Frank E. Minor, Sr., Appellant, v. State of Kansas, Appellee

Kansas Supreme Court1967-06-10No. No. 44,640

199 Kan. 189428 P.2d 760

Summary · law.co

Holding. The court affirmed the district court's denial of Minor's postconviction motion, holding that a proceeding under the relevant statute cannot be used as a substitute for direct appeal and that Minor, having already exercised his right to direct appeal, was not entitled to raise trial errors in a postconviction proceeding without exceptional circumstances.

Frank Minor appealed the dismissal of his motion for postconviction relief filed under Kansas law. His original conviction had already been affirmed on direct appeal by the court, and he now sought to raise three trial-related issues, including claims about accomplice testimony, cross-examination regarding his prior criminal record, and character evidence. The trial court dismissed the motion without a hearing, reasoning that it could not serve as a substitute for a second appeal.

The appellate court upheld the dismissal. The court explained that trial errors must be corrected through direct appeal, and a postconviction proceeding under this statute cannot be used as a second appeal opportunity. Because Minor had already had a full direct appeal where he could have raised these issues, he was not permitted to raise them again in postconviction proceedings. The court noted that trial errors affecting constitutional rights may only be raised in a postconviction proceeding for the first time if exceptional circumstances explain the failure to raise them on the original direct appeal. Minor's situation presented no such circumstances.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether postconviction proceedings can serve as a substitute for direct appeal
Timing and availability of raising trial errors in postconviction motions
Whether constitutional rights claims can revive trial errors already decided on direct appeal

Procedural posture

Minor appealed the district court's summary denial of his postconviction relief motion, which challenged a conviction previously affirmed on direct appeal.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

The opinion of the court was delivered by

O’Connor, J.:

This is an appeal from an order of the Reno county district court denying a motion filed by the petitioner, Frank E. Minor, Sr., pursuant to the provisions of K. S. A. 60-1507.

The judgment and sentence, which petitioner challenges in the instant case, was affirmed on direct appeal by this court in State v. Minor, 195 Kan. 539, 407 P. 2d 242. In his present pro se motion, petitioner alleges several trial errors as grounds for relief. The district court summarily denied the motion, without an evidentiary hearing, on the basis that such a motion could not be used as a substitute for a second appeal.

Petitioner, with the aid of the same court-appointed attorney who represented him at his preliminary hearing, trial, and on direct appeal, raises three points, namely, (1) the trial court erred in allowing the petitioner to be convicted upon the testimony of an accomplice, (2) the asking of a question concerning the petitioner’s prior criminal record, to which the county attorney knew the defense would object, was an indirect comment on the petitioner’s silence as to his past, and in effect, forced petitioner to incriminate himself, in violation of the Federal Constitution, and (3) the asking of an objectionable question concerning the petitioner’s character was so prejudicial as to deny him due process of law under the Federal Constitution.

Rule No. 121 (c) (4) (194 Kan. xxvn) specifically prohibits the use of a 60-1507 proceeding as a substitute for direct appeal involving trial errors, or as a substitute for a second appeal. The rule requires that trial errors be corrected on direct appeal; but in the event no appeal is taken, trial errors affecting constitutional rights may be raised in this type proceeding only if there are exceptional circumstances excusing the failure to appeal.

Petitioner’s three points each relate to trial errors which could have been raised in his former direct appeal. In fact, the second and third points concern one of the specifications of error decided adversely to the petitioner in the prior appeal. The only difference is that he now claims the alleged trial error — cross-examination concerning his prior criminal record — affected his constitutional rights. Petitioner was accorded the right to raise any and all trial errors in his direct appeal. Inasmuch as he has already exercised that right, at which time all alleged trial errors were to be presented, he has not brought himself within that portion of Rule No. 121 (c) (4) which permits one in custody to raise for the first time in a 60-1507 proceeding trial errors affecting constitutional rights. The generous use now attempted of our postconviction statute as a substitute for a second appeal is forbidden. A similar situation arose in Miles v. State, 195 Kan. 516, 407 P. 2d 507, wherein we said:

“In this case plaintiff, through his own counsel, appealed from his conviction and raised such points as he considered had merit. They were answered adversely to him. In the matter presently before us plaintiff is not only attempting to raise trial errors which could have been, or were raised in his former direct appeal, but he also is attempting to convert this proceeding into a substitute for a second appeal. We have no question here of his right to raise trial errors which could have been raised upon appeal provided there were exceptional circumstances excusing the failure to appeal in the first place — for he did appeal.” (p. 518.)

Also, see Carter v. State, 199 Kan. 290, 428 P. 2d 758; Brown v. State, 198 Kan. 527, 426 P. 2d 49; and Hanes v. State, 196 Kan. 404, 411 P. 2d 643.

What has been stated also precludes our considering petitioner’s first point. In addition, the point was not mentioned in petitioner’s motion or presented to the district court. Under such circumstances, we are in no position to consider the question. This court will not for the first time consider a matter on appeal which has not been presented to the trial court. (Tate v. State, 196 Kan. 435, 411 P. 2d 661, and cases therein cited.)

The district court properly denied the petitioner’s motion, and the judgment is affirmed.