Jones v. State

1

NOT DESIGNATED FOR PUBLICATION

No. 114,601

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

AUSTIN N. JONES,
Appellant,

v.

STATE OF KANSAS,
Appellee.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; JAMES R. FLEETWOOD, judge. Opinion filed December 30,
2016. Affirmed.

Kristen B. Patty, of Wichita, for appellant.

Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before GARDNER, P.J., ATCHESON, J., and STUTZMAN, S.J.

Per Curiam: Austin Jones appeals the district court's denial of his motion for
relief under K.S.A. 60-1507. Finding no reversible error, we affirm.

Factual and procedural background

A jury convicted Jones of two counts of first-degree murder, one count of
aggravated assault, and one count of criminal possession of a firearm. For each of the two
first-degree murder charges, the district court sentenced Jones to hard 25 life sentences.
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Jones' direct appeal of his criminal case was unsuccessful, and the Kansas Supreme Court
affirmed his convictions. State v. Jones, 298 Kan. 324, 311 P.3d 1125 (2013).

The facts in Jones' criminal case were set out fully in that decision, so we repeat
only the facts most relevant to this appeal. It was undisputed that Jones came out of his
apartment and shot and killed two men in the parking lot. Jones, 298 Kan. at 324-25.
Jones testified that the two victims and another man surrounded him when he went
outside, that one victim punched him in the face, and that someone punched him from
behind. 298 Kan. at 327-28. He stated that after being hit, he reached into his waistband,
pulled out a gun because he feared for his life, and shot once in front of him and once
behind him. 298 Kan. at 328. Autopsies showed that one victim died as a result of a
gunshot wound to the back of the head, and the other victim died from a gunshot wound
to the rear side of the head. 298 Kan. at 327.

In his direct appeal, Jones argued that he had raised self-defense as justification,
which in turn invoked the immunity provisions of K.S.A. 21-3219, the Stand-Your-
Ground law. 298 Kan. at 329. He also argued prosecutorial misconduct. 298 Kan. at 332.

After the Kansas Supreme Court affirmed Jones' convictions, he filed this civil
motion for relief under K.S.A. 60-1507. The district court examined the motion and the
record, then denied the motion in part, but ordered the State to brief one issue—whether
Jones' trial counsel's failure to raise the defense of immunity from prosecution constituted
ineffective assistance of counsel. The district court did not order or permit Jones to brief
that issue or to respond to the State's brief, and did not appoint counsel for Jones. After
receiving the State's brief, the district court denied Jones' motion, stating: "After
carefully reviewing the written pleadings in this matter, the court adopts the findings of
facts and conclusions as offered in the State's response." The next day, Jones, acting pro
se, filed a "Detached Memorandum in Support of 60-1507 Petition." Jones timely
appeals.
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Standard of Review

Our standard of review for the denial of a K.S.A. 60-1507 motion depends upon
which approach the district court used to dispose of the motion. Here, the district court
did not determine that the motion conclusively showed Jones was entitled to no relief and
then deny the motion summarily. Instead, it reviewed the motion, ordered the State to
brief an issue, reviewed the State's brief, and then adopted the findings and conclusions in
that brief. We consider those acts to be tantamount to a preliminary hearing. When a
court denies a 60-1507 motion based only on the motion, files, and records after a
preliminary hearing, we are in as good a position as that court to consider the merits, so
we exercise de novo review. Sola-Morales v. State, 300 Kan. 875, 881, 335 P.3d 1162
(2014).

The district court erred in denying Jones' motion without appointing counsel

We first examine Jones' argument that the district court should have appointed
counsel to represent him in his K.S.A. 60-1507 motion.

The district court denied Jones' claims of judicial misconduct, prosecutorial
misconduct, and introduction of perjured testimony because they did "not provide a basis
for which relief can be granted." But the district court did not deny the remaining claim
and instead ordered the State "to provide written briefs addressing the issue of defense
counsel[']s failure to raise the defense of prosecutorial immunity."

Postconviction proceedings under K.S.A. 60-1507 are civil in nature so they are
not controlled by the same constitutional requirements applicable to criminal cases.
Brown v. State, 278 Kan. 481, 483, 101 P.3d 1201 (2004); State v. Andrews, 228 Kan.
368, 375, 614 P.2d 447 (1980). The defendant has no constitutional right to counsel when
attacking a conviction in post-conviction proceedings. Pennsylvania v. Finley, 481 U.S.
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551, 555, 107 S. Ct. 1990, 95 L. Ed. 2d 539 (1987); Robertson v. State, 288 Kan. 217,
228, 201 P.3d 691 (2009).

