Glover v. State

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NOT DESIGNATED FOR PUBLICATION

No. 115,053

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

MALCOM K. GLOVER,
Appellant,

v.

STATE OF KANSAS,
Appellee.

MEMORANDUM OPINION


Appeal from Douglas District Court; PEGGY C. KITTEL, judge. Opinion filed December 23, 2016.
Affirmed.

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

Kate Duncan Butler, assistant district attorney, Charles E. Branson, district attorney, and Derek
Schmidt, attorney general, for appellee.

Before POWELL, P.J., PIERRON and HILL, JJ.

Per Curiam: Malcolm K. Glover was convicted of one count of aggravated robbery
and one count of aggravated assault. The district court sentenced him to 233 months'
imprisonment. Glover filed a K.S.A. 60-1507 alleging his trial counsel provided ineffective
assistance by presenting a guilt-based defense against his wishes. The district court
summarily denied his motion, and Glover appeals.

On February 29, 2008, a jury convicted Glover of aggravated robbery and aggravated
assault. The Kansas Court of Appeals affirmed his convictions in State v. Glover, No.
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101,418, 2010 WL 1078442 (Kan. App. 2010) (unpublished opinion). The following facts
are taken directly from the Court of Appeals opinion:

"When Chad Hooks and Glover entered the apartment of Ryan Paulson and James
Schoof on September 15, 2007, Glover struck Schoof in the face with a pistol. Glover went to
the back of the apartment, found Paulson in the bathroom, and struck Paulson's head
repeatedly with his pistol. Glover and Hook demanded marijuana.
"Paulson took Hooks and Glover to his bedroom and showed them where he kept the
marijuana. After taking the marijuana and Schoof's Xbox 360, Hooks and Glover fled the
apartment. Paulson noticed that a Bible containing $300 was missing.
"Although Paulson had a bleeding head wound, he removed marijuana seeds from the
apartment before Schoof drove him to the hospital. While at the hospital, Paulson told police
that Hooks and Glover assaulted him and took approximately $300 in cash.
"About 3 weeks prior to trial, Paulson contacted the police and admitted that Glover,
in addition to taking $300 in cash, stole marijuana valued at nearly $2500.
"The State charged Glover with aggravated burglary, aggravated robbery of Schoof,
and aggravated robbery of Paulson. The aggravated robbery charge of Paulson, Count 1,
stated:
'That on or about the 15th day of September, 2007, in Douglas County,
Kansas, one Malcolm K Glover, did then and there unlawfully and
feloniously take property, to wit: U.S. Currency, from the person or presence
of Ryan C Paulson by threat of bodily harm or by force while armed with a
dangerous weapon, to wit: pistol, all in violation of K.S.A. 21–3427.
(Aggravated Robbery, Non Drug/Level 3/Person/Felony).' (Emphasis added.)
"At trial, Paulson admitted that he initially told the police Glover only took money
from his apartment; however, he later changed his story and admitted that Glover also took
the marijuana. Paulson testified that he originally lied about the marijuana because he was on
probation and feared the State would prosecute him for selling marijuana.
"At the close of the State's case, the State orally moved to amend Count 1 to add
marijuana to the property that was stolen. The State argued that the amendment merely
conformed to the evidence presented at trial. Glover objected to the amendment, claiming it
would prejudice his defense. The district court allowed the amendment, holding that the
amended information merely conformed to the evidence presented at trial and did not
prejudice the defense.
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"The jury convicted Glover of aggravated robbery [of Paulson] and aggravated
assault [of Schoof]. Prior to sentencing, Glover filed a motion for a new trial, asserting that
the district court prejudiced his substantial rights by allowing the State to amend the
information. In Glover's opening statement, he denied taking the money but admitted taking
marijuana from Paulson under circumstances that did not constitute robbery. Thus, Glover
argued that his defense and cross-examination of the State's witnesses centered on building
reasonable doubt concerning whether he took the money, not whether he took the marijuana.
. . . .
"The district court denied Glover's motion, stating that the amended information
conformed to the evidence, was not a surprise, and did not prejudice Glover.
"On April 17, 2008, the district court dismissed the aggravated assault conviction at
the State's request and sentenced Glover to a standard term of 233 months' incarceration, with
36 months' postrelease supervision for aggravated robbery." Glover, 2010 WL 1078442, at
*1-2.

