Nelson v. State

1

NOT DESIGNATED FOR PUBLICATION

No. 114,435

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

JEFFREY NELSON,
Appellant,

v.

STATE OF KANSAS,
Appellee.

MEMORANDUM OPINION


Appeal from McPherson District Court; RICHARD B. WALKER, judge. Opinion filed February 3,
2017. Affirmed.

Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellant.

Jamie L. Karasek, deputy county attorney, and Derek Schmidt, county attorney, for appellee.

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

PIERRON, J.: Jeffrey Nelson was convicted of first-degree premeditated murder,
burglary, and three counts of forgery. The district court sentenced him to a mandatory
minimum of 50 years in prison (hard 50). Ninety-six days after the Kansas Supreme
Court upheld his hard 50 sentence, the United States Supreme Court issued Alleyne v.
United States, 570 U.S. __, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013), which ruled
sentences such as Kansas' hard 50 sentencing scheme were unconstitutional. Nelson filed
a motion pursuant to K.S.A. 60-1507 claiming his trial counsel was ineffective and his
appellate counsel was ineffective for failing to file a writ of certiorari to the United States
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Supreme Court which he claims would have secured him relief under Alleyne. The
district court denied his motion after an evidentiary ruling. Nelson appeals.

On April 25, 2008, a jury convicted Nelson of first-degree murder, burglary, and
three counts of forgery. Our Supreme Court affirmed his convictions on appeal in State v.
Nelson, 291 Kan. 475, 476, 243 P.3d 343 (2010) (Nelson I). The following facts are
taken directly from the Supreme Court's opinion in Nelson I:

"The relevant events occurred over a 3-day time span. On August 24, 2007,
Nelson went to the house of his stepfather Swartz, just as Swartz was getting ready to
leave for work. Swartz indicated Nelson was not welcome and waited for Nelson to leave
before going to work. Nelson returned while Swartz was at work and broke into the
garage. Nelson used a ladder to crawl through an attic space connecting the garage to the
house because the garage did not have direct access to the house. Once inside the attic
space, the ceiling buckled and Nelson fell through, creating a hole. When Swartz returned
home after work, Nelson was gone. Swartz reported the break-in to police and said his
checkbook was missing.
"At 9:38 p.m. that same day, Nelson used an ATM to deposit a $5,000 forged
check from Swartz' account. Nelson then picked up his friend, Keith Hewitt. They drove
to Wal-Mart, and Nelson bought a baseball bat. As they were leaving the parking lot,
Nelson asked Hewitt if he would help him beat up Swartz. Hewitt testified at trial that he
talked Nelson out of this. The two then went to a club. Nelson took Hewitt home at 2
a.m., but Nelson returned at 3 a.m. and offered Hewitt $500 to help him 'take care of'
Swartz. Hewitt refused.
"The next day, April 25, 2007, Nelson and Swartz had a chance encounter at
Wal-Mart that became heated, but not physical. Sometime later that day Nelson deposited
a $100 forged check from Swartz' account into his friend Misty Sauder's account. At
around 10 p.m. Nelson asked Amber Moore, a girl he was dating, if she wanted to watch
a movie. Moore picked Nelson up at his grandparents' house; he asked her if she would
think poorly of him if he beat someone up; and then he asked her to drive him by Swartz'
employer to see if his truck was in the parking lot. It was. Nelson then asked Moore to
drive him back to his grandparents' house where he retrieved the bat. He told Moore he
needed the bat for protection because he was going to beat up Swartz.
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"Moore and Nelson drove by Swartz' workplace again to make sure Swartz' truck
was still there, and then Moore dropped Nelson off at Swartz' house. He told Moore to
tell him when Swartz was driving home. Swartz returned home around 11 p.m. Moore
believed Nelson was hiding in the bushes. She drove around until 1 a.m., when she told
Nelson she was going home. She testified Nelson told her he 'could not do it,' and they
went back to Moore's house. At around 2:30 a.m., Nelson borrowed Moore's car, took the
baseball bat, and said he was returning to Swartz' home.
"Nelson disputes what happened next. The State contends Nelson entered the
home, discovered Swartz sleeping in his bed, and hit him on the back of the head while
he slept. The coroner testified Swartz' death was caused by a blunt force trauma to the
head, and there were no defensive wounds. A detective testified there was no evidence of
a struggle in the home. Nelson's defense theory was that Swartz let him into his house,
they fought, Nelson tried to leave, and Swartz pulled him back into a fight. Finally,
Nelson grabbed the bat, Swartz reached for it, and Nelson hit him with it. This defense
theory is based on varying statements Nelson gave the police. Nelson did not testify at
trial.
"Initially, Nelson told a detective he got into a fight with Swartz between 11:30
and 11:45 p.m. on April 25. He said they fought over the bat and he hit Swartz with it. He
said Swartz was fine when he left. Nelson later added greater and sometimes conflicting
details about the physical altercation. This portion of the interview is more difficult to
follow, but begins with Nelson saying that he went into a room in Swartz' house and
found the bat. Swartz was standing in the room's doorway. Nelson chopped at Swartz
with the bat, and Swartz backed into his bedroom. Swartz antagonized Nelson by saying
he had better hit him hard, and Nelson told Swartz not to give him an excuse. Nelson then
approached Swartz, and Swartz reached for the bat, eventually catching it. Nelson pushed
Swartz, and he 'finally' hit Swartz several times with the bat. He said Swartz ended up on
the bed, lying on his back and side. Nelson told the detective he went to Swartz' house to
'fucking end the animosity and all the bullshit and all the shit [Swartz] was doing.'
"Later in the same interview, after additional prodding from the detective, Nelson
said he was going to tell the truth about what happened. Nelson admitted he brought the
bat with him and did not find it in a room in Swartz' house. At some point, Nelson told a
detective it was kind of hard to walk around the corner, look in the bathroom, and close
the door while holding the bat without it being obvious. Then Nelson said Swartz asked if
he was hiding something, and Nelson tried to 'play it off like I wasn't doing anything.'
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Nelson grabbed the door handle and pulled it. Swartz pushed him twice and slapped him
on the head. Then Nelson said he pushed him back, pulled out the bat, and hit him.
Nelson continually stated there was no blood when he left.
"Moore testified at trial that Nelson returned to her house around 6:30 a.m. that
morning, April 26. She said Nelson was pale and told her he thought he killed Swartz.
Later that day, Swartz was discovered on his couch by a coworker when Swartz did not
show up for work. Swartz was alive but unresponsive. There were pools of blood on
Swartz' bed, pillow, and in the master bedroom; blood was found going from the
bedroom, down the hallway, and in the bathroom; and there were sheets that trailed blood
through the house to the couch.
"Also that day, Nelson deposited a $400 forged check from Swartz' account.
Nelson then dropped off an apartment rental application and test drove a BMW at a
dealership. Nelson told Moore he was going to sell Swartz' vehicles for a down payment.
While Nelson was occupied with the car, Moore received a phone call that Swartz had
been taken to the hospital, and everyone suspected Nelson beat him. Moore and Nelson
left the dealership. Moore testified that she and Nelson retrieved the clothes Nelson was
wearing at the time he hit Swartz with the bat, got the bat out of a dumpster where Nelson
had stashed it, drove to the country, and discarded the items. Moore later led police back
to retrieve these items.
"On May 19, 2007, Swartz died from complications arising from the head
injuries. Nelson was charged with premeditated first-degree murder in case No. 07CR86.
He also was charged with burglary and three counts of forgery for the checks drawn on
Swartz' account in the amounts of $5,000, $100, and $400 in case No. 07CR125. The
cases were consolidated for trial." 291 Kan. at 476-79.

