Horn v. State

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NOT DESIGNATED FOR PUBLICATION

No. 114,982

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

JERRY ALLEN HORN,
Appellant,

v.

STATE OF KANSAS,
Appellee.


MEMORANDUM OPINION

Appeal from Johnson District Court; JAMES F. VANO, judge. Opinion filed December 23, 2016.
Affirmed.

Jerry Allen Horn, appellant pro se.

Shawn E. Minihan, assistant district attorney, Stephen M. Howe, district attorney, and Derek
Schmidt, attorney general, for appellee.

Before BRUNS, P.J., GREEN, J., and WILLIAM S. WOOLLEY, District Judge, assigned.

Per Curiam: Jerry Allen Horn, acting pro se, appeals from the denial of his
K.S.A. 60-1507 motion. On appeal, Horn argues that the trial court erred by denying his
K.S.A. 60-1507 motion for a variety of reasons. Based on these alleged errors, Horn
requests that this court vacate his sentences, reverse his convictions, and dismiss his case
with prejudice. Nevertheless, Horn's arguments lack merit. As discussed later, many of
Horn's K.S.A. 60-1507 arguments were raised and rejected by this court in his previous
appeal, State v. Horn, No. 108,733, 2013 WL 5925963 (Kan. App. 2013) (unpublished
opinion), rev. denied 301 Kan. 1049 (2015) (Horn II). Therefore, those arguments are
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barred under the doctrine of res judicata. Many of Horn's remaining arguments are also
barred under the doctrine of res judicata because Horn could have raised the arguments in
a prior appeal. Finally, many of Horn's arguments fail because they are conclusory and
not supported by the record. As a result, we affirm the trial court's denial of Horn's
K.S.A. 60-1507 motion.

In Horn II, this court described the underlying facts of Horn's case as follows:

"Horn was charged with three counts of aggravated sodomy, three counts of
aggravated indecent liberties with a child, and one count of sexual exploitation of a child
under age 18. He ultimately pled guilty as charged. Because the incidents arose out of
Horn's close relationship with a 10-year-old boy and his family, the State filed a notice of
intent to seek an upward durational departure sentence based on the aggravating factor of
fiduciary relationship. A jury was impaneled and found the existence of a fiduciary
relationship between the child and Horn. The district court doubled Horn's guidelines
sentence on all counts except for the exploitation charge and ordered all counts to be
served consecutively for a total prison term of 1,088 months. This was reduced to the
statutory maximum of 468 months.

"Horn appealed his departure sentence to this court, which affirmed. State v.
Horn, 40 Kan. App. 2d 687, 196 P.3d 379 (2008), rev'd 291 Kan. 1, 238 P.3d 238 (2010).
The Supreme Court accepted review and held the sentencing statute at issue, K.S.A. 21-
4718(b)(4), did not allow the district court to impanel a jury for the upward durational
departure proceeding under the circumstances. Horn's sentence was vacated and the case
remanded for resentencing without an upward durational departure. State v. Horn, 291
Kan. 1, 11-12, 238 P.3d 238 (2010). [Horn I].

"Before the district court held a sentencing hearing on remand, Horn filed a
motion to withdraw plea and for a new preliminary hearing. The motion raised multiple
claims centering on [his plea and trial] counsels' competence and a claim his pleas were
not knowingly and voluntarily made. The district court conducted an evidentiary hearing
spanning 3 days and received testimony from Horn and each of the three attorneys who
collectively represented him—Scott Gyllenborg, Christina Dunn, and Michelle Durrett—
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from the law firm of Gyllenborg & Dunn. The district court allowed the parties to submit
briefs and set a later date for pronouncement.

"On July 9, 2012, the district court denied the motion to withdraw plea and for a
new preliminary hearing, finding none of Horn's issues justified withdrawal of the plea.
The same date, the court issued a lengthy memorandum decision and order." 2013 WL
5925963, at *1.

Before resentencing, Horn's attorney, Patrick Lewis, moved for both a durational
and dispositional departure. The trial court denied both motions and sentenced Horn to a
controlling sentence of 246 months' imprisonment. Although Horn has included the
journal entry of his resentencing in the record on appeal, Horn has not included the
transcript from his resentencing hearing in the record on appeal.

Horn then appealed the denial of his motion to withdraw pleas to this court. In his
appeal, Horn made many allegations about Gyllenborg, Dunn, and Durrett (collectively
referred to as "trial attorneys") providing ineffective assistance of counsel. Horn also
argued that his guilty pleas were not knowingly and voluntarily made. The Horn II court
affirmed the trial court's decision to deny Horn's motion to withdraw pleas. Horn II, 2013
WL 5925963, at *1. In affirming the trial court, the Horn II court rejected the following
arguments made by Horn: (1) that his trial attorneys were ineffective; (2) that his trial
attorneys misled him; (3) that his trial attorneys failed to discuss important aspects of his
criminal case; (4) that his trial attorneys mishandled the motion to suppress his
confession; (5) that his trial attorneys were not prepared for trial; (6) that his trial defense
was hurt because he had been "farmed-out" to different out-of-county jails because of
overcrowding before his pleas and trial; (7) that his charges in Count IV and Count VI
were multiplicitous; (8) that the trial judge erred by not taking his guilty pleas in open
court; and (9) that the trial judge failed to advise him about postrelease supervision before
accepting his pleas. Horn II, 2013 WL 5925963, at *2-9.

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Horn filed a petition for review with our Supreme Court. Our Supreme Court
denied the petition for review. 301 Kan. 1049 (1995). The Horn II court's mandate was
issued on February 20, 2015.

About a month later, on March 17, 2015, Horn moved for relief under K.S.A. 60-
1507. Within this motion, Horn argued that his case must be dismissed with prejudice for
the following reasons: (1) His Fourth Amendment rights were violated when the police
unnecessarily delayed his first appearance after his warrantless arrest to obtain his
confession; (2) his trial attorneys were ineffective; (3) his charges in Count IV and VI
were multiplicitous; (4) his pretrial incarceration was oppressive; (5) his case was
unfairly influenced by prosecutorial misconduct; (6) his guilty pleas were not knowingly
made; (7) his Sixth Amendment right to a public trial was violated when he pled guilty in
the jury room instead of in the courtroom; (8) his trial attorneys perjured themselves
when they testified that he understood his pleas and his criminal proceedings at his
motion to withdraw plea hearing; and (9) his attorney Lewis was ineffective. Horn also
alleged that the trial judge at his motion to withdraw plea hearing erred in 10 other ways.

