Vontress v. State

Leben, J.,

concurring: Because Damon Vontress filed his K.S.A. 60-1507 motion 4 years too late, his claim may only be heard “to prevent manifest injustice.” K.S.A. 60-1507. I agree with the majority that Vontress has not made that showing, but my rationale is somewhat different.

The majority relies on Toney v. State, 39 Kan. App. 2d 944, 187 P.3d 122, rev. denied 287 Kan. 769 (2008), which found no manifest injustice when the prisoner had not shown that “circumstances prevented him from asserting his claim before the 1-year time limitation had expired.” 39 Kan. App. 2d at 947. In my view, if Toney stands for the proposition that a prisoner must make that showing as a precondition to consideration of a K.S.A. 60-1507 motion filed outside the 1-year time limit, that is too narrow a definition for manifest injustice. If a person can show actual innocence, for example, I would not leave him or her in prison even if that person failed for unexplained reasons to meet the 1-year time limit.

In this case, Vontress has presented neither a reason for his delayed filing nor a potentially valid claim. In a recent, though unpublished opinion, a panel found a claim very similar to his to have no merit. See Washington v. State, No. 100,657, 2009 WL 3082582, at *1-5 (Kan. App. 2009), rev. denied 290 Kan. 1105 *434(2010). I therefore agree .with the majority that he has not shown manifest injustice.