State v. Denney

498 P.3d 185 (Table)

STATE of Kansas, Appellee,

v.Dale M.L. DENNEY, Appellant.

No. 123,331

Court of Appeals of Kansas.

Opinion filed November 5, 2021.

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.

MEMORANDUM OPINION

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.

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 App. 2021) (unpublished opinion).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 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 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

...