State v. Cheeks

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 122,621

STATE OF KANSAS,
Appellee,

v.

JEROME CHEEKS,
Appellant.

SYLLABUS BY THE COURT

1.
The law of the case doctrine is a common-law rule in Kansas. Under the doctrine,
when a second appeal is brought to this court in the same case, the first decision is the
settled law of the case on all questions involved in the first appeal, and reconsideration
will not normally be given to such questions.

2.
The law of the case doctrine is not an inexorable command, nor is it a
constitutional requirement, and courts recognize exceptions to its application when (1) a
subsequent trial produces substantially different evidence, (2) a controlling authority has
made a contrary decision regarding the law applicable to the issues, or (3) the prior
decision was clearly erroneous and would work a manifest injustice.

3.
Unlike the law of the case doctrine, the mandate rule is a statutory imperative that
requires lower courts follow the mandates issued by appellate courts.

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4.
Kansas cases have not recognized the power of a district court to unilaterally
depart from the mandate, even when a change in the law has occurred.

5.
When an intervening change in law causes the district court to conform to new
precedent and deviate from a prior appellate mandate, the judgment of the district court
will typically be affirmed, notwithstanding any technical violation of the mandate rule,
because it would be futile for the appellate court to reverse the district court for violating
the mandate rule when the district court would be obligated to apply the controlling
precedent on remand.

Appeal from Wyandotte District Court; JENNIFER L. MYERS, judge. Opinion filed March 19,
2021. Affirmed.

Joseph A. Desch, of Law Office of Joseph A. Desch, of Topeka, argued the cause and was on the
briefs for appellant.

Daniel G. Obermeier, assistant district attorney, argued the cause, and Mark A. Dupree Sr.,
district attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by

WALL, J.: A jury convicted Jerome Cheeks for the second-degree murder of his
wife in 1993. In 2009, Cheeks filed a motion seeking postconviction DNA testing
pursuant to K.S.A. 21-2512. This statute authorizes individuals who have been convicted
of first-degree murder or rape to petition for such testing, subject to other eligibility
factors identified in the statute. The district court summarily rejected Cheeks' motion
because he was convicted of neither offense.

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 This court reviewed the district court's decision in State v. Cheeks, 298 Kan. 1, 310
P.3d 346 (2013) (Cheeks I). Based on the punishment imposed for Cheeks' second-degree
murder conviction, Cheeks I held that he was similarly situated to other defendants
convicted for murder in the first degree, and it concluded that the Legislature had no
rational basis to distinguish between these two classes of defendants in determining
eligibility for postconviction testing. 298 Kan. at 5, 11-14. Thus, the court held that
Cheeks' exclusion from K.S.A. 21-2512 violated the Fourteenth Amendment's Equal
Protection Clause. 298 Kan. at 2.

However, in 2019, while Cheeks' motion was still pending in the district court, this
court decided State v. LaPointe, 309 Kan. 299, 434 P.3d 850 (2019). LaPointe overruled
Cheeks I, including its equal protection rationale for extending K.S.A. 21-2512 to Cheeks
based on his life sentence for second-degree murder. 309 Kan. at 301. Relying on
LaPointe, the district court again denied Cheeks' motion for postconviction testing.

In his appeal of that decision, Cheeks now contends the mandate rule required the
district court to turn a blind eye to LaPointe and grant him postconviction DNA testing
under the rationale in Cheeks I. Yet, there can be no dispute that LaPointe is binding
precedent, and it overrules Cheeks I. Thus, it would be futile to reverse and remand this
matter to the district court for failing to adhere to prior appellate mandates when
LaPointe inevitably controls the ultimate disposition of Cheeks' motion on remand under
K.S.A. 21-2512. We therefore affirm the district court's denial of Cheeks' motion for
postconviction DNA testing.

FACTUAL AND PROCEDURAL BACKGROUND

The litigation in this case up until 2015 can be summarized as follows:

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 "Cheeks was convicted in 1993 of the second-degree murder of his wife. Cheeks
received a prison sentence of 15 years to life imprisonment. This court affirmed his case
on direct appeal. State v. Cheeks, 258 Kan. 581, 908 P.2d 175 (1995). We also affirmed a
later district court denial of Cheeks' pro se motion to correct an illegal sentence. State v.
Cheeks, 280 Kan. 373, 121 P.3d 989 (2005).

