Opinion
No. 111862.
2015-03-13
Isaac OKESANYA, Appellant, v. STATE of Kansas, Appellee.
Appeal from Wyandotte District Court; Robert P. Burns, Judge.Jonathan Laurans, of Kansas City, Missouri, for appellant.Shawn M. Boyd, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Wyandotte District Court; Robert P. Burns, Judge.
Jonathan Laurans, of Kansas City, Missouri, for appellant. Shawn M. Boyd, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., McANANY and SCHROEDER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Isaac Okesanya appeals the district court's denial of his K.S.A. 60–1507 motion alleging ineffective assistance of counsel. Okesanya claims the district court should have held an evidentiary hearing on the motion and the district court erred in its ultimate conclusion that he did not receive ineffective assistance of counsel. For the reasons explained herein, we affirm the district court's judgment.
This case has an unusual procedural history. Between November 29 and December 21, 2009, Okesanya robbed a McDonald's in Wyandotte County, Kansas, and two banks in Missouri. The day of the final bank robbery, police in Kansas City, Missouri, took Okesanya into custody, at which time he confessed to all three robberies.
On January 7, 2010, the United States indicted Okesanya in Missouri federal court on two counts of bank robbery. On February 8, 2010, the state of Kansas charged Okesanya in Wyandotte County District Court with one count of aggravated robbery and two counts of aggravated assault for the McDonald's robbery. Patrick Peters, a licensed Kansas attorney, entered his appearance for Okesanya in Missouri federal court. Peters did not enter his appearance for Okesanya in the Kansas case.
On April 9, 2010, Okesanya pled guilty to the federal bank robbery charges. Peters represented Okesanya at the sentencing hearing, which occurred on August 20, 2010. The federal court granted a durational departure and sentenced Okesanya to 36 months' imprisonment and 3 years' postrelease supervision on each count, with the sentences to be served concurrently. Okesanya did not appeal his federal sentence, and he has never filed any motion to set aside his pleas in federal court.
On March 29, 2011, Dionne Scherff entered her appearance in Wyandotte County District Court as attorney for Okesanya. According to Peters' later affidavit, Peters hired Scherff, an Overland Park attorney, to negotiate a plea agreement for Okesanya in the Kansas case. Peters paid her with money Okesanya's family had given to him.
On February 9, 2012, pursuant to a plea agreement, Okesanya pled guilty to one count of aggravated robbery and the other Kansas charges were dismissed. Based on Okesanya's two federal bank robbery convictions, the presentence investigation report calculated his criminal history score as B. Okesanya did not challenge that score.
The district court held a sentencing hearing on March 23, 2012. As part of the plea agreement, the parties agreed to ask the district court to impose a durational departure from a presumptive sentence of 206–216–228 months' imprisonment to a sentence in the range of 114–120–128 months' imprisonment. The district court granted the motion for durational departure and sentenced Okesanya to 114 months' imprisonment, to run concurrently with the federal sentence. Okesanya did not appeal his sentence, and he has never filed any motion to set aside his plea in the Kansas case.
On January 4, 2013, Okesanya filed a motion pursuant to K.S.A. 60–1507, claiming he received ineffective assistance of counsel in violation of the Sixth and Fourteenth Amendments to the United States Constitution and §§ 10 and 18 of the Kansas Constitution Bill of Rights. Specifically, Okesanya argued that Peters' failure to consider the sentencing consequences of pleading the federal case before resolving the Kansas charges constituted ineffective assistance of counsel and prejudiced him by increasing his Kansas sentence. In his prayer for relief, Okesanya asked the district court to modify his Kansas sentence and reduce it to 59 months, which is the sentence he claims he would have received for his aggravated robbery conviction had the federal convictions not been included in his criminal history.
