Opinion
No. 108,591.
2015-03-6
Robert BLAUROCK, Appellant, v. STATE of Kansas, Appellee.
Appeal from Wyandotte District Court; John J. McNally, Judge.Gerald E. Wells, of Jerry Wells Attorney–at–Law, of Lawrence, and Robert D. Blaurock, appellant pro se, for appellant.Mollie R. Hill, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Wyandotte District Court; John J. McNally, Judge.
Gerald E. Wells, of Jerry Wells Attorney–at–Law, of Lawrence, and Robert D. Blaurock, appellant pro se, for appellant. Mollie R. Hill, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Before LEBEN, P.J., ARNOLD–BURGER, J., and BUKATY, S.J.
MEMORANDUM OPINION
LEBEN, J.
Robert Blaurock appeals the district court's denial of habeas corpus relief on his conviction for several sex crimes against a child. His primary argument on appeal is that the district court failed to make sufficient factual findings regarding the 41 claims of error he raised. But we have carefully reviewed the district court's oral rulings and the record, and we find no difficulty reviewing the district court's ruling to determine whether Blaurock was entitled to a new trial or other relief. Accordingly, any failure by the district court to make detailed findings on every contested fact does not require either reversal or remand for additional findings.
Blaurock also contends that the attorney appointed to represent him in the habeas proceeding provided ineffective representation. But we have carefully reviewed the record of that proceeding, and we conclude that the attorney provided adequate assistance. We therefore affirm the district court's judgment.
Factual and Procedural Background
In 2005, the State charged Blaurock with numerous crimes, including rape, aggravated kidnapping, aggravated criminal sodomy, and sexual exploitation of a child. The charges all stemmed from allegations that Blaurock sexually assaulted his girlfriend's minor daughter, C.S. The evidence against Blaurock included witness testimony, DNA evidence, photographs recovered from Blaurock's residence, and letters to both his mother and the victim's mother.
In two jury trials, Blaurock was convicted of aggravated incident liberties with a child, rape, aggravated criminal sodomy, and sexual exploitation of a child. Blaurock appealed his convictions on four grounds: (1) error in admitting evidence of prior crimes; (2) error in allowing the jury to review an unredacted video; (3) violation of his speedy-trial rights; and (4) cumulative error. Blaurock also raised a sentencing issue. In a lengthy opinion, our court affirmed his convictions. State v. Blaurock, 41 Kan.App.2d 178, 181, 201 P.3d 728, rev. denied 289 Kan. 1280 (2009). The Kansas Supreme Court denied further review.
In January 2010, Blaurock filed a habeas corpus proceeding, a motion under K.S.A. 60–1507. Later, Blaurock filed an amended motion, providing additional detail and citations to the record. Blaurock alleged 41 claims of error, ranging from violations of Blaurock's constitutional rights to trial error and prosecutorial misconduct. In September 2011, the district court held an evidentiary hearing on Blaurock's claims. The court generally ruled orally against each of Blaurock's claims and denied relief. The district court then entered a written order denying Blaurock's motion under K.S.A. 60–1507 “for the reasons set out” orally at the hearing. Blaurock has now appealed to our court.
Analysis
I. The District Court's Findings Are Sufficient to Allow Appellate Review.
Blaurock's first claim on appeal is that the district court's factual findings and legal conclusions weren't sufficiently detailed. Supreme Court Rule 183(j) (2014 Kan. Ct. R. Annot. 285) requires that the district court “make findings of fact and conclusions of law on all issues presented” in a K.S.A. 60–1507 motion. Importantly, Blaurock appeals only the sufficiency of the district court's findings, not its ultimate denial of the motion.
Whether the district court complied with this rule is a question of law over which this court exercises unlimited review. Robertson v. State, 288 Kan. 217, 232, 201 P.3d 691 (2009). We consider both the district court's written order and any oral rulings when determining whether the record is sufficient under Rule 183(j). Harris v. State, 31 Kan.App.2d 237, 239, 62 P.3d 672 (2003).
Usually, a party must object to the district court's inadequate findings of fact and conclusions of law in order to preserve that issue for appeal. Gilkey v. State, 31 Kan.App.2d 77, 77, 60 P.3d 351, rev. denied215 Kan. 963 (2003). If a party fails to object, we presume that the district court found all facts necessary to support its judgment. 31 Kan.App.2d at 77–78. In addition, our court is more likely to presume the sufficiency of the district court's ruling when, as was the case here, the judge presiding over the K.S.A. 60–1507 motion is the same judge that presided over the underlying criminal trial. See 31 Kan.App.2d at 78–79.
