DNA testing available if in custody when petition filed

Paul M. Dent won in State v. Cheeks, No. 111,279 (Kan. June 19, 2015), obtaining an order for further proceedings under K.S.A. 21-2512, related to DNA testing. The only question was whether Mr. Cheeks was "in custody" for purposes of the statute. He had been in prison when he filed his petition pursuant to K.S.A. 21-2512, but had been released on parole during the proceedings. The KSC held that if a person is in prison when he or she files such a petition, he has met the "in custody" requirement of the statute:

The statute does not require that an individual be in state custody when a petition is heard. Rather, the statute makes the custody status of the convicted person of interest only at the time the petition is filed: A "person in state custody . . . may petition the court that entered the judgment for forensic DNA testing." (Emphasis added.) K.S.A. 21-2512. The legislature's use of the present tense in that sentence tells all.

Because there is no dispute that Cheeks remained in prison at the time his K.S.A. 21-2512 petition for DNA testing was filed, he was "in state custody" at the relevant time. This case must be remanded again to the district court so that the merits of the petition may be considered.