Opinion
No. 111,675.
2015-02-6
Kylo LYONS, Appellant, v. STATE of Kansas, Appellee.
Appeal from Reno District Court; Trish Rose, Judge.Sam S. Kepfield, of Hutchinson, for appellant.Natalie Chalmers, assistant solicitor general, of Office of Kansas Attorney General, for appellee.
Appeal from Reno District Court; Trish Rose, Judge.
Sam S. Kepfield, of Hutchinson, for appellant. Natalie Chalmers, assistant solicitor general, of Office of Kansas Attorney General, for appellee.
Before ARNOLD–BURGER, P.J., PIERRON and BUSER, JJ.
MEMORANDUM OPINION
PER CURIAM.
After the mandate in his direct appeal was issued, Kylo Lyons filed a K.S.A. 60–1507 motion with the district court, claiming ineffective assistance of counsel. He claimed his attorney should have investigated and pursued a defense of diminished capacity and further should have dismissed a juror who knew the victim. The State moved to dismiss Lyons' motion, arguing that Lyons failed to allege exceptional circumstances sufficient to lift the procedural bar on raising trial errors and relitigating issues already decided on direct appeal in K.S.A. 60–1507 proceedings. See Supreme Court Rule 183(c)(3) (2014 Kan. Ct. R. Annot. 285). The district court agreed with the State and dismissed the motion. Because the issue of his attorney's failure to investigate and pursue a defense of diminished capacity was fully litigated in his direct appeal, he cannot use an action pursuant to K.S.A. 60–1507 to relitigate the same issue. Furthermore Lyons fails to present any circumstances that prevented him from raising the issue of his counsel's failure to request the removal of a juror for cause in his direct appeal. Moreover, even if he had presented such circumstances, he fails to provide any support for his conclusory claim that counsel's conduct fell below the constitutional standard and resulted in prejudice. Accordingly, we affirm the district court's order of dismissal.
Factual and Procedural History
Although the instant case involves the district court's denial of Lyons' K.S.A. 60–1507 motion, a general overview of the district court case and direct appeal is necessary to understanding the present dispute.
A jury convicted Lyons of battery against a law enforcement officer during an incident at Hutchinson Correctional Facility. This court summarized the underlying facts in Lyons' direct appeal:
“In short, correctional officer John Cole testified at Lyons' jury trial that Lyons spit in his face through a screen or mesh covering the cell bars as Cole was reprimanding him for being loud and disruptive during the ‘lights out’ or quiet period. Lyons admitted during his testimony that he was being disruptive after quiet time but denied spitting on Cole. Instead, Lyons suggested it was Cole that spit on him during a heated argument. Cole denied, however, that any kind of heated exchange took place, which would be contrary to prison policies. Other prison officials responsible for investigating Cole's immediate report of the incident corroborated Cole's description of the events based on their observations of spit on Cole's face, neck, arm, and uniform as well as on the inside of the cell door.” State v. Lyons, No. 104,986, 2011 WL 6943078, at *1 (Kan.App.2011) (unpublished opinion), rev. denied 296 Kan. 1133 (2013).
Before sentencing, Lyons moved for a new trial and also requested a mental examination. Later, Lyons filed a supplement to the motion for new trial, alleging that his initial trial counsel was ineffective because she failed to investigate or pursue a mental disease or defect defense. Although the district court appointed new counsel and held a full evidentiary hearing regarding trial counsel's effectiveness, it ultimately denied Lyons' motion. Lyons was sentenced to 122 months' imprisonment.
As previously mentioned, Lyons directly appealed his conviction. There, he raised two issues: (1) whether the district court erred in allowing the State to present evidence that he was in administrative segregation when he spat on Cole, and (2) whether the district court erred in refusing to grant him a new trial based on counsel's ineffectiveness for failure to investigate and pursue a defense of diminished capacity. Specifically regarding the effectiveness of trial counsel, this court determined that Lyons failed to prove that counsel's representation fell below the minimum standard. 2011 WL 6943078, at *6–7. Instead, this court found substantial competent evidence to support the conclusion that trial counsel decided not to pursue the defense as trial strategy. 2011 WL 6943078, at *5–6. As such, this court affirmed the district court's denial of Lyons' motion for new trial. 2011 WL 6943078, at *7.
