NOT DESIGNATED FOR PUBLICATION. No. 115,334 IN THE COURT OF APPEALS OF THE STATE OF KANSAS. JOSHUA P. OLGA, Appellant, STATE OF KANSAS, Appellee.

Transcription

1 NOT DESIGNATED FOR PUBLICATION No. 115,334 IN THE COURT OF APPEALS OF THE STATE OF KANSAS JOSHUA P. OLGA, Appellant, v. STATE OF KANSAS, Appellee. MEMORANDUM OPINION Affirmed. Appeal from Sedgwick District Court; JAMES R. FLEETWOOD, judge. Opinion filed March 3, Kristen B. Patty, of Wichita, for appellant. Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee. Before ARNOLD-BURGER, C.J., ATCHESON and BRUNS, JJ. Per Curiam: Joshua P. Olga appeals from the district court's decision summarily denying his K.S.A motion. It is undisputed that this is the second K.S.A motion filed by Olga and that it was filed more than 7 years after the mandate was issued in his direct appeal. For the reasons stated in this opinion, we find that Olga has failed to make a sufficient showing of manifest injustice or actual innocence to justify consideration of his untimely filed motion. Thus, we affirm the district court's summary denial of the Olga's most recent K.S.A motion. 1

2 FACTS On August 20, 2004, a jury convicted Olga of raping his then 8-year-old daughter and committing criminal sodomy against his then 6-year-old son. He was subsequently sentenced to 370 months of imprisonment. The district court ordered this sentence to run consecutive to a sentence Olga received for a conviction of the voluntary manslaughter of his father. On appeal, Olga's convictions were affirmed by a panel of this court. State v. Olga, No. 93,464, 2006 WL (Kan. App. 2006) (unpublished opinion). On December 19, 2006, the Kansas Supreme Court denied a petition for review. On January 24, 2007, Olga filed a pro se motion to correct illegal sentence in which he argued that the district court had erred in calculating his criminal history score. The district court ultimately denied the motion and a panel of this court affirmed. State v. Olga, No. 98,724, summary order filed December 4, 2007 (Kan. App.). On May 28, 2008, the Kansas Supreme Court denied Olga's petition for review. The following month, Olga filed his first K.S.A motion in which he made numerous claims of ineffective assistance of his trial counsel. Specifically, Olga argued that his trial counsel (1) refused to call a witness to testify due to a conflict, (2) refused to investigate the possible testimony of the children's foster mother who allegedly believed him to be innocent, (3) refused to argue that someone else molested the children, and (4) failed to call character witnesses on his behalf at trial. The district court appointed counsel to represent Olga and held a preliminary hearing. After hearing the arguments presented by the parties, the district court found that the motion was untimely and denied it. On April 15, 2010, a panel of this court affirmed the district court's decision to deny Olga's first K.S.A motion as being untimely filed. Olga v. State, No. 2

3 101,929, 2010 WL (Kan. App.) (unpublished opinion), rev. denied 290 Kan (2010). In affirming the district court, the panel found: "[I]n order to show manifest injustice, Olga was required to prove circumstances or reasons why he failed to present his claim within the 1-year limitation period. Toney [v. State], 39 Kan. App. 2d [944,] 947[, 187 P.3d 122, rev. denied 287 Kan. 769 (2008)]. Olga failed to plead or present any such facts or reasons. Additionally, based on his motion, the ineffective assistance that Olga complains about was known to him before or during trial. Yet, with opportunities to file his K.S.A motion in a timely fashion, he delayed almost 4 years after his convictions to present his claims to our court. In short, Olga has failed to make a showing of manifest injustice. "We conclude there was substantial competent evidence to show that Olga failed to file his claim within 1 year after his petition for review of the direct appeal was denied by the Kansas Supreme Court. There was also substantial competent evidence that Olga did not demonstrate circumstances that were so 'obviously unfair' or 'shocking to the conscience' as to require the district court to extend the 1-year limitation period. Finally, the district court's findings were sufficient to support its legal conclusion that Olga's K.S.A motion should be summarily dismissed." Olga, 2010 WL , at *3. On May 27, 2014, Olga filed a second K.S.A motion, and supplemented it on June 29, Once again, Olga argued that his trial counsel was ineffective. In particular, he argued that his attorney was ineffective at trial because his attorney failed to (1) present his theory of defense, (2) call certain witnesses, and (3) conduct an investigation in order to mount a viable legal defense. He also argued cumulative error. In addition, Olga alleged that the merits of his motion should be considered in order to prevent manifest injustice. On October 16, 2014, the district court summarily dismissed the K.S.A motion. Olga then filed a motion for reconsideration on November 24, On January 12, 2015, the district court entered an order granting Olga's motion to reconsider, stating 3

