Edgar v. State

1

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 100,477

NEIL EDGAR, SR.,
Appellant,

v.

STATE OF KANSAS,
Appellee.


SYLLABUS BY THE COURT

1.
To support a claim of ineffective assistance of counsel based on counsel's
performance, a defendant must demonstrate that (1) counsel's performance was deficient
and (2) counsel's deficient performance was sufficiently serious to prejudice the defense
and deprive the defendant of a fair trial. The benchmark for judging any claim of
ineffectiveness must be whether counsel's conduct so undermined the proper functioning
of the adversarial process that the trial cannot be relied on as having produced a just
result.

2.
The first prong of the test for ineffective assistance of counsel requires a defendant
to show that counsel's representation fell below an objective standard of reasonableness,
considering all the circumstances. Judicial scrutiny of counsel's performance must be
highly deferential, and a fair assessment of performance requires that every effort be
made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of
counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at
the time. A court must indulge a strong presumption that counsel's conduct falls within
the wide range of reasonable professional assistance.

2


3.
Under the second prong of the test for ineffective assistance of counsel, the
defendant also must establish prejudice by showing that there is a reasonable probability
that, but for counsel's deficient performance, the result of the proceeding would have
been different. A reasonable probability is a probability sufficient to undermine
confidence in the outcome. A court that hears an ineffective assistance of counsel claim
must consider the totality of the evidence before the judge or jury.

4.
A court need not determine whether counsel's performance was deficient before
examining the prejudice suffered by the defendant as a result of alleged deficiencies.

5.
Where a movant makes only conclusory allegations and fails to establish a
reasonable probability that, but for counsel's errors, a different result would have been
achieved, a district court does not err in denying a K.S.A. 60-1507 motion for ineffective
assistance of counsel.

Review of the judgment of the Court of Appeals in an unpublished opinion filed December 31,
2009. Appeal from Johnson District Court; JOHN P. BENNETT, judge. Opinion filed July 27, 2012.
Judgment of the Court of Appeals reversing the district court on the issue subject to our grant of review is
reversed. Judgment of the district court is affirmed.

Michael J. Bartee, of Michael J. Bartee, P.A., of Olathe, argued the cause and was on the brief for
appellant.

Steven J. Obermeier, assistant district attorney, argued the cause, and Stephen M. Howe, district
attorney, and Steve Six, attorney general, were with him on the brief for appellee.

3

The opinion of the court was delivered by

LUCKERT, J.: In Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L.
Ed. 2d 674 (1984), the United States Supreme Court established a two-prong test for
determining if a criminal defendant's right to effective assistance of counsel under the
Sixth Amendment to the United States Constitution has been violated by the deficient
performance of counsel. Under this test, a defendant must demonstrate that (1) counsel's
performance was deficient and (2) counsel's deficient performance was sufficiently
serious to prejudice the defense and deprive the defendant of a fair trial. To establish the
second prong, the defendant must establish a reasonable probability that, but for counsel's
errors, the outcome of the proceeding would have been different. This court recognized
this standard in Chamberlain v. State, 236 Kan. 650, 657-58, 694 P.2d 468 (1985).
Applying this Strickland/Chamberlain test in the present case, the district judge
concluded Neil Edgar, Sr., failed to satisfy either prong of the test. On appeal from that
ruling, the Court of Appeals reversed the district court's summary denial of Edgar's
K. S. A. 60-1507 motion and remanded for a hearing on the first prong, but it failed to
address the second prong. Edgar v. State, No. 100,477, 2009 WL 5206231 (Kan. App.
2009) (unpublished opinion) (Edgar II). Subsequently, the State sought this court's
review of that decision, arguing the Court of Appeals erred in remanding the case for a
hearing rather than holding that Edgar failed to satisfy the second prong of the
Strickland/Chamberlain test.

We accepted the State's cross-petition for review and now reverse the Court of
Appeals' decision on this issue. In Strickland, the United States Supreme Court held that
a court does not have to determine whether counsel's performance was deficient before
examining the prejudice that resulted from the alleged deficiencies and, in fact, should
resolve the issue on the second prong, if possible, rather than insist on a first-prong
determination. Consequently, the Court of Appeals could and should have reviewed the
district judge's ruling on the second prong of the Strickland/Chamberlain test.
4

Conducting our own review, we conclude the district judge correctly concluded that
Edgar had failed to establish prejudice.

FACTS AND PROCEDURAL BACKGROUND

Edgar's claims of ineffective assistance of counsel relate to a criminal case that
was filed following the death of Edgar's 9-year-old son Brian. In that criminal case,
Edgar was charged in count I with felony murder, in violation of K.S.A. 21-3401(b),
occurring during the commission of abuse of a child by inflicting cruel and inhuman
corporal punishment upon Brian on December 30, 2002. Edgar was also charged in
counts II and III with child abuse, in violation of K.S.A. 21-3609, involving two of
Edgar's other children: 12-year-old Martez and 9-year-old Christina. The allegations
were that the abuse of Martez and Christina occurred during the time period from May 9,
2002, to December 30, 2002.

Edgar's wife, Christy Edgar (Christy), and Chasity Boyd (Boyd), described by the
Edgars as their "granddaughter" and by the Edgar children as their "babysitter," were also
charged with the same crimes. Edgar, Christy, and Boyd were tried jointly. After opening
statements in the trial, Christy pleaded guilty to all of the charges. Edgar and Boyd
agreed the jury could be told of her plea, and Edgar defended against his charges by
arguing Christy was the one who committed the abuse, he did not aid and abet in any of
her acts of abuse, and he had no knowledge of the incident that led to Brian's death.

