Opinion
111,069.
12-24-2014
Theodore V. HORN, II, Appellant, v. STATE of Kansas, Appellee.
Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellant. Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellant.
Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before PIERRON, P.J., BRUNS and SCHROEDER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Theodore V. Horn, II, appeals the denial of his fifth K.S.A. 60–1507 motion as successive. Generally, Kansas law provides a convicted defendant with two opportunities to challenge their conviction, not five. Our review of his four prior K.S.A. 60–1507 motions reflects this motion is successive and without merit. We affirm the district court.
Facts
In April 2013, Horn filed this K.S.A. 60–1507 motion—his fifth—alleging ineffective assistance of appellate counsel during the appeal of his fourth K.S.A. 60–1507 motion. Horn was convicted in 2002 of first-degree murder of his grandmother, Tina Weaver. Horn was sentenced to life in prison with parole eligibility in 50 years. The Kansas Supreme Court affirmed Horn's conviction on direct appeal. State v. Horn, 278 Kan. 24, 91 P.3d 517 (2004).
This court affirmed the denial of Horn's first K.S.A. 60–1507 motion in 2007. Horn v. State, No. 96,306, 2007 WL 1964958 (Kan.App.2007) (unpublished opinion), rev. denied 285 Kan.1174 (2007) (Horn I). This court affirmed the denial of his second K.S.A. 60–1507 motion in 2009. Horn v. State, No. 100,397, 2009 WL 3270856 (Kan.App.2009) (unpublished opinion), rev. denied 290 Kan. 1093 (2010) (Horn II). The district court denied Horn's third K .S.A. 60–1507 motion in 2009, and Horn did not appeal that denial. This court then affirmed the denial of Horn's fourth K.S.A. 60–1507 motion in 2012. Horn v. State, No. 105,662, 2012 WL 3629867 (Kan . App.2012) (unpublished opinion), rev. denied 291 Kan. 1245 (2013) (Horn IV).
The district court held a nonevidentiary hearing on Horn's motion with Horn's court-appointed counsel present to represent Horn. The district court denied Horn's K.S.A. 60–1507 motion stating: “[U]pon considering the motions, files, and records of the case, along with arguments of counsel, the court finds that movant is not entitled to relief because his motion is successive and constitutes an abuse of remedy.” Horn now appeals.
Analysis
Did the District Court Err in Finding Horn's Fifth K.S.A. 60–1507 Motion Successive?
Standard of Review
“When, as here, a court denies a 60–1507 motion based only on the motion, files, and records after a preliminary hearing, we are in as good a position as that court to consider the merits. So we exercise de novo review. [Citations omitted.]” Sola–Morales v. State, 300 Kan. ––––, 335 P.3d 1162, 1168 (2014).
Merits
Horn argues his fifth K.S.A. 60–1507 motion was improperly denied as successive. K.S.A. 60–1507(c) states that “[t]he sentencing court shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner.” Kansas Supreme Court Rule 183(d) (2013 Kan. Ct. R. Annot. 278) clarifies the requirements for dismissal of a successive K.S.A. 60–1507 motion:
“(d) ... A sentencing court may not consider a second or successive motion for relief by the same movant when:
(1) the ground for relief was determined adversely to the movant on a prior motion;
(2) the prior determination was on the merits; and
(3) justice would not be served by reaching the merits of the subsequent motion.”
“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. If a movant satisfies that burden, the court is required to grant a hearing unless the motion is second or successive and seeks similar relief.” Sola–Morales, 335 P.3d 1162, Syl. ¶ 3.
“Absent a showing of exceptional circumstances, the court can dismiss a second or successive motion as an abuse of remedy.” State v. Kelly, 291 Kan. 868, 872, 248 P.3d 1282 (2011). “Exceptional circumstances are unusual events or intervening changes in the law which prevent a movant from reasonably being able to raise all of the trial errors in the first post-conviction proceeding.” Kelly, 291 Kan. at 872. Our Supreme Court has held that “[i]neffective assistance of counsel can qualify as an exceptional circumstance.” Rowland v. State, 289 Kan. 1076, 1087, 219 P.3d 1212 (2009).
Here, part of Horn's claims rest on his allegation his appellate counsel in Horn IV was ineffective. A claim of ineffective counsel would typically control whether Horn is entitled to an evidentiary hearing. An accused's right to counsel is guaranteed under the Sixth Amendment to the United States Constitution and includes the right to effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674, reh. denied 467 U.S. 1267 (1984). 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. Miller v. State, 298 Kan. 921, 929, 318 P.3d 155 (2014). When reviewing an attorney's alleged deficient performance, a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of alleged deficiencies. Sola–Morales, 335 P.3d 1162, Syl. ¶ 6.
All of Horn's six claims on appeal are fashioned as ineffective assistance of counsel claims. Upon closer review, we see they are not really the result of ineffective assistance of counsel, but attempts by Horn to repackage his claims to get around the district court's findings they were successive. For convenience, we have described his six claims as follows:
• Ineffective assistance of counsel for failing to bring up arguments in his fourth K.S.A. 60–1507 motion about his intoxication defense originally raised in his jury trial.
