NOT DESIGNATED FOR PUBLICATION
No. 123,212
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
RAFAEL L. FLORES,
Appellant,
v.
STATE OF KANSAS,
Appellee.
MEMORANDUM OPINION
Appeal from Ford District Court; LAURA H. LEWIS, judge. Opinion filed September 17, 2021.
Affirmed in part, sentence vacated in part, and case remanded with directions.
Peter J. Antosh, of Garcia & Antosh, LLP, of Dodge City, for appellant.
Natalie Chalmers, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.
Before GREEN, P.J., ISHERWOOD, J., and MCANANY, S.J.
PER CURIAM: In October 1996, 14-year-old Rafael L. Flores fired several shots
into a crowd, killing one person and wounding another. He pled no contest to first-degree
felony murder and attempted voluntary manslaughter in July 1997. For the felony murder
conviction, the district court sentenced him, as an adult, to a mandatory life sentence with
parole eligibility after 15 years. For the attempted voluntary manslaughter charge, the
district court sentenced him to the aggravated 34-month jail sentence, to run consecutive
to his life sentence. The district court also imposed lifetime postrelease supervision.
Flores appealed and the Kansas Supreme Court dismissed for lack of jurisdiction. Over
20 years later, Flores now challenges the legality of his convictions by filing a K.S.A. 60-
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1507 motion. The district court summarily denied Flores' motion. Flores timely appeals.
Because Flores fails to successfully argue an extension of the one-year statute of
limitations will prevent manifest injustice, the summary denial of his motion is affirmed.
And because this court may raise an illegal sentence issue sua sponte, we vacate the
lifetime postrelease supervision provision of Flores' sentence.
FACTUAL AND PROCEDURAL BACKGROUND
In July 1997, Flores pled no contest to first-degree felony murder, an off-grid
person felony, and attempted voluntary manslaughter for crimes he committed as a
juvenile in October 1996. In October 1997, the district court sentenced Flores as an adult
to a life sentence with parole eligibility after 15 years with a consecutive 34-month prison
sentence. The district court also ordered lifetime postrelease supervision.
Flores has filed many appeals in conjunction with his case: State v. Flores, 268
Kan. 657, 999 P.2d 919 (2000) (challenged sentence and court dismissed for lack of
jurisdiction to review a "presumptive sentence"); State v. Flores, 283 Kan. 380, 153 P.3d
506 (2007) (motion to correct illegal sentence); State v. Flores, 292 Kan. 257, 252 P.3d
570 (2011) (motion for withdrawal of plea); and Flores v. State, No. 120,711 (order dated
March 28, 2019) (unpublished) (dismissal of writ of habeas corpus under K.S.A. 60-
1501).
Flores filed a K.S.A. 60-1507 motion in December 2019, 19 years after his case
became final. Flores' K.S.A. 60-1507 motion, liberally construed, raised two issues: (1)
in State v. Ross, 295 Kan. 1126, 289 P.3d 76 (2012), the Kansas Supreme Court
overruled the mechanism which allowed for the dismissal of Flores' direct appeal,
rendering that dismissal erroneous; and (2) Flores' mandatory life sentence, imposed
when he was a juvenile, is unconstitutional. In trying to provide an adequate legal
foundation for his claims, Flores directed the court to various decisions from both the
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United States and Kansas Supreme Courts, the statutory right to appeal under Kansas
law, and the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States
Constitution. In his argument to extend the one-year statute of limitations, Flores argued
that the relevant legal authority was unavailable to him at the time of his direct appeal
and that extension of the time limit would prevent a manifest injustice.
The district court summarily denied Flores' motion and outlined its findings in a
written order. It first found that manifest injustice would not occur if it declined to extend
the one-year statute of limitations for Flores to bring his motion. The court observed that
Flores had appealed to the Kansas Supreme Court on three separate occasions. Therefore,
he had ample opportunity to raise all issues of which he was aware or should have been
aware.
The court also touched upon the merits of Flores' issues. It found that the cases he
cited as relevant to his claims were so factually distinguishable from his case that they
did not control its resolution. The court specifically stated that Ross was inapplicable
because it analyzed whether an illegal sentence arose when a sentencing court failed to
impose a defined duration of postrelease supervision, a matter not at issue in Flores' case.
