Opinion
No. 108,058.
2013-02-15
James LEWIS, Jr., Appellant, v. STATE of Kansas, Appellee.
Appeal from Leavenworth District Court; Gunnar A. Sundby, Judge. Michael G. Highland, of Bonner Springs, for appellant. Joan Lowdon, assistant county attorney, Todd Thompson, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Leavenworth District Court; Gunnar A. Sundby, Judge.
Michael G. Highland, of Bonner Springs, for appellant. Joan Lowdon, assistant county attorney, Todd Thompson, county attorney, and Derek Schmidt, attorney general, for appellee.
Before ARNOLD–BURGER, P.J., GREEN, J., and HEBERT, S.J.
MEMORANDUM OPINION
PER CURIAM.
Lewis appeals from the summary dismissal of his K.S.A. 60–1507 (1507) motion. Lewis' sole argument on appeal is that the trial court erred in failing to grant him an evidentiary hearing for his 60–1507 motion based on his allegation that he received ineffective assistance of trial and appellate counsel. We affirm.
On November 8, 2007, Lewis was convicted of aggravated burglary, theft, fleeing and eluding, possession of drug paraphernalia, and reckless driving. On direct appeal, we affirmed most of Lewis' convictions except for his reckless driving conviction, which was reversed. State v. Lewis, No. 100,083, 2009 WL 2762462 (Kan.App.2009) (unpublished opinion), rev. denied January 8, 2010.
On January 7, 2011, Lewis filed a 60–1507 motion with the Leavenworth County District Court. In part, Lewis' 60–1507 motion argued that he was entitled to relief because he had received ineffective assistance of trial counsel. The State responded to Lewis' 60–1507 motion. After Lewis was appointed counsel, his counsel replied to the State's initial response. Lewis' reply contained two allegations that were not in his 60–1507 motion: (1) that he received ineffective assistance of trial counsel because his attorney failed to argue a duress defense, and (2) that he received ineffective assistance of appellate counsel because his appellate counsel “fail[ed] to raise the issue of trial counsel's failure to raise a compulsion defense along with a failure to request an instruction on the compulsion defense.”
Later, the trial court issued a memorandum decision summarily dismissing Lewis' 60–1507 motion. Specifically, the trial court held that “the motion, the record and files as well as the memorandum supplied by the petitioner's counsel” failed to establish that Lewis had received ineffective assistance of either trial or appellate counsel. Did the trial court err in failing to grant Lewis an evidentiary hearing for his K.S.A. 60–1507 motion based on his allegation that he received ineffective assistance of trial and appellate counsel?
Lewis' sole argument on appeal is that he should have been granted an evidentiary hearing for his ineffective assistance of counsel claim under his 60–1507 motion. Specifically, Lewis maintains that he received ineffective assistance of trial counsel because his counsel failed to raise a duress or compulsion defense and failed to request an instruction for this defense. Similarly, Lewis alleges that he received ineffective assistance of appellate counsel because his appellate counsel failed to “raise the issue of trial counsel's failure to raise a compulsion defense, along with a failure to request an instruction on the compulsion defense.”
Although Lewis' 60–1507 motion raised several other claims, including additional reasons as to why he received ineffective assistance of counsel, none of those claims were raised on appeal. Consequently, Lewis has abandoned those claims. Kingsley v. Kansas Dept. of Revenue, 288 Kan. 390, 395, 204 P.3d 562 (2009) (issue not briefed by the appellant is deemed waived or abandoned). Thus, we will focus on the two ineffective assistance of counsel claims raised in Lewis' brief.
When reviewing an issue involving a 60–1507 motion, the appellate court's standard of review depends upon which of the three available options the trial court used below to resolve the motion. First, the trial court may conclude that the motion, files, and records of the case conclusively show that the movant is entitled to no relief and summarily deny the motion. Second, the trial court may conclude from the motion, files, and record that a substantial issue or issues have been raised, requiring a full evidentiary hearing in the presence of the movant. Third, the trial court may determine that the motion raises a potentially substantial issue or issues of fact, supported by the files and record, and hold a preliminary hearing after appointment of counsel to determine whether in fact the issues in the motion are substantial. Bellamy v. State, 285 Kan. 346, 353, 172 P.3d 10 (2007).