Blaurock concedes that he failed to object below. However, he also contends that the record is so insufficient that it prevents meaningful appellate review. We can remand the case for further findings even though the movant failed to raise the issue in the trial court if the record is insufficient for appellate review. See Harris, 31 Kan.App.2d at 239–40. In several cases, we have done so for rulings that fail to address some or all of the movant's issues, rulings that are so brief that we cannot determine the district court's reasoning, and rulings that suggest that the district court failed to consider the appropriate legal standards. See Moll v. State, 41 Kan.App.2d 677, 685, 204 P.3d 659 (2009), rev. denied 290 Kan. 1094 (2010); Harris, 31 Kan.App.2d at 239–40; Olds v. State, No. 104,055, 2011 WL 2796719, at *4–5 (Kan.App.2011) (unpublished opinion).
We have carefully reviewed the record from the evidentiary hearing. The district court took great care to walk through each of the 41 claims that Blaurock had listed. The court allowed him both to clarify his arguments and to present testimony in support of his claims. In many cases, Blaurock rested on his motion without presenting further evidence. At that time, the district court stated on the record its reasoning for rejecting that particular ground for relief. When an issue required testimony, the district court withheld its ruling until after the witnesses had testified.
By and large, the district court's reasons for rejecting the claims were that: (1) the record conflicted with Blaurock's version of events; (2) Blaurock had proved no legal basis for the district court to reconsider its earlier rulings; (3) Blaurock had failed to demonstrate where in the record a given issue appeared; (4) this court had already decided the issue on direct appeal; or (5) the testimony provided by witnesses conflicted with Blaurock's claim. Nothing in the hearing transcript suggests that the district court relied on inappropriate or irrelevant facts in coming to these conclusions. And although the district court didn't specifically cite caselaw to support each ruling, it referenced the guiding legal principles relevant to its decision throughout the hearing.
For the most part, then, the oral findings incorporated into the district court's journal entry are sufficient under Rule 183(j). We will not discuss the findings made on all 41 issues; we have reviewed them and concluded that the district court's findings were sufficient to allow appellate review on each of them. As examples of some of the findings we find sufficient:
• In Issue 2, Blaurock complained that the district court violated his Sixth Amendment right to counsel by not providing him an attorney at his first appearance and an initial hearing on bail. Blaurock contends on appeal that the district court made no findings of fact regarding this claim except to “merely recite[ ] the way things are normally done.” But the Sixth Amendment right to counsel applies only at “critical stages” of the criminal proceeding, and the district court said that Blaurock's first appearance and initial bail hearings were not critical stages. Although the district court did not cite a case by name, it said that our Supreme Court had taken this position. And indeed it has. Craig v. State, 198 Kan. 39, 41, 422 P.2d 955 (1967) (noting that counsel need not be appointed for the initial appearance before a judge at which bail is determined); see LaFave, Israel, King & Kerr, Criminal Procedure § 11.2(b), p. 599 (5th ed.2009) (noting that while United States Supreme Court left open the question of whether first appearance in a criminal case is a critical stage requiring counsel in Rothgery v. Gillespie County, 554 U.S. 191, 128 S.Ct. 2578, 171 L.Ed.2d 366 [2008], statements in the Court's opinion and a concurring opinion “suggested ... that the standard first appearance ordinarily would not be a critical stage”). The district court's legal ruling that Blaurock had no Sixth Amendment right to counsel at the hearings Blaurock complained about was sufficient to resolve that issue.
• In Issue 18, Blaurock argued that the prosecutor intimidated witnesses during the trial. After hearing testimony from the prosecutor, who denied doing so, the district court said that while the prosecutor could be “rude” and “abrasive,” “rudeness does not constitute a basis for a new trial.” The court also said, “I don't think there's a showing of [intimidation].” The court sufficiently found, as a factual matter, that while the prosecutor was sometimes rude, she did not act to intimidate witnesses. The court concluded as a legal matter that a prosecutor's mere rudeness does not justify a new trial, and Blaurock has not argued that question on appeal.
• In Issue 24, Blaurock argued that the trial court erred by “admitting into evidence a false writing.” As the district court noted in its oral ruling, another witness testified that the writing at issue, a letter, was handwritten by Blaurock. The court said that this testimony provided the necessary foundation to admit the letter and that the “jury can give that whatever weight it wants.” The court also noted that although Blaurock testified at trial that some statements in the letter were not true, the jury “obviously didn't believe that.” The district court did not need to make any finding about whether Blaurock's statements in the letter were true; all the court needed to do was determine whether the letter was properly admitted at trial. It was, and the court's ruling on this issue was sufficient for appellate review.
