Opinion
110,541.
04-24-2015
James D. JACKSON, III, Appellant, v. STATE of Kansas, Appellee.
Douglas C. Spencer, of Spencer & Spencer, P.A., of Oakley, for appellant. Shannon D. Rush, assistant county attorney, Susan Lynn Hillier Richmeier, county attorney, and Derek Schmidt, attorney general, for appellee.
Douglas C. Spencer, of Spencer & Spencer, P.A., of Oakley, for appellant.
Shannon D. Rush, assistant county attorney, Susan Lynn Hillier Richmeier, county attorney, and Derek Schmidt, attorney general, for appellee.
Before BUSER, P.J., STANDRIDGE, J., and HEBERT, S.J.
MEMORANDUM OPINION
PER CURIAM.
In this habeas corpus proceeding, James D. Jackson, III, contends the district court committed reversible error when it summarily denied his K.S.A. 60–1507 motion without holding an evidentiary hearing. For the reasons discussed below, we affirm the district court's ruling.
Factual and Procedural Background
A jury convicted Jackson of “multiple counts of aggravated battery, aggravated assault, criminal threat, domestic battery, and criminal trespass.” State v. Jackson, No. 100,281, 2010 WL 1253611, at *1 (Kan.App.2010) (unpublished opinion), rev. denied 291 Kan. 916 (2011). The parties are familiar with the facts underlying Jackson's convictions, and for purposes of this appeal, it is only necessary for us to briefly summarize the procedural history of Jackson's case.
Law enforcement officers made a warrantless arrest of Jackson on August 16, 2007. In the district court's written order denying Jackson's K.S.A. 60–1507 motion, the following factual findings (which are not disputed on appeal) were included in the section entitled “History of the Case”:
“On August 18, 2007, the arrest affidavits were presented to Judge Sanders for review and to determine if there was probable cause to believe a felony had been committed. In two different affidavits, Judge Sanders found probable cause for Mr. Jackson to be held. In 07–2270002 (Police Department Activity number) he was held on Aggravated Burglary, Theft and Criminal damage and a bond of $75,000 set. In 07–2270008, he was held on Aggravated Battery, Criminal Threat and Criminal Restraint charges and a separate bond of $125,000 was established. A Court appearance was set for August 23, 2007 before the Court.
“The original Complaint and Information was filed on August 22, 2007 and in his appearance on August 23, the Public Defender's office was appointed to represent Mr. Jackson. The Preliminary Hearing was held on October 2, 2007 and Arraignment occurred on October 25, 2007. Jury Trial was held on January 16 through the 18, 2008.”
After sentencing, Jackson filed a timely appeal alleging: (1) He lacked access to a law library, a situation he equated to a due process violation; (2) he did not make a knowing and intelligent waiver of his right to counsel; (3) the jurors saw him in shackles outside the courtroom and the district court failed to investigate this situation; (4) the State presented insufficient evidence to support his criminal trespass convictions; (5) the district court should have excluded statements he made to law enforcement prior to his arrest; (6) the district court neglected to provide the jury with a necessary limiting instruction; (7) cumulative trial errors deprived him of a fair trial; and (8) the district court violated his constitutional rights and the United States Supreme Court's holdings in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Cunningham v. California, 549 U.S. 270, 127 S.Ct. 856, 166 L.Ed.2d 856 (2007), when it imposed the upper sentence in the appropriate Kansas Sentencing Guidelines grid without submitting the question to the jury. Finding no reversible error, our court affirmed Jackson's convictions and sentences. 2010 WL 1253611, at *4, 6–11. Jackson subsequently filed a petition for review, which our Supreme Court denied on April 12, 2011.
