Rincon v. State

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NOT DESIGNATED FOR PUBLICATION

No. 119,391

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

ROBERTO SIMON RINCON,
Appellant,

v.

STATE OF KANSAS,
Appellee.


MEMORANDUM OPINION

Appeal from Reno District Court, TRISH ROSE, judge. Opinion filed March 29, 2019. Affirmed.

Shannon S. Crane, of Hutchinson, for appellant.

Thomas R. Stanton, deputy district attorney, Keith E. Schroeder, district attorney, and Derek
Schmidt, attorney general, for appellee.

Before BRUNS, P.J., MALONE and POWELL, JJ.

PER CURIAM: Roberto Simon Rincon appeals the district court's denial of his
K.S.A. 60-1507 motion following a preliminary hearing. For reasons we more fully
explain below, we reject Rincon's assertions that the search warrant violated Rule 41 of
the Federal Rules of Criminal Procedure and that his counsel was ineffective. Thus, we
affirm the district court.

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FACTUAL AND PROCEDURAL BACKGROUND

Following a bench trial on stipulated facts, and after preserving his right to appeal
the district court's denials of his two motions to suppress, Rincon was convicted of
several drug charges related to the possession of items used in the manufacturing of a
controlled substance and for the manufacturing of methamphetamine. The district court
sentenced Rincon to a controlling sentence of 156 months in prison. On direct appeal,
Rincon challenged the district court's denials of his suppression motions. See State v.
Rincon, No. 112,183, 2015 WL 9455560 (Kan. App. 2015) (unpublished opinion). While
more expansively detailed in our court's decision of his direct appeal, we provide a
relevant summary of the facts below.

On March 20, 2012, the Reno County District Court issued a protection from
abuse (PFA) order against Rincon. At the PFA hearing, the victim advised the district
court that Rincon possessed several firearms; Rincon was ordered to surrender the
firearms to the Reno County Sheriff and was informed that the entry of the PFA order
prohibited him from possessing firearms under federal law, see 18 U.S.C. § 922 (2012).
However, Rincon failed to turn in his firearms as ordered.

On March 21, 2012, Reno County Sheriff's Detective Shawn McHaley applied for
a search warrant for Rincon's residence and three vehicles Rincon was known to drive,
including a white 1996 Pontiac Grand Prix. The warrant sought to recover firearms
McHaley believed Rincon possessed in violation of 18 U.S.C. § 922(g)(8). The affidavit
in support of the warrant stated Rincon had a current Reno County PFA order in effect
against him as well as a 2010 Sedgwick County PFA order which would expire on April
14, 2012. The district court issued the search warrant, and that evening law enforcement
observed Rincon leave his residence in the Grand Prix and followed him to see if he was
heading towards the Sheriff's office. After deciding he was not, the officers stopped the
vehicle, searched Rincon, and found a handgun with a round in the chamber. The officers
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transported the vehicle to the Sheriff's office and recovered, among other things, a second
handgun, an assault rifle from the trunk, hundreds of rounds of ammunition, an
apparently active methamphetamine lab, and several items used to manufacture
methamphetamine. The officers obtained a second search warrant for Rincon's residence.

Before his bench trial, Rincon had many attorneys appointed to represent him. The
first motion to suppress, filed by Sam Kepfield, mainly argued that the district court
should suppress the evidence obtained under the first search warrant because McHaley's
supporting affidavit relied on stale information, failed to establish probable cause, and the
good-faith exception did not apply because the district court had abandoned its neutral
and detached role in issuing the warrant. After a hearing, the district court denied
suppression on the grounds that it was bound by the four corners of the application and
affidavit; probable cause did exist to support the warrant despite the existence of some
stale facts; and, even assuming the warrant lacked probable cause, the officers had a
good-faith belief that the warrant was valid.