There are three issues, however—Issues 7, 9, and 38 in Blaurock's motion—where the district court's rulings are less clearly established:
• In Issue 9, Blaurock claimed that the district court failed to investigate Blaurock's claims of prosecutorial misconduct. Blaurock alleged that the State engaged in malicious or vindictive prosecution due to personal issues that could have led the prosecutor to unfairly target Blaurock. The district court withheld ruling until Blaurock had called both his trial attorney and the prosecutor to the stand. Each witness testified that there was no such dispute between the prosecutor and Blaurock. When the district court returned to rule on other issues, it touched on some accusations of alleged prosecutorial misconduct but did not mention the accusation of malicious prosecution. • Both Issues 7 and 38 concerned the district court itself and whether the judge violated his oath of office or committed misconduct by allowing the other errors alleged in the K.S.A. 60–1507 motion to occur. It appears that the district court chose to hear and decide all the other issues before ruling on these claims. After hearing witness testimony, the district court began to discuss Issue 7, was interrupted by counsel, and then did not return to explicitly discuss Issue 7. The district court returned to Issue 38 at the end of the hearing but apparently forgot that it hadn't ruled on it previously. When asked if the district court had decided that claim, the court indicated that it already had done so: “And I think what we said when we dealt with that is that's kind of a summary of all the different issues that—in regard to the Court's rulings. So I think I did respond to that.”
While the district court's ruling on these three issues may be imprecise, we find the record fully adequate to allow review of the ultimate question: Has Blaurock shown that he is entitled to any relief? After all, the purpose of a habeas motion is to obtain the defendant's release from confinement or a new trial, not to obtain findings. It is significant that Blaurock focuses only on findings, not on whether—even after an evidentiary hearing—he has presented a valid basis for relief.
Issue 7 alleged that the district judge had violated his oath of office by allowing constitutional trial errors to occur in his courtroom. But we found no errors on direct appeal, and even with an evidentiary hearing on his habeas motion, Blaurock has not shown any errors of a constitutional nature. The district court made appropriate findings that no trial errors had occurred; Issue 7 is purely derivative of the other claims. The district court appropriately ruled on it by denying the other claims.
Issue 9 alleged that the district judge failed to investigate Blaurock's claims of vindictive prosecution. The district court did not explicitly rule on this claim, although it rejected other claims of prosecutorial misconduct (e.g., posing improper cross-examination questions, making improper jury argument). But no testimony was presented in support of Blaurock's claim of a vindictive prosecution. Two witnesses testified: the prosecutor and Blaurock's trial counsel. The prosecutor denied any personal motive for prosecuting Blaurock; Blaurock's trial counsel said that no one had brought the issue of a possible conflict of interest or vindictive motive by the prosecutor to his attention. While Blaurock's motion generally alleged that he had brought this to the court's attention, citing the dates of court hearings, Blaurock did not provide testimony to support that claim, and there are no transcripts in the record on this appeal showing that Blaurock brought such a claim to the district court's attention before filing his habeas motion. The district court denied Blaurock's motion in its written order. So even though the court did not orally rule on Issue 9, its written order denied relief, and we find that there is no evidence in the record to support Blaurock's claim. Accordingly, the district court's failure to make more explicit findings on this issue does not impede our ability to review the case on appeal.
Issue 38, like Issue 7, is another claim of error by the trial judge. This time, rather than limiting the claim to constitutional error, Blaurock broadly alleged that the trial judge committed misconduct by allowing each of the other errors Blaurock alleged to occur. Although the district court initially deferred ruling on this, it appears that it later considered its ruling on the other issues to have constituted a ruling on Issue 38 too. While an explicit ruling would have been preferable, the claim in Issue 38 was entirely derivative of other claims, and each of those claims had been explicitly denied. No substantial errors have been found in the direct appeal or in the habeas proceeding. No judicial misconduct has been shown, and the lack of more explicit findings on Issue 38 similarly does not impede our ability to review the case on appeal.
A party seeking habeas relief under K.S.A. 60–1507 has the burden of establishing the grounds for relief. Supreme Court Rule 183(g) (2014 Kan. Ct. R. Annot. 285). Blaurock did not do so.
II. Blaurock's Appointed Counsel at the Habeas Hearing Did Not Provide Inadequate Assistance.
Blaurock also argues that the attorney appointed to represent him in the habeas corpus proceeding provided inadequate representation because he did not object to the district court's findings of fact and conclusions of law and did not represent Blaurock zealously. Although Blaurock did not raise this issue in the trial court, the Kansas Supreme Court has held that the quality of representation in a habeas proceeding may be considered for the first time on appeal, provided that the record is sufficient or the claim is “clearly without merit.” Robertson, 288 Kan. at 227–28. Here, the record of the evidentiary hearing allows this court an opportunity to thoroughly review counsel's performance. As such, we may consider the issue on appeal although Blaurock failed to raise it below.
As a rule, “[t]he extent of a movant's statutory right to effective assistance of counsel during a K.S.A. 60–1507 proceeding is a question of law,” allowing this court unlimited review. 288 Kan. at 227. The right to counsel in a habeas proceeding is granted by statute. K.S.A. 22–4506(b); Robertson, 288 Kan. at 228. As in a constitutional challenge to counsel's effectiveness, the movant must demonstrate both that counsel's performance was deficient and that the movant suffered prejudice as a result of the attorney's deficient performance. See Alford v. State, 42 Kan.App.2d 392, 398, 212 P.3d 250 (2009), rev. denied 290 Kan. 1092 (2010).