Prior to the State charging him with premeditated murder, Nelson had retained
Stephen Ariagno regarding several other cases he had pending. After his murder charge,
the district court appointed Ariagno to represent Nelson in his first-degree murder case. A
jury trial commenced in the present case on January 28, 2008. The next day, the court
declared a mistrial at the request of Ariagno after four different jurors reported they knew
witnesses in the case, but they were not aware of it at the time of jury selection. The
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district court rescheduled the jury trial for April 21, 2008. On April 25, 2008, the jury
found Nelson guilty on all charges.

On June 30, 2008, the district court sentenced Nelson to life in prison with
mandatory minimum sentence of 50 years (hard 50) for his first-degree murder
conviction. The court ordered the burglary and forgery sentences to run consecutive to
Nelson's hard 50 sentence, but concurrent with each other, for an additional term of 32
months' imprisonment. Nelson appealed his sentence to the Kansas Supreme Court,
arguing, among other things, that the district court imposed the wrong standard when
finding aggravating factors supported his hard 50 sentence. Our Supreme Court agreed,
and remanded Nelson's hard 50 sentence to the district court to determine whether
aggravating circumstances existed under a preponderance of the evidence standard. 291
Kan. at 488.

In February 2011, Ariagno informed the district court that Nelson had expressed
concerns regarding his representation of Nelson during the jury trial. Ariagno believed a
conflict existed based on Nelson's assertion that he was ineffective. The court granted
Arigano's request to withdraw and appointed another attorney to represent Nelson at his
resentencing hearing. At his resentencing hearing, the district court again sentenced
Nelson to a hard 50 sentence. Nelson appealed his sentence, arguing the court abused its
discretion in imposing the hard 50 sentence. State v. Nelson, 296 Kan. 692, 294 P.3d 323
(2013) (Nelson II).

After both parties had filed briefs in Nelson's second appeal, the United States
Supreme Court granted certiorari in Alleyne v. United States, 570 U.S. __, 133 S. Ct.
2151, 186 L. Ed. 2d 314 (2013), on October 5, 2012. The Kansas Supreme Court issued
an opinion affirming Nelson's sentence on February 15, 2013. Nelson II, 296 Kan. 692. A
mandate was issued finalizing the decision on March 11, 2013. The United States
Supreme Court decided Alleyne 96 days later on June 17, 2013.
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On December 24, 2013, Nelson filed a K.S.A. 60-1507 motion alleging that both
his trial counsel, Ariagno, and his appellate counsel, Meryl Carver-Allmond were
ineffective. After reviewing the motion, the district court ordered an evidentiary hearing
on the matter. Additionally, on February 18, 2014, the Paul E. Wilson Project for
Innocence & Post-Conviction Remedies submitted a supplemental brief supporting
Nelson's claim that his appellate counsel was ineffective. Attached to this brief were an
affidavit from Carver-Allmond and two blog posts regarding Alleyne that she claimed she
had read before the Kansas Supreme Court issued its ruling in Nelson II. On September 8,
2014, the district court held an evidentiary hearing on Nelson's 60-1507 motion. On June
8, 2015, the court filed a journal entry finding that neither Ariagno nor Carver-Allmond
were ineffective. The court later filed a corrected journal entry to correct grammatical and
spelling mistakes, but the substance of the decision was the same. Nelson appeals.

Carver-Allmond represented Nelson on his initial appeal and the appeal of his
resentencing, and she testified at the evidentiary hearing. Carver-Allmond did not raise
the hard 50 sentencing issue on Nelson's first appeal. She said she believed the hard 50
sentencing issue was "effectively dead" at the time of Nelson's appeal because the Kansas
Supreme Court had routinely denied the issue for years. On the appeal of Nelson's
resentencing, she believed she could not raise the issue because the appeal was limited to
issues regarding Nelson's resentencing. Additionally, the United States Supreme Court
had not granted certiorari for Alleyne at that time.

Carver-Allmond testified that the decision in Alleyne came down after the Kansas
Supreme Court issued the mandate in Nelson's second appeal. The Alleyne decision also
came down after the 90 days Nelson had to file his writ of certiorari. Another attorney at
the appellate defender's office, Randall Hodgkinson, told Carver-Allmond that the United
States Supreme Court had granted certiorari in the Alleyne case, and he thought the law
was likely to change. She also read blog posts by Hodgkinson regarding the grant of
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certiorari in Alleyne. At the time, though, Carver-Allmond had just started a position as a
public defender for capital cases and was overwhelmed with her new workload. She also
suspected Hodgkinson's enthusiasm may have been more because he was hoping the law
would change and not because the law was actually likely to change.

Carver-Allmond testified she did not discuss filing a writ of certiorari with Nelson.
Carver-Allmond stated she does not commonly discuss filing writs of certiorari with her
clients. She felt in this case, however, she was ineffective for failing to file for a writ. She
also testified she made a mistake by not investigating the issue more, and her failure to do
so was not a strategic call.

Nelson testified he did not discuss filing a writ of certiorari to the United States
Supreme Court with Carver-Allmond. He said that if he had known that was a possibility,
he would have wanted to file one.

The district court concluded that Carver-Allmond had not provided ineffective
assistance of appellate counsel. The court noted that if Alleyne had been decided at the
time of Nelson's jury trial, the decision of whether a hard 50 sentence should be imposed
would certainly have been an issue for the jury and not the district court. The court found,
however, that United States Supreme Court and other federal caselaw clearly established
there was no constitutional right to counsel to file a writ of certiorari.

The district court also noted that in Kargus v. State, 284 Kan. 908, 916, 169 P.3d
307 (2007), the Kansas Supreme Court held there was a statutory right to effective
assistance of counsel in discretionary appeals to the Kansas Supreme Court. The district
court added, however, that this holding was limited to the state appellate process. Unless
Kansas courts decided to extend that right to filing for certiorari, the prior cases finding
no constitutional right to effective assistance of counsel at that stage controlled. The court
further found that because Alleyne had not been decided at the time of Nelson's appeals,
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Carver-Allmond could not be faulted for failing to raise the issue of the constitutionality
of Nelson's Hard 50 sentence.

Standard of Review

After a full evidentiary hearing on a K.S.A. 60-1507 motion, the district court
must issue findings of fact and conclusions of law concerning all issues presented.
Supreme Court Rule 183(j) (2015 Kan. Ct. R. Annot. 271). An appellate court reviews
the court's findings of fact to determine whether they are supported by substantial
competent evidence and are sufficient to support the court's conclusions of law. Appellate
review of the district court's ultimate conclusions of law is de novo. State v. Adams, 297
Kan. 665, 669, 304 P.3d 311 (2013).

Overview of Hard 50 Sentencing Issue

The district court sentenced Nelson under Kansas' hard 50 sentencing scheme. As
explained in Nelson I,

"Premeditated first-degree murder carries a life sentence with a mandatory minimum of
25 years before the defendant becomes eligible for parole unless the court finds the
defendant should be subject to an enhanced minimum sentence. For crimes committed
after July 1, 1999, this requires a mandatory hard 50 term. K.S.A. 21–4635; see K.S.A.
22–3717(b)(1). To impose the hard 50 sentence, the district court must find one or more
of the aggravated circumstances enumerated in K.S.A. 21–4636 exist and that the
aggravating factors are not outweighed by any mitigating factors. K.S.A. 21–4635(d)."
291 Kan. at 486.

As the Kansas Supreme Court pointed out in State v. Soto, 299 Kan. 102, 119, 322
P.3d 334 (2014):

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"[B]efore Alleyne, the United States Supreme Court held that any additional facts
necessary to increase the punishment for a crime beyond the maximum punishment a
judge could impose based solely on the facts reflected in the jury verdict or admitted by
the defendant must be submitted to a jury and proven beyond a reasonable doubt. In
contrast, additional facts necessary to increase the mandatory minimum sentence were
merely sentencing factors that could be found by a judge rather than a jury."