The judge determined she was unable to sufficiently address Flores' broad references to
his Fifth, Sixth, Eighth, and Fourteenth Amendment rights under the United States
Constitution because he failed to specify a particular point or set forth any evidence for
the court to review.
Flores timely appeals.
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ANALYSIS
Summary Denial of Flores' K.S.A. 60-1507 Motion was Appropriate.
On appeal, Flores argues that the district court erred in concluding that: (1) the
cited caselaw was inapplicable to his case; (2) his motion was time-barred; (3) Flores'
arguments were precluded by waiver or res judicata; and (4) his arguments lacked
sufficient specificity. The State argues Flores' motion is both time-barred and successive.
It forgoes analysis on those assertions, however, and substantively, stands solely on its
assertion that Flores' motion fails on the merits.
Standard of Review and Basic Legal Principles
To be entitled to relief under K.S.A. 60-1507, the movant must establish by a
preponderance of the evidence either: (1) "the judgment was rendered without
jurisdiction"; (2) "the sentence imposed was not authorized by law or is otherwise open to
collateral attack"; or (3) "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) (2021 Kan. S. Ct. R.
239).
A district court has three options when handling a K.S.A. 60-1507 motion:
"'(1) The court may determine that the motion, files, and case records
conclusively show the prisoner is entitled to no relief and deny the motion summarily; (2)
the court may determine from the motion, files, and records that a potentially substantial
issue exists, in which case a preliminary hearing may be held. If the court then
determines there is no substantial issue, the court may deny the motion; or (3) the court
may determine from the motion, files, records, or preliminary hearing that a substantial
issue is presented requiring a full hearing.' [Citations omitted.]" White v. State, 308 Kan.
491, 504, 421 P.3d 718 (2018).
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The standard of review turns on which of these options a district court used. White,
308 Kan. at 504. When the district court summarily denies a K.S.A. 60-1507 motion, an
appellate court conducts de novo review to determine whether the motion, files, and
records of the case conclusively establish that the movant is not entitled to relief.
Beauclair v. State, 308 Kan. 284, 293, 419 P.3d 1180 (2018).
To avoid summary denial of his or her motion, a movant bears the burden of
establishing that an evidentiary hearing is warranted. 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 that basis must be evident from the
record. If a movant succeeds in making such a showing, the court must hold a hearing
unless the motion is a "'second'" or "'successive'" motion seeking similar relief. Sola-
Morales v. State, 300 Kan. 875, 881, 335 P.3d 1162 (2014) (quoting Holmes v. State, 292
Kan. 271, 274, 252 P.3d 573 [2011]); see also Littlejohn v. State, 310 Kan. 439, Syl., 447
P.3d 375 (2019) ("An inmate filing a second or successive motion under K.S.A. 60-1507
must show exceptional circumstances to avoid having the motion dismissed as an abuse
of remedy.").
In order for a K.S.A. 60-1507 motion to be considered timely filed, the movant
must file the motion within one year of either (1) "the 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). The district court may extend the one-year
time limitation for bringing an action under K.S.A. 2020 Supp. 60-1507(f)(1) only to
prevent manifest injustice. K.S.A. 2020 Supp. 60-1507(f)(2). A movant who files a
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).
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Courts are to dismiss a motion as untimely filed if, after inspection of the motion,
files, and records of the case, the court determines that the time limitations have been
exceeded and that dismissing the motion would not result in manifest injustice. K.S.A.
2020 Supp. 60-1507(f)(3).
When a motion to vacate, set aside, or correct a sentence presents a substantial
question of law or triable issue of fact, it triggers the second option, and the court must
appoint counsel to represent an indigent movant. Rule 183(i). Pro se pleadings are
liberally construed. State v. Andrews, 228 Kan. 368, 370, 614 P.2d 447 (1980). But a pro
se movant still bears the burden to allege facts sufficient to warrant a hearing and "mere
conclusions of the defendant or movant are not sufficient to raise a substantial issue of
fact when no factual basis is alleged or appears from the record." State v. Jackson, 255
Kan. 455, 463, 874 P.2d 1138 (1994).
