Denmark-Wagner v. State

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NOT DESIGNATED FOR PUBLICATION

No. 116,516

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

CHARLES DENMARK-WAGNER,
Appellant,

v.

STATE OF KANSAS,
Appellee.

MEMORANDUM OPINION


Appeal from Pratt District Court; FRANCIS E. MEISENHEIMER, judge. Opinion filed September
15, 2017. Affirmed.

Clayton J. Perkins, of Kansas Appellate Defender Office, for appellant.

Clay A. Kuhns and Gaten T. Wood, special prosecutors, and Derek Schmidt, attorney general, for
appellee.

Before MALONE, P.J., PIERRON and BRUNS, JJ.

PER CURIAM: Charles Denmark-Wagner filed a K.S.A. 60-1507 motion and
argued his defense counsel was ineffective for (1) failure to move for suppression of
evidence; (2) failure to object and to argue involuntariness of petitioner's plea based on
the influence of drugs; (3) failure to investigate a defense or evidence and to properly
impeach his codefendant; and (4) his plea was involuntary and coerced, and he was
misled by defense counsel. After an evidentiary hearing on whether he was misled by
defense counsel, the district court denied his motion.

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Denmark-Wagner appeals and argues the district court erred when it summarily
denied the claims raised in his K.S.A. 60-1507 motion, and the district court's conclusion
following the evidentiary hearing was not supported by substantial competent evidence.
However, Denmark-Wagner failed to set forth any evidence to demonstrate he was
entitled to an evidentiary hearing. Further, the district court's decision to deny Denmark-
Wagner's motion was based on substantial competent evidence and was supported by the
court's legal conclusion that his counsel was not ineffective.

The background facts were set forth by the Kansas Supreme Court in State v.
Denmark-Wagner, 292 Kan. 870, 258 P.3d 960 (2011). In November 2008, Alesia
Dorris-Graham was murdered in her home in Pratt County. Denmark-Wagner and
codefendant Daniel Riendeau had gone to Dorris-Graham's home to buy prescription
drugs from her. When she refused to sell the drugs to them, they took the drugs by force,
and Riendeau stabbed her to death.

Denmark-Wagner was charged with four counts: Count 1—felony first degree
murder; Count 2—aggravated robbery; Count 3—aggravated burglary; Count 4—
attempted possession of narcotic drugs. Denmark-Wagner entered into a written plea
agreement on February 25, 2009. He pled guilty to Count 1 and the State dismissed
Counts 2, 3, and 4. The plea agreement stated that he understood that "'the mandatory
sentence for Count [1] is life in prison and that I will be sentenced to life in prison.'" 292
Kan. at 872. Denmark-Wagner acknowledged that "'I understand that if I enter a plea of
guilty this court must impose a life sentence against me.'" 292 Kan. at 872. He also
signed the following statement:

"'After fully discussing my potential defenses to the charges in this case, the legal options
available to me in these proceedings, and the above-mentioned matters with my attorney,
I advise this court that I understand it is my decision, alone, whether to accept or reject
the plea agreement and whether to enter a plea of guilty to the charge(s) herein. My
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decision to accept the plea agreement and change my plea is completely voluntary
without anyone having threatened me or promised me anything of benefit, and it is
without duress or coercion other than that which the plea agreement provides.'" 292 Kan.
at 872.

In the plea agreement, Denmark-Wagner stated the only drug or medication he had
taken during the previous 48 hours was trazadone and affirmed the drug did not impair
his mental faculties or judgment. At the plea hearing, he stated he understood his rights.
When the district court asked him if he was entering the plea because he was in fact
guilty of the crime, Denmark-Wagner asked if he could speak with his counsel. After he
spoke with counsel, he told the court he was entering the plea because he was in fact
guilty of the crime.

On March 9, 2009, before sentencing, Denmark-Wagner moved to withdraw his
plea. He argued his plea had not been entered into voluntarily because he entered the plea
as a result of pressure by his family and the plea had not been entered into intelligently
because he did not understand the possible sentence that he would receive.

At the hearing on his motion, Denmark-Wagner testified that his mother and sister
pressured him to accept the plea. He also testified he did not understand the possible
sentence and believed he would be released from prison in 20 years, not that he would be
eligible for parole in 20 years. The district court stated the suggestion that his family
pressured him to accept a plea because they could hug him sooner did not constitute
grounds to withdraw the plea. The court further stated the plea agreement nowhere
suggested Denmark-Wagner would not serve more than 20 years of a life sentence. The
court denied the motion and sentenced Denmark-Wagner to life in prison with a
minimum sentence of 20 years. Denmark-Wagner appealed the denial of his motion to
withdraw his guilty plea and challenged his sentence to lifetime postrelease and that he
register as a violent offender for life.
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The Denmark-Wagner court determined that based on the record, the district court
did not abuse its discretion when it found Denmark-Wagner understood his plea and
sentence and, therefore, refused to allow the withdrawal of his plea as unknowingly or
unintelligently made. 292 Kan. at 880. In addition, the court found Denmark-Wagner
should have been sentenced to register as an offender for a period of 10 years, not life.
292 Kan. at 884. It vacated the sentence and remanded for resentencing to the correct
offender registration period. 292 Kan. at 884.

