Opinion
110,960.
04-10-2015
Robert JENKINS, Appellant, v. STATE of Kansas, Appellee.
Janine Cox, of Kansas Appellate Defender Office, for appellant. Don L. Scott, county attorney, and Derek Schmidt, attorney general, for appellee.
Janine Cox, of Kansas Appellate Defender Office, for appellant.
Don L. Scott, county attorney, and Derek Schmidt, attorney general, for appellee.
Before BUSER, P.J., LEBEN and STANDRIDGE, JJ.
MEMORANDUM OPINION
PER CURIAM.
Robert Jenkins appeals the district court's denial of his consolidated K.S.A. 60–1507 motions, arguing he was denied effective assistance of counsel in two cases. First, he argues that his attorney's performance was deficient because the attorney failed to adequately test the credibility of some witnesses at his jury trial in Seward County case number 11–CR–376. Second, Jenkins argues that his attorney had a conflict of interest that rendered the attorney's performance deficient in case numbers 11–CR–376 and 11–CR–379. Finally, he argues he was prejudiced by his attorney's performance and conflicting interests.
Facts
In 2011, two different criminal cases were filed against Jenkins in Seward County. In case number 11–CR–376, an amended complaint charged Jenkins with one count each of the following crimes: possession of cocaine, fleeing or attempting to elude a police officer, interference with law enforcement, possession of marijuana, unlawful possession of drug precursors and drug paraphernalia, driving without a valid driver's license, and reckless driving. In case number 11–CR–379, Jenkins was charged in an amended complaint with one count of aggravated burglary, one count of aggravated assault, two counts of battery, and two counts of criminal threat. Aaron Gipson was appointed to represent Jenkins in both cases.
Jenkins pled not guilty to all the charges against him and jury trials were scheduled in both cases. He proceeded to trial in case number 11–CR–376 first. On May 31, 2012, a jury found Jenkins guilty of fleeing or attempting to elude a police officer, interference with law enforcement, driving without a valid driver's license, and reckless driving. He was acquitted of the three counts involving drugs.
On June 22, 2012, Gipson filed a motion to withdraw as Jenkins' attorney in case 11–CR–379. A hearing to decide the motion was held on June 27, 2012. At the hearing, Gipson informed the district court that he filed the motion to withdraw because Jenkins believed a conflict of interest existed and that Jenkins wanted new counsel due to that conflict. The district court asked Jenkins about the alleged conflict, and he raised two points.
First, Jenkins alleged that Gipson represented Dacee Kentner in a 2008 criminal case and in the course of that representation, the State offered Kentner a plea bargain that included a requirement that Kentner testify against Jenkins. When asked to respond to Jenkins' allegation Gipson generally remembered Kentner and Jenkins were codefendants in that previous case but could not recall whether he had been the attorney who represented Kentner.
Second, Jenkins stated that one of the alleged victims in case number 11–CR–379 and Gipson's wife were friends who used to go to school together and stay the night at each other's houses. In response to this information, Gipson told the court that the two women were “more acquaintances than anything” and that they only had talked on the phone one time since the previous November. In his response, Gipson also informed the court that he specifically had advised Jenkins of his wife's relationship with the victim at the beginning of his representation. Jenkins disputed that he was so advised.
The district court ultimately denied the motion to withdraw, finding no conflict of interest existed. In making its ruling, the court noted that the city of Liberal was a relatively small town and it was not uncommon for there to be connections between parties, witnesses, and jurors in cases. The district court judge then asked Gipson whether he felt he could move forward with the representation, to which Gipson responded, “I feel it's going to be thankless, but I can.”
Thereafter, Jenkins pled no contest to one count of aggravated assault in case number 11–CR–379 as part of a plea agreement. In return, the State agreed to dismiss all other counts against him in that case and to ask the court to reduce Jenkins' conviction in case number 11–CR–376 for fleeing and attempting to elude a police officer from a felony to a misdemeanor, which the district court did. The court found Jenkins guilty of aggravated assault.
A sentencing hearing was held on July 30, 2012, for both cases. In case number 11–CR–376, the district court sentenced Jenkins to a controlling jail sentence of 18 months after taking into account the time he had already served. The court sentenced Jenkins in case number 11–CR–379 to 24 months' probation with an underlying prison term of 24 months. Jenkins did not file an appeal in case number 11–CR–376. Jenkins filed a timely direct appeal in case number 11–CR–379 but then voluntarily dismissed it.
