Opinion
111,861.
04-17-2015
STATE of Kansas, Appellee, v. Lafondra BARNES, Appellant.
Stephanie A. Graham, of Kansas City, for appellant. Shawn M. Boyd, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Stephanie A. Graham, of Kansas City, for appellant.
Shawn M. Boyd, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Before HILL, P.J., GREEN and LEBEN, JJ.
MEMORANDUM OPINION
PER CURIAM.
Following a bench trial, the trial judge found Lafondra Barnes not guilty by reason of mental disease or defect of two counts of criminal threat, severity level 9 person felonies. As required by statute, the trial judge committed Barnes to Lamed State Hospital (LSH) where she will remain until her doctors and the court determine that she is ready for conditional release or discharge. See K.S.A.2014 Supp. 22–3428. On appeal, Barnes argues that her speedy trial rights were violated and that her trial attorneys provided ineffective assistance of counsel. There is no merit in these contentions. Accordingly, we affirm.
LaFondra Barnes has a long history of mental health issues. Barnes has been diagnosed with paranoid type schizophrenia. Moreover, before the events of this case, Barnes had already been committed to LSH twice.
In April 2009, Barnes met with Judy Goff, a Social Security Administration employee, to discuss Barnes' payee application. Between late April 2009 and early May 2009, Barnes left multiple voicemails on Goff's work phone. Those voicemails were recorded. In the recorded voicemails, Barnes threatened to throw acid on Goff's face and bring “white men to the office to shoot government workers in the head.” Barnes additionally identified herself in the messages by name and social security number.
Because of those threats, the State charged Barnes with two counts of criminal threat in June 2009. Barnes also faced federal charges for the threats she made to Goff. Although this part of the record was not fully developed, it would appear that Barnes remained in federal custody until she was determined incompetent to stand trial for the federal charges in December 2009.
On February 8, 2010, the State arrested Barnes on the two criminal threat counts and Barnes made her first appearance. The trial court then appointed attorney Timothy Dupree to represent Barnes. On March 16, 2010, the State moved to have Barnes evaluated to determine if she was competent to stand trial. Barnes objected to the competency evaluation, but the trial court overruled her objection on March 22, 2010. A licensed clinical psychotherapist conducted an evaluation of Barnes and determined that she was presently competent to stand trial. On April 5, 2010, the trial court determined that Barnes was competent to stand trial. On April 14, 2010, the trial court held a preliminary hearing. Although the hearing transcript was not included in the record, the appearance docket stated that Barnes waived her formal arraignment and entered a plea of not guilty at this hearing.
Next, on May 18, 2010, Barnes moved to reconsider the trial court's competency finding. The trial court denied the motion the same day. On June 16, 2010, Barnes filed her notice of intent to assert the defense of mental disease or defect. On August 16, 2010, Dupree withdrew as Barnes' attorney, and Patricia Kalb was appointed as new counsel. On November 12, 2010, the trial court held a pretrial conference. While the transcript of the hearing was not included in the record, the appearance docket stated that Barnes waived her right to speedy trial at this hearing.
In March 2011, Barnes waived her right to a jury trial. Over the next 2½ years, there were multiple continuances. The appearance docket stated that a hearing occurred on Barnes' motion to dismiss based on speedy trial violations and a bench trial on October 24, 2013. On November 27, 2013, the trial court denied Barnes' motion to dismiss based on speedy trial and found Barnes not guilty by reason of mental disease or defect on both counts. In the order denying her motion, the trial judge stated that when Barnes waived her right to speedy trial she “did not limit the waiver or reassert her right.” The trial judge ordered Barnes committed to LSH.
Did the Trial Court Err When It Denied Barnes' Motion to Dismiss Due to a Violation of Her Right to a Speedy Trial?
K.S.A.2014 Supp. 22–3402(b), states that if a defendant was not
“brought to trial within 180 days after arraignment on the charge, such person shall be entitled to be discharged from further liability to be tried for the crime charged, unless the delay shall happen as a result of the application or fault of the defendant, or a continuance shall be ordered by the court under subsection (e).”
In determining whether a defendant's statutory right to speedy trial was violated, an appellate court exercises unlimited review. State v. Vaughn, 288 Kan 140, 143, 200 P.3d 446 (2009). Nevertheless, when the trial court's speedy trial assessment was based on a factual determination, this court must determine whether the trial court's factual findings are supported by substantial competent evidence. Vaughn, 288 Kan. 140, Syl. ¶ 1. This court “then determines de novo whether those facts as a matter of law support the legal conclusion of the district court.” Vaughn, 288 Kan. 140, Syl. ¶ 1.
