Opinion
No. 105,699.
2012-08-10
Everett MANNING, Appellant, v. STATE of Kansas, Appellee.
Appeal from Wyandotte District Court; Robert P. Burns, Judge. Richard P. Klein, of Kansas City, for appellant. Casey L. Myer, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Wyandotte District Court; Robert P. Burns, Judge.
Richard P. Klein, of Kansas City, for appellant. Casey L. Myer, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Before ARNOLD–BURGER, P.J., McANANY, J., and LARSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Everett Manning appeals the summary denial of his K.S.A. 60–1507 motion. Because we find that the motion, files, and records of the case conclusively establish that Manning is not entitled to any relief, we affirm.
Factual and Procedural Background
Manning went to the home of Robert Rocha and Melena Weaver at around midnight on April 21, 2006, at the behest of their landlord, to ask them about why they had not yet paid their rent. Rocha testified that when he arrived home Manning was inside his house. He believed Manning entered the house by breaking through a back window. An argument ensued that ultimately resulted in a struggle on the front porch of the residence. Rocha and Weaver testified that Manning hit Weaver in the nose, without provocation. Weaver's nose was broken and she received lacerations to her face. Manning testified that he was trying to defend himself from Rocha, who Manning claimed had cut him with a knife, at which point Manning may have inadvertently struck Weaver. Two weeks after the incident, Manning was interviewed by a detective who noticed an injury on his hand. Manning indicated that he injured it as he jumped off the porch. He did not mention anything about being cut by a knife. Three months later, Manning submitted an affidavit to police claiming that his hand was injured when Rocha cut him with a knife during their struggle.
On November 14, 2006, after a jury trial, Manning was convicted of battery (against Rocha) and aggravated battery (against Weaver). On December 15, 2006, Manning was sentenced to 154 months' imprisonment with the Kansas Department of Corrections. Manning filed a direct appeal.
In his direct appeal, State v. Manning, No. 98,051, 2008 WL 4291504 (Kan.App.2008) (unpublished opinion), rev. denied 288 Kan. 834 (2009), our court addressed the following three issues: (1) whether the district court erred when it failed to instruct the jury on the lesser included offense of battery; (2) whether the district court erred when it instructed the jury that it “ ‘must consider this case without favoritism or sympathy for or against any party;’ “ and (3) whether the district court erred it its criminal history score determination. 2008 WL 4291504, at *1.
Our court determined that a reasonable jury could not have convicted Manning of misdemeanor battery because the harm inflicted on the victim—a broken nose—was not slight, trivial, minor, or moderate. Manning, 2008 WL 4291504, at *1. With regard to Manning's sentencing issue, this court did not feel the need to further analyze the issue because State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2002), and State v. Hitt, 273 Kan. 224, 42 P.3d 732 (2002), cert. denied537 U.S. 1104 (2003) (prior juvenile adjudications may be used in determining criminal history score) controlled. Manning, 2008 WL 4291504, at *1.
On February 4, 2010, Manning filed his K.S.A. 60–1507 motion. In his motion, Manning asserted four allegations upon which his K.S.A. 60–1507 motion should be granted. The first was the trial court's failure to give the jury the lesser included crimes instruction on reckless aggravated battery. The second was that his appellate counsel on his direct appeal was ineffective for failing to raise the preceding issue. The third was that the sentencing court erred when it used his prior juvenile adjudications to determine his criminal history score. The fourth was that his trial counsel was ineffective for failing to fully investigate exculpatory evidence and failing to present any exculpatory evidence at trial regarding the victims' motives.
On August 10, 2010, the district court—without appointing counsel, requiring plaintiff's presence, or holding an evidentiary hearing—determined that Manning's first three issues were raised and addressed on his direct appeal. As to Manning's fourth issue, the district court held that the evidence Manning cited to was not relevant to his criminal case and that there was no credible or admissible evidence to support Manning's claims or alibi. The district court summarily dismissed Manning's K.S.A. 60–1507 motion.
Manning filed a timely notice of appeal.
Analysis
Standard of Review
An appellate court's standard of review depends upon which of three available options the district court employs in resolving a K.S.A. 60–1507 motion. First, the district court may conclude that the motion, files, and records of the case conclusively show that the movant is entitled to no relief and summarily deny the motion. Second, the district court may conclude from the motion, files, and record that a substantial issue or issues have been raised, requiring a full evidentiary hearing in the presence of the movant. Third, the district court may determine that the motion raises a potentially substantial issue or issues of fact, supported by the files and record, and hold a preliminary hearing after appointment of counsel to determine whether in fact the issues in the motion are substantial. Bellamy v. State, 285 Kan. 346, 353, 172 P.3d 10 (2007).
