Opinion
No. 106,909.
2012-10-19
Ronald BAINUM, Appellee, v. STATE of Kansas, Appellant.
Appeal from Sedgwick District Court; David J. Kaufman, Judge. Lesley A. Isherwood, assistant district attorney, Nolo Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellant. Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellee.
Appeal from Sedgwick District Court; David J. Kaufman, Judge.
Lesley A. Isherwood, assistant district attorney, Nolo Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellant. Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellee.
Before McANANY, P.J., HILL, J., and ALLEN R. SLATER, District Judge, assigned.
MEMORANDUM OPINION
PER CURIAM.
In this appeal, the State asks us to overturn the district court's grant of habeas corpus relief to Ronald Bainum. After finding that the trial court never determined Bainum's competence to stand trial, despite the fact that a motion for a competency evaluation was granted, the habeas corpus court decided Bainum's right to due process had been violated and set aside his convictions. We find no error in the ruling of the court and affirm the grant of habeas corpus relief.
While serving a long prison sentence, Bainum asks for habeas corpus relief.
Ronald Bainum was convicted of two counts of rape, and one count each of aggravated criminal sodomy, aggravated kidnapping, and aggravated battery in 1998. Bainum's convictions and sentence were affirmed by this court in State v. Bainum, No. 83,661, unpublished opinion filed January 12, 2001, rev. denied 271 Kan. 1038 (2001). In March 2010, Bainum filed a K.S.A. 60–1507 motion arguing, among other claims, that his trial counsel was ineffective for failing to determine his competency to stand trial.
Because Bainum's motion was untimely filed, the district court, after entertaining argument of counsel on the matter, decided that Bainum was entitled to an extension of the 1–year limit for filing such motions based on manifest injustice. There is no issue in this appeal about that finding by the district court.
After hearing testimony on the merits of the motion, the district court granted Bainum's K.S.A. 60–1507 motion. The State offered testimony from James L. Pinkerton, Bainum's trial counsel. Bainum's witnesses included himself, Garry Davis (Bainum's friend of 34 years), Ronald Harold Bainum, II (Bainum's son), and Steve Ariagno (another attorney who represented Bainum at trial in the present case and in a second case that commenced after sentencing).
Essentially, the testimony at the habeas corpus hearing revealed that at an initial preliminary hearing on November 6, 1998, Pinkerton moved for a competency examination of Bainum. District Judge Rebecca Pilshaw granted Pinkerton's request, took Bainum's case off the docket, and placed him on electronic monitoring to be supervised by pretrial services. The State did not object to any of these actions by the court. On November 16, 1998, Pinkerton, at Bainum's request, asked to withdraw his motion seeking a competency evaluation. Judge Pilshaw granted Pinkerton's request. The journal entry simply noted: “Defendant withdraws his motion for mental evaluation. Order of November 6, 1998 regarding same is set aside. Prelim set for December 2, 1998 Supervision by pretrial services no longer required nor is EMD required.”
After weighing the testimony from the 60–1507 hearing, the district court found that Pinkerton's representation of Bainum was ineffective because Pinkerton had no statutory or constitutional authority under K.S.A. 22–3302 (Furse) to withdraw his request for a competency hearing for Bainum. The district court concluded that the trial court had no authority to grant Pinkerton's withdrawal request. In addition, the court found that Pinkerton's ineffective assistance was a structural error requiring a new trial for Bainum.
The State brings this appeal, raising four arguments. According to the State, the district court erred in:
(1) determining Pinkerton's representation of Bainum was ineffective and that ineffective assistance was a structural error absolving Bainum of his burden to establish that he suffered prejudice because of Pinkerton's conduct;
(2) assigning the supposed structural error solely to Pinkerton instead of Judge Pilshaw, who granted Pinkerton's request to withdraw his motion requesting a competency examination;
(3) not conducting an invited error analysis despite finding that Pinkerton acted on Bainum's request; and
(4) not conducting a harmless error analysis before reversing Bainum's convictions.
Our jurisdiction focuses mostly on the law.
A claim alleging ineffective assistance of counsel presents mixed questions of fact and law requiring de novo review. Harris v. State, 288 Kan. 414, 416, 204 P.3d 557 (2009). When reviewing a district court's decision on a K.S.A. 60–1507 motion after a district court conducts a full evidentiary hearing, this court must determine whether the district court's factual findings are supported by substantial competent evidence and whether those findings are sufficient to support its conclusions of law. Bellamy v. State, 285 Kan. 346, 354–55, 172 P.3d 10 (2007). This court gives deference to the district court's findings of fact, accepting as true the evidence and any inferences that support or tend to support the district court's factual findings. 285 Kan. at 355. Substantial evidence is defined as evidence possessing both relevance and substance and which provides a substantial basis of fact from which the issues can reasonably be determined. Specifically, substantial evidence refers to legal and relevant evidence that a reasonable person could accept as being adequate to support a conclusion. State v. Walker, 283 Kan. 587, 594–95, 153 P.3d 1257 (2007). This standard of review applies when the district court grants a K.S.A. 60–1507 motion and the State appeals. McHenry v. State, 39 Kan.App.2d 117, 119–20, 177 P.3d 981 (2008).
How this court reviews an ineffective assistance of counsel claim is well settled. Before counsel's assistance is determined to be so defective as to require reversal of a conviction, the defendant first must establish that counsel's performance was constitutionally deficient. This requires a showing that counsel made errors so serious that his or her performance was less than that guaranteed by the Sixth Amendment to the United States Constitution. Harris, 288 Kan. at 416.
To the extent that the State's appeal of the district court's decision here requires statutory interpretation, this court exercises unlimited review. See State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010).
Plain words in a statute must be given their plain meaning.
