Opinion
111,620.
06-05-2015
James SPOONER, Appellant, v. STATE of Kansas, Appellee.
Michael P. Whalen and Krystle M.S. Dalke, of Law Office of Michael P. Whalen, of Wichita, for appellant. Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Michael P. Whalen and Krystle M.S. Dalke, of Law Office of Michael P. Whalen, of Wichita, for appellant.
Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., ARNOLD–BURGER and GARDNER, JJ.
MEMORANDUM OPINION
PER CURIAM.
James J. Spooner appeals the district court's summary denial of his K.S.A. 60–1507 motion. Spooner claims the district court should have held an evidentiary hearing on his motion and should have issued more detailed findings regarding all of his claims. For the reasons stated herein, we affirm the district court's judgment.
On June 1, 2011, the State charged Spooner with two counts of aggravated battery and one count of domestic battery. Throughout the proceedings, Spooner expressed discontent with his appointed counsel, but the district court denied his request for new counsel. Just prior to trial, the district judge learned that Spooner was planning to hit his attorney during the trial in order to obtain different counsel. At a pretrial hearing in which Spooner indicated he wanted to waive his right to a jury trial, the judge investigated the report about Spooner hitting his attorney and spoke with Spooner about his dissatisfaction with counsel. Spooner's counsel stated that he was willing to continue to represent Spooner. At the conclusion of the hearing, the district court provided an opportunity for Spooner to speak privately with his attorney in the courtroom.
At the bench trial, the district court found Spooner guilty of two counts of aggravated battery. After the trial, Spooner filed a pro se “Request for New Counsel” in which he alleged that his counsel had provided ineffective assistance at the bench trial. At sentencing, Spooner complained that his trial counsel had failed to point out (1) that there were no dental records to support the victim's testimony that Spooner had knocked out part of her teeth during the battery and (2) inconsistencies between notes in the victim's medical chart and her trial testimony. After counsel confirmed that his actions were dictated by trial strategy, the district court found that trial counsel had provided effective assistance and that even if trial counsel had taken the action Spooner desired, the court would not have reached a different verdict. The district court then sentenced Spooner to 41 months' imprisonment.
Following his sentencing, Spooner pursued a direct appeal, in which his sole issue was “that his Sixth Amendment to the United States Constitution right to conflict-free counsel was violated when the district court failed to appoint new counsel to represent him in order to present claims that his trial counsel was ineffective.” State v. Spooner, No. 107,099, 2013 WL 1149681, *1 (Kan.App.2013) (unpublished opinion), rev. denied 297 Kan. 1255 (2013). This court rejected Spooner's claim and affirmed his convictions, and our Supreme Court denied Spooner's petition for review. 2013 WL 1149681, at *5.
On November 6, 2013, Spooner filed a motion pursuant to K.S.A. 60–1507, claiming four grounds upon which he based his claim that he was unlawfully being held in custody. First, Spooner alleged that the district court erred “in it's [sic ] failure to thoroughly investigate attorney-client relationship after rumors surfaced that petitioner had at some point made threats towards court appointed trial counsel; also it's [sic ] failure to recognize that the relationship was greatly [a]ffected by the above stated rumor.” Spooner's second asserted ground for relief was that the district court violated the Kansas Code of Judicial Conduct (KCJC) Rule 2.14 (2014 Kan. Ct. R. Annot. 771) by “failing to take appropriate action where a plausible emotional conflict existed on behalf of trial counsel due to above stated rumor.” Third, Spooner claimed his trial counsel had violated KPRC Rule 1.7(a)(2) and (b)(4) (2014 Kan. Ct. R. Annot. 531) by “not seeking to withdraw[ ] from petitioner's case due to the above stated rumor.” Finally, Spooner asserted his fourth ground: that the district court violated KCJC Rule 2.15(B) and (D) (2014 Kan. Ct. R. Annot. 771) by “allowing trial counsel to represent petitioner when there was a substantial likelyhood [sic ] that counsel was in violation of K.R.P.C.”
It does not appear that the State filed an answer or that the district court held any hearing on the motion. Instead, the district court filed a motion minutes order denying the motion and stating: “Petitioner has failed to state any grounds for which the petition is based. Denied.” Spooner timely appealed the district court's judgment.
On appeal, Spooner argues that the district court erred by summarily denying his K.S.A. 60–1507 motion. Spooner argues that the district court failed to make all required findings of fact under Supreme Court Rule 183 (2014 Kan. Ct. R. Annot. 285), which governs K.S.A. 60–1507 motions. He also argues that the district court should have held an evidentiary hearing on his motion. In response, the State first contends that Spooner's assertions of inadequate findings must fail because Spooner did not object to the allegedly inadequate findings in the district court. The State also argues that the district court properly denied the motion because it failed to state grounds that entitled Spooner to any relief.
“Generally, when presented with a K.S.A. 60–1507 motion, a district judge has three procedural options for handling the motion. One option is to summarily deny the motion without appointing counsel or conducting an evidentiary hearing. A summary denial is appropriate only if the motion, files, and records of the case conclusively show that the movant is not entitled to relief. [Citations omitted.] To avoid summary denial of the motion, “ ‘[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.’ “ [Citation omitted.] ...