"In March 2009, Cheeks filed a pro se petition for postconviction DNA testing
under K.S.A. 21-2512. The petition was summarily denied because the statute limited the
availability of such testing to cases involving convictions of first-degree murder under
K.S.A. 21-3401 or of rape under K.S.A. 21-3502. Cheeks appealed to this court and
prevailed. State v. Cheeks, 298 Kan. 1, 3, 310 P.3d 346 (2013). [This court] extended
K.S.A. 21-2512 to Cheeks and other similarly situated individuals under the authority of
the Equal Protection Clause of the United States Constitution. 298 Kan. at 11." State v.
Cheeks, 302 Kan. 259, 259, 352 P.3d 551 (2015) (Cheeks II).

On remand from Cheeks I, the district court found that Cheeks had been released
from prison and, therefore, no longer satisfied the "in state custody" requirement for
postconviction testing. In the 2015 appeal from that district court decision, our court held
that because "Cheeks remained in prison at the time his K.S.A. 21-2512 petition for DNA
testing was filed, he was 'in state custody' at the relevant time." Cheeks II, 302 Kan. at
261. This court remanded Cheeks' motion to the district court for a second time in June
2015. 302 Kan. at 261.

Before the district court could hold a hearing on the second remand, this court
issued its decision in State v. LaPointe, where it "overrule[d] Cheeks I to the extent it
held the sentence imposed determines whether an offender is similarly situated to a
person to whom postconviction DNA testing is statutorily available." LaPointe, 309 Kan.
at 318.

On February 25, 2019, the district court held the second remand hearing. Cheeks
argued that LaPointe did not require the court to deny the motion for four reasons. First,

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he argued that LaPointe is not retroactive. Second, he argued the holding in LaPointe did
not mean Cheeks himself was not similarly situated to individuals convicted of first-
degree murder, because Cheeks received a "15 to life" sentence. Third, he argued that
"under due process, any defendant who is convicted who does not have access at the time
of his conviction to DNA . . . testing should be allowed to seek that kind of testing post
conviction." Finally, Cheeks argued that the law of the case doctrine meant that his
motion should be granted despite the new LaPointe opinion.

The State argued LaPointe foreclosed Cheeks' pursuit of postconviction testing.
The State also clarified that this resolution would not require the district court to
improperly apply LaPointe retroactively because Cheeks' motion was still pending when
this court issued LaPointe.

On February 28, 2019, the district court denied Cheeks' motion, citing LaPointe.
Cheeks appeals the denial.

ANALYSIS

This case centers on Kansas' postconviction DNA testing statute, K.S.A. 21-2512.
The pertinent language of the statute has not changed since Cheeks first filed his motion
in 2009. It provides:

"(a) Notwithstanding any other provision of law, a person in state custody, at any
time after conviction for murder in the first degree as defined by K.S.A. 21-3401, prior to
its repeal, or K.S.A. 2020 Supp. 21-5402, and amendments thereto, or for rape as defined
by K.S.A. 21-3502, prior to its repeal, or K.S.A. 2020 Supp. 21-5503, and amendments
thereto, may petition the court that entered the judgment for forensic DNA testing
(deoxyribonucleic acid testing) of any biological material that:

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 (1) Is related to the investigation or prosecution that resulted in the
conviction;

(2) is in the actual or constructive possession of the state; and

(3) was not previously subjected to DNA testing, or can be subjected to
retesting with new DNA techniques that provide a reasonable likelihood of more
accurate and probative results.

....

"(c) The court shall order DNA testing pursuant to a petition made under
subsection (a) upon a determination that testing may produce noncumulative, exculpatory
evidence relevant to the claim of the petitioner that the petitioner was wrongly convicted
or sentenced." K.S.A. 2020 Supp. 21-2512.

On appeal, Cheeks contends that the law of the case doctrine and the mandate rule
require the district court to grant his motion for DNA testing. These arguments first
require closer examination of the mandates in Cheeks I and Cheeks II and the intervening
holding in LaPointe. Then, we can fully assess the merits of Cheeks' arguments under the
law of the case doctrine and mandate rule.

Prior Mandates and Controlling Precedent

In 2013, this court considered Cheeks' first appeal of the district court's denial of
his motion for DNA testing. There, "the district court summarily rejected Cheeks' petition
based on the face of the statute," so "the court made no findings regarding the three
statutory requirements of K.S.A. 21-2512(a)." Cheeks I, 298 Kan. at 4. A divided court
held that K.S.A. 21-2512 violated the Fourteenth Amendment to the United States
Constitution's guarantee of equal protection. 298 Kan. at 2.

