injustice, the district court must
dismiss the motion as untimely filed.").
Affirmed.
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