Opinion
No. 107,960.
2013-06-7
Charles L. FREED, Appellant, v. STATE of Kansas, Appellee.
Appeal from Sedgwick District Court; Anthony J. Powell, Judge. Janine Cox, Kansas Appellate Defender Office, for appellant. Matt J. Moloney, assistant district attorney, Nolo Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Anthony J. Powell, Judge.
Janine Cox, Kansas Appellate Defender Office, for appellant. Matt J. Moloney, assistant district attorney, Nolo Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before HILL, P.J., PIERRON and SCHROEDER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Charles L. Freed appeals from the district court's disposition of his K.S.A. 60–1507 motion. He argues the court erred by dismissing as untimely his allegation of ineffective assistance of plea counsel and by denying on the merits his claim of ineffective assistance of sentencing counsel.
On February 9, 2009, without a plea agreement, Freed pled guilty to four counts of burglary, two counts of misdemeanor theft, and two counts of felony theft stemming from four separate incidents.
Freed had a criminal history score of A and committed his crimes while on postrelease supervision in another case. Before sentencing, defense counsel James Mamalis filed a motion for durational departure sentences. He also argued for them at the sentencing hearing, along with alternative arguments for dispositional departure or concurrent sentences.
On April 10, 2009, the district court denied Freed's departure motion and sentenced him to a controlling term of 174 months—34 months in prison for each burglary, 7 months in prison for each felony theft, and 12 months in jail for each misdemeanor theft, all aggravated sentences to run consecutively.
Freed appealed his sentences, arguing the district court erred by denying his motion for durational departure. The Kansas Supreme Court transferred his appeal and granted his motion for summary disposition. On October 29, 2010, the court summarily affirmed Freed's sentences, dismissing his challenge of his controlling presumptive sentence. State v. Freed, No. 102,824, 2010 WL 439051 (Kan.2010) (unpublished opinion).
On August 15, 2011, Freed filed a K.S.A. 60–1507 motion, together with a supporting memorandum of law and personal affidavit. He alleged that trial counsel was ineffective for (1) rejecting a plea offer without his knowledge and (2) arguing for sentences that were contrary to the sentencing guidelines. Freed made the following specific claims:
• Mamalis told him “the State offered a plea bargain of 90 some months.”
• Mamalis did not share any details with him, like “which charges the State was willing to drop, what the State would recommend at Sentencing, or whether a downward departure was offered .”
• Before leaving the room, Mamalis said, “We're not taking this, it is unacceptable” and “it is just too much time for Burglary.”
• Mamalis rejected the plea agreement without his knowledge or consent.
• Mamalis threw him at “the mercy of the court without any kind of agreement with the State and knowing full well that [he] was facing 174 months of incarceration.”
• Mamalis argued for probation, which cannot be granted to “anyone with an ‘A’ criminal history.”
• Mamalis argued for concurrent sentences, which cannot be imposed “when crimes are committed while on Probation, Parole, or Community Corrections.”
• “[T]he court had no disgression [ sic ] other than the term of imprisonment,” but Mamalis never argued for durational departure sentences.
After a nonevidentiary hearing, the district court dismissed in part and denied in part Freed's 60–1507 motion. The court ruled that Freed's challenge of his plea was untimely and lacked the required showing of manifest injustice. Specifically, the court found: (1) “You can't directly appeal your case once you've pled”; (2) “An appeal of your sentence is not a direct appeal”; and (3) Freed had 1 year from February 9, 2010, to file his motion. The court reasoned: “Combining the plain language of K.S.A. 60–1507(f), [State v.] Hall[, 292 Kan. at 866–67,] and Wilkerson [v. State, 38 Kan.App.2d at 734], it is clear that the time limitation to seek withdrawal of a plea is not extended by a mere sentencing appeal.” The court also ruled that even if Freed's motion was construed as a motion to withdraw plea, it was still untimely. Specifically, the court found that Freed had 1 year from the effective date of K.S.A.2009 Supp. 22–3210(e) to file his motion.
The district court also rejected Freed's challenge of his sentences on the merits. Specifically, the court found that (1) filing a departure motion “never” constitutes ineffective assistance of counsel, (2) there was no showing that Mamalis lacked good faith in making his sentencing arguments, and (3) prejudice was not established, given Freed's failure to suggest arguments that should have been made. Freed timely appeals.