About 8 months later, on December 9, 2011, Jackson filed a pro se K.S.A. 60–1507 motion—which is the subject of this appeal—alleging the following due process violations occurred during his prosecution: (1) The State did not bring him before a magistrate within 48 hours of his warrantless arrest, as required by the “48 hour Rule” set forth in K.S.A.2014 Supp. 12–4213(d) and County of Riverside v. McLaughlin, 500 U.S. 44, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991) ; (2) his preliminary hearing occurred more than 10 days after his arrest—in violation of K.S.A. 22–2902 —and because “there were no [continuances] requested or good cause shown for the delay,” the district court lacked jurisdiction to bind his case over for trial; (3) his arraignment occurred well outside the time frame prescribed by K.S.A. 22–3206 and the 72–hour window for “ ‘arrest-to-arraignment” ’ required by federal law; (4) he did not receive his statutory or constitutional right to a speedy trial, as his jury trial did not occur within 90 days of the date upon which the district court should have arraigned him; and (5) he received an illegal sentence under Apprendi because the district court improperly enhanced his sentence when it applied the “Double Rule,” which Jackson characterized as an “upward [durational] departure sentence,” based upon findings made by the court rather than a jury. Finally, Jackson asserted that his appellate defender, Heather Cessna, provided constitutionally deficient representation on direct appeal because she was “over worked with 46 units, when the legal limit ... is 30 units” and she did not raise any of the due process issues articulated above or effectively argue the issues she did raise.
The State filed a written response seeking a summary denial of Jackson's motion. The State contended that Jackson was merely attempting to use his K.S.A. 60–1507 motion as a substitute for a second appeal because his due process claims were nothing more than mere trial errors, and he had alleged no exceptional circumstances excusing his failure to raise these claims on direct appeal. Moreover, the State insisted that even if Jackson's claims were properly before the district court, the State did not dispute or challenge any of the facts presented by Jackson in his motion, which rendered an evidentiary hearing unnecessary. Accordingly, the State argued that Jackson's motion could be resolved “solely on the applicable law” and, as a matter of law, his motion clearly demonstrated that he was not entitled to relief.
While both parties' briefs indicate that the district court summarily denied Jackson's K.S.A. 60–1507 motion without a hearing, the record is somewhat vague on this point. The record on appeal indicates that on October 17, 2012, the district court held a “Case Management Conference” with the parties by telephone. Jackson did not request a transcript of this hearing; therefore, the subject matter is unknown. Some court filings suggest the district court may have heard argument regarding the merits of Jackson's motion during this conference. Nevertheless, as the appellant, Jackson has the duty to proffer a complete record on all matters for which he seeks review because it is the appellant's burden to designate a record sufficient to support his or her claimed error(s). See State v. Cervantes–Puentes, 297 Kan. 560, 564, 303 P.3d 258 (2013). In the absence of such a record, our court presumes the district court acted properly. State v. Crum, 286 Kan. 145, 161, 184 P.3d 222 (2008). In any event, it is uncontroverted that an evidentiary hearing was never held regarding Jackson's K.S.A. 60–1507 motion.
On January 3, 2013, the district court issued a detailed written order denying Jackson's K.S.A. 60–1507 motion. Specifically, the court adopted the analysis set forth in the State's response and found that a “[f]urther evidentiary investigation [was] unnecessary ... [because Jackson] suffered no due process violations” and he did not make any “factual claims” indicating that his appellate counsel missed deadlines, employed substandard briefing, or provided representation that was “damaging to him.”
In its order, the district court individually addressed the six claims made by Jackson in his K.S.A. 60–1507 motion and made detailed findings of fact and conclusions of law:
“a. K.S.A. 12–4713 (48 hour rule/due process violation)
“There is no statute either in chapter 12 or 21 or 22 that sets out the rule claimed by [Jackson], In his oral argument, he cites by reference the ‘Riverside’ case requiring judicial evaluation as to whether or not probable cause existed to hold the charged individual. The Court notes that the State of Kansas has set out in their ‘Motion for Summary Denial’ the Memorandum of Law concerning this and all other claims of [Jackson] and the Court finds that the authority cited therein is accurate and adopts the same for this issue and all others.
