Crothers v. State

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NOT DESIGNATED FOR PUBLICATION

No. 117,221

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

DAVID CROTHERS,
Appellant,

v.

STATE OF KANSAS,
Appellee.


MEMORANDUM OPINION

Appeal from Reno District Court; TIMOTHY J. CHAMBERS and JOSEPH L. MCCARVILLE III,
judges. Opinion filed February 2, 2018. Affirmed in part and reversed in part.

Shannon S. Crane, of Hutchinson, for appellant.

Thomas R. Stanton, deputy district attorney, Keith E. Schroeder, district attorney, and Derek
Schmidt, attorney general, for appellee.

Before POWELL, P.J., STANDRIDGE, J., and STUTZMAN, S.J.

PER CURIAM: David Crothers appeals from the district court's denial of his K.S.A.
60-1507 motion in which he claimed ineffective assistance by trial and appellate counsel
during proceedings concerning revocation of his probation in two cases. Because we find
counsel was ineffective in one of the cases, but not both, we affirm the district court in
part and reverse in part.




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FACTS AND PROCEDURAL BACKGROUND

On September 16, 2011, in 11CR322, Judge Timothy J. Chambers of the Reno
District Court sentenced Crothers to 102 months in prison but granted Crothers a
downward dispositional departure to probation and assigned him to intensive supervision
with community corrections for 36 months. On February 24, 2012, in 11CR749, Judge
Joseph L. McCarville III, of the same court, sentenced Crothers to 46 months in prison
but also granted a departure to probation for 36 months under the supervision of
community corrections.

A few months later, on May 1, 2012, the State filed a motion to revoke Crothers'
probation in both cases for various alleged violations of his probation conditions,
including "[b]eing arrested on new charges of Aggravated Burglary on April 27, 2012."
Judge Chambers took up the alleged violations in 11CR322 on May 11, 2012, found
Crothers was in violation of his probation conditions and allowed him to remain on
probation for 36 months after serving a 60-day jail sanction. The hearing on the alleged
violations in 11CR749 originally was also scheduled for May 11, after the hearing had
been held in 11CR322. In that later hearing, the State represented Crothers had stipulated
to the alleged violations before Judge Chambers and noted the action Judge Chambers
had taken. Judge McCarville announced: "I'll take judicial notice of the stipulation and
acceptance of that stipulation by Judge Chambers and I'll revoke the probation." Judge
McCarville set June 22, 2012, as the date on which he would consider disposition on the
revoked probation.

On July 12, 2012, after Crothers had been bound over for trial at his preliminary
hearing, the State filed a new motion to revoke Crothers' probation in 11CR322 on the
sole basis that probable cause had been found to bind Crothers over for trial in the new
case. In 11CR749, the State filed a second amended motion to revoke, adding the
allegation about the result of the preliminary hearing.
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At the probation revocation hearing in 11CR322, Crothers acknowledged being
bound over in the new case. The State presented no additional evidence. Judge Chambers
revoked Crothers' probation, stating: "Based upon the bind over with a probable cause
finding having been made the court will revoke assignment to Community Corrections."
Judge Chambers then ordered a transcript of the preliminary hearing and continued the
probation revocation hearing to consider disposition on August 17, 2012.

At a hearing on August 3, 2012, in 11CR749, Judge McCarville noted that Judge
Chambers had revoked probation in Crothers' case and was going to review the
preliminary hearing transcript before making a decision on disposition on August 17.
Judge McCarville then continued the hearing in his case to the same date, said he also
would review the preliminary hearing transcript, and offered the following comments:

"As I've explained this here, this is for Mr. Crothers' education, the burden of proof in a
preliminary hearing is a little different than in a revocation hearing. . . . At a preliminary
hearing, Mr. Crothers, the State has to prove its more likely than not that the crime was
committed and there's probable cause to believe you're the one responsible. On a
probation revocation all of the burdens have to do with preponderance of the evidence
more likely than not. I understand, I think that Judge Chambers is going to look at that
preliminary hearing transcript to see, also and will give us some guidance on disposition
so that's probably what you and I will be talking about on the afternoon of the 17th of
August, although I will tell you that I'll give you a fresh look at whether or not there's
enough evidence to revoke you, also."