Based on this distinction, the Soto court upheld the constitutionality of the hard 40
sentencing scheme (later amended to a hard 50 scheme) even in light of the United States
Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147
L. Ed. 2d 435 (2000). See 299 Kan. at 119.

In Alleyne, however, the United States Supreme Court changed course and held
because "[m]andatory minimum sentences increase the penalty for a crime . . . any fact
that increases the mandatory minimum is an 'element' that must be submitted to the jury,"
explicitly overruling prior precedent that held otherwise. 133 S. Ct. at 2155. In Soto, the
Kansas Supreme Court applied Alleyne to the hard 50 sentencing scheme and found it
unconstitutional. 299 Kan. at 124. Several defendants who had cases pending on appeal
had their hard 50 sentences ruled unconstitutional. See, e.g., State v. Lloyd, 299 Kan. 620,
626, 641, 325 P.3d 1122 (2014); State v. DeAnda, 299 Kan. 594, 600, 324 P.3d 1115
(2014); State v. Hilt, 299 Kan. 176, 201-04, 322 P.3d 367 (2014). This court has held,
however, that Alleyne does not apply retroactively. Verge v. State, 50 Kan. App. 2d 591,
598, 335 P.3d 679 (2014).

Right to Counsel for a Writ of Certiorari

In order to find that Carver-Allmond was ineffective for failing to file a petition
for certiorari with the United States Supreme Court, Nelson must first have had a right to
effective assistance of counsel at this stage of the proceedings. See, e.g., Wainwright v.
Torna, 455 U.S. 586, 587-88, 102 S. Ct. 1300, 71 L. Ed. 2d 475 (1982) (since defendant
10

had no constitutional right to counsel to file a discretionary appeal with state supreme
court, defendant could not be deprived of effective assistance of counsel by his counsel's
failure to timely file a petition for review). Nelson argues that both the Kansas
Constitution and Kansas statutes provide a right to effective assistance of counsel in
filing a writ of certiorari to the United States Supreme Court.

Constitutional Right

The Sixth Amendment provides a right to counsel at trial in criminal prosecutions.
U.S. Const. amend. VI. The United States Supreme Court has further held that under the
Due Process and Equal Protection clauses of the Fourteenth Amendment defendants are
entitled to effective assistance of counsel for their first appeal. See Evitts v. Lucey, 469
U.S. 387, 396, 105 S. Ct. 830, 83 L. Ed. 2d 821 (1985) (finding defendant must be
provided with effective assistance of counsel on first appeal to comply with due process
of law); Douglas v. California, 372 U.S. 353, 357-58, 83 S. Ct. 814, 9 L. Ed. 2d 811
(1963) (finding under equal protection clause that State must provide counsel to indigent
defendants on first appeal); Griffin v. Illinois, 351 U.S. 12, 18-19, 76 S. Ct. 585, 100 L.
Ed. 891 (1956) (finding under due process and equal protection clauses that State which
has created appellate review system must provide meaningful means of review to all
defendants). As Nelson admits in his brief, the United States Supreme Court does not
recognize a federal constitutional right to counsel for discretionary appeals at the state
level or to file a writ of certiorari to the United States Supreme Court. See Wainwright,
455 U.S. at 587-88; Ross v. Moffitt, 417 U.S. 600, 616-18, 94 S. Ct. 2437, 41 L. Ed. 2d
341 (1974). In Foy v. State, 17 Kan. App. 2d 775, 844 P.2d 744 (1993), another panel of
this court adopted the ruling in Wainwright to find there was no constitutional right to
state discretionary appeals in Kansas. 17 Kan. App. 2d. at 776.

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Nelson argues that section 10 and section 18 of the Kansas Constitution Bill of
Rights provide a right to counsel for writs of certiorari to the United States Supreme
Court. Section 10 provides:

"In all prosecutions, the accused shall be allowed to appear and defend in person,
or by counsel; to demand the nature and cause of the accusation against him; to meet the
witness face to face, and to have compulsory process to compel the attendance of the
witnesses in his behalf, and a speedy public trial by an impartial jury of the county or
district in which the offense is alleged to have been committed. No person shall be a
witness against himself, or be twice put in jeopardy for the same offense."

Section 18 provides: "All persons, for injuries suffered in person, reputation or property,
shall have remedy by due course of law, and justice administered without delay."

Nelson's argument regarding this point is not entirely clear. He argues that "[t]he
Kansas legislature has in essence constitutionalized the scope of a criminal prosecution
under Section 10 and defined 'due course of law' under Section 18 by granting appellate
review of criminal proceedings." He states that a defendant has a right to a direct appeal
and a discretionary appeal to the Kansas Supreme Court. He then notes that "[w]hether
the Kansas Supreme Court reviews the case is discretionary with the Court. At that point,
the criminal proceedings against the individual have concluded." (Emphasis added.) He
then goes on to explain that Kansas recognizes a general right to effective assistance of
counsel and argues this includes discretionary appeals to the Kansas Supreme Court. At
no point, though, does Nelson explain how these rights demonstrate a right to effective
assistance of counsel for a writ of certiorari to the United States Supreme Court. In fact,
he concedes that criminal proceedings against a defendant finish after review by the
Kansas Supreme Court.

Regardless of Nelson's argument, the Kansas Constitution does not appear to
recognize a right to effective assistance of counsel for writs of certiorari. Kansas courts
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generally interpret the Kansas Bill of Rights as providing the same or similar protections
as the Bill of Rights in the United States Constitution. See State v. Schoonover, 281 Kan.
453, 493, 133 P.3d 48 (2006) ("Generally, provisions of the Kansas Constitution which
are similar to the Constitution of the United States have been applied in a similar
manner."). The Kansas Supreme Court has interpreted section 10 of the Kansas
Constitution Bill of Rights as providing the same protections as the Fifth and Sixth
Amendments to the United States Constitution. See, e.g., Schoonover, 281 Kan. at 474
(section 10 and Fifth Amendment provide same protections against double jeopardy);
State v. Davis, 277 Kan. 309, 334, 85 P.3d 1164 (2004) (interpreting Sixth Amendment
and section 10 as providing same guarantees to speedy trial); State v. Morris, 255 Kan.
964, 979-81, 880 P.2d 1244 (1994) (section 10 provides no greater protection against
self-incrimination than Fifth Amendment). Kansas courts also interpret sections 1 and 2
of the Kansas Constitution Bill of Rights as providing similar protections as the Due
Process Clause and Equal Protection Clauses of the United States Constitution. See
Hodes & Nauser, MDs v. Schmidt, 52 Kan. App. 2d 274, 275, 368 P.3d 667, rev. granted
304 Kan. 1017 (2016). As the United States Supreme Court has held there is no right to
effective assistance of counsel for filing a writ of certiorari under the Sixth Amendment
or Due Process and Equal Protection Clauses, there is likely no right under the Kansas
Constitution. See Kargus, 284 Kan. at 912 (noting no constitutional right to discretionary
state appeals).

Additionally, there is little caselaw interpreting section 18 of the Kansas
Constitution Bill of Rights. In Ware v. State, 198 Kan. 523, 426 P.2d 78 (1967), however,
our Supreme Court held that Art. 3 of the Kansas Constitution and sections 5, 10, and 18
of the Kansas Constitution Bill of Rights do not give rise to a right to appeal. 198 Kan. at
525. Thus, section 18 is unlikely to have "constitutionalized the scope of a criminal
proceeding" and given rise to a constitutional right to counsel in filing a writ of certiorari,
as Nelson argues.

