PER CURIAM.
Appeal from Miami District Court; Steven C. Montgomery, Judge.
Gerald E. Wells, of Lawrence, for appellant. Jason A. Oropeza, assistant county attorney, David L. Miller, county attorney, and Derek Schmidt, attorney general, for appellee.
Before McANANY, P.J., BUSER and STANDRIDGE, JJ.
MEMORANDUM OPINION
PER CURIAM.
Miles Patrick Hinkle escaped from the Osawatomie Correctional Facility. In September 2007, a jury convicted him of aggravated escape from custody, and the court sentenced him to 53 months' imprisonment. Hinkle appealed. See State v. Hinkle, No. 100,592, 2009 WL 2501111 (Kan.App.2009) (unpublished opinion), rev. denied 290 Kan. 1099 (2010). He argued that the district court erred in its jury instructions and in the admission of evidence at trial. He also argued that his sentence was illegal and that cumulative error required reversal of his conviction. This court rejected Hinkle's arguments and affirmed his conviction and sentence. Our Supreme Court denied Hinkle's petition for review on July 1, 2010.
On September 23, 2010, Hinkle moved for relief pursuant to K.S.A. 60–1507, contending: “This man has been on disability all of his life[.] No trial could have been fair that excluded his state of mind, etc.” For factual support, Hinkle alleged: “I was placed on SSI disability in 1974 then transferred to social security disability in 1986[.] My ‘disability began’ date is in 1974 6–1974[ .]” He noted in an attached letter: “I'm not bringing my atty Mary Stephenson into this motion because I don't believe her conduct was ‘ineffective assistance’ of counsel.”
The State responded, pointing out this court's finding on Hinkle's direct appeal that his state of mind was not at issue in the case. Citing Bellamy v. State, 285 Kan. 346, 353, 172 P.3d 10 (2007), the State noted that K.S.A. 60–1507 provides relief when (1) a judgment was rendered without jurisdiction, (2) the sentence imposed was illegal or is otherwise open to collateral attack, or (3) the judgment is open to collateral attack due to a denial or infringement of the prisoner's constitutional rights. Arguing that none of these conditions existed, the State asked the 60–1507 court to deny relief.
After oral arguments on the motion at a preliminary hearing, the district court denied relief and this appeal followed.
Because the district court denied relief based solely upon legal arguments at the nonevidentiary hearing and the court's review of the files and records of the case, we are in as good a position as the district court to consider the merits of Hinkle's motion. Thus, our review is de novo. See Barr v. State, 287 Kan. 190, 196, 196 P.3d 357 (2008).
Hinkle argues that the district court hearing his motion should have ordered a mental evaluation. He contends that his mental capacity was an issue that warranted the court ordering a mental evaluation and permitting the parties to explore the issue at an evidentiary hearing on his motion. He refers to his mental capacity to commit the crime, his capacity to stand trial, and his capacity to be sentenced for his crime. But Hinkle fails to explain how a mental evaluation 3 or more years after all these events occurred is probative of his mental state at the time of the crime, at the time of his trial, or at the time he was sentenced.
More importantly, after Hinkle's trial his counsel moved for new trial based on information obtained after the trial regarding Hinkle's mental capacity. Before sentencing Hinkle moved for a dispositional and durational departure based on the argument that, because of mental impairment, he lacked the capacity to exercise judgment at the time he committed the crime. Finally, Hinkle moved for a presentencing mental examination. The State did not oppose the motion and the trial court granted it, committing Hinkle to Larned State Security Hospital for mental evaluation.
After receiving and reviewing the resulting report, the trial court denied the motion for a new trial based in part on the finding that Hinkle had not demonstrated he was incompetent to stand trial, even considering the test results. The court also heard arguments on the motion for a dispositional and durational departure but denied that motion as well. Neither of these rulings nor any other issues concerning Hinkle's mental capacity was raised in his direct appeal.
Supreme Court Rule 183(c) states that “a proceeding under K.S.A. 60–1507 cannot ordinarily be used as a substitute for direct appeal involving mere trial errors or as a substitute for a second appeal.” But “trial errors affecting constitutional rights may be raised even though the error could have been raised on appeal, provided there were exceptional circumstances excusing the failure to appeal.” (Emphasis added.) (2011 Kan. Ct. R. Annot. 260). Our Supreme Court has defined exceptional circumstances as “ ‘unusual events or intervening changes in the law.’ “ Rowland v. State, 289 Kan. 1076, 1087, 219 P.3d 1212 (2009). The Rowland court noted that “[i]neffective assistance of counsel can qualify as an exceptional circumstance,” 299 Kan. at 1087, but Hinkle specifically disavowed any claim of ineffective assistance of counsel in these proceedings.
Hinkle does not allege any exceptional circumstances or other reason for his failure to raise in his direct appeal issues concerning his mental capacity and has abandoned any claim that an exception to the Rule applies. See Superior Boiler Works, Inc. v. Kimball 292 Kan. 885, 889, 259 P.3d 676 (2011) (an issue not briefed by the appellant is deemed waived and abandoned); Alford v.. State, 42 Kan.App.2d 392, 399–400, 212 P.3d 250 (2009), rev. denied 290 Kan. 1092 (2010) (disposing of claim under K.S.A. 60–1507 in part because the movant did not allege any exceptional circumstances to justify his failure to raise the issue on direct appeal).
Hinkle fails to show that the district court erred in denying relief on his motion.
Affirmed.