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Lovato v. State

Court of Appeals of Kansas.
Feb 8, 2013
293 P.3d 816 (Kan. Ct. App. 2013)

Opinion

No. 107,043.

2013-02-8

John LOVATO, Appellan, v. STATE of Kansas, Appellee.

Appeal from Seward District Court; Bradley E. Ambrosier and Tom R. Smith Judges. Lane L. Frymire, of Yoxall, Antrim, Fitzgerald, McCaffrey & Foreman, LLP, of Liberal, for appellant. Don L. Scott, county attorney, and Derek Schmidt, attorney general, for appellee.


Appeal from Seward District Court; Bradley E. Ambrosier and Tom R. Smith Judges.
Lane L. Frymire, of Yoxall, Antrim, Fitzgerald, McCaffrey & Foreman, LLP, of Liberal, for appellant. Don L. Scott, county attorney, and Derek Schmidt, attorney general, for appellee.
Before ARNOLD–BURGER, P.J., GREEN, J., and HEBERT, S.J.

MEMORANDUM OPINION


PER CURIAM.

John Lovato was convicted at four separate trials of various charges stemming from a string of burglaries occurring in August 2003. In a pro se K.S.A. 60–1507 motion he claimed counsel was ineffective for failing to seek compulsory joinder, which, in turn, would have led to two separate trials instead of four. But the district court interpreted Lovato's pleading to only allege ineffectiveness of his appellate counsel and denied the claim. Because pro se pleadings are to be liberally construed and all the attorneys involved in the case understood that Lovato's real claim was that his trial counsel was ineffective, we find the district court erred in not fully considering his claim. Reversed and remanded for hearing on whether Lovato's trial counsel was ineffective.

Factual and Procedural History

The State prosecuted Lovato for committing four residential burglaries in Seward County in August 2003. He was convicted in four separate trials and each case was appealed directly to this court.

The first two cases State v. Lovato, No. 92,762, 2005 WL 2347791 (Kan.App.2005) (unpublished opinion), rev. denied 280 Kan. 988 (2006) (Case I), and State v. Lovato, No. 92,761, 2005 WL 2347789 (Kan.App.2005) (unpublished opinion), rev. denied 280 Kan. 988 (2006) (Case II), concern two burglaries occurring on August 14, 2003, the facts of which significantly overlap. Prior to both trials, Lovato filed a motion in Case II to prohibit discussion during trial of anything related to Case I. The district court denied the motion. Lovato was convicted of burglary and criminal damage to property in Case I and he was convicted of felony theft in Case II.

The latter two cases, State v. Lovato, No. 92,760, 2005 WL 2416051 (Kan.App.2005) (unpublished opinion), rev. denied 280 Kan. 988 (2006) (Case III), and State v. Lovato, No. 93,172, 2005 WL 2416068 (Kan.App.2005) (unpublished opinion), rev. denied 280 Kan. 988 (2006) (Case IV), concern two burglaries occurring on August 25, 2003, the facts of which also significantly overlap. Again, prior to trial on each case, Lovato filed a motion requesting the court to prohibit the State from mentioning, referring to, or introducing any evidence related to Case III in Case IV. The district court denied the motion. Trial counsel did not object when evidence from Case III was admitted in Case IV. However, this court found the admission of the evidence to be harmless in light of a limiting instruction given by the court. Case IV, 2005 WL 2416068, at *3. Lovato was convicted of aggravated burglary, attempted theft, and battery in Case III, and burglary and felony theft in Case IV.

All four cases resulted in nonconsolidated direct appeals and the facts of each case are set out in those cases so they will not be reiterated here. In all four cases this court affirmed the district court.

Important to this appeal, this court, sua sponte, noted that Lovato's convictions at issue in two of his appeals—Case II and Case IV—were subject to the compulsory joinder requirements of K.S.A. 21–3108. With respect to Case II, this court observed, “[W]e initially note that the State presented evidence of the instant offense in Lovato's trial for [Case I]. Therefore, it appears Lovato's prosecution in this case was subject to the compulsory joinder statute, K.S.A. 21–3108....” Case II, 2005 WL 2347789, at *2. Nonetheless, this court deemed Lovato had waived this argument because it had not been raised at trial or on direct appeal. 2005 WL 2347789, at *2 (observing that double jeopardy is an affirmative defense that must be raised in a timely manner).

This court conducted the same analysis and reached the same result in Case IV. Initially, this court observed, “Because the evidence of the Schroeder burglary [Case IV] was presented to a jury [in Case III] prior to its presentation to the jury in this charged case, Lovato's prosecution in this case [Case IV] was subject to the compulsory joinder statute, K.S.A. 21–3108....” Case IV, 2005 WL 2416068, at *1–2. But, once again, we found that Lovato, who failed to raise this argument at trial or on appeal, had waived any claim to relief. 2005 WL 2416068, at *2.

Lovato files a motion under K.S.A. 60–1507.

After our Supreme Court denied review of each of Lovato's four direct appeals, he filed a timely K.S.A. 60–1507 motion before the district court, “consolidat[ing] all four prior cases in this [motion].” Although written pro se, the motion clearly raises the issue of compulsory joinder and claims his appellate counsel was ineffective for failing to assert it on appeal.

