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Lockhart v. State

Court of Appeals of Kansas.
May 29, 2015
349 P.3d 491 (Kan. Ct. App. 2015)

Opinion

111,579.

05-29-2015

Carrie R. LOCKHART, Appellant, v. STATE of Kansas, Appellee.

Janine Cox, of Kansas Appellate Defender Office, for appellant. Lee J. Davidson, assistant attorney general, for appellee.


Janine Cox, of Kansas Appellate Defender Office, for appellant.

Lee J. Davidson, assistant attorney general, for appellee.

Before POWELL, P.J., McANANY, J., and BUKATY, S.J.

MEMORANDUM OPINION

PER CURIAM.

Carrie Lockhart appeals from the order of the district court denying her K.S.A. 60–1507 motion after holding an evidentiary hearing. Lockhart argues: (1) defense counsel was constitutionally defective in advising her regarding the amount of prison time she was facing; and (2) K.S.A. 60–1507 counsel was ineffective for failing to call defense counsel to testify at the evidentiary hearing. We find that Lockhart has not met her burden in showing error and affirm the district court.

In May 2010, the State charged Lockhart with conspiracy to manufacture a controlled substance, two counts of possession of precursor materials to manufacture methamphetamine, possession of methamphetamine, and a misdemeanor count of possession of drug paraphernalia. The charging documents incorrectly listed the possession of precursor charges as severity level 1 drug felonies when they were in fact severity level 2 drug felonies. The charging documents also bore an incorrect sentencing range for the precursor offenses.

Lockhart's appointed counsel negotiated a plea agreement in which Lockhart agreed to plead guilty to conspiracy to manufacture a controlled substance. Lockhart also agreed to testify truthfully against her codefendants. In exchange, the State agreed to dismiss all remaining charges and join in Lockhart's sentencing request for a downward durational departure to 84 months' imprisonment.

Prior to the plea hearing, Lockhart reviewed a petition to enter plea agreement which contained all of the terms of the agreement. Unlike the charging documents, the plea agreement recited the correct severity level and sentencing range for all charged offenses. Lockhart signed the plea agreement document, thereby agreeing that

• she fully informed her attorney of the facts and circumstances surrounding the charges;

•she had been advised by her attorney of the nature of each charge, the minimum and maximum penalties for such charges, and any possible defenses to such charges;

•she understood the constitutional rights she would waive when entering a plea of guilty;

•she was not under the influence of drugs or alcohol and was not suffering from a mental disease;

•she understood that the plea agreement was not binding upon the court, and the court could sentence her up to the statutory maximum penalty;

•neither threats nor promises had been made to induce her to enter her plea, and she entered the plea with full knowledge and understanding of the plea petition;

•she was fully satisfied with the performance of her attorney;

•by entering a plea, she still retained the limited right to appeal the sentence handed down by the court, which must be filed within 10 days of sentencing, and the court would appoint her an attorney to assist with the appeal if she was unable to afford counsel; and

•she would request the court to accept her plea.

At the plea hearing, Lockhart indicated that she had an adequate opportunity to review the plea agreement with her attorney and understood the charge she was pleading guilty to and the potential penalties. Additionally, Lockhart affirmed that she believed defense counsel did a good job explaining the rights she was waiving by entering a plea; she also agreed that defense counsel had handled the case in an appropriate manner. Lockhart stated she understood the rights she was waiving by entering a plea and that she retained the right to appeal her sentence. After this colloquy, the district court accepted Lockhart's plea.

At sentencing, the district court followed the terms of the plea agreement, sentencing Lockhart to 84 months' imprisonment, which was a downward departure from the Kansas Sentencing Guidelines Act (KSGA) sentencing range of 132 to 148 months. See K.S.A. 21–4701 et seq. One day after sentencing, Lockhart signed a waiver of her right to appeal her sentence. Lockhart did not file a direct appeal.

On June 2, 2011, Lockhart filed a K.S.A. 60–1507 motion raising three claims: (1) there was a breach of the plea agreement; (2) her sentence was illegal; and (3) her counsel was ineffective. Significantly, Lockhart did not request to withdraw her plea; the sole relief requested was for resentencing “under the lesser included penalty.” Although Lockhart alleged that counsel should not have allowed her to enter the plea agreement, she never asked to withdraw her plea.

The district court held a hearing on Lockhart's motion. Lockhart never requested to withdraw her plea during this hearing. At the conclusion of the hearing, the district court ruled that it did not “have a mechanism” to hear the merits of her K.S.A. 60–1507 motion because Lockhart had not taken a direct appeal. The district court dismissed the K.S.A. 60–1507 motion, ruling that Lockhart was in “procedural default.”