Rejecting this defense, a jury convicted Edgar of the felony murder of Brian and
of the child abuse of Martez and Christina. The district judge then sentenced Edgar to a
term of life imprisonment for the felony-murder conviction and to 32 months'
imprisonment on each of the child abuse convictions, with the sentences for the child
abuse convictions to run concurrent with each other and consecutive to the sentence for
felony murder.
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On direct appeal, this court affirmed Edgar's convictions and sentences in State v.
Edgar, 281 Kan. 47, 127 P.3d 1016 (2006) (Edgar I). An extensive discussion of the facts
can be found in that decision, but a summary is necessary because our review requires a
discussion of the prejudice prong of the Strickland/Chamberlain test, a discussion that is
necessarily factual.

As to the evidence regarding the felony-murder offense charged in count I, an
autopsy revealed Brian died of asphyxiation when he aspirated his own vomit. At the
time of his death, Brian was wrapped "like a mummy" in duct tape with only his nose left
open for breathing. A sock had been stuffed in Brian's mouth and taped down to keep him
from "hollering" and gnawing on the tape.

There was evidence that Edgar was the one who restrained Brian on the night of
his death. In fact, Edgar initially confessed to police that he "did it." He told the police he
had restrained Brian by wrapping his arms, torso, and ankles with belts and that he had
used duct tape to cover a sock he stuffed in Brian's mouth so that Brian could not
"holler." In addition, Martez told detectives Edgar tied up Brian on the night of Brian's
death. Martez also stated that Edgar was the one who usually punished the boys.

Most of the evidence at trial, however, indicated Christy and Boyd had taped
Brian on the night of his death and were the ones who most often punished the children.
Some evidence suggested that Christy would tell Boyd to punish the children and that
Boyd would be the one who physically restrained the children. Consistent with this
evidence, the State argued to the jury that Edgar aided and abetted Christy and Boyd in
the acts of child abuse. In fact, during closing argument, the prosecutor said, "Sure,
Chasity Boyd does most of the tying but this guy is up to his ears in this." Later, the
prosecutor said, "Did he aid and abet? Yes. We know that in a thousand different ways."

6

The evidence of aiding and abetting came from the testimony of Brian's siblings—
Martez, Christina, and 16-year-old Christon. For example, Martez specifically told
detectives that Martez and Brian were punished on the night of Brian's death because
they had angered Edgar. Martez also told the detectives he was thankful he had good
parents who simply bound him up instead of cutting off his hands, as in biblical times,
when he stole something. He told detectives that his father told them, "What happens in
this house stays in this house." Similarly, Christina testified that she and the boys were in
trouble on the night of Brian's death. More generally, during a taped interview that was
shown to the jury, Christina stated, "My dad, he tied me up. My mommy did, Chasity tied
me."

Christon provided direct evidence of Edgar's aiding and abetting. In Christon's
testimony, he explained that Brian had been taped 2 nights in a row because he had
"stolen" food by eating without permission or, on the day of his death, by taking cookies
while the family was at the church where Edgar was the pastor and Christy was the
prophet. On the first night, Brian was wrapped in duct tape from his ankles to his
shoulders. The next night, Christy and Boyd began taping Brian in a similar manner but
ran out of duct tape before they got above his waist. Edgar had not been present when the
taping started but came in as Christy was leaving to go to a store for more duct tape.
According to Christon, Edgar saw Brian taped to the waist and, upon learning Christy
was going to the store, offered to drive her. When Edgar and Christy returned from the
store with duct tape, the women taped Brian so that the duct tape went above his
shoulders, covering all of his face except his nostrils. Christon explained that Brian, who
was so adept at escaping from his restraints that he was known in the family as
"Houdini," had attempted to gnaw through the tape on the previous night. Apparently, the
women did not want this to happen again; as they finished the taping, one of the women
said, "Now try to get out of this one." Christon testified that Edgar did not actually do the
taping and had not seen Brian with his face taped.

7

Edgar testified, denying any knowledge of Christy's decision to tape Brian's face.
Further, Edgar denied knowing the reason for Christy's trip to the store, insisting he was
merely an uninformed driver. Nevertheless, there was circumstantial evidence that Edgar
intentionally promoted and assisted in the crime—the punishment resulted because Brian
had angered and defied Edgar and Edgar had walked in during the taping, suggesting he
would have known Christy was going to the store to get more duct tape.

Regarding the alleged child abuse against Martez and Christina over a several-
month period, both children made statements to police and testified at trial regarding
repeated abuse. Martez testified that although Edgar usually punished the boys, Boyd had
wrapped him with plastic ties on the night of Brian's death. Martez described in great
detail the plastic ties that were used to bind him and explained to the police that he
figured out how to get out of them with a bobby pin. Christon testified that when he
awoke on the morning before Brian's death, he found Martez in bed restrained by plastic
ties. Similarly, Christina reported multiple occasions of being bound or tied up with
socks, duct tape, or plastic ties and having had a stocking or tape put over her mouth. On
the night Brian died, Christina was tied up and made to sleep on the floor in the
basement. Christina testified that Boyd usually tied her up but did so at the direction of
Christy.