At some point after voluntarily dismissing his direct appeal, Jenkins filed a K.S.A. 60–1507 motion in each of the cases, alleging Gipson provided ineffective assistance of counsel. The district court appointed counsel to represent Jenkins and ordered that the two motions be consolidated. A pretrial conference was held, and the district court issued a pretrial order identifying the claims by Jenkins to be decided at the evidentiary hearing. Relevant to this appeal, Jenkins claimed Gipson was ineffective in failing to subpoena various witnesses and in failing to effectively cross-examine several other witnesses who did testify at trial. Jenkins also claimed trial counsel's declaration to the court indicating counsel could continue to represent Jenkins notwithstanding the existing conflicts of interest constituted deficient performance that prejudiced Jenkins' defense.
Gipson testified at the evidentiary hearing. He acknowledged that there was conflicting evidence regarding which red light Jenkins allegedly ran the night of his offense, which officer arrived on the scene first, who kicked down a door that later needed to be fixed, and who was present during a search of Jenkins' vehicle. But Gipson stated that he believed he thoroughly cross-examined the law enforcement officers about Jenkins' drug charges. He noted that his focus was on the drug charges because his client had confessed to running from the police in a video recorded when Jenkins was interrogated by the police.
Addressing the conflict of interest claims, Gipson denied having any conflict of interest when representing Jenkins in either of the cases. He testified that he did not recall representing Kentner but stated that if he did, it was long before he represented Jenkins. When asked to explain why he had filed a motion to withdraw in 11–CR–379, Gipson testified he did so in order to please Jenkins, who had complained about the perceived conflict.
After Gipson finished testifying, Jenkins requested that he be allowed to represent himself for the remainder of the hearing. The district court granted Jenkins' request and excused his attorney from the matter. In support of his claim that Gipson was ineffective, Jenkins testified Gipson should have caught the contradictions in some of the witnesses' statements at trial in order to cause the jury to question their credibility. Jenkins also testified that he believed Gipson was ineffective for failing to present an adequate defense.
Several more witnesses testified at the evidentiary hearing, but it is unnecessary to detail their testimony given the issues presented by Jenkins on appeal. The district court took the matter under advisement and then filed a written decision denying Jenkins' consolidated K.S.A. 60–1507 motions on June 28, 2013.
Analysis
Jenkins asserts on appeal that the district court erred by denying his K.S.A. 60–1507 motions. Jenkins first alleges that Gipson's performance in case number 11–CR–376 was deficient and that he was prejudiced by this deficient performance.
After a full evidentiary hearing on a K.S.A. 60–1507 motion, the district court must issue findings of fact and conclusions of law on all issues presented. Supreme Court Rule 183(j) (2014 Kan. Ct. R. Annot. 285). A claim alleging ineffective assistance of counsel presents mixed questions of fact and law. Appellate courts review the underlying factual findings for support by substantial competent evidence and the legal conclusions based on those facts de novo. State v. Cheatham, 296 Kan. 417, 430, 292 P.2d 318 (2013). Substantial evidence is such evidence that a reasonable person might accept as sufficient to support a conclusion. State v. May, 293 Kan. 858, 862, 269 P.3d 1260 (2012).
“To support a claim of ineffective assistance of counsel based on counsel's performance, a defendant must demonstrate that (1) counsel's performance was deficient and (2) counsel's deficient performance was sufficiently serious to prejudice the defense and deprive the defendant of a fair trial.” Edgar v. State, 294 Kan. 828, 837, 283 P.3d 152 (2012). In order to show an attorney's performance was deficient, a defendant must “demonstrate counsel's representation fell below an objective standard of reasonableness, considering the entire circumstances attendant to the case.” Cheatham, 296 Kan. at 431.
Deficient performance
Jenkins asserts that Gipson's performance was deficient by not testing the credibility of witnesses at trial. Jenkins does not specify in his brief which witnesses he believes Gipson failed to adequately test, but he appears to refer generally to the conflicting statements made at trial by some of the police officers in case number 11–CR–376. Jenkins argues the law clearly places the responsibility of determining the credibility of witnesses on the jury and that failure by an attorney to challenge that credibility undermines the fairness of the trial. In support of this argument, he summarily cites to State v. Brooks, 297 Kan. 945, 952, 305 P.3d 634 (2013), in which the Kansas Supreme Court found that a defendant's right to impeach a complaining witness' credibility is a fundamental right protected by the Confrontation Clause of the Sixth Amendment to the United States Constitution. Jenkins does not, however, provide any explanation as to how this case supports his particular claim that Gipson performed deficiently.
