Opinion
112,245.
08-14-2015
Stuart CONNELL, Appellant, v. STATE of Kansas, Appellee.
Jeffery Ebel, of The Ebel Law Office, LLC, of Salina, for appellant. Daryl E. Hawkins, county attorney, and Derek Schmidt, attorney general, for appellee.
Jeffery Ebel, of The Ebel Law Office, LLC, of Salina, for appellant.
Daryl E. Hawkins, county attorney, and Derek Schmidt, attorney general, for appellee.
Before GREEN, P.J., STANDRIDGE and POWELL, JJ.
MEMORANDUM OPINION
PER CURIAM.
Stuart Connell appeals the district court's denial of his K.S.A. 60–1507 motion following a preliminary hearing. On appeal, he argues that he is entitled to a full evidentiary hearing on his motion. Specifically, he first asserts that an evidentiary hearing is required to resolve his claim that the district court falsified an electronic recording of his trial. Second, he argues that the district court's initial refusal to allow his attorney to withdraw violated his rights under the Sixth Amendment to the United States Constitution. Finally, he argues that numerous trial errors denied him his constitutional right to a fair trial.
Facts
In 2005, Connell was charged with three counts of kidnapping and one count of aggravated robbery. Prior to trial, Connell filed a pro se motion to dismiss his appointed defense counsel due to a conflict of interest. In the motion, he asked the district court to allow him to represent himself. Connell's attorney, George Robertson, also filed a motion to withdraw from the case. After a hearing, the district court denied the motions. Later, however, Robertson filed a second written motion again asking the district court to allow Connell to represent himself. The district court granted this motion but appointed Robertson as standby counsel for Connell.
Connell waived his right to a jury trial, and the bench trial began on January 29, 2007. The district court found Connell guilty of all counts. It sentenced him to a controlling sentence of 393 months in prison.
On January 31, 2014, Connell filed a pro se K.S.A. 60–1507 motion. The motion was over 100 pages long exclusive of attachments. On the same date, he also filed a motion for the district court to appoint counsel to represent him. The district court did so. The State filed an answer to Connell's motion, and a hearing was held on May 15, 2014.
The parties did not present any evidence or call any witnesses at the hearing. At the end of the hearing, the district court ruled that the record conclusively showed that Connell was not entitled to any relief and denied the motion. In its written journal entry, it found that all the issues presented in the motion had been previously litigated and fully exhausted either at the trial or appellate level. Further, it found that Connell was simply attempting to retry his case without any legal or factual basis for doing so. Connell appeals.
Analysis
To be entitled to relief under K.S.A. 60–1507, the movant must establish by a preponderance of the evidence either (1) “the judgment was rendered without jurisdiction”; (2) “the sentence imposed was not authorized by law or is otherwise open to collateral attack”; or (3) “there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack.”K.S.A. 60–1507(b). A district court must hold an evidentiary hearing on a K.S.A. 60–1507 motion unless the motion, files, and records of the case conclusively show the movant is not entitled to relief. K.S.A. 60–1507(b) ; Supreme Court Rule 183(f) (2014 Kan. Ct. R. Annot. 285). Therefore, a district court has three options when a K.S.A. 60–1507 motion is filed:
“(1) The court may determine that the motion, files, and case records conclusively show the prisoner is entitled to no relief and dery 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).
Here, the district court appointed counsel and then considered Connell's K.S.A. 60–1507 motion in the context of a nonevidentiary hearing. Because the court denied the motion based only on the motion, files, and records after a preliminary hearing, this court is in as good a position as a trial court to consider the merits of the claim; thus, our review is de novo. Sola–Morales v. State, 300 Kan. 875, 881, 335 P.3d 1162 (2014). “ ‘A movant has the burden to prove his or her K.S.A. 60–1507 motion warrants an evidentiary hearing; the movant must make more than conclusory contentions and must state an evidentiary basis in support of the claims or an evidentiary basis must appear in the record.” ‘ 300 Kan. at 881, 335 P.3d 1162 (quoting Holmes v. State, 292 Kan. 271, 274, 252 P.3d 573 (2011) ).