Freed's main argument is that the district court should not have dismissed as untimely his allegation of ineffective assistance of plea counsel. Specifically, he claims that his K.S.A. 60–1507 motion was timely because it was filed within 1 year of the Kansas Supreme Court's denial of his direct appeal from his sentence. The State counters that his motion was untimely because it was not filed within 1 year of the termination of appellate jurisdiction over the direct appeal from his convictions.
Resolution of this issue requires interpretation of K.S.A. 60–1507's time limitation. Interpretation and application of a statute of limitations is a question of law over which an appellate court's review is unlimited. Law v. Law Company Building Assocs., 295 Kan. 551, 566, 289 P.3d 1066 (2012).
A habeas corpus motion “must be brought within one year of ... [t]he final order of the last appellate court in this state to exercise jurisdiction on a direct appeal or the termination of such appellate jurisdiction.” K.S.A. 60–1507(f)(1)(i); see K.S.A. 22–3210(e)(1) (same time limitation on postsentence motion to withdraw plea). “No appeal shall be taken by the defendant from a judgment of conviction before a district judge upon a plea of guilty or nolo contendere, except that jurisdictional or other grounds going to the legality of the proceedings may be raised by the defendant as provided in K.S.A. 60–1507.” K.S.A. 22–3602(a); see State v. Coman, 294 Kan. 84, 90, 273 P.3d 701 (2012) (noting that K.S.A. 22–3602(a) prohibits any direct appeal from conviction after guilty plea).
The Kansas Supreme Court recently stated: “A defendant cannot take a direct appeal from a conviction flowing from a guilty plea,” but he can take a direct appeal from his sentence. State v. Hall, 292 Kan. 862, 867–68, 257 P.3d 263 (2011). After pleading guilty, Hall attempted to take a direct appeal from his conviction, arguing that his plea was defective because he was incompetent and did not receive the proper advisories. Because no motion to withdraw plea was filed in district court, Hall's conviction appeal was dismissed for lack of jurisdiction. 292 Kan. at 866–68.
This court has held that a direct appeal of a probation revocation does not extend the 1–year window for filing a K.S.A. 60–1507 motion challenging the initial plea, conviction, or sentence. In other words, a habeas motion following the conclusion of a probation revocation appeal can only raise issues stemming from the revocation proceeding. Wilkerson v. State, 38 Kan.App.2d 732, 734, 171 P.3d 671 (2007). Many panels of this court have followed the Wilkerson rationale. See, e.g., Patterson v. State, No. 106,149, 2012 WL 2924608, at *3 (Kan.App.2012) (unpublished opinion), petition for review filed August 13, 2012.
We must decide whether a K.S.A. 60–1507 motion following the conclusion of a sentencing appeal can only raise issues stemming from the sentencing proceedings. Hall clarifies that because Freed pled guilty, he could not have filed a direct appeal from his convictions. But he could have filed—and did file—a direct appeal from his sentence. Extension of the Wilkerson rationale to this case would mean that the 1–year period for filing a habeas motion varies depending on the issue being raised. Meaning, Freed would have had to file his habeas motion challenging his plea convictions within 1 year of entering his guilty pleas, long before our Supreme Court denied his sentencing appeal. Moreover, because he sought to challenge both his plea and sentencing proceedings, he would have had to file multiple habeas motions—one alleging ineffective assistance of plea counsel (on or before February 9, 2010) and the other alleging ineffective assistance of sentencing counsel (on or before October 29, 2010).
We hold that a direct appeal of a sentence extends the 1–year time limit for filing a K.S.A. 60–1507 motion challenging a plea. In other words, a 60–1507 motion following the conclusion of a sentencing appeal can raise issues stemming from both the plea and sentencing proceedings. This position is supported by two decisions of this court. In reaching its holding, the Wilkerson court reasoned that because “any opportunity for appellate jurisdiction to review his plea, his resulting conviction, or his sentence on direct appeal expired when he failed to file a notice of appeal within [10] days of the sentencing,” his 60–1507 motion challenging his plea, conviction, and sentence had to have been filed within 1 year of such expiration. See 38 Kan.App.2d at 734. It follows that if Wilkerson had filed a direct appeal, he would have had 1 year from the conclusion of that appeal to file a 60–1507 motion.