With his motion, Okesanya filed numerous attachments: a 36–page supporting statement of facts and legal argument; a printout of the document history in his federal case; Peters' entry of appearance in federal court; Okesanya's affidavit describing the history of his cases and his interactions with his attorneys; an affidavit executed by Okesanya's mother; the federal presentence investigation report; a transcript of the federal sentencing hearing; and a transcript of the Kansas plea hearing. Okesanya filed a motion requesting an evidentiary hearing on his K.S.A. 60–1507 motion.
The district court held a hearing on August 7, 2013, at which Okesanya was represented by counsel. The district court asked counsel to clarify what relief Okesanya was seeking and counsel reiterated he sought resentencing in his Kansas case. The district court expressed concern about resentencing as a remedy, since Okesanya's criminal history score would remain B in Kansas with the two federal convictions on his record. Okesanya's attorney responded that he felt it was “just simple math,” and that resentencing was allowed. The State asserted that the district court did not have jurisdiction over a claim of ineffective assistance of counsel who was not involved in the Kansas case. Additionally, the State argued that resentencing was not a viable remedy and that it may not have been possible for Okesanya to resolve the Kansas case before the federal case. The district judge asked the State to submit a written answer to the K.S.A. 60–1507 motion and stated that after allowing Okesanya time to respond to that answer the court would determine whether an evidentiary hearing was necessary.
The State filed its response to the K.S.A. 60–1507 motion on September 23, 2013. The State asserted that Scherff was the attorney of record in the Kansas case and that Peters had never entered an appearance, never talked with prosecuting attorneys, was not involved in motions practice, and had not appeared at any hearings in the Kansas case. The State argued, as it had at the scheduling hearing, that the district court should deny Okesanya's motion because (1) it had no jurisdiction over the ineffective assistance Peters allegedly rendered in another jurisdiction, (2) Okesanya could not have pled guilty to the Kansas charges before the federal charges were resolved because Okesanya was in federal custody awaiting disposition of his federal case, and (3) Okesanya's requested relief was not an appropriate remedy. Okesanya filed a reply brief on October 24, 2014.
On April 30, 2014, the district court filed a lengthy and detailed journal entry denying the K.S.A. 60–1507 motion. The district court first determined that an evidentiary hearing was not required because “the facts set forth by the parties are substantially similar.” After reciting the facts and summarizing Okesanya's arguments, the district court expressed its “concern [ ] about the legitimacy of the claim of ineffective assistance of counsel against an attorney who never entered his appearance nor appeared in court in the very case in which relief is sought.” The district court continued, however, that it did not need to resolve the propriety of such a claim in order to rule on the motion. The district court noted that Okesanya asked the court to resentence him on the Kansas conviction as if he had no prior criminal history. The district court found that the request
“ignores a fundamental tenet of Kansas law. The Kansas Supreme Court has held the Kansas Sentencing Guidelines Act does not vest a district court with continuing jurisdiction after a sentencing proceeding is concluded, [Citation omitted.] [Okesanya] has cited no authority which would allow this court to unilaterally impose the sentence he believes is ‘fair’ or ‘equitable’ given the totality of the circumstances in this case.”
The district court next detailed the Strickland test for ineffective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The district court found that there was nothing in the record to suggest Scherff was deficient, noting again that Scherff was “the only attorney to represent Mr. Okesanya in court in this matter.” The district court found that even if Peters provided ineffective assistance, Okesanya had failed to show any prejudice. The district court stated:
“It is indisputable that the criminal history of [Okesanya] was firmly established before he ever had his first appearance in Wyandotte County District Court. A criminal history score of ‘B’ was going to subject him to a substantial term of incarceration absent an outright acquittal in this case. The court recognizes that the thrust of [Okesanya's] argument is that he would not have had any criminal history if he would have pled in Kansas state court prior to entering a plea in federal court. But [Okesanya] is asking this court to ignore what it cannot: Mr. Okesanya had a criminal history score of ‘B’ pursuant to the Kansas sentencing guidelines from his very first appearance. The only means to amend his criminal history under Kansas law would have been a withdrawal of his guilty pleas in federal court and there is no indication in the record that he ever sought to do so.”
