Opinion
No. 105,948.
2012-12-21
Clint E. WOODS, Appellant, v. STATE of Kansas, Appellee.
Appeal from Sedgwick District Court; Timothy H. Henderson, Judge. Clint E. Woods, appellant pro se and Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellant. Julie A. Koon, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Timothy H. Henderson, Judge.
Clint E. Woods, appellant pro se and Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellant. Julie A. Koon, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MARQUARDT, P.J., McANANY and BUSER, JJ.
MEMORANDUM OPINION
PER CURIAM.
This is an appeal of the district court's denial of Clint E. Woods' pro se K.S.A. 60–1507 motion. Woods moved the district court to allow him to withdraw his plea of guilty to second-degree murder. In particular, Woods claimed his retained attorneys were ineffective. After an evidentiary hearing, the district court ruled that defense counsel were not ineffective and denied the motion. We find no error in the district court's ruling and affirm the denial of the K.S.A. 60–1507 motion.
Factual and Procedural Background
On January 27, 2003, Woods was charged with two counts of first-degree murder and one count of aggravated battery following a September 22, 2002, gang confrontation at Fairmount Park. During the confrontation, Davonta D. Mitchell and Antonio R. Allen were killed and Kilmonte Loudermilk was injured. Woods retained Kurt Kerns and Steven Mank to represent him in the criminal proceedings.
On October 10, 2003, Woods informed the district court that he had entered into a plea agreement with the State. The terms provided that Woods would plead guilty to an amended information charging him with one count of second-degree murder. Additionally, both the State and the defense would recommend a sentence of 258 months' incarceration.
During the plea hearing, Woods admitted, “I shot and killed [Davonta] Mitchell.” The district court verified that no one had threatened, coerced, or made Woods any promises with respect to his plea, and that Woods understood his rights, the charges against him, and the consequences of his plea. As a result, the district court accepted Woods' plea as “knowingly and voluntarily entered” and pronounced him guilty of second-degree murder.
Prior to sentencing, however, Woods filed a pro se motion to withdraw his guilty plea under K.S.A. 22–3210(d). Specifically, Woods asserted that Kerns and Mank had failed to properly inform him of the ramifications of his plea. Woods also alleged that although he had “maintained his innocence of the crimes charged” throughout the proceedings, Kerns and Mank “induced [him] to plead guilty by statements, threats and intimidation.” Woods explained: “At the time of my plea I was under a lot of stress [and] felt pressured into taking the plea to avoid a certain Judge,” and due to the “stress [and] pressure I wasn't able to make the right decision [and] couldn't completely comprehend the whole matter of my plea.”
The district court held an evidentiary hearing to consider Woods' motion to withdraw his plea. In addition to the issues raised in his written motion, Woods testified that his attorneys suggested he consider a plea agreement because Kaylen Irby had implicated him in the crime and his chances of acquittal were minimal if Irby testified at trial. According to Woods, after he entered his plea, he discovered that Irby went to Kerns' office “to tell him that he had lied and everything,” and “other witnesses [had also] switched up their stories and admitted that they had lied on [him] during the [preliminary hearing] or beforehand.” Woods explained that he would not have pled guilty if his lawyers had informed him of this information. Woods did not produce any additional evidence regarding Irby at the hearing. See State v. Woods, No. 93,417, 2006 WL 851245, at *2 (Kan.App.2006) (unpublished opinion), rev. denied 282 Kan. 796 (2006).
Mank also testified at the hearing. He stated that when discussing the case with Woods, “[t]he name [they] talked about quite a bit was Kaylen Irby.” Kerns acknowledged that he received “a statement or a transcript” for a witness named Irby. When asked the significance of this evidence, Kerns replied, “Well, the significance of just that alone was his testimony doesn't help us. I think it could be described as the testimony hurt us.” Kerns also admitted that he was aware some of the State's witnesses had been changing their stories, but he indicated he was “more concerned about what they already said under oath and what they might show up later and spin backwards.”
After considering the testimony of Woods, Kerns, and Mank, the district court denied Woods' motion to withdraw his plea. The district court found that Woods voluntarily entered his plea, i.e., he was not misled, coerced, or unfairly taken advantage of during the plea negotiation process, and he received competent representation throughout the proceedings. The district judge also commented, “I think the [plea] agreement that was struck was a very attractive agreement from Mr. Woods' perspective.”