Expert testimony was presented establishing that both Martez and Christina had
scars on their wrists consistent with having an injury caused by the use of a ligature to tie
or bind them and that some scars were older than others. Finally, a fellow church member
of the Edgars testified that Christy had told her about a new way of disciplining the
children by tying them up. The church member testified that she had seen Brian, Martez,
and Christina tied by their hands and feet with plastic ties.

In Edgar I, based on this and the other evidence discussed in that decision, we
rejected Edgar's argument that the evidence was insufficient to support his conviction for
8

the felony murder of Brian. This court concluded: "[T]here was overwhelming evidence
of child abuse in this case and of Edgar's involvement." Edgar I, 281 Kan. at 69. In
addition, we noted that Edgar did not contest the sufficiency of the evidence in support of
his convictions for the child abuse of Martez and Christina. Edgar I, 281 Kan. at 68-69.

Approximately 1 year after this court affirmed Edgar's convictions, Edgar filed a
K.S.A. 60-1507 motion, raising five main issues and multiple sub-issues. Of these
multiple issues, only one is subject to our review: a claim of ineffective assistance of
defense counsel during closing argument. Specifically, in presenting that issue in his
motion, Edgar asserted his defense counsel was "ineffective for conceding movant's guilt
to the jury during closing argument. When counsel told them that he wasn't worried about
the abuse of a child charges and that they could go ahead and find him guilty on those he
made their conviction for felony murder mandatory under the law."

Edgar's complaint focused on the following portion of defense counsel's closing
argument:

"Neil Edgar is not guilty of Count No. 1. And I really don't care about Counts II and III.
"Something went on. And if you want to find my client guilty of Counts II and
III, go right ahead. I'm not going to argue that. . . .
. . . .
". . . Your job is to say to Mr. [Prosecutor], hell of a job, but you know what,
you've already got the lady that did it. We don't need to compound the tragedy. We don't
need to foist upon him a murder and first-degree conviction, the other two counts are
enough. We're going to do what is right and what is right is not guilty on murder in the
first-degree."

Edgar's claim that the statements in closing argument were the result of
unreasonable performance by defense counsel was summarily rejected by the district
judge who had presided over Edgar's trial. In doing so, the judge stated the two-prong
9

Strickland/Chamberlain test and noted: "There is a strong presumption of effective
assistance of counsel. The burden is on the defendant to present sufficient facts that
suggest otherwise justifying a hearing on the motion." As to the first prong of the
Strickland/Chamberlain test—requiring the defendant to show that counsel's performance
fell below an objective standard of reasonableness under the circumstances and as judged
at the time of counsel's conduct—the judge stated, "In [Edgar I], the Kansas Supreme
Court specifically quoted defense counsel's remarks concerning counts II and III and
noted that this was a trial strategy." Next, addressing the second prong of the
Strickland/Chamberlain test—a defendant must prove that there is a reasonable
probability that, but for counsel's errors, the outcome of the decision would have been
different—the judge stated, "Given the overwhelming evidence in this case and the nature
of the crimes, the Court cannot conclude that trial counsel was ineffective for making
these statements or concessions or that a different approach would have changed the
outcome as required by Chamberlain. [Movant's] claim is without merit."

Edgar appealed. In his brief on appeal, Edgar argued, in part:

"If the [movant] had nothing to do with the discipline of the children, then it was
nonsensical for counsel to argue that he should be found guilty of the two counts that did
not result in death, but not guilty of the count that resulted in death. Counsel's conduct
appears to have been deficient, and, but for that deficient conduct, a not guilty verdict
may have resulted."

Without much discussion, the Court of Appeals stated that due to the district
judge's summary denial of Edgar's motion, there was no evidence from which the panel
could determine whether defense counsel's statements constituted a concession of guilt
and, if so, whether this was an objectively reasonable trial strategy. Edgar II, 2009 WL
5206231, at *3. But, as previously noted, the panel did not discuss the second prong of
the ineffective assistance of counsel test, that is, whether the district judge erred in
determining that Edgar failed to establish that there is a reasonable probability that, but
10

for counsel's errors, the outcome of the decision would have been different. Instead, the
panel reversed the district judge's summary denial of this issue and remanded for "an
evidentiary hearing to determine whether trial counsel's comment was a concession of
guilt during [trial] and, if so, whether it was an objectively reasonable trial strategy.
[Citation omitted.]" Edgar II, 2009 WL 5206231, at *3. The panel affirmed the district
judge's decision on all other issues. Edgar II, 2009 WL 5206231, at *4-6.

Edgar filed a petition for review, challenging the Court of Appeals' rulings on the
issues it affirmed. The State filed a cross-petition for review, arguing the Court of
Appeals erred in not considering the prejudice prong of the ineffective assistance of
counsel test prior to reversing the district judge's denial of Edgar's K.S.A. 60-1507
motion. This court denied Edgar's petition for review but granted the State's cross-
petition. This court has jurisdiction under K.S.A. 20-3018(b) and K.S.A. 22-3602(e).

To analyze the State's argument that the Court of Appeals erred when it did not
consider the prejudice prong of the Strickland/Chamberlain test, it is necessary to
examine the standards that apply to (1) consideration of Edgar's K.S.A. 60-1507 motion
and (2) the specific issue of ineffective assistance of counsel. Those standards can then be
applied to the specific circumstances of this appeal.

