Kling v. State

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NOT DESIGNATED FOR PUBLICATION

No. 120,869

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

DOUGLAS A. KLING,
Appellant,

v.

STATE OF KANSAS,
Appellee.


MEMORANDUM OPINION

Appeal from Marshall District Court; JOHN L. WEINGART, judge. Opinion filed January 31, 2020.
Reversed and remanded with directions.

Joseph A. Desch, of Law Office of Joseph A. Desch, of Topeka, for appellant.

Laura E. Johnson-McNish, county attorney, and Derek Schmidt, attorney general, for appellee.

Before ATCHESON, P.J., MALONE, J., and DANIEL D. CREITZ, District Judge, assigned.

PER CURIAM: The Marshall County District Court denied Douglas A. Kling's
habeas corpus motion when the lawyer appointed to represent Kling agreed to that
disposition, apparently without Kling's consent. After Kling objected to the denial of his
motion, the district court entered another order finding the motion to be without merit.
Under the circumstances, we hold the district court acted improvidently in light of the
disagreement between Kling and his lawyer. We, therefore, reverse and remand to the
district court with directions to reinstate the habeas corpus motion, to appoint a new
lawyer for Kling, and to set the matter for either another preliminary hearing or a full
evidentiary hearing.
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A jury convicted Kling of attempted first-degree murder and a slew of other
felonies arising out of a single violent episode directed at his wife. The district court
imposed a controlling prison sentence of 430 months on him. Kling appealed, and this
court affirmed the verdicts and the judgment. State v. Kling, No. 105,896, 2012 WL
5869562, at *1 (Kan. App. 2012) (unpublished opinion). Kling represented himself
during the trial and the appeal in the direct criminal case.

After the Kansas Supreme Court denied a petition for review, Kling timely filed a
motion for habeas corpus relief under K.S.A. 60-1507 in July 2014. Kling drafted the
motion, and it presents multiple issues, many of which were or could have been raised in
the direct appeal. A little more than a month after the motion was filed, the district court
appointed Richard Lake to represent Kling, replacing the lawyer originally appointed.
Lake requested a number of continuances. The record on appeal reflects no substantive
action on the 60-1507 motion through the end of 2016.

In early January 2017, Kling drafted and filed with the district court what he titled
a "Request for Case Status." In the filing, Kling stated that Lake informed him by letter in
November 2016 that the district court had "terminated" the proceedings, so Lake was "no
longer on the case." Kling further stated he had received no notification of any ruling on
his 60-1507 motion and if an order had been entered, he had been deprived of an appeal.
As we have indicated, the record includes no dispositive order on the motion through
January 2017.

In a letter to the district court dated January 24, 2017, and filed in the case on
February 2, Lake stated he and Kling "had narrowed" the 60-1507 motion to a single
point—that isn't identified—and Kling never provided any evidence supporting that
claim. According to Lake, he advised Kling "his case was dismissed because there was
no justiciable issue remaining." The letter indicates Lake sent a copy to Kling.
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On February 13, 2017, the district court filed an order denying Kling's 60-1507
motion. The order bears the electronic signatures of the prosecutor and Lake as approving
the order. The order recites that a hearing had been held on an unspecified date earlier in
February at which the lawyers appeared. The order refers to Lake's January 24 letter and
the revision of the motion to a single issue. Without identifying the issue, the order states
Lake had "no evidence to present on the issue at the hearing." According to the order, the
prosecutor then announced that "the parties jointly request that this matter be dismissed."
Based on that representation, the district entered the order denying the motion.

On February 24, Kling served a motion he had drafted asking the district court to
reconsider the order of dismissal. In the motion for reconsideration, Kling contends he
never agreed to drop all but one of the issues in his 60-1507 motion and did not consent
to an agreed-upon dismissal of the motion. He also accuses Lake of a lack of diligence in
representing him.

About six months later, the district court filed a memorandum decision denying
Kling's motion for reconsideration and finding the 60-1507 motion to be without merit,
since the asserted claims were repetitive of the issues raised in the direct appeal. The
district court's decision notes that motions for reconsideration typically are confined to
pointing out material factual or legal errors in an earlier ruling and are not devices for
rehashing arguments already made and rejected. The decision doesn't identify the issues
Kling raised in his 60-1507 motion that had been or could have been asserted in the direct
appeal. The district court relies on a blanket characterization of the entire motion as
impermissibly repetitive.