On February 27, 2004, the district court sentenced Woods, pursuant to the plea agreement, to 258 months' imprisonment followed by 36 months' postrelease supervision.
Subsequently, Woods filed a direct appeal from the denial of his motion to withdraw his guilty plea. Woods, 2006 WL 851245, at *1. Our court affirmed the district court's judgment, finding that a “review of the plea hearing transcript indicate[d] Woods' plea was fairly and understandably made[,][and] Woods ha[d] failed to show any defect such that the district court abused its discretion.” Woods, 2006 WL 851245, at *3.
On September 18, 2007—almost 4 years after his plea—Woods filed a pro se K.S.A. 60–1507 motion requesting a postsentence plea withdrawal based on ineffective assistance of counsel. That motion is the subject of this appeal. Specifically, Woods argued that his attorneys were ineffective because they “failed to adequately investigate the facts and circumstances” of his case. In particular, Woods claimed his attorneys did not locate or interview Kaylen Irby or Rawshanda Solomon—witnesses who “could have and would have provided [him] with an alibi”—and they neglected to advise him that Irby had recanted the incriminating statements he had made to police. Woods asserted that but for the deficient performance of his attorneys, he would not have pled guilty. Woods also explained that he did not present these arguments to the district court when he filed his previous plea withdrawal motion because “the factual and legal significance” of these issues were unknown to him at that time.
In response, the State countered that the “motions, files and records” conclusively established that Woods was not entitled to the relief he requested because his claim of ineffective assistance of counsel had already been litigated and was barred by the doctrine of res judicata. The State explained that Woods raised the issue of whether Kerns and Mank provided competent representation with respect to Irby at the hearing on his previous motion to withdraw his plea, a fact which the Court of Appeals noted on direct appeal. As for Woods' allegation that Kerns and Mank failed to locate, interview, or subpoena an alibi witness by the name of Rawshanda Solomon, the State explained that the allegation was conclusory and related to the overall performance of Kerns and Mank, which was fully addressed at the hearing on Woods' previous motion to withdraw plea.
After a preliminary nonevidentiary hearing, the district court concluded that Woods' allegations were not barred by the doctrine of res judicata. Accordingly, on May 21, 2009, an evidentiary hearing was held on the motion to determine whether defense counsel adequately investigated the two potential alibi witnesses, Irby and Solomon. At the hearing, Woods and Irby testified in support of the motion. Kerns and Mank testified on behalf of the State.
Kerns and Mank testified they advised Woods to accept the plea agreement due to the weight of the evidence against him. Both attorneys stated they could not recall whether Irby contacted their office or whether any investigation regarding Irby was conducted. Kerns explained that his office no longer had the files related to Woods' case because they were given to someone in Woods' family. Kerns did recall, however, that Irby claimed that Woods confessed to shooting Mitchell “like a dog.”
In support of his motion, Woods testified that Kerns encouraged him to go to trial throughout the proceedings; however, on October 8, 2003, a few days before his scheduled trial date, Kerns informed him that he had received “some paperwork” from the district attorney regarding testimony Irby would provide at his trial, and this testimony made Kerns “feel like going to trial would not be the best thing.” In fact, Woods indicated that Irby was the main subject of his conversation with Kerns, and based upon this discussion, Woods believed a jury would convict him if Irby testified against him. Woods explained that Mank made similar statements regarding the incriminating nature of Irby's testimony prior to the entry of his plea.
Woods further testified that prior to sentencing, his mother informed him “Irby had changed his mind” and decided to recant his previous statements. Woods explained that he immediately contacted Kerns' office and told him that he wanted to withdraw his plea because Irby's testimony was “the whole point of taking a plea in the first place,” and he would not have pled guilty had he known Irby was willing to testify on his behalf. Woods also indicated that Kerns and Mank did not investigate “what Mr. Irby said about [him],” and he would not have pled guilty had he known Kerns and Mank had failed to personally interview Irby.
