State v. Lindsey

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NOT DESIGNATED FOR PUBLICATION

No. 116,971

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

JEREMY JAMES LINDSEY,
Appellant.


MEMORANDUM OPINION

Appeal from Shawnee District Court; EVELYN Z. WILSON, judge. Opinion filed September 28,
2018. Affirmed.

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

Rachel L. Pickering, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.

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

POWELL, J.: Jeremy James Lindsey appeals his convictions of numerous sex
crimes which included, among other things, three counts of rape and a count of
aggravated kidnapping. Lindsey argues that the district court's denial of his attorney's
pretrial motion to withdraw as counsel resulted in several errors that require the reversal
of his convictions. Lindsey also complains that the district court erroneously denied his
second pro se motion for new trial as a premature K.S.A. 60-1507 motion for ineffective
assistance of trial counsel. After a thorough review of the record, we find no reversible
error by the district court and affirm.

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FACTUAL AND PROCEDURAL BACKGROUND

Because the issues raised by Lindsey in his appeal deal principally with
complaints about his trial counsel, a detailed recitation of the facts is not necessary.
Summarized, on September 19, 2014, S.H., an 8-year-old girl, and her family returned to
their home in Topeka, Kansas, after attending a church cookout. S.H. fell asleep on the
couch in the living room. After everyone went to bed, a man entered the home through
the back sliding glass door and picked up S.H. while she was sleeping. The man carried
S.H. to a red car and put her in the trunk.

That night, the man sexually assaulted S.H. in three different locations. The first
assault occurred when he stopped the car in an alley, took S.H. out of the trunk, blind-
folded her, tied her hands with a rope-like charger cord, and raped her. The man then
placed her back into the trunk and drove to the woods. The second assault occurred when
the man carried her from the trunk into the woods and raped her. He put S.H. back into
the car and drove her to a parking lot in front of a house with a fence around it.

After parking the car, the man covered S.H.'s face, held her feet, took her out of
the trunk, and put her over the fence. At a later time, a black woman named Nicki arrived
in a dark-colored car and drove them to a yellow house. Nicki left, and the man broke the
glass on the back door at the house, put S.H. inside, and the two went to the basement. He
tied her up with white ropes that resembled a cell phone charger cord and raped her. The
man gave S.H. bread and water and made her take a lot of white pills that tasted nasty,
caused her stomach to hurt, and made her vomit.

S.H. fell asleep; when she woke up, the man was gone. S.H. was able to untie
herself, go out the broken door, and approached a group of adults. S.H. had bruises on her
face and body, messy hair, and the shirt was torn. The girl identified herself as S.H. and
said that her mother's new boyfriend took off her clothes and dragged her through the
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woods. S.H. said that he took her to the big yellow house across the street and tied her up,
but she was able to wiggle loose. The police were called, and an ambulance transported
S.H. to a hospital.

At the hospital, staff collected and gave detectives a sample of S.H.'s vomit that
contained a white pill. The staff identified and later tests confirmed the pill as Tramadol,
a pain reliever that is not prescribed to children under the age of 18. Sexual Assault Nurse
Examiner (SANE) Jennifer Harris conducted a sexual assault examination of S.H. at the
hospital that day. Harris concluded that the injuries to S.H.'s genitalia resulted from
multiple blunt force trauma consistent with sexual assault, but it did not appear to Harris
that there was penetration of the vaginal vault. Harris used swabs to gather evidence from
S.H.'s genital area, but testing did not uncover any semen or the presence of male DNA.

S.H.'s mother had reported S.H. missing to the Topeka Police Department on the
morning of September 20, 2014, after searching for S.H. at the home. The police initially
suspected mother's boyfriend based on what S.H. said about her mother's new boyfriend.
The investigation shifted, however, to Lindsey based on S.H.'s description of the suspect
and other evidence.

While police were investigating the yellow house on September 21, 2014, Terry
Hampton approached a detective and informed him that he was sitting in his car in his
girlfriend's driveway when he saw a suspicious man hop the fence and walk away from
the yellow house shortly before the police had arrived the day before. He stated that he
got a good look at the man's face because he was only about three feet away. The
detectives asked Hampton to go to the station, and Hampton identified Lindsey in a six-
picture photo array. The State ultimately charged Lindsey with committing three counts
of rape with a child under the age of 14 years of age; two counts of aggravated battery;
and one count each of aggravated kidnapping, aggravated burglary, aggravated
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endangering a child, the unlawful administration of a substance, and criminal damage to
property. The jury convicted Lindsey of all charges.

Following the denial of Lindsey's posttrial motions, the district court sentenced
Lindsey to three consecutive hard-25 life sentences, as well as a guideline sentence of
737 months in prison, plus lifetime postrelease supervision.

Lindsey timely appeals.

I. DID THE DISTRICT COURT VIOLATE LINDSEY'S SIXTH AMENDMENT RIGHT TO
EFFECTIVE COUNSEL BY DENYING HOFFMAN'S MOTION TO WITHDRAW?