On June 1, 2011, Glover filed a K.S.A. 60-1507 motion along with a memorandum in
support of his motion. He alleged his trial attorney, James George, provided ineffective
assistance of counsel by asserting a guilt-based defense against Glover's wishes. According
to the motion, George's defense theory had been "the false assertion that [Glover] was guilty
of a lesser culpability by taking only money, not drugs, from Paulson." Glover argued the
Kansas Supreme Court's holding in State v. Carter, 270 Kan. 426, Syl. ¶ 4, 14 P.3d 1138
(2000), required that the district court presume prejudice and reverse his conviction.

On June 1, 2012, the State filed a motion to dismiss Glover's motion. The State
argued he was not entitled relief because he had not voiced his dissatisfaction with counsel at
any time on the record and the record did not provide any other basis for relief. Furthermore,
the State argued, George had not presented a guilt-based defense at trial. Glover filed a
response and argued that Glover was not required to voice his dissatisfaction on the record
and that George's admission that Glover was present at the scene of the crime constituted a
guilt-based defense.

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On March 19, 2014, the district court summarily dismissed Glover's motion. The
court found that Glover bore the burden of providing something in the record that supported
his claim, but he had failed to do so. Glover had not expressed his dissatisfaction with
George either during trial or when the court appointed new counsel to argue his motion for a
new trial. The court found George had not presented a guilt-based defense at trial, because
his focus at trial had been on damaging Paulson's credibility. The court also noted that at the
motion for a new trial, Glover argued that had he known the State was going to charge him
based on taking the marijuana, his defense would have been that he had gone to Paulson's to
collect on a drug debt. In ruling on that motion, the court found that was essentially the same
defense as the one presented at trial.

The district court further noted that Glover was essentially raising the same issues he
had raised in his direct appeal—that had he known he was going to be charged based on
taking the marijuana—he would have used a different defense strategy at trial. The court
found that overall, George's performance was not deficient under an objective standard of
reasonableness. George obtained acquittals on one count of aggravated robbery and one
count of aggravated burglary. He objected to the State's motion to amend at trial and filed a
motion for new trial based on the amendment. Based on these reasons, the court denied
Glover's motion. Glover appeals.

Glover argues the district court erred in summarily denying his K.S.A. 60-1507
motion. He asserts that the court cannot deny his motion based on his failure to express his
dissatisfaction with George's trial strategy because any discussion of theories of defense
would not be on the record. He further contends the court's appointment of an attorney to
write his motion strongly suggests he presented a substantive issue of law or fact requiring
an evidentiary hearing. He does not address the court's finding that George did not present a
guilt-based defense.

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The State contends the district court did not err because the record conclusively shows
Glover is not entitled to relief. First, the record does not indicate that Glover ever objected to
the theory of defense at trial or during his motion for a new trial. Second, the record does not
indicate that George used a guilt-based defense at trial. Third, appointment of counsel for a
60-1507 motion does not demonstrate that a substantial issue exists.

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

"' (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. In this case, the district court summarily denied Glover's 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. 300 Kan. at 881.

To avoid the summary denial of a motion brought under K.S.A. 60-1507, a movant
bears the burden of establishing entitlement to an evidentiary hearing. To meet this burden, a
movant's contentions must be more than conclusory, and either the movant must set forth an
evidentiary basis to support those contentions or the basis must be evident from the record. If
such a showing is made, the district court is required to hold a hearing unless the motion is a
"second" or "successive" motion seeking similar relief. Sola-Morales, 300 Kan. at 881
(citing Holt v. State, 290 Kan. 491, 495, 232 P.3d 848 [2010]; see State v. Sprague, 303 Kan.
418, 425, 362 P.3d 828 [2015]).
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Because Glover is arguing ineffective assistance of counsel, the legal standard for
effective counsel governs whether he is entitled to an evidentiary hearing. Sola-Morales, 300
Kan. at 881-82. To prevail on his claim, Glover must establish (1) that the performance of
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 [1984]).

Glover argues the district court's appointment of an attorney suggests he presented a
substantive issue of law or triable issue of fact. Under Supreme Court Rule 183(i) (2015
Kan. Ct. R. Annot. 271), if a 60-1507 motion presents a substantial question of law or triable
issue of fact, the district court must appoint an attorney if the movant is indigent. As the
State points out, Glover does not provide any authority that the district court may only
appoint an attorney if a 60-1507 motion presents substantive issues. Additionally, district
courts have appointed attorneys in cases which did not in fact have substantive or triable
issues. See Robertson v. State, 288 Kan. 217, 232, 201 P.3d 691 (2009) (noting that even
though district court appointed counsel and held a nonevidentiary hearing, the district court
could have summarily dismissed 60-1507 motion because there were no substantial legal
issues or triable issues of fact). Ultimately, though, this argument is meritless given that this
court has de novo review. Because this court can review the motions, files, and records to
determine if the movant has presented substantive issues, there is no need to consider the
implications of the district court's actions in appointing or failing to appoint an attorney.

