Opinion
107,439.
06-12-2015
Bradley Wade JOHNSON, Appellant, v. STATE of Kansas, Appellee.
Jonathan B. Phelps, of Phelps Chartered, of Topeka, for appellant. Michael R. Serra, deputy county attorney, Jason W. Belveal, county attorney, and Derek Schmidt, attorney general, for appellee.
Jonathan B. Phelps, of Phelps Chartered, of Topeka, for appellant.
Michael R. Serra, deputy county attorney, Jason W. Belveal, county attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., ARNOLD–BURGER and GARDNER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Bradley Wade Johnson appeals the district court's denial of his K . S.A. 60–1507 motion. The district court denied Johnson's motion in 1998, but the appeal was not docketed in this court until several years later. For the reasons stated herein, we affirm the district court's judgment.
In July 1993, a jury convicted Johnson of one count of first-degree murder, one count of aggravated kidnapping, and one count of aggravated robbery. On direct appeal, our Supreme Court affirmed Johnson's convictions. See State v. Johnson, 258 Kan. 475, 905 P.2d 94 (1995). The following facts are taken from that opinion:
“On March 5, 1993, Benjamin Creek's body was discovered in rural Jefferson County, Kansas. There was a 12– to 15–foot piece of rope around his right wrist and a trail of a large amount of blood. Creek had been beaten extensively. There were numerous cuts made by a sharp object on both inner thighs and his neck. The thigh wounds were deep. There were no defensive wounds. Creek died due to blood loss at the location where his body was discovered. Pieces of an automobile window mount gun rack were collected at the scene.
“The investigation of Creek's death revealed that Creek, Bradley Johnson, and Frank Sutton (also known as ‘Spanky’) were all present at Sasnak North, a bar in Topeka, the night of March 4, 1993. Johnson, who is Caucasian, and Sutton, who is black, were together. They were short of money, and a bartender bought them two pitchers of beer. Creek was not observed with Johnson and Sutton inside the bar. During the evening Creek asked a Sasnak employee if she knew two men, one black and one white, who were in the bar. She did not. Creek informed her that the men stopped him from leaving the bar and that he had agreed to give the two men a ride.
“Creek and his mother had a joint bank account for which Creek had an ATM card. Shortly after midnight two withdrawals totaling $90 were made using Creek's ATM card. A third withdrawal of $50 was attempted but failed for insufficient funds. The next transaction at that ATM machine was by a Topeka police officer. While the officer was waiting to use the machine he observed a dark pickup with two occupants and a third person using the ATM machine. Sutton's image appears on the ATM machine's surveillance camera at the time the withdrawals from Creek's account were made.
“After Creek's body was discovered officers went to a residence at 1006 S.E. 8th Street in Topeka where Johnson was staying. John McGill and Dan Deenihan, who lived at that house, informed the officers that Johnson was not at the house when they arrived home on the night of March 4 and 5. They stated that Johnson and Sutton later arrived at the house in a newer model Ford pickup with a white toolbox. Creek's vehicle was a 1988 Ford pickup with a black bed liner and a white toolbox. McGill noticed that Sutton had blood on his pant leg and tennis shoe. Johnson and Sutton were carrying a shotgun and a hunting vest. Johnson and Sutton later unloaded a red toolbox, a hydraulic floor jack, some crowbars, some nylon tow ropes, and an electric saw from the pickup. They also observed Johnson bum an ATM card.
“Officers were allowed to search the residence. Several items were seized, including a butterfly knife, pieces of a broken gun rack, a ‘for sale’ sign with Creek's mother's telephone number on it, and a pair of black jeans with a 38–inch waist and 32–inch length. Johnson wore a size 38 or 40 waist pant. A duffel bag next to the jeans contained papers addressed to Johnson. McGill directed officers to a trash can which contained a piece of burned plastic that could have been the ATM card. Tire impressions in the driveway of 1006 S.E. 8th Street were similar to tire impressions where Creek's body was discovered.
“Randy Drown testified that he helped Johnson transport several items and that Drown sold items such as a saw, jumper cables, and tow rope straps. These items were recovered. Several of the items were similar to items belonging to Creek. Drown also testified that he was driving with Johnson and Sutton when Johnson pointed to a truck at the Ripley Park Apartments and said that he and Sutton had acquired the truck the night before.
