Opinion
No. 108,160.
2013-03-8
Shawn Michael FLETCHER, Appellant, v. STATE of Kansas, Appellant.
Appeal from Shawnee District Court; Evelyn Z. Wilson, Judge. Christopher M. Joseph and Carrie E. Parker, of Joseph & Hollander LLC, of Topeka, for appellant. Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Shawnee District Court; Evelyn Z. Wilson, Judge.
Christopher M. Joseph and Carrie E. Parker, of Joseph & Hollander LLC, of Topeka, for appellant. Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Before ATCHESON, P.J., PIERRON, J., and LARSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Shawn Michael Fletcher appeals the summary dismissal of his motion to vacate, set aside, or correct an illegal sentence filed pursuant to K.S.A. 60–1507. Fletcher argues his court-appointed attorney was ineffective for failing to request a continuance at the sentencing hearing in order to secure an additional expert and additional mitigating testimony in support of his motion for departure. We disagree and affirm the district court's decision.
A district court has three options when resolving a K.S.A. 60–1507 motion. First, the court may conclude that the motion, files, and records of the case conclusively show that the movant is entitled to no relief and summarily deny the motion. Second, the court may conclude from the motion, files, and record that a substantial issue or issues have been raised, requiring a full evidentiary hearing in the presence of the movant. Third, the court may determine that the motion raises a potentially substantial issue or issues of fact, supported by the files and record, and hold a preliminary hearing after appointment of counsel to determine whether in fact the issues in the motion are substantial. Bellamy v. State, 285 Kan. 346, 353, 172 P.3d 10 (2007).
Here, the district court summarily denied Fletcher's K.S.A. 60–1507 motion. When a court summarily denies a K.S.A. 60–1507 motion, an appellate court conducts a de novo review to determine whether the motion, files, and records of the case conclusively establish that the movant is not entitled to any relief. Trotter v. State, 288 Kan. 112, 132, 200 P.3d 1236 (2009).
Fletcher pled no contest to one count of aggravated indecent liberties with a child, a severity level 3 person felony, involving a 14–year–old female. Fletcher filed a motion for departure based on the following factors: (1) the victim was a participant in the criminal conduct; (2) Fletcher accepted responsibility; (3) Fletcher had a low risk for reoffending; and (4) Fletcher had considerable family support. The court considered these factors at a full evidentiary hearing where both sides presented witnesses and evidence. Fletcher argues he was not allowed to present all of his evidence in support of his departure motion and would have been able to do so if his attorney had asked for a continuance.
At the sentencing hearing, Fletcher called Daved Serena, a licensed masters-level psychologist with DCCCA, Inc., to testify regarding Fletcher's risk of reoffending. Serena, along with Laura Thornton, prepared a report, and the State did not initially object to admission of the report. Serena testified that Thornton actually conducted the psychosocial evaluation of Fletcher and that he had reviewed the interview and assessment and agreed with Thornton's evaluation. Serena testified the report/assessment was based on “the STATIC–99 which is a static or historical risk assessment instrument, and dynamic risk assessment using the STABLE–2007, the ACUTE–2007 and the Level of Service Inventory Revised.” The admission of Serena's opinion was the source of much consternation.
When defense counsel attempted to have Serena render his opinion of the assessments, the State wielded a barrage of objections concerning hearsay and foundation because Serena had not conducted the interview. The district court sustained the first objection. Two more times, the judge sustained the State's objection and finally stated, “I am going to sustain. I have, I am going to sustain the foundation objection at this time. I'm not convinced we have enough foundation for what Ms. Thornton did and how it affected what this gentleman did.” Defense counsel gave it one last effort.
Defense counsel questioned Serena regarding the Static–99 results and how the opinion was derived from that test. Again, the State objected on hearsay and lack of foundation. This time the district court overruled the objection and found the results of just the STATIC–99 were admissible because the results were derived from collateral information and involved risk predictions, not clinical impressions. Serena was allowed to testify as follows:
“Q. (BY MS. SPAINHOUR) Mr. Serena, with regard to Mr. Fletcher's score on the STATIC–99, what risk level did that instrument indicate Mr. Fletcher would be at for reoffending?
“A. [SERENA] Mr. Fletcher's score on the STATIC–99 is as we reported, is low.
“Q. Okay, and is the STATIC–99 predictor of sexual and violent recidivism?
“A. The STATIC–99 is actually based on the predictor of sexual reconviction based on a number of years that goes from five, 10 to 15 years.
“Q. Okay. Now, with regard to also the ACUTE 2007, does that also, is that instrument also only based upon the instrument and the collateral information used to substantiate the answers in the instrument?
“A. That instrument can be used with information provided, too, by the individual.
“Q. So it is not as clean a call as the STATIC–99?
“A. No. The STATIC is a measure of the historical risk and has been very, well validated over the years as a measurement of risk.
“Q. In your profession it is the most valid indicator of potential for reoffense?
“A. That's correct.”