Rincon's later attorney, Pam McLemore, filed a second motion to suppress that
argued McHaley's affidavit was insufficient because it contained misstatements of
material fact that, if removed, left the affidavit without sufficient facts to support
probable cause. At a hearing, the State argued, in part, the district court should deny the
motion because Rincon failed to file a sworn statement in support of his argument that
the search warrant affidavit contained misstatements of material fact. In response,
McLemore acknowledged she filed the motion late—she claimed it was due to a
misunderstanding that another attorney was planning to enter the case—but requested, in
place of the missing sworn statement, the district court consider the Reno County PFA
hearing transcript which she claimed showed the district court had set no deadline for
Rincon to turn in his weapons. McLemore also argued she believed the 2010 Sedgwick
County PFA paperwork would show Rincon had not been personally served. The district
court denied Rincon's motion on the grounds that even if the two statements were left out,
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the facts in the affidavit still established probable cause to support the issuance of the
warrant.

On direct appeal, Rincon challenged the district court's denials of his motions to
suppress. Regarding the first motion to suppress, our court reviewed McHaley's affidavit
in support of the search warrant and held the district court properly denied suppression.

"[T]he information in the search warrant affidavit established a fair probability that
contraband or evidence of a crime would be found in a particular place. See Powell, 299
Kan. at 695. The affidavit established that Rincon was subject to a 2010 Sedgwick
County PFA order that was still in effect and prohibited him from possessing any
firearms; that Rincon admitted to the judge at his March 20, 2012, hearing in Reno
County that he possessed several firearms; that the judge ordered Rincon to turn over all
his firearms to the sheriff's office but he failed to follow the court's order; and that
Rincon normally carries handguns with him and often has an assault rifle in the vehicle
he is driving and weapons at his residence. Thus, we conclude the district court did not
err in denying Rincon's first motion to suppress. We need not address the State's
alternative argument that even if the affidavit failed to establish probable cause, the
good-faith exception would apply to save the search." Rincon, 2015 WL 9455560, at
*10.

Concerning Rincon's second motion to suppress, the panel held that because
Rincon filed no sworn statement supporting his allegations of McHaley's material
misstatement of facts in the affidavit, the district court properly denied the motion as
Rincon was procedurally barred from challenging the affidavit under Franks v.
Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978), and State v. Adams,
294 Kan. 171, 178-79, 273 P.3d 718 (2012). Rincon, 2015 WL 9455560, at *10-11.
Given the panel's findings that the district court had properly denied Rincon's motions to
suppress, the panel did not analyze the correctness of the district court's denial based on
the finding that the affidavit established probable cause without the two statements.
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Ultimately, Rincon's convictions and sentences were affirmed. 2015 WL 9455560, at
*11-16. Our Supreme Court denied Rincon's petition for review. 304 Kan. 1021 (2016).

On March 10, 2017, Rincon filed a pro se K.S.A. 60-1507 motion. Among other
things, Rincon argued he had ineffective assistance of counsel because (1) his trial
attorneys failed to seek suppression of the first search warrant under United States v.
Townsend, 394 F. Supp. 736 (E.D. Mich. 1975), which would have resulted in the
suppression of evidence because the warrant was based only on a violation of federal law
and required the involvement of federal law enforcement officers, and (2) McLemore had
failed to include a sworn statement with the second motion to suppress challenging
McHaley's affidavit as containing material misstatement of facts.

The district court appointed counsel for Rincon and, in November 2017, held a
preliminary hearing where attorneys for Rincon and the State presented argument. At the
hearing, Rincon's attorney argued the district court should conduct an evidentiary hearing
because both trial attorneys provided ineffective assistance of counsel in failing to request
suppression under Townsend. In response, the State argued that K.S.A. 2017 Supp. 22-
2502 permits Kansas judges to issue search warrants for anything used in the commission
of a crime or any contraband or property considered part of the evidence, fruits, or
instrumentalities of a crime under the laws of this state, any other state, or the United
States. The State also argued that Townsend applies to situations where state and federal
officials jointly execute a warrant in violation of Federal Rule 41 and it was unclear if the
exclusion of evidence under Townsend applied in a state court. After taking the matter
under advisement, the district court denied Rincon's motion.

Rincon timely appeals.

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DID THE DISTRICT COURT ERR IN DENYING RINCON'S K.S.A. 60-1507 MOTION?

A. Standard of Review

A district court has three options when reviewing a motion filed pursuant to
K.S.A. 60-1507:

"'(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.'

