Opinion
No. 109,082.
2013-10-25
Glendon G. LOUIS, Appellant, v. STATE of Kansas, Appellee.
Appeal from Wyandotte District Court; J. Dexter Burdette, Judge. Michael G, Highland, of Bonner Springs, for appellant. Michael Duma, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Wyandotte District Court; J. Dexter Burdette, Judge.
Michael G, Highland, of Bonner Springs, for appellant. Michael Duma, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., ATCHESON, J., and LARSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Glendon G. Louis appeals the decision of the Wyandotte County District Court denying his habeas corpus motion, under K.S.A. 60–1507, challenging his convictions on two counts of aggravated robbery and one count each of robbery, theft, and possession of cocaine. We find no constitutional error warranting relief in this collateral attack on the judgment of conviction and, therefore, affirm the district court.
Given the issues Louis now raises, we need not detail the factual circumstances the jury heard at trial in deciding to convict. The charges stemmed from four robberies in Wyandotte County in September 2006. This court outlined the trial evidence in its decision affirming the convictions on direct appeal. See State v. Louis, No. 100,530, 2010 WL 1882141 (Kan.App.2010) (unpublished opinion). We provide those facts necessary to place in context each point Louis asserts in this appeal.
The district court denied the 60–1507 motion without appointing a lawyer for Louis or conducting a hearing.
A district court may summarily dismiss a 60–1507 motion upon review of the motion itself and the contents of the file in the underlying criminal case. Bellamy v. State, 285 Kan. 346, 353, 172 P.3d 10 (2007). The motion should be dismissed without a hearing only if the allegations and the case records “conclusively show that the prisoner is entitled to no relief.” K.S.A. 60–1507(b); Supreme Court Rule 183(f) (2012 Kan. Ct. R. Annot. 274). If a district court dismisses a 60–1507 motion without a hearing, as happened here, the appellate courts review that determination anew and without any deference. Bellamy, 285 Kan. at 354. Louis principally argues the issues he asserted in his motion require an evidentiary hearing to resolve and requests reversal and remand for that purpose.
At the outset, the State contends Louis filed the motion outside the 1–year limitation period in K.S.A. 60–1507(f). But that is incorrect. The State measures the year from the date this court issued its opinion affirming the convictions on direct appeal. Louis, however, then timely filed a petition for review with the Kansas Supreme Court, and that petition was not denied until May 18, 2011. That denial triggered the 1–year limitation for filing a 60–1507 motion. Louis filed his motion on October 11, 2011 and followed up with what he characterized as amended and supplemental pleadings in November 2011. The papers were timely filed.
In an abundance of deference to Louis, we look at the particular issues he asserted in the 60–1507 motion in the district court, although they are not individually argued in detail on appeal. Even with that careful review, we cannot see why the district court should have conducted an evidentiary hearing or how the district court erred in summarily denying relief. A motion under 60–1507 should not be used as the functional equivalent of a second direct appeal, although Louis has essentially done so. See Rule 183(c)(3) (2012 Kan. Ct. R. Annot. 274). He repeats many issues he raised in his direct appeal.
Complaint charging robbery and aggravated robbery. Louis contends the complaint impermissibly charged the crimes of aggravated robbery and robbery because the language did not identify the owners of the money taken in the holdups. Louis characterizes this as a denial of due process in violation of his rights under the Fourteenth Amendment to the United States Constitution. The argument is without merit. Neither form of robbery requires property be taken from its rightful owner. The offense of robbery consists of taking property from or in the presence of a person by force or a threat of bodily harm. The crime becomes aggravated if the perpetrator uses a deadly weapon or a person suffers bodily injury. See K.S.A. 21–3426; K.S.A. 21–3427. The ownership of the property taken is legally irrelevant. See State v. Brummel, No. 103,927, 2012 WL 686686, at *4–5 (Kan.App.2012) (unpublished opinion), rev. denied ––– Kan. –––– (2013). The State, therefore, need not charge or prove ownership of the property in prosecuting robbery or aggravated robbery.
