Opinion
No. 106,740.
2012-07-20
Rojelio BARRON, Appellant, v. STATE of Kansas, Appellee.
Appeal from Douglas District Court; Robert W. Fairchild, Judge. Gerald E. Wells, of Lawrence, for appellant. Patrick J. Hurley, assistant district attorney, Charles E. Branson, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Douglas District Court; Robert W. Fairchild, Judge.
Gerald E. Wells, of Lawrence, for appellant. Patrick J. Hurley, assistant district attorney, Charles E. Branson, district attorney, and Derek Schmidt, attorney general, for appellee.
Before GREENE, C.J., MALONE and ATCHESON, JJ.
MEMORANDUM OPINION
PER CURIAM.
Rojelio Barron appeals the district court's denial of his K.S.A. 60–1507 motion. He argues for the first time on appeal that his due process rights under the United States Constitution were violated by the nearly 2–year delay between the filing of his motion and the evidentiary hearing on his motion. We decline to address Barron's constitutional argument being raised for the first time on appeal, and accordingly we affirm the district court's judgment.
We will summarize the procedural history of Barron's case leading to this appeal. In 2005, Barron pled no contest to one count of attempted first degree murder and was sentenced to a presumptive term of 155 months' imprisonment. The only issue Barron raised in his direct appeal was that the district court erred in imposing the Board of Indigents' Defense Services (BIDS) attorney fees. This court vacated the order to pay BIDS attorney fees and remanded on that issue but otherwise upheld Barron's sentence. State v. Barron, No. 97,378, 2008 WL 1722206 (Kan.App.2008) (unpublished opinion).
On August 8, 2008, Barron filed a K.S.A. 60–1507 motion, arguing generally that the complaint in his case was fatally defective; that due to the fatally defective complaint, the district court lacked jurisdiction to accept his plea and sentence him; and that the evidence did not support his conviction of attempted first degree murder. Barron also argued that his trial and appellate counsel were ineffective for failing to raise these issues. Barron later filed an amended K.S.A. 60–1507 motion alleging that his plea was not voluntarily and intelligently made. On September 15, 2008, the district court appointed counsel to represent Barron in the K.S.A. 60–1507 proceedings.
According to the docket sheet contained in the record on appeal, the district court held status conferences on March 6, 2009, and September 15, 2009. On November 2, 2009, Barron filed a brief in support of his K.S.A. 60–1507 motion. The State filed its response brief on December 14, 2009, and conceded that a hearing may be necessary to resolve the issue of whether Barron's plea was voluntarily and intelligently made.
On January 29, 2010, the district court inadvertently filed a notice of intended dismissal for lack of prosecution. Barron's counsel filed a response explaining that the briefs had been filed and the parties were waiting for an evidentiary hearing to be scheduled. On April 7, 2010, Barron's counsel filed a motion to withdraw which was ultimately denied by the district court.
On July 15, 2010, the district court held an evidentiary hearing on Barron's K.S.A. 60–1507 motion. Barron and his trial counsel both testified as to the circumstances surrounding the voluntariness of the plea. The district court took the matter under advisement. On August 13, 2010, the district court filed a memorandum decision on the motion, denying all claims. The district court found that the complaint alleging attempted first degree murder was not fatally defective. Regarding the voluntariness of the plea, the district court found that Barron failed to meet his burden that the plea was rendered involuntary based on his educational background and medical limitations. The district court also found that Barron understood the elements of the offense of attempted first degree murder. Specifically, the district court found that trial counsel had orally informed Barron that premeditation was an element of first degree murder. Thus, the district court concluded that trial counsel's representation was not deficient, and even if trial counsel's representation was deficient, Barron had failed to show prejudice. Because the district court concluded that Barron's trial counsel was not ineffective for failing to raise issues at trial, the district court found that Barron's appellate counsel was not ineffective for failing to raise the same issues on appeal. Barron timely appealed the district court's judgment.
The only issue Barron raises on appeal is that his due process rights under the United States Constitution were violated by the nearly 2–year delay between the filing of his K.S.A. 60–1507 motion and the evidentiary hearing on the motion. Barron argues that under K.S.A. 60–1507(b), unless the district court conclusively finds that the movant is entitled to no relief, the district court shall grant a “prompt” hearing on a motion to determine the issues and make findings of fact and conclusions of law. Barron further contends that a 2–year delay presumptively violates due process and that no prejudice inquiry is necessary. The State argues that there are no due process rights to a prompt hearing under K.S.A. 60–1507, but in any case, Barron's purported due process rights were not violated because the State did not unduly cause the delay and Barron was not prejudiced by the delay.
