Opinion
No. 106,620.
2012-06-1
Christopher E. ROMERO, Appellant, v. STATE of Kansas, Appellee.
Appeal from Butler District Court; David A. Ricke, Judge. Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellant. Darrin C. Devinney, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Butler District Court; David A. Ricke, Judge.
Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellant. Darrin C. Devinney, county attorney, and Derek Schmidt, attorney general, for appellee.
Before GREEN, P.J., MALONE and McANANY, JJ.
MEMORANDUM OPINION
PER CURIAM.
Christopher Romero appeals the district court's summary denial of his K.S.A. 60–1507 motion. He argues that the district court erred in determining that he had not presented any cognizable ineffective assistance of counsel claim. For the reasons set forth herein, we affirm the district court's judgment.
In 2008, Romero was convicted of aggravated battery of a law enforcement officer for attacking a deputy at the Butler County jail. The evidence at trial showed that the deputy was attacked from behind, blacked out, and fell to the ground. A video of the incident showed an inmate, identified as Romero, standing over the deputy and kicking him. The video also showed that Romero took the deputy's keys, let himself back into his cell, and threw the keys back out toward the deputy. Romero was the only inmate with access to the area where the deputy was attacked. See State v. Romero, No. 101,173, 2010 WL 4320338 (Kan.App.) (unpublished opinion), rev. denied 291 Kan. 916 (2010).
Officers found the deputy lying unconscious on the floor, bleeding heavily from a laceration on the side of his head. There were tread marks on the side of his face, indicating that he had been stepped on or kicked in the face. Officers examined Romero immediately after the incident and discovered that his knuckles were red. Furthermore, the tread mark on the deputy's face was consistent with the tread on a pair of inmate shoes found in Romero's cell. One of those shoes had blood on the heel.
After less than an hour's deliberation, the jury found Romero guilty of aggravated battery of a law enforcement officer. He was sentenced to 162 months' imprisonment based in part on his criminal history score. On direct appeal, Romero challenged the district court's refusal to instruct on the lesser included offense of battery of a law enforcement officer. He also challenged the use of his criminal history score to enhance his sentence. This court rejected Romero's arguments and upheld his conviction and sentence. 2010 WL 4320338, at *2–3.
On January 12, 2011, Romero filed a pro se K.S.A. 60–1507 motion and requested the appointment of counsel. Romero stated the following grounds on which he based his allegations that he was being unlawfully held in custody:
“(a) Evidence: States blood; and shoes; had blood on them; but in court the shoes was only presented as only an exhibit evidence; the blood traces was never seen by anyone in the court room (on shoe).
“(b) The video tape that was watched at trial; was of a person that looked just like me; but slightly heavier: and the crime that was shown (beating of Anderson) did not happen while he was on the ground; (such as punching to the face) (or kicking to the face).
“(c) Also; pictures of the hands of this person or (persons) that had beat the officer; was not my hands, nor did I ever see any medical at the jail for such injuries; at the lest the hands had to of been broke!”
Romero also indicated that his claim was based on ineffective assistance of counsel. He listed the names of his trial counsel and the prosecutor, then referred generally back to “all the evidence described in question (10)”—meaning the aforementioned evidence regarding the shoes, video, and hands.
The district court considered and summarily denied Romero's K.S.A. 60–1507 motion without appointing counsel or conducting a hearing. The district court found that if the evidence-based grounds that Romero alleged were construed as challenges to the admission or sufficiency of evidence, such grounds were mere trial errors that should have been pursued on direct appeal. And if Romero intended some other evidence-based challenge, his motion completely failed to indicate what that challenge might be. With respect to Romero's ineffective assistance of counsel claim, the district court found that Romero's general reference back to the evidence-based grounds, without any detail or explanation as to what the deficiency in counsel's performance might be, was “simply inadequate to constitute any cognizable ineffective assistance claim.” Romero appealed the district court's judgment.