Upon Horn's request, the trial court appointed Horn a new attorney, Stacy
Schlimmer. On May 27, 2015, Schlimmer appeared on behalf of Horn at a status
conference hearing on Horn's K.S.A. 60-1507 motion. At this hearing, the trial court
noted that it seemed Horn was repeating arguments from his motion to withdraw pleas.
Schlimmer stated that based on her review of Horn's K.S.A. 60-1507 motion, she
believed the trial court was correct. Then, the trial court told Schlimmer that it would like
her to go through Horn's K.S.A. 60-1507 motion and determine if Horn was raising any
new issues. Schlimmer offered to do this so long as the trial court granted her request for
a few weeks to submit a brief on the matter. The trial court granted this request.

Next, Schlimmer sent Horn a letter explaining that K.S.A. 60-1507 motions cannot
be used to relitigate issues already raised and decided by the court. Schlimmer told Horn
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that she was in the process of going through his K.S.A. 60-1507 motion to see if he had
raised any new issues. Then, Schlimmer told Horn that she was going to submit a brief to
the trial court on her findings. Horn sent a letter to Schlimmer telling her not to file
anything on his behalf because he did not want Schlimmer to "waive or modify any of
[his] claims without [his] written permission."

On July 1, 2015, at another status conference hearing, Schlimmer stated that Horn
was not raising any new issues. Schlimmer emphasized, however, that she did not want to
waive any of Horn's arguments given Horn's letter. The trial court told Schlimmer that
although she stated Horn was not raising any new issues, this did not mean that she
waived Horn's right to appeal. Then, the trial court ordered Schlimmer to prepare a
journal entry. In the final journal entry, the trial court stated that it was denying Horn's
K.S.A. 60-1507 motion because the files and the records of his case conclusively showed
that all of his arguments had been previously litigated.

Horn timely appealed.

Did the Trial Court Err by Dismissing Horn's K.S.A. 60-1507 Motion?

On appeal, Horn argues that the trial court erred by denying his K.S.A. 60-1507
motion because all of his arguments have merit. For each argument, Horn asserts that the
appropriate relief is dismissal of his case with prejudice. In his appellant's brief, Horn
does not truly address the trial court's finding that all of his K.S.A. 60-1507 arguments
had been previously litigated. He asserts that he is raising new arguments without any
further explanation. In his reply brief, however, Horn asserts that his arguments are not
res judicata because res judicata does not apply when it would deprive a movant of
meaningful review.

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The State counters that most of Horn's arguments should fail on appeal because (1)
his arguments have already been raised and therefore are barred under the doctrine of res
judicata, or (2) his arguments have been waived by Horn's failure to raise them in a prior
appeal and therefore are barred under the doctrine of res judicata. The State further
contends that many of Horn's arguments are either conclusory or not supported by the
evidence.

Despite Horn's assertion that this court must review his K.S.A. 60-1507 arguments
because to do otherwise would deny him meaningful review, this is not the case. In short,
this court has already considered most of Horn's K.S.A. 60-1507 arguments in Horn II,
meaning this court has already given Horn meaningful review over these arguments.
Because this court has already reviewed and rejected Horn's identical arguments in Horn
II, Horn is barred by res judicata from repeating those arguments in his K.S.A. 60-1507
motion. As to Horn's remaining arguments, Horn might not have previously litigated
these arguments, but they fail all the same. Horn's remaining arguments are either barred
by res judicata because he could have previously raised them in his direct appeals, or are
conclusory, or are not supported by the record. We begin our inquiry by considering our
standard of review.

Standard of Review

When reviewing a K.S.A. 60-1507 motion, the trial 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
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requiring a full hearing.' [Citations omitted.]" Sola-Morales v. State, 300 Kan. 875, 881,
335 P.3d 1162 (2014).

Here, the trial court denied Horn's K.S.A. 60-1507 motion after appointing him counsel
and holding two status conference hearings. The State asserts that the two status
conference hearings constituted preliminary hearings, meaning the trial court followed
the second option. Meanwhile, Horn asserts that the status conference hearings were not
preliminary hearings, meaning the trial court summarily denied his K.S.A. 60-1507
motion under the first option.

In the past, our Supreme Court has explained that under option two, the trial court
will appoint counsel and hold a hearing to determine if the movant's allegations are
substantial enough to require an evidentiary hearing. Bellamy v. State, 285 Kan. 346, 353,
172 P.3d 10 (2007). If it appears no substantial issues based on the records and files in
the case exists, then the trial court may deny the motion without an evidentiary hearing.
Bellamy, 285 Kan. at 353. Given that the trial court appointed Horn counsel and held two
hearings on his K.S.A. 60-1507 motion, it is readily apparent that the trial court followed
the second option as opposed to the first option.

When reviewing a trial court's denial of a K.S.A. 60-1507 motion following a
preliminary hearing, this court exercises de novo review because it has the same access to
the motions, files, and records of the case as the trial court. Grossman v. State, 300 Kan.
1058, 1061, 337 P.3d 687 (2014).

Applicable Law

K.S.A. 60-1507 states:

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"A prisoner in custody under sentence of a court of general jurisdiction claiming the right
to be released upon the ground that the sentence was imposed in violation of the
constitution or laws of the United States, or the constitution or laws of the state of
Kansas, or that the court was without jurisdiction to impose such sentence, or that the
sentence was in excess of the maximum authorized by law, or is otherwise subject to
collateral attack, may. . . move the court which imposed the sentence to vacate, set aside
or correct the sentence."

When movants file for relief under K.S.A. 60-1507, movants must provide an evidentiary
basis in support of their arguments; conclusory allegations will not suffice. Sola-Morales,
300 Kan. at 881 (quoting Holmes v. State, 292 Kan. 271, 274, 252 P.3d 573 [2011].

Moreover, movants cannot use a K.S.A. 60-1507 motion as a second appeal.
Supreme Court Rule 183(c)(3) (2015 Kan. Ct. R. Annot. 272) states:

"A proceeding under K.S.A. 60-1507 ordinarily may not be used as a substitute
for direct appeal involving mere trial errors or as a substitute for a second appeal. Mere
trial errors must be corrected by direct appeal, but trial errors affecting constitutional
rights may be raised even though the error could have been raised on appeal, provided
exceptional circumstances excuse the failure to appeal."

Exceptional circumstances can include unusual events, changes in the law, and
ineffective assistance of counsel. State v. Mitchell, 297 Kan. 118, 123, 298 P.3d 349
(2013); Rowland v. State, 289 Kan. 1076, 1087, 219 P.3d 1212 (2009).

Claims are barred as res judicata when the following four conditions exist: (1)
same claims; (2) same parties; (3) claims that were actually raised or could have been
raised in a prior proceeding; and (4) a final judgment on the merits. Cain v. Jacox, 302
Kan. 431, 434, 354 P.3d 1196 (2015)."The doctrine of res judicata applies to a K.S.A. 60-
1507 movant who attempts to raise issues which have previously been resolved by a final
appellate court order in his or her criminal proceeding." Woods v. State, 52 Kan. App.
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958, Syl. ¶ 1, 379 P.3d 1134 (2016). Furthermore, "when a criminal defendant files a
direct appeal from his or her conviction and sentence, 'the judgment of the reviewing
court is res judicata as to all issues actually raised; those issues that could have been
presented, but were not presented, are deemed waived.'" Woods, 52 Kan. App. 2d at 965
(quoting Drach v. Bruce, 281 Kan. 1058, Syl. ¶ 12, 136 P.3d 390 [2006]).