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 The majority "agree[d] with Cheeks that while our decision in [State v.] Salas[,
289 Kan. 245, 210 P.3d 635 (2009),] foreclosed an equal protection challenge to [K.S.A.
21-2512] based on the elements of first- and second-degree murder, it left open the
possibility of an equal protection challenge based on the punishment imposed for those
two crimes." Cheeks I, 298 Kan. at 6. In his brief, Cheeks "frame[d] his 'similarly
situated' analysis on the punishment imposed for the crime—not the elements of the
crime or the conduct that violates those elements." 298 Kan. at 6. He argued that
"individuals convicted of second-degree murder and sentenced to the maximum sentence
of 15 years to life under the indeterminate sentencing scheme existing before the
enactment of the KSGA [Kansas Sentencing Guidelines Act] are similarly situated to
individuals convicted of first-degree murder and sentenced prior to the KSGA." 298 Kan.
at 7.

The majority held that no rational basis "explain[ed] the legislature's decision to
permit individuals convicted of rape and first-degree murder to petition for DNA testing
but to deny that same opportunity to individuals convicted of second-degree murder and
sentenced to 15 years to life imprisonment"; because of this, K.S.A. 21-2512 violated the
Equal Protection Clause. 298 Kan. at 11. Therefore, the majority held that Cheeks was
entitled to a remand to the district court for a hearing to determine whether he could
establish those statutory requirements. 298 Kan. at 14.

Cheeks was released from prison and placed on lifetime parole while Cheeks I was
pending. Cheeks II, 302 Kan. at 259. On remand from Cheeks I, the district court again
denied the motion, concluding that Cheeks did not satisfy the "in state custody"
requirement of K.S.A. 21-2512 because he was on parole. 302 Kan. at 260. Cheeks
appealed this denial. In Cheeks II, this court again reversed the district court, this time
holding that Cheeks satisfied the "in state custody" requirement because he was in prison
when he filed the motion in 2009. 302 Kan. at 261. This court remanded "so that the
merits of the petition may be considered." 302 Kan. at 261.

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 However, on February 15, 2019, this court issued its decision in LaPointe. There,
a jury convicted defendant Jack LaPointe of aggravated robbery and aggravated assault.
A district court granted LaPointe's postconviction motion for DNA testing. On appeal,
this court considered the State's reserved question of whether LaPointe was eligible for
postconviction DNA testing under K.S.A. 21-2512. To do so, it had to revisit Cheeks I.

In LaPointe, this court observed that, in Cheeks I, "[a] court majority decided to
base its analysis on the punishment meted out" when conducting the equal protection
analysis. 309 Kan. at 316. LaPointe rejected this framework and "overrule[d] Cheeks I to
the extent it held the sentence imposed determines whether an offender is similarly
situated to a person to whom postconviction DNA testing is statutorily available." 309
Kan. at 318. Having rejected the "punishment" approach to equal protection analysis,
LaPointe instead endorsed the "elements approach" from State v. Denney, 278 Kan. 643,
652-54, 101 P.3d 1257 (2004). LaPointe, 309 Kan. at 319. Under the "elements
approach," courts "must first examine the two crimes [(1) the crime the moving defendant
was convicted of and (2) a crime statutorily provided in K.S.A. 21-2512] to determine if,
under the facts of the instant case, they are 'arguably indistinguishable.'" Denney, 278
Kan. at 652. Under the elements approach, Cheeks' crime of second-degree murder is not
similarly situated to the crime of first-degree murder. Salas, 289 Kan. at 251. In short,
LaPointe and Salas confirm that Cheeks is not similarly situated to the class of
individuals eligible for postconviction DNA testing under K.S.A. 21-2512. Therefore,
such relief is unavailable to Cheeks both under the plain language of the statute and the
Equal Protection Clause.

Read together, the letter and spirit of the mandates in Cheeks I and Cheeks II
established three basic principles to guide subsequent proceedings: (1) Cheeks was part
of the class eligible to petition the district court for postconviction DNA testing under
K.S.A. 21-2512; (2) Cheeks satisfied the statutory "in state custody" requirement for

8
testing; and (3) the district court should conduct further proceedings to determine whether
Cheeks satisfied the remaining statutory requirements for testing. However, our
intervening decision in LaPointe abrogated the basic principles established through these
mandates and left the district court in the unenviable position of deciding whether to
apply LaPointe over the prior appellate mandates.