After the mandate in his direct appeal was issued in 2013, Lyons filed a K.S.A. 60–1507 motion with the district court. There, Lyons raised several issues that can be condensed into three main claims: (1) Trial counsel acted ineffectively by failing to investigate and pursue a defense of diminished capacity; (2) trial counsel acted ineffectively by failing to dismiss a juror who knew the victim; and (3) trial counsel and the district court both violated Lyons' due process rights by allowing the juror who knew the victim to be impaneled. Lyons attached voir dire transcripts concerning the juror at issue. In the motion, Lyons alleged that he failed to previously raise these issues because he “didn't know anything about the due process clause.”
The district court set the matter for an evidentiary hearing. However, at the start of the hearing, the State asked the district court to instead consider an oral motion to dismiss. The State argued that all of Lyons' claims constituted trial error that, under Rule 183(c)(3), belonged in his direct appeal rather than in a collateral attack. Moreover, the State contended that the issue involving trial counsel's failure to investigate a potential defense was litigated and decided in Lyons' direct appeal. Because Lyons failed to allege any of the exceptions to Rule 183(c)(3) in his motion, the State asked the district court to dismiss the action. Lyons responded that although the ineffective assistance issue had been raised in his direct appeal, it appeared that exceptional circumstances existed due both to his counsel's failure to raise the juror issue and also Lyons' lack of knowledge about the Due Process Clause. Although there was some discussion of amending Lyons' 60–1507 motion to include a claim of ineffectiveness of appellate counsel, that does not appear to have been done.
Rather than decide the oral motion that day, the district court allowed the parties time to research and brief the issues. In his written response to the State's motion, Lyons argued that federal precedent supported both his ability to raise the defense issue a second time and also to raise the juror issue outside of his direct appeal. The State replied by essentially reiterating the argument it presented to the district court regarding both the ineffective assistance of counsel claim and the lack of exceptional circumstances. It also distinguished the federal cases on which Lyons relied from the instant case.
After reviewing the parties' arguments and the record, the district court found that Rule 183(c)(3) applied to Lyons' case and that Lyons failed to allege sufficient exceptional circumstances that would allow him to raise further claims of trial counsel's ineffectiveness. The district court also determined that Lyons' failure to pursue the issue regarding the trial court's violation of his due process rights in his briefing waived that issue. Accordingly, the district court dismissed the action.
Lyons timely appealed.
Analysis
On appeal, Lyons argues that the district court improperly dismissed his K.S.A. 60–1507 action. Lyons concedes that he raised the issue regarding trial counsel's failure to pursue a defense of mental defect or disease in his direct appeal but contends that because the purposes of the two proceedings are different, Rule 183(c)(3) should not apply. He also argues that because the issue regarding the failure to dismiss the juror who knew the victim is a wholly separate allegation of ineffective assistance of counsel, he is entitled to a hearing on the claim's merits. However, he admits that the claim regarding the trial court's violation of his due process rights was waived and abandoned at the district court level.
A district court has three options when addressing a K.S.A. 60–1507 motion:
“(1) The court may determine that the motion, files, and case records conclusively show the prisoner is entitled to no relief and deny the motion summarily; (2) the court may determine from the motion, files, and records that a potentially substantial issue exists, in which case a preliminary hearing may be held. If the court then determines there is no substantial issue, the court may deny the motion; or (3) the court may determine from the motion, files, records, or preliminary hearing that a substantial issue is presented requiring a full hearing.” Fischer v. State, 296 Kan. 808, 822–23, 295 P.3d 560 (2013).
This court's standard of review depends upon which of these options the district court utilizes. Here, the district court originally scheduled an evidentiary hearing but elected to continue the proceeding until the parties submitted written argument on the State's oral motion to dismiss. Because the court ultimately determined that the motion, files, and case records conclusively showed that Lyons was not entitled to relief and dismissed the action, our review is de novo. See Bellamy v. State, 285 Kan. 346, 354, 172 P.3d 10 (2007).