After review of Lovato's motion, the district court ordered a full evidentiary hearing and appointed counsel to represent him. Counsel did not seek to elicit testimony from any witnesses and simply asked the court to review the trial transcripts.

As the hearing progressed, the State candidly admitted on several occasions that the compulsory joinder provisions of K.S.A. 21–3108 were applicable to Lovato. The State, however, suggested that Lovato strategically fought to keep his prosecutions separate because, other than Case III where Lovato was caught by the homeowner trying to escape from the scene of the crime with the homeowner's property, the State's three other cases were fairly weak because they were based on circumstantial evidence. Moreover, the State argued, if Lovato could have successfully persuaded the trial court to exclude evidence of other crimes or civil wrongs under K.S.A. 60–455, which he attempted to do, the State's three other cases would have been even weaker.

The court further questioned the State on its allegation:

“THE COURT: Well, how else could he have made it? You say he has to object before trial. He objected to the joinder, he objected to the State's action under K.S.A. 60–455 of introducing that evidence after they couldn't get joinder, so how-what else could he do?

“[STATE]: What he could have done was object on the grounds of double jeopardy.

“THE COURT: Oh, he had to say those magic words?

“[STATE]: I think under K.S.A. 22–3208, yes, yes. To quote, ‘the defense's objections raised on defects of the institution of the prosecution or in this complaint and information or indictment fails to show jurisdiction in the court or to charge a crime may be raised only by motion before trial. Failure to present any such defense or objection [as herein] provided constitutes a waiver thereof. A plea of guilty or a consent to trial upon a complaint, information or indictment shall constitute a waiver of defenses and objections based on the institution of the prosecution....

“THE COURT: You're saying, really, the Defendant here should have been made by—the Plaintiff here should have been making a claim of ineffective assistance of counsel, now, that's what you're saying; right?

“[STATE]: I'm saying if he wants to assert double jeopardy as a defense, he has to assert that before arraignment or within 10 days after arraignment under the statute.”
The court noted that by arguing that the failure to raise a compulsory joinder issue was a strategic decision by counsel, the State was addressing an issue of ineffective assistance of trial counsel.

Toward the conclusion of the K.S.A. 60–1507 hearing, counsel for Lovato attempted to add a claim that trial counsel was ineffective for not objecting at the trial to the admission of the K.S.A. 60–455 evidence, but conceded that his client's K.S.A. 60–1507 motion did not expressly claim that error.

After the hearing, the district court issued a written order and denied all of Lovato's requests for relief. With regards to the compulsory joinder or double jeopardy issue, the court first correctly observed that Lovato's argument concerned his convictions in Case II and Case IV, both of which could have been joined, respectively, as a result of the previous trials in Case I and Case III.

With respect to Case II, the district court observed that the Kansas Court of Appeals had already ruled against Lovato and, thus, he could not use his K.S.A. 60–1507 motion to raise an argument already decided on direct appeal. And with respect to Case IV, the court made the same ruling. Interestingly, the court's order does not speak to whether Lovato's trial counsel was ineffective for failing to argue that Lovato's prosecutions should have been joined.

Lovato filed a notice of appeal nearly 4 years after the district court issued its decision. Nonetheless, the district court granted Lovato's belated appeal because his K.S.A. 60–1507 counsel was ineffective for failing to file a timely notice of appeal.

Analysis

Our standard of review is mixed.

After a full evidentiary hearing regarding the issues raised in a K.S.A. 60–1507 motion, the district court must issue findings of fact and conclusions of law concerning all issues presented. Supreme Court Rule 183(j) (2012 Kan. Ct. R. Annot. 274). An appellate court reviews the court's findings of fact to determine whether they are supported by substantial competent evidence and are sufficient to support the court's conclusions of law. Appellate review of the district court's ultimate conclusions of law is de novo. Bellamy v. State, 285 Kan. 346, 355, 172 P.3d 10 (2007).

We review ineffective assistance of counsel claims in general.

To establish ineffective assistance of counsel, it is not enough to merely surmise, with the benefit of hindsight, that another attorney may have tried the case differently. Rather, before counsel's assistance can be found to be so defective as to require reversal of a conviction, the defendant must establish two things. 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 by the Sixth Amendment to the United States Constitution. Second, the defendant must establish that counsel's deficient performance prejudiced the defense. This requires a showing that counsel's errors were so severe as to deprive the defendant of a fair trial. Harris v. State, 288 Kan. 414, 416, 204 P.3d 557 (2009).

Judicial scrutiny of counsel's performance in a claim of ineffective assistance of counsel is highly deferential and requires consideration of the totality of the evidence before the judge or jury. The reviewing court must strongly presume that counsel's conduct fell within the broad range of reasonable professional assistance. To establish prejudice, the defendant must demonstrate a reasonable probability that, but for counsel's deficient performance, the outcome of the proceeding(s) would have been different. Harris, 288 Kan. at 416.