"Our standard of review depends upon which approach the district court used to
dispose of the motion. When, as here, a court denies a 60-1507 motion based only on the
motion, files, and records after a preliminary hearing, we are in as good a position as that
court to consider the merits. So we exercise de novo review. [Citations omitted.]" Sola-
Morales v. State, 300 Kan. 875, 881, 335 P.3d 1162 (2014).

Accordingly, our review is de novo.

B. Ineffective Assistance of Trial Counsel

The Sixth Amendment to the United States Constitution, made applicable to the
states under the Fourteenth Amendment, guarantees a defendant the right to the effective
assistance of counsel. 300 Kan. at 882.

"Claims of ineffective assistance of counsel for deficient performance under the
first category are the 'general rule' and controlled by Strickland. To prevail on such a
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claim, 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. [Citations omitted.]" 300 Kan. at 882-83.

Our Supreme Court has explained:

"'The first prong of the test for ineffective assistance of counsel requires a
defendant to show that counsel's representation fell below an objective standard of
reasonableness, considering all the circumstances. Judicial scrutiny of counsel's
performance must be highly deferential, and . . . [w]e must indulge a strong presumption
that counsel's conduct falls within the wide range of reasonable professional assistance.
[Citation omitted.]'

"'[Under the second prong of the test for ineffective assistance of counsel], the
defendant also must establish prejudice by showing that there is a reasonable probability
that, but for counsel's deficient performance, the result of the proceeding would have
been different. A reasonable probability is a probability sufficient to undermine
confidence in the outcome. A court hearing an ineffectiveness claim must consider the
totality of the evidence before the judge or jury. [Citations omitted.]'" State v. Butler, 307
Kan. 831, 852-53, 416 P.3d 116 (2018).

A reviewing court may first consider the prejudice prong of an ineffective
assistance of counsel claim by assuming trial counsel's alleged errors amounted to
deficient performance. Edgar v. State, 294 Kan. 828, 843, 283 P.3d 152 (2012) (quoting
Strickland v. Washington, 466 U.S. 668, 697, 104 S. Ct. 2052, 80 L. Ed. 2d 674 [1984]).

C. Does the doctrine of res judicata bar Rincon's claims?

Preliminarily, the State argues we should decline to consider the merits of
Rincon's claims under the doctrine of res judicata because Rincon previously challenged
the denials of his suppression motions.
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"'The applicability of res judicata is a question of law over which this court has
unlimited review.' 'The doctrine of res judicata provides that "where an appeal is taken
from the sentence imposed and/or a conviction, the judgment of the reviewing court is res
judicata as to all issues actually raised, and those issues that could have been presented,
but were not presented, are deemed waived." [Citations omitted.]'

"'In Kansas, there are four requirements to apply res judicata: (1) identity in the
thing sued for; (2) identity of the cause of action; (3) identity of persons and parties to the
action; and (4) identity in the quality of persons for or against whom claim is made. In
other words, "(1) same claim; (2) same parties; (3) claims were or could have been
raised; and (4) a final judgment on the merits." [Citations omitted.]'" Bogguess v. State,
306 Kan. 574, 579, 395 P.3d 447 (2017).

While Rincon's trial counsel, Greg Meredith—appointed after Kepfield and
McLemore—raised ineffective assistance of counsel claims in a posttrial motion in his
criminal case, the district court did not rule on the merits and denied the motion as
untimely. On direct appeal, Rincon challenged the district court's denial of his posttrial
motion as untimely, but the panel affirmed the district court. Rincon, 2015 WL 9455560,
at *12-13. Even if Rincon had timely raised his claims, we could have declined to review
the merits because our Supreme Court has expressed a general rule of discouraging
ineffective assistance of trial counsel claims on direct appeal. See Bogguess, 306 Kan. at
580.

The State's claim fails because a prior court has not issued a final judgment on the
merits of Rincon's ineffective assistance of counsel claims. Because there is no final
judgment on the merits, the doctrine of res judicata does not procedurally bar review of
Rincon's ineffective assistance of counsel claims.

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D. Did Rincon's trial attorneys provide ineffective assistance of counsel in failing to
raise a meritorious suppression challenge to the first search warrant?