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Statutory Right

Next, Nelson contends there is a statutory right to effective assistance of counsel
for writs of certiorari. The most fundamental rule of statutory construction is that the
intent of the legislature governs if that intent can be ascertained. State v. Jordan, 303
Kan. 1017, 1019, 370 P.3d 417 (2016). An appellate court must first attempt to ascertain
legislative intent through the statutory language enacted, giving common words their
ordinary meanings. State v. Barlow, 303 Kan. 804, 813, 368 P.3d 331 (2016). When a
statute is plain and unambiguous, an appellate court should not speculate about the
legislative intent behind that clear language, and it should refrain from reading something
into the statute that is not readily found in its words. 303 Kan. at 813. Where there is no
ambiguity, the court need not resort to statutory construction. Only if the statute's
language or text is unclear or ambiguous does the court use canons of construction or
legislative history to construe the legislature's intent. 303 Kan. at 813.

Nelson's argument that there is a statutory right to counsel for writs of certiorari is
based solely on the language of K.S.A. 22-4505(a)-(c), which provides:

"(a) When a defendant has been convicted in the district court of any felony, the
court shall inform the defendant of such defendant's right to appeal the conviction to the
appellate court having jurisdiction and that if the defendant is financially unable to pay
the costs of such appeal such defendant may request the court to appoint an attorney to
represent the defendant on appeal and to direct that the defendant be supplied with a
transcript of the trial record.
"(b) If the defendant files an affidavit stating that the defendant intends to take an
appeal in the case and if the court determines, as provided in K.S.A. 22-4504, and
amendments thereto, that the defendant is not financially able to employ counsel, the
court shall appoint counsel from the panel for indigents' defense services or otherwise in
accordance with the applicable system for providing legal defense services for indigent
persons prescribed by the state board of indigents' defense services, to represent the
defendant and to perfect and handle the appeal. If the defendant files a verified motion for
14

transcript stating that a transcript of the trial record is necessary to enable the defendant
to prosecute the appeal and that the defendant is not financially able to pay the cost of
procuring such transcript, and if the court finds that the statements contained therein are
true, the court shall order that such transcript be supplied to the defendant as provided in
K.S.A. 22-4509, and amendments thereto and paid for by the state board of indigents'
defense services pursuant to claims submitted therefor.
"(c) Upon an appeal or petition for certiorari addressed to the supreme court of
the United States, if the defendant is without means to pay the cost of making and
forwarding the necessary records, the supreme court of Kansas may by order provide for
the furnishing of necessary records."

Nelson argues that because this statute contains no restrictions on the scope of the
appeal, the legislature clearly intended to include writs of certiorari to the United
States Supreme Court

Of particular relevance on this point is Kargus, in which the court found a
statutory right to discretionary appeals to the Kansas Supreme Court. 284 Kan. at 916.
Kargus filed a K.S.A. 60-1507 motion alleging his attorney had provided ineffective
assistance of counsel because his counsel failed to file a petition for review with the
Kansas Supreme Court despite Kargus' request that he do so. In determining whether
Kargus' counsel was ineffective, the court first considered whether Kargus had a right to
effective assistance of counsel in filing a petition for review. The court noted that
precedent established there was no constitutional right to counsel for discretionary state
appeals. 284 Kan. at 911-13 (citing Foy, 17 Kan. App. 2d at 775-76). The court added,
however, that even if there was no constitutional right to counsel, there could be a
statutory right to counsel at this stage of the proceedings. Kargus, 284 Kan. at 913.

The Kargus court considered several statutes governing the criminal appeals
process: K.S.A. 20-3018, K.S.A. 22-4503, K.S.A. 22-4505, K.S.A. 22-3424, and K.S.A.
22-3602. As the court stated:
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"First, K.S.A. 2006 Supp. 22-4503(a) provides that a defendant charged with a felony 'is
entitled to have assistance of counsel at every stage of the proceedings against such
defendant.' (Emphasis added.) K.S.A. 2006 Supp. 22-4505(b) makes it clear that this
reference includes the right of indigent defendants to have the assistance of appointed
counsel during a direct appeal. That statute directs that, after determining a felony
defendant is not financially able to employ counsel, 'the court shall appoint counsel from
the panel for indigents' defense services or otherwise in accordance with the applicable
system for providing legal defense services for indigent persons prescribed by the state
board of indigents' defense services, to represent the defendant and to perfect and handle
the appeal.' (Emphasis added.) K.S.A. 2006 Supp. 22-4505(b). Several other statutory
provisions reference a defendant's right to appeal and the right to have appointed counsel,
some in the context of imposing a duty upon the trial court to inform the defendant of
those rights. See, e.g., K.S.A. 22-3424(f) ('After imposing sentence in a case which has
gone to trial on a plea of not guilty, the court shall advise the defendant of the defendant's
right to appeal and of the right of a person who is unable to pay the costs of an appeal to
appeal in forma pauperis '); K.S.A. 2006 Supp. 22-4505(a) (trial court 'shall inform the
defendant of such defendant's right to appeal the conviction to the appellate court having
jurisdiction and that if the defendant is financially unable to pay the costs of such appeal,'
the defendant may request appointed counsel)." 284 Kan. at 914-15.

The Kargus court noted these provisions did not explicitly mention petitions for
review, so a question still remained whether the legislature intended to provide a right to
counsel for petitions for review "when it granted the right to counsel during 'every stage
of the proceedings,' . . . and required judges to appoint counsel to 'handle the appeal' for
indigent defendants." 284 Kan. at 915. To answer this question, the court next looked to
K.S.A. 20-3018(b) "which states that, when the Court of Appeals has initial jurisdiction,
'[a]ny party aggrieved by a decision' of that court 'may petition the supreme court for
review within thirty (30) days after the date of such decision.'" 284 Kan. at 915. The court
noted that while the grant of a petition for review was discretionary with the court, this
statute demonstrated the right to file a petition was unqualified, and it is a right which is a
16

part of the appeal and one of the stages of the proceedings to which the right to counsel
attaches. 284 Kan. at 915.

The Kargus court further noted that construing these statutes to find there was no
right to counsel in filing a petition for review would lead to unreasonable results. For one,
an indigent defendant would be left to pursue his or her case pro se in the Kansas
Supreme Court. If the State sought review in the Supreme Court, the defendant would
again be left to argue pro se before the court. "Clearly, however, the State's continuation
of the appellate process would be a continuation of proceedings against the defendant."
284 Kan. at 915. The court also noted the legislature also intended indigent defendants to
have a right to counsel when the Kansas Supreme Court grants a petition for review, so it
would be illogical for the legislature not to provide a right to counsel to file for a petition
for review. 284 Kan. at 916.

The holding in Kargus was limited to the state appellate process. 284 Kan. at 916.
Nevertheless, the reasoning employed in Kargus to find a statutory right to counsel to file
a petition for review with the Kansas Supreme Court could be extended to filing writs of
certiorari in the United States Supreme Court. K.S.A. 22-4503 and K.S.A. 22-4505
provide that a defendant charged with a felony has a right to counsel at every stage of the
proceedings against him or her, and requires judges to appoint counsel to handle the
defendant's appeal. As provided in 28 U.S.C. §1257 (2012), the United States Supreme
Court may review the final judgment of a state's highest court as long as it presents a
question of federal law. While the grant of review is discretionary, the right to request
review is unqualified as long as the case at issue presents a question of federal law.
Additionally, if defendants pursuing or defending their case pro se before the Kansas
Supreme Court is unreasonable, requiring them to do so before the United States
Supreme Court seems even less reasonable. In fact, pro se defendants can no longer
present oral argument before the United States Supreme Court. U.S. Sup. Ct. R. 28.