Lockhart appealed. A panel of this court disagreed with the district court's ruling that a defendant's failure to pursue a direct appeal prohibits review of the criminal proceedings under K.S .A. 60–1507. The court reversed and remanded to the district court with directions for the district court to consider the merits of the K.S.A. 60–1507 motion. Lockhart v. State, No. 107,794, 2013 WL 1457960, at *2–3 (Kan.App.2013) (unpublished opinion).

On remand, the district court held an evidentiary hearing in which Lockhart testified as the only witness. Lockhart testified she met with defense counsel three times before entering her plea. Lockhart claimed that defense counsel never discussed the possibility of suppressing the statements she made to law enforcement or the possibility of an appeal. Lockhart testified that counsel told her that under the circumstances she would probably be sentenced to “something like 40–something years in prison.”

According to Lockhart, defense counsel claimed that the plea bargain was the best that she could do and all of the codefendants were also going to prison, but Lockhart later found out that some of her codefendants received lighter sentences. Lockhart claimed her counsel told her that if she were her child or grandchild, counsel would be giving her the same advice to take the plea.

Lockhart claimed she made the decision to enter the plea based on her belief that she could be facing 40 years in prison if she went to trial. At no time during the proceedings did Lockhart testify that she would not have taken the plea but for defense counsel's ineffective actions. In addition, at no time did Lockhart or her counsel suggest that she wished to withdraw her plea.

On cross-examination, Lockhart acknowledged that she had signed a waiver of appeal, but she testified that her attorney was not the one who presented her with the waiver. The waiver was presented to Lockhart by a different attorney who represented a codefendant in the case.

The district court ordered both parties to file proposed findings of fact and conclusions of law. In Lockhart's proposed findings of fact, there is no mention of what remedy or relief she is seeking. K.S.A. 60–1507 counsel also failed to suggest a remedy at the hearing.

On October 17, 2013, the district court denied relief, ruling that there was no evidence that the State breached the plea agreement and Lockhart was precluded from challenging her sentence as illegal because she failed to file a direct appeal. Regarding Lockhart's contention that her trial counsel was ineffective, the district court stated:

“[Lockhart]'s contention that her counsel was ineffective is also without merit. There are a variety of problems present in [Lockhart]'s claim that her counsel was ineffective.

“First, there is a presumption that Counsel's conduct fell within the range of reasonable professional assistance. That presumption is especially true when Counsel is not called to testify regarding what actions [Counsel] took or did not take. [Pabst v. State, 287 Kan. 1, 17, 192 P.3d 630 (2008) ].

“In the case at bar, Counsel was not called to testify. Absent testimony to the contrary, when looking at the record, the presumption of reasonableness is clearly present in this case at bar. Moreover, [Lockhart] never testified that she would not have pleaded guilty and insisted on going to trial absent her attorney's alleged deficiencies. [Lockhart]'s allegations cannot prevail absent such testimony. [United States v. Gordon, 4 F.3d 1567, 1571 (10th Cir.1993) ].

“Finally, at the plea hearing, under oath, [Lockhart] testified that her counsel had advised her of all the rights she would be giving up and that her counsel had handled [Lockhart]'s case in the appropriate manner.... These were sincere declarations of effectiveness by [Lockhart] that the record supports. [Lockhart]'s self-serving conclusory allegations after the fact do not change the record.”

Lockhart appeals.

Ineffective assistance of defense counsel

On appeal, Lockhart claims the district court erred in determining that defense counsel was not ineffective and thus denying her K.S.A. 60–1507 motion. Lockhart argues that her right to effective assistance of counsel was denied because defense counsel misrepresented the maximum possible sentence she was facing when she told her that she could spend “something like 40–something years in prison.”

On appeal, Lockhart focuses exclusively on her ineffective assistance of counsel claim. Thus, the other claims raised in her K .S.A. 60–1507 motion have been waived and abandoned on appeal. State v. Boleyn, 297 Kan. 610, 633, 303 P.3d 680 (2013) (an issue not briefed by the appellant is deemed waived and abandoned).

The district court denied Lockhart's K.S.A. 60–1507 motion after conducting a full evidentiary hearing on the issues raised in her motion. When reviewing the denial of a K.S.A. 60–1507 motion after a full evidentiary hearing, we accept the district court's findings of fact to the extent that they are supported with substantial competent evidence and are sufficient to support the court's conclusions of law. We exercise unlimited review of the determinative legal issues. State v. Adams, 297 Kan. 665, 669, 304 P.3d 311 (2013).

