Opinion
111,299.
05-29-2015
Shannon BOGGUESS, 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. Matt J. Maloney, 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.
Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before BUSER, P.J., STANDRIDGE, J., and HEBERT, S.J.
MEMORANDUM OPINION
PER CURIAM.
Shannon Bogguess appeals from an order of the district court denying his K.S.A. 60–1507 motion. He contends that the court committed reversible error by failing to hold an evidentiary hearing to investigate whether his trial counsel provided constitutionally deficient representation.
While Bogguess raised several claims for relief in his motion, he focuses on two issues in this appeal: (1) Whether his trial attorneys provided constitutionally deficient representation by deceiving him with respect to his jury trial waiver; and (2) whether he is entitled to relitigate the propriety of the district court's original denial of his posttrial motion for substitute counsel.
We find that the district court, after conducting a nonevidentiary hearing, correctly determined that Bogguess' motion failed to establish any basis for relief. Accordingly, we affirm the order denying Bogguess' K.S.A. 60–1507 motion.
Factual and Procedural Background
Based on events which occurred on May 12, 2008, Bogguess was charged with first-degree murder, aggravated robbery, aggravated kidnapping, aggravated assault, and criminal possession of a firearm. The district court heard and denied a pretrial motion to suppress an inculpatory statement given by Bogguess. On the day scheduled for jury trial, Bogguess appeared with his counsel, Klaus Mueller and Charles Osburn, and advised the court that he would waive his right to a jury trial and proceed to a bench trial on stipulated facts.
The trial court engaged in an extensive and detailed colloquy with Bogguess and reviewed the proposed stipulation which Bogguess had signed. The court ultimately found the waiver of jury trial to be freely and voluntarily made, that Bogguess was aware of the contents of the stipulation, and that he understood the procedures and ramifications of the proposed bench trial. The court then accepted the proffered documents and found Bogguess guilty as charged.
The facts underlying the conviction were set forth by the Kansas Supreme Court in ruling on Bogguess' direct appeal:
“According to the stipulated facts, on May 12, 2008, Bogguess and Kedrin D. Littlejohn went to Janies Collins' place of business with a handgun, intending to take money from Collins by force. Bogguess and Littlejohn confronted Collins inside the business. When Collins resisted, Bogguess shot him in the leg. Bogguess and Littlejohn put Collins in one of the Hummer motor vehicles from the business in an attempt to take him to an ATM, where they intended to force him to withdraw cash for them. At some point during the drive, Collins jumped from the moving Hummer into the street. When Bogguess and Littlejohn were unable to force Collins back into the vehicle, Bogguess shot Collins in the neck/shoulder area.
“Jeremy Linot saw the confrontation in the street and ran to help Collins get out of the road. Linot was forced to retreat from his attempt to assist Collins when the Hummer turned around and drove back down the street toward him. Linot testified at the preliminary hearing that he feared that he and Collins were going to be run over or shot. Collins was struck by the Hummer and pronounced dead at the scene.
“Linot and other witnesses described Bogguess and Littlejohn as ‘a Hispanic male or a light-skinned black male’ and ‘a black male.’ Video surveillance from a restaurant showed the pair running through a parking lot. Bogguess and Littlejohn gave statements to the police varying only in Bogguess' intention in shooting Collins the second time and who had control of the vehicle when Collins was run over. When Bogguess was located by Wichita police officers, he had numerous credit cards and other identification belonging to Collins. He also had property purchased that day using Collins' credit cards.
“Other than the stipulated facts, no evidence was presented at the bench trial.”
State v. Bogguess, 293 Kan. 743, 744–45, 268 P.3d 481 (2012).
Prior to sentencing, Bogguess filed a pro se motion to dismiss his trial counsel, Klaus Mueller and Charles Osburn. Bogguess claimed that he had recently learned that Mueller had a “significant ‘conflict of int[e]rest,’ “ i.e., one of the State's witnesses was the cousin of a lawyer in Mueller's office. Additionally, Bogguess asserted that Mueller was ineffective because he employed a “guilt-based [d]efense,” i.e., he did not bring “all of the conflicting exculpatory evidence to [the district court's] attention [, which] ... would have clearly [shown] significant reasons of [d]oubt” and he did not give a closing argument at trial.