DISTRICT COURT AND APPELLATE STANDARDS FOR A K.S.A. 60-1507 MOTION

Generally, when presented with a K.S.A. 60-1507 motion, a district judge has
three procedural options for handling the motion. One option is to summarily deny the
motion without appointing counsel or conducting an evidentiary hearing. A summary
denial is appropriate only if the motion, files, and records of the case conclusively show
that the movant is not entitled to relief. Trotter v. State, 288 Kan. 112, 132, 200 P.3d
1236 (2009); Bellamy v. State, 285 Kan. 346, 353, 172 P.3d 10 (2007). To avoid
summary denial of the motion, "'[a] movant has the burden to prove his or her K.S.A. 60-
11

1507 motion warrants an evidentiary hearing; the movant must make more than
conclusory contentions and must state an evidentiary basis in support of the claims or an
evidentiary basis must appear in the record.'" Trotter, 288 Kan. at 131-32 (quoting
Swenson v. State, 284 Kan. 931, 938, 169 P.3d 298 [2007]). In this case, the district judge
found Edgar failed to meet this burden and, without appointing counsel or conducting a
hearing, concluded Edgar was not entitled to relief or, in other words, summarily denied
the motion.

When a district judge summarily denies a K.S.A. 60-1507 motion, an appellate
court reviews that decision using a de novo standard of review. Holt v. State, 290 Kan.
491, 495, 232 P.3d 848 (2010) (citing State v. Howard, 287 Kan. 686, 690-91, 198 P.3d
146 [2008]). This standard requires an appellate court to determine whether the motion,
files, and records of the case conclusively show the movant is not entitled to any relief.
Wimbley v. State, 292 Kan. 796, 804-05, 275 P.3d 35 (2011).

Edgar must meet this standard in the context of establishing that he was denied his
right to effective assistance of counsel because of defense counsel's remarks during
closing argument.

INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS

The right to effective assistance of counsel arises from the Sixth Amendment to
the United States Constitution, which guarantees in "all criminal prosecutions" that "the
accused shall enjoy the right . . . to have the Assistance of Counsel for his defense." See
Chamberlain, 236 Kan. at 656-57 (adopting the standards established in Strickland, 466
U.S. at 687); see also State v. Gonzales, 289 Kan. 351, 357-58, 212 P.3d 215 (2009);
Bledsoe v. State, 283 Kan. 81, 90, 150 P.3d 868 (2007).

12

To support a claim of ineffective assistance of counsel based on counsel's
performance, a defendant must demonstrate that (1) counsel's performance was deficient
and (2) counsel's deficient performance was sufficiently serious to prejudice the defense
and deprive the defendant of a fair trial. Strickland, 466 U.S. at 687; Chamberlain, 236
Kan. at 656-57; see, e.g., Holmes v. State, 292 Kan. 271, 274-75, 252 P.3d 573 (2011);
State v. Davis, 277 Kan. 309, 314-15, 85 P.3d 1164 (2004); State v. Orr, 262 Kan. 312,
317, 940 P.2d 42 (1997); State v. Rice, 261 Kan. 567, 598-603, 932 P.2d 981 (1997); see
also State v. Gleason, 277 Kan. 624, 643, 88 P.3d 218 (2004) (discussing difference
between Strickland test that applies to deficient performance of counsel and claims of
ineffective assistance of counsel based upon conflict of interest that are analyzed
somewhat differently under Mickens v. Taylor, 535 U.S. 162, 166, 122 S. Ct. 1237, 152
L. Ed. 2d 291 (2002). Thus, the "'benchmark for judging any claim of ineffectiveness
must be whether counsel's conduct so undermined the proper functioning of the
adversarial process that the trial cannot be relied on as having produced a just result.
[Citations omitted.]'" Gonzales, 289 Kan. at 357 (quoting Bledsoe, 283 Kan. at 90).

In Bledsoe, this court explained in detail the two steps in the ineffective assistance
of counsel analysis, stating:

"The first prong of the test for ineffective assistance of counsel requires a
defendant to show that counsel's representation fell below an objective standard of
reasonableness, considering all the circumstances. Judicial scrutiny of counsel's
performance must be highly deferential, and a fair assessment of attorney performance
requires that every effort be made to eliminate the distorting effects of hindsight, to
reconstruct the circumstances of counsel's challenged conduct, and to evaluate the
conduct from counsel's perspective at the time. We must indulge a strong presumption
that counsel's conduct falls within the wide range of reasonable professional assistance.
[Citation omitted.]
"[Under the second prong of the test for ineffective assistance of counsel], the
defendant also must establish prejudice by showing that there is a reasonable probability
that, but for counsel's deficient performance, the result of the proceeding would have
13

been different. A reasonable probability is a probability sufficient to undermine
confidence in the outcome. A court hearing an ineffectiveness claim must consider the
totality of the evidence before the judge or jury. [Citation omitted.]" Bledsoe, 283 Kan. at
90-91.

See Cullen v. Pinholster, 563 U.S. ___, 131 S. Ct. 1388, 1403, 179 L. Ed. 2d 557
(2011); see also Brecht v. Abrahamson, 507 U.S. 619, 637-38, 113 S. Ct. 1710,
123 L. Ed. 2d 353 (1993) (less onerous nonconstitutional error standard applies in
determining whether collateral relief must be granted because of constitutional
error rather than the Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed.
2d 705 [1967], harmless-beyond-a-reasonable-doubt standard).