Rincon argues the trial attorneys who filed his motions to suppress provided
ineffective assistance of counsel in failing to argue the first search warrant required
suppression under Townsend. In response, the State argues the district court did not err in
denying Rincon's claim because K.S.A. 2011 Supp. 22-2502 authorized the district judge
to issue the search warrant and Townsend does not apply because Rincon was prosecuted
in state, not federal, court.

"Interpretation of . . . statutes is a question of law subject to de novo review.

"When interpreting statutes, we begin with '"the fundamental rule that [courts]
give effect to the legislature's intent as it is expressed in the statute. Courts must apply a
statute's language when it is clear and unambiguous, rather than determining what the law
should be, speculating about legislative intent, or consulting legislative history."' We
derive legislative intent by first applying the meaning of the statute's text to determine its
effect in a specific situation. 'It is only when the language is unclear or ambiguous that
the court employs the canons of statutory construction, consults legislative history, or
considers other background information to ascertain the statute's meaning.' [Citations
omitted.]" State v. Collins, 303 Kan. 472, 473-74, 362 P.3d 1098 (2015).

K.S.A. 2011 Supp. 22-2502(a) states in pertinent part:

"(a) A search warrant shall be issued only upon the oral or written statement,
including those conveyed or received by electronic communication, of any person under
oath or affirmation which states facts sufficient to show probable cause that a crime has
been or is being committed and which particularly describes a person, place or means of
conveyance to be searched and things to be seized. Any statement which is made orally
shall be either taken down by a certified shorthand reporter, sworn to under oath and
made part of the application for a search warrant, or recorded before the magistrate from
whom the search warrant is requested and sworn to under oath. Any statement orally
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made shall be reduced to writing as soon thereafter as possible. If the magistrate is
satisfied that grounds for the application exist or that there is probable cause to believe
that they exist, the magistrate may issue a search warrant for the seizure of the following:

(1) Any things which have been used in the commission of a crime, or any
contraband or any property which constitutes or may be considered a part of the
evidence, fruits or instrumentalities of a crime under the laws of this state, any other state
or of the United States. The term 'fruits' as used in this act shall be interpreted to include
any property into which the thing or things unlawfully taken or possessed may have been
converted."

McHaley sought and was granted a search warrant based on his belief that Rincon
possessed firearms in violation of 18 U.S.C. § 922(g), which states in relevant part:

"(g) It shall be unlawful for any person—
. . . .
"(8) who is subject to a court order that—
(A) was issued after a hearing of which such person received actual notice, and at
which such person had an opportunity to participate;
(B) restrains such person from harassing, stalking, or threatening an intimate
partner of such person or child of such intimate partner or person, or engaging in other
conduct that would place an intimate partner in reasonable fear of bodily injury to the
partner or child; and
(C) (i) includes a finding that such person represents a credible threat to the
physical safety of such intimate partner or child; or
(ii) by its terms explicitly prohibits the use, attempted use, or threatened use of
physical force against such intimate partner or child that would reasonably be expected to
cause bodily injury; . . .
. . . .
"to ship or transport in interstate or foreign commerce, or possess in or affecting
commerce, any firearm or ammunition; or to receive any firearm or ammunition which
has been shipped or transported in interstate or foreign commerce."
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In Townsend, the defendant argued the federal district court should suppress the
evidence obtained under a search warrant issued by a state court because the warrant was
supported with input from a federal agency, alleged only federal violations, resulted only
in a federal prosecution, but was executed solely by state officials. The court explained
that a search warrant is valid—and evidence obtained under a warrant is lawfully
obtained—if the "'warrant satisfies constitutional requirements and does not contravene
any Rule-embodied policy designed to protect the integrity of the federal courts or to
govern the conduct of federal officers.'" 394 F. Supp. at 748 (quoting United States v.
Sellers, 483 F.2d 37, 43 [5th Cir. 1973]). Ultimately, the federal court agreed with
Townsend and suppressed the evidence based on a violation of Rule 41(c) of the Federal
Rules of Criminal Procedure:

"[T]he rule clearly contemplates that in cases such as the one at bar, where there is
federal probable cause in the first instance, that there be federal participation and
supervision of the undertaking. The standards are not 'merely blueprints of procedure for
issuance of federal warrants.' (Sellers, at 44.) Rather, they are designed to protect the
integrity of the federal police power by insuring some measure of control in purely
federal matters to federal officers. If state officers were permitted to institute federal
warrants without involving federal officers, they would be able to conduct federal
investigations themselves. The unpredictable and certainly enormous, potential for abuse
inherent in such an arrangement is manifest. Therefore, the warrant must fail on that
basis.