In discussing what constitutes deficient performance in a K.S.A. 60–1507 action, our Supreme Court in Brown v. State, 278 Kan. 481, 484, 101 P.3d 1201 (2004), has said that the appointed attorney “must, within the stricture of required candor to the court and other ethical rules, pursue relief for the client” and cannot behave “merely as an objective assistant to the court.” Robertson, 288 Kan. at 229. Under this standard, an attorney's performance is deficient when he or she participates in a hearing but never informs the client of his or her appointment, the result of the hearing, or the right to appeal. Brown, 278 Kan. at 482. Other examples of deficient performance include acting “as a reserve arbiter of the motion, files, and records for the court as much as an advocate for the indigent client,” arguing against the client's position, or doing “essentially nothing to represent [the] client's interest on the claims that were properly before the trial court.” Robertson, 288 Kan. at 220–21, 229; Alford, 42 Kan.App.2d at 398. Counsel's failure to attempt “to ascertain the nature of [the client's] claim or to argue a basis for th[e] claim” may also constitute deficient performance. 42 Kan.App.2d at 398–99.
These examples do not describe the performance by counsel in this case. Throughout the evidentiary hearing, counsel worked to ensure that the district court not only heard every issue but that it understood the root of each claim. When an issue was confusing, counsel attempted to clarify its meaning, often with help from Blaurock himself. Although counsel never called Blaurock to testify, he ensured that Blaurock was heard on every issue and allowed to state his position in his own words. Counsel also demonstrated through his comments that he had reviewed not only the transcripts and Blaurock's direct appeal, but also the law relevant to the proceedings. When counsel did agree with the district court, it was often in the context of assuring the district court that it understood the argument presented in the motion or correctly stated the law. Counsel ensured that Blaurock understood the district court's rulings, as well. Counsel called two witnesses and thoroughly questioned them on the issues relevant to the motion. And, at the close of the hearing, counsel attempted to ensure that every issue received a ruling. Further, the record indicates that counsel at least discussed the motion with Blaurock before the hearing, as counsel explained that he had “previously talked to my client about [Issue 34]” and attempted to explain the rules about jurors retaining exhibits during deliberations. In short, Blaurock's counsel was active and involved throughout the proceedings and advocated on Blaurock's behalf wherever possible, including allowing Blaurock to explain himself more thoroughly.
Blaurock emphasizes on appeal that his counsel failed to object to the district court's insufficient findings of fact and conclusions of law. But we found the record sufficient for appellate review. Blaurock does not offer any argument showing how his attorney's failure caused any real prejudice to him. Nor does Blaurock argue he had wanted to present evidence that his attorney didn't offer. We do not find that the representation of Blaurock's attorney fell below acceptable standards.
III. Other Issues Blaurock Has Attempted to Raise in a Supplemental Brief Are Not Properly Before Us.
As a final matter, Blaurock filed a pro se supplemental brief in addition to the one filed by his appointed appellate attorney. In that brief, Blaurock raises two issues: (1) that the district court erred in failing to dismiss the jury and grant a mistrial; and (2) that the district court erred in not finding trial counsel ineffective for failing to inform Blaurock of the terms and conditions of a plea offer from the State. Although Blaurock occasionally references the habeas hearing in his brief, each of these issues is truly only tangentially related to those raised in the motion Blaurock had filed in the district court. Blaurock is raising new claims here.
As a general matter, issues not raised before the trial court cannot be raised on appeal. See State v. Kelly, 298 Kan. 965, 971, 318 P.3d 987 (2014). Supreme Court Rule 6.02(a)(5) (2014 Kan. Ct. R. Annot. 40) requires the appellant to explain why an issue not raised below should be considered for the first time on appeal. Those appellants who do not comply with the rule run a risk that the issue is improperly briefed and will be deemed waived or abandoned. State v. Williams, 298 Kan. 1075, 1085, 319 P.3d 528 (2014).
A review of the record indicates that Blaurock never raised the mistrial issue as a separate and distinct issue in his habeas motion. Similarly, although Blaurock briefly referenced a possible plea agreement in both his motion and at the evidentiary hearing, he never alleged that his attorney failed to apprise him of the possible agreement's terms or that such a failure rendered his attorney ineffective. Instead, Blaurock primarily references the plea agreement as part of his accusation that the court reporter failed to keep accurate transcripts or to underpin a claim that trial counsel was not adequately prepared for trial. In short, Blaurock never raised these issues below, and he does not explain why they should be addressed here for the first time. We conclude, therefore, that he cannot raise them in this appeal.
The district court's judgment is affirmed.