Opinion
No. 108,342.
2013-08-9
Thomas WEBB, Appellant, v. STATE of Kansas, Appellee.
Appeal from Lyon District Court; W. Lee Fowler, Judge. Kristen B. Patty, of Wichita, for appellant. Amy L. Aranda, assistant county attorney, Marc Goodman, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Lyon District Court; W. Lee Fowler, Judge.
Kristen B. Patty, of Wichita, for appellant. Amy L. Aranda, assistant county attorney, Marc Goodman, county attorney, and Derek Schmidt, attorney general, for appellee.
Before BRUNS, P.J., HILL, J., and ERNEST L. JOHNSON, District Judge Retired, assigned.
MEMORANDUM OPINION
PER CURIAM.
Thomas Webb asks us to overturn the district court's denial of his K.S.A. 60–1507 motion. After taking evidence on the matter, the district court ruled Webb's trial counsel was not ineffective and that Webb was not entitled to relief. The district court's findings on that issue are supported by substantial competent evidence.
A brief review of the history of this case is necessary.
A jury convicted Webb of reckless aggravated battery, criminal threat, and endangering a child. These convictions were based on Webb's actions during a fight with his girlfriend, Kristina Rhodes, while Rhodes held their 11–month–old child. This court affirmed Webb's convictions and sentences and the Kansas Supreme Court denied review in State v. Webb, No. 100,649, 2010 WL 744791 (Kan.App.) (unpublished opinion), rev. denied290 Kan. at 1104 (2010).
Webb filed a motion under K.S.A. 60–1507 collaterally attacking his convictions. He raised a claim of ineffective assistance by trial counsel, Frederick Meier, as well as other claims. The district court appointed Mark Sherman to represent Webb. At a preliminary hearing, the district court set the issue of ineffective assistance of counsel for an evidentiary hearing and summarily denied Webb relief on any other allegations.
The district court took evidence on the motion. Both Webb and Meier testified. The district court found that Webb had failed to meet his burden to establish ineffective assistance of trial counsel and dismissed his motion. After that, Webb filed two pro se motions. First, Webb filed a “Motion to Remove Counsel and Appoint Standby Counsel.” Webb asked the district court to remove Sherman as his K .S.A. 60–1507 counsel because Sherman had provided ineffective assistance. Second, Webb filed a “Motion to Amend 60–1507” requesting the district court add an additional claim of ineffective assistance of his direct appeal counsel.
The journal entry of the K.S.A. 60–1507 evidentiary hearing was filed on April 9, 2012. Ten days later, Webb filed two more pro se motions—a “Motion to Remove Counsel and Appoint Standby Counsel” asking the district court to remove Sherman for ineffective assistance; and a “Motion to Reconsider” claiming ineffective assistance of his direct appeal counsel, ineffective assistance of his K.S.A. 60–1507 counsel, and requesting the district court make findings of fact regarding all of the allegations raised in his initial K.S.A. 60–1507 motion.
Before the district court had ruled on Webb's motion to reconsider, Webb filed a timely notice of appeal on May 7, 2012. The appeal was docketed in this court on July 25, 2012.
On May 9, 2012, the district court sent Webb a letter informing Webb that it no longer had jurisdiction to consider Webb's motion to reconsider because Webb had filed his notice of appeal and advised Webb to proceed with the docketing of his appeal. The district court appointed appellate counsel for Webb on May 24, 2012, and subsequently denied Webb's motion to reconsider on August 17, 2012. Webb then later filed a notice of appeal challenging the August 17, 2012 ruling.
A review of the law of K.S.A. 60–1507 motions is helpful.
A district court has three options 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. Albright v. State, 292 Kan. 193, 196, 251 P.3d 52 (2011). Obviously, the district court exercised all three options in considering Webb's motion.
After a full evidentiary hearing, such as the one held in this case, the district court must issue findings of fact and conclusions of law concerning all issues presented. Supreme Court Rule 183(j) (2012 Kan. Ct. R. Annot. 274). In turn then, an appellate court reviews the district court's findings of fact to determine whether they are supported by substantial competent evidence and are sufficient to support the court's conclusions of law. Appellate review of the district court's ultimate conclusions of law is de novo. Bellamy v. State, 285 Kan. 346, 354–55, 172 P.3d 10 (2007). Moreover, whether the district court's findings of fact and conclusions of law comply with Rule 183(j) is a question of law that is reviewed de novo. Robertson v. State, 288 Kan. 217, 232, 201 P.3d 691 (2009).
We first analyze the question of counsel's assistance.