Preliminary Matters

Before addressing each of Horn's arguments, it is first necessary to address a few
preliminary issues. Specifically, it is important to address the relief Horn has requested.

Relief Requested

To begin with, Horn asserts that each of the alleged errors he complains about
requires that this court dismiss his case with prejudice. Of course, to dismiss Horn's case
with prejudice, this court would also need to vacate his sentences and reverse his
convictions. In his brief, however, Horn never argues that he is actually innocent of his
crimes. In fact, Horn has never proclaimed actual innocence. Upon his arrest, he
voluntarily confessed to his crimes many times over to the police. Then, he pled guilty to
all the crimes charged. Next, at his motion to withdraw plea hearing, he revealed that he
never knew that engaging in sexual acts with a child would result in anything higher than
a misdemeanor conviction before being charged in this case. Here, Horn's dispute centers
on the criminal severity of engaging in sexual acts with a child. Thus, he is implicitly
conceding that he actually engaged in the crimes for which he confessed to committing.

Same Parties

Next, the vast majority of Horn's arguments are barred by res judicata either
because he previously raised the same argument or because he could have previously
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raised the same argument. In determining if an issue is barred by res judicata, this court
must consider whether Horn is raising the same claim against the same party. It is
undisputed that the same parties—Horn and the State—have been involved throughout
the duration of Horn's criminal case. Thus, as to all of the analysis concerning res judicata
below, the same party element has been met.

Exceptional Circumstances

Last, although Supreme Court Rule 183(c)(3) states that defendants may raise
constitutional challenges that should have been raised in a direct appeal under K.S.A. 60-
1507 in exceptional circumstances, Horn has not asserted any exceptional circumstances
apply to his case. Outside of noting the rule on exceptional circumstances, Horn makes
no other reference to exceptional circumstances in his brief. As a result, Horn has
abandoned any exceptional circumstances argument he may have had as to all of his
arguments in this appeal. See Superior Boiler Works, Inc. v. Kimball, 292 Kan. 885, 889,
259 P.3d 676 (2011) (holding that an issue not briefed is deemed waived and abandoned).
As a result, we will not consider the application of exceptional circumstances in our later
analysis.

Legality of Confession

Turning focus to Horn's first argument, we note that Horn contends that his
confession was obtained during a period where police unnecessarily delayed his first
appearance following his warrantless arrest. Horn asserts that this violated the Fourth
Amendment to the United States Constitution and K.S.A. 2015 Supp. 22-2901. Horn also
asserts that his confession should have been excluded as fruit of the poisonous tree based
on the unconstitutional and unnecessary delay. In making this argument, Horn relies
heavily on the United States Supreme Court cases Corley v. United States, 556 U.S. 303,
129 S. Ct. 1558, 173 L. Ed. 2d 443 (2009), County of Riverside v. McLaughlin, 500 U.S.
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44, 111 S. Ct. 1661, 114 L. Ed. 2d 49 (1991), Gerstein v. Pugh, 420 U.S. 103, 95 S. Ct.
854, 43 L. Ed. 2d 54 (1975), and Mallory v. United States, 354 U.S. 449, 77 S. Ct. 1356,
1 L. Ed. 2d 1479 (1957).

The State counters that Horn already litigated this issue while attempting to
withdraw his pleas. Consequently, the State argues that res judicata bars consideration of
the issue. In his reply brief, Horn responds that this confession issue is different from the
confession issue he previously raised because he never mentioned the Fourth
Amendment.

Nevertheless, the State is correct. In his motion to withdraw plea, Horn asserted
the following:

"Failure to bring Mr. Horn before a magistrate without unnecessary delay was a
violation of K.S.A. 2[2]-2901. This violation of the statute resulted in Mr. Horn's
statements very much to his disadvantage being taken by Detective Rader. The failure of
trial counsel to proceed with a motion to dismiss or suppress on these grounds amounted
to ineffective assistance of counsel in violation of Strickland v. Washington, 466 U.S. 668
(1984), and Mr. Horn was prejudiced thereby and entered pleas which he would not
otherwise have entered."

In his reply to the State's response to his motion to withdraw pleas, Horn reiterated that
the police unnecessarily delayed his first appearance while citing to the United States
Supreme Court's holdings in Corley, County of Riverside, Gerstein, and Mallory.

In denying Horn's motion to withdraw plea, the trial court found that Horn "ha[d]
not established that bringing him before a magistrate less than 48-hours after his arrest
was an 'unnecessary delay.'" The trial court further found that even if a delay existed,
Horn failed to meet his burden in establishing that the delay resulted in a denial of due
process. Finally, the trial court found that Horn failed to provide evidence in support of
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his assertion that any delay resulted in his confession. Accordingly, the trial court
concluded that his trial attorneys did not err by failing to move to suppress his confession
based on the alleged unnecessary delay.

When Horn appealed to this court in Horn II, it seems Horn never challenged the
trial court's finding regarding the unnecessary delay; therefore, the court never addressed
this issue. Moreover, Horn has not included his Horn II appellant's brief on appeal.
Consequently, from what is known, Horn did not challenge the trial court's finding.
Therefore, the Horn II court did not disturb the trial court's finding. In turn, the trial
court's finding regarding the unnecessary delay became final after Horn failed to
challenge it in his appeal. See K.S.A. 2015 Supp. 22-3608(c) (which states that criminal
defendants have 14 days to appeal the judgment of the trial court, meaning the trial
court's unnecessary delay finding became final upon Horn's failure to challenge it in Horn
II).

As a result, within the context of his motion to withdraw pleas, Horn argued that
he was entitled to withdraw his pleas because his trial attorneys failed to make the
unnecessary delay argument. Even though Horn lodged his complaint in the context of
ineffective assistance of counsel, the trial court was required to consider whether the
police actually unnecessarily delayed his first appearance. Accordingly, Horn is repeating
an argument that he already raised and was denied on its merits. Thus, his argument
concerning the alleged unnecessary delay is barred by res judicata.

In regards to Horn's assertion that this issue is different than the issue he
previously raised because he never explicitly stated that the alleged delay violated his
Fourth Amendment rights while attempting to withdraw his pleas, the fact that he never
explicitly referenced the Fourth Amendment is irrelevant. As explained in the Corley,
County of Riverside, and Gerstein cases, Horn has consistently relied on the right to have
a probable cause finding, without unnecessary delay, following a warrantless arrest. He
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maintains that this argument stems from the Fourth Amendment. In other words, the
Fourth Amendment played an integral role in Horn's argument that he was entitled to
withdraw pleas whether he referenced the Fourth Amendment or not.