17

On the other hand, there are notable differences between analyzing the statutory
right to counsel to file a petition for review in the Kansas Supreme Court and a writ of
certiorari with the United States Supreme Court. State statute provides the right to file a
petition for review with the Kansas Supreme Court, so the state created this right. In
contrast, federal statute created the right to file a writ of certiorari with the United States
Supreme Court. In analyzing the constitutional right to counsel for discretionary appeals,
the United States Supreme Court noted the "significant difference between the source" of
these rights, adding "[t]he suggestion that a State is responsible for providing counsel to
one petitioning [the United States Supreme Court] simply because it initiated the
prosecution which led to the judgment sought to be reviewed is unsupported by either
reason or authority." Ross, 417 U.S. at 617.

Nelson argues in his brief that K.S.A. 22-4505(c) recognizes the right of a
defendant to pursue his appeal in the United States Supreme Court. K.S.A. 22-4505(c)
provides: "Upon an appeal or petition for certiorari addressed to the supreme court of the
United States, if the defendant is without means to pay the cost of making and forwarding
the necessary records, the supreme court of Kansas may by order provide for the
furnishing of necessary records." While Nelson is correct that this subsection recognizes
this right, it does not create the right. Furthermore, this subsection also indicates the
Kansas Legislature distinguishes between appeals and petitions for certiorari, as they are
listed separately in the statute. Subsection (c) uses the word "appeal," and the rest of
K.S.A. 22-4505 does not include writs of certiorari. Therefore, even if K.S.A. 22-4505
does provide a right to effective counsel in appeals, this language does not include writs
of certiorari.

Other than a brief mention of Kargus, the State primarily argues there is no federal
constitutional right to effective assistance of counsel to file a writ of certiorari. This point
is, of course, clearly established by United States Supreme Court precedent, and Nelson
himself concedes it. The State does not address the Kansas constitutional argument at all.
18


In support of its argument that Nelson does not have a constitutional or statutory
right to counsel, the State does discuss an Eighth Circuit case, Walker v. United States,
810 F.3d 568 (8th Cir. 2016). In a federal habeas petition, Walker argued her counsel was
ineffective for failing to raise Alleyne issues in her petition for certiorari to the United
States Supreme Court. Walker claimed she had a constitutional right to effective
assistance of counsel for filing her writ of certiorari. The Eighth Circuit rejected her
argument, noting it was contrary to Supreme Court precedent. 810 F.3d at 576. The court
also rejected Walker's claim that Federal Rule of Criminal Procedure 44(a), 18 U.S.C.
§3006A (2012) and the Eighth Circuit Plan to Implement the Criminal Justice Act of
1964 established a statutory right to counsel at this stage of the proceedings. 810 F.3d at
577.

While the Eighth Circuit has held that federal law does not create a statutory right
to counsel to file a writ of certiorari, this is at best only persuasive authority. The case
only deals with federal statutes. See Fed. R. Crim. Pro. 44(a); 18 U.S.C. §3006A.
Furthermore, the Seventh Circuit has held Fed. R. Crim. Pro. 44(a) and 18 U.S.C.
§3006A "make it clear that the defendant in a direct criminal appeal has the right to have
the continued representation of appointed counsel throughout the course of the appeal,
including the filing of post-opinion pleadings in the court of appeals and the filing of a
petition for certiorari in the Supreme Court of the United States." United States v. Howell,
37 F.3d 1207, 1209 (7th Cir. 1994); see also United States v. Price, 491 F.3d 613, 615
(7th Cir. 2007) (finding defendant did not have constitutional right to seek certiorari, but
did have statutory right under 18 U.S.C. §3006A). Thus, federal courts provide no clear
direction on the possibility of a statutory right to counsel for filing writs of certiorari.

On the other hand, this court has addressed this issue in Adams v. State, No.
104,758, 2011 WL 5833481 (Kan. App. 2011) (unpublished opinion). The Adams court
held that:
19


"The Kansas Supreme Court distinguished the statutory right to counsel from the
constitutional right to counsel and held that the statutory right '"extends to all levels of the
state appellate process, including the filing of the petition for review"'. . . . While the
statutory right to counsel in Kansas extends to petitioning the Kansas Supreme Court for
review, a petition to the United States Supreme Court is outside of the State's appellate
process. Thus, Adams cannot rely on his Kansas statutory right to counsel for his claim
that Cornwell was ineffective for failing to petition the United States Supreme Court for
certiorari." 2011 WL 5833481, at *4.

Additionally, research did not uncover other states that provide a statutory right to
counsel for writs of certiorari to the United States Supreme Court. Given the
different source of the right to appeal between state discretionary appeals and writs
of certiorari and the general lack of recognition of the right to effective assistance
of counsel in filing writs, Nelson likely did not have a statutory right to effective
assistance of counsel at this stage of the proceedings. Because Nelson did not have
a right to effective assistance of counsel in filing a writ of certiorari to the United
States Supreme Court, Carver-Allmond cannot be in violation of that right for
failing to file a writ.

Regulatory Right

Nelson also argues there is a regulatory right to effective assistance of counsel. He
cites to K.A.R. 105-1-1, which regulates the Kansas Board of Indigent Services. While
Nelson cites authority that regulations can have the same force and effect as laws, he does
not provide any support for his argument that a regulation can give rise to the right to
effective assistance of counsel in criminal proceedings. Some federal cases recognize the
regulatory right to counsel, but this right appears to only be recognized in administrative
proceedings. See, e.g., Lamay v. Commissioner of Social Security, 562 F.3d 503, 507 (2d
Cir. 2009) (recognizing statutory and regulatory right to counsel in social security
20

disability hearings); Campos v. Nail, 43 F.3d 1285, 1289 (9th Cir. 1994) (aliens have
statutory and regulatory right to counsel in immigration proceedings).

Ineffective Assistance

Even if Nelson did have a statutory right to effective assistance of counsel in filing
a writ of certiorari to the United States Supreme Court, he would still need to demonstrate
that Carver-Allmond's performance was ineffective. A claim alleging ineffective
assistance of counsel presents mixed questions of fact and law. When the district court
conducts a full evidentiary hearing on such claims, this court determines whether
substantial competent evidence supports the district court's findings and whether the
factual findings support the court's legal conclusions; we apply a de novo standard to the
district court's conclusions of law. Fuller v. State, 303 Kan. 478, 485, 363 P.3d 373
(2015).

Failing to File Writ of Certiorari

Normally, a defendant alleging ineffective assistance of appellate counsel must
show that (1) counsel's performance, based upon the totality of the circumstances, was
deficient in that it fell below an objective standard of reasonableness, and (2) the
defendant was prejudiced to the extent that there is a reasonable probability that, but for
counsel's deficient performance, the appeal would have been successful. Miller v. State,
298 Kan. 921, 930-31, 934, 318 P.3d 155 (2014).The failure to file a notice of appeal
presents a unique situation with a unique standard.

In Roe v. Flores-Ortega, 528 U.S. 470, 120 S. Ct. 1029, 145 L. Ed. 2d 985 (2000),
the United States Supreme Court addressed the proper standard for ineffective assistance
of counsel in cases where counsel failed to file a notice of appeal. The court declined to
adopt a standard establishing failure to file a notice of appeal as per se deficient
21

performance. Rather, the court held "counsel has a constitutionally imposed duty to
consult with the defendant about an appeal when there is reason to think either (1) that a
rational defendant would want to appeal . . . or (2) that this particular defendant
reasonably demonstrated to counsel that he was interested in appealing." 528 U.S. at 480.
The Court then addressed whether a showing of prejudice was necessary as under the
Strickland test. 528 U.S. at 481-84. The Court noted that failing to file an appeal presents
a unique circumstance because in such cases "counsel's alleged deficient performance led
not to a judicial proceedings of disputed reliability, but rather to the forfeiture of the
proceeding itself." 528 U.S. at 483. Thus, in these cases, to show prejudice "a defendant
must demonstrate that there is a reasonable probability that, but for counsel's deficient
failure to consult with him about an appeal, he would have timely appealed." 528 U.S. at
484.