Upon commencement of the sentencing hearing, the court addressed the motion for new counsel. After hearing from Bogguess, the trial attorneys, and the prosecutor, the court determined that there was no conflict of interest based on a witness list provided by the State. The court also reminded Bogguess of the extensive colloquy prior to accepting the jury trial waiver and, after allowing Bogguess to make an explanatory statement, found the allegations of ineffective counsel to be without merit and denied the motion for substitute counsel.
The trial court proceeded to impose a sentence of life without possibility of parole for 25 years on the murder conviction, plus a consecutive 631–month term of imprisonment on the remaining convictions.
Bogguess filed a direct appeal raising several issues, including allegations that the district court erred in denying his pretrial motion to suppress and in denying his posttrial motion to grant him substitute counsel. The Supreme Court found no reversible error and affirmed the convictions and sentences. Bogguess, 293 Kan. at 752. The Supreme Court mandate was issued on February 13, 2012.
On November 28, 2012, Bogguess filed a pro se K.S.A. 60–1507 motion, alleging that his trial counsel violated his constitutional right to effective assistance of conflictfree counsel and that the district court deprived him of his due process rights when it refused to suppress his confession. His essential contention was that Mueller and Osburn had a conflict of interest and provided deficient representation by (1) failing to adequately explain the ramifications of waiving his constitutional right to a jury trial; (2) improperly judging the evidence for themselves and neglecting to present conflicting evidence to the court that would have raised reasons to doubt the prosecution theory; (3) choosing not to mount a meritorious defense; and (4) failing to argue their own ineffectiveness in support of his posttrial motion for substitute counsel.
The allegations of ineffective assistance of counsel consisted mainly of conclusory assertions, but Bogguess did allege that Mueller and Osburn had used “deceit” to coerce him into proceeding upon stipulated facts. He alleged that they concocted a “ploy” and intentionally misled him as to what was actually on the stipulation agreement.
In response, the State argued that Bogguess was barred under the doctrine of res judicata from relitigating these claims because they had been addressed in his posttrial motion for substitute counsel and, further, that the record clearly demonstrated that his waiver decision was made knowingly, voluntarily, and intelligently.
On April 4, 2013, the district court held a nonevidentiary hearing at which Bogguess was represented by attorney Michael Brown. After entertaining the parties arguments, the district court found that the “motion, files and records [of the case] conclusively show [that Bogguess is] not entitled to the relief he requested.” In so ruling, the district court specifically noted that the matter of suppression of statements had been taken up and determined on appeal. It was also noted that the trial court had gone out of its way to make sure that Bogguess understood what he was doing and that he had not been duped into a bench trial on stipulated facts.
Bogguess timely filed this appeal from the denial of his K.S.A. 60–1507 motion.
The District Court Did Not Err in Denying the K.S.A. 60–1507 Motion Without an Evidentiary Hearing
Bogguess contends that the district court erred by denying his K.S.A. 60–1507 motion without holding an evidentiary hearing. While he had raised several claims for relief in his pro se motion, in this appeal he contends that he was entitled to an evidentiary hearing to address two issues: (1) Whether Mueller and Osbum provided constitutionally deficient representation by deceiving him with respect to his jury trial waiver; and (2) whether he is entitled to relitigate the propriety of the district court's original denial of his posttrial motion for substitute counsel based on the subsequent decision in State v. Prado, 299 Kan. 1251, 329 P.3d 473 (2014).
Standards of Review
A district court is required to hold an evidentiary hearing on a K.S.A. 60–1507 motion unless the motion, files, and records of the case conclusively show that the movant is not entitled to relief. K .S.A. 60–1507(b) ; Supreme Court Rule 183(f) and (j) (2014 Kan. Ct. R. Annot. 285). It is the movant's burden to allege facts which prove that the motion warrants an evidentiary hearing. Edgar v. State, 294 Kan. 828, 836, 283 P.3d 152 (2012).
When, as here, the district court denies relief under K.S.A. 60–1507 based solely upon counsel's legal arguments at a nonevidentiary hearing and upon review of the case files and records, an appellate court is in as good a position as the district court to consider the merits. Therefore, appellate review is de novo. See Barr v. State, 287 Kan. 190, 196, 196 P.3d 357 (2008).
In this case, the motion, files, and records as argued at the nonevidentiary hearing, conclusively show that the issues raised by the motion are barred by the doctrine of res judicata. The motion raises no new issues which were not or could not have been previously litigated and/or raised on the direct appeal. The issues raised are also without merit.
