Evarts v. State

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NOT DESIGNATED FOR PUBLICATION

No. 117,004

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

NEIL W. EVARTS,
Appellant,

v.

STATE OF KANSAS,
Appellee.

MEMORANDUM OPINION


Appeal from Harvey District Court; RICHARD B. WALKER, judge. Opinion filed June 8, 2018.
Affirmed.

Gerald E. Wells, of Jerry Wells Attorney-at-Law, of Lawrence, for appellant.

David E. Yoder, county attorney, and Derek Schmidt, attorney general, for appellee.

Before ATCHESON, P.J., PIERRON and STANDRIDGE, JJ.

PER CURIAM: Neil W. Evarts appeals the summary dismissal of his motion
pursuant to K.S.A. 60-1507 alleging ineffective assistance of counsel. Although Evarts
had cases in Harvey and McPherson Counties at the same time, this is an appeal of only
the Harvey County case, which was affected by the McPherson County case for
sentencing purposes.

An investigation into a March 6, 1995 kidnapping and rape in Harvey County had
been fruitless. On September 1, 1995, the McPherson police interviewed Evarts, a
Hesston resident, about a local aggravated kidnapping and attempted rape case. The
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Hesston police chief notified the Harvey County Sheriff's Office of the similarities
between the two incidents. McPherson police arrested Evarts and on September 5, 1995,
McPherson County charged him with aggravated kidnapping and attempted rape.
Subsequently, Harvey County charged him with aggravated kidnapping and rape in
Harvey County on September 22, 1995.

Trying to resolve the Harvey County charges first, Evarts posted bond in
McPherson County and was transported to Harvey County. On December 26, 1995,
Evarts entered into a plea agreement, agreeing to plead guilty to both counts in exchange
for the State recommending concurrent sentences. However, the agreement was
contingent on the State allowing him to be sentenced in Harvey County before
McPherson County. Because the State could not guarantee sentencing in Harvey County
first, Evarts rejected the agreement.

The State dismissed the charges in Harvey County without prejudice to allow for
prosecution in McPherson County first. The State then refiled charges in Harvey County
on February 8, 1996. Following the conclusion of the McPherson County case, Evarts
was arrested on the Harvey County charges on February 12, 1996. The following facts
pertain to the Harvey County case. References to the McPherson case were arguments
made to influence the Harvey County sentence.

On May 3, 1996, Evarts entered into a plea agreement in which he agreed to plead
guilty or no contest to both counts as charged. The State agreed to recommend his
sentences fall within the appropriate grid boxes under the Kansas Sentencing Guidelines
Act and that the sentences run concurrent with each other and concurrent with the
McPherson County sentence. The agreement further stated that if Evarts requested either
a dispositional or durational departure from the presumptive sentences, the State would
no longer be bound to the recommendations in the agreement and could request an
exceptional departure and for the sentences to run consecutively.
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As a result of the plea agreement, Evarts pled no contest to aggravated kidnapping
and guilty to rape. The State presented the probable cause affidavit to provide the factual
basis for the charges. Although he contested some of the statements in the affidavit,
Evarts stipulated that if the case went to trial, that evidence would have been presented.
Regarding the contested statements, and after speaking with the State, defense counsel
stated:

"And I understand there's a series of cases, and I can't cite one right now, the Court may
know the citations, that rape is the underlying element or can be the underlying element
of aggravated kidnapping. Now, [Evart's] just pled no contest to aggravated kidnapping
but guilty to rape, so I would think even without this reference, you know, the Court
could still make a factual basis."

The district court agreed to use the affidavit for the purposes of the factual basis and not
for sentencing. The court found that Evarts had made the pleas knowingly and
intelligently, the factual basis was provided in the affidavit, and it accepted the pleas. The
court found Evarts guilty of both counts.

Contrary to the plea agreement, Evarts submitted presentence motions requesting a
dispositional departure to probation, contesting his criminal history score, and requesting
a durational departure. He claimed the State had manipulated the system by dismissing
the Harvey County complaint to allow McPherson County to try its charges first,
therefore bolstering his criminal history score. The State replied with a motion for a
durational departure on the sentence and postrelease supervision. The State contended
that Evarts' conduct manifested excessive cruelty to the victim.

On August 7, 1996, the district court sentenced Evarts to 366 months of
incarceration for aggravated kidnapping and 73 months for rape. The district court
extended the period of postrelease supervision to 60 months because his crimes were
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sexually motivated. The sentences were to be served consecutive to each other and
consecutive to the sentence from McPherson County.