If counsel has made a strategic decision after making a thorough investigation of the law and the facts relevant to the realistically available options, then counsel's decision is virtually unchallengeable. The movant bears the burden to establish that counsel's actions were not strategic. Rowland v. State, 289 Kan. 1076, 1083–84, 219 P.3d 1212 (2009). With these standards in mind, we review Lovato's claims.

Appellate counsel was not ineffective.

We begin with the fact that neither party disputes the application of the compulsory joinder statute in this case. Both parties agree that if trial counsel had properly moved for joinder under the statute, Case II and Case IV would have been subject to compulsory joinder because evidence was scheduled to be admitted in Case I and Case III, respectively, “which might have been included as other counts in the complaint, indictment or information filed in such former prosecution or upon which the state then might have elected to rely.” K.S.A. 21–3108(2)(a).

Here, Lovato argues that the district court's ruling denying his K.S.A. 60–1507 claim was not supported by substantial competent evidence. Specifically, he argues that his K.S.A. 60–1507 motion concerned whether trial counsel was ineffective for failing to argue compulsory joinder, whereas the district court based its ruling on a nonapplicable premise—that the Court of Appeals rulings against Lovato's direct appeals foreclosed subsequent review of the compulsory joinder issue.

In rebuttal, the State argues that the district court's ruling was a correct pronouncement of law because this court had adversely ruled against Lovato's potential compulsory joinder argument in his direct appeals.

The district court's decision is correct to the extent Lovato argues that his appellate counsel was ineffective. Even though appellate counsel did not raise the compulsory joinder issue, this court considered it sua sponte and determined that trial counsel had waived it by not raising it in a timely manner and proceeding to trial in Cases II and IV, respectively. Case II, 2005 WL 2247789, at *2;Case IV, 2005 WL 2416068, at *2. Accordingly, the Court of Appeals rulings did foreclose any claim of ineffective assistance of appellate counsel. Lovato concedes this point on appeal.

The ineffectiveness of trial counsel has not been adequately reviewed.

But the district court did not address a claim that trial counsel was ineffective, even though both the court and the State recognized that to be an issue in the case. In fact, the State went one step further and argued that trial counsel's actions were based on a predetermined strategy in apparent recognition of the Supreme Court's ruling in Rowland, that strategic decisions rarely form the basis for a successful claim of ineffective assistance of counsel. See Rowland, 289 Kan. at 1083–84.

We agree that Lovato's motion lacks a specific allegation that trial counsel was ineffective for failing to raise the compulsory joinder issue. The only reference to trial counsel in the motion is the following sentence: “The same response to both trial and appellate counsel performance in [Crease v. State, 252 Kan. 326, 845 P.2d 27 (1992) ] is applicable in this case.” All other specific references are to deficient performance by appellate counsel.

Crease involved a situation where trial counsel did not object to an ex parte communication between the trial judge and a juror, nor did he raise the issue in posttrial motions or inform appellate counsel of the communication. Accordingly, it was also not discussed in the direct appeal because appellate counsel was not aware of the error. 252 Kan. at 334. But Crease's trial counsel testified at the K.S.A. 60–1507 hearing that he did not object because he thought the juror was sympathetic to Crease and he did not want to “ ‘stir up the waters.’ “ 252 Kan. at 337. Although the Supreme Court found that Crease could raise the error as part of a postconviction motion, in the end it supported the Court of Appeals' finding that this was not ineffective assistance of counsel because the court believed it to be a reasonable defense tactic. 252 Kan. at 338. So although this reference by Lovato still does not clearly indicate a desire to include a claim for ineffective assistance of trial counsel, Crease does allow the review of the ineffectiveness of both trial and appellate counsel. Nonetheless, the district court's order denying relief concluded that Lovato's argument was an effort to relitigate his compulsory joinder argument rather than an effort to argue that trial counsel was ineffective for failing to seek compulsory joinder.

But pro se pleadings are to be construed liberally, and whether the district court correctly construed a pro se pleading is a question of law subject to unlimited review. We are to give effect to the pleading's content rather than the labels used. Even the failure to cite the correct statutory grounds is immaterial. State v. Kelley, 291 Kan. 563, 565, 244 P.3d 639 (2010). Lovato clearly makes his argument that Cases II and IV were barred by the doctrine of compulsory joinder. And the only person who could have properly raised the issue was trial counsel. Likewise, because it was clear to all the attorneys involved in the case that the real claim was ineffective assistance of Lovato's trial counsel, such a claim was not remote—particularly in light of the fact that it was argued by the parties at the hearing. Accordingly, we find that it should have been considered by the court.

The district court's decision is reversed and the case is remanded for a hearing on whether Lovato's trial counsel was ineffective. In addition, we direct the district court to appoint new counsel for Lovato.


Summaries of

Lovato v. State

Court of Appeals of Kansas.
Feb 8, 2013
293 P.3d 816 (Kan. Ct. App. 2013)
Case details for

Lovato v. State

Case Details

Full title:John LOVATO, Appellan, v. STATE of Kansas, Appellee.

Court:Court of Appeals of Kansas.

Date published: Feb 8, 2013

Citations

293 P.3d 816 (Kan. Ct. App. 2013)