Denmark-Wagner filed his pro se K.S.A. 60-1507 petition on February 3, 2012.
He argued his defense counsel was ineffective for (1) failure to move for suppression of
evidence; (2) failure to object and to argue involuntariness of petitioner's plea based on
the influence of drugs; (3) failure to investigate a defense or evidence and to properly
impeach his codefendant; and (4) his plea was involuntary and coerced, and he was
misled by defense counsel. Then, on May 23, 2012, he filed an amended petition with the
assistance of counsel. In this petition, Denmark-Wagner argued he was on trazodone at
the time of his arraignment and did not understand the consequences of pleading to the
charges. He also stated his plea was not voluntary because he was coerced and his
counsel misled him. Further, he claimed he was threatened by his codefendant.

An evidentiary hearing was held on October 17, 2013. At the hearing, the district
court stated it was denying all of Denmark-Wagner's claims, with the exception of the
claim of ineffective assistance of counsel based on being misled regarding the possible
penalties of the case. As to the other claims, the court stated there was nothing in the
memorandum which indicated there was any specific basis in which suppression of the
evidence would have been reasonable or successful. As to the claim regarding ineffective
assistance of counsel for failure to object and argue the voluntariness of his plea, the
court stated Denmark-Wagner gave a statement in the original case which said his
codefendant was at fault, which is the exact opposite reaction an individual would have if
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he was subject to coercion or threats. For the ineffective assistance of counsel claim for
failure to investigate a defense, the court stated the claim was based only on bald
allegations.

The district court filed its memorandum opinion on July 7, 2016. The court stated
it granted Denmark-Wagner's request for an evidentiary hearing on whether counsel
misled or misadvised him as to the possible penalties he faced after trial or after his guilty
plea. At trial, it was clear that both Denmark-Wagner and his trial counsel agreed that he
was never charged with capital murder. The court also stated Denmark-Wagner's
credibility was impaired by his inconsistent testimony regarding the plea bargaining.
Further, Denmark-Wagner signed the acknowledgement of rights and entry of plea,
which indicated the mandatory sentence for Count 1 was life in prison and that he would
be sentenced to life in prison. The court stated his testimony stating he thought he would
get the death penalty was not believable. The court found no credible evidence to support
any of the claims.

Denmark-Wagner timely appealed. On appeal, he argues the district court erred
when it summarily denied the claims raised in his K.S.A. 60-1507 motion and the district
court's conclusion following the evidentiary hearing was not supported by substantial
competent evidence.

Did the District Court Err When It Summarily Dismissed Claims in the K.S.A. 60-1507
Motion?

In order to be granted relief under K.S.A. 60-1507, Denmark-Wagner must
establish by a preponderance of the evidence one of the following: (1) "the judgment was
rendered without jurisdiction"; (2) "the sentence imposed was not authorized by law or is
otherwise open to collateral attack"; or (3) there has been such a denial or infringement of
the constitutional rights of the prisoner as to render the judgment vulnerable to collateral
attack." K.S.A. 60-1507(b).
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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. [Citations 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 uses. 300
Kan. at 881. When the district court summarily denies a K.S.A. 60-1507 motion, an
appellate court conducts de novo review to determine whether the motion, files, and
records of the case conclusively establish that the movant is not entitled to relief. 300
Kan. at 881.

To avoid a summary denial of a K.S.A. 60-1507 motion, Denmark-Wagner bears
the burden of establishing that he is entitled to an evidentiary hearing. This burden
requires that Denmark-Wagner's assertions be more than conclusory statements. He must
either set forth an evidentiary basis to support the assertions or the basis must be evident
from the record. 300 Kan. at 881 (quoting Holmes v. State, 292 Kan. 271, 274, 252 P.3d
573 [2011]).

Here, Denmark-Wagner first argues he presented a "colorable claim for relief due
to the ineffective assistance of his trial counsel" regarding the impact trazodone had on
him during the plea negotiations and at the plea hearing. He signed the plea agreement,
which stated that his decision to accept the plea agreement was voluntary. Further, in the
plea agreement he stated the only drug he had taken in the previous 48 hours was
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trazadone and affirmed the drug did not impair his mental faculties or judgment. Based
on his signing this statement, and his statement in court that he understood his rights, his
counsel had no way of knowing he experienced any negative effects from the drug. Based
on the evidence and Denmark-Wagner's failure to set forth an evidentiary basis to support
his claim that he suffered negative effects from trazodone, the district court was correct to
summarily deny this claim.