We recognize that Webb made claims in addition to his claim of ineffective assistance of counsel when he filed his initial motion. They were all summarily dismissed by the district court at its preliminary hearing on the matter. Because Webb does not challenge the district court's summary denial of those issues unrelated to his ineffective assistance claim, we hold he has abandoned any such arguments on appeal. See State v. McCaslin, 291 Kan. 697, 709, 245 P.3d 1030 (2011). In McCaslin, the court held an issue not briefed by the appellant is deemed waived and abandoned.
Webb raised four separate arguments in his K.S.A. 60–1507 motion alleging ineffective assistance of trial counsel.
• Meier was ineffective for changing trial strategy by deciding not to impeach Webb's girlfriend, Rhodes, regarding numerous alleged inconsistencies in her previous statements and testimony.
• Meier inadequately questioned witnesses.
• Meier inadequately objected throughout trial.
• Meier did not file necessary and requested motions and did not properly prepare for trial.
In response to these claims, the district court summarized Webb's ineffective assistance of counsel claim at the evidentiary hearing as being limited to the issue of whether Meier was ineffective for failing to impeach Rhodes regarding her prior statements.
The district court stated,
“[T]he claim basically is that Mr. Meier didn't challenge the voracity [ sic ] of the complaining witness in this case by use of references to specific transcripts based upon the previous ... inconsistent statements that [Rhodes] might have made to police officers, medical professionals, [and] apparently there was a PFA as well....”
The district court then made findings of fact that Meier had sufficiently informed the jury about Rhodes' prior inconsistent statements. The district court dismissed the motion, ruling that Webb had failed to meet his burden to establish ineffective assistance of counsel.
Prior cases guide us. When the district court denies a K.S.A. 60–1507 motion after an evidentiary hearing, this court on appeal must determine whether the district court's factual findings are supported by substantial competent evidence and whether those findings are sufficient to support its conclusions of law. Bledsoe v. State, 283 Kan. 81, 88, 150 P.3d 868 (2007). Substantial competent evidence possesses both relevance and substance and provides a substantial basis of fact from which the issues can be reasonably determined. Frick Farm Properties v. Kansas Dept. of Agriculture, 289 Kan. 690, 709, 216 P.3d 170 (2009). Judicial scrutiny of counsel's performance when considering a claim of ineffective assistance of counsel must be highly deferential. There is a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Bledsoe, 283 Kan. at 90.
A claim alleging ineffective assistance of counsel presents mixed questions of fact and law requiring de novo review. Before counsel's assistance is determined to be so defective as to require reversal of a conviction, the defendant first 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 by the Sixth Amendment to the United States Constitution. Second, the defendant must then establish that counsel's deficient performance prejudiced the defense. To establish prejudice, there must be a reasonable probability that, but for counsel's deficient performance, the outcome of the proceeding would have been different. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Harris v. State, 288 Kan. 414, 416, 204 P.3d 557 (2009).
A review of the testimony is helpful at this point
Meier testified at the evidentiary hearing that (1) part of the trial strategy discussed with Webb would primarily involve discrediting Rhodes' various alleged inconsistent statements; (2) there was no change in strategy during trial, except Webb's desire to change his own testimony from that which he had previously given; (3) his trial strategy throughout trial towards Rhodes was subject to change depending on Rhodes' testimony or the perceived attitudes of the jury, but “it was very obvious” that the jury had “great sympathy” for Rhodes; (4) he tried to “bully” or attack Rhodes during cross-examination in an attempt to address her inconsistent statements, get her to “lose her composure,” and to “really emphasize” the difference between Rhodes' inability to hear him during his questioning as opposed to her ability to hear the questions from the State. When asked whether he had deviated from trial strategy as much as Webb had alleged, Meier testified, “The only thing that happened is, we weren't successful. I did exactly what we planned to do. I tried to highlight her inconsistencies and show that she was doing this out of manipulation.” At the conclusion of the evidentiary hearing, the district court recessed to review the trial transcripts.
Upon returning to the courtroom, the district court stated that it had reviewed Meier's opening statement, his cross-examination of Rhodes, and his closing arguments. The judge wanted to determine if Rhodes' prior statements to police officers, to medical professionals, and in her protection from abuse case “were inquired into.” The district court then cited Meier's opening statement, noting that Meier had discussed “five or six different versions” of the evens made by Rhodes and had concluded by making the comment, “ ‘We wonder about which version we're going to get today.’ “ Notably, in his closing comment Meier stated. “I can't predict for you what she's going to tell you today.”
Then, the district court addressed Rhodes' cross-examination. In determining that the jury “was aware that there were prior inconsistent statements” made by Rhodes, the district court made the following findings:
“At page 174 ... [Meier] referenced the prior testimony in the PFA, 175, [Meier] addresses the city charges and conflicts that relate to that. At 181, [Meier] comes back and talks about not telling—the stories given to the medical professionals, who were treating [Rhodes] at different occasions and not giving the same story to them. And, again, back on 186, they talk about the PFA and the testimony presented at the PFA. All referencing prior inconsistent statements of [Rhodes] in this case in one form or another. Now, they weren't word-by-word transcript admissions, but they were a challenge to the credibility of [Rhodes]....”