Furthermore, it is worth mentioning that even if Horn had not already raised this
argument, his argument would still be barred under the doctrine of res judicata. Clearly,
the question whether the confession was obtained during an illegal detention is a trial
issue. Because it is a trial issue, Horn should have raised it in a direct appeal, not a K.S.A.
60-1507 motion. See Supreme Court Rule 183(c)(3). Assuming Horn had not previously
litigated this issue, his failure to raise the issue in a direct appeal would have resulted in
waiver. See Woods, ___ Kan. App. 2d at ___, 2016 WL 4582171, at *4. Thus, no matter
what, Horn could not successfully challenge the validity of his confession in this appeal.

Incompetent Trial Attorneys

Second, Horn argues that his trial attorneys were ineffective because they did not
move to suppress his confession based on the argument that it was obtained while the
police unnecessarily delayed his first appearance following his warrantless arrest. As
explained in the preceding section, however, this issue was raised and addressed at length
when Horn attempted to withdraw his pleas. Then, Horn never raised this particular
argument in Horn II. Thus, the trial court's finding that Horn's trial attorneys were not
ineffective for failing to move to suppress his confession based on the alleged
unnecessary delay became final upon Horn's failure to raise the argument in his direct
appeal. See K.S.A. 2015 Supp. 22-3608(c).

Consequently, Horn's argument about his trial attorneys being ineffective is barred
by res judicata because this is the same claim, with the same parties, which he already
raised and was rejected on the merits by the trial court. Moreover, as with his preceding
unnecessary delay argument, assuming arguendo that Horn had not previously raised this
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argument, his argument would still be barred by res judicata as he would have waived it
by failing to raise it in Horn II. See Woods, 52 Kan. App. 2d at 965.

Multiplicitous Counts

Third, Horn complains that two of his three counts of aggravated criminal sodomy
were multiplicitous. Horn correctly alleges that Counts IV and VI are identical. In the
past, our Supreme Court has explained:

"'Multiplicity is the charging of a single offense in several counts of a complaint or
information. The reason multiplicity must be considered is that it creates the potential for
multiple punishments for a single offense in violation of the Double Jeopardy Clause of
the Fifth Amendment of the United States Constitution and section 10 of the Kansas
Constitution Bill of Rights.'" State v. Patten, 280 Kan. 385, 388, 122 P.3d 350 (2005),
(quoting State v. Robbins, 272 Kan. 158, 171, 32 P.3d 171 [2001]).

Nevertheless, the State counters that Horn's multiplicity challenge is barred by res
judicata because Horn previously raised this argument when attempting to withdraw his
pleas. A review of Horn's motion to withdraw pleas establishes that the State is correct.

In his motion to withdraw pleas, Horn asserted that his trial attorneys were
ineffective by not challenging Counts IV and VI as multiplicitous. The trial court rejected
Horn's argument because although Counts IV and VI were worded identically, the
"evidence support[ed] upwards of 30 separate instances between [Horn] and the victim,
but only two of those instances were charged." Thus, the trial court concluded that "there
[was] no doubt that Counts IV and VI [did] not arise from the same offense." Horn then
raised his multiplicity argument on appeal in Horn II. The Horn II court held that
evidence that Horn committed far more than two counts of aggravated criminal sodomy
during the time frame stated in Counts IV and VI existed. 2013 WL 5925963, at *5.
Accordingly, the Horn II court held that Count IV and VI were not multiplicitous;
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therefore, his trial attorneys were not ineffective for failing to make the multiplicitous
counts challenge. 2013 WL 5925963, at *5.

As a result, in rejecting that his trial attorneys were ineffective, both the trial court
and this court determined that Counts IV and VI were not multiplicitous. Obviously, this
means that Horn's argument is barred by res judicata as he previously raised the same
claim, against the same party, which this court decided against him on the merits.

Additionally, even if Horn had not previously raised this argument, this court
would still not be in a position to reach its merits. Again, arguments that could have been
raised in direct appeals are deemed waived as to all later appeals under the doctrine of res
judicata. See Woods, 52 Kan. App. 2d at 965. Any issue involving the question whether
the State charged Horn with multiplicitous counts clearly could have been raised in
Horn's direct appeals.

Last, it is worth reiterating that Count IV and Count VI are not multiplicitous
because those charges, and ultimate convictions, did not arise out of the same conduct.
See State v. Pribble, 304 Kan. 824, 826-28, 375 P.3d 966 (2016) (explaining that counts
cannot be multiplicitous if they arise from separate conduct). Had Horn not pled guilty to
all the charges, including Counts IV and VI, the State intended to present evidence of two
separate commissions of aggravated criminal sodomy for those counts.

Oppressive Pretrial Incarceration

Fourth, Horn argues that he was subjected to oppressive pretrial incarceration. It
seems Horn believes that his defense was damaged because he could not communicate
with his trial attorneys as often as he wanted to because he was frequently placed in an
out-of-county jail. Horn also alleges that being farmed out in this way caused him
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anxiety. The State responds that Horn's argument must fail because is conclusory and
barred by res judicata.

First, as the State asserts in its brief, Horn simply states that he was subjected to
oppressive pretrial conditions that damaged his defense without providing any
explanation how the pretrial conditions damaged his defense. He also never explains in
what ways the oppressive pretrial conditions caused him anxiety. Movants must provide
evidence in support of their argument and make more than conclusory statements in their
K.S.A. 60-1507 motions to obtain relief. Trotter v. State, 288 Kan. 112, 131-32, 200 P.3d
1236 (2009). Horn has not met his burden in providing evidence; thus, he is not entitled
to relief.

Moreover, Horn does not cite any authority supporting that oppressive pretrial
incarceration conditions can result in a constitutional violation entitling him to relief
under K.S.A. 60-1507. Failure to support an argument with authority is akin to failing to
brief an issue. In turn, failing to brief an issue results in abandonment. University of Kan.
Hosp. Auth. v. Board of Comm'rs of Unified Gov't, 301 Kan. 993, 1001, 348 P.3d 602
(2015). Because Horn has not cited any authority supporting that he is entitled to relief
under K.S.A. 60-1507, we determine that he has abandoned his argument.

Finally, even if his argument was not conclusory and was supported by authority,
Horn previously raised this argument in his motion to withdraw pleas. The trial court
rejected Horn's "oppressive pretrial incarceration damaged my defense" argument,
explaining that the fact Horn was farmed out to out-of-county jails had no effect on his
defense or his trial attorneys' representation. In Horn II, this court affirmed the trial court
because no evidence suggested that being farmed out damaged Horn's defense. Horn II,
2013 WL 5925963, at *4. Consequently, before moving for relief under K.S.A. 60-1507,
Horn had already asserted and this court had already rejected Horn's pretrial incarceration
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argument on the merits. Thus, Horn's oppressive pretrial incarceration argument is barred
by res judicata.