The District Court Did Not Violate the Law of the Case Doctrine

Cheeks first argues that the district court was obligated to grant his motion
because of the law of the case doctrine. We are unpersuaded by this argument.

The law of the case doctrine is a common-law rule in Kansas. See State v. Collier,
263 Kan. 629, 631-32, 952 P.2d 1326 (1998). Under the doctrine, "[w]hen a second
appeal is brought to this court in the same case, the first decision is the settled law of the
case on all questions involved in the first appeal, and reconsideration will not normally be
given to such questions." 263 Kan. 629, Syl. ¶ 3. But the doctrine is "'"not an inexorable
command,"' nor is it a constitutional requirement." State v. Kleypas, 305 Kan. 224, 245,
382 P.3d 373 (2016) (Kleypas II).

As Cheeks acknowledges, this court has recognized three exceptions to the law of
the case doctrine.

"These exceptions apply when (1) a subsequent trial produces substantially different
evidence, (2) a controlling authority has made a contrary decision regarding the law
applicable to the issues, or (3) the prior decision was clearly erroneous and would work a
manifest injustice." 305 Kan. at 245.

The second and third exceptions apply here. As explained above, LaPointe
explicitly overruled Cheeks I, so there is now "a contrary decision" from this court

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"regarding the law applicable to the issues." Kleypas II, 305 Kan. at 245. Cheeks I is also
now "clearly erroneous" because of LaPointe. See Kleypas II, 305 Kan. at 245. Once the
court issued its opinion in LaPointe, the law of the case doctrine no longer bound the
district court to the conflicting law in Cheeks I and Cheeks II. Therefore, this doctrine
does not compel the relief Cheeks seeks.

Cheeks, seemingly recognizing that these exceptions place his argument in
desperate peril, also contends that "LaPointe operated to overrule [only] a particular part
of Cheeks I, limited to its rationale for the decision, but not its ultimate holding as it
pertains to Cheeks." He claims "LaPointe's overruling of Cheeks I was limited to the
expansion of K.S.A. 21-2512 beyond the parameters of its actual ruling." This is
incorrect. As detailed above, the holding in Cheeks I hinged exclusively on Cheeks'
argument that the punishment he received for committing second-degree murder made
him similarly situated to first-degree murder defendants for purposes of equal protection
analysis. Cheeks I, 298 Kan. at 6. LaPointe explicitly overruled this punishment-based
approach in favor of the elements-based approach from Denney. LaPointe, 309 Kan. at
318. In sum, LaPointe eliminated the only leg upon which Cheeks I stood. Without it,
Cheeks' claim of right to postconviction DNA testing under the Due Process Clause
necessarily fails.

The Mandate Rule Does Not Compel Reversal

In Kansas, unlike the law of the case doctrine, the mandate rule is a statutory
imperative that requires lower courts follow the mandates issued by appellate courts. It
derives from two different statutes.

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 K.S.A. 20-108 provides that:

"An appellate court of this state may require the district court of the county
where any action or proceeding shall have originated to carry the judgment or decree of
the appellate court into execution; and the same shall be carried into execution by proper
proceedings, by such district court, according to the command of the appellate court
made therein."

Additionally, K.S.A. 60-2106(c) provides that an appellate court's "mandate and
opinion, without further order of the judge, shall thereupon be a part of the judgment of
the court if it is determinative of the action, or shall be controlling in the conduct of any
further proceedings necessary in the district court."

"Under the plain language of these statutes, a district court is required to apply the
mandate without exception. The Collier court made this point emphatically, stating: 'It is
axiomatic that on remand for further proceedings after a decision by an appellate court,
the trial court must proceed in accordance with the mandate and the law of the case as
established on appeal.' [Citations omitted.]" Kleypas II, 305 Kan. at 297.

Preservation

Before turning to the merits of Cheeks' argument, we must first address the State's
preservation challenge. The State contends Cheeks did not preserve this issue for appeal
by raising it below. In response, Cheeks highlights the following argument he made to the
district court:

"My argument on point number one, therefore, is that, at some point, the
Supreme Court in 2013 told this District Court to consider the motion for DNA testing
for my client. That hasn't been done yet. I'm asking the Court to still hear that motion

11
 because of the Supreme Court's ruling back then and the LaPointe decision did not state
that we are specifically stating that this is retroactive and applies to Cheeks I. That's point
number one."

