Ransom v. State

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NOT DESIGNATED FOR PUBLICATION

No. 118,667

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

KENDRALL D. RANSOM,
Appellant,

v.

STATE OF KANSAS,
Appellee.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; JAMES R. FLEETWOOD, judge. Opinion filed December 7,
2018. 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 HILL, P.J., BUSER, J., and SIDNEY R. THOMAS, District Judge, assigned.

PER CURIAM: Kendrall Davon Ransom appeals the district court's summary
dismissal of his second K.S.A. 60-1507 motion. Upon our review, we hold that the
motion was untimely and Ransom has failed to establish that manifest injustice will result
if he is not allowed to proceed. Accordingly, we affirm the district court's denial of
Ransom's motion.



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FACTUAL AND PROCEDURAL BACKGROUND

In 2007, a jury found Ransom guilty of two counts of first-degree felony murder
and two counts of attempted aggravated robbery. Roger L. Falk represented Ransom at
the jury trial. During the trial, the State presented evidence of Ransom's confession, in
which he admitted his involvement in the charged crimes. The State also presented
evidence of firearms recovered from the house of Sharondi Washington, a State's witness.
Following the guilty verdicts, Ransom was sentenced to two consecutive hard-20 life
sentences and an additional consecutive 68 month term of imprisonment.

Ransom filed a direct appeal to the Kansas Supreme Court. In the appeal Ransom
contended:

"(1) The district judge erred by denying his motion to suppress his confession; (2) certain
testimony violated his confrontation rights under the Sixth Amendment to the United
States Constitution and was inadmissible hearsay; (3) he should have received a
proximate cause felony-murder jury instruction; (4) he was entitled to a mistrial after a
State witness violated a limine order; (5) the State should not have been permitted to
amend its information; and (6) the evidence of the felony murder of Christopher Spain
Bey was insufficient." State v. Ransom, 288 Kan. 697, 700, 207 P.3d 208 (2009).

Our Supreme Court rejected each of Ransom's arguments and affirmed his
convictions. 288 Kan. at 717. The opinion was filed on May 15, 2009, and the mandate
was issued 24 days later.

Nine months later, in February 2010, Ransom filed his first K.S.A. 60-1507
motion. In that motion, Ransom argued: (1) the district court violated his rights by
allowing Washington to testify; (2) the district court erred by not suppressing his
confession; and (3) his criminal trial attorney, Falk, failed to provide effective assistance.
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The district court appointed Stephen J. Ternes to represent Ransom in the K.S.A. 60-1507
proceeding.

The district court held a preliminary hearing, but determined that an evidentiary
hearing was unnecessary and denied the K.S.A. 60-1507 motion. Our court affirmed this
ruling in Ransom v. State, No. 105,042, 2011 WL 6382886 (Kan. App. 2011)
(unpublished opinion), rev. denied 296 Kan. 1131 (2013). The Kansas Supreme Court
denied review on February 19, 2013, and the mandate was issued one day later.

Seven months later, on September 19, 2013, Ransom filed his second K.S.A. 60-
1507 motion, which is the subject of this appeal. In this motion, Ransom alleged:

(1) The district court should have suppressed his confession because he was seized
in violation of the Fourth Amendment;
(2) He had standing to object to the search of Washington's house and the
evidence seized from the house should have been suppressed;
(3) Washington's trial testimony should have been suppressed because the district
court failed to appoint counsel to represent her even though she was arrested as
a material witness;
(4) The district court erred by not excluding a detective from the courtroom until
after her testimony;
(5) The district court erred by not accepting defense counsel's stipulation to the
victims' cause of death and request to exclude gruesome autopsy photographs;
(6) There was insufficient evidence to support the convictions; and
(7) He received ineffective assistance from his trial counsel, his direct appeal
counsel, and his first K.S.A. 60-1507 counsel.