The district court found that Okesanya had not pursued withdrawal of his federal pleas before attempting to resolve the state charges. The district court again reiterated its belief that it was without authority to resentence Okesanya as he requested “absent limited and unique circumstances.” The district court recognized that it had authority to allow Okesanya to withdraw his plea to correct manifest injustice, but Okesanya was not requesting this relief, and in any event no manifest injustice occurred here.
Similarly, the district court noted that it would have jurisdiction to modify or vacate the Kansas sentence if it was illegal, but the sentence at issue here was not an illegal sentence. The district court concluded it was without jurisdiction to resentence Okesanya because he had failed to set forth a legal basis for the court to provide the requested relief and he could not establish the necessary prejudice mandated by the second prong of the Strickland test. Accordingly, the district court denied Okesanya's K.S.A. 60–1507 motion. Okesanya timely appealed the district court's judgment.
On appeal, Okesanya argues that the district court should have held an evidentiary hearing on his K.S.A. 60–1507 motion. He argues that the district court's denial of his motion hinged upon the finding that Peters was not his attorney for the Kansas proceedings, a finding Okesanya asserts constitutes reversible error. Finally, Okesanya contends that the district court erred in its ultimate conclusion that he did not receive ineffective assistance of counsel.
The State responds that the district court was not required to hold an evidentiary hearing on Okesanya's motion when all the material facts were substantially agreed upon by both parties and Okesanya had failed to request relief within the court's powers. The State also asserts that the district court did not base its decision to deny Okesanya's motion based on who his counsel was, but rather it found there was no ineffective assistance of counsel because Okesanya could not show prejudice.
The district court must grant a hearing on a motion under K.S.A. 60–1507 “unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.” K.S .A. 60–1507(b). The district court has three options when handling 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).
When the district court admits evidence and considers counsel's arguments at a preliminary hearing, an appellate court applies a mixed standard of review. The court's. factual findings are reviewed to assure they are supported by substantial competent evidence and are sufficient to support its legal conclusions regarding the movant's right to relief under K.S.A. 60–1507(b). Holmes v. State, 292 Kan. 271, 274, 252 P.3d 573 (2011). “When, as here, a court denied a 60–1507 motion based only on the motion, files, and records after a preliminary hearing, we are in as good a position as that court to consider the merits. So we exercise de novo review. [Citation omitted.]” Sola–Morales v. State, 300 Kan. 875, 881, 335 P.3d 1162 (2014).
To be entitled to relief under K.S.A. 60–1507, the movant must establish by a preponderance of the evidence either (1) “the judgment was rendered without jurisdiction”; (2) “the sentence imposed was not authorized by law or is otherwise open to collateral attack”; or (3) “there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack.” K.S.A. 60–1507(b); Supreme Court Rule 183(g) (2014 Kan. Ct. R. Annot. 285).
Okesanya argues that Peters provided ineffective assistance of counsel, thereby denying Okesanya his constitutional right to effective assistance of counsel and leaving the judgment vulnerable to collateral attack. To establish ineffective assistance of counsel, Okesanya must show (1) that Peters “made errors so serious that his ... performance was less than that guaranteed by the Sixth Amendment to the United States Constitution,” and (2) that Peters' deficient performance prejudiced Okesanya and was “so severe as to deprive [Okesanya] of a fair trial.” See State v. Burnett, 300 Kan. 419, 452, 329 P.3d 1169 (2014).
Okesanya contends that the district court based its denial of his motion on an erroneous finding that Peters was not his attorney for the Kansas proceedings. As the State responds, however, Okesanya's characterization of the district court's decision is inaccurate. As part of its comprehensive journal entry, the district court noted that Okesanya retained Peters, “who represented him in federal court in Case No. 10–00007–01–CR–W–ODS throughout those proceedings, including plea and sentencing.” The district court further found that
“retained counsel Dionne Scherff entered her appearance in Wyandotte County, Kansas District Court on behalf of the plaintiff in Case No. 10 CR 155. The plaintiff was represented by retained counsel Dionne Scherff at all stages of the criminal proceedings brought against him in Case No. 10 CR 155.