In recognizing the presumption that counsel's conduct is reasonable, the Bledsoe
court noted the distinction between decisions that are to be made by a criminal defendant
and the areas of trial strategy that are left to the professional judgment of defense counsel,
stating:

"[C]ertain decisions relating to the conduct of a criminal case are ultimately for the
accused: (1) what plea to enter; (2) whether to waive a jury trial; and (3) whether to
testify. Others are ultimately for defense counsel. The decisions on what witnesses to call,
whether and how to conduct cross-examination, what jurors to accept or strike, what trial
motions should be made, and all other strategic and tactical decisions are the exclusive
province of the lawyer after consultation with his or her client. [Citation omitted.]"
Bledsoe, 283 Kan. at 92.

See Moncla v. State, 285 Kan. 826, 837-38, 176 P.3d 954 (2008) (courts will defer
to counsel on matters of trial strategy).

Despite this recognition that most trial decisions are left to defense counsel's
professional judgment regarding strategy, "'[m]ere invocation of the word "strategy" does
not insulate the performance of a criminal defendant's lawyer from constitutional
14

criticism,' especially '"when counsel lacks the information to make an informed decision
due to inadequacies of his or her investigation."'" Gonzales, 289 Kan. at 358 (quoting
Wilkins v. State, 286 Kan. 971, 982, 190 P.3d 957 [2008]). In addition, "[a]n attorney
undoubtedly has a duty to consult with the client regarding 'important decisions,'
including questions of overarching defense strategy." Florida v. Nixon, 543 U.S. 175,
187, 125 S. Ct. 551, 160 L. Ed. 2d 565 (2004) (quoting Strickland v. Washington, 466
U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 [1984]).

Edgar's allegations place this last qualification into issue; he suggests defense
counsel's closing argument was contrary to agreed-upon defense strategy. Hence, in this
case, the first prong of the Strickland/Chamberlain test could not be determined based
merely on a conclusion that defense counsel's closing argument was "trial strategy."
Rather, as the Court of Appeals concluded, factual questions exist that cannot be
determined without an evidentiary hearing.

Nevertheless, as the State argues, a hearing is not necessary if a defendant fails to
satisfy the second prong of the Strickland/Chamberlain test. It is the rare case where a
defendant does not have to meet the second prong of proving that, but for counsel's
deficient performance, the result of the proceeding would have been different. The United
States Supreme Court has explained that a "narrow exception" to the requirement applies
"infrequently [when] the 'surrounding circumstances [will] justify a presumption of
ineffectiveness.'" Nixon, 543 U.S. at 190 (quoting United States v. Cronic, 466 U.S. 648,
662, 104 S. Ct. 2039, 80 L. Ed. 2d 657 [1984]); see State v. Carter, 270 Kan. 426, 440-
41, 14 P.3d 1138 (2000) (presuming prejudice where defense counsel ignored defendant's
repeated objection to counsel's strategy of admitting guilt and counsel's conduct
deliberately overrode defendant's plea of not guilty). This narrow exception, referred to as
the Cronic exception, is "reserved for situations in which counsel has entirely failed to
function as the client's advocate." Nixon, 543 U.S. at 189. The Supreme Court has
stressed this last point, emphasizing "the attorney's failure must be complete," that is, the
15

Cronic-type presumption applies only "'if counsel entirely fails to subject the
prosecution's case to meaningful adversarial testing.' [Citation omitted.]" Bell v. Cone,
535 U.S. 685, 697, 122 S. Ct. 1843, 152 L. Ed. 2d 914 (2002).

In this case, Edgar does not argue for the application of this narrow exception, and
the district judge did not apply it. Nor did the Court of Appeals cite to the exception or
any case applying it. Instead, although not citing to Chamberlain or Strickland, the Court
of Appeals reiterated the two-prong test set out in those decisions before discussing
Edgar's various complaints of ineffective assistance of counsel. Edgar v. State, No.
100,477, 2009 WL 5206231, at *1 (Kan. App. 2009) (unpublished opinion) (Edgar II)
(citing Harris v. State, 288 Kan. 414, 416, 204 P.3d 557 [2009]). Then, in discussing the
issue before us, the Court of Appeals cited three cases: United States v. Pledger, 887 F.
Supp. 1400, 1406-07 (D. Kan. 1995); Bledsoe, 283 Kan. at 93-95; and LaPointe v. State,
42 Kan. App. 2d 522, 555, 214 P.3d 684 (2009). Edgar II, 2009 WL 5206231, at *3, *6.
Each of those cases used the two-part Strickland test.

Of the three decisions, Pledger is the most factually similar to the present case. In
that case, defense counsel conceded guilt on one count but asserted innocence on other
counts. In doing so, according to the Pledger court, defense counsel exercised
"professional judgment [and] made a tactical decision to concede defendant's guilt on
count 2, in the face of the overwhelming evidence presented by the government at trial, in
order to establish credibility with the jury concerning defendant's arguments regarding
the other counts of the indictment." Pledger, 887 F. Supp. at 1406. The Pledger court
specifically cited Strickland and applied its two prong test; the court gave no indication
that Cronic applied. Pledger, 877 F. Supp. at 1406-07.

Neither did the Court of Appeals in this case. Further, Edgar did not discuss or
request application of the Cronic exception. Nevertheless, the dissent in this case
suggests we should apply the exception because Carter, 270 Kan. 426, which applied
16

Cronic, controls. We decline to do so for two reasons. First, it can be argued that Carter
is distinguishable and, second, there is uncertainty regarding whether Carter's rationale
and perhaps its holding remain valid in light of two United States Supreme Court
decisions filed after Carter.