In Kargus, the Kansas Supreme Court explicitly adopted the standard established
in Flores-Ortega. Kargus, 284 Kan. at 928. Specifically, the Kargus court recognized
when a defendant claims counsel was ineffective for failing to file a discretionary appeal,
Kansas courts should apply one of three standards based on the factual circumstances:

"(1) If a defendant has requested that a petition for review be filed and the petition was
not filed, the appellate attorney provided ineffective assistance; (2) a defendant who
explicitly tells his or her attorney not to file a petition for review cannot later complain
that, by following instructions, counsel performed deficiently; (3) in other situations, such
as where counsel has not consulted with a defendant or a defendant's directions are
unclear, the defendant must show (a) counsel's representation fell below an objective
standard of reasonableness, considering all the circumstances; and (b) the defendant
would have directed the filing of the petition for review. A defendant need not show that
a different result would have been achieved but for counsel's performance." 284 Kan. at
928.

22

In the present case, the district court did not make a fact finding regarding whether
Nelson requested Carver-Allmond to file a writ of certiorari or Carver-Allmond consulted
with Nelson regarding filing one. Carver-Allmond testified, however, that she did not
discuss filing a writ with Nelson. Nelson also testified that he did not know he could file
a writ, and if he had known, he would have asked Carver-Allmond to file one.

Based on the testimony at the evidentiary hearing, however, Nelson would fall into
the third category in Kargus; therefore, he would have to show that Carver-Allmond's
representation was objectively unreasonable. Nelson is arguably unable to do this.

First, Carver-Allmond did not raise the issue of the constitutionality of Nelson's
hard 50 sentence on either his first or second appeal. This means if she had filed a writ of
certiorari to the United States Supreme Court, she would have been raising the issue for
the first time in the writ. The United States Supreme Court has noted, however, that with
few exceptions it will not address a federal claim when reviewing a state judgment unless
that claim "was either addressed by, or properly presented to, the state court that rendered
the decision [it has] been asked to review." Adams v. Robertson, 520 U.S. 83, 86, 117 S.
Ct. 1028, 137 L. Ed. 2d 203 (1997). Under this rule, Nelson's writ of certiorari would
have been denied. Carver-Allmond is arguably not objectively unreasonable for not
consulting with her client regarding filing a writ of certiorari which almost certainly
would have been denied.

In his brief, Nelson does not appear to assert a standard of review by which to
determine if Carver-Allmond's representation was, in fact, ineffective. He does, however,
claim she was ineffective for failing to file a writ that was being pursued by her
colleagues and that would have secured relief for Nelson. Whether Nelson would have
obtained relief is speculative, though. Several defendants were granted relief by the
Kansas Supreme Court because their cases were pending on appeal when the decision in
Alleyne came down. State v. Lloyd, 299 Kan. at 626; State v. Deanda, 299 Kan. at 600;
23

State v. Hilt, 299 Kan. at 201-04. In another case, State v. Astorga, 299 Kan. 395, 324
P.3d 1046 (2014), the defendant did obtain relief by filing a writ of certiorari. 299 Kan. at
396. After the decision in Alleyne, however, the Supreme Court granted the defendant's
petition for writ of certiorari, vacated the Kansas Supreme Court's judgment, and
remanded the case for reconsideration. As noted, however, the only way the United States
Supreme Court would have granted Nelson certiorari is if it went against its well-
established rule against considering federal claims raised for the first time in a writ. His
claim for relief thus requires speculation, which this court has disfavored. See Tomlin v.
State, 35 Kan. App. 2d 398, 406, 130 P.3d 1229 (2006) ("In Tomlin's case, . . . he asks us
to engage in multiple exercises in speculation to arrive at a conclusion of prejudice. This
we are not prepared to do.").

Nelson also argues it was unreasonable for Carver-Allmond not to foresee the
coming change of law in Alleyne. In support of his argument, Nelson relies on Laymon v.
State, 280 Kan. 430, 122 P.3d 326 (2005). In Laymon, the Kansas Supreme Court held
that appellate counsel, a member of the Appellate Defender's Office (ADO), was
ineffective for failing to foresee a change in the law created by State v. McAdam, 277
Kan. 136, 83 P.3d 161 (2004), and raising a sentencing issue on direct appeal. 280 Kan.
at 444. The Laymon court held that appellate counsel's performance was objectively
unreasonable for failing to preserve the McAdam argument when "the state of the
developing Kansas law counseled in favoring of preserving the line of argument." 280
Kan. at 444. Additionally, the court noted that appellate counsel's colleagues at the ADO
were heavily involved in the development of the McAdam issue, thus, knowledge of the
issue could fairly be imputed to him. 280 Kan. at 442.

As the Laymon court acknowledged, the failure of appellate counsel to raise an
issue on appeal is not, per se, ineffective assistance of counsel. However, the failure of
direct appeal counsel "to foresee a change in the law may lead to 60-1507 relief if the
failure was not objectively reasonable." 280 Kan. at 439-40; see also State v. Shelly, 303
24

Kan. 1027, 1045, 371 P.3d 820 (2016). Nelson's case is distinguishable from Laymon,
though. In Laymon, the McAdam argument was a new sentencing rule developing in
Kansas courts at the time of Laymon's appeal, and the Kansas Supreme Court had never
ruled on it. In contrast, at the time of Nelson's appeal, the United States Supreme Court
had upheld sentencing schemes similar to Kansas' hard 50 scheme, and the Kansas
Supreme Court had ruled the hard 50 scheme was constitutional. Additionally, while
Carver-Allmond's colleagues at the ADO were aware of the grant of certiorari in Alleyne,
and some were recommending attorneys preserve the issue of the constitutionality of the
hard 50 scheme, the Kansas ADO was not intimately involved in the Alleyne case.

Unlike Laymon, Alleyne was not a new sentencing rule developing in Kansas
courts at the time of Nelson's appeal. In fact, it did not even address a new sentencing
rule at all. In order to find Carver-Allmond ineffective in this case, we would have to
hold it is objectively unreasonable for an attorney not to anticipate that the United States
Supreme Court was going to overturn itself. While attorneys may be expected to foresee
changes in the law, they certainly are not required to be prescient. See Tomlin, 35 Kan.
App. 2d at 404 (an attorney need not be prescient or omniscient in anticipating changes in
the law).

Fundamental Fairness

Nelson also argues that even if there is no right to effective assistance of counsel
when filing a writ of certiorari to the United States Supreme Court, he should still get
relief based on fundamental fairness. He raised this issue in a memorandum to the district
court. In support of his argument, Nelson cites to State v. Layton, No. 98,725, 2009 WL
1859918 (Kan. 2009). Layton is an unpublished Kansas Supreme Court case in which the
court granted relief to a criminal defendant based on the principles of "equity and
fundamental fairness." 2009 WL 1859918, at *12. The case is based on a very unique set
of circumstances that are not present in Nelson's case, including a "long and arduous"
25

procedural history with errors on both the part of the defendant's attorneys and the
Kansas courts. 2009 WL 1859918, at *1, 8-11. The case appears to be without precedent
and has not been relied on since it was issued. Thus, it is unlikely to provide a basis for
relief in Nelson's case.

At the evidentiary hearing, Nelson testified he originally hired Ariagno regarding
another criminal case, but the court appointed Ariagno to represent Nelson in the present
case because Nelson could no longer afford an attorney. Nelson's testimony is a little
unclear on this point, but he seems to testify he only meet with Ariagno a total of three
times. He met with Ariagno only two times before his first trial—once at the McPherson
County jail and once at the courthouse. He met with Ariagno once before his second trial
at the courthouse. At one of these meetings, Ariagno presented a plea bargain to Nelson,
but Nelson rejected the offer. Nelson said Ariagno reacted by yelling and cursing at him
and calling him names before leaving. Nelson said Ariagno presented Nelson with a
second plea bargain, which Nelson also rejected. After rejecting the second offer, he
stated Ariagno told him he would spend the rest of his life in jail.