Kling filed a timely notice of appeal, and this court granted him permission to
docket the appeal late.

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In reviewing this appeal, we start with an indisputable premise: The handling of
Kling's 60-1507 motion in the district court was, to put it charitably, unorthodox. Based
on the appellate record, that unorthodoxy has left Kling without a fair determination of
his claims.

When a district court receives a 60-1507 motion, it essentially has three options.
The district court can summarily dismiss the motion after reviewing it and the contents of
the case file. Sola-Morales v. State, 300 Kan. 875, 881, 335 P.3d 1162 (2014); Bellamy v.
State, 285 Kan. 346, 353-54, 172 P.3d 10 (2007). The motion should be dismissed
without a hearing only if the allegations and the case records "conclusively show that the
prisoner is entitled to no relief." K.S.A. 60-1507(b); Supreme Court Rule 183(f) (2019
Kan. Ct. R. Annot. 228). Otherwise, the district court has two choices after appointing a
lawyer for an unrepresented movant. It can conduct a preliminary hearing during which
the prosecutor and lawyer for the defendant present legal argument and otherwise address
whether the circumstances call for a full evidentiary hearing. The district court may
receive a limited amount of evidence at a preliminary hearing. Bellamy, 285 Kan. at 354.
Finally, the district court can dispense with a preliminary hearing and hold a full
evidentiary hearing. See Sola-Morales, 300 Kan. at 881.

The district court ostensibly held a hearing with the lawyers in this case in
February 2017 when the prosecutor asked that Kling's motion be dismissed by
agreement—a request Lake at least tacitly joined. That's not exactly a preliminary hearing
in the sense contemplated in the caselaw. A preliminary hearing would identify issues,
possible evidence, and the need for a full evidentiary hearing. The argument and any
limited evidence could lead the district court to deny relief. Here, the record at least
suggests no hearing actually happened. There is no transcript, and the record of activity in
the district court shows no hearing between the receipt of Kling's Request for Case Status
and the February 13 dismissal order. The recitation of appearances of the prosecutor and
Lake before the district court contained in the order may well be nothing more than
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boilerplate—an unfortunate carryover of bygone days when phantom hearings were
routinely set forth in agreed-upon journal entries as if they actually happened,
confounding efforts to reconstruct accurate case histories. Court records generally should
be free of such things. In any event, the district court did not take testimony or receive
other evidence at the hearing or otherwise, so we may exercise unlimited review of the
ruling denying Kling relief. See Grossman v. State, 300 Kan. 1058, 1061, 337 P.3d 687
(2014); Sola-Morales, 300 Kan. at 881.

Where, as here, the district court has appointed a lawyer to represent an inmate
pursuing habeas corpus relief under K.S.A. 60-1507, that lawyer cannot agree to a denial
of the motion without the consent of his or her client. See Campbell v. State, 34 Kan.
App. 2d 8, 13, 114 P.3d 162 (2005) (appointed lawyer's advocacy against client's 60-1507
motion falls below "'the most minimal of standards'" for representation in those
proceedings); Stanton v. State, No. 97,568, 2008 WL 1847667, at *2 (Kan. App. 2008)
(unpublished opinion) (without consent of client to drop 60-1507 motion, lawyer must
either withdraw as appointed counsel or "argue[] in support of the merits of the motion").
The record, as it stands, reflects Lake acted without Kling's approval and, indeed,
contrary to his wishes in joining in the request to the district court to deny the motion.

Under the circumstances, the district court should not have denied Kling's 60-1507
motion in February 2017. After Kling objected and requested reconsideration, the district
court could not have papered over the error and Lake's apparent disregard of his client's
wishes with a review of the motion itself. The district court should have reset the
proceedings by appointing a new lawyer for Kling and then convening a preliminary
hearing.

We, therefore, reverse and remand with directions that the district court appoint a
new lawyer for Kling and with reasonable dispatch schedule either a preliminary hearing
or a full evidentiary hearing.
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