“Mr. Jackson was arrested on August 17, 2007 and his probable cause (warrantless) arrest was reviewed by a judge within 48 hours. (August 18, 2007). Bond was set and the next appearance of Mr. Jackson in Court was scheduled. The complaint that only 6 crimes were listed by the affiant officer is insignificant to the fact that once a member of the County Attorney's Office reviewed the facts, 21 counts were brought in a complaint/ information filed on August 22, 2007, one day before Mr. Jackson's Court appearance.
“The claim by Mr. Jackson that he should have been formally arraigned within 48 hours of his incarceration is without any authority or support in Kansas Law and is definitely not required under the ‘Riverside’ case. This misinterpretation of the time requirements is carried forward by Mr. Jackson throughout his argument in his claim that ‘speedy trial’ rights should have began, in his opinion, with a formal arraignment on August 19 and trial within 90 days thereafter. Such is not and has never been the law of Kansas. The ‘Riverside’ requirements were met in Mr. Jackson's case and no legal rights were infringed upon.
“b. K.S.A. 22–3206 (Time of Arraignment/due process violation)
“Arraignment occurred on October 25, 2007 following a Preliminary Hearing on October 2, 2007 in which certain charges against [Jackson] were dismissed as not being established by the evidence. The Arraignment and Preliminary hearing were both set upon the order of the Court after consultation with the attorney of the [S]tate and the attorney for [Jackson].
“As repeatedly found by the Supreme Court of Kansas, time frames set out in statute for setting Preliminary Hearings and Arraignments are directory and not mandatory.
“c. K.S.A. 22–2902 (Preliminary Examination/due process violation)
“The Preliminary Hearing was held on October 2, 2007 after being set on the calendar after consultation with the State's Attorney, [Jackson]'s attorney at the time, and the Court's calendar. Any guidelines on scheduling the Preliminary Examination in the statute are directory rather than mandatory and did not result in any due process impropriety for [Jackson].
“d. K.S.A. 22–3402 (90 Day speedy Trial/due process violation)
“Arraignment was held on October 25, 2007 and trial was held on January 16 through the 18, 2008 which was within the 90 day requirement. The Court finds no violation.
“e. K.S.A. 21–4718 (Illegal Sentence/due process violation)
“The Plaintiff was convicted of multiple felonies. The Court, within its discretion, sentenced Mr. Jackson to 43 months for the Aggravated Battery. He then gave consecutive sentences for other felonies that would cumulatively cap at 86 months of incarceration. The sentences administered were within the State guidelines for sentencing and an exercise of the Court's discretion. There was nothing illegal or improper about the sentence received by Mr. Jackson.
“f. Ineffective Assistance of counsel/due process violation
“Mr. Jackson acted as his own counsel for both the trial and at his request, this Motion under K.S.A. 60–1507. He must suffer the results if his own incompetence in representing himself causes him harm. The behavior of the attorney handling the Preliminary Hearing resulted in the dismissal of several charges against [Jackson]. As the Court has ruled upon, the timing of the case has followed State law and [Jackson] has not suffered because of the action of any attorney appointed to help him in the trial of this matter. Despite a claim by [Jackson] that the Appellate Defender assisting him on the original appeal had a heavy case load, no factual claims were even made that deadlines were missed or substandard briefing was submitted or any factual assertion that his representation was damaging to him in any way. Mr. Jackson spen[t] extensive time rearguing the issues already decided by the Court of Appeals in 07Cr239 and were not even identified in the Petition before this Court. [Jackson] has failed to even make an assertion of any factual flaw in the representation he has received either in the trial of his criminal case, its appeal or in this matter.”