After Serena's testimony, the parties again discussed the admission of Serena's and Thornton's report. The State moved to strike its prior agreement to admit Serena's report because the State had assumed that Serena had interviewed Fletcher. Defense counsel responded:
“MS. SPAINHOUR [DEFENSE COUNSEL]: Your Honor, my response would be it's been admitted. However, the testimony that Mr. Serena presented with regard to the, Mr. Fletcher's risk level was what I was getting at; it was placed in my motion as a departure factor. So, I think we also got into the testimony I needed with regard to treatment availability through community corrections.
“Ms. Thornton wasn't available today. I was trying to move the sentencing forward. So, I would still think, I still believe the report is, I've laid enough foundation for the report to be admitted with regard to the risk levels that are associated with the instruments that he reviewed and agreed with the numerical calculations.
“So I would ask that that portion of the report be admitted.”
The district court granted the motion to strike, but it stated it had heard the testimony concerning the STATIC–99 and that any information concerning the STATIC–99 would be duplicative. The remainder of the sentencing hearing involved testimony concerning Fletcher's spotty record of positive drug tests and failure to report while on bond; the victim's testimony concerning the baby from the relationship; the victim's mother's request for Fletcher to be incarcerated; and Fletcher's testimony of how he wanted to be a father to all of his children. The court denied Fletcher's departure motion finding a lack of substantial and compelling reasons. The court sentenced Fletcher to a presumptive sentence of 59 months' incarceration and lifetime postrelease supervision. This court found it lacked jurisdiction to consider Fletcher's direct appeal from a presumptive sentence under K.S.A. 21–4721(c) and summarily dismissed the appeal by order dated November 1, 2010.
Fletcher filed a motion to vacate, set aside, or correct an illegal sentence pursuant to K.S.A. 60–1507. He premised his motion on several arguments: (1) He was denied effective assistance of counsel when his defense attorney failed to request a continuance to secure Thornton's testimony; (2) he was denied a constitutionally fair sentencing hearing because the district court excluded the expert's testimony and yet applied a different evidentiary standard when admitting the testimony from the court services officer about Fletcher's performance while on bond; and (3) a combination of these errors amounted to a due process violation. The court summarily dismissed Fletcher's motion but did so in a lengthy opinion addressing all of his arguments. The court held that Thornton's absence at the sentencing hearing brought into question the trustworthiness and reliability of the DCCCA report and it was properly found to be inadmissible. The court also held that Fletcher was not denied effective assistance of counsel because defense counsel did not act below an objective level of reasonableness by not asking for a continuance when Serena was allowed to testify that based on the STATIC–99 test Fletcher's risk of recidivism was low and the information sought by Fletcher was already before the court. The court concluded the outcome would not have been any different.
Fletcher filed a motion to reconsider before a different judge. The motion was denied and the court's prior order affirmed. Fletcher appeals.
Fletcher argues the district court erred in denying his motion without granting an evidentiary hearing.
K.S.A. 60–1507(b) requires a hearing “[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.” Kansas Supreme Court Rule 183(h) elaborates on this statute by requiring an evidentiary hearing, with the presence of the prisoner, in cases where “there are substantial issues of fact as to events in which the movant participated.” (2012 Kan. Ct. R. Annot. 276. Fletcher cites two cases to support his right to an evidentiary hearing, but neither of these cases is factually on point.
In Floyd v. State, 208 Kan. 874, 495 P.2d 92 (1972), the movant filed a K.S.A. 60–1507 motion which alleged, among other things, that his trial counsel coerced him into pleading guilty, along with the names and addresses of the appointed trial counsel and Floyd's sister as corroborating witnesses. The district court refused to grant an evidentiary hearing. Reversing, the Supreme Court disagreed with the district court's decision that a hearing was unnecessary, stating that as to the movant's claim that his counsel coerced him to plead, the motion, files, and records did not conclusively foreclose relief. 208 Kan. at 876–77.
In Rodgers v. State, 197 Kan. 622, 419 P.2d 828 (1966), the trial court denied Rodgers a hearing on his claims of leniency given to codefendants for allegedly false testimony. The Rodgers court stated: “The specific and detailed factual assertions of the [movant], while improbable, at this juncture cannot be said to be incredible when supported in some manner by a written statement of a codefendant.” 197 Kan. at 625. The court remanded for full evidentiary hearing. 197 Kan. at 626.
Both Floyd and Rodgers concern evidence or testimony that was never presented to the district court because of the court's failure to conduct an evidentiary hearing. That is not the case here. Fletcher claims the exclusion of the expert testimony and report would not have occurred had his defense counsel asked for a continuance in order to secure the appropriate witness to provide a foundation for the DCCCA report. He claims that an expert could provide information and opinions beyond that included in the report. The State counters that Fletcher does not provide the slightest bit of information or examples of what additional opinions Thornton could have presented.