If the trial court summarily denies a 60–1507 motion, then the appellate court conducts a de novo review to determine whether the motion, files, and records of the case conclusively establish that the movant is not entitled to relief. Trotter v. State, 288 Kan. 112, 132, 200 P.3d 1236 (2009). Because the trial court summarily denied Lewis' 60–1507 motion, our review is de novo.
Turning to the question presented, we must determine if the trial court erred in summarily dismissing Lewis' ineffective assistance of counsel claims. Under Kansas law, “a movant has the burden to prove his or her K.S.A. 60–1507 motion warrants an evidentiary hearing; the movant must make more than conclusory contentions and must state an evidentiary basis in support of the claims or an evidentiary basis must appear in the record.” Swenson v. State, 284 Kan. 931, 938, 169 P.3d 298 (2007). In stating the evidentiary basis, however, the 60–1507 motion simply must “set forth a factual background, names of witnesses or other sources of evidence to demonstrate that petitioner is entitled to relief.” Sullivan v. State, 222 Kan. 222, 223–24, 564 P.2d 455 (1977). Indeed, a trial court errs when it denies a 60–1507 motion without an evidentiary hearing “where the motion alleges facts which do not appear in the original record but which, if true, would entitle the movant to relief” as long as “the motion identifies readily available witnesses whose testimony would support such facts or other sources of evidence.” Swenson, 284 Kan. at 939.
In this case, the trial court arguably erred when it summarily dismissed Lewis' ineffective assistance of counsel claims. Although not contained in his original 60–1507 motion, Lewis' appointed counsel alleged in response to the State's motion to dismiss that Lewis received ineffective assistance of trial counsel because his attorney failed to argue a duress defense. In particular, Lewis' reply maintains that he had “steadfastly maintained that he was under the threat of being shot unless he broke into a store and retrieved cigarettes. [Lewis' counsel] failed and refused to raise a defense of duress and compulsion or ask for an instruction on the same.” To support the argument that his counsel should have presented a duress or compulsion defense, Lewis relied on his prior testimony and statements that he gave to police.
If the alleged facts in Lewis' reply were true, then he arguably would be entitled to relief. When Lewis was convicted, Kansas' compulsion statute was contained under K.S.A. 21–3209, which reads as follows:
“A person is not guilty of a crime other than murder or voluntary manslaughter by reason of conduct which he performs under the compulsion or threat of the imminent infliction of death or great bodily harm, if he reasonably believes that death or great bodily harm will be inflicted upon him or upon his spouse, parent, child, brother or sister if he does not perform such conduct.”
On the other hand, there seems to be evidence to support a finding that Lewis was not entitled to invoke a compulsion or duress defense. When the trial court summarily dismissed Lewis' 60–1507 motion, it discussed the evidence from the record in its memorandum decision. The trial court's memorandum decision states the following:
“[Lewis] contends that he insisted on providing a defense of duress and that his counsel refused to do so. However, a review of the record is in conflict with that claim. A review of the transcript shows that counsel did ask questions of the petitioner during the trial, concerning the events of the day in question. Trial counsel inquired as to conversations in the vehicle between a man named ‘Giff’ telling him to go in to a store and steal cigarettes or he would harm is cousin Ruby Reese. Counsel also inquired of a detective about the statement the petitioner had given concerning the actions he took while under duress.... [Lewis] testified that the person he claimed that Giff threatened to harm was his cousin Ruby Reese. Thus [Lewis] was not entitled to PIK instruction # 54.13 Compulsion.”
Based on the trial court's statements, the trial court properly summarily dismissed Lewis' 60–1507 motion because the record conclusively showed that the compulsion or duress defense did not apply to him. The compulsion or duress defense did not apply under the facts listed by the trial court because Lewis' cousin is not covered by the compulsion statute. See K.S.A. 21–3209 (only harm inflicted on spouse, parent, child, brother or sister is protected by statute). Because the compulsion or duress defense did not apply, Lewis' counsel could not have been ineffective for failing to argue the defense. Similarly, Lewis' appellate counsel could not have been ineffective for failing to raise Lewis' ineffective assistance of trial counsel on appeal because his trial counsel arguably was not ineffective.
Moreover, Lewis' assertions about Giff seem very vague. He claims that Giff threatened to hurt his cousin if he did not commit the burglary and theft, but he does not tell us anything about Giff. His contentions about Giff are very conclusory. As a result, Lewis' argument fails.
Affirmed.