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NOT DESIGNATED FOR PUBLICATION

No. 123,331

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,

Appellee,

v.

DALE M.L. DENNEY,

Appellant.

MEMORANDUM OPINION

Appeal from Sedgwick District Court; STEPHEN J. TERNES, judge. Opinion filed November 5, 

2021. Reversed and remanded with directions.

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.

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.
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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 App. 2021) (unpublished opinion).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 "RFLPTechniques" 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
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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 
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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 provide a reasonable likelih . ood of more 

accurate and probative results.

. . . .

"(e) The court may at any time appoint counsel for an indigent applicant under 

this section." (Emphases added.)

While this appeal was pending, the Kansas Supreme Court held that the language 

of K.S.A. 2020 Supp. 21-2512 provides that a request for DNA testing may be brought

"at any time" even when an appeal is pending. State v. Thurber, 313 Kan. 1002, 1009, 

492 P.3d 1185 (2021). Although our Supreme Court reiterated the general rule that 

district courts lose jurisdiction once an appeal is docketed, it concluded in Thurber that 

the specific language of K.S.A. 2020 Supp. 21-2512 "grants continuing jurisdiction to 

'the court that entered the judgment' to consider a petition for DNA testing 'at any time'

following conviction and to appoint counsel 'at any time,' regardless of other ongoing 

proceedings." 313 Kan. at 1009. As a result, a defendant need not wait for resolution of a 

pending appeal to make a postconviction request for DNA testing.
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We recognize that the district court did not have the benefit of the Kansas 

Supreme Court's holding in Thurber when it denied Denny's motions. Even so, both this 

court and the district court are duty-bound to follow the precedent of our Supreme Court. 

State v. Rodriguez, 305 Kan. 1139, 1144, 390 P.3d 903 (2017). As a result, we must 

apply the holding of Thurber in this case and conclude that the district court has subject 

matter jurisdiction to consider Denney's request for additional DNA testing under K.S.A. 

2020 Supp. 21-2512 on the merits even though he had an appeal pending in this court

when his motions were filed.

Nevertheless, the State asks us to consider the merits of Denney's request for DNA 

testing and to find that the district court was right for the wrong reason. Although we 

recognize that the biological material was subjected to previous DNA testing in 2002 and 

that the results were not favorable to Denney, we are not in a position—based on the 

record before us—to rule on the merits of Denny's current request for testing. In 

particular, we are unable to determine from the record whether Denney is correct in 

asserting that there are new DNA testing techniques that can provide "more accurate and 

probative results" than those obtained nearly 20 years ago. Thus, we follow the Kansas 

Supreme Court's lead in Thurber and remand Denney's request for additional DNA 

testing to the district court for ruling on the merits. 

Reversed and remanded with directions.