In this second K.S.A. 60-1507 motion, Ransom acknowledged that it was untimely
filed and successive. He claimed, however, that exceptional circumstances excused his
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failure to argue the new issues in the first K.S.A. 60-1507 motion. In particular, Ransom
claimed that Ternes was ineffective for not amending the first K.S.A. 60-1507 motion to
include the issues presented in the second motion. Ransom also asserted that the one-year
time limitation to file a K.S.A. 60-1507 motion should be extended to prevent manifest
injustice.

The district court denied Ransom's second K.S.A. 60-1507 motion, ruling that
Ransom "failed to corroborate allegations of insufficiency on the part of counsel with
specific statements of fact." Ransom filed a motion to alter or amend judgment, which the
district court also denied. He appeals.

ANALYSIS

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

"'(1) The court may determine that the motion, files, and case records conclusively show
the prisoner is entitled to no relief and deny the motion summarily; (2) the court may
determine from the motion, files, and records that a potentially substantial issue exists, in
which case a preliminary hearing may be held. If the court then determines there is no
substantial issue, the court may deny the motion; or (3) the court may determine from the
motion, files, records, or preliminary hearing that a substantial issue is presented
requiring a full hearing.' [Citation omitted.]" Sola-Morales v. State, 300 Kan. 875, 881,
335 P.3d 1162 (2014).

Our standard of review depends on which of these options was employed by the
district court. When, as here, the district court summarily denies a K.S.A. 60-1507
motion, the standard of review is de novo. As a result, we must determine whether the
motion, files, and records of the case conclusively show that Ransom is entitled to no
relief. See Beauclair v. State, 308 Kan. 284, 293, 419 P.3d 1180 (2018).

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On appeal, Ransom contends the district court erred by dismissing his second
K.S.A. 60-1507 motion because the allegations justified an evidentiary hearing. The State
responds that Ransom failed to prove either manifest injustice or exceptional
circumstances to justify the late and successive filing of the motion. The State also
contends that Ransom's claims are largely barred by res judicata.

Generally, a person subject to a criminal sentence may challenge the legal
sufficiency of that punishment by filing a K.S.A. 60-1507 motion after exhausting
appeals in the direct criminal case. K.S.A. 2017 Supp. 60-1507(a). To avoid the summary
denial of a K.S.A. 60-1507 motion, however, the movant bears the burden of establishing
entitlement to an evidentiary hearing. Sola-Morales, 300 Kan. at 881. Several procedural
limitations apply to the relief available under K.S.A. 60-1507.

One procedural limitation is that a defendant has one year from when a conviction
becomes final to file a K.S.A. 60-1507 motion. K.S.A. 2017 Supp. 60-1507(f)(1). The
district court may extend this one-year time limitation only to prevent a manifest
injustice. K.S.A. 2017 Supp. 60-1507(f)(2). As discussed below, we find that Ransom's
second K.S.A. 60-1507 motion is untimely, and he fails to show that manifest injustice
will result if he is not allowed to proceed with the motion.

Ransom's Motion is Untimely

Ransom contends that his second K.S.A. 60-1507 motion was timely because it
was brought within one year of when our court affirmed the denial of his first K.S.A. 60-
1507 motion. Ransom's argument requires interpretation of K.S.A. 2017 Supp. 60-1507.
Interpretation of a statute is a question of law over which we have unlimited review.
Neighbor v. Westar Energy, Inc., 301 Kan. 916, 918, 349 P.3d 469 (2015).


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The time limitation in K.S.A. 2017 Supp. 60-1507 provides:

"(1) Any action under this section must be brought within one year of:
(A) The final order of the last appellate court in this state to exercise jurisdiction
on a direct appeal or the termination of such appellate jurisdiction; or
(B) the denial of a petition for writ of certiorari to the United States supreme
court or issuance of such court's final order following granting such petition." K.S.A.
2017 Supp. 60-1507(f)(1).

