Opinion
No. 110,401.
2014-10-3
Octavio BAUTISTA, Jr., Appellant, v. STATE of Kansas, Appellee.
Appeal from Sedgwick District Court; James R. Fleetwood, Judge.Janine Cox, of Kansas Appellate Defender Office, for appellant.Lance J. Gittett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; James R. Fleetwood, Judge.
Janine Cox, of Kansas Appellate Defender Office, for appellant. Lance J. Gittett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., GREEN and BUSER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Octavio L. Bautista, Jr., appeals the district court's denial in part of his K.S.A. 60–1507 motion, in which he alleges ineffective assistance of both his trial counsel and the counsel who represented him during probation revocation proceedings. The district court denied the motion in part after a preliminary hearing, and Bautista now argues that the district court should have held an evidentiary hearing on his claims. Finding no error, we affirm the district court's judgment.
On September 14, 2011, pursuant to a plea agreement, Bautista pled guilty to one count of aggravated indecent liberties with a child. On November 2, 2011, the district court sentenced Bautista to 71 months' imprisonment but granted his motion for dispositional departure and placed him on probation for 36 months. In May 2012, the State initiated probation revocation proceedings. After holding an evidentiary hearing on June 26, 2012, the district court revoked Bautista's probation and ordered him to serve his underlying prison sentence.
On September 28, 2012, Bautista filed a pro se motion for relief pursuant to K.S.A. 60–1507. Bautista alleged that a protection from abuse order filed in the underlying case was not handled correctly and that his retained trial attorney only met with him once, would not return his calls, and did not respond to attempts by Bautista's sister to contact him. Bautista also informed the court that he later discovered his attorney had been “running for Judge.”
The district court appointed counsel to represent Bautista; Bautista's counsel then filed a “Pre-trial Questionnaire.” That pleading identified two claims: (1) trial counsel was ineffective because he pressured or coerced Bautista into pleading guilty and (2) counsel at Bautista's probation violation hearing was ineffective when he failed to sufficiently discuss or investigate the probation violation allegations, failed to properly prepare for the hearing, failed to adequately communicate with Bautista and his family, and failed to appeal the revocation of probation despite Bautista's request that he do so.
The State filed a response to Bautista's motion, asking the district court to deny the motion in part and continue it in part. The State argued that Bautista's attack on his guilty plea was barred as untimely and that Bautista's challenges to his trial counsel's effectiveness should fail because they were conclusory and offered no evidentiary basis for the allegations. Specifically, the State pointed out that Bautista had not explained how his counsel's election campaign adversely affected his performance. The State also asserted that Bautista failed to proffer any specifics on how his counsel at the probation violation hearing failed to adequately defend him. Regarding Bautista's complaint that counsel had failed to appeal his probation revocation, the State requested that the district court order the transcript of the probation violation hearing so that the parties could review it and submit additional pleadings on the issue.
The district court held a nonevidentiary hearing on February 7, 2013. Bautista's counsel relied upon the assertions made in the pretrial questionnaire and admitted that, other than Bautista's own statements, he had no evidence to support the allegations that Bautista was pressured or coerced into the plea. He emphasized the failure by counsel to file an appeal from the probation revocation. In response, the State asked the district court to find that Bautista's attack on his plea was barred as untimely. The State additionally argued that Bautista had not provided the court with any allegations that would require an evidentiary hearing on the motion. Because the judge presiding over the hearing was the same judge who presided over the probation violation hearing, the State asked the district court to find that counsel's performance at the probation violation hearing was effective. As for counsel's failure to appeal the probation revocation, the State repeated its request that the district court order the transcript for further review.
After hearing the parties' arguments, the district judge stated:
“I am going to find at this point in time there is nothing justifying the untimely effort to withdraw the plea. There is nothing supportive of that, so that part of the motion is denied.”
“As to the statements that there was ineffective assistance of counsel suggesting that this arose out of Mr. Nelson'[s] campaigning at the time simply doesn't hold water. It's a historical practice of lawyers running for judge to continue their practice during that time frame. There has never been an example out—as suggested out of a conflict of interest where there was an ineffective assistance of counsel derived solely from the fact that an individual is also running for judge. The petitioner's statements are mere conclusory statements without any evidentiary support.”
“Now, whether or not an appeal out of time should be considered, that is a matter that should be taken up first through a review of the transcript, a determination of that from that hearing. I will order that the transcript be made available to counsel for review. This hearing will be set over for further argument then.”
On February 14, 2013, the district court filed an order denying Bautista's K.S.A. 60–1507 motion in part. The district court made written findings that paralleled the findings it made on the record at the hearing, which it also incorporated by reference. The district court also found that “[t]he motions, files and records conclusively show [Bautista] is not entitled to withdraw his plea or a new probation violation hearing.” Regarding Bautista's assertion that his attorney failed to appeal the probation revocation despite Bautista's wishes, the district court ordered a transcript of the probation violation hearing and scheduled a preliminary, nonevidentiary hearing “solely to address [Bautista's] request for an untimely appeal of his probation revocation.”
The record does not reflect that the district court held any further hearings on Bautista's K.S.A. 60–1507 motion. However, on April 17, 2013, the district court filed an order in which it ruled that Bautista was entitled to an out-of-time appeal of his probation revocation under State v. Ortiz, 230 Kan. 733, 640 P.2d 1255 (1982), and State v. Patton, 287 Kan. 200, 195 P.3d 753 (2008). Bautista's appeal from the probation revocation is currently before this court in State v. Bautista, No. 110,400. The instant appeal, however, covers the district court's denial of the remainder of Bautista's K.S.A. 60–1507 motion, from which Bautista timely appealed.