The Kansas Supreme Court has ruled that, when determining whether an attorney's performance fell below an objective standard of reasonableness, appellate courts must be highly deferential and indulge a strong presumption that the attorney's representation fell within the wide range of reasonable professional conduct. Edgar, 294 Kan. at 838. Further, whether and how to conduct cross-examination are strategic decisions that come within the exclusive province of an attorney after consultation with his or her client. Bledsoe v. State, 283 Kan. 81, 92, 150 P.3d 868 (2007). Additionally,
“ ‘[s]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable, and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.’ [Citations omitted.] The burden is on a defendant to demonstrate that the alleged deficiencies were not the result of strategy. [Citations omitted.]” State v. Adams, 292 Kan. 151, 167–68, 254 P.3d 515 (2011).
In this case, Gipson acknowledged that there were inconsistencies in some of the statements provided by law enforcement officers but testified that he thoroughly cross-examined the officers on the issue of drugs. Gipson also testified that he focused on the drug charges because Jenkins had already admitted on camera that he had run from police. Notably, Jenkins does not challenge Gipson's testimony in this regard, does not claim Gipson failed to investigate the law or facts surrounding any of the police testimony, and does not allege that Gipson failed to consult with him about the evidence presented at trial. Instead, Jenkins just generally argues that Gipson should have done more to confront the witnesses with these inconsistencies and that Gipson's failure to do so necessarily is tantamount to deficient performance. We are not persuaded by this argument.
The testimony at the evidentiary hearing indicated that Gipson consulted with his client about the witnesses, that Gipson was aware of the facts of the case and the charges against his client, and that Gipson was exercising his professional judgment in determining how best to challenge the prosecution's evidence. There is no indication in the record that Gipson's actions were objectively unreasonable or that they were anything other than sound trial strategy. As such, we agree with the district court that Jenkins failed to demonstrate counsel's representation fell below an objective standard of reasonableness, considering the entire circumstances attendant to the case. See Cheatham, 296 Kan. at 431. Because Jenkins' claim fails under the first factor of the test for ineffective assistance of counsel, it is unnecessary to consider the prejudice factor.
Conflict of interest
Jenkins next contends that Gipson provided ineffective assistance of counsel by continuing to represent him despite knowing that a conflict of interest existed. The Kansas Supreme Court has identified three different categories of ineffective assistance of counsel claims based on conflicts of interest, each of which requires a different analysis:
“ ‘The first category includes cases in which it is claimed that the attorney's performance was so deficient that the defendant was denied a fair trial. The second category applies when the assistance of counsel was denied entirely or denied at a critical stage of the proceeding. The third category includes situations where the defendant's attorney “actively represented conflicting interests.’ “ [Citations omitted.]” Sola–Morales v. State, 300 Kan. 875, 882, 335 P.3d 1162 (2014).
Given the manner in which Jenkins framed his conflict of interest argument on appeal, his claim appears to fall into the first category: “Gipson's performance was deficient when he represented Mr. Jenkins after representing a co-defendant who was prepared to testify against Mr. Jenkins in a prior case.” To prevail on this claim, Jenkins has the burden to establish (1) the performance of defense counsel was deficient under the totality of the circumstances, and (2) prejudice, i.e., that there is a reasonable probability the jury would have reached a different result absent the deficient performance. See Edgar, 294 Kan. at 837–38. Other than the manner in which counsel examined witnesses as discussed in the preceding section, however, Jenkins has failed to identify any other action taken by Gipson to support his allegation of deficient performance based on a conflict of interest. Because Jenkins' claim fails under the first factor of the test for ineffective assistance of counsel, it is unnecessary to consider the prejudice factor.
Even if we were to construe Jenkins' claim as ineffective assistance of counsel based on a conflict of interest under the second or third category, his claim would fail. In order to prevail on a claim that falls into the second category, the defendant must show he or she was denied counsel. Sola–Morales, 300 Kan. at 883. To prevail under the third category, the defendant must establish the existence of an actual conflict of interest. “ ‘ “An actual conflict of interest exists if ‘the defense attorney was required to make a choice advancing his [or her] own interests to the detriment of his [or her] client's interests.” “ “ 300 Kan. at 896.
Jenkins alleges that at some point in time before representing him in these two cases, Gipson represented a codefendant who was prepared to testify against Jenkins. But this does not indicate Jenkins and Gipson had any active, competing interests. Jenkins simply cites no evidence, nor can any be found in the record, that Gipson was ever in a position that advanced his interests to the detriment of Jenkins' interests as a result of the prior representation. The burden was on Jenkins to establish Gipson actively represented conflicting interests in either 11–CR–376 or 11–CR–379. Jenkins failed to meet this burden. In the absence of any facts or other evidence to support the existence of a conflict of interest, Jenkins' claim of error has no merit.
Affirmed.