On August 17, 2012, for reasons not clear in the record, Crothers appeared before
Judge McCarville for both cases. Although both judges had revoked Crothers' probation
earlier, Judge McCarville announced he was revoking Crothers' probation in both cases
and ordered Crothers to serve the original underlying sentences.

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When Crothers appealed, the cases were consolidated. A panel of this court
affirmed the revocations of probation in State v. Crothers, No. 108,699, 2013 WL
3868047 (Kan. App. 2013) (unpublished opinion), rev. denied 298 Kan. 1205 (2014).
Contrary to the finding of the district court, Crothers contended the preliminary hearing
transcript showed he was not involved in the aggravated burglary for which he was bound
over. The panel found, however, that Crothers' failure to include the preliminary hearing
transcript in the record prevented him from showing the district court erred in rejecting
his claim of noninvolvement. 2013 WL 3868047, at *3.

On October 27, 2014, Crothers filed a motion pursuant to K.S.A. 60-1507. He
alleged Judge McCarville abused his discretion and committed judicial misconduct by
making prejudicial statements against him. He also alleged his probation revocation
attorney, Sarah McKinnon, provided ineffective assistance of counsel because she: did
not request a copy of the preliminary hearing transcript for his appeal; tried to persuade
him to drop his appeal in exchange for the State's dismissal of the new aggravated
burglary charge; failed to argue for a continuance until Judge Chambers could preside
over disposition of his case; did not ask for a continuance until after the new charges
were resolved; and did not "fight for" a modification of his underlying sentences.

On February 13, 2015, Crothers moved to amend his 60-1507 motion, raising
additional claims of error. He alleged his appellate counsel provided ineffective
assistance of counsel by failing to include the preliminary hearing transcript in the
appellate record.

The district court held a nonevidentiary hearing on Crothers' 60-1507 motion on
February 19, 2015. At the hearing, Crothers' attorney argued appellate counsel's failure to
include the transcript from the preliminary hearing was sufficient to show ineffective
assistance. After response from the State, the district court discussed and rejected
Crothers' argument about the failure of appellate counsel to include the preliminary
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hearing transcript in the appellate record. The district court also addressed and rejected
other arguments Crothers had raised in his pro se motion that had not been specifically
discussed by counsel in that hearing. Finding no basis for further proceedings, the district
court dismissed Crothers' 60-1507 motion.

Crothers timely appealed.

ANALYSIS

Crothers presents one issue on appeal. He contends his trial and appellate counsel
both were ineffective because they failed to argue the district court used the wrong
standard of proof for his probation revocations and, as a result, he asserts the district
court erred in denying his 60-1507 motion.

Standard of review

A district court has three options when handling a K.S.A. 60-1507 motion:

"'(1) The court may determine that the motion, files, and case records conclusively show
the prisoner is entitled to no relief and deny the motion summarily; (2) the court may
determine from the motion, files, and records that a potentially substantial issue exists, in
which case a preliminary hearing may be held. If the court then determines there is no
substantial issue, the court may deny the motion; or (3) the court may determine from the
motion, files, records, or preliminary hearing that a substantial issue is presented
requiring a full hearing.' [Citation omitted.]" Sola-Morales v. State, 300 Kan. 875, 881,
335 P.3d 1162 (2014).

The standard of review depends upon which of these options a district court
utilizes. Sola-Morales v. State, 300 Kan. 875, 881, 335 P.3d 1162 (2014). Where, as here,
the district court denies a 60-1507 motion based only on the motions, files, and records
after a preliminary hearing, the appellate court is in just as good a position as the district
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court to consider the merits. Therefore, our standard of review is de novo. Grossman v.
State, 300 Kan. 1058, 1061, 337 P.3d 687 (2014).

Preservation

Crothers claims both his trial counsel and his appellate counsel were ineffective
because they failed to argue the district court incorrectly revoked his probation simply
because he was bound over on newly filed aggravated burglary charges. The State
contends Crothers has not preserved this issue for appeal. The record shows Crothers did
not raise this issue either in his motion or amended motion, or at the preliminary hearing
on his 60-1507 motion. However, in his brief filed for this appeal, Crothers asserts the
motion for reconsideration he filed with the district court raised the issue, which "seems
to be connected to" the argument he made that his trial attorney did not advocate for him.

