Opinion
No. 106,020.
2012-07-27
Leland JACKSON, Appellant, v. STATE of Kansas, Appellee.
Appeal from Sedgwick District Court, David J. Kaufman, Judge. Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellant. Matt J. Maloney, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court, David J. Kaufman, Judge.
Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellant. Matt J. Maloney, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before ARNOLD–BURGER, P.J., McANANY, J., and LARSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Leland Jackson was charged with attempted aggravated robbery, fleeing or attempting to elude a law enforcement officer, and criminal possession of a firearm. Consistent with a plea agreement, Jackson pled guilty to attempted aggravated robbery and fleeing or attempting to elude a law enforcement officer. In exchange, the State agreed to dismiss the charge of criminal possession of a firearm, recommend to the court that Jackson be sentenced to the low-range of the appropriate grid box of the Kansas Sentencing Guidelines based upon his criminal history, and request that his sentences be concurrent.
After the plea hearing and before sentencing, Jackson met with his attorney to discuss his motion for a downward departure. His attorney provided a copy of the proposed departure motion to Jackson and asked for his thoughts. Jackson looked over the motion and found that “everything seemed to be true.” Jackson could not remember if his attorney asked him whether there was anything he would like to add to the departure motion. Jackson's attorney could not recall explaining the specific term of “mitigating evidence” to Jackson, but she remembered discussing with Jackson the requirements for a departure, including the presence of substantial and compelling factors.
At the sentencing hearing, Jackson filed a motion requesting a downward dispositional and/or durational departure supported by five specific reasons: (1) Jackson's criminal history score of A was based in large part on juvenile adjudications from 1992; (2) Jackson accepted responsibility for his crimes; (3) in firing his gun during the robbery, Jackson “took great care to insure that the weapon was pointed at the ceiling” and that no one would get hurt; (4) Jackson wrote letters to the victims expressing responsibility and remorse for his actions; and (5) Jackson completed a drug and alcohol evaluation and was attending treatment for his addiction. The district judge rejected the idea of a downward departure, stating that any mitigating factors were outweighed by aggravating factors in Jackson's criminal history. He also stated that Jackson's drug addiction indicated a high likelihood of a relapse. Finally, the district judge stated that the fact that Jackson fired a gun raised the level of emotional harm to the victims. Nevertheless, the judge followed the recommendation in the plea agreement and sentenced Jackson to the mitigated prison sentence for the appropriate grid box. Jackson's sentences were affirmed by this court in State v. Jackson, No. 99,933, 2008 WL 5401486 (Kan.App.2008) (unpublished decision), rev. denied 288 Kan. 834 (2009).
Jackson moved for relief pursuant to K.S.A. 60–1507, claiming: (1) The district court erred when it failed to tell him the meaning of the phrase “mitigating evidence” at sentencing; and (2) his attorney was ineffective for failing to file a motion to suppress his juvenile history. At a preliminary hearing, the district court stated that there was nothing ineffective about failing to file a motion to suppress Jackson's juvenile history because there was no basis for such a motion. However, the district court refrained Jackson's first allegation of error as an issue of ineffective assistance of counsel. The district court found that an evidentiary hearing was needed on the narrow issue of whether discussions took place between Jackson and his attorney regarding the presentation of mitigating evidence at sentencing. Following an evidentiary hearing on the motion, the district court denied relief, and Jackson appeals.
The only issue addressed at Jackson's evidentiary hearing was the issue of whether counsel was ineffective for: (1) failing to discuss the concept of mitigating evidence with Jackson prior to sentencing and (2) failing to investigate or pursue the introduction of mitigating evidence in support of Jackson's motion for a downward departure. The district court ruled that Jackson did not show that his attorney's performance fell below an objective standard of reasonableness. Jackson's attorney reviewed the proposed departure motion with Jackson prior to sentencing. She discussed evidence in support of a mitigated sentence with Jackson and presented such evidence to the court on his behalf. The court further found that Jackson had failed to show a reasonable probability that his sentence would have been reduced if further evidence in support of mitigation had been presented.
On appeal, Jackson abandons any argument regarding the district court's ruling on his K.S.A. 60–1507 motion. We will not address the district court's ruling on the effectiveness of counsel because this issue has been abandoned. An issue not briefed by the appellant is deemed waived and abandoned. State v. McCaslin, 291 Kan. 697, 709, 245 P.3d 1030 (2011).
Jackson's sole argument on appeal is that the district court erred in denying Jackson's K.S.A. 60–1507 motion on the basis that his plea was invalid. Jackson claims the district court “applied the wrong standard and reviewed the wrong issue” in treating it as a claim of ineffective assistance of counsel. Jackson claims “that at his plea, he did not understand the concept or terminology of being able to present evidence in mitigation at the time of sentencing.” Thus, Jackson claims the issue before us is whether his plea was knowing and valid, “not whether his counsel was competent.”
Jackson is essentially arguing that the district court erred in failing to construe his K.S.A. 60–1507 motion as a motion to withdraw plea. Because Jackson made no mention of a desire to withdraw his plea before the district court, he cannot raise this issue for the first time on appeal. Issues not raised before the district court cannot be raised on appeal. State v. Warledo, 286 Kan. 927, 938, 190 P.3d 937 (2008). Jackson does not argue that any exception to this general rule applies.
Although Jackson initially filed his K.S.A. 60–1507 motion pro se, counsel was appointed to represent him on the motion. Jackson was represented by counsel at the preliminary hearings and at the evidentiary hearing. Counsel chose to pursue Jackson's claim as one of ineffective assistance of counsel, and neither his counsel nor Jackson suggested to the district court that Jackson should be allowed to withdraw his plea. Accordingly, we conclude that the district court did not err in failing to construe Jackson's K.S.A. 60–1507 motion as a motion to withdraw plea.
Affirmed.