On direct appeal, the Supreme Court addressed the district court's decision to deny Bogguess' motion for substitute counsel, addressing both the claims of conflict of interest and of ineffective assistance and determining that the district court did not abuse its discretion. The court explained:
“Before determining whether to appoint new counsel, the trial court must make some inquiry into the defendant's complaints. [Citation omitted.] Here, the trial court held a hearing before sentencing at which it summarized the pro se motion and allowed Bogguess, his counsel, and the State to make statements and present arguments.
“Bogguess alleged that his counsel had a conflict of interest because one of the State's witnesses was the cousin of an employee in his counsel's office. This witness worked at one of the stores where Bogguess used Collins' credit card to make a purchase. The prosecutor explained that the witness was on the list provided to defense counsel that the State did not intend to call at trial. The trial court listened to Bogguess' concerns and ultimately decided that there was no potential prejudice or conflict of interest.
“Bogguess also complained that his counsel was ineffective in providing no closing argument at the bench trial. The trial judge noted that he presided over the bench trial on stipulated facts and that closing arguments are not evidence to be considered in determining guilt. The trial court ultimately decided that the allegations raised in the motion were wholly without merit and denied the motion.
“For the reasons described above, the trial court had a reasonable basis for believing that the attorney-client relationship had not deteriorated to the point where appointed counsel could no longer give effective aid in the fair presentation of Bogguess' defense.” Bogguess, 293 Kan. at 754.
The Supreme Court has recently revisited the principles of res judicata, noting that “ ‘[t]he doctrine of res judicata provides that “where an appeal is taken from the sentence imposed and/or a conviction, the judgment of the reviewing court is res judicata as to all issues actually raised and those issues that could have been presented, but were not, are deemed waived.’ “ [Citations omitted] .” Grossman v. State, 300 Kan. 1058, 1062, 337 P.3d 687 (2014). Whether res judicata applies is a question of law subject to unlimited appellate review. State v. Robinson, 298 Kan. 342, 344, 312 P.3d 361 (2013).
Thus, the doctrine of res judicata does not only apply to matters which were actually litigated, it also applies to all matters which could have been litigated by the parties in a particular action. Upchurch v. State, 36 Kan.App.2d 488, 493, 141 P.3d 1175, rev. denied 282 Kan. 797 (2006). A panel of this court has persuasively explained that “[t]he doctrine of res judicata prevents a party's attempt to litigate any claim that could have been previously litigated in another action, even if the particular theory argued in the later proceeding was not raised or considered by the court in the previous litigation.” Winkleman v. Tihen, No. 96,488, 2007 WL 2767973, at *5 (Kan.App.2007) (unpublished opinion), rev. denied 286 Kan. 1186 (2008).
Bogguess does not brief the applicability of res judicata, nor does he contest that, on its face, res judicata prohibits relitigation of his claims. He instead opts to simply assert that his “deception” argument has not previously been raised. This is inadequate to preserve his claim. Bogguess has previously challenged the ineffective assistance allegedly rendered by Mueller and Osburn with regard to his decision to waive a jury trial, both in his posttrial motion and on direct appeal. While he did not specifically mention deception which he now alleges, he certainly had the opportunity to do so when the district court specifically questioned him as to why he believed his waiver was involuntary. Deception could certainly be considered as sui generis with the other arguments that he made claiming he was not properly informed regarding the ramifications of waiver and stipulation.
Nevertheless, res judicata notwithstanding, Bogguess' deception claim still fails on its merits because when a K.S.A. 60–1507 motion is premised upon an allegation of ineffective assistance of counsel, the movant must satisfy the constitutional standards set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674, reh. denied 467 U.S. 1267 (1984) ; see Thompson v. State, 293 Kan. 704, 715, 270 P.3d 1089 (2011). The movant must establish both that counsel's performance was constitutionally deficient and that the deficient performance prejudiced the defense so as to prevent a fair trial. See State v.. Cheatham, 296 Kan. 417, 431, 292 P.3d 318 (2013). The movant must show there is a reasonable probability that but for counsel's deficient performance the result of the proceeding would have been different. 296 Kan at 432.
District courts need not hold a hearing to determine whether counsel provided deficient performance before examining the prejudice suffered by the defendant as a result of alleged deficiencies. Edgar, 294 Kan. 828, Syl. ¶ 4. “Where a movant makes only conclusory allegations and fails to establish a reasonable probability that, but for counsel's errors, a different result would have been achieved, a district court does not err in denying a K.S.A. 60–1507 motion for ineffective assistance of counsel.” 294 Kan. 828, Syl. ¶ 5.