Prosecutorial Misconduct

Horn's fifth argument is difficult to follow, but it seems that Horn believes that
Paul Morrison committed prosecutorial misconduct. Morrison was not the prosecutor
assigned to Horn's case, but Morrison was the Johnson County district attorney when
Horn's case was prosecuted. Morrison was also running for Kansas attorney general when
Horn's case was prosecuted. Horn alleges that because Morrison was running for attorney
general, he refused to give him a good plea deal for political reasons.

Nevertheless, as the State points out in its brief, Horn's assertion is just an
assertion. Horn provides absolutely no evidence in support of his argument that Morrison
engaged in prosecutorial misconduct. Conclusory allegations without more do not entitle
K.S.A. 60-1507 movants to relief. See Trotter, 288 Kan. at 131-32. Additionally, a point
raised incidentally in a brief and not argued therein is abandoned. Friedman v. Kansas
State Bd. of Healing Arts, 296 Kan. 636, 645, 294 P.3d 287 (2013). Thus, Horn's
argument necessarily fails because it was both conclusory and not adequately briefed.

Pleas Not Knowingly Made

Sixth, Horn argues that his pleas were not knowingly made because he had not
been informed "of what the plea connotes and the consequences of said guilty plea."
However, other than asserting that he did not understand that he would be required to
serve a term of postrelease supervision as part of his criminal sentence, Horn does not
explain why his pleas were not knowingly made. This means that Horn's non-postrelease
supervision related arguments as to why his pleas were not knowingly made have been
abandoned. See Superior Boiler Works, Inc., 292 Kan. at 889.
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Additionally, in Horn II, while finding that Horn knowingly made his plea, this
court reached the following conclusion about Horn's postrelease supervision argument:

"Horn next contends the district court did not comply with K.S.A. 2012 Supp.
22- 3210(a)(2) for several reasons. First, he contends the district court judge failed to
inform him of the penalty he faced, specifically the postrelease supervision period . . . .

"Horn has failed to preserve his contention that the judge failed to inform him of
the postrelease supervision period. Although in his brief filed in support of his motion to
withdraw, Horn mentioned in one sentence the lack of information on postrelease
supervision, he did not raise this argument in the motion to withdraw plea or with the
district court during the hearing on the motion." 2013 WL 5925963, at *7.

Thus, the Horn II court determined that Horn failed to properly preserve the exact
argument he now raises on appeal.

In the past, this court has held "defendant[s] cannot revive an abandoned point in a
subsequent proceeding." Woods, 52 Kan. App. 2d at 966. It is readily apparent that this
rule applies to Horn's current argument. Overall, Horn cannot revive an argument that he
previously raised and abandoned by reasserting it in his K.S.A. 60-1507 motion. Because
Horn failed to properly preserve this argument in Horn II, he waived this argument as to
all later proceedings, including his ability to raise it in a K.S.A. 60-1507 motion.

Pleas Not Made in Public

Seventh, Horn argues that his right to a public trial under the Sixth Amendment to
the United States Constitution was violated because he entered his guilty pleas in the jury
room instead of in the courtroom. Horn contends that because his pleas were entered in
the jury room, they were not entered in open court. In support of his argument, Horn
discusses State v. Barnes, 45 Kan. App. 2d 608, 251 P.3d 96 (2011), a case where this
19

court held that the trial court committed reversible error by holding a defendant's trial in
private. Then, Horn asserts that the fact he pled guilty in the jury room "was not harmless
error."

A bit of background information is necessary to fully address this argument. Horn
decided to plead guilty on the day his case was scheduled for trial. As a result, all of
Horn's prospective jurors were sitting in the courtroom waiting for voir dire to begin. The
decision was made to hold the plea hearing away from the jury to avoid any prejudice to
Horn should Horn decide not to plead guilty in the middle of his hearing.

Upon remand from Horn I, Horn attacked the validity of his pleas, asserting that
he did not enter them in open court. The trial court rejected the argument because in
Morris v. State, 2 Kan. App. 2d 34, Syl. ¶ 5, 573 P.2d 1139 (1978), this court held that
pleas entered in a judge's office while in the presence of the judge, prosecutor, defendant,
defense counsel, and court reporter were pleas entered in open court for all intents and
purposes. Furthermore, the trial court noted that Horn's pleas were taken in the jury room
to avoid prejudicing the prospective jurors against Horn. The Horn II court affirmed the
trial court, explaining:

"Horn's plea was taken in the jury room instead of the courtroom in order to
avoid prejudicing the prospective jurors who were gathering in the courtroom. The judge,
prosecutor, defendant, defense counsel, and court reporter were in the room. Horn did not
object to the location of the plea hearing. The trial court in this case made specific
findings that no member of the public was excluded and that it was necessary to take the
plea in the jury room in order to avoid prejudicing potential jurors sitting in the
courtroom. Horn's plea was taken in open court." (Emphasis added.) 2013 WL 5925963,
at *7.

20

Accordingly, this is the same argument, with the same parties, that Horn already
raised, that the trial court already rejected on the merits, and that this court affirmed. As a
result, res judicata bars Horn from repeating this argument in his K.S.A. 60-1507 motion.

Supreme Court Erred in Horn I

Eighth, Horn seems to make two arguments regarding our Supreme Court's
decision in State v. Horn, 291 Kan. 1, 238 P.3d 238 (2010) (Horn I): (1) that our Supreme
Court erred when it usurped the legislature's authority; and (2) that our Supreme Court
should have allowed him to withdraw his guilty pleas because they were not knowingly
made. Although the State fails to recognize this in its brief, Horn did not challenge our
Supreme Court's holding in Horn I in his K.S.A. 60-1507 motion. Absent certain
exceptions, which Horn has not invoked on appeal, issues not raised before the trial court
cannot be raised for the first time on appeal. Wolfe Electric, Inc. v. Duckworth, 293 Kan.
375, 403, 266 P.3d 516 (2011). By failing to raise this issue below, we refuse to address
Horn's argument on appeal. Thus, Horn's argument that our Supreme Court erred in Horn
I fails.

Additionally, as the State points out in its brief, this court is duty bound to follow
our Supreme Court's precedent absent some indication that the Supreme Court is
departing from its previous position. Majors v. Hillebrand, 51 Kan. App. 2d 625, 629-30,
349 P.3d 1283 (2015), rev. denied 303 Kan. 1078 (2016). No evidence supports that our
Supreme Court is departing from its previous position. Moreover, if Horn had a problem
with our Supreme Court's holding in Horn I, he should have raised this issue with the trial
court upon remand from that case. By failing to do this, Horn forever waived his ability
to challenge the Horn I decision as it is barred by res judicata. See Woods v. State, 52
Kan. App. 2d 958, 965, 379 P.3d 1134 (2016). Consequently, even if Horn's had argued
that our Supreme Court erred in Horn I in his K.S.A. 60-1507 motion, his argument
would still fail because (1) this court is duty bound to follow our Supreme Court's
21

precedent, and (2) he should have raised any complaints about Horn I upon remand from
that decision.