Crothers' attempt to link these issues is unconvincing. The paragraph Crothers
refers to in the motion to reconsider is simply titled "State v. Inkelaar," and states:

"'To sustain an order of revoking probation, the violation must be established by a
preponderance of evidence, it is established when the evidence demonstrates a fact is
More True than Not True.' The preliminary hearing does not provide substantial evidence
to revoke Crothers [sic] probation."

This paragraph raises a claim Crothers had not previously made. Moreover, Crothers'
notice of appeal did not refer to the denial of his motion for reconsideration, where this
argument surfaced. Crothers appealed from the February 19, 2015 journal entry and its
findings and the dismissal of his 60-1507 motion. More to the point, an argument raised
for the first time in a motion to reconsider does not truly seek reconsideration because the
district court misunderstood a position or misapplied a legal principle; it is instead an
attempt to try another approach when all previous arguments have failed.

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Supreme Court Rule 6.02(a)(5) (2017 Kan. S. Ct. R. 34) requires an appellant to
explain why an issue that was not raised below should be considered for the first time on
appeal. In State v. Williams, 298 Kan. 1075, 1085, 319 P.3d 528 (2014), the Supreme
Court held that litigants who fail to comply with this rule risk a ruling that the issue is
improperly briefed, and the issue will be deemed waived or abandoned. Thereafter, the
Supreme Court held that Rule 6.02(a)(5) would be strictly enforced. State v. Godfrey, 301
Kan. 1041, 1044, 350 P.3d 1068 (2015).

Crothers has not explained why this issue should be considered for the first time
on appeal and his failure to comply with Supreme Court Rule 6.02(a)(5) means his
arguments arguably should be deemed waived or abandoned. Given the clarity of the
issue and the peculiar procedural trail traveled by Crothers' two cases, however, we
address the merits of his claim.

Failure to object to incorrect standard of proof

To prevail on a claim of ineffective assistance of counsel, a criminal defendant
must establish (1) the performance of defense counsel was deficient under the totality of
the circumstances, and (2) prejudice, i.e., that there is a reasonable probability the jury
would have reached a different result absent the deficient performance. Sola-Morales,
300 Kan. at 882 (relying on Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.
2052, 80 L. Ed. 2d 674, reh. denied 467 U.S. 1267 [1984]). Similarly, to establish
ineffective assistance of counsel on appeal, a defendant must show that (1) counsel's
performance, based upon the totality of the circumstances, was deficient in that it fell
below an objective standard of reasonableness, and (2) the defendant was prejudiced to
the extent that there is a reasonable probability that, but for counsel's deficient
performance, the appeal would have been successful. Miller v. State, 298 Kan. 921, 930-
31, 934, 318 P.3d 155 (2014).

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Judicial scrutiny of counsel's performance in a claim of ineffective assistance of
counsel is highly deferential and requires consideration of all the evidence before the
judge. The reviewing court must strongly presume that counsel's conduct fell within the
broad range of reasonable professional assistance. State v. Kelly, 298 Kan. 965, 970, 318
P.3d 987 (2014).

Crothers' ineffectiveness claim is based on the failure of his trial and appellate
counsel to challenge the standard of evidence used to revoke his probation. He alleges the
district court applied a probable cause standard instead of a preponderance of the
evidence standard. In order to revoke probation, a probation violation must be proved by
a preponderance of the evidence. State v. Gumfory, 281 Kan. 1168, 1170, 135 P.3d 1191
(2006). This standard is met when the evidence demonstrates a fact is more probably true
than not true. State v. Inkelaar, 38 Kan. App. 2d 312, 315, 164 P.3d 844 (2007).

A similar set of facts was considered by another panel of this court in State v.
Bailey, No. 100,918, 2009 WL 2506265 (Kan. App. 2009) (unpublished opinion). In
Bailey, the defendant pled no contest to aggravated sexual battery. Pursuant to a plea
agreement, the district court sentenced him to 60 months' imprisonment but placed Bailey
on 60 months' probation. The State later moved to revoke Bailey's probation because he
had been charged with new offenses while on probation. At the hearing, the State asserted
Bailey had been bound over on charges in another division of the district court and had
been charged separately in a Missouri case. The district judge specifically relied on the
finding of probable cause that Bailey had committed new crimes and revoked Bailey's
probation, ordering him to serve his underlying sentence. Bailey appealed and the panel
reversed and remanded stating:

"Because the trial judge did not preside over the preliminary hearing on the new
charges and because the State presented no evidence other than probable cause findings,
it is questionable whether the State carried its burden of proof when the motion to revoke
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Bailey's probation was heard. Moreover, the trial court clearly applied the wrong
standard, probable cause. As a result, we reverse and remand this matter for a new
hearing and for the court to apply the correct standard." 2009 WL 2506265, at *3.