In Baker v. State, 42 Kan.App.2d 949, 219 P.3d 827 (2009), rev. granted 291 Kan. 910 (2010), a panel of this court held that where a defendant is resentenced after a direct appeal, the 1–year time limit for filing a K.S.A. 60–1507 motion starts to run when the time for filing another direct appeal expires, not when the resentencing decision is filed. The Baker court opined:
“Clearly, the legislature's intent in enacting the 1 -year time limitation was to require habeas petitions be filed in a timely manner and to prevent stale claims from being raised years after the resolution of a criminal case. In other words, the legislature was seeking to encourage an efficient judicial system.
....
“The K.S.A. 60–1507 statute, however, is not to be used in such a way as to thwart the policy against piecemeal appeals. In Dunlap v. State, 221 Kan. 268, 270, 559 P.2d 788 (1977), our Supreme Court stated this about the great writ: ‘Some degree of finality in the criminal appeal process must be achieved to prevent endless piecemeal litigation in both the state and federal courts. The time consumed and wasted by piecemeal litigation impedes the dispatch of business in the courts.’ “ 42 Kan.App.2d at 953.
To avoid clogging the Kansas courts with piecemeal 60–1507 motions, we hold that Freed's motion challenging his plea proceedings was timely because it was filed within 1 year of the conclusion of his direct sentencing appeal.
Accordingly, this case is reversed and remanded for a determination by the district court of whether Freed's 60–1507 motion—alleging that his counsel was ineffective for rejecting the State's 90–month plea offer and then advising him to plead guilty without an agreement—raised a substantial issue requiring an evidentiary hearing.
Freed's other argument is that the district court should not have denied his 60–1507 motion on the merits of his allegation of ineffective assistance of sentencing counsel. Specifically, he argues that his 60–1507 motion alleging—his counsel was ineffective for arguing for dispositional departure and concurrent sentences—raised a substantial issue requiring an evidentiary hearing.
An appellate court exercises de novo review of a district court's denial of a K.S.A. 60–1507 motion based on the files and records of the case and counsel's legal argument at a nonevidentiary hearing. Barr v. State, 287 Kan. 190, 196, 196 P.3d 357 (2008).
The district court did not err by denying on the merits Freed's K .S.A. 60–1507 challenge of his sentencing proceedings
A district court has three available options to use in resolving a K.S.A. 60–1507 motion. First, the 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 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 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. Albright v. State, 292 Kan. 193, 196, 251 P.3d 52 (2011).
To support a claim for ineffective assistance of counsel, a defendant must prove (1) counsel's performance fell below an objective standard of reasonableness and (2) the defendant suffered prejudice as a result of counsel's performance. Trotter v. State, 288 Kan. 112, 128, 200 P.3d 1236 (2009).
“A court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of alleged deficiencies.” Edgar v. State, 294 Kan. 828, Syl. ¶ 4, 283 P.3d 152 (2012). To prove prejudice, the defendant must demonstrate a reasonable probability that, but for counsel's deficient performance, the result of the proceedings would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome of those proceedings. Harris v. State, 288 Kan. 414, 416, 204 P.3d 557 (2009).
Even if Freed's assertion the district court lacked discretion to impose dispositional departure or concurrent sentences is correct, he has not made the requisite showing of prejudice. Mamalis filed a motion for durational departure sentences and argued for them at the sentencing hearing. The court found there was “no reason to grant him a dispositional or durational departure,” given the fact that he had “chosen a life of crime” and had “had a considerable impact on society [through] property crimes.” Freed cannot show a reasonable probability that, but for counsel's deficient performance, the result of the proceedings would have been different. If Mamalis had not argued for dispositional departure or concurrent sentences, Freed still would have received aggravated consecutive sentences.
Therefore, the district court correctly ruled that Freed's 60–1507 motion alleging ineffective assistance of sentencing counsel did not raise a substantial issue requiring an evidentiary hearing.
Affirmed in part, reversed in part, and remanded with directions.