“No other attorney appeared on behalf of the plaintiff nor did any other attorney enter an appearance on behalf of the plaintiff at any time during the proceedings in 10 CR 155. Specifically, attorney Pat Peters did not enter his appearance on behalf of the plaintiff at any time during the proceedings in 10 CR 155.”
After reciting the remaining procedural history of Okesanya's cases, the district court identified the basis of Okesanya's claim of ineffective assistance of counsel as Peter's failure to advise Okesanya to enter a guilty plea in the Kansas district court prior to pleading guilty in federal court, which arguably would have reduced his potential length of incarceration. Next, the district court stated:
“Initially, the court has concerns about the legitimacy of the claim of ineffective assistance of counsel against an attorney who never entered his appearance nor appeared in court in the very case in which relief is sought. Attorney Pat Peters did represent Mr. Okesanya in the federal case and allegedly advised him regarding the resolution of this case but Mr. Peters was never an attorney of record in the [Kansas] case. Mr. Okesanya was represented in all proceedings in Wyandotte County District Court by Dionne Scherff. The plaintiff does not contend that Mrs. Scherff was ineffective in any way in her representation of him. The court, however, does not need to resolve that issue to further rule on this matter.” (Emphasis added.)
The district court then proceeded to determine that the relief Okesanya requested-resentencing as if he had no criminal history-was relief the district court had no authority to provide. The district court later returned to the issue of Peters' representation, stating:
“Again, there is nothing in the record to suggest the performance of Ms. Scherff, the only attorney to represent Mr. Okesanya in court in this matter, was in any way deficient. Certainly, there are allegations asserted in the petition that Mr. Peters was deficient in his advice to Mr. Okesanya. Assuming arguendo that Mr. Peters was substandard in his performance, Mr. Okesanya must still establish the second prong of the Strickland test that the resulting prejudice was so serious as to deny him a fair trial.
“Even if the legal guidance provided by Mr. Peters is deemed deficient, the plaintiff cannot establish any basis that the outcome of 10 CR 155 would have been different. Mr. Okesanya could not have changed his criminal history for purposes of Kansas law without first withdrawing his guilty pleas in federal court. That avenue was not pursued. Therefore, this court is without jurisdiction to resentence the plaintiff at this time despite what the plaintiff contends and believes would be a ‘fair’ result. The plaintiff has failed to set forth a legal basis as to how this court can legally provide the relief he has requested and, ultimately, he cannot establish the necessary prejudice mandated by the second prong of the Strickland test.”
Thus, it is clear that the district court did not base its denial of Okesanya's K.S.A. 60–1507 motion upon the belief that Peters was not Okesanya's attorney. The district court found that even if the legal guidance provided by Peters was deficient, Okesanya could not establish the necessary prejudice mandated by the second prong of the Strickland test without first withdrawing his pleas in federal court. Moreover, the primary reason the district court denied Okesanya's motion was because it could not legally grant the relief Okesanya requested. We will turn our attention to this finding because if the district court was correct in finding that it could not legally grant Okesanya's request for relief, then the district court did not err in denying the K.S.A. 60–1507 motion.
Okesanya asked the district court to resentence him as though he had no criminal history—as though the federal convictions did not exist. As the State points out, sentencing courts are statutorily mandated to impose presumptive sentences as provided by the Kansas Sentencing Guidelines Act unless the judge finds substantial and compelling reasons to depart. See K.S.A 21–4716(a). “Once a legal sentence has been pronounced from the bench, the sentencing court loses subject matter jurisdiction to modify that sentence except to correct arithmetic or clerical errors. [Citation omitted.]” State v. Hall, 298 Kan. 978, 983, 319 P.3d 506 (2014); see K.S.A. 21–4721(i).