Nelson stated he brought his concerns about Ariagno to the district court in a
letter, but the court never discussed the issue with him. In the letter, he also mentioned he
had restrictions on his phone privileges. According to Nelson, McPherson County jail
placed restrictions on his phone and mail privileges while he was awaiting trial. Nelson
was unable to make outgoing phone calls or purchase stamps and paper to send mail. All
of his materials regarding the case was also taken from him.

Nelson told the court that Ariagno never met with him to discuss defense strategy
before trial started, he did not do any outside investigation of the case, and he did not
present a defense.

26

Nelson said that he wanted to testify and "the night that I found out the State was
going to rest, I was told that I would . . . be allowed to." Ariagno was supposed to come
talk to him on a Wednesday night, and Nelson would testify on Thursday. Nelson said
Ariagno did not show up on Wednesday night. The next morning before trial, Nelson met
with Ariagno. He asked Ariagno why he did not show up and according to Nelson
Ariagno replied he had nonrefundable concert tickets. Nelson and Ariagno discussed
testifying that morning. According to Nelson, Ariagno "said that he didn't have time to
coach me, was his words, and he said that the State would, in so many words, tear me up
up here, so . . . ."

Nelson testified Ariagno had prevented him from testifying. He did not recall if
the district court had asked him if he wanted to testify, but he said if the court had asked
him if he wanted to testify he would have said yes. He also said if the court asked him if
he had discussed the matter with his attorney, he would have said "we discussed it but as
far as what I was going to testify to, we never discussed." When asked to clarify this
comment, Nelson said that though he discussed testifying with Ariagno,

"I didn't know what he was going to ask, what type of—you know. I didn't know what I
was supposed to say here. All I knew was he was going to come and speak to me about
taking the stand on Thursday and that was as far as the conversation went."

Nelson testified that Ariagno had presented a self-defense theory at trial but did
not call any witnesses. He stated that he had never discussed possible witnesses with
Ariagno. He wished Ariagno had called his grandmother, Doris Nelson, and his sister,
Darcy Holub, who could testify about the volatile relationship between Nelson and
Swartz. According to Nelson, another witness could have testified Nelson never asked
Hewitt to help him beat up Swartz or offered him money to do so. According to Nelson,
Ariagno did not present any evidence at his initial sentencing, either.

27

Doris Nelson, Nelson's grandmother, testified she met with Ariagno before trial to
discuss Nelson's case. She said they talked for "a long time" and she told Ariagno about
Nelson's relationship with Swartz, but most of her information was based on what
Nelson's mother had told her. According to Doris, Ariagno told her she did not have
anything helpful to Nelson's case. Doris also testified she was with Nelson and Ariagno at
the McPherson County jail when Ariagno presented the plea bargain to Nelson. She
stated that when Nelson rejected the offer, Ariagno told Nelson he was "stupid," and the
plea was the best Ariagno could do for him. According to Doris, Ariagno also said, "If
you want fifty years, I'll get you fifty years."

Ariagno testified that he "absolutely" met with Nelson more than three times prior
to his first trial. He could not remember for sure, but he estimated they met between "half
a dozen to a dozen times." He also was not sure how many times he met with Nelson
before his second trial but he again estimated they met about a half dozen times. He
admitted he may not have met with Nelson as often as Nelson might have liked, but at
some point the information covered in their meetings became repetitive.

Ariagno told the court that he had regular contact with Nelson. He talked to
Nelson by phone, and Nelson also sent him letters. According to Ariagno, the McPherson
County jail was "very accommodating," and it would set up phone conferences so the two
could talk.

Ariagno testified that in preparation for trial he did legal research and reviewed
evidence and discovery materials. He also investigated potential witnesses. Ariagno
spoke with Doris, "Nelson's girlfriend," and Holub as potential witnesses but did not
believe they had any helpful information. He chose not to call any character witnesses
because he did not want to open up any character issues at trial. He believed the theory of
defense at trial was self-defense, but he did not remember much about the case or how it
proceeded.
28


Ariagno also testified he discussed the case and possible defenses with Nelson. He
said he discussed whether Nelson should testify. He advised Nelson that he did not
believe it was a good idea but told him he would help Nelson prepare if he did decide to
testify.

Ariagno testified he discussed the matter with Nelson and advised him against
testifying. He said he told Nelson "it was his decision and his decision alone and he could
make whatever decision he wanted, but I told him I didn't think he'd make a very good
witness and that he would subject himself to cross examination that I didn't think was a
good idea." Ariagno said he would not have said he would "coach" Nelson, but he did
offer to help prepare Nelson if Nelson wanted the help. Ariagno did not recall whether he
made a meeting on a Wednesday to discuss Nelson's possible testimony. He stated he was
"sure [he] had that meeting, probably on more than one occasion" but he could not say
when. Ariagno testified he did not prevent Nelson from testifying at either of his trials.
He also specifically denied missing any meetings due to nonrefundable concert tickets.

According to Ariagno, he had encouraged Nelson to take the plea agreement
because he believed it was a favorable agreement, and Nelson had a good chance of
losing at trial. He did not remember discussing waiving a jury trial with Nelson. Ariagno
testified he believed jury trials were better for his clients, and he would not do a bench
trial, particularly for a case as serious as Nelson's. He did not remember discussing an
appeal with Nelson, but his standard practice is to encourage his clients to appeal.

The district court found Ariagno's performance was not deficient. It noted Ariagno
spent a great deal of time and effort preparing and trying Nelson's case. There were
clearly some points of disagreement between Nelson and Ariagno, but in a case such as
Nelson's, defense counsel often must deliver unwelcome news and professional advice.
29

The court found, however, that Ariagno's performance fell within the bounds of
competent counsel.

The district court went on to note that because Ariagno's performance was not
deficient, it need not address the element of prejudice. The court did point out, however,
that the State's evidence was strong and compelling. Thus, even if Ariagno's performance
had been deficient, it is unlikely that it led to prejudice in Nelson's case.

Standard of Review

A claim alleging ineffective assistance of counsel presents mixed questions of fact
and law. When the district court conducts a full evidentiary hearing on such claims, the
appellate courts determine whether substantial competent evidence supports the district
court's findings and determine whether the factual findings support the court's legal
conclusions; the appellate courts apply a de novo standard to the district court's
conclusions of law. Fuller v. State, 303 Kan. 478, 485, 363 P.3d 373 (2015).

Ineffective Assistance of Counsel

To prevail on a claim of ineffective assistance of counsel, a criminal defendant
must establish (1) that the performance of defense counsel was deficient under the totality
of the circumstances, and (2) prejudice, i.e., that there is a reasonable probability the jury
would have reached a different result absent the deficient performance. Sola-Morales v.
State, 300 Kan. 875, 882-83, 335 P.3d 1162 (2014) (citing Strickland v. Washington, 466
U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674, reh. denied 467 U.S. 1267 [1984]). If
counsel has made a strategic decision after making a thorough investigation of the law
and the facts relevant to the realistically available options, then counsel's decision is
virtually unchallengeable. Strategic decisions made after a less than comprehensive
investigation are reasonable exactly to the extent a reasonable professional judgment
30

supports the limitations on the investigation. State v. Cheatham, 296 Kan. 417, 437, 292
P.3d 318 (2013) (quoting Strickland, 466 U.S. at 690-91.