Denmark-Wagner then argues he entered his guilty plea because he received
threats from his codefendant and his counsel was ineffective, as she was aware of these
threats but still allowed him to enter a guilty plea. However, Denmark-Wagner gave a
statement in the case which said his codefendant was at fault. As the district court
surmised, this is the exact opposite reaction an individual would have if he was subject to
coercion or threats, as Denmark-Wagner acted in his own interest. While Denmark-
Wagner states these threats were made, he provides no evidence that he was under
coercion or that counsel knew of these threats. Because Denmark-Wagner provided only
a conclusory statement that he was threatened and failed to bring forth any evidence, the
district court was correct to summarily deny this claim.

Denmark-Wagner's final ineffective assistance of counsel claim that was
summarily denied alleges his counsel failed to complete a thorough investigation of his
case. He states his counsel improperly waived his right to a preliminary hearing, failed to
investigate the impact of the threats made by his codefendant, and failed to investigate
the effects of trazodone. Denmark-Wagner fails to include any evidence that would have
been discovered if counsel had completed a more thorough investigation. He merely
states an investigation would have revealed facts discrediting conflicting statements of
his codefendant and would have shown he was not involved in the crime.

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Further, Denmark-Wagner waived his right to a preliminary hearing after a
discussion on the record. Again, because Denmark-Wagner did not set forth evidence to
support his assertions, the district court was correct to summarily deny this claim.

After reviewing the records in this case, it is clear that Denmark-Wagner failed to
show that he is entitled to an evidentiary hearing on the above issues. Because he failed
to overcome his burden, the district court is affirmed.

Were the District Court's Conclusions Following the Evidentiary Hearing Supported by
Substantial Competent Evidence?

After a full evidentiary hearing on a K.S.A. 60-1507 motion, the district court is
required to issue findings of fact and conclusions of law regarding all issues presented at
the hearing. Supreme Court Rule 183(j) (2017 Kan. S. Ct. R. 222). An appellate court
reviews the court's findings of fact to determine whether they are supported by substantial
competent evidence and whether they are sufficient to support the conclusions of law.
Appellate review of the court's conclusions of law is de novo. State v. Adams, 297 Kan.
665, 669, 304 P.3d 311 (2013).

A claim alleging ineffective assistance of counsel presents a mixed question of law
and fact. When an evidentiary hearing is conducted on these claims, the appellate court
determines whether the district court findings are supported by substantial competent
evidence and whether the factual findings support the court's legal conclusions. A de
novo standard is applied to the district court's conclusions of law. Fuller v. State, 303
Kan. 478, 485, 363 P.3d 373 (2015). Substantial competent evidence is evidence that
possesses both relevance and substance and that furnishes a basis of fact from which the
issues reasonably can be resolved. State v. Brown, 300 Kan. 542, 546, 331 P.3d 781
(2014).

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Denmark-Wagner argues the district court's denial of his claims—his counsel was
ineffective because she misinformed him about the death penalty and he was inaccurately
told that by accepting the plea agreement he would be released from prison after 20
years—was not supported by substantial competent evidence.

To prevail on a claim of ineffective assistance of counsel, a criminal defendant
must establish (1) that 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]).

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 or jury. 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). To establish prejudice, the defendant must show a reasonable
probability that, but for counsel's deficient performance, the outcome of the proceeding
would have been different, with a reasonable probability meaning a probability sufficient
to undermine confidence in the outcome. State v. Sprague, 303 Kan. 418, 426, 362 P.3d
828 (2015).

If counsel has made a strategic decision after making a thorough investigation of
the law and the facts relevant to the realistically available options, then counsel's decision
is virtually unchallengeable. Strategic decisions made after a less than comprehensive
investigation are reasonable exactly to the extent a reasonable professional judgment
supports the limitations on the investigation. State v. Cheatham, 296 Kan. 417, 437, 292
P.3d 318 (2013) (citing Strickland, 466 U.S. at 690-91).

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At the evidentiary hearing, Denmark-Wagner stated several times that his counsel
advised him he would receive the death penalty if he went to trial. He stated he would not
have taken a plea if he had known the death penalty was not on the table. He was
allegedly under the impression that he would get out of prison after 20 years. However, at
the plea hearing the district court read the penalty for murder which was life in prison,
and Denmark-Wagner stated he understood the consequences. He had received a letter
from his counsel stating that the controlling sentence for murder was life in prison, and he
would be required to serve 20 years before he would be eligible for parole. His counsel
testified at the evidentiary hearing and stated the death penalty was never on the table
because Denmark-Wagner was not charged with capital murder.

The record demonstrates the inconsistency in Denmark-Wagner's testimony and
the evidence presented. The record on appeal does not support his contention that counsel
was ineffective based on his being misled regarding the possible penalties of the case.
Under the totality of the circumstances, he did not demonstrate that his counsel was
deficient in her representation. Therefore, he cannot establish prejudice. See Sola-
Morales, 300 Kan. at 882. The district court's decision to deny Denmark-Wagner's
K.S.A. 60-1507 motion was based on substantial competent evidence and supported the
court's legal conclusion that his counsel was not ineffective. The district court is affirmed.

Affirmed.