Evarts timely appealed. State v. Evarts, No. 77,526, 1998 WL 67787 (Kan. App.)
(unpublished opinion). He contended the State had manipulated his criminal history score
by trying the McPherson County case first. However, the Court of Appeals found that
Evarts had attempted to manipulate the system by bonding out of McPherson County in
an attempt to resolve the charges in Harvey County first. The court likened such
manipulation to invited error. The Court of Appeals affirmed Evarts' convictions and
sentences. No. 77,526, slip op. at 2.

On June 22, 2010, Evarts filed motions to correct an illegal sentence and to
withdraw his plea. He contended that because his sentence was based on his convictions
in McPherson County and his attempted rape conviction and sentence from McPherson
County had been reversed and vacated, see State v. Evarts, No. 77,078, 1998 WL 311064
(Kan. App.) (unpublished opinion), his Harvey County sentence became illegal.
McPherson County had already resentenced him to one count of kidnapping in 1999. He
requested resentencing in the Harvey County case with a reduced criminal history score,
from B to D.

Following the evidentiary hearing, the district court agreed that Evarts' sentence
was illegal and resentenced him to the aggravated sentence of 167 months of
incarceration with 60 months of postrelease supervision for aggravated kidnapping,
giving Evarts a total sentence of incarceration of 240 months for the Harvey County
case—including the prior 73-month sentence for rape. Because the motion was granted
and he was resentenced, it is not an issue and we will only address the motion to
withdraw his plea.

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In his motion to withdraw his plea, Evarts claimed the State had violated double
jeopardy and K.S.A. 21-3107 (Furse 1995) by charging him with rape and aggravated
kidnapping because the rape was the only bodily harm suffered by the victim. He argues
that defense counsel Donald Snapp's assistance was ineffective because he did not advise
Evarts that the State could not charge him with both crimes. He claimed that if he had
known the State could not charge him as such, he would not have accepted the plea.
Therefore, because of defense counsel's ineffectiveness, he had entered the plea
unknowingly.

On July 2, 2010, the district court sent a letter to the State and to Michael P.
Whalen explaining that the motions warranted an evidentiary hearing and appointing
Whalen to represent Evarts. On December 30, 2010, Whalen submitted a memorandum
in support of the pro se motions Evarts filed. In support of the motion to withdraw the
plea, Whalen cited State v. Garcia, 272 Kan. 140, 32 P.3d 188 (2001).

The district court heard arguments on January 26, 2011. Whalen argued that
although Garcia was decided five years after Evarts' convictions, it was based on the test
in State v. Fike, 243 Kan. 365, 757 P.2d 724 (1988), which was used in 1996 to analyze
whether multiplicity existed under K.S.A. 21-3107(2)(d) (Furse 1995). He asserted that
the aggravated kidnapping and rape were multiplicitous because the underlying bodily
harm required for the aggravated kidnapping charge was the rape, as it was the only
bodily harm done to the victim. Whalen noted that Evarts never would have knowingly
pled to an illegal plea agreement. The State countered by stating that, at the time of
Evarts convictions, there were several cases applying the Fike test for multiplicity in
which the courts did not find rape and aggravated kidnapping to be multiplicitous.

Snapp testified he did not believe the charges were multiplicitous because of the
separation of time and location between the commission of the offenses. Snapp conceded
he did not speak with Evarts about the possibility of the charges being multiplicitous
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because, in his own analysis of law at that time, the charges were not. He further testified
that Evarts was focused on a plea agreement in which the State would agree to concurrent
sentences. Evarts did not want to put the victim through a trial and he thought that taking
accountability for his actions was the right thing to do.

During closing arguments, Whalen agreed with the district court that manifest
injustice was the correct standard of review. He further asserted that Evarts could not
have been sentenced to both charges as they were; either the rape charge needed to be
dismissed or the aggravated kidnapping had to be reduced to kidnapping. The district
court noted the existence of cases in which pleading to a crime waives most objections to
the charges or other procedural issues. Whalen maintained that an illegal sentence can be
challenged at any time and he believed multiplicity could as well because a court lacks
jurisdiction to impose a sentence when charges are multiplicitous. The State asserted that
Evarts had failed to show any manifest injustice. It contended that multiplicity was not a
conviction issue, but a sentencing issue. Therefore, withdrawing a plea would not be
permissible even if the charges were multiplicitous. The State further addressed the fact
that Garcia dealt with a 1998 amendment to K.S.A. 21-3107 and so was not applicable to
Evarts' 1996 conviction. The State contended that in 1996, for offenses to be
multiplicitous, one crime had to be necessarily proved to establish the other. The court
took the issue under advisement.