Irby testified that law enforcement officers interviewed him a few days after the shooting occurred and again in February 2003. According to Irby, during both interviews, he “repeatedly” told the police that he was “[a] little bit” drunk on the night of the shooting. Irby explained that he told the police that he was not at Fairmount Park during the shooting, and the only information he had came “[f]rom other people.” Irby further testified that he told the police that Woods had blood on him after the shooting, and he helped Woods dispose of the gun because Woods was his friend, and at the time, he did not know what Woods had done that night. According to Irby, he had known Woods for years, and he told the police that he and Woods were “documented” members of the “Crips gang.” Of note, Woods acknowledged Irby's involvement with “the Crip[s] gang” at the K.S.A. 60–1507 hearing, Woods testified, however, that he had “never been a gang member.”
According to Irby, shortly after he lied to the police, he attempted to “set the record straight” by going to Kerns' law office to tell the truth. Irby acknowledged, however, that “setting the record straight,” meant revealing that he did not “have any evidence about what happened at Fairmount Park that night .” Irby explained that at the law office he spoke with “[a] lady” by the name of “Carla” for approximately 30–45 minutes, and he spoke with “[a] guy,” at the same time, for about 15–20 minutes. Although Irby could not remember the name of the man he spoke with, he did not believe that person was Kerns. At the hearing, Kerns confirmed that he had employed a former paralegal named “Carla” who had since died.
The district court denied Woods' K.S.A. 60–1507 motion. After detailing his factual findings, the district court judge explained his ruling as follows:
“An individual who goes to a lawyers['] office and indicates, Yes, I made two statements to the police incriminating your client but now I'm here to say I really don't know anything about it, would not produce a great amount of evidence. It does not rise to the level of alibi as was alleged in the 60–1507 motion.
“The second aspect of it is that the defendant suffered as a result of Counsel's ineffectiveness.
“I cannot find that Counsel was ineffective. I cannot find Mr. Woods suffered. Mr. Woods received the benefit of a plea agreement which called for a substantially less [ sic ] sentence than he would have received had he gone to trial and been convicted.
“After reviewing all the evidence, I just cannot say Mr. Woods' request to withdraw his plea should be honored.
“I think there is insufficient evidence for the Court to make that determination.”
On May 25, 2010, the district court journalized its ruling and its finding that Woods failed to make a “showing of ineffective assistance of counsel.” Woods timely appealed.
Discussion
Woods contends the district court committed reversible error when it denied his motion to withdraw plea under K.S.A. 60–1507. He claims he sufficiently demonstrated that it was necessary to withdraw his guilty plea and set aside the conviction to correct manifest injustice.
After sentencing, a district court may, in the exercise of sound judicial discretion, set aside the judgment of conviction and withdraw a defendant's plea in order “[t]o correct manifest injustice.” K.S.A. 22–3210(d). When determining whether the defendant has shown manifest injustice, i.e., an outcome which is obviously unfair or shocking to the conscience, district courts should consider the following: “(1) whether the defendant was represented by competent counsel; (2) whether the defendant was misled, coerced, mistreated, or unfairly taken advantage of; and (3) whether the plea was fairly and understandingly made.” State v. Bricker, 292 Kan. 239, Syl. ¶ 4, 252 P.3d 118 (2011); State v. Kelly, 291 Kan. 868, 873, 248 P.3d 1282 (2011). The ultimate determination of whether manifest injustice exists depends upon the totality of the circumstances. State v. Gilliland, No. 104,778, 2012 WL 603226, at *2 (Kan.App.2012) (unpublished opinion), petition for rev. filed March 12, 2012; see Bricker, 292 Kan. at 250.
Additionally, because Woods sought a postsentence plea withdrawal based upon ineffective assistance of counsel, he must satisfy the constitutional standards set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674,reh. denied467 U.S. 1267 (1984), in order to demonstrate manifest injustice. Bricker, 292 Kan. at 245–46. Under the Strickland test, the defendant must show that counsel's “performance fell below the objective standard of reasonableness,” and “there was a reasonable probability” that, but for counsel's error(s), the result of the proceeding would have been different, i.e., the defendant would not have pled guilty and would have insisted on going to trial. Bricker, 292 Kan. 239, Syl. ¶ 5. “A “ ‘reasonable probability’ “ is a probability sufficient to undermine confidence in the outcome.” 292 Kan. at 246.
