Opinion
110,475.
11-21-2014
STATE of Kansas, Appellee, v. Danny D. TRAN, Appellant.
Richard Ney, of Ney, Adams, of Wichita, for appellant. Matt J. Moloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Richard Ney, of Ney, Adams, of Wichita, for appellant.
Matt J. Moloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before GREEN, P.J., STEGALL, J., and HEBERT, S.J.
MEMORANDUM OPINION
PER CURIAM.
Danny Tran pled guilty to aggravated robbery, kidnapping, two counts of aggravated battery, and aggravated burglary. At the plea hearing, the district court questioned Tran directly to obtain the underlying facts in support of his plea. Tran accompanied the other participants of the crimes into an occupied home in Sedgwick County, Kansas. Tran stated, “[M]y main objective was to go get the bag and put stuff in it and leave.” The group took items from the home, including DVD, video games, and a television. This occurred while someone in the group was armed with a deadly weapon. During the burglary, Tran and others forced one of the occupants to go from room to room and assist in collecting the property. During these events, the occupant was struck in the head with a handgun, causing him to bleed. When the group went outside the house one of the members shot at and struck a neighbor in the leg. The district court found Tran guilty of aggravated robbery, kidnapping, two counts of aggravated battery, and aggravated burglary.
Pursuant to the plea agreement, the State requested that the court grant Tran a dispositional departure from his potentially lengthy sentence to probation. The State relied on Tran's young age of 17, his role in the crimes as the “bag man” rather than the shooter, and his criminal history, which would have required that he “serve a great deal more time than any of the other people involved in this incident.” Tran also agreed to testify truthfully in the hearings of the others involved in the crimes. The district court sentenced Tran to 36 months of probation with an underlying 228 month sentence. The district court warned Tran, “This is one time and one time only for you to demonstrate you can be successful on probation.” On October 7, 2010, the district court revoked Tran's probation after he stipulated to violating the conditions of his probation and ordered him to serve the remainder of his 228 month sentence. This court affirmed Tran's probation revocation. State v. Tran, No. 105,235, 2011 WL 4357858 (Kan.App.2011) (unpublished opinion), rev. denied 293 Kan. 1113 (2012).
Following an unsuccessful attempt to file a direct appeal of his sentence out of time, Tran filed a motion to withdraw his plea based upon ineffective assistance of counsel. Tran argued that his counsel was ineffective for telling him prior to the plea agreement that there was no possibility his confession to the police could be suppressed. Tran supplemented this motion with an argument that his failure to file within the 1–year time limit generally granted for motions to withdraw a guilty plea was excusable neglect and, alternatively, he requested that the district court construe his motion as a K.S.A. 60–1507 motion filed outside the 1–year time limit applying the manifest injustice standard.
The district court granted a preliminary hearing for the parties to make legal arguments. Following the preliminary hearing, the district court held that Tran had failed to show any reason for the untimely filing and denied his motion. In the journal entry of denial, the district court noted that no exceptions excused the untimely filing under either the excusable neglect or manifest injustice standards. Tran then filed this appeal.
On appeal, Tran argues the district court erred in denying his request for an evidentiary hearing for failing to show that the 1–year time limit for a K.S.A. 60–1507 motion must be extended to prevent manifest injustice. To be entitled to K.S.A. 60–1507 relief:
“[T]he 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.’ “ Labrum v.. State, No. 109,918, 2014 WL 1707942 at *3 (Kan.App.2014) (unpublished opinion) (citing K.S.A. 60–1507(b) ; Supreme Court Rule 183(g) ).
In evaluating a defendant's K.S.A. 60–1507 motion the district court has three procedural options:
“(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).
The standard of review of the district court's actions depends upon which procedural steps the district court performed. Here, the district court granted a preliminary hearing to consider the case and decided the matter based on the record. In that situation, an appellate court utilizes a bifurcated standard of review, first looking at the lower court's factual determinations applying “a findings of fact and conclusions of law standard of review to determine whether the findings are supported by substantial competent evidence and whether those findings are sufficient to support its conclusions of law.” Bellamy v. State, 285 Kan. 346, 354, 172 P.3d 10 (2007).
“Ultimately, the district court's legal conclusion regarding whether the [petitioner] has established that (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’ is reviewed as a conclusion of law using a de novo standard.[Citations omitted].” Bellamy, 285 Kan. at 354.
A K.S.A. 60–1507 motion may generally only be brought within 1 year of the final order of the last appellate court to exercise jurisdiction. However, this time limit may be extended “to prevent manifest injustice.” K.S.A. 60–1507(f)(2). Our Supreme Court has said that manifest injustice in the context of a habeas motion means “ ‘obviously unfair’ “ or “ ‘shocking to the conscience.’ “ State v. Kelly, 291 Kan. 868, 873, 248 P.3d 1282 (2011) ( [quoting Ludlow v. State, 37 Kan.App.2d 676, 686, 157 P.3d 631 [2007] ). Our Supreme Court recently clarified that the manifest injustice analysis extends not only to the time-limit issue, but to the merits as well:
“Accordingly, courts conducting a manifest injustice inquiry under K.S.A, 60–1507(f)(2) should consider a number of factors as a part of the totality of the circumstances analysis. This nonexhaustive list includes whether (1) the movant provides persuasive reasons or circumstances that prevented him or her from filing the 60–1507 motion within the 1–year time limitation; (2) the merits of the movant's claim raise substantial issues of law or fact deserving of the district court's consideration; and (3) the movant sets forth a colorable claim of actual innocence, i.e., factual, not legal, innocence.” Vontress v. State, 299 Kan. 607, 616, 325 P.3d 1114 (2014).