“On March 6 Creek's pickup was found at the Ripley Park Apartments. A witness testified that two men, one Caucasian and one black, left the truck at that location. The exterior of the truck was covered with road dirt. The interior was wet underneath the floor mats, and there was standing water in two frisbees on the floor. Pieces of a broken gun rack were collected from the truck. The pieces of a gun rack collected from the truck, the residence at 1006 S.E. 8th Street, and where Creek's body was found fit together and formed a gun rack.
“Johnson was riding with Drown when police stopped the car and arrested Johnson. A knife and sheath were taken from the car. Johnson admitted to the police that he had been to Sasnak's on March 4. When shown Creek's picture, Johnson denied that Creek was at Sasnak's that night. Johnson also denied that he associated with black people or knew a black male named Frank. He then refused to answer any more questions without counsel.
“Hair found on Creek's hands and in Creek's pickup was consistent with Johnson's hair. Blood on the black jeans taken from the 8th Street residence was consistent with Creek's blood and not with Sutton's or Johnson's blood.
“Johnson and Sutton were charged in Creek's death. Sutton was convicted of first-degree felony murder, aggravated kidnapping, and aggravated robbery in a separate trial. His conviction was affirmed by this court ....
“During Johnson's trial, he presented the testimony of a frequent patron of Sasnak's. The witness testified that he watched a black man and a white man playing pool on March 4. The witness did not see the white man after the last call for beer at 11:30 p.m., but the black man was still in the bar. Two more white men entered the bar, but the witness did not observe if they had spoken to the black man. The black man left around 11:55 p.m. The witness was unable to identify any of the men.
“Johnson testified that he went to Sasnak's on March 3, 1993, with Drown and Sutton. Drown had testified that Johnson mentioned finding a ‘mark’ that evening. Johnson did not remember that conversation. Johnson testified that on March 4 he and Sutton returned to Sasnak's. He and Sutton consumed two pitchers of beer, which they paid for by pooling their money. Later that evening, Johnson testified, he realized that Sutton had left the bar. Johnson testified that he went to a friend's house and slept until early afternoon on March 5, then returned to the house on 8th Street.
“Johnson denied that the black jeans with blood on them were his and that he had pointed out a truck at the Ripley Park Apartments to Drown. Johnson asserted that he was not the white man who left the truck at the Ripley Park Apartments, that he was never in Creek's truck, and that he had not sold any of Creek's property with Drown. Johnson insisted that he was not involved in Creek's homicide.
“The jury convicted Johnson of first-degree felony murder, aggravated kidnapping, and aggravated robbery. Johnson was sentenced to consecutive terms of incarceration of life, life, and 15 years to life. The sentences were tripled under the habitual criminal provisions of K.S.A.1992 Supp. 21–4504.” 258 Kan. at 476–79.
On March 3, 1997, Johnson filed a pro se motion pursuant to K.S.A. 60–1507. In the motion, he raised 22 claims of ineffective assistance of trial counsel and also alleged that he had been denied reasonable access to counsel at a critical pretrial stage and that the district court erred in failing to give the jury a verdict form on aiding and abetting. The district court appointed counsel to represent Johnson on the motion.
On January 8, 1998, the district court held a preliminary hearing on the motion. Johnson's counsel briefly summarized the motion as claiming (1) insufficient evidence to support the convictions and (2) ineffective assistance of trial counsel. The district judge asked, “As a matter of fact, there was direct appeal to the Supreme Court on really these same issues, wasn't there?” Johnson's counsel replied affirmatively and stated that the appeal had been denied. The district judge then noted that he had presided over the trial, recited some of the evidence against Johnson, and stated:
“That being the ... situation and the fact that this matter has been appealed directly to the Supreme Court and no relief was granted in that regard I can concur that there has been no substantially new issues of law and[/]or fact which would warrant relief pursuant to KSA [sic ], ... 60–1507.”
The district court's written journal entry denying the motion stated that Johnson had “not raised a substantial issue of law or triable issue of fact and that the files and records of the case conclusively show that [Johnson] is entitled to no relief.” Johnson's appointed counsel filed a notice of appeal on January 28, 1998.