However, Kansas provides a statutory right to counsel for collateral attacks in
some situations. Under the relevant statute, if the court finds that a K.S.A. 60-1507
motion presents substantial questions of law or triable issues of fact, the court shall
appoint counsel if the movant is indigent. K.S.A. 22-4506(b). Similarly, Kansas Supreme
Court Rule 183(i) (2015 Kan. Ct. R. Annot. 273) provides: "Right to Counsel. If a
motion to vacate, set aside, or correct a sentence presents a substantial question of law or
triable issue of fact, the court must appoint counsel to represent an indigent movant."
"Once this statutory right to counsel attaches, a [K.S.A. 60-1507] movant is entitled to
effective assistance of counsel." Robertson, 288 Kan. at 228.

A district court has three options when considering a 60-1507 motion:

"When a district court considers a K.S.A. 60-1507 motion, it may: (a) determine that the
motion, files, and case records conclusively show the prisoner is entitled to no relief and
deny the motion summarily; (b) determine from the motion, files, and records that a
potentially substantial issue exists, in which case a preliminary hearing may be held after
appointment of counsel. If the court then determines there is no substantial issue, the
court may deny the motion; or (c) determine from the motion, files, records, or
preliminary hearing that there is a substantial issue requiring an evidentiary hearing."
Sola-Morales v. State, 300 Kan. 875, Syl. ¶ 1.

Jones argues that he was entitled to have counsel appointed under the third option
above because he presented "at least a substantial question of law, if not a triable issue of
fact," on his ineffectiveness of counsel claim. We disagree. The district court's request for
one issue to be briefed shows only that the court needed more information than the
motion, files, and record provided; and does not constitute a determination that Jones'
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motion presented a substantial issue requiring an evidentiary hearing and appointment of
counsel.

Jones next contends that the district court's order for the State to brief an issue was
a tacit acknowledgement that he had raised a potentially substantial issue, entitling him to
appointed counsel under the second option above. We agree.

Although Jones' claims of ineffective assistance of counsel appear to be
conclusory, the district court found one of them sufficient to warrant further attention.
Something in the immunity claim Jones made, perhaps the nature or the severity of the
claim, prompted the district court to order the State to respond; yet the district court did
not provide Jones that same opportunity. The district court's action left Jones without
counsel, without an opportunity to brief the specific claim the State was ordered to brief,
and without an opportunity to reply to the State's response. We believe that the district
court's order for the State to brief this issue reflected the district court's determination
from the motion that a potentially substantial issue existed.

Caselaw consistently requires that a district court appoint counsel for a K.S.A. 60-
1507 movant before conducting a preliminary hearing to determine whether potentially
substantial issues in the motion are, in fact, substantial. See, e.g., State v. Sprague, 303
Kan. 418, 425, 362 P.3d 828 (2015) ("'Finally, the court may determine that a potentially
substantial issue or issues of fact are raised in the motion, supported by the files and
record, and hold a preliminary hearing after appointment of counsel to determine whether
in fact the issues in the motion are substantial.'"); Bellamy v. State, 285 Kan. 346, 354,
172 P.3d 10 (2007) ("The second option gives the district court an opportunity to conduct
a preliminary hearing after appointing counsel for the petitioner. At the preliminary
hearing, the district court may admit limited evidence and consider arguments of
counsel."); Lujan v. State, 270 Kan. 163, 170-71, 14 P.3d 424 (2000) (finding "the court
may determine that a potentially substantial issue or issues of fact are raised in the
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motion, supported by the files and record, and hold a preliminary hearing after
appointment of counsel to determine whether in fact the issues in the motion are
substantial").

Accordingly, we find the district court erred in failing to appoint counsel for Jones
before reviewing the State's brief. In the interest of fairness, the court should have
appointed counsel for Jones and permitted him to brief the same issue it ordered the State
to brief before deciding whether that issue was substantial.

The failure to appoint counsel was harmless

Jones contends that we should remand for an evidentiary hearing at which he
would be represented by counsel. Instead, we apply a harmless error standard to this
statutory error.

When determining if a fundamental failure made it impossible to proceed without
injustice, a court must assess whether the failure affects a party's substantial rights—in
other words—whether it will affect the trial's outcome. "The degree of certainty by which
the court must be persuaded that the error did not affect the outcome of the trial will vary
depending on whether the error implicates a right guaranteed by the United States
Constitution. If it does not, the court will use the statutory harmless error standard of
K.S.A. 2015 Supp. 60-261 and K.S.A. 60-2105." State v. Cheever, No. 114,289, 2016
WL 6821871, at *3 (Kan. App. 2016) (unpublished opinion), petition for rev. filed
December 1, 2016.

