NOT DESIGNATED FOR PUBLICATION
No. 123,331
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
DALE M.L. DENNEY,
Appellant.
MEMORANDUM OPINION
Appeal from Sedgwick District Court; STEPHEN J. TERNES, judge. Opinion filed November 5,
2021. Reversed and remanded with directions.
Joshua S. Andrews, of Cami R. Baker & Associates, P.A., of Augusta, for appellant.
Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.
Before BRUNS, P.J., HURST, J., and MCANANY, S.J.
PER CURIAM: Dale M.L. Denney appeals from the district court's denial of his pro
se motions seeking DNA testing under K.S.A. 2020 Supp. 21-2512. In particular, the
district court found that it lacked jurisdiction to consider Denney's motions. On appeal,
Denney argues that the district court incorrectly found that it could not consider the
merits of his request for DNA testing while an appeal was pending in this court. Based on
the current status of Kansas law, we conclude that the district court has subject matter
jurisdiction to consider Denney's request for DNA testing on the merits. Accordingly, we
reverse the district court's decision and remand the case for further proceedings.
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FACTS
Nearly 30 years ago, a jury convicted Denney of two counts of aggravated
criminal sodomy, two counts of aggravated sexual battery, one count of aggravated
battery, and two counts of an aggravated weapons violation in two separate cases. The
district court sentenced him to 228 months in prison in one case and to a consecutive 36
years to life in the other case. Denney's convictions and sentences were affirmed by the
Kansas Supreme Court on direct appeal. State v. Denney, 258 Kan. 437, 905 P.2d 657
(1995).
Since 1995, Denney has filed numerous postconviction motions and appeals. He
has also filed original actions with the Kansas appellate courts. See State v. Denney, No.
122,105, 2021 WL 3701164, at *1 (Kan. App. 2021) (unpublished opinion). In 2002,
Denney filed a motion for DNA testing under K.S.A. 21-2512. Because of a delay in
reporting the crime, there was no biological material available to test in one of the cases,
but the district court ordered that several items be tested in the other case. Ultimately, the
district court dismissed the motion after the results proved unfavorable to Denney. The
district court's ruling was subsequently affirmed by the Kansas Supreme Court. State v.
Denney, 283 Kan. 781, 795, 156 P.3d 1275 (2007) (affirming the district court's dismissal
of the motion after finding the DNA results were unfavorable to Denney); see State v.
Denney, 278 Kan. 643, 101 P.3d 1257 (2004).
On March 17, 2020, Denney filed another pro se motion for DNA testing. See
K.S.A. 2020 Supp. 21-2512. In the motion, Denney alleged—among other things—that a
law enforcement officer may have planted his collected saliva on the anal swabs taken
from one of the victims. Specifically, Denney requests DNA testing with "RFLP-
Techniques" to identify the biological material present on the samples. About two months
later, Denney filed a related pro se "Motion for Immediate Remedy" under K.S.A. 21-
2512 in which he alleged that the district attorney committed fraud upon the court by
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informing the district court that the rectal swab contained DNA consistent with Denney's
profile.
On June 17, 2020, the district court summarily denied the motions for lack of
jurisdiction. The district court explained that Denney had docketed another appeal with
this court on November 8, 2019. As a result, the district court determined that it "is
without jurisdiction to consider motions while [that] appeal is pending." Denney then
filed a timely notice of appeal.
ANALYSIS
The sole issue presented on appeal is whether the district court erred in dismissing
Denny's request for additional DNA testing based on a finding that it lacked jurisdiction.
In particular, Denney argues that the district court erred in denying his motion for
additional DNA testing because it lacked jurisdiction. In response, the State does not
deny that the district court has jurisdiction to consider Denney's request for additional
DNA testing but argues that we should affirm the district court as right for the wrong
reason. See State v. Overman, 301 Kan. 704, 712, 348 P.3d 516 (2015) (If a district court
reaches the correct result, its decision will be upheld even though it relied on the wrong
ground or assigned erroneous reasons for its decision.).
Subject matter jurisdiction in the district court raises a question of law which we
review de novo. See State v. Sellers, 301 Kan. 540, 544, 344 P.3d 950 (2015). In
reviewing this jurisdictional issue, we must also interpret the language of K.S.A. 2020
Supp. 21-2512. Statutory interpretation likewise presents a question of law over which
appellate courts have unlimited review. State v. Alvarez, 309 Kan. 203, 205, 432 P.3d
1015 (2019). The most fundamental rule of statutory construction is that the intent of the
Legislature governs if that intent can be determined. State v. LaPointe, 309 Kan. 299,
314, 434 P.3d 850 (2019). When a statute is plain and unambiguous, we are not to
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speculate about the legislative intent behind that clear language, and we must refrain from
reading something into the statute that is not readily found in its words. State v. Ayers,
309 Kan. 162, 164, 432 P.3d 663 (2019).
K.S.A. 2020 Supp. 21-2512 provides, in relevant part:
"(a) Notwithstanding any other provision of law, a person in state custody, at any
time after conviction for murder in the first degree . . . or for rape . . . may petition the
court that entered the judgment for forensic DNA testing (deoxyribonucleic acid testing)
of any biological material that:
"(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 a DNA testing, or can be subjected to
retesting with new DNA techniques that provide a reasonable likelih . ood of more
accurate and probative results.
....
"(e) The court may at any time appoint counsel for an indigent applicant under
this section." (Emphases added.)
While this appeal was pending, the Kansas Supreme Court held that the language
of K.S.A. 2020 Supp. 21-2512 provides that a request for DNA testing may be brought
"at any time" even when an appeal is pending. State v. Thurber, 313 Kan. 1002, 1009,
492 P.3d 1185 (2021). Although our Supreme Court reiterated the general rule that
district courts lose jurisdiction once an appeal is docketed, it concluded in Thurber that
the specific language of K.S.A. 2020 Supp. 21-2512 "grants continuing jurisdiction to
'the court that entered the judgment' to consider a petition for DNA testing 'at any time'
following conviction and to appoint counsel 'at any time,' regardless of other ongoing
proceedings." 313 Kan. at 1009. As a result, a defendant need not wait for resolution of a
pending appeal to make a postconviction request for DNA testing.
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We recognize that the district court did not have the benefit of the Kansas
Supreme Court's holding in Thurber when it denied Denny's motions. Even so, both this
court and the district court are duty-bound to follow the precedent of our Supreme Court.
State v. Rodriguez, 305 Kan. 1139, 1144, 390 P.3d 903 (2017). As a result, we must
apply the holding of Thurber in this case and conclude that the district court has subject
matter jurisdiction to consider Denney's request for additional DNA testing under K.S.A.
2020 Supp. 21-2512 on the merits even though he had an appeal pending in this court
when his motions were filed.
Nevertheless, the State asks us to consider the merits of Denney's request for DNA
testing and to find that the district court was right for the wrong reason. Although we
recognize that the biological material was subjected to previous DNA testing in 2002 and
that the results were not favorable to Denney, we are not in a position—based on the
record before us—to rule on the merits of Denny's current request for testing. In
particular, we are unable to determine from the record whether Denney is correct in
asserting that there are new DNA testing techniques that can provide "more accurate and
probative results" than those obtained nearly 20 years ago. Thus, we follow the Kansas
Supreme Court's lead in Thurber and remand Denney's request for additional DNA
testing to the district court for ruling on the merits.
Reversed and remanded with directions.
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