Regarding the first point, other courts have found Carter distinguishable from
cases such as Edgar's. Specifically, among other factors, these courts distinguish between
(1) a situation where counsel concedes guilt on alternative charges, all charges, or the
only charge from (2) a situation where counsel concedes guilt on a lesser charge in an
effort to gain credibility and win acquittal on the more severe charge. See, e.g., State v.
Gordon, 262 Wis. 2d 380, 394-96 & n.6, 663 N.W.2d 765 (2003) (cataloguing decisions,
including Carter and Pledger). Pledger, the decision relied on by the Court of Appeals in
the present case, is an example of a case in the second category. The present case is more
like Pledger than Carter.

In Carter, Jerome Carter was convicted of first-degree murder, aggravated
robbery, and criminal possession of a firearm. The first-degree murder count had been
charged in the alternative of either premeditated murder or felony murder. At trial,
defense counsel's strategy was to concede Carter's involvement in the shooting of the
victim and the robbery but deny any premeditation, thus directing the jury toward a
felony-murder conviction rather than the alternative premeditated first-degree murder
conviction charged in the same count. In contrast, in this case Edgar's counsel asserted
Edgar's innocence as to the murder charge; defense counsel argued Edgar had no
knowledge and no involvement in the acts that led to Brian's death. The arguments of
counsel that Edgar challenges related to separate charges in which Martez and Christina
were the victims. Counsel's arguments were not a complete concession of guilt as to all
counts, and in particular as to count I, even if we interpret them as a concession of guilt
on counts II and III. Arguably, the situations are distinguishable because the concessions
involve separate counts.
17


The other reason Carter's application is called into question is the uncertainty
regarding the potential impact of two decisions of the United States Supreme Court on
Carter's rationale. In the 2002 decision of Bell, 535 U.S. 685, the Court clarified that an
"attorney's failure must be complete" in order for Cronic's presumption of ineffectiveness
to apply. Bell, 535 U.S. at 697. Then, in the 2004 decision of Nixon, 543 U.S. 175, the
Court held the Strickland test and not the Cronic test applied even though defense
counsel had conceded guilt during the penalty phase of a capital murder trial, a
concession the Florida Supreme Court had labeled a "'functional equivalent of a guilty
plea'" that made counsel's performance presumptively inadequate. Nixon, 543 U.S. at
185. In rejecting the Florida Supreme Court's holding, the Nixon Court determined
counsel's concession of Nixon's guilt did not rank as a "'fail[ure] to function in any
meaningful sense as the Government's adversary.'" Nixon, 543 U.S. at 190 (quoting
Cronic, 466 U.S. at 666). The Court stated that Nixon retained the rights accorded a
defendant in a criminal trial despite defense counsel's concessions to the jury because the
State was required during the guilt phase to present evidence establishing the essential
elements of the charged crimes, the defense maintained the right to cross-examine
witnesses, and the concession of guilt did not hinder Nixon's right to appeal. Nixon, 543
U.S. at 188.

The Court was, however, careful to limit its holding to capital cases and noted that
"such a concession in a run-of-the-mine trial might present a closer question, [as] the
gravity of the potential sentence in a capital trial and the proceeding's two-phase structure
vitally affect counsel's strategic calculus." Nixon, 543 U.S. at 190-91. Thus, Nixon is not
controlling, but several courts have applied is rationale in noncapital trials. See, e.g.,
United States v. Thomas, 417 F.3d 1053, 1057-59 (9th Cir. 2005), cert. denied 546 U.S.
1121 (2006) (applying Nixon and holding Strickland, not Cronic, controlled even though
counsel conceded guilt to one of two robbery counts because concession did not abandon
all meaningful adversarial testing of the prosecution's case); Com. v. Cousin, 585 Pa. 287,
18

301-08, 888 A.2d 710 (2005) (although defense counsel conceded guilt to criminal
homicide, counsel argued against more severe murder charge; there was not a complete
failure to subject the prosecution's case to adversarial testing as required by Nixon).
These decisions and their application of Nixon and Bell raise questions about the
continued viability of the rationale in Carter.

Ultimately, when faced with arguments urging us to follow Carter we may
reaffirm its holding, we may modify it, or we may distinguish it. But this is not the case
to make any such decision because no one has asked us to apply Carter, much less cited
to it or Cronic. Consequently, we will review the Court of Appeals' decision on the basis
on which it was decided—the two-part Strickland test. Given that, we next discuss the
Court of Appeals' failure to discuss the second prong—the prejudice prong—of the
Strickland test.

In Strickland, the Supreme Court emphasized the importance of the prejudice
prong of its ineffective assistance of counsel test by providing that a claim of ineffective
assistance of counsel could be disposed of solely on that ground if the defendant failed to
establish that he or she suffered prejudice.

"Although we have discussed the performance component of an ineffectiveness
claim prior to the prejudice component, there is no reason for a court deciding an
ineffective assistance claim to approach the inquiry in the same order or even to address
both components of the inquiry if the defendant makes an insufficient showing on one. In
particular, a court need not determine whether counsel's performance was deficient before
examining the prejudice suffered by the defendant as a result of the alleged deficiencies.
The object of an ineffectiveness claim is not to grade counsel's performance. If it is easier
to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which
we expect will often be so, that course should be followed. Courts should strive to ensure
that ineffectiveness claims not become so burdensome to defense counsel that the entire
criminal justice system suffers as a result." Strickland, 466 U.S. at 697.
19


Hence, in applying Strickland/Chamberlain, before remanding the case for an
evidentiary hearing on the first prong of the test, the Court of Appeals could have and
should have assumed defense counsel's performance was deficient and then examined
whether the district judge erred in concluding that "[g]iven the overwhelming evidence in
this case and the nature of the crimes, the Court cannot conclude that trial counsel was
ineffective for making these statements or concessions or that a different approach would
have changed the outcome as required by Chamberlain."