The test for determining the validity of a jury trial waiver involves deciding whether the waiver was voluntarily made by a defendant “who knew and understood what he or she was doing. Whether that test is satisfied depends upon the particular facts and circumstances in each case. [Citation omitted.]” State v. Lewis, 301 Kan. 349, 376, 344 P.3d 928 (2015). The defendant “must first be advised by the court of his right to a jury trial, and he must personally waive this right in writing or in open court for the record. [Citation omitted.]” (Emphasis added.) 301 Kan. at 377.
The record here clearly establishes that, prior to accepting Bogguess' jury trial waiver and stipulation, the district court engaged in an extensive and thorough colloquy with Bogguess to ensure he made his decision knowingly, voluntarily, and intelligently. The questioning by the court gave Bogguess a full and ample opportunity to express any misunderstanding or conflicting information which he may have received from Mueller and Osburn. The court's inquiries gave Bogguess an opening to express any allegations of deception and/or ploy or any other pressures he was feeling at the time. He could even have changed his mind in response to the court's explanations. Instead, he acknowledged the waiver on the record and signed the stipulation. Based on the transcript of these proceedings, even if we were to assume without deciding that Mueller and Osbum somehow deceived or misinformed Bogguess, the district court took all the required steps to protect Bogguess' rights and, in doing so, cured any potential prejudice associated with the alleged ineffective assistance of counsel.
Bogguess' claim on this issue has been fully litigated and is without merit. The district court appropriately denied Bogguess' K.S.A. 60–1507 motion without further evidentiary hearing.
Bogguess also claims in this appeal that he is entitled to relitigate the denial of his posttrial motion for substitute counsel based on an alleged intervening change in the law announced in Prado, 299 Kan. 1251. This claim also fails for several reasons.
First of all, it is questionable whether Bogguess had even preserved the issue for appeal. The reason why no court has ever addressed his claim is that he has never raised it prior to this appeal. Bogguess makes no mention of Prado in the K.S.A. 60–1507 motion, nor was there any mention made suggesting the applicability of Prado during the nonevidentiary hearing. In his posttrial motion, Bogguess referred to conflict of interest, but he now claims to have been deceived. Deception, while arguably an indicia of ineffective assistance as discussed above, does not equate to conflict of interest.
Generally, a point not raised in the district court cannot be raised for the first time on appeal. State v. Holt, 298 Kan. 469, 477, 313 P.3d 826 (2013). Although our Supreme Court has recognized exceptions that allow an appellate court to consider a new legal theory, Bogguess did not brief the applicability of any such exception, and an issue not briefed is generally deemed waived and abandoned. See State v. Williams, 298 Kan. 1075, 1085, 319 P.3d 528 (2014) ; State v. Anderson, 294 Kan. 450, 464–65, 276 P.3d 200, cert. denied 133 S.Ct. 529 (2012).
Even if we consider Bogguess' brief on the issue, he fails to cite any authority which would indicate that an intervening change in the law can overcome the doctrine of res judicata. Furthermore, it is questionable whether Prado would qualify as a change in the law, since the Supreme Court based its decision in Prado on “the unique circumstances of [the] case” in finding that the district court there had been alerted to a potential conflict and failed to sufficiently inquire into the matter. 299 Kan. at 1252. “ ‘[S]imply allowing a defendant to make a statement regarding his or her complaints is an insufficient inquiry.’ “ 299 Kan. at 1259.
Here, unlike Prado, the district court not only addressed Bogguess directly, but it also inquired into the nature of the complaint. Bogguess complained that a witness listed by the State was a cousin of an attorney in Mueller's office. However, the State pointed out that the name was on a list of peripheral witnesses that the State did not intend to call at trial, thereby extinguishing any potential conflict. The trial court found no conflict, and on direct appeal the Supreme Court found that the district court had a reasonable basis for believing that the “attorney-client relationship had not deteriorated to a point where appointed counsel could no longer give effective aid in the fair presentation of Bogguess' defense.” Bogguess, 293 Kan. at 754.
The propriety of the district court's denial of Bogguess' motion for substitute counsel has been fully litigated, and Prado does not offer him a means for escaping the ramifications of res judicata.
Conclusion
We find Bogguess' K.S.A. 60–1507 motion raised in this appeal presents no new issues which have not been or which could not have been raised on direct appeal. The motion, files, and records of the case conclusively support the district court's denial of relief without further evidentiary hearing.
Affirmed.