Failure to present DNA evidence. Louis contends his trial lawyer was constitutionally ineffective, violating his rights under the Sixth and Fourteenth Amendments, because the lawyer did not get evidence from DNA testing of a sweatshirt into evidence. At trial, Louis wanted to argue that someone else committed the robberies and sought to admit evidence suggesting a particular individual. The evidence included DNA testing of a blue hooded sweatshirt similar to one the robber wore. At trial, the district court refused to allow any of the evidence because it was too remote and indefinite. See State v. Brown, 285 Kan. 261, 303–04, 173 P.3d 612 (2007). On direct appeal, this court found the district court did not abuse its discretion in excluding that evidence. Louis, 2010 WL 1882141, at *4–5. Louis' trial lawyer did attempt to admit all of that evidence. He failed only because the district court made a proper legal ruling to exclude it. Far from being constitutionally deficient, Louis' trial lawyer aggressively (if unsuccessfully) pursued that defense theory.
Failure to confront witness. Louis contends his trial lawyer was constitutionally ineffective for failing to cross-examine or confront a witness against him in one of the robberies. The witness, one of the victims, was unavailable at the time of trial. The State asked the district court to admit her testimony from the preliminary hearing. Louis' lawyer objected, and the district court overruled the objection. Preliminary hearing testimony of an absent witness may be admitted at trial without violating the confrontation clause of the Sixth Amendment because a defendant has had the opportunity to confront and examine the witness at the preliminary hearing. See State v. Stano, 284 Kan. 126, 142, 159 P.3d 931 (2007). This court considered the issue in Louis' direct appeal and found no error. The court noted that the victim's preliminary hearing testimony was brief-she described the robbery and identified Louis. She was then cross-examined on those points. Louis, 2012 WL 1882141, at *5–6. Louis does not argue that new charges, other evidence, or some comparable changed circumstance rendered the victim's preliminary hearing testimony incomplete or would have led counsel to ask about other matters had the victim testified at trial. Here, again, Louis' trial lawyer lodged an objection to the use of the preliminary hearing testimony, so it is difficult to see how his performance was deficient.
Conflict with initial appointed counsel. Louis alleges the lawyer initially appointed to represent him had a conflict of interest. The district court allowed that lawyer to withdraw and appointed new counsel who represented Louis leading up to trial and at trial. Without passing on the materiality of the conflict itself, we fail to discern how Louis' right to a fair trial was compromised. Louis does not suggest any particular way in which he was disadvantaged. Absent a demonstration of actual prejudice or harm, Louis cannot prevail on a 60–1507 motion. Strickland v. Washington, 466 U.S. 668, 687–88, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Holmes v. State, 292 Kan. 271, 274, 252 P.3d 573 (2011).
Speedy trial considerations. Finally, Louis argues that his constitutional right to a speedy trial under the Sixth Amendment and his statutory right to a speedy trial under K.S.A. 22–3402 were violated. As to the constitutional violation, Louis advances a cryptic argument that he was prejudiced premised on the purported defects in how the complaint charged the aggravated robbery and robbery offenses. We have pointed out the complaint was not defective. We cannot divine a cogent argument for a constitutional speedy trial violation in what Louis has presented. Cf. Herrell v. National Beef Packing Co., 292 Kan. 730, 736, 259 P.3d 663 (2011) (an issue inadequately briefed on appeal deemed abandoned). The statutory right to a speedy trial is measured differently from the constitutional right. In that respect, Louis contends continuances of the trial setting attributable to the appointment of new counsel and new counsel's request for DNA testing somehow should be counted as part of the 90–day period in which the State must bring an accused in custody to trial. See K.S.A. 22–3402(a) (State must bring person held in custody to trial within 90 days after arraignment). But Louis requested replacement counsel, and his new lawyer asked for a continuance of the trial for the DNA workup. Those delays were properly attributed to Louis and, therefore, did not affect the State's statutory obligation to bring him to trial within the time limits set in K.S.A. 22–3402. See K.S.A. 22–3402(a) (delays resulting from “the application or fault of the defendant” not charged to the State for speedy trial purposes). Again, this court thoroughly reviewed Louis' statutory speedy trial claim on direct appeal and found it to be without merit. Louis has not presented a sound legal basis for reconsidering the issue in his 60–1507 motion or appellate review of the denial of that motion.
In sum, Louis has failed to advance any meritorious grounds for relief under K.S.A. 60–1507. As a result, he has also failed to demonstrate any reason he should be given an evidentiary hearing on his motion. The district court acted properly in summarily denying the motion.
Affirmed.