Makthepharak v. State

                           NOT DESIGNATED FOR PUBLICATION

                                              No. 121,285

               IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                   SASHADA B. MAKTHEPHARAK,
                                           Appellant,

                                                    v.

                                          STATE OF KANSAS,
                                              Appellee.


                                    MEMORANDUM OPINION

        Appeal from Sedgwick District Court; SETH L. RUNDLE, judge. Opinion filed October 9, 2020.
Affirmed.


        Wendie C. Miller, of Kenneth B. Miller, Attorney At Law, LLC, of Wichita, for appellant.


        Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.


Before ARNOLD-BURGER, C.J., HILL and ATCHESON, JJ.


        PER CURIAM: Sashada B. Makthepharak filed a habeas corpus motion in February
2019 attacking his convictions for felony murder and other serious felonies in a jury trial
in Sedgwick County District Court more than 16 years after the Kansas Supreme Court
affirmed those verdicts and the resulting sentences on direct appeal. See State v.
Makthepharak, 

276 Kan. 563

, 

78 P.3d 412

(2003). The district court summarily denied
Makthepharak's motion as untimely under K.S.A. 60-1507(f)(1). Makthepharak has
appealed. We find no error and affirm.



                                                     1
       Following the criminal episode, Makthepharak was referred from juvenile court to
district court. The case arose from a home invasion with gang overtones as a motive. A
resident of the home was fatally shot. The circumstances of that incident and the trial are
not directly relevant to our handling of this appeal. They are detailed in the court's
disposition of the direct appeal.


       A motion collaterally attacking criminal convictions under K.S.A. 2019 Supp. 60-
1507 must be filed within one year after the direct appeal becomes final. K.S.A. 2019
Supp. 60-1507(f)(1). The district court may excuse compliance with the one-year
deadline to avert "a manifest injustice." K.S.A. 2019 Supp. 60-1507(f)(2). As outlined in
the statute, the party seeking relief from the time bar must show either some form of good
cause for the late filing or actual innocence. K.S.A. 2019 Supp. 60-1507(f)(2)(A). We
review the summary denial of a 60-1507 motion without deference to the district court's
decision, since the ruling rests on the content of the motion itself and an examination of
the file in the underlying criminal case. Bellamy v. State, 

285 Kan. 346

, 354, 

172 P.3d 10

(2007).


       On appeal, Makthepharak points to nothing in the record explaining why he
waited 16 years to file his 60-1507 motion. Rather, he argues that he has raised colorable
claims that he received less than a fair trial, so that provides a good reason for the delay.
The argument, however, is circular: The ostensible merit of the substantive claims cannot
itself be the reason those claims weren't raised within the one-year limitation—or here
were untimely by a decade and a half.


       In his motion and on appeal, Makthepharak avers he is innocent and alleges his
trial lawyer failed to call witnesses who would have exonerated him and failed to
interview his codefendants. But Makthepharak has not identified those witnesses, let
alone established by affidavit, declaration, or in some other evidentiary fashion, what
they would have testified to. Likewise, he has not explained just how his codefendants

                                              2
might establish his innocence. In his motion, Makthepharak also alludes to "tests" that
would show that he is innocent. But he neither identifies particular tests nor explains how
the results of those tests would tend to exonerate him. The sort of conclusory and
unsupported representations Makthepharak has offered do not establish a bona fide claim
of actual innocence lifting the time bar in K.S.A. 2019 Supp. 60-1507(f)(1). See
Beauclair v. State, 

308 Kan. 284

, 302, 

419 P.3d 1180

(2018).


       The district court correctly found that Makthepharak failed to demonstrate any
valid legal basis for considering his 60-1507 motion well outside the one-year time limit
and, in turn, properly denied the motion for that reason.


       Affirmed.




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