The district court appointed counsel to represent Johnson on appeal; in fact, multiple attorneys were successively appointed, but none pursued the appeal. Johnson eventually filed a complaint with the Office of the Disciplinary Administrator regarding this failure and learned that the district judge had told his latest appointed attorney that the judge would appoint new counsel, but the judge had not done so; meanwhile, counsel closed his file, thinking he no longer represented Johnson. Johnson then took it upon himself to docket his appeal pro se with this court.
On January 30, 2012, Johnson filed a pro se motion to docket his appeal out of time. This court denied the motion, so Johnson filed a pro se petition for review, asserting the exceptions to the time requirements for pursuing an appeal as established in State v. Ortiz, 230 Kan. 733, 640 P.2d 1255 (1982). In March 2013, our Supreme Court granted the petition for review, held that the Ortiz exceptions applied, and remanded to this court with orders to permit docketing out of time and remand for appointment of counsel. In June 2013, the district court appointed new counsel to represent Johnson.
For various reasons, including difficulties compiling the record on appeal, Johnson did not file his appellate brief until August 2014. The State filed its brief on February 13, 2015, and the case was set for oral argument on May 12, 2015. However, both parties ultimately waived oral argument.
On appeal, Johnson contends that the district court erred in denying his K.S.A. 60–1507 motion without holding an evidentiary hearing. He reasserts his 22 claims of ineffective assistance of trial counsel and groups the claims into 6 categories. He also reasserts the claim he made in district court that he was denied reasonable access to trial counsel at a critical pretrial stage. Johnson fails to brief the claim he made in district court that the district court erred in failing to give the jury a verdict form on aiding and abetting. Thus, that claim is deemed waived and abandoned. See State v. Bowen, 299 Kan. 339, 355–56, 323 P.3d 853 (2014).
The State argues that this court should affirm the district court's judgment for four reasons: (1) The record does not adequately support Johnson's claims to the extent that an evidentiary hearing was warranted; (2) Johnson raised many of these arguments on direct appeal; (3) Johnson failed to establish that his trial counsel provided ineffective assistance; and (4) Johnson failed to show that he was prejudiced.
When a district court considers a K.S.A. 60–1507 motion, it has three options:
“ ‘(1) The court may determine that the motion, files, and case records conclusively show the prisoner is entitled to no relief and deny the motion summarily; (2) the court may determine from the motion, files, and records that a potentially substantial issue exists, in which case a preliminary hearing may be held. If the court then determines there is no substantial issue, the court may deny the motion; or (3) the court may determine from the motion, files, records, or preliminary hearing that a substantial issue is presented requiring a fully hearing.’ [Citation omitted.]
“Our standard of review depends upon which approach the district court used to dispose of the motion. When, as here, a court denies a 60–1507 motion based only on the motion, files, and records after a preliminary hearing, we are in as good a position as that court to consider the merits. So we exercise de novo review. [Citations omitted.]” Sola–Morales v. State, 300 Kan. 875, 881, 335 P.3d 1162 (2014).
Ineffective assistance of counsel
Johnson's primary complaint is that he received ineffective assistance of trial counsel. Kansas appellate courts traditionally have applied the two-step test used to analyze the merits of a claim of ineffective assistance of counsel. See Sola–Morales, 300 Kan. at 887–91. Under that analysis, to prevail on a claim of ineffective assistance of counsel due to deficient performance by counsel, the movant “must establish (1) the performance of defense counsel was deficient under the totality of the circumstances, and (2) prejudice, i.e., that there is a reasonable probability the jury would have reached a different result absent the deficient performance. [Citations omitted.]” 300 Kan. at 882–83 ; see Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674, reh. denied 467 U.S. 1267 (1984).
In denying Johnson's K.S.A. 60–1507 motion, the district court relied heavily on its understanding that Johnson's claims of ineffective assistance of counsel were addressed in his direct appeal. The State now asserts that Johnson is barred from raising the same claims in a K.S.A. 60–1507 proceeding. The State is correct that as a general rule, claims raised and resolved in a direct appeal may not be later raised in a K.S.A. 60–1507 proceeding. See Drach v. Bruce, 281 Kan. 1058, Syl. ¶ 14, 136 P.3d 390 (2006) (res judicata applies to issues raised in 60–1507 proceeding that were resolved by direct appeal), cert. denied 549 U.S. 1278 (2007).