"In addition, since the warrant is based on federal probable cause, it should be
subject to all Rule 41 requirements, as suggested in Sellers, supra. The fact that Sellers,
Brougher[, 19 F.R.D. 79 (W.D. Pa. 1956),] and Elliott, [210 F. Supp. 357 (D. Mass.
1962)], involved joint execution of the warrant does not furnish a meaningful basis of
distinction. Admittedly, when federal officers participate, there is a stronger reason for
application of federal rules. But the purpose of the federal rules is not simply to provide
guidelines for the actions of federal officers. 'They prescribe standards for law
enforcement' in federal cases (Rea v. U.S., 305 U.S. 214, 217, 76 S. Ct. 292, 294, 100 L.
Ed. 233 (1955)); they are 'designed to protect the integrity of the federal courts.' (Sellers
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at 43). Importantly, they are exclusive and mandatory and supersede state rules of
procedure in the federal courts. (See U.S. v. Virginia Erection Corp.[,] 335 F.2d 868 (4th
Cir. 1964); U.S. v. DiRe, 332 U.S. 581, 68 S. Ct. 222, 92 L. Ed. 210 (1948), dealing with
the arrest context). Thus, federal rules should apply with equal force in cases involving
federal probable cause, whether or not a warrant is executed jointly." 394 F. Supp. at 750.

Undermining Rincon's reliance on Townsend is the fact that the Fifth Circuit Court
of Appeals overruled two cases on which the Townsend court relied on—Navarro v.
United States (Navarro I), 400 F.2d 315 (5th Cir. 1968), and Sellers, 483 F.2d 37—
finding the 1972 amendment to Rule 41 provided that the rule should apply only when a
search warrant is issued at the request of federal officials. See United States v. McKeever,
905 F.2d 829, 833 (5th Cir. 1990).

Moreover, as the State correctly argues, Townsend concerns application of a
federal rule violation for the suppression of evidence in a federal prosecution. The
application of Rule 41 and its underlying policies do not necessarily mandate the
suppression of evidence in state courts based on a rule violation, unless the rule violation
also violated the Fourth Amendment. See United States v. Navarro (Navarro II), 429
F.2d 928, 931 (5th Cir. 1970); Annot. 25 A.L.R. Fed. 247.

To illustrate, in Navarro II, the Fifth Circuit Court of Appeals reversed Navarro's
federal drug conviction for a violation of Rule 41(a) which required the suppression of
evidence obtained under a jointly executed search warrant with state officials. After the
reversal, the State charged Navarro with violating state drug laws. Navarro sought an
injunction to enjoin the use of the evidence obtained in violation of Rule 41(a) in state
court. While the Fifth Circuit held it could enjoin the federal officers from testifying, it
could not enjoin federal officers from turning over physical evidence to state officials and
could not stop the state officers from testifying. The panel reasoned that Mapp v. Ohio,
367 U.S. 643, 655, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961)—which held all evidence
obtained in violation of the United States Constitution was inadmissible in states courts—
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did not help Navarro because the search and seizure did not violate constitutional
mandates but violated only the stricter federal rule. Navarro II, 429 F.2d at 931-32. The
Fifth Circuit also stated: "A state court is not bound to protect the integrity of the federal
rules by excluding evidence secured in violation of them, unless of course, the violation
of federal rules is also a violation of constitutional imperatives." 429 F.2d at 931.