On February 10, 2011, Whalen submitted a second memorandum in support of the
motions. He asserted that Snapp had been ineffective as trial counsel because he
misunderstood the charges and so could not have appropriately advised Evarts about the
multiplicity issue. He claimed the separation of events did not matter because aggravated
kidnapping required proof of intent to inflict and the actual infliction of bodily harm.
Therefore, rape necessarily had to be proved for aggravated kidnapping to be proved.
Whalen argued the only factual basis established for aggravated kidnapping was that the
rape was the only bodily harm. Whalen further stated that after the hearing, he looked up
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caselaw that supported the district court's contention that a defendant who enters a plea
waives the ability to challenge multiplicity.

On October 11, 2011, the district court issued its decision denying Evarts' motion
to withdraw his plea. The court considered Snapp's testimony that he did not believe a
multiplicity argument would have prevailed, Evarts wanted to avoid trial, and Evarts'
main concern was concurrent sentences. The court analyzed several cases from the 1980's
and 1990's regarding multiplicity to determine that in 1995 the law of multiplicity was
evolving. The court stated that State v. Blackburn, 251 Kan. 787, 840 P.2d 497 (1992),
was the most recent multiplicity case preceding Evarts' charges. The Blackburn court
noted that aggravated kidnapping and rape did not share the same elements, each required
proof of fact not required in the other, and so rape was not a lesser included offense of
aggravated kidnapping. 251 Kan. 787, Syl. ¶ 3. In Blackburn, the jury was instructed that
the bodily harm required to prove aggravated kidnapping included, but was not limited
to, rape. Because the jury was not required to find that the rape was the bodily harm
inflicted as evidence of other bodily harm had been presented. Therefore, no multiplicity
existed. 251 Kan. at 796.

The district court determined that Snapp could have used Blackburn as evidence
that the charges were not multiplicitous. Further, in State v. Edwards, 281 Kan. 1334,
1341, 135 P.3d 1251 (2006), the Kansas Supreme Court held that if a defendant pleads
guilty, he or she generally waives the right to later claim double jeopardy. A guilty plea
waives nonjurisdictional defects, including double jeopardy and multiplicity. The court
found that Snapp had competently represented Evarts and no manifest injustice existed.

Evarts appealed. After the appellate defenders office withdrew from the case,
Whalen was appointed as appellate counsel. The Court of Appeals summarily affirmed.
State v. Evarts, No. 107,730, 2013 WL 2919426, at *1 (Kan. App. 2013) (unpublished
opinion). The Evarts court found that Snapp could have relied on precedent at the time of
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Evarts' conviction that held that aggravated kidnapping and rape were not multiplicitous.
2013 WL 2919426, at *1. The court cited State v. Schoonover, 281 Kan. 453, 492-93, 133
P.3d 48 (2006), which noted that "doctrinal inconsistency and confusion that abound[ed]
in multiplicity cases" resulted in a long line of divergent cases making it difficult to
determine when the doctrine applied.

After Evarts first collateral challenge failed, he filed a motion for habeas corpus
under K.S.A. 60-1507 on October 24, 2014. He raised four issues: (1) the trial court erred
by denying his motion to withdraw his plea; (2) his convictions violated the Double
Jeopardy Clauses of the United States and Kansas Constitutions; (3) his rape conviction
was multiplicitous to his aggravated kidnapping conviction; and (4) both Snapp and
Whalen provided ineffective assistance of counsel, violating his Sixth Amendment right
to counsel. The district court found the first three issues were repeated arguments that
Evarts had already made in his motion to withdraw his plea. The court had denied those
issues previously raised and the Court of Appeals had affirmed. Regarding Everts' last
issue, the court noted that it and the Court of Appeals had already found that Snapp had
provided effective counsel. As far as Whalen's effectiveness, the court found that Whalen
had vigorously pursued the issues. The court summarily dismissed Evarts' motion. Evarts
appeals.

We must determine whether the district court erred by summarily dismissing
Evarts' motion.

When the district court summarily denies a K.S.A. 60-1507 motion, an appellate
court conducts a de novo review to determine whether the motion, files, and records of
the case conclusively establish that the movant is not entitled to relief. Sola-Morales v.
State, 300 Kan. 875, 881, 335 P.3d 1162 (2014).

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Evarts contends the district court erred in summarily dismissing his motion
because Whalen's performance fell below constitutional standards of assistance of
counsel. He argues that Whalen (1) failed to argue that the proper standard for his motion
to withdraw his plea was "for good cause," as a presentence motion, not "manifest
injustice," as a postsentence motion; and (2) failed to argue that Blackburn controlled the
issue of multiplicity in his case.

Ineffective Assistance of Counsel

To prevail on ineffective assistance of counsel, Evarts must show that Whalen's
performance was deficient under the totality of circumstances and he was prejudiced by
Whalen's deficient performance. See 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]).