A defendant is presumed competent to stand trial. State v. Hedges, 269 Kan. 895, 912, 8 P.3d 1259 (2000). But if a question about the competency of a defendant to stand trial arises, our statutes give specific directions that must be followed. K.S.A. 22–3302(1) (which has not been amended since the relevant competency hearing motion in 1998) calls for a suspension of the criminal proceedings and a hearing on the competency question:
“At any time after the defendant has been charged with a crime and before pronouncement of sentence, the defendant, the defendant's counsel or the prosecuting attorney may request a determination of the defendant's competency to stand trial. If, upon the request of either party or upon the judge's own knowledge and observation, the judge before whom the case is pending finds that there is reason to believe that the defendant is incompetent to stand trial the proceedings shall be suspended and a hearing conducted to determine the competency of the defendant.”
It is undeniable that this statute plainly commands the district court to hold a hearing on the competency of the defendant once the court has made the finding that there is a question about the defendant's competency. Also, what cannot be avoided is the language in the statute that plainly states the proceedings shall be suspended.
In addition, our Kansas Supreme Court has given clear instructions on this point. Once the district court determines a competency hearing is statutorily required under K.S.A. 22–3302(1), a criminal prosecution must be suspended until competency is determined. State v. Davis, 281 Kan. 169, 177, 130 P.3d 69, cert. denied 549 U.S. 823 (2006). And failure to suspend the proceedings without conducting a competency hearing violates K.S.A. 22–3302 and a defendant's due process rights under the Fourteenth Amendment to the United States Constitution. Davis, 281 Kan. at 177 (citing Pate v. Robinson, 383 U.S. 375, 384–86, 86 S. Ct 836, 15 L.Ed.2d 815 [1966] ). The ruling in Davis clearly makes the failure to hold a competency hearing a structural error.
We are duty bound to follow Kansas Supreme Court precedent. State v. Jones, 44 Kan.App.2d 139, 142, 234 P.3d 31 (2010), rev. denied 292 Kan. 967 (2011).
We apply these rules to the facts of this case.
When Pinkerton moved the court for a competency determination and the court granted the motion, the court implicitly found that there was reason to believe Bainum was incompetent to stand trial. A district court's order granting a motion for a competency hearing is not required to contain the facts and the legal principles controlling the decision when the State does not oppose the motion. The finding is inherent in the order. Davis, 281 Kan. at 184; see Supreme Court Rule 165 (2011 Kan. Ct. R. Annot. 246). Absent any objection to alleged inadequate findings of fact or legal principles, the district court is presumed to have found all facts necessary to support its order. Hill v. Farm Bur. Mut. Ins. Co., 263 Kan. 703, 706, 952 P.2d 1286 (1998). Consequently, once Judge Pilshaw determined a competency hearing was statutorily required and suspended the proceedings, she had reason to believe Bainum was incompetent to stand trial.
Thus, by operation of law, neither Bainum nor his counsel could withdraw the motion to determine competency, because the criminal proceedings were suspended until a competency determination was made by the court. The trouble here is the district court never made a competency determination. The record reveals that no competency hearing was held.
Other than the journal entry stating, “Defendant withdraws his motion for mental evaluation,” the record does not indicate Bainum received a statutory hearing where competency could be judicially determined before his trial and subsequent conviction. Also, the record does not support the State's assertion that Pinkerton made any “representations” to Judge Pilshaw regarding Bainum's competency and these supposed representations provided justification for Judge Pilshaw to determine Bainum competent. More importantly, the State fails to acknowledge that the district court in the habeas corpus hearing found Pinkerton's testimony that he “never,” before or after he withdrew his competency request, had any concerns about Bainum's competency to proceed to trial was not credible given the district court's factual findings concerning Pinkerton's reasons for his initial request. To the extent that the district court based its ruling on the assessment of witness credibility, the decision is not reviewable by this court. See State v. Moore, 269 Kan. 27, 30, 4 P.3d 1141 (2000).
Bainum cannot waive a determination of his competence once the court made its initial finding of incompetence. It is contradictory to argue that a defendant may be incompetent and yet knowingly or intelligently waive his or her right to have the court determine his or her capacity to stand trial. Pate, 383 U.S. at 384.
We briefly examine some arguments made by the State.
The State argues that in a companion case about a year later, the court held a competency hearing and Bainum was found competent to stand trial at that time. That provides no help. First, the fact that Bainum was found competent to stand trial in another case about a year later does not mean he was competent at the time the question arose in this case. Second, that finding a year later does not eliminate the due process violation created by the failure to suspend the criminal proceeding here.
The State contends the district court erred by attributing the structural error to Pinkerton and not Judge Pilshaw. Frankly, it does not matter who was responsible for the structural error. The law directed the criminal proceeding be suspended. It was not, and according to our Supreme Court that denied Bainum constitutional due process.
Going further, the State claims the district court should have determined if this was invited error. According to the language used by the United States Supreme Court in Pate, an incompetent defendant cannot waive a determination of his or her competence. 383 U.S. at 384. Therefore, there can also be no invited error under circumstances such as these.
Finally, the State argues the district court should have determined if this error was harmless. With the clear ruling from the Kansas Supreme Court in Davis, the district court was precluded from deciding if this was harmless error.
Conclusion
The logic of this case is straightforward. Because Bainum did not receive a competency hearing as required under K.S.A. 22–3302(1), his due process rights were violated. In addition, according to Davis, the district court lacked jurisdiction to proceed with the criminal case. One of the definitions of an illegal sentence is a sentence imposed by a court that lacks jurisdiction. See Davis, 281 Kan. at 174–75. Finally, the court can correct an illegal sentence at any time. K.S.A. 22–3504(1).
We affirm the holding of the district court.