Barron does not challenge any of the district court's findings of fact or conclusions of law set forth in the memorandum decision denying his K.S.A. 60–1507 motion. Therefore, Barron has waived any argument regarding the district court's reasons for denying the motion. An issue not briefed by the appellant is deemed waived and abandoned. State v. McCaslin, 291 Kan. 697, 709, 245 P.3d 1030 (2011).
Barron concedes that the constitutional issue he now raises on appeal was never raised before the district court. Generally, constitutional grounds for reversal asserted for the first time on appeal are not properly before the appellate court for review. Miller v. Bartle, 283 Kan. 108, 119, 150 P.3d 1282 (2007). However, Barron summarily argues that this court should consider his claim for the first time on appeal in order to serve the ends of justice and to prevent a denial of fundamental rights. See State v. Warledo, 286 Kan. 927, 938, 190 P.3d 937 (2008). We will briefly summarize Barron's argument and then determine whether we should address the issue for the first time in this appeal.
The primary case on which Barron relies is State v. Bussart–Savaloja, 40 Kan.App.2d 916, 198 P.3d 163 (2008), rev. denied 288 Kan. 833 (2009). In Bussart–Savaloja, the defendant was sentenced in July 2005 for driving under the influence of alcohol. She filed a timely pro se notice of appeal and the district court stayed her sentence pending the appeal. For unknown reasons, the defendant's appellate counsel did not receive notice of appointment until January 2007. Briefing on the appeal was completed in June 2008, and oral arguments were held in October 2008. 40 Kan.App.2d at 919–20.
On appeal, the defendant argued that the unexplained delay in processing her direct appeal violated her due process rights under the United States Constitution. 40 Kan.App.2d at 920. This court addressed the defendant's due process claim and applied a modified version of the constitutional speedy trial balancing test articulated in Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Under the Barker test, the four factors to be balanced in determining whether a defendant's due process right to a speedy trial has been violated are: (1) the length of the delay; (2) the reasons for the delay; (3) the defendant's assertion of his or her right; and (4) prejudice to the defendant. 407 U.S. at 530. Applying those factors to the defendant's claim, the Brussart–Savaloja court ultimately concluded that the defendant had failed to establish that the delay in her direct appeal had deprived her of due process. 40 Kan.App.2d at 926.
We now return to the threshold question of whether we should address the merits of Barron's constitutional claim being raised for the first time on appeal. Here, Barron filed no pleadings in the district court challenging the delay in processing his K.S.A. 60–1507 motion, and obviously the district court did not conduct a hearing on the issue or make any findings. Assuming that Barron has a constitutional right to a prompt resolution of his state post-conviction collateral proceedings, he did not assert his right in district court. There is nothing in the record to explain the reasons for the delay in scheduling Barron's motion for an evidentiary hearing. More importantly, Barron makes no attempt to argue that he was prejudiced by the delay. Barron cites no legal authority for his contention that a 2–year delay presumptively violates due process and that no prejudice inquiry is necessary. Failure to support a point with pertinent authority or show why it is sound despite a lack of authority is akin to failing to brief the issue. State v. Berriozabal, 291 Kan. 568, 594, 243 P.3d 352 (2010). An issue not briefed by the appellant is deemed abandoned. McCaslin, 291 Kan. at 709.
We note that Barron could have filed a petition for a writ of habeas corpus under K.S.A. 60–1501, either in the district court or the appellate courts, if he believed he was being unconstitutionally detained or confined as a result of the delay in processing his post-conviction proceedings. Barron failed to pursue this remedy. Barron's claim that his due process rights were violated because he did not receive a prompt hearing on his K.S.A. 60–1507 motion would be an issue of first impression in Kansas. But we are presented with no adequate record in which to fairly and properly evaluate the merits of Barron's claim, if indeed such a claim exists. Under the circumstances, we do not see how addressing Barron's claim for the first time on appeal would serve the ends of justice or prevent a denial of fundamental rights. Accordingly, we decline Barron's request to address his constitutional claim for the first time on appeal. Because he has brought no other grounds of error on appeal, the judgment of the district court will not be disturbed. See McCaslin, 291 Kan. at 709.
Affirmed.