A district court has three options when handling a motion under K .S.A. 60–1507, and this court's standard of review depends on which option is employed by the district court. First, the district 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 district 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 district 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). Where the district court employs the first option, as here, this 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 any relief. Trotter v. State, 288 Kan. 112, 132, 200 P.3d 1236 (2009).
On appeal, Romero argues that liberally construing his pro se K.S .A. 60–1507 motion as courts must do, he raised at least one cognizable ineffective assistance claim related to the admission of the allegedly bloody shoes. See State v. Kelly, 291 Kan. 563, 565, 244 P.3d 639 (2010). Specifically, he contends that his trial counsel was ineffective for failing to object to the admission of the shoes where no forensic testing was performed to confirm that the substance was blood, the detective who testified about the shoes was not an expert witness qualified to identify the substance as blood, and nobody had directly compared the tread on the shoe to the tread marks on the deputy's face. Furthermore, the detective who collected the shoes from a jail cell admitted that he had no independent knowledge that it was Romero's cell; however, the detective had been told that it was Romero's cell, and Romero was actually inside the cell.
Even if we construe Romero's K.S.A. 60–1507 motion in the manner he urges, he has not made any argument as to why his trial counsel's failure to object to the admission of the shoes constituted ineffective assistance of counsel. To support a claim of ineffective assistance of counsel, Romero must show that (1) counsel's performance was deficient and (2) counsel's deficient performance was sufficiently serious to prejudice his defense and deprive him of a fair trial. The benchmark for any claim of ineffectiveness is whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. See Bledsoe v. State, 283 Kan. 81, 90, 150 P.3d 868 (2007).
Assuming for the sake of argument that trial counsel's performance was somehow deficient, Romero still must show there is a reasonable probability that the outcome of the trial would have been different but for counsel's deficient performance. See 283 Kan. at 90. He cannot do so. Even excluding the allegedly bloody shoes, the evidence presented at trial included a video of Romero standing over the deputy and kicking him, then taking the deputy's keys and letting himself back into his cell. Romero was the only inmate with access to the area where the deputy was attacked. Romero presented no evidence on his own behalf, nor did he seriously contest that he was the person shown in the video. Given this evidence, we conclude there is no reasonable probability the outcome of trial would have been different and thus Romero's rights were not prejudiced by trial counsel's allegedly deficient performance.
Romero also suggests that due to his education level and mental state, the district court should have appointed counsel to assist him in the prosecution of his K.S.A. 60–1507 claim. We disagree. First, the record does not indicate to us that Romero's mental state is as compromised as he claims. Although Romero apparently refused to speak to any of his trial counsel or to the district court, the district court explicitly noted that Romero had been evaluated by mental health professionals and found competent to stand trial. The mental health professionals further found that Romero's refusal to speak was not due to any physical or mental problem, but rather was an indication on his part that he did not wish to voluntarily participate in the trial. The district court's own observations of Romero throughout the trial comported with this conclusion.
Second, Romero has cited no authority for the proposition that an inmate's lack of education or compromised mental state necessitates the appointment of counsel to assist the inmate in the prosecution of his or her K.S.A. 60–1507 claim. Rather, it is clear under our statutes and caselaw that the statutory right to counsel in such proceedings attaches only after the district court has determined that the motion presents substantial questions of law or triable issues of fact. See K.S.A. 22–4506(b); Alford v. State, 42 Kan.App.2d 392, 394, 212 P.3d 250 (2009), rev. denied 290 Kan. 1092 (2010). Moreover, there is no constitutional right to effective assistance of counsel on collateral attacks under K.S.A. 60–1507 because they are civil, not criminal, actions. Brown v. State, 278 Kan. 481, 483, 101 P.3d 1201 (2004).
Based on the record herein, we agree with the district court that the motion, files, and records of the case conclusively establish that Romero is not entitled to any relief and therefore affirm the district court's summary denial of his K.S.A 60–1507 motion.
Affirmed.