Regarding constitutional speedy trial violations, the “constitutional speedy trial right attaches at the formal charging or arrest, whichever occurs first.” State v. Gill, 48 Kan.App.2d 102, 108, 283 P.3d 236, 242 (2012), rev. denied 298 Kan. –––– (2014) (citing State v. Rivera, 277 Kan. 109, 112, 83 P.3d 169 [2004], rev. denied 279 Kan. 1009 [2005] ). In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the United States Supreme Court created a set of four balancing factors to determine whether a defendant's speedy trial rights were violated. These four factors are length of delay, reason for delay, the defendant's assertion of his or her right, and prejudice to the defendant. Wingo, 407 U.S. at 530. Furthermore, in constitutional speedy trial analysis, there are no “rigid rules for what length of time is presumptively prejudicial.” Gill, 48 Kan.App.2d at 108. Whether a defendant's constitutional speedy trial right has been violated is a question of law subject to unlimited review. Gill, 48 Kan.App.2d at 107.
On appeal, Barnes asserts that the trial court erred because her statutory right to a speedy trial was violated when the trial court failed to “dismiss the charges when more than 180 days [had] elapsed from arraignment.” To support her argument, Barnes contends that the State's competency evaluation request and discovery requests should be charged against the State. Moreover, Barnes contends that her motion to set aside the competency determination and notice of raising the defense of mental disease or defect should not be assessed against her for speedy trial purposes. In her brief, Barnes does not dispute that she waived her speedy trial right on November 12, 2010. Moreover, she analyzes whether a speedy trial violation existed only up to November 12, 2010. It also seems that Barnes believes her constitutional speedy trial rights were violated.
Turning to Barnes' speedy trial arguments, we note that Barnes has failed to designate a record that shows the trial court erred. In making an appeal, “[a]n appellant has the burden to designate a record that affirmatively establishes the claimed error.” State v.. Auch, 39 Kan.App.2d 512, 524, 185 P.3d 935 (2008). “Without such a record, the appellate court presumes the action of the trial court was proper.” Auch, 39 Kan.App.2d at 524.
Here, Barnes' apparently filed a written motion to dismiss based on a speedy trial violation. This is evidenced by the trial court's order denying the speedy trial motion. In its order, the trial judge stated that Barnes had failed to make a constitutional speedy trial argument “in the written motion.” Yet, Barnes has failed to include her motion to dismiss in the record on appeal.
In State v. Thompson, No. 100,800, 2010 WL 348273, *1 (2010) (unpublished opinion), this court determined that Thompson's motion to correct illegal sentence was not properly before the court when Thompson did not include his motion in the record. In making this determination, this court stated that “[i]t is an understatement to observe that the most basic necessity for us to analyze Thompson's claim that the district court erred in ruling on his motion is the motion itself in the record on appeal.” Thompson, 2010 WL 348273 at *1. In State v. Sappington, 285 Kan. 176, 192, 169 P.3d 1107 (2007), our Supreme Court held that Sappington failed to sufficiently designate a record to support his claim that the trial judge had a duty to recuse himself when he failed to include a copy of his motion to recuse in the record. In Sappington, our Supreme Court made this finding even though it had “a transcript of the limited discussion regarding the motion on the first day of trial” in the record. 285 Kan. at 192.
Unlike in Sappington, however, Barnes has not included the transcript of the oral arguments concerning the motion to dismiss. As noted on the appearance docket and the trial judge's order denying the motion, there were oral arguments concerning the motion to dismiss on October 24, 2013. Barnes also did not include the transcripts of the hearings where she waived her formal arraignment or where she had speedy trial time assessed against her. Additionally, the transcript of the hearing where Barnes waived her right to a speedy trial was not included in the record on appeal. As a result, the exact scope of Barnes' waiver of speedy trial rights is uncertain. In fact, the only transcript included in the record on appeal was the transcript of the bench trial, which was held on the same day as the hearing on the speedy trial motion. Regarding missing transcripts in a record on appeal, this court has previously held “[w]here an appellant has failed to procure an official transcript or abstract the testimony of record or reconstruct it in some accepted manner, this court will not review any action of the trial court requiring an examination of the evidence.” Auch, 39 Kan.App.2d at 524 (quoting First Nat'l Bank & Trust Co. v. Lygrisse, 231 Kan. 595, Syl. ¶ 9, 647 P.2d 1268 [1982] ).
Based on those standards, Barnes has failed to designate a record that affirmatively established that the trial court erred in denying her speedy trial motion. Without the written motion to dismiss for speedy trial violation or the transcript of the oral arguments on this motion, it is impossible for this court to know what issues Barnes raised before the trial court or determine if the trial court erred in its finding. For instance, in its order denying the speedy trial motion, the trial court noted that Barnes' trial attorney did not discuss a constitutional speedy trial violation in her written motion and only briefly mentioned such violation in oral arguments. Nevertheless, whether Barnes sufficiently raised this issue below will remain unknown since she did not include her motion in the record on appeal. Furthermore, although Barnes outlines her arguments why her speedy trial rights were violated in her brief, “[a]ssertions made in an appellate brief are not sufficient to satisfy inadequacies in the record on appeal.” State v. Rollins, 46 Kan.App.2d 17, 24, 257 P.3d 839 (2011), rev. denied 293 Kan. 1112 (2012). Consequently, this court must presume that the trial court properly denied Barnes' motion to dismiss because she failed to designate a record on appeal to support her argument.