Significantly, when reviewing a Rule 41 suppression challenge, the Tenth Circuit
Court of Appeals requires reviewing courts first to determine if Rule 41 was violated and,
if so, then to determine whether the rule violation amounts to a Fourth Amendment
violation. If the reviewing court finds the violation is not a constitutional one, then the
reviewing court must decide whether the defendant can establish if "'(1) there was
"prejudice" in the sense that the search might not have occurred or would not have been
so abrasive if the Rule had been followed, or (2) there is evidence of intentional and
deliberate disregard of a provision in the Rule.' Unless the defendant can establish
prejudice or intentional disregard of the Rule, a non-constitutional violation of Rule 41
will not, by itself, justify suppression. [Citations omitted.]" United States v. Krueger, 809
F.3d 1109, 1114 (10th Cir. 2015).

Finally, states may "develop their own rules governing search and seizure so long
as those rules follow the constitutional prohibition against unreasonable searches and
seizures." State v. McCloud, 257 Kan. 1, 13, 891 P.2d 324 (citing Ker v. California, 374
U.S. 23, 34, 83 S. Ct. 1623, 10 L. Ed. 2d 726 [1963]), cert. denied 516 U.S. 837 (1995).
Under K.S.A. 2011 Supp. 22-2502(a)(1), the district court had the authority to issue the
search warrant for Rincon's alleged federal violation under 18 U.S.C. § 922(g)(8), so long
as the judge found probable cause supported the crime and had a belief that Rincon
possessed firearms in violation of the laws of the United States. Thus, it is unlikely the
district court would have suppressed the evidence based on Rincon's alleged Rule 41
violation.

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Rincon also argues that the Federal Rule 41 violation required the suppression of
evidence because federal involvement was needed to execute a warrant based solely on a
violation of federal law. But Rincon fails to establish that the alleged Rule 41 violation
also violated the Fourth Amendment, i.e., by causing an unreasonable search or seizure.
See Navarro II, 429 F.2d at 931-32. Rincon provides no pertinent authority to support his
claim the alleged Rule 41 violation requires suppression in Kansas state courts, nor does
Rincon explain why his claim is sound despite a lack of supporting authority. As a result,
we consider his argument waived or abandoned. See State v. Pewenofkit, 307 Kan. 730,
Syl. ¶ 2, 415 P.3d 398 (2018).

Rincon has not adequately shown that, but for his trial attorneys' alleged failures,
there was a reasonable probability the result of the proceeding would have been different.
Thus, the district court properly summarily denied Rincon's K.S.A. 60-1507 claim.

E. Did McLemore provide ineffective assistance of counsel in failing to include
Rincon's sworn statement in support of his challenge to McHaley's affidavit as
containing misstatements of material fact?

Rincon argues McLemore provided ineffective assistance of counsel in failing to
include his sworn statement with the motion to suppress challenging McHaley's affidavit
as containing misstatements of material fact and as lacking probable cause to support the
first search warrant.

In Adams, 294 Kan. at 178-79, the Kansas Supreme Court reviewed the

"principles outlined in Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d
667 (1978). In Franks, the Supreme Court explained that an affidavit in support of a
search warrant is presumed valid, and in most cases, the facts contained therein may not
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be disputed by the party against whom the warrant is directed. The Court then outlined a
limited exception.

"Under the Franks exception, an evidentiary hearing is required if a defendant
shows by a sworn allegation that an affidavit in support of a search warrant is unreliable
in that it: (1) contains statements that are material to the issuance of the search warrant
because the statements were necessary to find probable cause and (2) the material
statements (a) were a deliberate falsehood, (b) were made in reckless disregard for the
truth, or (c) deliberately omitted a material fact. In attacking the affidavit, the defendant
must 'point out specifically the portion of the warrant affidavit that is claimed to be
false[,] and a statement of supporting reasons should accompany the motion to suppress.'

"In other words, the Franks Court explained, if a defendant makes a prima facie
showing that the affidavit is questionable, the trial court should set aside or excise the
challenged portions of the affidavit and consider whether the remaining portions of the
affidavit provide sufficient evidence of probable cause. If probable cause can be found
without the excised statements, no evidentiary hearing is required. On the other hand, if
there is not sufficient content in the remaining portion of the affidavit to support a finding
of probable cause, the defendant is entitled to an evidentiary hearing to establish the
affiant deliberately omitted a material fact, deliberately made a false statement, or made a
statement with reckless disregard for the truth. [Citations omitted.]"