The district court concluded that “the State recognizes that the evidence of prior inconsistent statements had been presented and made it an issue and that's why [the State] presented the evidence from the other witness trying to explain away those discrepancies or issues.” The record indicates the State presented testimony from Bowers to rehabilitate Rhodes and provide a possible explanation for Rhodes' inconsistent statements and reluctance to cooperate.
The majority of Webb's brief argues how Meier should have more effectively impeached Rhodes. But this is mere supposition, derived with the benefit of hindsight, that another attorney may have tried the case differently and is insufficient to compel habeas corpus relief. See Harris, 288 Kan. at 416. The district court's factual findings are supported by substantial competent evidence. See Bledsoe, 283 Kan. at 88. The district court correctly concluded Meier's performance was not deficient.
In our view, Meier's representation of Webb did not fall below an objective standard of reasonableness when we consider all the circumstances. See Bledsoe, 283 Kan. at 90 (discussing first prong of the test for ineffective assistance of counsel). Granted, as Webb points out, the district court's reference to Meier's comments during opening statement does not constitute proper impeachment. See State v. Campbell, 210 Kan. 265, 278–79, 500 P .2d 21 (1972). In Campbell, the court held that opening statements made by counsel in criminal prosecutions are not evidence. But the record indicates Meier made sufficient efforts to impeach Rhodes' inconsistent testimony during cross-examination. The Supreme Court in Bledsoe, 283 Kan. at 92, stated that decisions of how to conduct cross-examination and matters of trial strategy are generally within the exclusive province of the trial counsel after consultation with his or her client. In fact, Webb concedes on appeal that Meier cross-examined Rhodes regarding her inconsistent testimony at a protection from abuse hearing and that “Meier did ask and Rhodes did seem to admit to telling the City prosecutor, two months after the incident, that she did not remember what happened.”
Webb is not entitled to relief under K.S.A. 60–1507 on this particular issue.
The issue of the motion to reconsider is not properly before us.
We do not comment on Webb's final issue concerning the district court's failure to rule on his motion to reconsider because of a jurisdictional bar. An appellate court has a duty to question jurisdiction on its own initiative. State v. Comprehensive Health of Planned Parenthood, 291 Kan. 322, 352, 241 P.3d 45 (2010). We note a district court loses jurisdiction over a case upon the appellant's filing of a motion to docket with the Clerk of the Appellate Court. See State v. McDaniel, 255 Kan. 756, 761, 877 P.2d 961 (1994). If the district court lacks jurisdiction to enter an order, an appellate court does not acquire jurisdiction over the subject matter on appeal. State v. McCoin, 278 Kan. 465, 468, 101 P.3d 1204 (2004).
The district court's order denying Webb's motion to reconsider was filed after the appeal to our court was docketed; therefore, the district court had no jurisdiction to rule on the motion. Webb filed his docketing statement with the Clerk of the Appellate Court on July 25, 2012. The district court clearly lacked subject matter jurisdiction to enter its order on August 17, 2012.
We turn to the issue concerning the insufficiency of the district court's findings.
Rule 183(j) provides that the district court must make explicit findings of fact and conclusions of law on all issues presented under a K.S.A. 60–1507 motion. See Bellamy, 285 Kan. at 354. If, taken together, the district court's findings and conclusions in the journal entry and its oral expressions at the time of the hearing are sufficient for an appellate court to discuss and act on the movant's arguments, then remand is not required. Robertson, 288 Kan. at 233.
The deficiencies in the district court's journal entry are obvious. The journal entry set forth no substantive findings and conclusions. It simply stated: “THEREUPON, the Court finds that the Plaintiff did not meet burden of proof and orders that this case be dismissed.” And when Webb made the district court aware of the deficiencies in the journal entry in his motion to reconsider by specifically asking the district court to “make the necessary findings of fact and conclusions of law with respect to [his] 60–1507 habeas corpus motion,” the district court took no action. Furthermore, the oral findings and conclusions reflected in the evidentiary hearing transcript are also deficient because the district court only addressed one of the four arguments Webb raised in his K.S.A. 60–1507 motion.
The district court did a good job on the one issue it addressed, but, given our rules, the court must deal with the remaining issues. Therefore, we must remand the case to district court for further fact-finding and legal conclusions on the three issues it did not address at the evidentiary hearing.
Affirmed in part and remanded for further fact-finding and conclusions of law on the three remaining issues.