Ransom's argument that his second motion is timely because he filed it within one
year of the denial of his first K.S.A. 60-1507 motion is not meritorious. See Hutton v.
State, No. 112,862, 2016 WL 368066, at *2 (Kan. App. 2016) (unpublished opinion), rev.
denied 305 Kan. 1251 (2017). Under the plain language of K.S.A. 2017 Supp. 60-
1507(f)(1), Ransom was required to file the second motion within one year of the final
order or termination of his direct appeal. "[T]he term 'direct appeal' used in K.S.A. 60-
1507(f) refers to the underlying criminal case and not a collateral habeas corpus action."
Overton v. State, No. 111,181, 2015 WL 1636732, *2 (Kan. App. 2015) (unpublished
opinion).

Our Supreme Court affirmed Ransom's convictions on direct appeal in 2009.
Ransom filed this second K.S.A. 60-1507 motion in 2013, more than four years after the
mandate was issued in the underlying criminal case. As a result, Ransom's motion is
untimely and he must establish that manifest injustice would occur if it were dismissed.

Ransom Fails to Show Manifest Injustice

In his second K.S.A. 60-1507 motion, Ransom asserted that he satisfied the
manifest injustice standard because "[e]ach issue raised in this second 1507 motion
presents an easily understood and recognized violation of movant's constitutional rights."

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In Vontress v. State, 299 Kan. 607, 616, 325 P.3d 1114 (2014), our Supreme Court
held that manifest injustice should be determined from the totality of the circumstances.
To determine whether manifest injustice exists, courts were to consider the following
nonexhaustive list of factors: (1) whether the movant provides persuasive reasons or
circumstances that prevented the movant from filing the K.S.A. 60-1507 motion within
the time limitation; (2) whether the merits of the movant's claims raise substantial issues
of law or fact deserving of the district court's consideration; and (3) whether the movant
sets forth a colorable claim of actual innocence, i.e., factual, not legal, innocence. 299
Kan. 607, Syl. ¶ 8.

After Vontress was filed, the Legislature amended K.S.A. 60-1507(f) to limit a
court's consideration of what constitutes manifest injustice. L. 2016, ch. 58, § 2. The
amendment allows a court to consider only: (1) "why the prisoner failed to file the
motion within the one-year time limitation or [2] whether the prisoner makes a colorable
claim of actual innocence." K.S.A. 2017 Supp. 60-1507(f)(2)(A). That said, our Supreme
Court recently held that movants who filed their K.S.A. 60-1507 motions before July 1,
2016—the date that the amended version of K.S.A. 60-1507(f) was enacted—have a
vested right to argue under the Vontress test, including the second factor or any other
factor that could establish manifest injustice. White v. State, 308 Kan. 491, 502, 421 P.3d
718 (2018).

Because Ransom filed his motion before July 1, 2016, we will apply the Vontress
factors to determine whether he established manifest injustice to justify review of his
untimely second motion. Under Vontress, no single factor is dispositive, and courts need
not weigh the factors equally. 299 Kan. at 616-17. As explained by our Supreme Court:

"This means that courts should not simply tally the factors and determine, for example,
that a movant had established manifest injustice simply because two out of three factors
favored that outcome. Instead, a court applying the Vontress factors must consider all the
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circumstances and determine if, in total, those circumstances create a situation in which it
would be obviously unfair or shocking to the conscience to not allow a movant to pursue
relief under 60-1507." White, 308 Kan. at 501.

In applying the three Vontress factors to this case, we are convinced that Ransom
has failed to establish manifest injustice. The first Vontress factor does not support a
finding of manifest injustice. Other than the claimed ineffective assistance of Ternes—his
first K.S.A. 60-1507 counsel—Ransom fails to assert any persuasive reason or
circumstance that prevented him from filing the motion within the one-year time
limitation. Moreover, most if not all of Ransom's claims derived from the jury trial. As a
result, they were apparent or should have been apparent to Ransom from the outset. And,
as explained in our analysis of the second Vontress factor, Ransom's assertion of the
purported ineffectiveness of Ternes is not persuasive.

Considering the second Vontress factor, we find the merits of Ransom's claims do
not raise substantial issues of law or fact deserving of the district court's consideration.
Most of Ransom's claims in the second K.S.A. 60-1507 motion were addressed or could
have been addressed either in his direct appeal or in his first K.S.A. 60-1507 motion.