• Counsel failed to set out all facts relating to Horn's manslaughter defense.
• Counsel failed to correctly outline the chronology of the crime in the statement of facts.
• Counsel failed to argue his first K.S.A. 60–1507 motion was dismissed without the appointment of counsel.
• Counsel was ineffective for acknowledging his K.S.A. 60–1507 motion was untimely.
• Counsel exaggerated Horn's admission to cutting the throat of his victim without providing all of the details.
Horn's failure to establish that he suffered prejudice from his counsel on his fourth 60–1507 appeal is evident upon a basic review of that appeal and the grounds he now raises. In Horn IV, another panel of this court rejected 8 of Horn's 19 claims for relief as they were trial errors regarding evidence, prosecutorial misconduct, and jury instructions that were successive and improper to be brought in a K.S.A. 60–1507 motion. Eight more of those claims were rejected as going to the ineffective assistance of Horn's trial counsel, which lacked evidence to justify raising them in his fourth 60–1507 motion rather than his first. Horn IV, 2012 WL 3629867, at *3. Horn also argued the ineffectiveness of his counsel in his first 60–1507 motion, which was addressed in Horn II, 2009 WL 3270856, at *3–4. Horn IV, 2012 WL 3629867, at *3. That panel also rejected Horn's argument that his direct appeal counsel was ineffective as no events were shown to have prevented Horn from raising the issue in his first 60–1507 motion. Horn's final issue, asserting his second 60–1507 appellate counsel was ineffective, was likewise rejected as Horn's argument for ineffectiveness depended upon raising successive issues from the direct appeal. In Horn IV the court summarized the ruling by saying: “Therefore, all of Horn's claims here either have been previously rejected by this court or could have been brought on direct appeal or in a previous K .S.A. 60–1507 motion.” Horn VI, 2012 WL 3629867, at *4.
Our review of this appeal reflects Horn's current six claims fail to establish manifest injustice. Horn has failed to show any possible prejudice from the alleged ineffective assistance of counsel to extend the time to file his K.S.A. 60–1507 motion after the 1–year time limit has passed. See K.S.A. 60–1507(f). Notably, however, the district court based its decision solely on the successiveness of Horn's motion. While Horn's first, second, and sixth claims may all be viewed as successive as they are essentially rehashing old arguments from prior appeals about ineffective assistance of counsel, Horn's third, fourth, and fifth claims all stem from alleged ineffective assistance of appellate counsel during his fourth 60–1507 motion. Horn argues that all six claims were improperly denied as successive, and while some are clearly successive, we find the others are ineffective attempts by Horn to attack appellate counsel's strategy on how his fourth K.S.A. 60–1507 appeal was processed. Each of these claims by Horn reflect decision making by appellate counsel on how to present and support Horn's appeal.
Horn's claim fails to rise to the level of exceptional circumstances or manifest injustice to allow his claim to proceed. Exceptional circumstances are unusual events or intervening changes in the law that would have prevented Horn from raising all of the trial errors in the first postconviction proceedings. See State v. Kelly, 291 Kan. 868, 872, 248 P.3d 1282 (2011). As such, it was proper for the district court to deny Horn's motion, although the grounds the district court laid out were not entirely correct. See Vontress, 299 Kan. at 619 (trial court's reason for ruling immaterial if correct for any reason).
Insufficient Findings
Next, Horn argues the trial court made insufficient findings of fact and conclusions of law on the issues. “An action filed under K .S.A. 60–1507 is a separate civil action that is generally governed by the Kansas Rules of Civil Procedure, K.S.A. 60–201 et seq. ” Vontress, 299 Kan. at 612. Kansas Supreme Court Rule 183(j) directs that the court must make findings of fact and conclusions of law on all issues presented in proceeding under K.S.A. 60–1507. (2013 Kan. Ct. R. Annot. 278). Generally a litigant bears the responsibility of objecting to inadequate findings of fact and conclusions of law to give the trial court the opportunity to correct them. O'Brien v. Leegin Creative Leather Products, Inc., 294 Kan. 318, 361, 277 P.3d 1062 (2012). Where no objection is made, an appellate court will presume the trial court found all facts necessary to support its judgment. Dragon v. Vanguard Industries, 282 Kan. 349, 356, 144 P.3d 1279 (2006). Our Supreme Court has noted that district court's findings may be “sparse” but still sufficient even when, “[i]n a case that opened with more meat on its bones, it might well have been insufficient to support appellate review.” Robertson v. State, 288 Kan. 217, 232–33, 201 P.3d 691 (2009). In this case the district court stated it found all of Horn's claims successive. While the ruling was “sparse,” it was sufficient to provide the grounds for meaningful appellate review of Horn's fifth successive K.S.A. 60–1507 motion.
Conclusion
Our review of Horn's fifth K.S.A. 60–1507 motion reflects it is successive and without merit. The rule for successive filings was instigated to put an end to mindless and repetitive claims arising out of the same action. Horn was given his bite of the appellate apple with his direct appeal and his first K.S.A. 60–1507 motion and now fails to show how his fifth K.S.A. 60–1507 motion has merit and is not successive. We affirm.
Affirmed.