For ease of analysis, the two issues Lyons raised in his motion will be addressed separately. Failure to investigate defense of mental disease or defect
Supreme Court Rule 183(c)(3) (2014 Kan. Ct. R. Annot. 286) provides that a K.S.A. 60–1507 proceeding “ordinarily may not be used as a substitute for direct appeal involving mere trial errors or as a substitute for a second appeal.” Instead, “[m]ere trial errors must be corrected by direct appeal,” and trial errors that implicate constitutional rights may only be raised in a K.S.A. 60–1507 motion “provided exceptional circumstances excuse the failure to appeal.” Rule 183(c)(3) (2014 Kan. Ct. R. Annot. 286). More importantly as it relates to this issue, this rule also precludes relitigation of issues previously addressed and decided on direct appeal. See Rice v. State, 37 Kan.App.2d 456, 461, 154 P.3d 537, rev. denied 284 Kan. 946 (2007).
Our Supreme Court has defined “exceptional circumstances” to include events or changes in the law which prevent a movant from raising all of the trial errors in the first postconviction proceeding. State v. Mitchell, 297 Kan. 118, 123, 298 P.3d 349 (2013) (quoting Woodberry v. State, 33 Kan.App.2d 171, 175, 101 P.3d 727, rev. denied 278 Kan. 853 [2004] ). In some situations, counsel's ineffectiveness can also constitute exceptional circumstances. Rowland v. State, 289 Kan. 1076, 1087, 219 P.3d 1212 (2009). But our Supreme Court has been clear. A movant in a K.S.A. 60–1507 motion is presumed to have listed all grounds for relief; thus, the prohibition against successive motions does not only bar claims raised in prior motions, it also prohibits any claims that could have been raised in a prior motion. State v.. Trotter, 296 Kan. 898, 904, 295 P.3d 1039 (2013). Although we are not faced with successive K.S.A. 60–1507 motions, we are similarly faced with relitigation of an issue previously decided on direct appeal. See State v. Kelly, 291 Kan. 868, 872, 248 P.3d 1282 (2011) (absent showing of exceptional circumstances a court can dismiss a successive motion as an abuse of remedy).
Lyons is unable to establish any exceptional circumstances to justify this court considering this issue because he already—albeit unsuccessfully—raised the issue in his direct appeal. The district court held a full evidentiary hearing as part of Lyons' motion for new trial in his direct appeal. The issue was the same as he raises in this action—whether counsel was ineffective for failing to raise a defense of mental disease or defect. Both Lyons and his attorney testified. Lyons offers no new facts about his counsel's alleged ineffectiveness that would render this court's analysis in his direct appeal outdated or incomplete. See Lyons, 2011 WL 6943078, at *5–7. As such, Lyons cannot attempt a second appeal on the same ineffectiveness claim by raising it in a K.S.A. 60–1507 proceeding.
But Lyons contends that because a direct appeal from a motion for new trial and a proceeding under K.S.A. 60–1507 serve two different purposes, he should be permitted to pursue this issue for a second time. This argument is not persuasive. First, the standard under which trial counsel's effectiveness is measured—frequently referred to as the Strickland standard after Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)—is the same in both proceedings. Chamberlain v. State, 236 Kan. 650, 656–57, 694 P.3d 468 (1985) (adopting the two-prong Strickland test for ineffective assistance of counsel claims in Kansas); see Edgar v. State, 294 Kan. 828, 837–39, 283 P.3d 152 (2012) (applying Strickland to appeal from denial of K.S.A. 60–1507 motion); State v. Gonzalez, 289 Kan. 351, 357–58, 212 P.3d 215 (2009) (applying Strickland to direct appeal from motion for new trial). In fact, this court applied Strickland in Lyons' direct appeal and concluded that counsel's performance did not fall below the minimum standard of effectiveness. Lyons, 2011 WL 6943078, at *4–7. Lyons offers no argument or analysis as to how this standard's application might differ in a K.S.A. 60–1507 proceeding or how the outcome from his direct appeal would change.