Because Jones had only a statutory right to counsel in this civil proceeding, the
district court's failure to appoint counsel did not deny Jones his constitutional Sixth
Amendment right to the assistance of counsel. Accordingly, we use the statutory harmless
error standard stated in K.S.A. 2015 Supp. 60-261 and K.S.A. 60-2105.
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Both statutes require us to consider whether an error affects "substantial rights."
K.S.A. 2015 Supp. 60-261 ("At every stage of the proceeding, the court must disregard
all errors and defects that do not affect any party's substantial rights."); K.S.A. 60-2105
("The appellate court shall disregard all mere technical errors and irregularities which do
not affirmatively appear to have prejudicially affected the substantial rights of the party
complaining."). "This means the court must determine whether the fundamental failure
was harmless." State v. Kleypas, 305 Kan. ___, 382 P.3d 373, 409 (2016).

"For nonconstitutional error, the trial court applies K.S.A. 2015 Supp. 60-261 and
determines if there is a reasonable probability the error did or will affect the outcome of
the trial in light of the entire record. . . . Under either test, the party benefitting from the
error bears the burden of demonstrating harmlessness. Corey, 304 Kan. at 731-32."
State v. Cheever, 2016 WL 6821871, at *3.We do the same. Accordingly, we review the
substance of Jones' ineffective assistance of counsel claim below, asking whether the
State has met its burden to show no reasonable probability that the failure to appoint
counsel affected the outcome of Jones' K.S.A. 60-1507 motion.

Jones was not denied the effective assistance of counsel at trial

To succeed on a 60-1507 motion on an ineffective assistance of counsel claim, a
criminal defendant must show both that his or her lawyer's representation fell below a
level of reasonable competence and that the outcome of the case likely would have been
different had the lawyer performed competently. See Strickland v. Washington, 466 U.S.
668, 687-88, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Sola-Morales v. State, 300
Kan. at 882.We need not determine whether counsel's performance was deficient before
examining prejudice to the defendant. Instead of a mechanical approach, "the ultimate
focus of inquiry must be on the fundamental fairness of the proceeding whose result is
being challenged." Strickland, 466 U.S. at 670.

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Failure to assert a claim of immunity

Jones appeals only one claim of ineffective assistance of counsel stated in his
K.S.A. 60-1507 motion—that his trial counsel failed to assert a theory of immunity from
prosecution based on Kansas' "Stand-Your-Ground" law, K.S.A. 21-3219 (now K.S.A.
2015 Supp. 21-5231). Jones' K.S.A. 60-1507 motion included one other claim of
ineffective assistance of counsel—that counsel had failed to subpoena a corroborating
witness—but we deem that claim abandoned because Jones has not addressed that claim
in his appellate brief. See State v. Williams, 303 Kan. 750, 758, 368 P.3d 1065 (2016).

The immunity defense must be asserted before trial opens or a dispositive plea is
entered. Jones, 298 Kan. at 334. Under this law, "a person is immune from prosecution
for using deadly force only if that use of force was justified, and using deadly force is
justified only if the person reasonably believed it was necessary to prevent imminent
death or great bodily harm." State v. Wiseman, No. 113,468, 2016 WL 6024582, at *6
(Kan. App. 2016) (unpublished opinion), petition for rev. filed November 14, 2016.

Invoking immunity from prosecution under this statute involves both a subjective
and an objective element: (1) the person must have sincerely believed that using deadly
force was necessary to defend himself or herself; and (2) a reasonable person in the same
circumstances would have perceived that deadly force was necessary. McCracken v.
Kohl, 286 Kan. 1114, Syl. ¶ 3, 191 P.3d 313 (2008). The standard of proof for whether a
defendant is entitled to immunity from criminal prosecution pursuant to K.S.A. 21-3219
is probable cause, and when that immunity is timely raised the State bears the burden of
establishing that force was not justified as part of the probable cause determination.
Jones, 298 Kan. at 331; State v. Ultreras, 296 Kan. 828, 845, 295 P.3d 1020 (2013).

The State argues that Jones could not prevail on his ineffective assistance of
counsel claim which was based on self-defense, because the jury rejected his defense of
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self-defense, necessarily showing that an immunity defense would not have succeeded.
We agree.