Finally, when reviewing the district court's denial of a postsentence motion to withdraw plea after an evidentiary hearing, appellate courts generally review the decision under an abuse of discretion standard. 292 Kan. at 244. Because Woods filed his motion pursuant to K.S.A. 60–1507, however, the district court treated his motion as such, and neither party challenges this approach. As a result, we will also apply the general standard for appellate review of K.S.A. 60–1507 proceedings.
An appellate court reviews the district court's factual findings in K.S.A. 60–1507 proceedings to determine whether they are supported by substantial competent evidence and are sufficient to support the court's conclusions of law. Bellamy v. State, 285 Kan. 346, 355, 172 P.3d 10 (2007). Substantial competent evidence is evidence possessing both relevance and substance that a reasonable person could accept as being adequate to support a conclusion. State v. Schultz, 289 Kan. 334, 340, 212 P.3d 150 (2009). Appellate review of the district court's conclusions of law is de novo. Bellamy, 285 Kan. at 355.
Woods contends the district court committed reversible error because the evidence presented at the hearing clearly established that his attorneys were ineffective due to their failure to adequately investigate the facts and circumstances of his case. In particular, Woods asserts his attorneys did not locate or interview Irby as a potential alibi witness. According to Woods, but for defense counsels' deficient performance, he would not have pled guilty and would have insisted on going to trial.
At the outset, it is important to address two preliminary matters. First, in his K.S.A. 60–1507 motion Woods alleged that his attorneys were ineffective because they failed to locate or interview Solomon, a witness Woods claimed, “could have and would have provided [him] with an alibi.” But Woods did not present any evidence regarding Solomon at the evidentiary hearing, nor does he mention Solomon on appeal. Generally, an issue not briefed by the appellant is deemed waived and abandoned. State v. McCaslin, 291 Kan. 697, 709, 245 P.3d 1030 (2011). As a result, we will not review this particular claim of ineffectiveness.
Second, in addition to his attorney's appellate brief, Woods filed a pro se supplemental brief raising several additional issues. Specifically, Woods contends he is entitled to withdraw his plea because the State improperly relied upon false and perjured testimony and cumulative error deprived him of a fair trial. Woods also attempts to introduce affidavits from several other potential witnesses as further proof that he received ineffective assistance of counsel due to his attorneys' improper investigative techniques.
We decline to consider these new issues raised in Woods' supplemental brief. Woods did not raise these issues in his K.S.A. 60–1507 motion or at the evidentiary hearing. For example, although Woods now contends that his attorneys failed to interview Jamie Scales, Michael Roach, and Ramonda Maloney, he never mentioned these individuals to the district court. Generally, issues not raised before the district court, including constitutional grounds for reversal, may not be raised on appeal. State v. Gomez, 290 Kan. 858, 862, 235 P.3d 1203 (2010). Although there are “several exceptions to the general rule that an issue cannot be considered for the first time on appeal,” Trotter v. State, 288 Kan. 112, 124, 200 P.3d 1236 (2009), Woods did not brief any exception.
Additionally, our court may not consider the witness affidavits attached to Woods' supplemental brief because these affidavits are not part of the record on appeal. “Material which is annexed to an appellate brief by way of an appendix is not a substitute for the record itself and cannot be considered on appeal. [Citations omitted.]” In re Gershater, 270 Kan. 620, 633, 17 P.3d 929 (2001); see Supreme Court Rule 6.02(f) (2011 Kan. Ct. R. Annot. 39).
For all of these reasons we decline to review the issues Woods has raised for the first time on appeal in his supplemental appellate brief.
Turning to the issues Woods raised in the district court and on appeal, it appears the relief Woods seeks is barred by the doctrine of res judicata. Under this doctrine, a final judgment rendered on the merits of an action by a court of competent jurisdiction is conclusive “ ‘not only on all matters which were actually litigated, but also on all matters which could have been litigated by the parties or their privies in that action. [Citations omitted.]’ “ Upchurch v. State, 36 Kan.App.2d 488, 493, 141 P .3d 1175,rev. denied 282 Kan. 797 (2006).
As detailed earlier, years before Woods filed his current K.S.A. 60–1507 motion, he had filed a motion to withdraw his plea under K.S .A. 22–3210(d) based upon ineffective assistance of counsel. The district court held an evidentiary hearing and denied the motion on its merits, and our court affirmed the district court's judgment. Woods, 2006 WL 851245, at *3. In affirming the district court's denial of the motion to withdraw plea, our court considered and ruled against Woods on the exact same issue that he reprises in the present K.S.A. 60–1507 motion: “Woods also testified that the day he entered his plea, a witness who had previously implicated him in the shootings recanted, unbeknownst to him. However, no evidence was presented at the evidentiary hearing to support this allegation.” Woods, 2006 WL 851245, at *2.