Preservation
On appeal, Flores does not argue that Ross was an intervening change in the law to
warrant extending the one-year time limit to prevent manifest injustice. Issues not briefed
by the appellant or merely raised incidentally in a brief and not argued are considered
waived and abandoned. See Friedman v. Kansas State Bd. of Healing Arts, 296 Kan. 636,
645, 294 P.3d 287 (2013). And "failure to support an argument with pertinent authority or
to show why the argument is sound despite a lack of supporting authority or in the face of
contrary authority is akin to failing to brief the issue." State v. Tague, 296 Kan. 993,
1001, 298 P.3d 273 (2013). Although pro se petitions and briefs are liberally construed,
pro se litigants "cannot be given either an advantage or a disadvantage solely because of
proceeding pro se." Mangiaracina v. Gutierrez, 11 Kan. App. 2d 594, 596, 730 P.2d 1109
(1986).
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Flores' K.S.A. 60-1507 Motion
Manifest Injustice
Although the district court may extend the one-year time limit for a defendant to
file a K.S.A. 60-1507 motion, it may only do so upon a sufficient showing that manifest
injustice will occur without an extension. K.S.A. 2020 Supp. 60-1507(f)(2). "In the
context of a habeas corpus proceeding, 'manifest injustice' means '"obviously unfair"' or
'"shocking to the conscience.'" [Citations omitted.]" Thuko v. State, 310 Kan. 74, 81, 444
P.3d 927 (2019). In deciding whether to extend the time limit to prevent manifest
injustice, the district court should focus on why the movant failed to file the motion
within the one-year time limitation. See Steele v. State, No. 122,754, 2021 WL 2386026,
at *3 (Kan. App. 2021) (unpublished opinion); see also K.S.A. 2020 Supp. 60-
1507(f)(2)(A). Kansas courts will affirm a summary denial on these grounds if the
movant fails "to cite any facts supporting his bald assertion of manifest injustice." State v.
Gilbert, 299 Kan. 797, 803, 326 P.3d 1060 (2014) (citing State v. Holt, 298 Kan. 469,
481, 313 P.3d 826 [2013]).
Application
In its summary denial, the district court found that manifest injustice would not
result if it declined to extend the one-year time limit. The court referenced Flores'
previous appeals to the Kansas Supreme Court, and stated Flores had a chance to raise all
issues he knew or should have known about when he pursued those appeals. But K.S.A.
2020 Supp. 60-1507(f)(2)(A) limits the court's inquiry to only determining why the
movant failed to file within the one-year time limit. That said, even liberally construed,
Flores' petition did not establish that he was entitled to the extension.
In his motion, Flores argued that he missed the one-year statute of limitations
because the legal authority he relied on did not come to fruition until many years after his
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direct appeal. But the district court sentenced Flores to life with parole eligibility after 15
years. The United States Supreme Court and Kansas appellate court cases Flores relied on
analyze issues where the young defendants were sentenced to: (1) life without the
possibility of parole; (2) mandatory lifetime postrelease supervision for juveniles
committing sex offenses; and (3) death. See Montgomery v. Louisiana, 577 U.S. 190, 136
S. Ct. 718, 193 L. Ed. 2d 599 (2016); Miller v. Alabama, 567 U.S. 460, 132 S. Ct. 2455,
183 L. Ed. 2d 407 (2012); Graham v. Florida, 560 U.S. 48, 130 S. Ct. 2011, 176 L. Ed.
2d 825 (2010); Roper v. Simmons, 543 U.S. 551, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005);
State v. Dull, 302 Kan. 32, 351 P.3d 641 (2015); State v. Medina, 53 Kan. App. 2d 89,
384 P.3d 26 (2016). There is currently no precedent that a lifetime sentence with parole
eligibility after 15 years violates the Eighth Amendment, or at least not any which Flores'
included in his motion. As a result, Flores' reliance on the above referenced cases is
unpersuasive.
Because Flores cannot establish that the court erred in failing to find there was a
distinct possibility that manifest injustice would occur without an extension of the one-
year statute of limitations, the district court's summary denial of his motion is affirmed.