Deficient Performance

Nelson claims Ariagno's performance was deficient because he failed to
communicate with Nelson, and he failed to investigate and provide a defense at trial.
Judicial scrutiny of counsel's performance in a claim of ineffective assistance of counsel
is highly deferential and requires consideration of all the evidence before the judge or
jury. The reviewing court must strongly presume that counsel's conduct fell within the
broad range of reasonable professional assistance. State v. Kelly, 298 Kan. 965, 970, 318
P.3d 987 (2014).

Nelson and Ariagno provided conflicting testimony at the evidentiary hearing.
Nelson testified that he only met with Ariagno a few times before his trial. His testimony
is somewhat inconsistent on this point, ranging from two to four meetings not including
telephone calls or court appearances.

Ariagno testified he met with Nelson at least a half dozen times before his mistrial
and another half dozen times before his second trial. He also stated that he had regular
contact with Nelson by phone and through the mail. He admitted he may not have met
with Nelson as often as Nelson would have liked, but he found the meetings became
repetitive and did not result in new information.

Nelson also claims Ariagno failed to investigate witnesses and did not present
enough evidence supporting Nelson's defense theory. Ariagno, however, testified that he
did legal research and reviewed evidence and discovery materials in preparation for trial.
He also investigated all three of Nelson's proposed witnesses. Doris even confirmed that
she talked with Ariagno for a long time, including about her possible testimony. After
31

speaking with the proposed witnesses, Ariagno concluded they did not have any helpful
information. The witnesses would only be able to testify to the volatile relationship
between Nelson and Swartz, which could bolster Nelson's defense but could just as easily
provide a motive for premeditation.

Because Nelson and Ariagno presented conflicting testimony, the resolution of
this matter ultimately came down to a credibility determination between the two. The
district court apparently found Ariagno's testimony more credible, and his testimony
supports a finding that his performance passed constitutional muster. While he did not
call Nelson's proposed witnesses, this was a strategic decision made after investigation of
both law and fact and is thus virtually unchallengeable. See Cheatham, 296 Kan. at 437.
Moreover, we do not reweigh the evidence, pass on the credibility of witnesses, or
resolve conflicts in the evidence. Flynn v. State, 281 Kan. 1154, 1163, 136 P.3d 909
(2006). Therefore, the district court's finding on the first prong of the Strickland standard
stands.

Nelson asserts that the district court failed to consider other evidence he presented
in a memorandum to the court of Ariagno's deficient performance. The first piece of
evidence is a letter to the district court file-stamped December 18, 2007. In the letter,
Nelson complained to the judge that he was unable to communicate with his attorney
because his phone privileges had been taken away. This letter conflicts with Nelson's
testimony at the evidentiary hearing, because Nelson testified that he wrote a letter
regarding his concerns about Ariagno, and only tangentially mentioned the issue with his
phone privileges.

The second piece of evidence is the transcript from a hearing on January 24, 2008.
At the hearing, Ariagno informed the district court that he was unable to communicate
with his client due to the phone privileges issue. He requested that the court order the jail
to allow him to be able to communicate with his client. As the State points out, this
32

evidence demonstrates that Ariagno not only brought these restrictions to the attention of
the district court, he also requested the court take action so that Ariagno and Nelson
would be able to communicate.

Finally, Nelson argues the district court erred by applying the wrong burden of
proof in reaching its conclusion. In its journal entry, the court cited the Strickland
standard, then added that "[a] claimant, such as Mr. Nelson, 'bears the heavy burden of
showing no competent counsel would have taken the action that counsel did take.' See
Gissendaner v. Seaboldt, 735 F.3d 1311 (11th Cir. 2013), cert. denied 135 S. Ct. 159
(2014)." Even assuming this was an elevated standard and Ariagno's performance was
deficient, it would not change the outcome in this case because Nelson cannot
demonstrate prejudice.

Prejudice

Even if Nelson were able to demonstrate Ariagno performed deficiently, he would
be unable to show that Ariagno's performance prejudiced him. To establish prejudice, the
defendant must show a reasonable probability that, but for counsel's deficient
performance, the outcome of the proceeding would have been different, with a reasonable
probability meaning a probability sufficient to undermine confidence in the outcome.
State v. Sprague, 303 Kan. 418, 426, 362 P.3d 828 (2015).

The evidence against Nelson at trial was overwhelming. Nelson and Swartz had a
volatile relationship. Nelson offered his friend money to help him "take care of" Swartz.
He waited outside Swartz' home on the night of the attack with a bat before losing his
nerve. He then returned to Swartz' home in the early morning hours, again with a bat.
Nelson told police he and Swartz got in a fight, and he hit Swartz in self-defense. The
coroner testified, however, that Swartz had no defensive wounds. There were also no
signs of struggle in the home.
33


After the attack, Nelson returned to Moore's home and told her he thought he had
killed Swartz. The next day, Nelson put in an application for a new apartment, and test
drove a BMW. He planned to pay for the BMW by selling Swartz' vehicles.

Nelson wished Ariagno had done more investigation and put on more evidence at
trial of his self-defense theory. Based on Nelson's testimony at the evidentiary hearing,
He does not have any evidence which could have significantly bolstered his defense.
Nelson provided several conflicting stories to police regarding his self-defense story, and
apparently the jury did not believe any of them Nelson's proposed witnesses also could
only testify to the volatile relationship between Nelson and Swartz. Based on the strength
of the State's evidence, any of Ariagno's claimed deficiencies did not result in prejudice.
Therefore, Nelson is not entitled to relief.

Affirmed.
* * *

POWELL, J., concurring: I join the well written and comprehensive majority
opinion both in its result and rationale but must write separately to object to its reliance
on Hodes & Nauser, MDs v. Schmidt, 52 Kan. App. 2d 274, 275, 368 P.3d 667, rev.
granted 304 Kan. 1017 (2016), for the proposition that "Kansas courts also interpret
sections 1 and 2 of the Kansas Constitution Bill of Rights as providing similar protections
as the Due Process Clause and Equal Protection Clause of the United States
Constitution." Slip op. at 12. Normally, one would not trifle with a mere citation, but
given the significance of Hodes, I could not let it pass.

I object to citing Hodes because it holds that the Kansas Constitution recognizes a
right to an abortion, not that sections 1 and 2 of the Kansas Constitution Bill of Rights
provide similar protections to the Due Process and Equal Protection Clauses of the
34

United States Constitution. 52 Kan. App. 2d at 288. Moreover, it is not worthy of citation
because our court, sitting en banc, was equally divided on the matter, rendering it lacking
in precedential effect. See Moore v. City of Creedmoor, 345 N.C. 356, 372, 481 S.E.2d
14 (1997) (where court equally divided, holding has no precedential value); 5 Am. Jur.
2d, Appellate Practice § 779 (same). More importantly, only a minority of our court
agreed with the proposition that sections 1 and 2 of the Kansas Constitution provide
similar protections to the Due Process and Equal Protection Clauses of the United States
Constitution. See Hodes, 52 Kan. App. 2d at 320-21 (Atcheson, J., concurring) (Section 1
of Kansas Constitution different from Due Process and Equal Protection Clauses of the
United States Constitution); 52 Kan. App. 2d at 339 (Malone, C.J., dissenting) ("We
conclude that the plain language of §§ 1 and 2 of the Kansas Constitution Bill of Rights is
not similar enough to the language of the Fourteenth Amendment to find that the
corresponding provisions must be applied in the same manner.").

Because Hodes cannot be cited to support the proposition relied upon and because
a citation to Hodes is an unnecessary addition to the string cite in support of the point that
"Kansas courts generally interpret the Kansas Bill of Rights as providing the same or
similar protections as the Bill of Rights in the United States Constitution," slip op. at 12, I
would have not included the citation to Hodes in the opinion.