More recently, in State v. Lloyd, 52 Kan. App. 2d 780, 375 P.3d 1013 (2016), this
court directly considered the core question. That panel concluded:

"Here, the district court revoked Lloyd's probation based solely on his admission
to being bound over in another criminal case. The State did not present any evidence of a
probation violation other than its own statements regarding the new charge. The State
was required to prove the probation violation by a preponderance of the evidence, but
only the lesser standard of probable cause was required for Lloyd to be bound over after
his preliminary hearing. Accordingly, the district court's revocation of Lloyd's probation
on the basis of his stipulation was an error of law and, therefore, an abuse of
discretion." [Citations omitted]. 52 Kan. App. 2d at 783-84.

In 11CR322, Crothers acknowledged being bound over on the new charges and
the State elected to proceed with no additional evidence. On that basis alone, Judge
Chambers revoked Crothers' probation, stating: "Based upon the bind over with a
probable cause finding having been made the court will revoke assignment to Community
Corrections."

In 11CR749, Judge McCarville revoked Crothers' probation in May. In August, at
a hearing prior to entering orders for disposition in the case, Judge McCarville
commented on the difference in the evidentiary standards for revocations and preliminary
hearings and committed to review the transcript of Crothers' preliminary hearing to
ensure the evidence presented was sufficient to support a revocation order.

At a hearing two weeks later, Judge McCarville confirmed he had read the
transcript of the preliminary hearing on Crothers' new charges and he concluded:

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"Whether or not a jury will find Mr. Crothers guilty beyond a reasonable doubt based
upon that remains to be seen . . . . Whether or not I believe that it's more likely than not
that he knew he was participating in criminal activity, that's not in doubt. There's no
doubt in my mind."

In 11CR322, as in both Lloyd and Bailey, the district court clearly applied the
wrong standard to revoke Crothers' probation, relying solely on the probable cause
finding. Crothers' counsel was deficient in her representation by failing to object to the
court's error and Crothers' appellate counsel also was ineffective for failing to raise the
argument on appeal.

In contrast, neither trial nor appellate counsel in 11CR749 provided ineffective
assistance of counsel. Although it occurred after he had pronounced revocation of
Crothers' probation in this case, Judge McCarville nonetheless reviewed the preliminary
hearing transcript for the announced purpose of verifying the sufficiency of the evidence
and found the standard had been met. Because the judge ultimately did assess the State's
proof by the correct standard, Crothers' claim fails as it relates to that case.

Since Crothers' counsel did fall short of the expected standard in 11CR322, the
next step is to determine whether Crothers was prejudiced. The failure by counsel to raise
this issue denied Crothers the fundamental right to have the State's evidence of his
alleged violations measured against the correct level of proof. On the appeal of his
revocation in that case, the error was compounded when the issue was not presented to
the panel for its consideration. Our conclusion is the same as that reached by the panels in
Lloyd and Bailey. The order for revocation in 11CR322 must be reversed and the case
remanded for a hearing holding the State to the proper standard of proof.

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We finally note we find no merit to Crothers' principal original claim concerning
the failure to include the preliminary hearing transcript in the prior appellate record.
Although the panel did note that failure, it concluded:

"[T]he trial court was obviously not convinced that any of these circumstances
outweighed Crothers' other actions, which the court found demonstrated that, no matter
how many chances he was given, he was going to continue to violate the conditions of his
probation and commit crimes against persons. These findings are certainly supported by
the record on appeal." Crothers, 2013 WL 3868047, at *3.

In view of the panel's evaluation of all the circumstances and its conclusion that the
revocations were not an abuse of discretion, we find no basis to conclude the absence of
the transcript was a critical factor.

Affirmed in part and reversed in part.