4 that the K.S.A motion "appears to have been dismissed as a result of clerk error." Accordingly, the district court reinstated Olga's motion and requested the State to file a response. On July 1, 2015, the State filed its response to Olga's K.S.A motion. The following week, the district court issued a final order summarily denying Olga's K.S.A motion. Following the summary denial of his motion, Olga filed a motion to reconsider, which the district court also denied. Thereafter, Olga filed a timely notice of appeal. ANALYSIS On appeal, Olga contends that the district court erred in summarily denying his K.S.A motion. In response, the State contends that Olga's motion is untimely and that it is not necessary to extend the filing deadline to prevent manifest injustice. Likewise, the State contends that Olga has not presented any exceptional circumstances justifying review of his successive motion. Our review of a district court's summary denial of a K.S.A motion is de novo. In particular, we must determine whether the motions, files, and records of the case conclusively establish that Olga is not entitled to relief. See Sola-Morales v. State, 300 Kan. 875, 881, 335 P.3d 1162 (2014). Likewise, statutory interpretation is a question of law and, as such, our review over such issues is unlimited. State v. Holt, 298 Kan. 469, 474, 313 P.3d 826 (2013). The Kansas Supreme Court has found that K.S.A (f) is "the legislature's complete expression of the relevant timeliness requirements for motions." Vontress v. State, 299 Kan. 607, 613, 325 P.3d 1114 (2014). Specifically, K.S.A Supp (f)(1)(a) requires that motions be filed within 1 year of "the final 4

5 order of the last appellate court in this state to exercise jurisdiction on a direct appeal or the termination of such appellate jurisdiction." Here, it is undisputed that the K.S.A motion that is the subject of this appeal was filed more than 7 years following the issuance of the mandate in his direct appeal. Moreover, K.S.A Supp (f)(2) provides that the 1-year time limitation may only be extended to prevent manifest injustice. Specifically, K.S.A Supp (f)(2)(A) states: "For purposes of finding manifest injustice under this section, the court's inquiry shall be limited to determining why the prisoner failed to file the motion within the oneyear time limitation or whether the prisoner makes a colorable claim of actual innocence. As used herein, the term actual innocence requires the prisoner to show it is more likely than not that no reasonable juror would have convicted the prisoner in light of new evidence." Although the current language of K.S.A Supp did not become effective until July 1, 2016, we find the amendment to the statute to be procedural rather than substantive. In addition, we note that the 2016 amendment continues to require a showing of manifest injustice to justify an extension of the 1-year time limitation on the filing of motions. Furthermore, the 2016 amendment only partially limits the inquiry for determining whether manifest injustice exists. Thus, we conclude that the 2016 amendment should be applied retroactively to Olga's motion. See Perry v. State, No. 115,073, 2017 WL , at *2-3 (Kan. App. 2017) (unpublished opinion). Accordingly, we must first determine whether Olga has established that manifest injustice would occur if we do not consider his motion. Olga argues that he received "inaccurate advice regarding time deadlines by the law library supervisor" at the prison in which he is incarcerated. He also complains that he had inadequate library time. However, our Supreme Court has found that "a pro se K.S.A movant is in the 5

6 same position as all other pro se civil litigants and is required to be aware of and follow the rules of procedure that apply to all civil litigants, pro se or represented by counsel." Guillory v. State, 285 Kan. 223, 229, 170 P.3d 403 (2007). In addition, we do not find Olga's argument to be persuasive because the 1-year time limitation is clearly expressed in K.S.A (f). In fact, Olga should have been aware of the time limitation because of his previous motion that was dismissed for failing to file within 1 year following the issuing of the mandate in his direct appeal. Furthermore, by the time Olga allegedly contacted an attorney to file his second motion, the 1-year limitation had long ago expired. Likewise, we do not find that Olga has made a colorable claim of actual innocence. As indicated above, he must "show it is more likely than not that no reasonable juror would have convicted [him] in light of new evidence." K.S.A Supp (f)(2)(A). In support of his claim of actual innocence, Olga cites an affidavit of Cecil Henry who suggests that the children's grandfather may have inappropriately touched them. Even if we assume this to be true, the fact that the grandfather may have also inappropriately touched the children does not show that Olga was innocent. Also, although Olga claims that his father abused his sister and him, his sister testified at his sentencing hearing that she had a different father than Olga and that it was her father who had abused her. Thus, Olga has failed to show that it is more likely than not that no reasonable juror would have convicted Olga even if such evidence was presented. We, therefore, conclude that the district court's summary dismissal of Olga's K.S.A motion should be affirmed. Affirmed. 6