Opinion
No. 110,372.
2014-12-12
Roosevelt BROWN, Appellant, v. STATE of Kansas, Appellee.
Appeal from Wyandotte District Court; R. Wayne Lampson, Judge.Gerald E. Wells, of Jerry Wells Attorney–at–Law, of Lawrence, for appellant.Christopher L. Schneider, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Wyandotte District Court; R. Wayne Lampson, Judge.
Gerald E. Wells, of Jerry Wells Attorney–at–Law, of Lawrence, for appellant. Christopher L. Schneider, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Before GREEN, P.J., BRUNS, J., and BUKATY, S.J.
MEMORANDUM OPINION
PER CURIAM.
Roosevelt Brown appeals the summary denial of what is essentially his third K.S.A. 60–1507 motion even though he filed the pleading as a K.S.A.2013 Supp. 60–260 motion for relief from judgment. Brown was convicted in 2003 of rape, aggravated kidnapping, and other crimes in a brutal attack. In the present motion, he alleges his prior appellate counsel was ineffective for failing to file a petition for review following this court's ruling on his second K.S.A. 60–1507 motion. The district court summarily denied the current motion noting that the issues Brown raised had been specifically addressed in prior rulings and his arguments lacked merit. We agree with the district court and affirm.
Following his convictions in 2003, the district court sentenced Brown to a controlling term of 168 months imprisonment. He took a direct appeal, and this court affirmed in State v. Brown, No. 92,430, 2005 WL 2949771, at *4 (Kan.App.2005) (unpublished opinion), rev. denied 281 Kan. 1379 (2006).
In 2007, Brown filed a K.S.A. 60–1507 motion based on a claim of ineffective assistance of counsel. He specifically alleged his trial counsel failed to investigate and present defense witnesses. This court ruled the district court did not err in summarily denying the motion. Brown v. State, No. 100,944, 2010 WL 173951, at *4–7 (Kan.App.2010) (unpublished opinion), rev. denied 290 Kan. 1092 (2010).
Then in 2011, Brown filed his second K.S.A. 60–1507 motion again alleging trial counsel was ineffective for failing to present a specific defense witness. The district court again summarily denied Brown's motion finding it was successive and there was no merit to his argument. Again, this court affirmed the district court's decision. Brown v. State, No. 106,994, 2012 WL 5373369 at *3–4 (Kan.App.2012) (unpublished opinion).
Brown had retained David Berkowitz as appellate counsel in the second K.S.A. 60–1507 motion. Following this court's ruling on that appeal, Berkowitz sent a letter to Brown explaining: “Unfortunately, there is nothing more that I can think of that can be done on your behalf.” In another letter to Brown dated November 13, 2012, Berkowitz confirmed that Brown had contacted him and requested that Berkowitz file a petition for review. In this letter, Berkowitz said he would file a petition “probably before Thanksgiving.” He also continued to explain that such a petition would cost more than what Brown had paid up to that time and he needed more money to file the petition. After informing Brown of the cost, Berkowitz concluded with: “Please let me know what you wish to do.” Berkowitz next corresponded with Brown in a letter dated January 15, 2013, in which he stated that he had filed a motion to file late and a petition for review, adding that he did not think Brown would be successful. Berkowitz attached a purported copy of the motion to his letter.
Brown apparently checked with the clerk of the appellate courts about his motion and petition. The clerk's office replied by letter to Brown dated February 7, 2013, informing him it had not received any petition for review regarding his appeal.
Following receipt of the letter from the clerk's office, Brown filed the K.S.A.2013 Supp. 60–260 motion for relief from judgment which is the basis for this appeal. First, Brown again claimed trial counsel was ineffective for failing to present certain defense witnesses. Next, he claimed Berkowitz was ineffective for failing to timely file a petition for review following this court's ruling on the second K.S.A. 60–1507 motion.
The district court summarily denied Brown's motion noting that both the district court and this court had previously addressed the issues regarding Brown's trial counsel and both courts had ruled that Brown's arguments lacked merit.
On appeal, Brown argues the district court erred in summarily denying his K.S.A.2013 Supp. 60–260 motion. He specifically claims he suffered prejudice because trial counsel was ineffective for not calling witnesses and Berkowitz was ineffective for failing to timely file a petition for review. He then argues the proper remedy is a remand to the district court for a hearing pursuant to State v. Ortiz, 230 Kan. 733, 640 P.2d 1255 (1982).
Our Supreme Court has held that a K.S.A. 60–1507 motion provides the exclusive remedy to collaterally attack a criminal conviction and sentence and a K.S.A.2013 Supp. 60–260(b) motion is not available for that purpose. State v. Mitchell, 297 Kan. 118, 122–23, 298 P.3d 349 (2013). Brown concedes this and, at first blush, it would appear that we may affirm the district court's summary denial of Brown's motion on this ground. However, in State v. Kelly, 291 Kan. 563, Syl. ¶ 1, 244 P.3d 639 (2010), our Supreme Court held: “Pro se pleadings are liberally construed, giving effect to the pleadings content rather than the labels and forms used to articulate the arguments. A defendant's failure to cite the correct statutory grounds for his or her claim is immaterial.” On this basis, we will construe Brown's K.S.A.2013 Supp. 60–260 motion as a K.S.A. 60–1507 motion based on a claim of ineffective assistance of counsel and address its merits. Brown's Claims Against Trial Counsel
In a K.S.A 60–1507 proceeding, the sentencing court is not required to entertain a second or successive motion for similar relief on behalf of the same prisoner. State v. Trotter, 296 Kan. 898, 940, 295 P.3d 1039 (2013) (citing K.S.A. 60–1507[c] ). “A movant in a K.S.A. 60–1507 motion is presumed to have listed all grounds for relief, and a subsequent motion need not be considered in the absence of a showing of circumstances justifying the original failure to list a ground.” Trotter, 296 Kan. 898, Syl. ¶ 2; see Supreme Court Rule 183(d) (2013 Kan. Ct. R. Annot. 278).