On appeal, Connell points to several allegations in his underlying motion for relief that he believes entitle him to an evidentiary hearing. First, he claims the district court, the court reporters, and the clerks falsified the electronic recording of his trial. Connell insists that an evidentiary hearing is necessary to address this claim. But this claim is barred by Supreme Court Rule 183(c)(3) (2014 Kan. Ct. R. Annot. 286), which states:
“A proceeding under K.S.A. 60–1507 ordinarily may not be used as a substitute for direct appeal involving mere trial errors or as a substitute for a second appeal. Mere trial errors must be corrected by direct appeal, but trial errors affecting constitutional rights may be raised even though the error could have been raised on appeal, provided exceptional circumstances excuse the failure to appeal.”
While his direct appeal was pending, Connell obtained a copy of the electronic recording of his trial and then claimed—as he does now—that the recording contained purposeful errors and omissions. A panel of this court found Connell's assertion that the electronic recording had been altered amounted to nothing more than “mere speculation.” State v. Connell, No. 98,870, 2012 WL 222926, at *4–5 (Kan.App.2012) (unpublished opinion), rev. denied 296 Kan. 1132 (2013). Because Connell was able to—and apparently did—raise this issue on direct appeal, he cannot use his K.S.A. 60–1507 motion to litigate the issue again.
Next, Connell claims that his constitutional right to effective assistance of counsel was violated when the district court initially refused to allow his attorney to withdraw. Connell claimed in his K .S.A. 60–1507 motion that he felt coerced into representing himself because his counsel was not prepared for trial. He argues now that “if he was allowed new counsel, when originally requested, he would not have represented himself.” Further, he asserts that he did not believe the district court would entertain a motion for new counsel with trial scheduled to begin in January 2007.
We note, as a preliminary matter, that Connell never requested new counsel. Even in the first motion to dismiss appointed counsel he filed, Connell specifically requested the district court allow him to represent himself. Second, the record clearly contradicts Connell's argument that he was coerced into representing himself. At the hearing on Connell's second motion for leave to represent himself, Connell stated any past problems he had with Robertson were “completely erased,” and Connell believed that acting as his own attorney was the best thing to do for strategic reasons. Connell also unequivocally asserted that he did not file his motion for self representation because he felt Robertson was inadequate or because he felt Robertson was not doing his job properly. Finally, Connell informed the district court several times that he—as the defendant—did not want to delay the start of his trial.
A review of the record conclusively shows that Connell's decision to represent himself was strategic rather than the result of coercion. Further, Connell's assertion that he would not have represented himself if the district court had provided him a new attorney has no basis in fact because there is no evidence that he ever asked for a new attorney. From the very first motion filed on December 28, 2006, asking for permission to proceed pro se, Connell insisted that he wished to represent himself. The district court eventually granted him the ability to do sc. Therefore, the record conclusively shows that Connell's claim under the Sixth Amendment in his K.S.A. 60–1507 motion did not entitle him to any relief.
Finally, Connell argues that the district court committed several trial errors that prejudiced his constitutional right to a fair trial. But Connell had the opportunity to challenge any alleged trial errors on direct appeal. A K.S.A. 60–1507 motion cannot be used as a substitute for a second appeal unless exceptional circumstances excuse the failure to appeal trial errors affecting a defendant's constitutional rights. See Supreme Court Rule 183(c)(3) (2014 Kan. Ct. R. Annot. 285). Connell attempts to establish exceptional circumstances by arguing that the district court's failure to produce the electronic recording of his trial prevented him from challenging the errors. But, as noted above, Connell did receive a recording of the trial. Connell, 2012 WL 222926, at *4. Further, a recording of the trial was included in the record on appeal in this case. Other than a conclusory allegation that the recordings were altered, Connell does not offer any specific arguments as to why it would be proper for us to address these trial errors in this K.S.A. 60–1507 motion. For this reason, we find Connell has failed to establish the exceptional circumstances necessary to permit him to raise trial errors in this K.S.A. 60–1507 motion.
Affirmed.