“When a district judge summarily denies a K.S.A. 60–1507 motion, an appellate court reviews that decision using a de novo standard of review. [Citation omitted.] This standard requires an appellate court to determine whether the motion, files, and records of the case conclusively show the movant is not entitled to any relief. [Citation omitted.]” Edgar v. State, 294 Kan. 828, 836–37, 283 P.3d 152 (2012).
Initially, we reject Spooner's assertion that remand is required because the district court failed to prepare detailed findings of fact and conclusions of law pursuant to Supreme Court Rule 183(j). Our Supreme Court has indicated that Rule 183(j) is only applicable when a district court holds a preliminary or full evidentiary hearing on a K.S.A. 60–1507 motion. See Bellamy v. State, 285 Kan. 346, 354, 172 P.3d 10 (2007). Because the district court here denied Spooner's K.S.A. 60–1507 motion without holding a preliminary or evidentiary hearing, this court exercises de novo review, which is not impeded by a lack of written factual findings or legal conclusions by the district court. There is no need to remand to obtain such findings and conclusions.
We now turn to Spooner's claim that the district court should have held an evidentiary hearing on his motion. A summary denial of a K.S.A. 60–1507 motion is appropriate only if the motion, files, and records of the case conclusively show that the movant is not entitled to relief. Edgar, 294 Kan. at 837.
On appeal, Spooner argues the merits of only one claim—that he was denied his constitutional right to conflict-free representation at the jury trial waiver and sentencing hearings. He fails to argue the merits of his other three asserted grounds for relief, which alleged that trial counsel and the district judge violated applicable rules of professional conduct. Accordingly, he has waived and abandoned those claims. See State v. Boleyn, 297 Kan. 610, 633, 303 P.3d 680 (2013) (issue not briefed by appellant deemed waived).
The district court's failure to appoint conflict-free counsel at the sentencing hearing to represent Spooner in arguing his claims of ineffective assistance of trial counsel was raised and resolved in Spooner's direct appeal. See Spooner, 2013 WL 1149681, at *1–2. Our Supreme Court has long held that points decided on direct appeal may not be raised again in proceedings under K.S.A. 60–1507. See Eaton v. State, 206 Kan. 187, 187–88, 476 P.2d 694 (1970) ; Supreme Court Rule 183(c)(3). Because this court heard and decided on direct appeal the issue of the district court's failure to appoint alternative counsel at the sentencing hearing, we will not consider the issue again in the context of this K.S.A. 60–1507 proceeding.
Turning to Spooner's argument to the K.S.A. 60–1507 court—the only argument properly before this court for appellate review—that the district court erred by failing to adequately investigate his relationship with trial counsel after it came to light that Spooner had allegedly planned to hit trial counsel, the State argues that Spooner should have raised this issue in his direct appeal as well and that his failure to do so bars him from raising the issue in a K .S.A. 60–1507 motion. Clearly, Spooner could have raised on direct appeal the district court's alleged failure to adequately inquire at the pretrial hearing into a potential conflict between him and trial counsel caused by the alleged threat. This is an issue that appellate courts have considered in the context of direct appeals since long before Spooner began his direct appeal. See, e.g., State v. Jenkins, 257 Kan. 1074, 1084, 898 P.3d 1121 (1995) (where trial court is advised of a possible conflict of interest with counsel, court is required to initiate an inquiry to insure the defendant's right to counsel is not violated), overruled on other grounds by Mickens v. Taylor, 535 U.S. 162, 122 S.Ct. 1237, 152 L.Ed.2d 291, reh. denied 535 U.S. 1074 (2002).
But as the State acknowledges, Supreme Court Rule 183(c)(3) allows that “trial errors affecting constitutional rights may be raised even though the error could have been raised on appeal, provided exceptional circumstances excuse the failure to appeal.” (2014 Kan. Ct. R. Annot. 286.) Exceptional circumstances include intervening changes in the law. See Holt v. State, 290 Kan. 491, 496, 232 P.3d 848 (2010).
Spooner asks that we consider his claim “in light of” State v.. Prado, 299 Kan. 1251, 329 P.3d 473 (2014). However, as the State points out, Spooner fails to brief how Prado constitutes an exceptional circumstance that would excuse his failure to raise the issue in his direct appeal. In Prado, our Supreme Court considered the defendant's right to conflict-free counsel in his claim of ineffective assistance of counsel. See 299 Kan. at 1256–60. But the court in Prado did not create any new law on this issue. Thus, Prado does not constitute an exceptional circumstance that allows Spooner to raise this issue.
To summarize, Spooner's K.S.A. 60–1507 motion contained four alleged grounds for relief. The first, that the district court failed to properly inquire into a potential conflict between Spooner and his attorney at a pretrial hearing, could have been raised in Spooner's direct appeal. Because Spooner does not articulate an exception to the general rule that issues appropriate for a direct appeal may not be raised in a subsequent K.S.A. 60–1507 motion, that issue is not properly before this court. Spooner has not briefed the merits of the three remaining grounds in his motion and has thereby waived and abandoned them. For these reasons, the district court did not err by summarily denying Spooner's K.S.A. 60–1507 motion. 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.