When the district court summarily denies a K.S.A. 60–1507 motion, an appellate court conducts de novo review to determine whether the motion, files, and records of the case conclusively establish that the movant is not entitled to any relief. Trotter v. State, 288 Kan. 112, 132, 200 P.3d 1236 (2009).
Failure of District Court to Properly Address All Issues Raised
Manning contends that the district court erred when it failed to make any findings regarding his first, second, and fourth claims. Manning asserts that the district court misconstrued his first and second claims and failed to fully rule on the fourth claim.
Supreme Court Rule 183(j) (2011 Kan. Ct. R. Annot. 259) requires the district court to make findings of fact and conclusions of law after a preliminary or full evidentiary hearing on all issues presented in a K.S.A. 60–1507 motion. See Bellamy, 285 Kan. at 354. In Manning's case, whether or not the district court properly addressed Manning's issues makes little difference as this court's review is de novo because the district court summarily dismissed Manning's K.S.A. 60–1507 motion. Therefore, this court can review Manning's K.S.A. 60–1507 motion without looking at the district court's decision. Thus, Manning's first issue on appeal is meritless.
Reckless Aggravated Battery Instruction and Ineffective Assistance of Appellate Counsel
Manning contends that the district court erred when it failed to give the jury an instruction on the lesser included offense of reckless aggravated battery and that his counsel on direct appeal was ineffective for failing to assert this issue.
“To establish ineffective assistance of counsel on appeal, defendant must show ‘(1) counsel's performance, based upon the totality of the circumstances, was deficient in that it fell below an objective standard of reasonableness, and (2) [defendant] was prejudiced to the extent that there is a reasonable probability that, but for counsel's deficient performance, the appeal would have been successful.’ [Citations omitted.]” State v. Smith, 278 Kan. 45, 51–52, 92 P.3d 1096 (2004).
The failure of appellate counsel to raise an issue on appeal is not, per se, ineffective assistance of counsel. Laymon v. State, 280 Kan. 430, 439, 122 P.3d 326 (2005). According to Laymon, it is clear that an attorney can be held to be ineffective for failing to make an argument that a reasonable attorney would make, even if the law is not developed in that area.
Manning states that his trial counsel requested the trial court to include the lesser included offense of aggravated battery in the jury instructions, but the trial court declined. However, according to the transcript, it appears that Manning's trial counsel only requested a jury instruction on the lesser included offense of misdemeanor battery. There is some discussion about a lesser aggravated battery instruction, but Manning's trial counsel never specifically requested a reckless aggravated battery instruction; and, in fact, it appears that his trial counsel rejected that argument because Manning was claiming self-defense.
Appellate counsel neglected to raise this issue on appeal. However, if appellate counsel had raised the issue, it would be reviewed by this court under the clearly erroneous standard because of Manning's trial counsel's failure to request the instruction. “If a defendant does not object to the trial court's giving or failure to give an instruction on lesser included offenses, it is reversible error only if the giving of the instruction or the failure to give the instruction was clearly erroneous. [Citation omitted.]” State v. Hoffman, 288 Kan. 100, 104, 200 P.3d 1254 (2009). “ ‘Instructions are clearly erroneous only if the reviewing court is firmly convinced there is a real possibility that the jury would have rendered a different verdict if the error had not occurred.’ [Citation omitted.]” State v. Magallanez, 290 Kan. 906, 918–19, 235 P.3d 460 (2010).
Under PIK Crim.3d 56.18, to establish reckless aggravated battery the State must prove that the defendant recklessly caused great bodily harm to another person. According to Manning's testimony at trial, he did not intentionally hit Weaver, and while he may have hit her accidentally, it was while he was defending himself. However, according to the two victims' testimony, there was no physical struggle when Manning hit the female victim unprovoked.
Manning fails to mention that his theory of defense was self-defense. Our court has determined that a charge of reckless conduct is based upon an unintentional act and is inconsistent with a self-defense theory because a victim acting in self-defense intends to inflict injury on the attacker. State v. Bradford, 27 Kan.App.2d 597, 602, 3 P.3d 104 (2000). Manning argues that he never intended to injure Weaver and the injury occurred while he was struggling with Rocha. However, Manning ignores caselaw that indicates that if evidence shows that Manning intended to injure Rocha, but instead injured Weaver, then Manning's intent transferred from Rocha to Weaver under the doctrine of transferred intent. See State v. Stringfleld, 4 Kan.App.2d 559, 561, 608 P.2d 1041,rev. denied 228 Kan. 807 (1980). Therefore, whether Manning unintentionally injured Weaver makes little difference, as his intent to injure Rocha while acting in self-defense was transferred to Weaver.