In a K.S.A. 60-1507 proceeding, the sentencing court need not entertain a second
or successive motion for similar relief on behalf of the same prisoner. State v. Trotter,
296 Kan. 898, 904, 295 P.3d 1039 (2013) (citing K.S.A. 60-1507[c]). "A movant in a
K.S.A. 60-1507 motion is presumed to have listed all grounds for relief, and a subsequent
motion need not be considered in the absence of a showing of circumstances justifying
the original failure to list a ground." 296 Kan. 898, Syl. ¶ 2. Additionally, a K.S.A. 60-
1507 motion may not typically be used as a substitute for a direct appeal or for a second
appeal. See State v. Kelly, 291 Kan. 868, 872, 248 P.3d 1282 (2011).

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The only claim in Ransom's second K.S.A. 60-1507 motion that is not successive
is his claim that he received ineffective assistance of counsel in his first K.S.A. 60-1507
motion. See Hutton, 2016 WL 368066, at *3. Ransom relies on this claim also to
establish exceptional circumstances justifying consideration of his successive claims.

To prevail on a claim of ineffective assistance of counsel, a criminal defendant
must establish: (1) 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,
300 Kan. at 882.

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). 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).

Ransom argues that Ternes was ineffective because he did not amend the first
K.S.A. 60-1507 motion to include the issues now presented in his second K.S.A. 60-1507
motion. However, as discussed below, the claims Ransom raises in his second motion do
not warrant relief. As a result, Ternes was not ineffective for failing to amend the first
motion to include them.

First, Ransom's claim that his confession should have been suppressed is barred by
the doctrine of res judicata. This doctrine prevents an individual from splitting a single
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issue into multiple lawsuits. See Shelton v. DeWitte, 271 Kan. 831, 836-37, 26 P.3d 650
(2001). The res judicata doctrine applies to a K.S.A. 60-1507 movant who tries to raise
issues "which have previously been resolved by a final appellate court order in his or her
criminal proceeding." Drach v. Bruce, 281 Kan. 1058, Syl. ¶ 14, 136 P.3d 390 (2006).
Our Supreme Court in Ransom's direct appeal rejected his challenge to the admission of
his confession. Accordingly, this claim is barred by res judicata. Moreover, the claim was
also included in Ransom's first K.S.A. 60-1507 motion.

Second, Ransom lacks standing to challenge the search of Washington's home that
revealed the firearms used in Ransom's crimes. Ransom claims that he had standing to
challenge the search because he was an occasional social guest and stored property in
Washington's home. However, Ransom was not a social guest or present when
Washington's home was searched. As a result, he had no reasonable expectation of
privacy or meaningful connection to Washington's home in order to qualify for protection
under the Fourth Amendment. See State v. Talkington, 301 Kan. 453, 479, 345 P.3d 258
(2015). "A person who is aggrieved by an illegal search and seizure only through the
introduction of damaging evidence secured by a search of a third person's premises or
property has not had any of his Fourth Amendment rights infringed." Rakas v. Illinois,
439 U.S. 128, 134, 99 S. Ct. 421, 58 L. Ed. 2d 387 (1978).

Third, Ransom argues Washington's testimony should have been suppressed
because she was arrested on a material witness warrant but was not appointed counsel as
required by K.S.A. 22-2805. The record, however, fails to show that Washington was
ever arrested as a material witness under K.S.A. 22-2805. Assuming Ransom's factual
assertions are true, however, this claim fails because Ransom does not explain how he
may assert Washington's statutory rights on her behalf to exclude her testimony. See
Warth v. Seldin, 422 U.S. 490, 499, 95 S. Ct. 2197, 45 L. Ed. 2d 343 (1975) (Parties
"generally must assert [their] own legal rights and interests, and cannot rest [a] claim to
relief on the legal rights or interests of third parties.").
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Fourth, Ransom claims the district court erred and his trial counsel was ineffective
by allowing a detective to sit at the prosecution table before she testified. In State v.
Sampson, 297 Kan. 288, 297, 301 P.3d 276 (2013), our Supreme Court first held that
district courts may not allow a testifying law enforcement officer to sit at the prosecution
table during a jury trial. Our court has previously determined that trial attorneys
representing defendants before Sampson could not have anticipated the court's ruling
given the legal landscape at the time. See Walker v. State, No. 109,585, 2014 WL
3843084, at *6 (Kan. App. 2014) (unpublished opinion). We find the reasoning in Walker
persuasive and join in its result. Ransom's criminal trial and first K.S.A. 60-1507 action
ended before Sampson was filed. None of Ransom's prior counsel may be considered
ineffective for not objecting to the detective sitting with the prosecutor during trial.