The record of the prior proceeding and our court's opinion affirming the district court's ruling controvert Woods' claim in the current motion that he did not know of the significance of Irby's purported recantation. At the time of the presentence hearing on Woods' motion to withdraw plea, he raised the same issue of ineffectiveness that he now raises in the motion currently on appeal. We conclude that Woods has had his day in court previously and the doctrine of res judicata obviates the need to reconsider the issues Woods raises once again.
If we were to reconsider the merits, the result would be to affirm the district court. First, the district court articulated its factual findings in a detailed and thoughtful manner. Our review of the evidentiary record convinces us there was substantial competent evidence to support the factual and legal findings of the district court.
Second, Woods asks our court to reweigh the evidence or make credibility determinations contrary to those made by the district court. When reviewing factual findings, however, appellate courts do not reweigh evidence, resolve evidentiary conflicts, or make determinations regarding witness credibility. State v. Johnson, 289 Kan. 870, 888, 218 P.3d 46 (2009).
Third, we agree with the district court's finding that Irby's proposed testimony would not have risen to the level of an alibi as alleged in Woods' K.S.A. 60–1507 motion. At the evidentiary hearing, Irby specifically acknowledged that he was not saying Woods “didn't do anything wrong that night”; to the contrary, he was just saying he “didn't see [Woods] do anything wrong that night.” Those statements do not constitute alibi testimony.
Fourth, it is apparent that Irby was interviewed by employees of defense counsel who were aware of his testimony and its damaging nature. Moreover, given the highly incriminating character of Irby's pretrial statements (which would have provided the grist for the State's cross-examination if Irby had recanted those statements at trial) and the weight of other incriminating evidence, defense counsel made a strategic decision to recommend that Woods enter a plea to a reduced charge. At the hearing on Woods' previous motion to withdraw his plea, Kerns testified that while advising Woods about whether to accept a plea agreement, he discussed the following evidence with his client:
“I went over what I considered to be the good facts and bad facts [of his case], and I basically said we have Manuel Roach making statements that [Woods] shot the guy, then we had Kaylen Irby basically saying the same thing. Then we had in this case Dupree (ph.) testifying that [Woods] confessed the next day. Then we had a guy named Walter Jackson say C–Bear [Woods' alias]-we have a Davonta saying he saw my client. We had a girlfriend that showed up at [the] preliminary [hearing] and basically said [Woods] confessed and destroyed evidence.”
As our Supreme Court has explained:
“The sphere of permissible, reasonable professional conduct is broad, and courts are highly deferential in their assessment of attorney performance. There is a strong presumption that counsel's representation fell within the wide range of professional conduct. [Citation omitted.] ‘Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable, and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.’ [Citation omitted.]” State v. Adams, 292 Kan. 151, 167, 254 P.3d 515 (2011).
In our estimation, given the substantial amount of evidence incriminating Woods—including the pretrial statements of Irby and his recantation, which were known by defense counsel at the time of the plea—Woods failed to overcome the strong presumption that his attorneys sufficiently investigated Irby's proposed trial testimony.
Finally, although Woods posited a different version of the events leading up to his plea, the district court found the testimony of Kerns and Mank to be more credible and compelling, and as explained above, it is not proper for this court to reweigh the evidence or question the trier of fact's credibility determinations on appeal. See Johnson, 289 Kan. at 888.
In conclusion, the district court's findings of fact are supported by substantial competent evidence and they are sufficient to support the district court's conclusions of law. See Bellamy, 285 Kan. at 355. We agree with the district court that Woods failed to establish any manifest injustice to allow the withdrawal of the plea. Moreover, our reconsideration of the plea hearing proceedings in light of the three Bricker factors reveals no error. See Bricker, 292 Kan. 239, Syl. ¶ 4. Finally, contrary to Woods' allegations, and considering the first prong of the Strickland test, we hold that defense counsel were not ineffective in providing legal representation. See Strickland, 466 U.S. at 687.
Affirmed.