When analyzing a claim of ineffective assistance of counsel, to merely surmise, with the benefit of hindsight, that another attorney may have handled the case differently is insufficient. Rather, before counsel's assistance is determined to be so defective as to require reversal of a conviction, the defendant must establish the well-known twopronged test. First, the defendant must establish that counsel's performance was constitutionally deficient. This requires a showing that counsel made errors so serious that his or her performance was less than that guaranteed to the defendant by the Sixth Amendment to the United States Constitution. Second, the defendant must establish that counsel's deficient performance prejudiced the defense, thus depriving the defendant of a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674, reh. denied 467 U.S. 1267 (1984) ; see State v. Cheatham, 296 Kan. 417, 431, 292 P.3d 318 (2013). The benchmark for judging an ineffective assistance of counsel claim is whether counsel's conduct so undermined the proper functioning of the adversarial process that the proceedings cannot be relied on as having produced a just result. Bledsoe v. State, 283 Kan. 81, 90, 150 P.3d 868 (2007).

Judicial scrutiny of counsel's performance in a claim of ineffective assistance of counsel is highly deferential and requires consideration of all of the circumstances. We must strongly presume that counsel's conduct fell within the broad range of reasonable professional assistance. Harris v. State, 288 Kan. 414, 416, 204 P.3d 557 (2009). “[A] fair assessment of attorney performance requires that every effort must be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.” Crowther v. State, 45 Kan.App.2d 559, 564, 249 P.3d 1214, rev. denied 293 Kan. 1105 (2011).

To establish prejudice, the defendant must demonstrate a reasonable probability that, but for counsel's deficient performance, the outcome of the proceeding would have been different. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Harris, 288 Kan. at 416.

The State suggests that Lockhart's claim of ineffective assistance of defense counsel should also be construed as a motion to withdraw guilty plea under K.S.A. 22–3210(d), consistent with the relief sought. See State v. Kelly, 291 Kan. 563, 565–56, 244 P.3d 639 (2010) (pro se motion should be construed as motion to withdraw plea in order to give effect to the pleading's content rather than the label or form used). But Lockhart never asked the court for leave to withdraw her plea. She did not make such a request in her K.S.A. 60–1507 motion, nor did she make this request at any of the subsequent proceedings, including on appeal.

If we were to view Lockhart's motion as a motion to withdraw plea, Lockhart would be required to show that there is a reasonable probability that but for counsel's errors, the movant would not have pled guilty and would have insisted on going to trial. State v. Kelly, 298 Kan. 965, 969–70, 318 P.3d 987 (2014) ; see Lafler v. Cooper, 566 U.S. ––––, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012) (analyzing claim that ineffective assistance of counsel caused defendant to reject plea offer).

At the evidentiary hearing, Lockhart testified that from what defense counsel told her she thought she was facing three severity level 1 offenses and the possibility of 40 years in prison. Counsel told her that the plea deal was as good as she was going to receive and that she would advise her own children or grandchildren to take the deal. Lockhart asserted she entered the plea agreement because counsel told her that she would be facing 40 years in prison.

On appeal, Lockhart claims that her testimony established that but for defense counsel's communication that she was facing “something like 40–something years in prison,” she would not have decided to accept the plea agreement. See State v. Szczygiel, 294 Kan. 642, 647, 279 P.3d 700 (2012). But in ruling on the K.S.A. 60–1507 motion, the district court correctly noted that Lockhart never testified that she would not have pled guilty and would instead have insisted on going to trial but for defense counsel's errors. In addition, Lockhart never asked to withdraw her plea. Lockhart asked only for a reduced sentence.

In the plea colloquy, Lockhart said she was satisfied with her attorney's performance, had adequate time to discuss the case with her attorney and ask any questions that she might have had, and that she understood the charges and possible penalties, which were accurately represented on the signed written plea agreement. At no time during the hearing did Lockhart suggest she was hesitant to enter the plea or did not understand the proceedings. The district court advised Lockhart of the possible sentencing range and noted the State agreed to recommend a downward durational departure to 84 months' imprisonment. The remaining charges against Lockhart were dismissed in exchange for her plea. Lockhart received a significant benefit from the plea agreement; she failed to show that had she been adequately represented, she would not have pled guilty.

Lockhart's defense counsel did not testify during the K.S.A. 60–1507 hearing, so there is no evidence about her version of events or her advice regarding the plea agreement. There is also no explanation for defense counsel's absence at the K.S.A. 60–1507 hearing. Unless the record discloses otherwise, we presume that counsel exercised reasonable professional judgment.