Fifth, Ransom argues that the district court violated his due process rights by
admitting photographs of the victims' bodies. He asserts that the district court should
have accepted defense counsel's offer to stipulate to the victims' cause of death and
excluded the gruesome photographs.

Contrary to Ransom's claims, our review of the record reveals that defense counsel
did not request a stipulation to the victims' cause of death. Instead, Ransom's counsel
objected to the photographs and argued that their prejudicial value outweighed their
probative value because "the cause of death is not really an issue." The district court
overruled Ransom's objection, finding that the photographs of the victims' bodies were
"not gruesome, much less unusually gruesome." The district court also noted that "we
don't know for certain what the defense is going to be."

Kansas law provides:

"'The admission of photographs in a homicide case is a matter within the trial
court's discretion, and the trial court's ruling will not be disturbed on appeal absent the
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showing of an abuse of that discretion. An abuse of discretion has occurred when the
admitted photographs were unduly repetitious and cumulative or their introduction was
solely for the purpose of prejudice. The admission of photographs in a murder case has
rarely been held to be an abuse of discretion.
"Photographs depicting the extent, nature, and number of wounds inflicted are
generally relevant in a murder case. Photographs which are relevant and material in
assisting the jury's understanding of medical testimony are admissible. Specifically,
photographs which aid a pathologist in explaining the cause of death are admissible.
Photographs used to prove the manner of death and the violent nature of the crime are
relevant and admissible.' [Citations omitted.]." State v. Green, 274 Kan. 145, 147, 48
P.3d 1276 (2002).

In this case, the district court admitted seven photographs showing the victims'
bodies at the time of their autopsies. The record shows that the seven admitted
photographs were selected instead of more gruesome photographs, which the State did
not seek to introduce into evidence. During trial, the coroner testified that the
photographs would help her explain her findings about the victims' cause of death. The
coroner then testified using the photographs to explain her testimony and conclusions.

Ransom fails to establish that the admission of the photographs was an abuse of
discretion or violated his right to due process. The district court reviewed the proposed
photographic exhibits, heard the coroner testify that the photographs would assist her in
her testimony, and admitted seven of them. We are unable to conclude that the district
court erred by admitting the photographs.

Sixth, there was sufficient evidence to support all of Ransom's convictions. A jury
convicted Ransom of two counts of attempted aggravated robbery, first-degree felony
murder of Christopher Spain Bey, and first-degree felony murder of Donta McDonald. In
his direct appeal, Ransom argued that the evidence was insufficient to support his
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conviction of felony murder of Spain Bey. Our Supreme Court rejected this claim in
Ransom and, thus, it is barred by res judicata. See Drach, 281 Kan. 1058, Syl. ¶ 14.

With regard to the remaining convictions of attempted aggravated robbery and
first-degree felony murder of McDonald, an appellate court's standard of review is well
known:

"'When sufficiency of the evidence is challenged in a criminal case, the standard
of review is whether, after reviewing all the evidence in a light most favorable to the
prosecution, the appellate court is convinced a rational factfinder could have found the
defendant guilty beyond a reasonable doubt. Appellate courts do not reweigh evidence,
resolve evidentiary conflicts, or make witness credibility determinations.' [Citation
omitted.]" State v. Chandler, 307 Kan. 657, 668, 414 P.3d 713 (2018).