"Allegations of negligence or innocent mistakes are insufficient." State v. Francis, 282
Kan. 120, 128, 145 P.3d 48 (2006); see Franks, 438 U.S. at 155-56.

Rincon cannot show prejudice for two reasons. First, his claim that McHaley
misstated the validity of the Sedgwick County PFA order lacks merit. Second, even if we
assume McHaley deliberately misstated the district court's order for Rincon to turn over
his firearms by 10 a.m. and we excise that statement from the affidavit, the remaining
portions of the affidavit establish probable cause to support the search warrant. Thus,
McLemore's failure to include a sworn statement with the motion to suppress had no
reasonable probability of changing the outcome of the proceedings, and the district court
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correctly denied Rincon's 60-1507 motion after a preliminary hearing. See Sola-Morales,
300 Kan. at 881.

1. The record conclusively shows McHaley did not deliberately misstate or
state with reckless disregard for the truth that the Sedgwick County PFA order
was valid.

McHaley stated in the affidavit: "On March 25, 2010, a [PFA] order was entered
in Sedgwick County District Court case number 10 DM 1824 prohibiting Roberto Rincon
from possessing any firearm. The order is currently valid, with an expiration date of April
14, 2012." Rincon argues McHaley deliberately misstated the material fact that the
Sedgwick County PFA order was valid and argues that the PFA order was invalid
because he was not personally served with and had no notice of the final order.

But Rincon's claim lacks merit and appears to confuse a district court's power to
issue a PFA order with a district court's personal jurisdiction over the defendant to enter a
valid PFA order. Personal jurisdiction is "the court's power over the defendant's person
and is required before the court can enter an in personam judgment." In re Marriage of
Salas, 28 Kan. App. 2d 553, 555, 19 P.3d 184 (2001). "Jurisdiction over the person of the
defendant may be acquired only by issuance and service of process in the method
prescribed by statute or by voluntary appearance." Kansas Bd. of Regents v. Skinner, 267
Kan. 808, 812, 987 P.2d 1096 (1999).

A plaintiff seeking a PFA order must file with the court a verified petition
"alleging abuse by another intimate partner or household member. K.S.A. 2016 Supp. 60-
3104(a). . . . Once filed, the petition must be personally served on the defendant. K.S.A.
2016 Supp. 60-3104(d)." Kerry G. v. Stacy C., 55 Kan. App. 2d 246, 250, 411 P.3d 1227
(2018). At the time the 2010 Sedgwick County PFA order was issued again Rincon,
K.S.A. 60-3106(a) provided that within 20 days, the district court must conduct a hearing
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where the plaintiff must prove the abuse allegation by a preponderance of the evidence
and the defendant has the opportunity to present evidence on his or her behalf. If the
district court finds sufficient evidence to support the protection order, K.S.A. 60-3108
requires that "[a] copy of any order under this act shall be issued to the plaintiff, the
defendant and the police department of any city where the plaintiff resides." K.S.A. 60-
3112 requires "[a]ll temporary, amended, final and other protection from abuse orders
issued pursuant to [Kansas law] . . . shall be entered into the national criminal
information center [NCIC] protection order file."

Although Rincon was not present at the Sedgwick County hearing, the record
supports that Rincon was personally served with the verified petition and the district
judge entered the PFA order upon finding jurisdiction over the parties. Rincon has not
argued and the record supports that the Sedgwick County District Court had personal
jurisdiction over Rincon to enter a valid PFA order. See K.S.A. 60-3104(d). The validity
of a PFA order does not depend on whether the district court personally served Rincon
with the final order. K.S.A. 60-3108 only requires a district court to issue a PFA order to
the plaintiff, defendant, and the law enforcement agency where the plaintiff lives.
Rincon's claim lacks merit because Kansas law does not require personal service of a
PFA order on the defendant to make the order valid. See generally State v. Hunter, No.
113,864, 2017 WL 383384, at *3 (Kan. App.) (unpublished opinion) (finding K.S.A.
2015 Supp. 60-3104 requires personal service of verified petition but K.S.A. 60-3108
requires only issuance of PFA order), rev. denied 306 Kan. 1235 (2017). The record also
contains an NCIC check completed on Rincon on March 21, 2012, showing the PFA
order was issued on March 25, 2010, and expired on April 14, 2014.