On appeal, Bautista argues that the district court erred in denying his K.S.A. 60–1507 motion in part without first holding an evidentiary hearing. Bautista makes two separate claims: (1) he should have received an evidentiary hearing on his claim of ineffective assistance of trial counsel and (2) he should have received an evidentiary hearing on his claim of ineffective assistance of counsel at the probation violation hearing. The State maintains that Bautista was not entitled to an evidentiary hearing
Our Supreme Court recently reiterated the three options available to a district court in addressing a K.S.A. 60–1507 motion:
“(1) The court may determine that the motion, files, and case records conclusively show the prisoner is entitled to no relief and deny the motion summarily; (2) the court may determine from the motion, files, and records that a potentially substantial issue exists, in which case a preliminary hearing may be held. If the court then determines there is no substantial issue, the court may deny the motion; or (3) the court may determine from the motion, files, records, or preliminary hearing that a substantial issue is presented requiring a full hearing.” Fischer v. State, 296 Kan. 808, 822–23, 295 P.3d 560 (2013).
As Bautista notes, our Supreme Court has stated that when a district court denies relief under K.S.A. 60–1507 based solely on counsel's legal argument at a nonevidentiary hearing and the court's review of the files and records of the case, an appellate court is in as good a position as the district court to consider the motion's merits. See Barr v. State, 287 Kan. 190, 196, 196 P.3d 357 (2008). Because the district court here did not admit evidence at the preliminary hearing and denied relief based solely on legal arguments and review of the case, this court reviews the denial de novo. 287 Kan. at 196, 196 P.3d 357.
To avoid the summary denial of a K.S.A. 60–1507 motion, a movant bears the burden of establishing entitlement to an evidentiary hearing. To meet this burden, a movant's contentions must be more than conclusory, and either the movant must set forth an evidentiary basis to support those contentions or the basis must be evident from the record. Edgar v. State, 294 Kan. 828, 836, 283 P.3d 152 (2012). The district court shall hold an evidentiary hearing unless the motion and the files and records of the case conclusively show the movant is not entitled to relief. K.S.A. 60–1507(b).
To establish ineffective assistance of counsel, the defendant must establish (1) that counsel's performance was constitutionally deficient, which 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, and (2) that counsel's deficient performance prejudiced the defense, which requires a showing that counsel's errors were so severe as to deprive the defendant of a fair trial. State v. Cheatham, 296 Kan. 417, 431, 292 P.3d 318 (2013). Trial Counsel
Bautista argues that the district court erred in denying his claim of ineffective assistance of trial counsel; specifically, Bautista points to his three separate motions to remove counsel prior to his plea. He contends that the fact that counsel continued to represent him “raises questions of adequate representation” that cannot be resolved without an evidentiary hearing. Initially, as the State notes, Bautista's claim to the district court was that trial counsel was ineffective for pressuring or coercing him into entering a plea and the district court rejected that argument as untimely. Bautista does not specifically challenge this finding on appeal; rather, he argues generally that without further evidence, neither the district court nor this court can ascertain whether trial counsel provided adequate representation.
The only support Bautista gives for his position is the fact that he filed three separate motions for new trial counsel prior to his plea. However, the record shows that Bautista withdrew two of those motions. The district court denied the third motion in a minute order without further explanation. The record also shows that less than 1 month later, at the plea hearing, Bautista explicitly acknowledged to the district court that his trial counsel had provided satisfactory services, had met with Bautista, had talked with him about the case, had discussed strategy, had asked Bautista what he wanted to do, and had “been a good lawyer.”
To avoid summary denial of a K.S.A. 60–1507 motion, a movant bears the burden of establishing entitlement to an evidentiary hearing. Edgar, 294 Kan. at 836, 283 P.3d 152. Here, Bautista's claim that his trial counsel was ineffective was conclusory in nature and lacked any evidentiary support in the record; thus, Bautista did not establish his entitlement to an evidentiary hearing. See Edgar, 294 Kan. at 836, 283 P.3d 152. We conclude the district court correctly denied Bautista's claim of ineffective assistance of trial counsel without a further hearing. Probation Violation Counsel
Bautista also claims that he received ineffective assistance of counsel at the probation violation hearing. On appeal, Bautista does not challenge counsel's effectiveness at the hearing. Rather, he limits his argument to pointing out that counsel failed to file an appeal from the probation revocation. By doing so, Bautista has waived any complaint about counsel's conduct at the probation violation hearing. See Superior Boiler Works, Inc. v. Kimball, 292 Kan. 885, 889, 259 P.3d 676 (2011) (stating that when an appellant fails to brief an issue, that issue is deemed waived and abandoned).
The district court granted relief on counsel's failure to appeal the probation revocation when it granted Bautista an out-of-time appeal of the revocation. As a result, Bautista's claim that his counsel was ineffective for failing to file an appeal is moot. Kansas appellate courts typically do not address moot issues, since a ruling would amount to an advisory opinion. See State v. Montgomery, 295 Kan. 837, 840–41, 286 P.3d 866 (2012) (stating courts generally do not decide moot questions and explaining the test for mootness). Bautista is not entitled to any further relief on this claim.
Affirmed.