In his motion, Glover argues George presented a guilt-based defense against his
wishes, and he likens his case to State v. Carter, 270 Kan. 426, 14 P.3d 1138 (2000). The
State charged Jerome Carter alternatively with premeditated first-degree murder or felony
murder. Carter wished to assert his innocence at trial. Defense counsel's strategy, however,
was to direct the jurors toward the lesser charge of felony murder by conceding Carter's
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involvement in the murder but contesting premeditation. After jury selection, defense
counsel presented Carter's dissatisfaction with this defense strategy to the district court.
Additionally, Carter expressed his dissatisfaction with defense counsel and his chosen
defense theory several times throughout the trial.

On direct appeal of his convictions, Carter argued the exception recognized in United
States v. Cronic, 466 U.S. 648, 658-59, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984), applied to
his ineffective assistance claim, and he did not have to demonstrate prejudice. Carter, 270
Kan. at 434-35. The Kansas Supreme Court agreed, finding defense counsel "abandoned his
client, and the result was a breakdown in our adversarial system of justice." 270 Kan. at 441.
According to the court, defense counsel's conduct was inherently prejudicial, and Carter did
not need to make a separate showing of prejudice. 270 Kan. at 441.

If George did in fact present a guilt-based defense, Glover may be entitled to an
evidentiary hearing. In Edgar v. State, 294 Kan. 828, 283 P.3d 152 (2012), our Supreme
Court found that the defendant's allegations that his attorney's purported concession of guilt
during closing argument contravened agreed-upon defense strategy and presented a factual
issue which could not be resolved without an evidentiary hearing. 294 Kan. at 839. As the
Edgar court noted, while trial strategy is generally within the purview of defense counsel's
professional judgment, counsel still has a duty to make an informed decision based on
investigation, and consult with his or her client regarding important decisions, such as
overarching defense strategy. 294 Kan. at 839. See also Martin v. State, No. 93,615, 2006
WL 3479019, at *5 (Kan. App. 2006) (unpublished opinion) (finding district court erred in
denying 60-1507 motion without holding evidentiary hearing to determine if trial counsel
presented guilt-based defense against defendant's wishes).

George did not present a guilt-based defense. While Glover does not specify this in
his motion, it is apparent from the record that George presented the contested defense
strategy during opening argument. Admittedly, the transcript of Glover's trial does not
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include opening statements or closing arguments. In a motion for additional time to file a
response to Glover's 60-1507, the State said it had ordered a transcript of opening statement
and closing argument. The State does not reference opening or closing in its motion to
dismiss Glover's motion. The district court does not reference opening or closing statements
in its order. In his motion, however, Glover claims George asserted "lesser culpability" by
admitting Glover had taken certain property from Paulson and "inform[ed] the [j]ury that
[Glover] participated in the crime, but was only guilty of certain elements of the charges
against him."

Glover's allegation is consistent with the other characterizations of George's defense
theory in the record. As George stated in the motion for a new trial that he drafted for
Glover: "On opening statement, defense counsel informed the jury [Glover] did not take any
U.S. [c]urrency from Ryan Paulson but only took marijuana under circumstances that did not
constitute a robbery." At the motion for a new trial, both the State and the district court
characterized George's defense theory as reclamation of property. Accepting Glover's
allegations as an accurate description of George's defense, the defense was not guilt-based.
George told the jury that Glover committed one of the elements of robbery by taking the
marijuana, but George did not concede Glover's guilt to the actual charge. See, e.g., State v.
Williams, 299 Kan. 1039, 1048, 329 P.3d 420 (2014) (distinguishing counsel's argument that
defendant's participation in crime was morally and ethically wrong but not legally wrong
from Carter); Ballard v. State, No. 109,768, 2014 WL 2224649, at *5 (Kan. App. 2014)
(unpublished opinion) (self-defense is not guilt-based defense).

Moreover, in the record we do have, George does not expressly concede the presence
of Glover at the scene of the crime. George only refers to the perpetrators of the crime as
"individuals" or "the person" while cross-examining one of the State's witnesses. While
cross-examining other witnesses, he only used Glover's name in reference to Paulson's
testimony or written statement. The State also argues that a jury question regarding the
meaning of "presence" in a jury instruction also demonstrates George did not admit Glover
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was at the scene of the incident. This question was actually about the meaning of presence
regarding the robbery charge involving Schoof. Schoof had already left the residence when
his Xbox was allegedly stolen, so there was a question as to whether it was taken from his
presence.