As the record, motion, and files conclusively show McHaley neither deliberately
misstated nor stated in reckless disregard for the truth that the 2010 Sedgwick County
PFA order was valid, Rincon has not shown he was prejudiced by McLemore's failure to
include a sworn statement with the motion to suppress for his Franks challenge.
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2. Because the remaining portions of the affidavit establish probable cause to
support the search warrant, Rincon cannot show prejudice.

Rincon next argues McHaley deliberately misstated that "[t]he judge ordered
Rincon to turn over all his firearms to the Reno County Sheriff's Office no later than
10:00 on March 21, 2012." Based on a review of the transcript from the 2012 Reno
County PFA hearing, the district court did order Rincon to surrender his firearms to the
Reno County Sheriff's office, but the order states no specific deadline. The record
supports Rincon's claim that McHaley misstated the fact that the district court ordered
Rincon to surrender his firearms by 10 a.m. the next day.

Assuming McHaley's misstatement relates to a material fact, to show prejudice
Rincon must now establish that if the district court excised the statement, the remaining
portions of the affidavit lack sufficient evidence of probable cause to support the search
warrant. See Adams, 294 Kan. at 179.

Probable cause "'does not require evidence of each element of the crime or
evidence to the degree necessary to prove guilty beyond a reasonable doubt.' [Citations
omitted.]" State v. Hicks, 282 Kan. 599, 605, 147 P.3d 1076 (2006); see State v. Dunn,
233 Kan. 411, 414-15, 662 P.2d 1286 (1983). In deciding whether a supporting affidavit
supplies probable cause, a judge reviews "the totality of the circumstances presented and
makes 'a practical, common-sense decision whether a crime has been or is being
committed and whether there is a fair probability that contraband or evidence of a crime
will be found in a particular place.' [Citation omitted.]" State v. Powell, 299 Kan. 690,
695, 325 P.3d 1162 (2014).

"'When an affidavit in support of an application for search warrant is challenged,
the task of the reviewing court is to ensure that the issuing [judge] had a substantial basis
for concluding probable cause existed. This standard is inherently deferential. It does not
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demand that the reviewing court determine whether, as a matter of law, probable cause
existed; rather, the standard translates to whether the affidavit provided a substantial basis
for the magistrate's determination that there is a fair probability that evidence will be
found in the place to be searched. Because the reviewing court is able to evaluate the
necessarily undisputed content of an affidavit as well as the issuing magistrate, the
reviewing court may perform its own evaluation of the affidavit's sufficiency under this
deferential standard.' [Citation omitted.]" State v. Hensley, 298 Kan. 422, 428, 313 P.3d
814 (2013).

See also Rincon, 2015 WL 9455560, at *7 (applying standard).

Rincon cannot meet his burden to show prejudice because the remaining portions
of the affidavit provide sufficient probable cause to support the search warrant. Because
the Sedgwick County PFA order was valid, the affidavit establishes probable cause to
believe Rincon possessed firearms in violation of 18 U.S.C. § 922, even without
McHaley's statement that the district court ordered Rincon to surrender his firearms the
next day by 10 a.m.

Rincon had a valid Sedgwick County PFA order issued against him in 2010 that
expired on April 14, 2012. On March 20, 2012, a Reno County judge issued a PFA order
against Rincon. At the hearing Rincon admitted he possessed several firearms, and the
district judge ordered Rincon to turn over his firearms to the Sheriff's office. Rincon
failed to follow the district judge's order. In the search warrant affidavit, McHaley stated
that, from his knowledge and experience, gun owners typically carry one or more
weapons in their vehicles and keep most of the firearm-related materials at home.
McHaley requested a search warrant for Rincon's residence and three vehicles Rincon
was known to drive.

Rincon cannot establish the prejudice prong of his ineffective assistance of
counsel claim because McLemore's failure to include a sworn statement with the motion
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to suppress had no reasonable probability of changing the outcome of the proceedings.
Thus, the district court did not err in summarily dismissing Rincon's 60-1507 motion
because the motion, files, and record conclusively show he was entitled to no relief.

Affirmed.