Finally, it is important to note two things about Horn's arguments. First, but for
our Supreme Court's alleged usurpation of legislative authority, Horn would be serving
much more time in prison. In Horn I, our Supreme Court explained:

"[I]f a defendant waives a trial jury by pleading guilty to the criminal offense and the
district court has accepted the plea and the trial jury waiver, K.S.A. 21-4718(b)(4) directs
that an upward durational departure sentence proceeding is to be conducted by the court,
not a jury. However, if the defendant has not waived his or her right to a jury for the
upward durational departure sentence proceeding, a court-conducted departure
proceeding violates the constitutional mandates of Apprendi and Gould. A waiver of the
trial jury, standing alone, does not effectively waive the defendant's right to have a jury
for the upward durational departure sentence proceeding. We recognize that the result we
reach today is unlikely to be what the legislature would have intended to occur. However,
'"[n]o matter what the legislature may have really intended to do, if it did not in fact do it,
under any reasonable interpretation of the language used, the defect is one which the
legislature alone can correct.'" [Citations omitted.]

"Applying our holding to the case at hand, we find that the district court erred by
impaneling a jury for Horn's upward duration departure sentence proceeding, following
its acceptance of Horn's plea and trial jury waiver. However, Horn specifically declined
to waive his right to a jury for the upward durational departure sentence proceeding, and,
therefore, the district court was constitutionally precluded from following the statutory
mandate for a court-conducted proceeding. Accordingly, Horn's [468-month] sentence is
vacated, and the case is remanded for resentencing without an upward durational
departure." (Emphasis added.) 291 Kan. at 11-12.

Then, as explained in the facts section of this opinion, upon remand, Horn was sentenced
to only 246 months' imprisonment; thus, our Supreme Court's holding resulted in shaving
18 ½ years off Horn's prison sentence.
22

Second, our Supreme Court never held that Horn's pleas were not knowingly
made. Instead, our Supreme Court made a limited finding that Horn's pleas were entered
without the knowledge that he was also waiving his right to have a jury consider the
upward durational departure. Horn I, 291 Kan. at 11. In fact, our Supreme Court even
stated that "[b]efore accepting the plea, the district court thoroughly examined Horn's
understanding of the implications of his plea change and determined that the plea was
knowingly and voluntarily entered." (Emphasis added.) 291 Kan. at 2.

Trial Attorneys' Testimonies at Motion to Withdraw Plea Hearing

Ninth, Horn argues that his trial attorneys committed perjury at the motion to
withdraw pleas hearing when they testified that he was knowledgeable and understood
what was going on in his criminal case. The trial court denied this argument because it
found that Horn had previously raised it. This is not accurate because Horn had not raised
this argument before. Nevertheless, we affirm the trial court's decision to reject Horn's
argument for the following reasons: (1) Horn's argument is conclusory, having absolutely
no support outside his own assertions that his trial attorneys must have been lying
because he is not a legal expert; and (2) Horn could have raised this argument in his Horn
II appeal, meaning his argument has been waived under the doctrine of res judicata.
Because the trial court reached the correct result, we affirm. See Gannon v. State, 302
Kan. 739, 744, 357 P.3d 873 (2015).

Various Errors by the Trial Court When Reviewing his Motion to Withdraw Plea

Tenth, Horn lists a hodge-podge of alleged errors that he believes entitles him to
relief. Specifically, Horn alleges that the trial court made the following errors while
denying his motion to withdraw pleas: (1) It wrongly found that there was no unnecessary
delay and that there was no evidence linking his confession to the unnecessary delay; (2)
it wrongly ruled that Counts IV and VI were not multiplicitous; (3) it wrongly stated that
23

his pleas were entered in open court; (4) it wrongly concluded that he knew he could
appear in person, as opposed to two-way video, for his first appearance; (5) it wrongly
accepted his trial attorneys' testimonies that they were prepared for trial; (6) it wrongly
accepted his trial attorneys' testimonies that they believed withdrawing his motion to
suppress increased his chances for successful plea negotiations; (7) it took judicial notice
of his trial attorneys' excellent reputations; (8) it quoted the wrong clause of K.S.A. 2015
Supp. 22-2901(1) in its order denying his motion; and (9) it used the wrong legal standard
in reviewing his motion.

In regards to Horn's arguments in Issue 1—his confession being the result of
unnecessary delay, Issue 2—Counts IV and VI being multiplicitous, and Issue 3—his
pleas being entered in open court, as discussed in earlier sections of this memorandum,
Horn had already raised those issues, and this court had already rejected those issues in
Horn II. As a result, Issues 1, 2, and 3 are barred by res judicata.

In regards to Horn's arguments in Issue 4—wrongly ruling that he knew he could
appear in person for his first appearance, Issue 5—accepting his trial attorneys'
testimonies that they were prepared for trial, and Issue 6—accepting his trial attorneys'
testimonies about withdrawing the motion to suppress to increase the chance of receiving
a plea deal, all of these arguments are also barred by res judicata. In his motion to
withdraw plea, Horn asserted that his trial attorneys were incompetent because they failed
to tell him that he had a right to appear in person at his first appearance, that his trial
attorneys were incompetent for withdrawing the motion to suppress, and that his trial
attorneys were incompetent because they were not prepared for trial.

The trial court rejected all three of these arguments. Then, this court affirmed the
trial court's rulings in Horn II, explaining:

24

"The district court ruled this did not show counsel was incompetent because the record
lacked any evidence that Horn ever told anyone he was unable to see or hear the
proceedings or that he was not timely told of his right to be personally present in the
courtroom for the first appearance. Additionally, at the plea withdrawal hearing Dunn
testified she was present and represented Horn at the first appearance. Counsel provided
effective assistance during Horn's first appearance.

. . . .

"The district court ruled the decision to withdraw the motion to further plea
negotiations was a 'tactical decision made with Defendant's consent because it had little
chance of success.' Gyllenborg testified the assistant district attorney told him that if the
motion was withdrawn, the State would consider a plea of around 10 years. . . . Horn
agreed with their assessment; it was a mutual decision to withdraw the motion to
suppress. Counsel did not provide ineffective assistance regarding the withdrawal of the
motion to suppress.

. . . .