On January 25, 2013, Jackson filed a timely notice of appeal and a motion for reconsideration. Six days later, the district court denied Jackson's motion for reconsideration, as the court found that he had presented no “new authority or arguments.” Because Jackson's claims in the district court are now resolved, we consider Jackson's notice of appeal valid. See Hundley v. Pfuetze, 18 Kan.App.2d 755, Syl. 2, 858 P.2d 1244 (“A notice of appeal filed after a final judgment on the merits, but before the trial court's ruling on a motion to alter or amend judgment, is premature. However, it can ‘ripen’ into a valid notice of appeal when all of the claims against the parties are resolved.”), rev. denied 253 Kan. 858 (1993).
Analysis
On appeal, Jackson contends the district court erred when it denied his K.S.A. 60–1507 motion without holding an evidentiary hearing. The State, on the other hand, urges us to affirm the district court's decision because there was no need for an evidentiary hearing and, as a matter of law, Jackson's claims are not meritorious.
District courts are required to hold an evidentiary hearing on a K.S.A. 60–1507 motion and make findings of fact and conclusions of law, with respect thereto, 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) and (j) (2014 Kan. Ct. R. Annot. 285). It is the movant's burden to allege facts which prove that his or her motion warrants an evidentiary hearing. Edgar v. State, 294 Kan. 828, 836, 283 P.3d 152 (2012). To meet this burden, a movant's contentions must be more than conclusory and the movant must either set forth an evidentiary basis to support those contentions or the basis must be evident from the record. 294 Kan. at 836. As stated by our Supreme Court in State v. Holmes, 278 Kan. 603, 629, 102 P.3d 406 (2004) :
“It is erroneous to deny a 60–1507 motion without an evidentiary hearing where the motion alleges facts which do not appear in the original record, which if true would entitle the movant to relief, and it identifies readily available witnesses whose testimony would support such facts or other sources of evidence. [Citation omitted.]”
When, as in this case, the district court summarily denies relief under K.S.A. 60–1507, we conduct a de novo review to determine whether the motion, files, and records of the case conclusively establish that the movant is not entitled to relief. Edgar, 294 Kan. at 836–37.
Although on appeal Jackson claims the district court “erred in denying him an evidentiary hearing in this matter,” we are convinced that his contention is inadequately supported, insufficiently argued, and lacking in merit.
First and foremost, on appeal, Jackson does not provide us with any argument regarding how the district court erred in not conducting an evidentiary hearing. Jackson's K.S.A. 60–1507 claims focused on certain dates involving various stages of the prosecution (arrest, first appearance, arraignment, preliminary hearing, and trial). As alleged by Jackson, the dates of these hearings and time periods between these dates violated certain state and constitutional standards. Yet, these dates were undisputed, memorialized in the district court's records, and ultimately referenced in the district court's order. Indeed, the district court, in adopting the State's motion for summary denial, specifically found: “Because the State [did] not dispute or wish to challenge any of the facts presented by Jackson, there is no reason for an evidentiary hearing on this case. All of Jackson's grounds can be decided based solely on the applicable law.”
Nowhere in his brief does Jackson challenge the district court's finding that an evidentiary hearing was not required because the record contained all of the evidence necessary to review the allegations Jackson raised in his motion. See K.S.A. 60–1507(b) ; Supreme Court Rule 183(f). Jackson also does not specify what issues of fact, if any, he believes needed to be established in such a hearing. Jackson's failure to articulate how the district court erred in not conducting an evidentiary hearing is consequential. It is wellestablished Kansas law that a point raised incidentally in a brief and not argued therein is deemed abandoned. Friedman v. Kansas State Bd. of Healing Arts, 296 Kan. 636, 645, 294 P.3d 287 (2013). We conclude that Jackson has abandoned this issue on appeal.
Regardless of Jackson's failure to adequately brief his argument, we have conducted an independent review of his K.S.A. 60–1507 motion and the record on appeal. Our review confirms the district court's finding that there were ample uncontroverted facts to analyze and determine Jackson's motion without the necessity of an evidentiary hearing.