Had the Court of Appeals conducted that review, it would have undertaken a de
novo review to determine if the motion, files, and records of the case conclusively
showed that Edgar failed to establish a reasonable probability that, but for defense
counsel's errors, the outcome of his trial would have been different. This court applies the
same standard of review.

THERE IS NOT A REASONABLE PROBABILITY OF A DIFFERENT OUTCOME

Thus, the ultimate issue in this appeal is: Has Edgar established a reasonable
probability that the jury would have returned a "not guilty" verdict on count I, felony
murder, if defense counsel had not made the concessions or proposed the compromise
regarding counts II and III? We limit this question to the felony-murder count because
that is the way Edgar poses the issue. And in posing the issue he makes only a very
limited argument, stating:

"All the charges involved the same type of conduct, i.e. use of physical restraint as [a]
form of discipline. The defendant testified that he did not tie or restrain the children—that
the women of the church, namely his wife and the other codefendant, were the
disciplinarians.
. . . .
20

"Because the conduct underlying the felony murder charge and the abuse of a
child was the same, counsel's argument that the jury should find the [movant] guilty of
the abuse of a child charges directly undermined his claim that the [movant] was not
guilty of the felony murder for similar conduct. Counsel's argument contradicted his own
defense in the case. If the [movant] had nothing to do with the discipline of the children,
then it was nonsensical for counsel to argue that he should be found guilty of the two
counts that did not result in death, but not guilty of the count that resulted in death.
Counsel's conduct appears to have been deficient, and, but for that deficient conduct, a
not guilty verdict may have resulted."

These arguments fail to even attempt to satisfy Edgar's burden of persuasion,
ignore the nature of the State's aiding and abetting case, and remove defense counsel's
statements from the context of closing argument.

Regarding Edgar's burden, Edgar argues simply that "but for [defense counsel's]
deficient conduct, a not guilty verdict may have resulted." (Emphasis added.) This
argument does not acknowledge Edgar's burden to establish a reasonable probability that
a "not guilty" verdict would have resulted. Furthermore, Edgar presents no factual
argument to rebut the district judge's conclusion that the evidence was overwhelming or
its conclusion that a different approach would not have changed the outcome. Indeed, the
conclusory nature of Edgar's arguments is reason enough to reject his motion. See
Trotter, 288 Kan. 112, Syl. ¶ 12; Swenson, 284 Kan. at 938.

In addition, a review of the record provides additional reasons to conclude the
district judge did not err in ruling that Edgar failed to meet his burden. The record reveals
that while there was evidence that Edgar tied and restrained Martez and Brian on
occasion, the State's closing argument focused on Edgar's aiding and abetting the women
in their role as disciplinarians. As we noted, the prosecutor even stated, "Sure, Chasity
Boyd does most of the tying but this guy is up to his ears in this." Then, in presenting the
closing argument for Edgar, defense counsel built on this theme. Edgar's counsel, echoed
21

by Boyd's counsel, vilified Christy as the leader, the manipulator, the one who "brain
washed" the others, and the one whose "reign of terror" ended the night Brian died.

Edgar's counsel also attempted to distance Edgar from the type of abuse that led to
Brian's death. Witnesses were questioned about the one-of-a-kind nature of taping Brian
"like a mummy" above the shoulders. Christon was asked whether his father saw how
Brian was taped the night of Brian's death—he did not, according to Christon—and about
whether his father was nearby when the women taped Brian's upper body—he was not.
During closing argument, defense counsel repeatedly emphasized Edgar's lack of
participation in or knowledge of the type of abuse that occurred that night. "Find one
scintilla of evidence that my client intended that poor child's head to be wrapped with
duct tape," defense counsel argued.

In other words, defense counsel's concessions or proposed compromises regarding
counts II and III did not contradict the defense theory that Edgar did not actively
participate in the discipline of the children. Further, it continued the theme of the defense
that the discipline of Brian was of a different character than previous discipline or the
type of discipline applied to Martez and Christina on the night of Brian's death and that
Edgar had not done anything to aid and abet that type of punishment, on that night or
ever.

A reasonable jury could have found Edgar guilty of aiding and abetting abuse by
restraint of the children's hands or feet—the type of abuse aimed at Martez and
Christina—but still could have found Edgar not guilty of aiding and abetting the child
abuse—the gagging—that led to Brian's asphyxiation. Moreover, Martez and Christina
stated that although Edgar had tied them up in the past, he did not do so on the night of
Brian's death. Defense counsel's argument preserved the defense that Edgar did not
intentionally aid or abet Christy on the night of Brian's death.

22

Finally, as this court held in Edgar I and the district judge who presided over
Edgar's trial held in summarily denying Edgar's K.S.A. 60-1507 motion, the evidence
against Edgar was overwhelming, particularly in light of Martez' and Christina's
testimony that the children were being punished because they had angered Edgar and in
light of Christon's testimony that Edgar saw Brian wrapped in duct tape to his waist,
Edgar then drove Christy to the store, and Christy returned from the store with duct tape
that was used to complete the taping of Brian like a mummy. In light of the nature of
closing arguments, the nature of the defense, and the overwhelming evidence against
Edgar, our de novo review of the motion, files, and records of the case lead us to
conclude Edgar failed to establish a reasonable probability that, but for defense counsel's
errors, he would have been found not guilty of felony murder.