Moreover, even if Barnes had met her burden to designate an adequate record on appeal, her arguments would still fail because (1) she has abandoned any argument concerning a constitutional speedy trial violation and, (2) she has miscalculated when her speedy trial time began to run in her statutory speedy trial violation argument. First, as the State points out in its brief, Barnes relies almost exclusively on the statutory speedy trial rights outlined in K.S.A.2014 Supp. 22–3402. In fact, in the single section that Barnes addresses a potential constitutional speedy trial violation, it also seems that Barnes may have confused the constitutional and statutory speedy trial standards. For example, Barnes questions whether this court should apply the fixed-time period calculation of the 180 days, even though there are no “rigid rules for what length of time is presumptively prejudicial” in constitutional speedy trial analysis. Gill, 48 Kan.App.2d at 108. Barnes also begins her constitutional speedy trial analysis on February 8, 2010, the date she contends that she was arraigned. The record shows that date represented her first appearance, not her arraignment.
Our Supreme Court has held that failure to support a claim with pertinent or relevant authority or engage in substantial analysis is equivalent to abandoning an issue on appeal. See State v. Clay, 300 Kan. 401, 416, 329 P.3d 484 (2014), and State v.Tague, 296 Kan. 993, 1001, 298 P.3d 273 (2013). Based on her failure to cite the relevant authority and lack of analysis on a constitutional speedy trial violation, Barnes has abandoned any constitutional speedy trial violation argument on appeal.
Second, Barnes' attorney miscalculates the statutory speedy trial time by incorrectly stating that Barnes was arraigned on February 8, 2010. A review of the appearance docket shows that Barnes had her first appearance on February 8, 2010, and waived formal arraignment on April 14, 2010. Thus, Barnes entire speedy trial analysis is off by over 2 months. This means that the initial speedy trial deadline from Barnes' waiver of arraignment on April 14, 2010, was October 11, 2010, not August 9, 2010, as Barnes asserts in her brief.
When Barnes' attorney Dupree withdrew on August 16, 2010, the date the case was originally set for trial, the appearance docket stated that the trial court assessed speedy trial time against Barnes and scheduled the next hearing on September 10, 2010. The time between August 16, 2010, and September 10, 2010, is 25 days; this means the speedy trial deadline was pushed back from October 11, 2010, to November 5, 2010. At the next hearing on September 10, 2010, though, the case was continued until November 12, 2010, and speedy trial was again assessed against Barnes. The time between September 10, 2010, and November 12, 2010, is 63 days, pushing the speedy trial deadline back to January 7, 2011. As stated earlier, Barnes waived her speedy trial right at the November 12, 2010, hearing.
Because there are no transcripts of these hearings, the exact reason why the trial court assessed speedy trial time against Barnes remains unknown. In its brief, the State alleges that Barnes' second attorney Kalb asked for continuances to prepare for trial. Regardless, if one concludes that the trial court's speedy trial assessments were proper, Barnes would have waived her right to a speedy trial before her speedy trial deadline date. As a result, even if Barnes had met her burden to furnish a record on appeal to support her statutory speedy trial argument, her argument would still fail because she miscalculated when her speedy trial time started to run or ended.
Did Barnes' Trial Attorneys Provide Ineffective Assistance of Counsel?
To establish ineffective assistance of counsel, a defendant must show
“(1) counsel's performance was deficient, which means counsel made errors so serious that counsel's performance was less than that guaranteed by the Sixth Amendment, and (2) the deficient performance prejudiced the defense, which requires showing counsel's errors were so serious they deprived defendant of a fair trial.” State v. Cheatham, 296 Kan. 417, 431, 292 P.3d 318 (2013) (citing Robertson v. State, 288 Kan. 217, 225, 201 P.3d 691 [2009] ).
Ineffective assistance of counsel claims present mixed questions of fact and law. Thus, appellate courts review the underlying factual findings for support by substantial competent evidence and the legal conclusions based on those facts de novo. State v. Bowen, 299 Kan. 339, 343, 323 P.3d 853 (2014).
In her appeal, Barnes asserts that both Dupree and Kalb provided ineffective assistance of counsel because they did not timely raise that her speedy trial rights were violated. Barnes argues that Dupree should have moved to dismiss her case based on the speedy trial violation before he withdrew as counsel. Barnes further argues that Kalb should have paid closer attention to the speedy trial clock and moved to dismiss her case before she advised her on waiving her speedy trial rights. To support this argument, Barnes repeats her arguments why she believes her speedy trial rights were violated. Barnes makes no other arguments why her trial attorneys provided ineffective assistance of counsel.
As discussed earlier, Barnes did not designate a record on appeal to support her claim that her speedy trial rights were violated and even if she had, her arguments would fail on other grounds. Because Barnes cannot establish that her speedy trial rights were violated, it logically seems that Barnes cannot establish that either Dupree or Kalb provided ineffective assistance of counsel. It is also worth noting that in regards to Dupree, he could not have possibly provided ineffective assistance of counsel because the original statutory speedy trial deadline would have been October 11, 2010, nearly 2 months after Dupree had withdrawn as counsel. For these reasons, Barnes' ineffective assistance of counsel arguments are invalid.
Affirmed.