To support a felony murder conviction, there must be evidence that a defendant
committed a felony inherently dangerous to human life that directly resulted in a
homicide. Ransom, 288 Kan. at 716. "A defendant may be convicted of felony murder
even if the victim was not killed by the defendant or an agent of the defendant, as long as
the homicide occurred as a direct result of an inherently dangerous felony." 288 Kan. at
716-17.

In this case, the State presented evidence of Ransom's confession to Detective
Rick Craig. Ransom said that he and three others planned to rob a drug house on March
20, 2006. Armed with guns, the group drove to a drug house. But the group's plans
changed when McDonald walked out of the house and headed towards a truck. The group
decided to rob McDonald. Ransom ran and confronted McDonald with a shotgun,
demanding money. Ransom then shot McDonald, who later died.

After shooting McDonald, Ransom and the group went to Washington's house.
Ransom and two of the other men got into a different vehicle and drove to another drug
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house. Ransom explained the group's plan was to kick in the door, make everybody
inside lay down, and then steal their money and drugs. The men approached the second
drug house, stating they were there to buy drugs. An individual opened the door but
closed it after he saw Ransom holding a shotgun. After gunshots were fired, Ransom fled
from the residence. Officers found Spain Bey dead after the second attempted robbery.

Ransom's confession, corroborated by other direct and circumstantial trial
evidence, provided sufficient evidence to support the two counts of attempted aggravated
robbery and the first-degree felony murder of McDonald. As a result, Ransom's claim
that there was insufficient evidence to support his conviction fails.

Finally, Ransom makes several claims about the representation of his trial counsel,
Falk, which he asserts constitutes ineffective assistance. Specifically, Ransom argues that
Falk: (1) did not interview any witnesses before trial; (2) did not fully advise Ransom of
the desirability of accepting a plea agreement; (3) had no defense strategy; (4) failed to
make a proper motion for judgment of acquittal; and (5) conceded Ransom's guilt on
three counts in closing argument. In these claims, Ransom offers only conclusory
statements, presents no evidentiary basis, and no such basis appears in the record. Even
liberally construed, these claims did not entitle Ransom to an evidentiary hearing. See
Mundy v. State, 307 Kan. 280, 304, 408 P.3d 965 (2018).

Additionally, the record does not support Ransom's complaints about Falk.
Inconsistent with Ransom's claim that his trial counsel failed to interview any witnesses
before trial, Falk thoroughly cross-examined many of the State's witnesses. This was in
accordance with Falk's trial strategy of challenging the State's evidence and arguing that
the State failed to prove Ransom's guilt beyond a reasonable doubt. And contrary to
Ransom's assertions, Falk made a proper motion for judgment of acquittal and did not
concede Ransom's guilt in closing arguments.

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Since Ransom's claims in his second K.S.A. 60-1507 motion do not warrant relief,
his first K.S.A. 60-1507 counsel was not ineffective for failing to amend the first motion
to include them. As a consequence, Ransom's second K.S.A. 60-1507 motion raises no
substantial issues of law or fact. We are persuaded that the second Vontress factor weighs
against a finding of manifest injustice.

Lastly, considering the third Vontress factor, Ransom makes no colorable claim of
actual innocence. Moreover, Ransom does not argue that his confession was false or that
he otherwise did not commit the crimes.

In applying the Vontress factors and considering the totality of the circumstances,
we find that it is not obviously unfair or shocking to the conscience to preclude Ransom
from pursuing relief under his second K.S.A. 60-1507 motion. Accordingly, Ransom has
failed to establish manifest injustice. Because Ransom fails to show manifest injustice for
the court to consider his untimely second K.S.A. 60-1507 motion, his claims are barred.
We, therefore, affirm the district court on this basis. See Rivera v. Kansas Dept. of
Revenue, 41 Kan. App. 2d 949, 956, 206 P.3d 891 (2009) ("On appeal, the district court's
decision will be upheld if it is correct for any reason.").

The district court did not err by summarily dismissing Ransom's second K.S.A.
60-1507 motion.

Affirmed.