"The district court ruled counsel had prepared a defense strategy and kept Horn
adequately appraised of that strategy and plea negotiations. Dunn testified about their
efforts to bring in experts to evaluate Horn for a possible mens rea defense that Horn
himself was urging. . . . Durrett testified she was in constant contact with him. Durrett
further testified, while she was preparing for trial, she also prepared Horn for testifying if
he decided to do so. Gyllenborg testified he was working on opening and closing
arguments and Durrett was working on voir dire. Both Durrett and Dunn were working
on the cross-examination of the child. In the end, the district attorney was unable to agree
to any plea offer. Gyllenborg testified Horn wanted to plead; he did not want a trial.
According to Gyllenborg, Horn was involved in every aspect of his case and paramount
to Horn was his desire that the child not be put on the stand and avoidance of any trauma
to the family from a trial. . . . Counsel was prepared for trial, and Horn voluntarily
entered guilty pleas without any deal from the State." (Emphasis added.) 2013 WL
5925963, at *3-6.

25

Consequently, Horn's Issues 4, 5, and 6 involve arguments that were already raised
and rejected on the merits in a final determination. As a result, Horn is barred by res
judicata from repeating these argument in his K.S.A. 60-1507 motion.

Finally, Horn's remaining arguments, Issue 7, Issue 8, and Issue 9, involve trial
errors that he could have addressed in his Horn II appeal. For instance, if Horn felt that
the trial court erred by taking judicial notice of his trial attorneys' reputations during the
motion to withdraw pleas hearing, he should have complained about this in his appeal
from that hearing. If Horn believed that the trial court misquoted K.S.A. 2015 Supp. 22-
2901(1) or used the wrong legal standard in reviewing whether he could withdraw his
pleas, Horn could have raised these issues in his Horn II appeal. Accordingly, Horn's
arguments in Issues 7, 8, and 9 are barred by res judicata as Horn waived his ability to
challenge these issues by failing to raise them in Horn II.

Improper Sentence Upon Remand

Eleventh, Horn argues that, upon remand, the trial court erred during his
resentencing hearing. In his brief, Horn states:

"On August 31, 2012, Mr. Horn was resentenced to 246 months, the maximum allowed
by law. Although his sentence appeared to be within the maximum determined at the
guilty Plea Hearing (246 months), the Court failed to take into account the postrelease
supervision portion of the sentence. The record is silent concerning postrelease
supervision, however the 246 months does not include it and the total sentence was
actually 282 months, 36 months greater than the maximum sentence allowed at the Guilty
Plea Hearing. This is a due process error since Mr. Horn was not notified of the
consequences of any mandatory post-release supervision."

Thus, this argument is slightly different than his earlier argument regarding not
understanding that he would have to serve postrelease supervision as part of his sentence
26

when he entered his guilty pleas. Regardless, Horn did not make this specific argument in
his K.S.A. 60-1507 motion. As a result, Horn is raising it for the first time on appeal
because this argument was not before the trial court. Because this court does not
generally consider issues raised for the first time on appeal absent some exception, which
Horn has not invoked, we determine that Horn's argument fails.

Lewis' Representation

Twelfth, Horn argues that Lewis was ineffective as his attorney upon remand from
Horn I and on appeal in Horn II. Horn asserts that Lewis provided ineffective assistance
of counsel because (1) he did not adequately address the unnecessary delay of his first
appearance issue, (2) he did not present rebuttal evidence at his motion to withdraw pleas
hearing, (3) he did not sequester witnesses at his motion to withdraw plea hearing, and
(4) he did not adequately communicate with him throughout the duration of his
representation. The State responds that Horn's arguments are conclusory and have been
waived for failure to raise his arguments in Horn II.

Oddly, neither party addresses the fact that the trial court denied this argument, as
it denied all of Horn's arguments, because it had been previously litigated. The trial
court's ruling was clearly incorrect because before this K.S.A. 60-1507 motion, Horn
never asserted that Lewis was incompetent. Yet, all things considered, we affirm because
Horn's arguments are either conclusory or not supported by the record. See Gannon, 302
Kan. at 744.

Applicable Law

To establish ineffective assistance of counsel, defendants must show (1) that their
attorney's representation was deficient under the totality of the circumstances, and (2) that
they suffered prejudice as a result of their attorney's deficient representation. Sola-
27

Morales v. State, 300 Kan. 875, 882, 335 P.3d 1162 (2014) (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]). To establish prejudice, defendants must show that the outcome of the
proceeding would have been different but for their counsel's deficient performance. State
v. Sprague, 303 Kan. 418, 426, 362 P.3d 828 (2015). Also, this court must strongly
presume that counsel's conduct fell within the broad range of reasonableness. State v.
Kelly, 298 Kan. 965, 970, 318 P.3d 987 (2014).

Arguments Not Waived

Although the State argues that Horn waived any argument that Lewis failed to
adequately raise the alleged unnecessary delay of Horn's first appearance argument by not
raising it either in a motion to reconsider or in Horn II, this is not the case. Horn II was a
direct appeal from the denial of Horn's motion to withdraw pleas and resentencing.
Criminal defendants move for relief under K.S.A. 60-1507 only after exhausting their
direct criminal appeals because it is a collateral attack on their conviction or sentence.
K.S.A. 60-1507(a); see also Beauclair v. State, No. 112,556, 2016 WL 852859, at *2
(Kan. App. 2016) (explaining that criminal defendants may challenge their sentences
under K.S.A. 60-1507 only after exhausting all appeals in their direct criminal cases). In
fact, our Supreme Court has explained that claims of ineffective assistance of counsel are
generally inappropriate in direct appeals because they should be resolved in an action for
habeas corpus. State v. Galaviz, 296 Kan. 168, 192, 291 P.3d 62 (2012). Thus, Horn had
no duty to argue that Lewis, who was still acting as Horn's attorney through the Horn II
appeal, provided ineffective assistance of counsel before filing this K.S.A. 60-1507
motion.

28

Unnecessary Delay of First Appearance

Horn's first argument is that Lewis did not do a good enough job alleging
unnecessary delay of his first appearance because "Lewis only said that the police's action
was in violation of McLaughlin, without pointing out this [was] a constitutional
violation." It seems Horn believes that Lewis may have precluded him from filing a
federal habeas.

This argument was never addressed in the Horn II decision. Nevertheless, the
State asserts that this court cannot reach the merits of Horn's argument because Horn
failed to include Lewis' appellant's brief for Horn II in this case's record on appeal.
Parties have the burden to designate a record showing that they are entitled to relief.
Friedman, 296 Kan. at 644-45. Horn's failure to include Lewis' brief in the record on
appeal precludes this court from making a determination that Lewis failed to raise this
issue, which is necessary for Horn to prove ineffective assistance of counsel on appeal.
Thus, Horn's argument must fail.

Rebuttal Evidence

Horn next argues that Lewis was ineffective for failing to present any rebuttal
evidence after the State rested. Specifically, Horn asserts that Lewis should have called
his trial attorneys, Gyllenborg, Dunn, and Durrett, as rebuttal witnesses because they
perjured themselves many times while being questioned by the State. Yet, Horn's
argument is conclusory. He assumes harm without explaining how his trial attorneys
perjured themselves or what Lewis should have done to establish their perjury. To
succeed, K.S.A. 60-1507 movants must make more than conclusory allegations. Sola-
Morales, 300 Kan. at 881. Because Horn's argument is conclusory, we determine that it
fails.