While this statement does not expressly reference the mandate rule by name,
Cheeks' argument certainly describes the operation and one possible application of the
mandate rule to this case. Moreover, we have acknowledged that the mandate rule and
law of the case doctrine are conceptually related. Collier, 263 Kan. at 636 (explaining
similarities between "mandate rule" and "law of the case doctrine"). There is no question
Cheeks preserved the law of the case issue for appeal. Together, Cheeks' argument,
coupled with his preservation of the law of the case doctrine, is sufficient to preserve the
issue for this court's review.

Application of the Mandate Rule Following an Intervening Change in Law

Here, Cheeks argues the mandate rule compelled the district court to disregard
LaPointe and apply the mandates of his prior appeals. As discussed above, when viewed
in isolation, the mandates of Cheeks I and Cheeks II established that the punishment
Cheeks received for second-degree murder placed him within the class of individuals
eligible to petition the court for postconviction DNA testing and such relief should be
granted if he satisfies the remaining statutory requirements for testing.

Of course, these mandates fail to account for the intervening decision and holding
in LaPointe. Even so, Cheeks' argument is not devoid of merit, notwithstanding the
intervening change in law. Cheeks relies extensively on the pronouncement in Kleypas II
that "Kansas cases have not recognized the power of a district court to unilaterally depart
from the mandate, even when a change in the law has occurred." Kleypas II, 305 Kan. at
297. More recently, we reiterated a similar principle in Building Erection Svcs. Co. v.
Walton Construction Co., 312 Kan. 432, Syl. ¶ 1, 475 P.3d 1231 (2020), explaining that

12
"[w]hile different panels of the Court of Appeals hearing successive appeals in the same
case may, in exceptional circumstances, depart from the law of the case, under Kansas
law no exceptional circumstances permit a lower court to circumvent the mandate of a
higher court."

In light of these pronouncements, we assume without deciding that the district
court erred and violated the letter and spirit of the prior appellate mandates by concluding
that Cheeks did not fall within the class of individuals eligible to petition for the testing
contemplated in K.S.A. 21-2512, notwithstanding the intervening decision in LaPointe.
See Kleypas II, 305 Kan. at 297 ("given the posture of the mandate in this case, if the
district court failed to follow our mandate in Kleypas I, it erred"). Assuming such error,
we proceed to the reversibility analysis.

In Kleypas II, the defendant argued the district court committed reversible error by
giving a jury instruction that violated the mandate of Kleypas I. Indeed, the instruction
did violate the mandate of Kleypas I. However, in an intervening decision, Kansas v.
Marsh, 548 U.S. 163, 173, 126 S. Ct. 2516, 165 L. Ed. 2d 429 (2006), the United States
Supreme Court abrogated the holding of Kleypas I. Kleypas II, 305 Kan. at 293-94. In
other words, the district court's instruction conflicted with the mandate in Kleypas I but
was legally correct under the controlling precedent established by the intervening
decision in Marsh. This court held the district court's deviation from the mandate rule
constituted error in a technical sense and assumed, without deciding, that the
constitutional harmless error standard applied to the reversibility inquiry. See Kleypas II,
305 Kan. at 300. Even so, Kleypas II, relying on the concept of futility, held that the error
was not reversible. More specifically, there was no reasonable possibility that the district
court's deviation from the mandate in Kleypas I affected the outcome of the trial because,
had this court reversed for a new trial, the holding in Marsh obligated the district court to
give the same, legally correct instruction to the jury at the new trial. 305 Kan. at 300.

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 Kleypas II highlights the dilemma a district court faces when an intervening
change in law undermines a previous mandate of the appellate court: A district court
must either comply with the mandate and risk reversal for failing to adhere to controlling
precedent, or comply with the intervening precedent and risk reversal for deviating from
the mandate rule. Kleypas II clarifies that notions of futility and judicial economy favor
the latter approach. "In that circumstance, courts usually view reversibility in light of the
futility of remanding a case following a trial court's failure to follow a mandate
inconsistent with controlling precedent." Kleypas II, 305 Kan. at 298.