In his motion, Glover also alleges George "failed to perform any pre-trial
investigation or any other meaningful adversarial testing of the State's charges." Glover does
not provide any evidentiary basis for these claims, rendering them nothing more than
conclusory remarks.

Even if Glover's allegations that George presented a defense he disapproved of raises
substantive issues, Glover must still establish this deficiency caused prejudice before he is
entitled to a remand. See Edgar, 294 Kan. at 844 (finding when defendant raises triable issue
of fact as to deficient performance, appellate court must determine prejudice before
remanding for evidentiary hearing). If the record conclusively establishes George's
performance did not prejudice Glover, his claim fails, and there is no need for a remand.
Glover argues he does not need to demonstrate prejudice because he is entitled to the Cronic
exception based on the ruling in Carter, 270 Kan. 426, but the circumstances of his case
suggest otherwise.

The Kansas Supreme Court has identified three categories of ineffective assistance of
counsel claims, two of which are relevant here. The first category includes claims that
counsel's performance was so deficient it denied the defendant a fair trial. Sola-Morales, 300
Kan. at 882 (citing State v. Galaviz, 296 Kan. 168, 181, 291 P.3d 62 [2012]). Such claims are
subject to the Strickland standard recited above. The second category includes claims that an
attorney's performance completely denied the defendant assistance of counsel or denied it at
a critical stage of the proceedings. In these cases, the court may presume prejudice, i.e., the
defendant does not need to show a probable effect on the outcome of the proceeding. This is
known as the Cronic exception. Sola-Morales, 300 Kan. at 883.
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As the State points out, the holding in Carter was also called into doubt by Edgar.
The Edgar court noted two United States Supreme Court cases which declined to apply the
Cronic exception despite counsel's concession of guilt during the sentencing phase of a
capital case. Edgar, 294 Kan. at 842 (citing Florida v. Nixon, 543 U.S. 175, 125 S. Ct. 551,
160 L. Ed. 2d 565 [2004], and Bell v. Cone, 535 U.S. 685, 122 S. Ct. 1843, 152 L. Ed. 2d
914 [2002]). In Bell, the U.S. Supreme Court clarified that defense counsel must entirely fail
to subject the State's case to any meaningful adversarial testing in order for the Cronic
exception to apply. Bell, 535 U.S. at 697. Nonetheless, the Edgar court declined to revisit
Carter because neither party had argued for application of the Cronic exception. Edgar, 294
Kan. at 843.

As noted above, George did not use a guilt-based defense at trial, and the record
indicates George's representation was not a complete failure to subject the prosecution's case
to meaningful adversarial testing. He focused on damaging Paulson's credibility, as the
robbery charge involving Paulson had the most evidentiary support. He also moved for an
acquittal on one charge, and moved for a new trial when the State amended the complaint.
Additionally, George secured an acquittal on one of Glover's charges and a conviction on a
lesser included offense on another.

Because George's representation was not a complete concession of guilt, nor did his
conduct demonstrate a complete failure to put the State to its proof, Glover is not entitled to
the Cronic exception. In order to prevail on his claim, he must demonstrate prejudice under
the Strickland standard. Because of his complete reliance on Carter and the Cronic
exception, however, he did not argue prejudice in his motion. This arguably fails to meet the
pleading requirements for a 60-1507 motion.

Moreover, based on the evidence presented at trial, Glover likely would not have been
able to establish prejudice. Both Schoof and Paulson positively identified Glover in the
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courtroom, and both testified he was carrying a black pistol. Paulson had known Glover prior
to the incident, and was able to identify him by name in the police report. Paulson's story that
Glover had hit him with a gun was corroborated by his injuries, which included the "distinct
mark of a guard from a pistol" on his forehead. There was also blood in the bathroom and on
the carpet in Paulson's bedroom. Paulson testified that Glover and Hook had taken both low-
grade and high-grade marijuana from his room as well as $300 in cash. The police later
found two baggies of marijuana and $300 in Hook's residence. George did not present any
evidence at trial, and Glover does not assert that there is any evidence to present in his
defense.

The district court did not err in summarily denying Glover's K.S.A. 60-1507 motion.
George did not present a guilt-based defense, so Glover is not entitled to the Cronic
exception. Even if George's performance could be considered deficient, Glover cannot
demonstrate prejudice. Therefore, Glover is not entitled to relief, and the district court is
affirmed.

Affirmed.