Additionally, and contrary to Lyons' argument, the remedy in both proceedings is essentially the same: a reversal of his conviction and remand to the district court for a new trial. See K.S.A. 22–3501(1) (explaining that, on a motion for new trial, the district court “may grant a new trial to [the defendant] if required in the interest of justice”); K.S.A. 22–3605 (explaining that, on appeal, the “appellate court may reverse, affirm or modify the judgment or order appealed from, or may order a new trial in the district court”); K.S.A. 60–1507(b) (explaining that, in a successful K.S.A. 60–1507 proceeding, “the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence said prisoner or grant a new trial or correct the sentence as may appear appropriate”). Because Lyons attacks his conviction and sentence solely on the basis of ineffective assistance of counsel and not on any sentencing defect that would call for the district court to resentence him rather than to reverse his convictions, no new or additional relief is available.
In short, Lyons received a full review of this issue on direct appeal. He asserts no exceptional circumstances sufficient to renew the issue in a K.S.A. 60–1507 proceeding. Accordingly, the district court correctly dismissed the claim regarding counsel's failure to investigate and pursue the defense of mental disease or defect. Failure to dismiss juror who knew the victim
Lyons also argues that the district court erred in dismissing his new claim regarding trial counsel's failure to dismiss a juror who knew the victim. He attaches a copy of the transcript with the following colloquy after the juror indicated that he knew the victim, John Cole:
“THE COURT: Okay. How do you know Mr. Cole?
“JUROR: He's married to my son's ex girlfriend from a long time ago.
“THE COURT: Okay. Is there anything about that relationship you believe would cause you any problems sitting as a fair and impartial juror in this case?
“JUROR: No, I don't think so.
“THE COURT: You can set aside that relationship. That's a[n] ago relationship, not an ongoing relationship?
“JUROR: Right.”
Lyons contends that this claim differs substantially from the other claim of ineffective assistance of counsel and therefore requires full consideration by the district court.
Although Lyons correctly observes that this particular instance of alleged ineffectiveness was not raised in the motion for new trial at the district court level, it still constitutes an alleged trial error by counsel, allegedly rendering trial counsel ineffective. Lyons fails to explain what, if any, exceptional circumstances excuse his failure to raise this issue on direct appeal with his other claims of ineffective assistance of trial counsel. In his initial K.S.A. 60–1507 motion, Lyons explained that he failed to raise these issues in his direct appeal “[b]ecause trial was over before I realized something was wrong [and] I didn't know anything about the due process clause.” The reference to the Due Process Clause appears to relate to the due process claim that he now waives and abandons on appeal. Lyons offers no other explanation in either the motion or his appellate brief as to how not realizing “something was wrong” before the end of trial prevented him from raising this issue in his direct appeal. The court does not favor piecemeal appeals. See Walker v. State, 216 Kan. 1, 3–4, 530 P.2d 1235 (1975).
Moreover, Lyons devotes only three conclusory sentences in his brief to this issue and provides no supporting caselaw. He presents only conclusory statements of his belief that counsel was ineffective for not challenging the juror for cause. He cites no caselaw to support his apparent position that even if a potential juror—who expresses some remote familiarity with a witness—states he or she can be fair and impartial, a motion by trial counsel to excuse the prospective juror would have been successful and accordingly would have resulted in a different verdict. Failure to support a point with pertinent authority or show why it is sound despite a lack of such authority is akin to failing to brief the issue. State v. Tague, 296 Kan. 993, 1001, 298 P.3d 273 (2013). An issue not briefed by the appellant is deemed waived an abandoned. State v. Boleyn, 297 Kan. 610, 633, 303 P.3d 680 (2013).
In conclusion, Lyons' K.S.A. 60–1507 motion fails to establish any exceptional circumstances sufficient to circumvent the procedural bar in Rule 183(c)(3). Moreover, his arguments as to why Rule 183(c)(3) should not serve to prevent relitigation of an issue previously raised on direct appeal are unpersuasive. The district court properly dismissed his motion and, accordingly, we affirm the dismissal.
Affirmed.