There are a few exceptions to this general rule. As the district court recognized, a court may correct an illegal sentence at any time. K.S.A. 22–3504(1). But the district court correctly found that the Kansas sentence was not illegal; that is, it was not (1) imposed by a court without jurisdiction, (2) imposed without conformity to the applicable statutes; or (3) ambiguous as to the time and manner in which it was to be served. See State v. Laurel, 299 Kan. 668, 677, 325 P.3d 1154 (2014) (defining illegal sentence).
Similarly, the district court recognized that a successful postsentence motion to withdraw plea could result in a new sentence for Okesanya. However, Okesanya has consistently maintained that he does not want to withdraw his pleas either in federal court or in Kansas. Furthermore, as the district court found, Okesanya has failed to allege manifest injustice necessary to withdraw his Kansas plea.
The district court appeared to believe that the only allowable opportunities for it to resentence Okesanya in Kansas were if the sentence were illegal or if Okesanya withdrew his plea. However, K.S.A. 60–1507(a) provides that
“[a] prisoner in custody under sentence of a court of general jurisdiction claiming the right to be released upon the ground that the sentence was imposed in violation of the constitution or laws of the United States, or the constitution or laws of the state of Kansas, ... may ... move the court which imposed the sentence to vacate, set aside or correct the sentence.”
Thus, if a district court finds that sentencing counsel provided ineffective assistance of counsel in violation of a defendant's Sixth Amendment rights and that the ineffective assistance prejudiced the defendant, the district court may vacate the initial sentence and impose a new one. See State v. Allen, 28 Kan.App.2d 784, 791–93, 20 P.3d 747 (2001). On appeal, Okesanya cites to numerous cases to support the proposition that ineffective assistance of counsel at sentencing requires sentencing relief. Yet Okesanya's underlying argument is not one of ineffective assistance of counsel at sentencing. Rather, he argues that Peters provided ineffective assistance of counsel in regards to entering the pleas, which Okesanya claims resulted in less-than-optimum sentencing exposure.
Thus, Okesanya failed to set forth a legal basis for the district court to provide the requested relief of being resentenced in Kansas as though he had no criminal history. On appeal, he asks this court for the same relief. Okesanya's brief concludes by asking this court to “remand the case with instructions to re-sentence Mr. Okesanya to 55–61 months.” Okesanya believes this is the sentence he would have received in the Kansas case had he entered a guilty plea in that case before negotiating any pleas in the federal case. Okesanya is presuming he would have received the same plea deal in the Kansas case, which resulted in the dismissal of two counts of aggravated assault, even if he had pled guilty in Kansas with the federal charges still pending.
As the district court pointed out, the only way in which a Kansas court could resentence Okesanya without considering the federal convictions would be if Okesanya successfully attempted to withdraw his federal pleas. However, Okesanya has not attempted to withdraw his federal pleas. Okesanya wants to keep the result of his extremely favorable plea negotiations in federal court but at the same time reduce the legal consequences of his federal convictions on his sentence in Kansas. The district court correctly recognized that it could not legally grant Okesanya's requested relief.
In sum, the district court denied Okesanya's K.S.A. 60–1507 motion for two interrelated reasons. First, the district court found that even if the legal guidance provided by Peters was deficient, Okesanya could not establish the necessary prejudice to be granted any relief because he had not attempted to withdraw his federal pleas. Second, the district court found that Okesanya had failed to set forth a legal basis for the court to provide the requested relief of being resentenced in Kansas as though he had no criminal history. Both of these findings were correct. As a result, the motion and the files and records of Okesanya's case conclusively showed that he was not entitled to any relief. See K.S.A. 60–1507(b). Thus, we conclude the district court did not err in denying Okesanya's K.S.A. 60–1507 motion without holding an evidentiary hearing.
Affirmed.