Jackson's appeal fails for a second reason. Our review of his appellate brief convinces us that he has failed to substantially comply with important rules of appellate practice. Supreme Court Rule 6.02(a)(1)(B) (2014 Kan. Ct. Annot. 40) requires that an appellant's brief must contain a table of contents that includes “the authorities relied on in support of each issue.” Jackson's table of contents lists one statute, one Kansas case, and then states “Numerous Authorities by Appellant” to be found on pages 2 and 3 of his brief, without identifying the individual statutes or cases.
Moreover, Supreme Court Rule 6.02(a)(5) (2014 Kan. Ct. Annot. 41) requires:
“Each issue must begin with citation to the appropriate standard of appellate review and a pinpoint reference to the location in the record on appeal where the issue was raised and ruled on. If the issue was not raised below, there must be an explanation why the issue is properly before the court.”
Pages 2 and 3 of Jackson's brief comprise the totality of his “Argument and Authority” and “Conclusion” sections of his brief. Contrary to our appellate rules, within these two pages there is no citation to the proper standard of appellate review or pinpoint reference to the record on appeal wherein Jacksons's various claims were raised and ruled on. Instead, Jackson simply lists 12 pleadings he filed in the district court regarding his K.S.A. 60–1507 motion and the volume and pages these pleadings may be found in the record on appeal.
Most importantly, we have no hesitancy in stating that the listing of pleadings filed in the district court on pages 2 and 3 of Jackson's appellate brief does not comply with Supreme Court Rule 6.02(a)(5)'s requirement that Jackson provide argument and authorities in support of his issue on appeal. Having read the entirety of Jackson's twopage argument and authority section, we are left to speculate regarding Jackson's view of how the district court erred in making findings of fact and conclusions of law without holding an evidentiary hearing. This meager effort falls below the minimum standards of briefing requirements set forth in Kansas Supreme Court Rule 6.02(a)(5).
Supreme Court Rule 6.02 is designed to insure that an appellate court is fully apprised of the parties' contentions and the relevant legal authority. In re Marriage of Roby & Woodley, No. 108,314, 2013 WL 1458014, at *2 (Kan.App.2013) (unpublished opinion); McMorris v. Hoostal, No. 97,827, 2007 WL 4578004, at *2 (Kan.App.2007) (unpublished opinion). Consequently, our Supreme Court has determined, on numerous occasions, that an appellant's failure to support a point with pertinent authority or show why it is sound despite a lack of supporting authority or in the face of contrary authority is akin to failing to brief the issue. And issues an appellant fails to brief are generally deemed waived and abandoned. See, e.g., State v. Kingsley, 299 Kan. 896, 900, 326 P.3d 1083 (2014) ; State v. Williams, 298 Kan. 1075, 1083–84, 319 P.3d 528 (2014) ; Sierra Club v. Moser, 298 Kan. 22, 78, 310 P.3d 360 (2013) ; State v. Tague, 296 Kan. 993, 1001–02, 298 P.3d 273 (2013). Because Jackson's brief is not in compliance with our long-standing briefing rules and wholly inadequate for appellate review, we deem his challenge to the denial of his K.S.A. 60–1507 motion as waived and/or abandoned.
Finally, despite Jackson's failure to provide argument and authorities in support of his issue on appeal, and his noncompliance with our appellate rules regarding briefing, we have conducted a de novo review to determine whether his K.S.A. 60–1507 motion, files, and records of the case conclusively establish that Jackson is not entitled to relief. See Edgar, 294 Kan. at 836–37. In our review, we have also considered the district court's findings of fact and conclusions of law set forth in its January 3, 2013, order.
Upon our review, we conclude that Jackson's appeal is without merit, the findings of fact of the district court are supported by substantial competent evidence, the district court's findings of fact and conclusions of law adequately explain the court's decision, and the district court did not abuse its discretion in denying Jackson's K.S.A. 60–1507 motion. Accordingly, as to the merits of this appeal, the district court is affirmed under Supreme Court Rule 7.042(b)(2), (3), (5), and (6) (2014 Kan. Ct. R. Annot. 67).
Affirmed.