Clearly, the claims Brown makes in the present motion pertaining to ineffectiveness on the part of his trial counsel are similar, if not identical, to the same claims he made in his first two 60–1507 motions. He actually made the same allegations against trial counsel at the time he was sentenced and asked that trial counsel be dismissed. On each of these three occasions, the district court denied Brown relief. Then in appeals to this court from the rulings on the two 60–1507 motions, we affirmed the summary denials of relief by the district court. The allegations against trial counsel in Brown's present motion are clearly successive to those in his prior motions, and the district court did not err in summarily denying them. Brown's Claims Against His Appellate Counsel Relating To The Second K.S.A. 60–1507 Motion
Next, Brown argues his appellate counsel was ineffective for failing to timely file a petition for review following this court's affirming of the summary denial of his second motion. The record is clear, Brown's appellate counsel, Berkowitz, failed to timely file a petition for review. The correspondence between Brown and Berkowitz shows Berkowitz knew Brown wanted him to file such a petition. Berkowitz told Brown he filed a motion to file late and a petition for review and forwarded a purported copy of the motion to him. Brown received a letter from the clerk's office stating a petition for review had not been filed on his behalf. Brown contends the proper remedy for us to remand is to the district court for an Ortiz hearing.
We first note that Brown's reliance on Ortiz is misplaced. The Ortiz court held that a defendant may be entitled to a late direct appeal if the defendant was (1) not informed of his or her right to appeal, (2) was not furnished an attorney to perfect an appeal, or (3) was furnished an attorney who failed to perfect an appeal. See Ortiz, 230 Kan. at 735–36. The case dealt only with a defendant's right to a direct appeal. As we noted, Brown has previously filed a direct appeal, and this court affirmed the district court. Brown then filed a petition for review of our ruling in that prior appeal. In the present appeal, we are not dealing with Brown's complaint that his counsel failed to file a direct appeal. We have before us, instead, his complaint that his appellate counsel did not file a petition for review from this court's ruling on a prior collateral attack upon his conviction.
Caselaw is against Brown under the facts here. A pro se defendant whose K.S.A 60–1507 motion is summarily denied has no right to be advised by the court he or she has the right to appeal therefrom. Guillory v. State, 285 Kan. 223, Syl. ¶ 1, 170 P.3d 403 (2007). “Where a defendant files an untimely appeal from the summary denial of a K.S.A. 60–1507 motion, the exceptions set forth in [ Ortiz ] are inapplicable, and the appeal must be dismissed....” 285 Kan. 223, Syl. ¶ 3. The Ortiz exceptions simply do not apply in this case.
Even though Brown has failed to establish his entitlement to a remand to the district court under Ortiz, we feel compelled to briefly address his claim of ineffectiveness of appellate counsel.
“To establish ineffective assistance of counsel on appeal, defendant must show ‘(1) counsel's performance, based on the totality of the circumstances, was deficient in that it fell below an objective standard of reasonableness, and (2) [defendant] was prejudiced to the extent that there is a reasonable probability that, but for counsel's deficient performance, the appeal would have been successful.’ [Citations omitted.]” State v. Smith, 278 Kan. 45, 51–52, 92 P.3d 1096 (2004).
It appears that Brown easily meets the first prong of the ineffective assistance of counsel test. Berkowitz' performance fell below an objective standard of reasonableness when he failed to timely file a petition for review. The record is clear. Brown filed petitions for review in all of his previous appeals, and he requested that Berkowitz file one following the outcome of the appeal of his second K.S.A. 60–1507. Berkowitz told Brown he had filed a motion to file late and a petition for review, yet he filed neither.
However, even if Brown could establish his entitlement to file an untimely petition for review, he falls far short of showing how he suffered prejudice from Berkowitz' failure to act or from Berkowitz's untrue representation. Brown fails to demonstrate a reasonable probability exists that the outcome would have been different and his petition for review would have resulted in a favorable outcome for him. See State v. Cheatham, 296 Kan. 417, 431, 292 P.3d 318 (2013). It appears highly unlikely the Supreme Court would have granted Brown's petition for review of this court's ruling on his second K.S.A. 60–1507 motion. The motion dealt with an issue of ineffectiveness of trial counsel which both the district court and this court had previously addressed on the merits. It was clearly successive. As we noted, on three previous occasions Brown argued at the trial level and on appeal that his trial counsel was ineffective for failing to present certain defense witnesses. This court correctly held Brown's motion was successive. Brown attempted the same argument for a fourth time in his K.S.A.2013 Supp. 60–260 motion. With this failure to show prejudice, Brown fails to meet the second prong of the ineffective assistance of counsel test.
The district court did not err by summarily denying the pleading Brown filed as a K.S.A.2013 Supp. 60–260 motion for relief from judgment.
Affirmed.