Although Evarts' aim in this appeal is to challenge Whalen's performance, like his
prior appeal, the basis for claiming ineffective assistance of counsel returns to the issue of
multiplicity of charges. In denying Everts' motion to withdraw his plea, the district court
cited to Edwards, 281 Kan. at 1338-39, and In re Habeas Corpus Application of Coulter,
18 Kan. App. 2d 795, 860 P.2d 51 (1993), in which Kansas courts have held that an
individual who pleads guilty generally waives the right to claim double jeopardy. The
district court concluded that Evarts' guilty plea waived nonjurisdictional defect including
double jeopardy and multiplicity. Further, Whalen conceded in his supplementary
briefing that caselaw established that a plea waives a multiplicity challenge. Though the
argument here is for ineffective assistance of counsel, Evarts cannot establish prejudice
because the foundation of his ineffectiveness argument is moot.

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Failure to Argue for Consideration as a Presentence Motion

Evarts claims that because his motion to withdraw his plea was submitted before
he was resentenced, it should have been considered a presentence motion. Under K.S.A.
2017 Supp. 22-3210(d)(1), the district court may permit a defendant to withdraw a guilty
or no contest plea before sentencing with a showing of good cause. On the other hand, for
a court to set aside judgment and permit withdrawal of a plea after sentencing, the
defendant must establish manifest injustice. K.S.A. 2017 Supp. 22-3210(d)(2). Evarts
was originally sentenced on August 7, 1996. He claims that because his motion was filed
on June 22, 2010, before he was resentenced, it is a presentence motion.

However, Evarts merely asserts that because the district court vacated his prior
sentence, his prior conviction was no longer a final judgment, and he could then raise any
issues. However, he provides no legal precedent to support his conclusion. Failure to
support a point with pertinent authority or show why it is sound despite a lack of
supporting authority or in the face of contrary authority is akin to failing to brief the
issue. State v. Murray, 302 Kan. 478, 486, 353 P.3d 1158 (2015). An issue not briefed is
deemed waived or abandoned. State v. Williams, 303 Kan. 750, 758, 368 P.3d 1065
(2016).

Even if the district court had considered the motion under the reduced "good
cause" standard, the court found the issues raised lacked merit and Snapp had
competently represented Evarts, providing several cases to support Snapp's belief that the
charges were not multiplicitous. Because none of his arguments prevailed on their own
merits, they would fail under either standard. Whalen's performance cannot be considered
deficient for failing to argue issues that have no legal basis. Whalen informed the court of
the appropriate standard.

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Failure to Apply Blackburn

Evarts further contends that Whalen was ineffective because he did not argue that
the district court should have applied Blackburn in determining whether multiplicity
existed. He asserts that if Whalen had used Blackburn, he would not have been convicted
of aggravated kidnapping and rape because the court would have determined that the
offenses were multiplicitous. He claims that if Whalen had argued Blackburn, the
outcome would have been different and so he was prejudiced.

Whalen did not address Blackburn, but the district court did. The court
distinguished Evarts' case from Blackburn and concluded that Snapp could have used
Blackburn as evidence that the Court of Appeals would have found the charges were not
multiplicitous because the Supreme Court had determined that rape is not a lesser
included offense of aggravated kidnapping, stating: "Aggravated kidnapping and rape do
not share the same elements. Each offense requires proof of a fact not required in proving
the other." 251 Kan. 787, Syl. ¶3. This finding is in line with the later Schoonover
decision adopting the same-elements test. Evarts has appealed the issue of multiplicity
and this court found that Snapp was effective even though he never addressed
multiplicity with Evarts because the law of multiplicity was evolving at that time. Evarts,
2013 WL 2919426, at *1. The Court of Appeals affirmed the district court's
determination, stating:

"Counsel could have reasonably relied on Kansas Supreme Court precedent at the time
that held charges of aggravated kidnapping and rape were not multiplicitous. See State v.
Schoonover, 281 Kan. 453, 492-93, 133 P.3d 48 (2006) (noting the 'doctrinal
inconsistency and confusion that abound[ed] in multiplicity cases,' resulting in a long line
of divergent cases making it difficult to determine when the doctrine applies)." 2013 WL
2919426, at *1.

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The law of multiplicity was uncertain at the time of Everts' convictions. By the
time he appealed multiplicity, the Kansas Supreme Court had resolved the confusion in
Schoonover. The Court of Appeals was bound to the holdings in Schoonover, which
adopted the same-elements test to determine multiplicity. 281 Kan. at 495. Even if
Whalen had argued Blackburn, the analysis by the Court of Appeals would have
remained the same.

Evarts has not shown he was prejudiced by Whalen's failure to apply Blackburn.
Because the second prong of the test of ineffectiveness of counsel is not satisfied, we do
not need to analyze the first prong.

Affirmed.