Fletcher had the burden of proof. See State v. Gonzales, 289 Kan. 351, 359, 212 P.3d 215 (2009) (defendant has burden of proof to establish a claim of ineffective assistance of trial counsel). He had to prove that his K.S.A. 60–1507 motion warranted an evidentiary hearing. To do so:
“[T]he 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. See Sullivan v. State, 222 Kan. 222, 223, 564 P.2d 455 (1977). However, in stating the evidentiary basis, the K.S.A. 60–1507 motion must merely ‘set forth a factual background, names of witnesses or other sources of evidence to demonstrate that [movant] is entitled to relief.’ 222 Kan. at 223–24.” Swenson v. State, 284 Kan. 931, 938, 169 P.3d 298 (2007).
In his response brief, Fletcher argues the evidence excluded from the sentencing hearing was not repetitious simply because it tended to support the same departure factor but excluded “distinct constituent elements.” He claims that while the excluded evidence contributed to a common effect, the excluded diagnosis, test results, and opinions were of a different kind and character than the STATIC–99 test result. Consequently, Fletcher claims this evidence was not cumulative and his attorney was ineffective for not seeking a continuance to obtain Thornton's testimony. However, we agree with the district court's conclusion that exclusion of this evidence and the failure of Thornton to testify does not rise to the level of a permissible claim of ineffective assistance of counsel.
On the merits of an ineffective-assistance claim, the defendant has the burden to show two things: (1) the attorney's work was below minimum standards and, thus, constitutionally deficient; and (2) the attorney's substandard work prejudiced the defense. Mattox v. State, 293 Kan. 723, 725, 267 P.3d 746 (2011). The second part of that test requires showing a reasonable probability that the result of the trial would have been different but for the attorney's substandard work. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674,reh. denied467 U.S. 1267 (1984); Mattox, 293 Kan. at 725–26. A reasonable probability is one sufficient to undermine confidence in the outcome. State v. Bricker, 292 Kan. 239, 246, 252 P.3d 118 (2011).
Fletcher is complaining about the lack of evidence submitted by his attorney on one of four mitigating factors he presented for the sentencing court's consideration of whether he presented substantial and compelling reasons for departure. The factor at issue was the evidence that Fletcher presented a low risk of sexual and violent recidivism. The record is clear that Fletcher was able to present this evidence in support of this departure factor.
Fletcher was able to present the expert testimony from Serena that he had a low risk of sexual and violent recidivism. Serena specifically testified that the STATIC–99 test is the most valid indicator of potential for reoffense and that Fletcher's risk was low. When discussing the admission of the DCCCA report, defense counsel stated that she was able to present the court expert testimony that Fletcher's risk of recidivism was low and that she had supported this departure factor to the court. Further evidence of Fletcher's low risk or testimony by Thornton would have been duplicative.
There is nothing constitutionally deficient about defense counsel's representation on this point. The parties have not provided any cases on point. While not completely parallel, the situation is almost the same as a defense counsel's failure to call a witness. An attorney's failure to call a witness who would have testified similarly to other witnesses does not amount to constitutionally deficient representation. See State v. Lewis, 33 Kan.App.2d 634, 653, 111 P.3d 636,rev. denied 277 Kan. 924 (2003) (failure to call a witness offering only cumulative testimony to other witnesses is not constitutionally deficient representation); see also United States v. Miller, 643 F.2d 713, 714 (10th Cir.1981) (same). Fletcher was able to explain all the tests performed on him, and although he was not able to present an opinion on all of those tests, he was able to present expert testimony that he presented a low risk of recidivism of sexual and violent crimes.
Fletcher claims the outcome of the sentencing hearing would have been more favorable to him if the sentencing judge had been given the opportunity to consider the DCCCA report and expert testimony in full. Fletcher argues that without the benefit of a hearing, there was no way for the district court to know what the expert testimony would have revealed had Fletcher's trial counsel taken the necessary steps to secure it.
Even if we were to find Fletcher's counsel to have been deficient under the performance prong of the Strickland test, we conclude that the claimed deficiency would not have changed the result of the proceeding. In order to meet the prejudice requirement for ineffective assistance of counsel, the defendant must show a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Mattox, 293 Kan. at 725–26.
In Cellier v. State, 28 Kan.App.2d 508, 522, 18 P.3d 259,rev. denied 271 Kan. 1035 (2001), this court held that where the testimony of witnesses who failed to testify would only have been cumulative of other witnesses who were called to testify, there was no reasonable probability that the outcome of the trial would have been different had the witnesses been called.
Review of the record in this case conclusively shows that Fletcher is not entitled to relief. Fletcher's attorney provided adequate representation in attempting to secure a departure sentence, and even if Thornton's testimony and report had been presented, that would not have affected the outcome of Fletcher's departure motion. Here, the district court found that Thornton's testimony would have been cumulative as to Fletcher's risk of recidivism. We agree. Accordingly, we also conclude there was no prejudice by reason of the claimed deficiency.
Affirmed.