As such, the district judge did not err in summarily denying Edgar's requested
relief on this claim in his K.S.A. 60-1507 motion.

The decision of the Court of Appeals reversing the district judge's summary denial
of Edgar's K.S.A. 60-1507 motion and remanding for an evidentiary hearing is reversed
on the issue subject to our order of review. The district judge's denial of Edgar's K.S.A.
60-1507 motion is affirmed.

* * *

JOHNSON, J., dissenting: I respectfully dissent because I believe and embrace what
my predecessor, Justice Allegrucci, said in State v. Carter, 270 Kan. 426, 441, 14 P.3d
1138 (2000):

"The decision to enter a plea of guilty or not guilty to a criminal charge lies
solely with the defendant. It is a fundamental constitutional right guaranteed to a
defendant, and defense counsel's imposing a guilt-based defense against Carter's wishes
23

violated his Sixth Amendment right to counsel and denied him a fair trial. Carter's plea of
not guilty required the State to prove guilt beyond a reasonable doubt. Defense counsel's
conduct relieved the State of that burden. Defense counsel abandoned his client, and the
result was a breakdown in our adversarial system of justice. As in [United State v.]
Swanson, [943 F.2d 1070, 1073-74 (9th Cir. 1991),] such a breakdown compels
application of the Cronic exception. [See United States v. Cronic, 466 U.S. 648, 104 S.
Ct. 2039, 80 L. Ed. 2d 657 (1984).] The conduct of defense counsel was inherently
prejudicial and no separate showing of prejudice was required. As this court recently
stated: 'The assistance of counsel is among those constitutional rights so basic to a fair
trial that their denial can never be treated as harmless error. State v. Jenkins, 257 Kan.
1074, Syl. ¶ 2, 898 P.2d 1121 (1995). We have no other alternative except to grant Carter
a new trial."

Carter explicitly rejected the notion that defense counsel can unilaterally change
the client's plea from not guilty to guilty under the guise of trial strategy. 270 Kan. at 440
("Viewing defense counsel's conduct as part of a trial strategy or tactic is to ignore the
obvious. By such conduct defense counsel was betraying the defendant by deliberately
overriding his plea of not guilty."). To the contrary, an attorney who imposes a guilt-
based defense on an objecting defendant violates such fundamental rights that it is
prejudicial per se and no showing of a different outcome of the trial is required. 270 Kan.
426, Syl. ¶ 4.

As an aside, I perceive that the difference between the majority decision and
Carter may be a matter of perspective. The majority appears to be looking at whether,
based on its assessment of the evidence, the jury was correct in convicting the defendant;
Carter appears to focus on whether the process employed to obtain the conviction was
fundamentally fair. I believe that if our constitutions are to mean anything, they must
guarantee a fair process for all citizens, without regard to the magnitude of available
incupatory evidence. See State v. Tosh, 278 Kan. 83, 97, 91 P.3d 1204 (2004) ("Denial of
a fair trial violates the due process rights of the guilty defendant just as surely as those of
the innocent one.").
24


Procedurally, the majority wants to simply ignore Carter. Part of its rationale is
that it thinks this court might want to do something different in the future based upon
what some "other courts" have said. That tack is inscrutable. Carter was a unanimous
decision of this court, albeit decided before any of the current justices were serving on the
court. To date, we have not overruled or modified its holdings. Accordingly, pursuant to
stare decisis, Carter is the law in Kansas, notwithstanding what any subsequent non-
binding federal court decisions might have said. Moreover, the majority's reliance on the
federal district court decision in United State v. Pledger, 887 F. Supp. 1400, 1406-07 (D.
Kan. 1995), is particularly curious to me, given that it was filed 5 years before our Carter
opinion. But the point is that, having identified a prior decision as touching on the subject
matter before us, it is incumbent on this court to deal with it, e.g. follow it, distinguish it,
modify it, or overrule it. Disregarding a prior opinion because the current court does not
like the precedent is unacceptable to me.

Additionally, the majority suggests that it need not consider Carter because it
represents a narrow exception and Edgar did not argue for its application. But Edgar's 60-
1507 motion clearly challenged his attorney's concession of guilt on the two, non-
homicide counts. Moreover, he essentially won in the Court of Appeals to the extent that
the case was remanded for an evidentiary hearing. It is the State that is seeking review,
and the State has not asked us to depart from Carter. If we find Carter is applicable, we
can simply say that the Court of Appeals was correct to reverse and remand, albeit for a
different reason. We frequently declare district courts to be correct for the wrong reason.
See State v. Murray, 285 Kan. 503, 533, 174 P.3d 407 (2008) ("[I]f a trial court reaches
the right result, its decision will be upheld even if it provided an incorrect reason or
engaged in an improper legal analysis.").

To conclude, I see no logical difference between this case and Carter. Both
defendants pled not guilty to all charges against them, and both defense attorneys told the
25

jury their clients were guilty of some of the charges. Both defendants possessed a
fundamental right to decide how to plead, which rights their attorneys were not entitled to
unilaterally waive. If the majority is going to overrule Carter, I would prefer that it
candidly say so. But for me, Carter is still good law in this State, i.e., we still strive to
provide all Kansas defendants with a fair trial. I would reverse and remand for a
determination of whether Edgar consented to the guilt-based defense. If not, he is entitled
to a new trial.