"'[I]t seems quite obvious . . . the judgment of the trial court will be affirmed
notwithstanding that court's departure from the appellate court's mandate on a former
appeal, since it would be futile for the appellate court to reverse the trial court because of
its departure from the appellate court's ruling on a former appeal and at the same time to
direct the trial court to render the same judgment again after the appellate court has itself
corrected its error.' Annot., 87 A.L.R.2d 271 § 10." 305 Kan. at 298.

Applying this principle to the case at hand, we hold that even assuming the district
court's decision to embrace LaPointe over the prior mandates of Cheeks I and Cheeks II
could be characterized as error (a characterization that hardly acknowledges the
complexity of the circumstances and the predicament of the district court), the remedy
would require us to remand the case to the district court for another proceeding. But in
this calculus, we necessarily have to consider that the LaPointe decision settled the
question regarding Cheeks' right to petition for DNA testing. Like the legally correct jury
instruction in Kleypas II, we hold that the district court's deviation from the mandates of
Cheeks I and Cheeks II was not reversible error because a district court would be
obligated to apply controlling precedent—in this case, LaPointe—on remand.

For these reasons, we affirm the district court's denial of Cheeks' motion for
postconviction DNA testing.

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 ***

LUCKERT, C.J., dissenting: The majority overreads the extent to which State v.
LaPointe, 309 Kan. 299, 434 P.3d 850 (2019), overrules State v. Cheeks, 298 Kan. 1, 310
P.3d 346 (2013) (Cheeks I). This is understandable, as the majority in LaPointe alternates
between language that suggests it completely overrules Cheeks I and language more
limited in scope. Compare LaPointe, 309 Kan. at 301 ("[W]e overrule [Cheeks I], which
expanded postconviction DNA testing.") with 309 Kan. at 318 ("We overrule Cheeks I to
the extent it held the sentence imposed determines whether an offender is similarly
situated to a person to whom postconviction DNA testing is statutorily available."
[Emphasis added.]) and 309 Kan. at 319 ("We overrule Cheeks I as explained."
[Emphasis added.]) LaPointe's concurring opinion predicted the confusion that would
result from these varying statements, and that confusion comes home to roost in today's
majority opinion.

Seeking to stave off this result, I joined Justice Beier's concurring opinion in
LaPointe, 309 Kan. at 320. She pointed out that it was unnecessary to overrule Cheeks I,
as the majority purported to do, because, "Under an Equal Protection analysis, LaPointe
was not similarly situated to defendants in first-degree murder and rape cases for which
legislators wrote the DNA testing statute, and its provisions should not be extended to
him." LaPointe, 309 Kan. at 320 (Beier, J., concurring). The majority here fails to heed
this call for a restrained reading of the LaPointe majority's holding and accordingly errs
in concluding LaPointe overruled Cheeks I wholesale, rendering the Cheeks I decision
"clearly erroneous." Slip op. at 10; see slip op. at 3; State v. Kleypas, 305 Kan. 224, 245,
382 P.3d 373 (2016) (Kleypas II) (recognizing exception to law of case doctrine if "the
prior decision was clearly erroneous and would work a manifest injustice").

I suggest LaPointe overrules Cheeks I only to the extent that Cheeks I broadly
suggests any indeterminate sentence of 15 years to life triggers applicability for

15
postconviction DNA testing under K.S.A. 21-2512. The Cheeks I majority concluded that
Jerome Cheeks, who was sentenced under pre-KSGA indeterminate sentencing
provisions to the maximum sentence of 15 years to life for second-degree murder, was
similarly situated to individuals sentenced pre-KSGA for first-degree murder. Both those
convicted of first- and second-degree murder faced a minimum of 15 years without
potential for good time credit because of legislative classifications that fixed the sentence
based solely on the crime of conviction. Given the legislative classification, this court
found defendants convicted under either statute to be similarly situated. Cheeks I, 298
Kan. at 7.

From an equal protection standpoint, that narrow pre-KSGA application of
comparability survives LaPointe. There, the defendant's criminal history—rather than a
legislative act preordaining the length of sentence—caused the defendant to serve a
lengthy sentence comparable to that of first-degree murder. And under that narrow—and
fair—reading of LaPointe's holding, it did not hold that Cheeks I was clearly erroneous.

In summary, I respectfully dissent because the narrow holding of Cheeks I
survives LaPointe and Cheeks I was not clearly erroneous. As applied to Cheeks himself,
Cheeks I remains valid, and Cheeks thus remains eligible for DNA testing if he satisfied
the remaining statutory requirements.

WILSON, J., joins the foregoing dissent.

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