Tran alleges the existence of all three of the Vontress factors. Here, the district court denied Tran's motions based entirely on the untimely filing of the combined K.S.A. 60–1507 motion and the motion to withdraw his plea. While the district court was correct that the circumstances of Tran's untimely filing failed to show a manifest injustice or excusable neglect, we must, pursuant to Vontress, look to substantive factors that may show a manifest injustice that were not part of the district court's analysis. While Tran's motion fails to demonstrate either a compelling reason preventing him from filing within the 1–year time limitation, or an actual innocence claim, we are unable to determine based on the existing record whether Tran's ineffective assistance of counsel claim raises a substantial issue of law or fact. As such, that claim must be remanded to the district court for an evidentiary hearing.
Vontress requires that courts consider a number of nonexclusive factors in a totality of the circumstances analysis, including whether “the merits of the movant's claim raise substantial issues of law or fact deserving of the district court's consideration.” 299 Kan. at 616. Tran argued in his motion that manifest injustice exists, as he alleges that the police illegally obtained a confession and that his counsel was ineffective for failing to investigate that allegation and file a motion to suppress his confession.
Tran attached an affidavit to his motion. In the affidavit, Tran stated that once arrested he was placed into a squad car and read his Miranda rights. Tran stated he told the police he had nothing to say and “just take me to JDF.” Tran said he did this because his attorney from a previous case told him “all [he] had to do was say [he did not] want to talk take me to JDF, and they had to .” When Tran arrived at JDF, however, an officer told him they would take him to “City Hall,” despite Tran repeating that he had nothing to say. Once taken to City Hall, at around 1:50 a.m., Tran was handcuffed to a table and an officer asked if he had changed his mind yet about talking. Tran stated that over the next few hours different officers would come to the door and ask if Tran was ready to talk yet and Tran would say no. During this time the officers did not bring Tran food or drink. Around 7 a.m. an officer came to the door and Tran said he needed to use the bathroom. The officer responded that he could use the bathroom if he told them what happened. Tran stated:
“That at that time, I felt as though they would leave me in the interrogation room indefinitely. I had been up since 7:00 a.m on May 17, 2009. I was scared, wanted to talk to my mom, confused, intimidated by my surroundings, and needed to use the bathroom. So, even though I did not want to talk to him, I believed I had to, so I agreed.”
The affidavit goes on to allege that the officer began going through a Miranda waiver with Tran, and “[w]hen he read that I have a right to have an attorney present during questioning, I clearly told the officer that, I want one.” Tran stated that then “[t]he officer gave me a dirty look like I had just pissed him off. He then began asking me questions.” It was only after the questioning that Tran was allowed to use the bathroom. Tran stated, “1 had to go so bad, I was fidgeting, and could barely hold it.” Tran then claims that he subsequently related these allegations to his attorney and asked if his confession could be thrown out. Tran's counsel allegedly “asked if they hit me or threatened me” and when Tran said they did not, he told Tran that the confession would not be thrown out. Tran stated that he would not have pled guilty had he known that his confession could be suppressed, but trial counsel convinced him he had to plea.
To show ineffective assistance of counsel, a party much show that (1) counsel's performance was so constitutionally deficient that it was less than that guaranteed by the Sixth Amendment, to the United States Constitution, and (2) the deficient performance prejudiced the defense. State v. Cheatham, 296 Kan. 417, 431, 292 P.3d 318 (2013). In the context of a plea agreement, to show prejudice a defendant must show that but for counsel's errors, the “defendant would not have entered a plea but would have insisted on going to trial.” State v. Morris, 298 Kan. 1091, 1103–04, 319 P.3d 539 (2014).
Tran argues that the police officers did not scrupulously honor his rights to remain silent and that he was unable to overcome the coercive pressures of the custodial setting. “[A] juvenile's confession requires courts to use the ‘greatest care’ in assessing the validity of the confession” State v. Robinson, 261 Kan. 865, 888, 934 P.2d 38 (1997). “[T]he admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda on whether his ‘right to cut off questioning’ was ‘scrupulously honored.’ “ Michigan v. Mosley, 423 U.S. 96, 104, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975). Further, if a suspect requests counsel at any time during the interview, the interview must cease until a lawyer has been made available to the suspect or he or she reinitiates the conversation. Davis v. United States, 512 U.S. 452, 458, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994) ; see also State v. Walker, 276 Kan. 939, 945, 80 P.3d 1132 (2003) (recognizing Davis v. United States ).
Here, Tran alleges facts which, if true, would establish numerous violations of his rights. If Tran's counsel was informed of these facts, as Tran claims, counsel would, at a minimum have a duty to investigate those claims further and pursue suppression. Certainly advising Tran that such facts, if true, would not be sufficient to have the confession suppressed would amount to ineffective assistance of counsel. If Tran's allegations are true, it is likely that but for the deficient performance of counsel Tran would have gone to trial rather than accept a plea agreement.
Because Tran asserted a claim in his pro se motion that, if true, could establish ineffective assistance of counsel, the district court erred when it failed to take the issue into consideration under the totality of the circumstances in evaluating Tran's claim of manifest injustice. As the record is devoid of evidence on the issue other than Tran's own affidavit, the record is insufficient to enable meaningful appellate review. As such, the district court erred in denying Tran's request for an evidentiary hearing to determine whether his counsel was ineffective.
Because the manifest injustice analysis for untimely filing of a K.S.A. 60–1507 motion requires the district court to consider the totality of the circumstances, and because Tran's claims, if true, raise substantial issues of law or fact deserving of the district court's consideration, we reverse the decision of the district court denying Tran's motion and remand the matter to the district court for an evidentiary hearing.
Reversed and remanded.