Even if Lockhart had been able to show that defense counsel provided a constitutionally substandard performance, Lockhart failed to prove prejudice. Lockhart testified that her belief that she would be facing about 40 years in prison induced her to enter her plea. But she never testified that but for that communication she would have insisted on going to trial. Lockhart received a favorable plea agreement, and the district court granted a durational departure from the KSGA sentencing range. At no point in time has Lockhart asked to withdraw her plea. In light of the favorable plea agreement, there is a strong presumption that counsel's representation was adequate.

Lockhart's only requested remedy is a reduced sentence. She does not ask for leave to withdraw her plea. The only available remedy for ineffective assistance of counsel under these circumstances is allowing her to withdraw her plea. Even if Lockhart had met both prongs of the Strickland test, this court cannot grant her requested remedy.

Ineffective assistance of K.S.A. 60–1507 counsel

For the first time on appeal, Lockhart argues that she was denied her right to effective assistance of K.S.A. 60–1507 counsel.

Lockhart has a right to effective assistance of counsel at a K.S.A. 60–1507 hearing. When counsel is appointed in a postconviction proceeding, he or she must be effective and competent. Brown v. State, 278 Kan. 481, 484, 101 P.3d 1201 (2004). Lockhart bears the burden of proving her K.S.A. 60–1507 counsel was ineffective. See State v. Davis, 277 Kan. 309, 314, 85 P.3d 1164 (2004).

Even though this issue is being raised for the first time on appeal, our Supreme Court has held that the general rule that a movant must raise a claim of effective assistance of counsel in the district court does not necessarily apply when the challenge addresses the performance of K.S.A. 60–1507 counsel.

“This court has held that a constitutional challenge to an attorney's performance must first be raised in the district court, either via a collateral attack or on remand during direct appeal, for determination of the issue. [Citation omitted.] This is not necessarily true, however, when the challenge addresses a statutory right to counsel or when it deals with an attorney's performance on a K.S.A. 60–1507 motion. [Citation omitted.]” Robertson v. State, 288 Kan. 217, 227, 201 P.3d 691 (2009).

This court may consider this issue for the first time on appeal only to the extent that an examination of the record adequately discloses the quality of assistance provided. 288 Kan. 217, Syl. ¶ 6. “The extent of a movant's statutory right to effective assistance of counsel during a K.S.A. 60–1507 proceeding is a question of law over which this court has previously exercised unlimited review. [Citations omitted.]” 288 Kan. at 227.

Lockhart asserts that K.S.A. 60–1507 counsel was ineffective for failing to call defense counsel to testify at the K.S.A. 60–1507 hearing. Lockhart suggests that had her defense counsel been called to testify, her K.S.A. 60–1507 counsel could have proven that counsel was ineffective by showing that Lockhart believed she was facing a higher penalty than was possible under the KSGA. Lockhart also claims that K.S.A. 60–1507 counsel could have asked defense counsel about other issues, such as why there was no attempt to suppress the statements Lockhart made to law enforcement or why defense counsel was not the attorney who asked Lockhart to sign her waiver of appeal a day after she was sentenced.

By not calling defense counsel to testify, Lockhart claims the district court was allowed to presume that counsel's actions were reasonable under the circumstances. See Pabst v. State, 287 Kan. 1, 17, 192 P.3d 630 (2008) (in the absence of testimony allowing counsel an opportunity to explain his or her reasoning and actions, the appellate court's scrutiny is highly deferential).

Lockhart has the burden of proof in showing that K.S.A. 60–1507 counsel acted ineffectively by failing to call defense counsel as a witness at the hearing. But Lockhart fails to set forth any evidence in the form of an affidavit or sworn testimony indicating how defense counsel's testimony would have supported the claims Lockhart made in her K.S.A. 60–1507 motion. Perhaps K.S.A. 60–1507 counsel chose not to call defense counsel for strategic reasons, but we are unable to make that determination from the record.

Lockhart is burdened with demonstrating that a reasonable probability exists that, but for K.S.A. 60–1507 counsel's errors, she would have been successful on her K.S.A. 60–1507 motion. In light of the fact that Lockhart never requested to withdraw her plea, it is unlikely that her motion would have been successful.

Even if K.S.A. 60–1507 counsel was ineffective, we cannot provide Lockhart's requested relief of a reduced sentence. Accordingly, we affirm the district court's order denying relief on the K.S.A. 60–1507 motion.

Affirmed.


Summaries of

Lockhart v. State

Court of Appeals of Kansas.
May 29, 2015
349 P.3d 491 (Kan. Ct. App. 2015)
Case details for

Lockhart v. State

Case Details

Full title:Carrie R. LOCKHART, Appellant, v. STATE of Kansas, Appellee.

Court:Court of Appeals of Kansas.

Date published: May 29, 2015

Citations

349 P.3d 491 (Kan. Ct. App. 2015)