As such, it was not clearly erroneous for the district court to fail to give the jury a reckless aggravated battery instruction. Because the district court did not err in neglecting to give the instruction, Manning's appellate counsel was not ineffective for failing to raise the issue on direct appeal.
Use of Juvenile Adjudications in Determining Criminal History
This issue was raised and ruled on in Manning's direct appeal. Manning, 2008 WL 4291504, at *1–2. Unless Manning can show the existence of an exceptional circumstance, the district court can dismiss a second or successive motion on the basis that it is an abuse of remedy. See State v. Kelly, 291 Kan. 868, 872, 248 P.3d 1282 (2011). Manning never addressed the existence of an exceptional circumstance in his K.S.A. 60–1507 motion on this issue, nor does he do so in his appellate brief. In fact, it appears that Manning has abandoned this issue on appeal because he fails to argue it in his brief. An issue not briefed by the appellant is deemed waived and abandoned. National Bank of Andover v. Kansas Bankers Surety Co., 290 Kan. 247, 281, 225 P.3d 707(2010).
Ineffective Assistance of Trial Counsel
Manning asserts that his trial counsel was ineffective for failing to fully investigate all of the blood that was on the porch and failing to use any exculpatory evidence found in such an investigation in Manning's trial.
To merely surmise, with the benefit of hindsight, that another attorney might have tried 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 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 to the defendant by the Sixth Amendment to the United States Constitution. 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. Harris v. State, 288 Kan. 414, 416, 204 P.3d 557 (2009).
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. In other words, the defendant must demonstrate a reasonable probability that, but for counsel's deficient performance, the outcome of the proceeding would have been different. 288 Kan. at 416.
In his K.S.A. 60–1507 motion, Manning argued that the blood splatters on the porch and on his clothing, if properly investigated, would have shown that the victims were lying about their locations on the porch when the physical altercation occurred. This evidence would have corroborated Manning's testimony at trial and would have supported an acquittal on all charges.
More specifically, Manning argued that if he hit Weaver in the nose while she was standing in front of him, her blood would be on the front of his shirt. If she were behind him, as he alleges, her blood would have been on the back of his shirt. Therefore, “testing his clothing for blood would have (at worst) shown Weaver's blood on the back of his clothing (if on his clothing, at all).” In his appellate brief, Manning abandons any discussion of blood on his shirt and argues that his attorney should have investigated blood stains on the porch. In his K.S.A. 60–1507 motion, he claimed that blood spatters on the porch “would have proved that the alleged victim Weaver was lying about where she was, when her nose was broken. This evidence would have also shown that she could have broken her nose on the wall, a railing, a door, or her boyfriend's punches at the defendant.” Manning went on to claim that “The porch of the house where this incident occurred had blood stains on it in two places, at least. If the porch still exists, those blood stains (even if painted over) could be tested to prove the facts of the testimony of the defendant, or of [the victims].” On appeal, he expands this argument by claiming that counsel should have investigated whether “Mr. Manning's blood was on the porch of the house, which could have shown Mr. Manning was cut by a knife prior to falling off of the porch.”
We are not provided with information concerning when trial counsel was appointed in the case. Moreover, there is no information on whether any blood stain evidence remained that could have been tested, but it seems highly unlikely. We do know that the undisputed testimony established that Weaver was bleeding on the porch from a broken nose. Manning admitted that he may have hit Weaver on the porch. Manning and the two victims were involved in a struggle on the porch. The police department did not collect any blood evidence at the scene or take any photographs on the date of the incident. The victims moved out of the residence 2 days after the incident. Manning was not interviewed until 2 weeks after the incident, and it was 3 months later before Manning first claimed Rocha cut him with a knife on the porch.
We find Manning's assertions—that blood stain evidence should have been investigated by trial counsel—without merit given that it appears unlikely that any blood stain evidence would have remained by the time of counsel's appointment. Moreover, even if it did, we fail to see how it would be exculpatory. A bleeding nose, coupled with a violent struggle, would suggest that blood stains could be anywhere on the porch. Likewise, both the State and Manning agree that he had a cut on his hand. Manning contends it was from an attack by Rocha; the State claims he received it as he was breaking into the Rocha home through the back window. Therefore, Manning's blood on the porch would not be dispositive of either version of events. Manning's assertions are speculative at best. Merely conclusory allegations are insufficient to require an evidentiary hearing. See State v. Jackson, 255 Kan. 455, 463, 874 P.2d 1138 (1994). Moreover, even if evidence were presented regarding the location and source of blood on the porch, we do not believe the outcome of the trial would have been any different given the overwhelming evidence of Manning's guilt presented at trial.
Accordingly, because we find that the motion, files, and records of the case conclusively establish that Manning is not entitled to any relief, we affirm.