29

Sequestering Witnesses

Horn briefly mentions that he believes that Lewis should have requested that
Gyllenborg, Dunn, and Durrett be sequestered during his plea withdrawal hearing.
Nevertheless, Horn never explains how Lewis' failure to sequester Gyllenborg, Dunn, or
Durrett constituted ineffective assistance of counsel or resulted in prejudice. Conclusory
arguments without support are not enough to obtain relief under K.S.A. 60-1507. Sola-
Morales, 300 Kan. at 881. Also, appellants abandon arguments they raise incidentally in
their brief without explanation or argument. Friedman, 296 Kan. at 645. Here, by failing
to explain how Lewis was ineffective and by failing to argue how Lewis' action resulted
in prejudice, we determine that Horn's arguments are conclusory and they have been
abandoned.

Communication

Last, Horn lists the dates Lewis communicated with him and then asserts that this
was not enough communication. Yet, as with his previous argument, outside of briefly
mentioning that Lewis never sent him the motions he intended to file on his behalf, Horn
does not explain why Lewis' level of communication was inadequate. Moreover, Horn
never explains how Lewis' alleged failures resulted in prejudice. Thus, this argument is
conclusory and must fail. Additionally, in regards to the motions Lewis allegedly never
sent Horn, Horn had no right to review or provide input on those motions. Attorneys have
a duty to consult with their clients, keeping them apprised of their cases, but all strategic
and tactical decisions belong to the attorney not to their clients. See State v. Johnson, 304
Kan. 924, 951, 376 P.3d 70 (2016).

30

Complaints about Schlimmer

Finally, it seems Horn takes issue with Schlimmer's representation of him as his
K.S.A. 60-1507 counsel. Horn complains that Schlimmer was ineffective because she did
not properly communicate with him regarding his K.S.A. 60-1507 motion. He also
complains that she failed to adequately represent him given her admission to the trial
court that all of his K.S.A. 60-1507 arguments had been previously litigated.

Horn is raising this argument for the first time on appeal. As noted already,
appellate courts will not generally consider arguments for the first time on appeal.
Galaviz, 296 Kan. at 192. In the context of ineffective assistance of counsel arguments,
our Supreme court has stated: "Only under extraordinary circumstances, i.e., where there
are no factual issues and the two-prong ineffective assistance of counsel test can be
applied as a matter of law based upon the appellate record, may an appellate court
consider an ineffective assistance of counsel claim without a [trial] court determination of
the issue. [Citation omitted.]" Wimbley v. State, 292 Kan. 796, 807, 275 P.3d 35 (2011).
Thus, "when the quality of the assistance provided to a K.S.A. 60-1507 movant by
counsel is determinable on the transcript of the nonevidentiary hearing included in the
record on appeal, the appellate court is able to address this issue without remand to the
trial court" for the first time on appeal. Alford v. State, 42 Kan. App. 2d 392, 394, 212
P.3d 250 (2009), rev. denied 290 Kan. 1092 (2010).

We will consider Horn's alleged ineffectiveness argument against Schlimmer. We
are guided in this inquiry by the Alford decision. In that case, Alford moved for relief
under K.S.A. 60-1507. The trial court appointed counsel and a nonevidentiary hearing
was held. At the nonevidentiary hearing, counsel advocated against Alford and Alford's
K.S.A. 60-1507 arguments. Alford challenged his 60-1507 counsel's performance for the
first time on appeal. The Alford court noted that generally we do not look at ineffective
assistance of counsel claims for the first time on appeal. Nevertheless, this court stated
31

that "when the quality of the assistance provided to a K.S.A. 60-1507 movant by counsel
is determinable on the transcript of the nonevidentiary hearing included in the record on
appeal, the appellate court is able to address this issue without remand to the trial court."
42 Kan. App. 2d at 394. Because the Alford court could determine the quality of
assistance of counsel from the transcripts, the court considered the issue for the first time
on appeal. The Alford court concluded that because Alford's attorney actively advocated
against him, he clearly provided deficient performance. 42 Kan. App. 2d at 398-99.

The Alford court considered Campbell v. State, 34 Kan. App. 2d 8, 114 P.3d 162
(2005), and Robertson v. State, 288 Kan. 217, 201 P.3d 691 (2009), which reversed the
Campbell decision. In both cases, our Supreme Court ruled that counsel was ineffective
because they advocated against their clients. In Campbell, this court focused on whether
counsel essentially directed an adverse decision from the trial court. The Campbell court
concluded that counsel did so without looking into whether Campbell's 60-1507 claims
had merit. Accordingly, the Campbell court reversed and remanded for a new hearing on
the 60-1507 motion. 34 Kan. App. 2d at 14.

Robertson reversed Campbell, holding that appellate courts should not remand for
a new hearing on the 60-1507 motion unless there was some evidence that the underlying
60-1507 motion had merit. In other words, Robertson held that remand was not
necessary, even when counsel actively advocated against a client, when no prejudice
could be established by counsel's deficient performance. 288 Kan. At 230-32.

The Alford court also considered State v. Hemphill, 286 Kan. 583, 595, 186 P.3d
777 (2008), a case where counsel advocated against his client at a motion to withdraw
plea hearing. The Hemphill court determined that this was deficient performance, and
there was prejudice within the abandonment itself. The Alford court considered whether
the Hemphill or Robertson opinion would apply to Alford's case and eventually applied
Robertson because it involved ineffective assistance of 60-1507 counsel as opposed to
32

Hemphill, which involved ineffective assistance of counsel concerning a motion to
withdraw a plea. Alford, 42 Kan. App. 2d at 402-04,

Finally, the Alford court went through Alford's K.S.A. 60-1507 arguments. The
Alford court determined that all of them failed because they were either conclusory,
should have been raised in a prior appeal, legally meritless, or not supported by the
record in the case. As a result, the Alford court ruled that Alford was not prejudiced
despite the deficient performance of his counsel, and therefore, affirmed without
remanding the matter to the trial court. 42 Kan. App. 2d at 403-04.

Turning our attention to Horn's arguments of ineffectiveness against Schlimmer,
we reject Horn's arguments because he can never establish prejudice under the second
prong of the ineffective assistance of counsel test. In short, each of Horn's K.S.A. 60-
1507 arguments fail because (1) they are barred by res judicata, (2) they are conclusory
and abandoned, or (3) they are not supported by the records and files of his case. Because
each of Horn's previous arguments failed for reasons unrelated to the quality of
Schlimmer's representation, he can never establish that the trial court would not have
denied his K.S.A. 60-1507 motion but for Schlimmer's representation. As a result, Horn's
argument that Schlimmer was ineffective fails.

Affirmed.