We need not independently analyze this issue because the Kansas Supreme Court
in Jones' direct appeal resolved this issue against Jones. Jones, 298 Kan. at 334. It stated
that the result of Jones' trial, with its attendant burden of proof beyond a reasonable
doubt, necessarily proved that the State would have overcome a Stand-Your-Ground
immunity claim had it been raised at the preliminary hearing, because the standard of
proof in that hearing is probable cause. 298 Kan. at 334; see also State v. Barlow, 303
Kan. 804, 814, 368 P.3d 331 (2016). The court concluded: "In Jones' situation in
particular, the jury rejected his claim of self-defense. This means the State has already
borne an evidentiary burden far higher than the probable cause burden imposed upon it
by the Stand-Your-Ground statute." 298 Kan. at 334.

We cannot revisit the viability of Jones' immunity defense because the decision of
the Kansas Supreme Court in Jones' direct appeal acts as res judicata on this issue. See
Drach v. Bruce, 281 Kan. 1058, 1079-80, 136 P.3d 390 (2006) (where an appeal is taken
from a conviction, the judgment of the reviewing court is res judicata as to all issues that
were raised), citing State v. Neer, 247 Kan. 137, 140-41, 795 P.2d 362 (1990). Thus
Jones cannot use a K.S.A. 60-1507 motion to attempt a second appeal on immunity.
Kansas Supreme Court Rule 183(c)(3) (2015 Kan. Ct. R. Annot. 272).

Because the record is clear that an immunity claim could not have prevailed, Jones
can show no prejudice from his counsel's failure to raise a K.S.A. 21-3219 immunity
claim. Thus Jones cannot show ineffective assistance of counsel. See Sola-Morales, 300
Kan. at 882-83. Accordingly, we do not reach the issue of deficient performance.

Because Jones' ineffective assistance of counsel claim necessarily fails on
its merits as a matter of law, appointed counsel could have obtained no other result
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for him. The State has met its burden to show no reasonable probability that the
failure to appoint counsel affected the outcome of Jones' K.S.A. 60-1507 motion.
Otherwise stated, Jones' motion raised a potentially substantial issue, but not a
substantial issue. Remanding for appointment of counsel would thus be futile and
the district court's error is harmless. See Anderson v. Dugger, 130 Kan. 153, 156,
285 Pac. 546 (1930) (finding "[t]he law does not require the performance of a
futile or useless act").

The district court's disposition of Jones' prosecutorial misconduct claim does not require
remand

Jones also argues that remand is necessary because the district court failed to make
the necessary findings of fact on his claim that the prosecutor fabricated evidence and
contaminated the crime scene. The district court must make findings of fact and
conclusions of law on all issues presented. Kansas Supreme Court Rule 183(j) (2015
Kan. Ct. R. Annot. 273). As to Jones' claim of prosecutorial misconduct, the district court
simply stated, "The conviction was affirmed [on direct appeal] rejecting the matter of
prosecutorial misconduct."

Jones concedes that he raised other claims of prosecutorial misconduct in his
direct appeal, but he argues that the claims of prosecutorial misconduct raised in his
K.S.A. 60-1507 motion were not raised on direct appeal. Jones is correct on this matter.
Jones, 298 Kan. at 334-41. Nonetheless, we reject Jones' claim of insufficient findings for
two reasons.

First, Jones' new claims of prosecutorial misconduct—that the prosecutor
fabricated evidence and contaminated the crime scene—should have been included in his
direct appeal with his other claims of prosecutorial misconduct. As our Supreme Court
has held: "[I]ssues that could have been presented, but were not presented, are deemed
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waived. Where a defendant's claim has not been raised at trial or on direct appeal, such a
default prevents the defendant from raising the claim in a second appeal or a collateral
proceeding." Neer, 247 Kan. at 140-41. By including some, but not all of his claims of
prosecutorial misconduct on direct appeal, Jones waived those not included. See Baker v.
State, 42 Kan. App. 2d 949, 953, 219 P.3d 827 (2009) (finding K.S.A. 60-1507
proceedings are subject to the policy against piecemeal litigation), aff'd 297 Kan. 486,
303 P.3d 675 (2013).

Second, Jones did not object below to the district court's allegedly inadequate
findings of fact and conclusions of law. To give the district court the opportunity to
correct inadequacies, litigants and their counsel generally bear the responsibility of
objecting to such errors. In the absence of an objection, we do not consider omissions in
findings below. See State v. Herbel, 296 Kan. 1101, 1119, 299 P.3d 292 (2013). Instead,
we may presume the district court found all the facts necessary to support its judgment,
unless the lack of specific findings precludes meaningful review. State v. Vaughn, 288
Kan. 140, 143, 200 P.3d 446 (2009).

The lack of specific findings in this case has not precluded meaningful review on
the issue. We find no reversible error in the district court's succinct yet accurate rejection
of Jones' new claims of prosecutorial misconduct.

Affirmed.