In his direct appeal, Johnson claimed:
“(1) improper admission of hearsay evidence; (2) improper admission of gruesome photographs; (3) insufficiency of the evidence; (4) failure to instruct on voluntary intoxication; (5) failure to disclose exculpatory evidence; (6) ineffective assistance of counsel; (7) double jeopardy; (8) failure to give an accomplice instruction; and (9) violation of the witness sequestration rule.” Johnson, 258 Kan. at 475.
In his K.S.A. 60–1507 motion, Johnson alleged the following: (1) multiple instances of ineffective assistance of counsel; (2) unconstitutional denial of access to counsel; and (3) erroneous failure to give the jury a verdict form on aiding and abetting. The district court erred to the extent that it summarily denied Johnson's entire K.S.A. 60–1507 motion on the belief that it only raised issues already addressed in the direct appeal—Johnson's direct appeal did not address the last two issues that he raised in his K.S.A. 60–1507 motion.
Our Supreme Court did address ineffective assistance of counsel in Johnson's direct appeal, noting that Johnson raised the issue for the first time on appeal and that appellate courts generally do not address such claims if they were not first raised in the district court. Johnson, 258 Kan. at 488. The Johnson court noted that Johnson had not sought remand to the district court for determination of the claims, nor did it appear that appellate counsel had conducted an independent investigation into trial counsel's effectiveness other than to read the cold record. 258 Kan. at 489. Thus, the court held that Johnson had “not properly perfected an appeal on this issue.” 258 Kan. at 489.
However, our Supreme Court went on to state as follows:
“In any event, much of appellate counsel's complaints of trial counsel's assistance concern points which were not disputed at trial. The theory of defense at trial was that the defendant was improperly identified as being involved in the crimes with Frank Sutton; rather, according to the theory of defense, another individual was involved, such as John McGill, Dan Deenihan, or Randy Drown. The defendant's trial counsel appears to have done an adequate job of casting suspicion on others. A cold reading of the record does not overcome the presumption that trial counsel met an objective standard of reasonableness, nor does it reveal a reasonable probability that the outcome of the trial would have been different. The defendant has not shown that his trial counsel's conduct was deficient and that he was prejudiced by this deficiency.” 258 Kan. at 489.
Under the circumstances, we do not believe that Johnson is barred from raising claims of ineffective assistance of counsel in the K.S.A. 60–1507 proceeding on the ground that the Supreme Court addressed the claims on direct appeal. Our Supreme Court specifically held that Johnson had “not properly perfected an appeal” on his ineffective assistance of counsel claims. 258 Kan. at 489. Then, in dicta, the court summarily opined that there did not appear to be any merit in Johnson's claims against his trial counsel. The district court shall not be required to entertain a successive or second motion for similar relief in a K.S.A. 60–1507 motion. See K.S.A. 60–1507(c) ; Rule 183(d) (2014 Kan. Ct. R. Annot. 285). However, because our Supreme Court did not dispose of Johnson's ineffective assistance of counsel claims on the merits, he is not barred from asserting the same grounds for relief in this proceeding.
However, the biggest problem for Johnson is that his K.S.A. 60–1507 motion completely failed to explicitly articulate prejudice on any of his claims of ineffective assistance of counsel. Likewise, Johnson's appellate brief fails to specifically argue prejudice. In Crowther v. State, 45 Kan.App.2d 559, 570, 249 P.3d 1214, rev. denied 293 Kan. 1105 (2011), this court held that the district court did not err in summarily denying a K.S.A. 60–1507 motion where the movant “fail[ed] to allege, let alone offer any proof of, any prejudice resulting from counsel's performance”; see also Martinez v. State, No. 105,881, 2012 WL 2326023, at *7 (Kan.App.2012) (unpublished opinion), rev. denied 299 Kan. –––– (April 28, 2014) (same result).