Illegal Sentence
Whether a sentence is illegal under K.S.A. 2020 Supp. 22-3504 is a question of
law over which the appellate court has unlimited review. State v. Sartin, 310 Kan. 367,
369, 446 P.3d 1068 (2019). A sentence is illegal under K.S.A. 2020 Supp. 22-3504 when:
(1) it is imposed by a court without jurisdiction; (2) it does not conform to the applicable
statutory provisions, either in character or the term of punishment; or (3) it is ambiguous
about the time and manner in which it is to be served. State v. Hambright, 310 Kan. 408,
411, 447 P.3d 972 (2019). This court may correct an illegal sentence sua sponte. State v.
Gilliland, 294 Kan. 519, 552, 276 P.3d 165 (2012); see also K.S.A. 2020 Supp. 22-3504
("The court may correct an illegal sentence at any time.").
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The district court addressed Flores' argument which cited Ross, but it found that
Ross was inapplicable because the Kansas Supreme Court "held that it was an illegal
sentence to order a defined duration of post-release supervision for an off-grid felony.
(Emphasis added.)" This misconstrues the Ross holding. Although the decision discussed
"defined" postrelease supervision terms, what the Ross court intended to clarify is that
"where a defendant is being sentenced for both off-grid and on-grid crimes, the [district]
court only has authority to impose the supervision period associated with the off-grid
crime. In other words, a court must impose life parole." Ross, 295 Kan. at 1131. That
circumstance also was not present in Flores' case. So, while Ross was not, in fact,
applicable to Flores' case, it was not for the reason cited by the district court. That does
not lead to a benefit to Flores, however. Kansas recognizes the "right for any reason
rule," which provides that when a judgment is correct for any reason shown by the
record, it should be affirmed even if the district court's reasoning is wrong. See
Bergstrom v. Noah, 266 Kan. 847, 875-76, 974 P.2d 531 (1999). The district court's
decision is affirmed.
But the district court also missed a separate point. Flores was sentenced to
mandatory life imprisonment for the off-grid crime of felony murder. In its written
journal entry of judgment, the sentencing court noted Flores would be eligible for parole
after serving 15 years and that he was also subject to lifetime postrelease supervision.
This is not accurate. See State v. Fraire, 312 Kan. 786, 481 P.3d 129 (2021); State v.
Rogers, 297 Kan. 83, 93, 298 P.3d 325 (2013).
Under K.S.A. 1996 Supp. 22-3717(b)(2), "an inmate sentenced to imprisonment
for an off-grid offense committed on or after July 1, 1993, shall be eligible for parole
after serving 15 years of confinement, without deduction of any good time credits." In
contrast, under K.S.A. 1996 Supp. 22-3717(d)(1), "Persons sentenced for crimes, other
than off-grid crimes, committed on or after July 1, 1993, will not be eligible for parole,
but will be released to a mandatory period of postrelease supervision upon completion of
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the prison portion of their sentence." (Emphasis added.) In State v. Ballard, 289 Kan.
1000, 1014, 218 P.3d 432 (2009), the Kansas Supreme Court explained the statutory
distinction between parole and postrelease supervision:
"The term 'parole' generally means 'the release of a prisoner to the community by the
Kansas parole board prior to the expiration of such prisoner's term.' Thus, 'parole' is a
term of art that is limited to off-grid crimes. . . . By contrast, the term 'postrelease
supervision' generally means 'release of a prisoner to the community after having served a
period of imprisonment or equivalent time served in a facility where credit for time
served is awarded as set forth by the court, subject to conditions imposed by the Kansas
parole board and to the secretary of correction's supervision.' This term has traditionally
been applied to only grid crimes. [Citations omitted.]"
An inmate serving an off-grid indeterminate life sentence can leave prison only
when the Kansas Parole Board grants parole. Thus, a sentencing court has no authority to
order postrelease supervision for an off-grid indeterminate life sentence. Cash, 293 Kan.
at 330-31. Because an appellate court may correct an illegal sentence at any time, we
vacate the provision requiring Flores to serve lifetime postrelease supervision and remand
with an order to correct Flores' journal entry, through a nunc pro tunc order, to reflect the
imposition of parole upon release.
Affirmed in part, sentence vacated in part, and case remanded with directions.
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