In fact, our Supreme Court has previously reversed this court's remand for an evidentiary hearing on an ineffective assistance of counsel claim where this court did not consider the prejudice prong of the test. See Edgar v. State, 294 Kan. 828, 843–46, 283 P.3d 152 (2012). The Edgar court held that where a movant makes only conclusory allegations and fails to establish a reasonable probability that, but for counsel's errors, a different result would have been achieved, a district court does not err in denying a K.S.A. 60–1507 motion alleging ineffective assistance of counsel. 294 Kan. 828, Syl. 5.
Here, Johnson has failed to articulate any claims of prejudice either in district court or on appeal. To prevail on a claim of ineffective assistance of counsel, the movant must establish that the performance of defense counsel was deficient and that there is a reasonable probability the jury would have reached a different result absent the deficient performance. Sola–Morales, 300 Kan. at 882–83. Because Johnson has completely failed to assert an essential component of his ineffective assistance of counsel claim, the district court's decision to deny the claim without holding an evidentiary hearing is affirmed for this reason alone.
In any event, we note that many of Johnson's claims of ineffective assistance of counsel go toward establishing that, based on the physical evidence, Sutton killed Creek rather than Johnson. The first group of allegations of ineffective assistance of trial counsel concerned Johnson's dissatisfaction with trial counsel's investigation into the handling of evidence involving injuries to Creek, the autopsy results, and patterns on the soles of Sutton's shoes. In another set of asserted grounds for relief, Johnson focused on the DNA evidence introduced against him and trial counsel's failure to introduce into evidence Sutton's gray pants or tennis shoes.
But even if Johnson proved that Sutton did the killing, this evidence would not exonerate Johnson. Johnson was convicted of felony murder based on the State's theory that Johnson and Sutton aided and abetted each other in the commission of the crime. All the State had to prove at trial was that Johnson participated in the underlying felonies of aggravated kidnapping and aggravated robbery and that Creek was killed, by either Johnson or Sutton, in the course of committing the underlying felonies. The evidence at trial was overwhelming that Johnson participated in the underlying felonies, especially the aggravated robbery of Creek's pickup truck and other property. Thus, even if we were to undertake the prejudice analysis, which Johnson has never argued, it appears that he would be unable to establish “a reasonable probability the jury would have reached a different result absent the deficient performance.” See Sola–Morales, 300 Kan. at 882.
Denial of access to trial counsel
Johnson's K.S.A. 60–1507 motion also alleged that he was denied reasonable access to trial counsel at a critical pretrial stage. Johnson alleged that he could not write to his attorney because he had no money for postage, and the only opportunities he had to converse with counsel occurred within earshot of law enforcement. Moreover, the location of the jail in which Johnson was held in relation to counsel's office made it difficult for counsel to visit him at the jail, further limiting his accessibility.
On appeal, Johnson simply reiterates his arguments, adding that the Sixth Amendment to the United States Constitution, applicable to the states through the Fourteenth Amendment, and § 10 of the Kansas Constitution Bill of Rights guarantee the right to assistance of counsel. He then states, without citation of any sort: “For that right to access to counsel to be meaningful an accused in a murder case must have access which is not subject to monitoring by governmental authorities.”
When a defendant receives ineffective assistance of counsel due to the complete denial of the assistance of counsel at a critical stage of the proceeding, he or she need not prove prejudice—a court may presume it. Sola–Morales, 300 Kan. at 883. However, our Supreme Court has held that for this “exception to apply in circumstances where a defendant is represented by counsel, ‘the attorney's failure must be complete.’ [Citation omitted.]” State v. Sharkey, 299 Kan. 87, 101, 322 P.3d 325 (2014).
Here, although Johnson pointed out in his K.S.A. 60–1507 motion that his conversations with counsel were subject to governmental monitoring, he did not allege that the possibility of monitoring caused his counsel to fail to give legal representation. In fact, he did not allege that the potential monitoring affected his counsel's representation in any way. Therefore, even if everything Johnson alleged in his K.S.A. 60–1507 motion was true, it still would not afford him relief. Once again, Johnson has failed to allege prejudice, and his case does not present a situation where prejudice can be presumed. Thus, the district court did not err in denying Johnson's K.S.A. 60–1507 motion without holding an evidentiary hearing. See State v. May, 293 Kan. 858, 870, 269 P .3d 1260 (2012) (district court's judgment will be upheld if it is correct for any reason).
Affirmed.