Lindsey argues the district court committed several errors by denying his counsel's
November 2015 motion to withdraw as counsel. We review a district court's denial of
new counsel

"under an abuse of discretion standard. A court abuses judicial discretion if its action is
(1) arbitrary, fanciful, or unreasonable; (2) based on an error of law; or (3) based on an
error of fact. If the district court has a reasonable basis to conclude that counsel could
provide 'effective aid in the fair presentation of a defense,' then it cannot be found to be
an abuse of discretion. The defendant bears the burden of proving the district court
abused its discretion in denying the motion for new counsel. [Citations omitted.]" State v.
Staten, 304 Kan. 957, 970, 377 P.3d 427 (2016).

The Sixth Amendment of the United States Constitution guarantees a defendant
the right to effective assistance of counsel during all critical stages of his or her criminal
proceedings. State v. McDaniel, 306 Kan. 595, 606, 395 P.3d 429 (2017). As applied to a
defendant with appointed counsel, the Sixth Amendment does not guarantee the
defendant the right to select which court-appointed attorney will represent him or her
during the proceedings. Staten, 304 Kan. at 970; State v. Pfannenstiel, 302 Kan. 747, 759,
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357 P.3d 877 (2015). A defendant must show justifiable dissatisfaction with current
counsel "by showing a conflict of interest, an irreconcilable disagreement, or a complete
breakdown in communication between counsel and the defendant." Staten, 304 Kan. at
970.

"It is the task of the district court judge to insure that a defendant's right to
counsel under the Sixth Amendment to the United States Constitution is honored.
Irreconcilable conflict between a defendant and his or her attorney may, in certain
circumstances, require the appointment of substitute counsel to protect the defendant's
Sixth Amendment right to effective assistance of counsel. [Citations omitted.]" State v.
Carter, 284 Kan. 312, 321, 160 P.3d 457 (2007).

When a district court becomes aware of a possible conflict of interest between an attorney
and a defendant charged with a felony, the court has a duty to inquire further. State v.
Vann, 280 Kan. 782, 789, 127 P.3d 307 (2006). When conducting this inquiry,

"[a] court is not required to engage in a detailed examination of every nuance of a
defendant's claim of inadequacy of defense and conflict of interest. A single, open-ended
question by the trial court may suffice if it provides the defendant with the opportunity to
explain a conflict of interest, an irreconcilable disagreement, or an inability to
communicate with counsel." Staten, 304 Kan. at 972-73.

"Ultimately, a district court is justified in denying a request for new counsel if
there is a reasonable basis for believing the attorney-client relationship has not
deteriorated to a point that appointed counsel could not give effective aid in the
presentation of the client's defense." State v. Garza, 290 Kan. 1021, 1025, 236 P.3d 501
(2010).

It is of particular note that Lindsey went through three appointed counsel before
his fourth appointed counsel filed his motion to withdraw. To provide the proper context
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of the district court's decision on the motion, we detail some of the history of Lindsey's
representation.

Additional Relevant Facts

On October 1, 2014, David McDonald entered his appearance as Lindsey's
appointed counsel. At the preliminary hearing on December 1, 2014, McDonald told the
district court that Lindsey had informed him that he wanted new counsel. The district
court held an in camera examination with only Lindsey and McDonald present,
apparently to protect Lindsey's attorney-client privilege. Lindsey informed the district
court that his counsel did not communicate with him and prevented him from going
through discovery. McDonald replied that he visited Lindsey in jail three times and had
sent a law clerk to review discovery with Lindsey for two hours. Lindsey stated the law
clerk was there for only 15 minutes. After ending the in camera examination, the district
court denied Lindsey's motion for replacement counsel.

Less than a month later, McDonald filed a motion to withdraw as counsel, arguing
that his failure to withdraw risked ineffectiveness of counsel based on a lack of trust and
communication and a complete breakdown in the attorney-client relationship. After a
hearing, the district court granted the motion to withdraw and appointed Jonathan Phelps
as Lindsey's counsel. A transcript of the hearing on the motion to withdraw was not
included in the record on appeal.

In March 2015, Phelps filed a motion to withdraw, asserting Lindsey intended to
represent himself. At a hearing, the district court informed Lindsey of his right of self-
representation and gave Lindsey time to confer with his counsel. Afterward, Lindsey
stated he intended to have his counsel represent him, and the motion was withdrawn. In
May 2015, Phelps filed a second motion to withdraw as counsel, asserting that the
attorney-client relationship was deteriorated, it was impossible for him to provide
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effective assistance of counsel, and Lindsey had demanded his withdrawal. Lindsey also
filed a pro se motion to dismiss his counsel. As it had done for Lindsey's first counsel's
withdrawal motion, the district court conducted an in camera examination with only
Lindsey and Phelps present. Phelps stated there was a lack of communication and that
Lindsey thought he was ineffective because Lindsey insisted he had the right to decide
every issue in his case. Lindsey initially declined to offer any argument on the record.
From its prior interactions with Lindsey, the district court observed that Lindsey had
some trouble listening and getting angry and voiced its concern that no attorney would be
able to represent Lindsey. Lindsey said he had trouble with Phelps' preparedness and that
there was a complete breakdown in communication. Phelps disagreed with Lindsey's
factual statements but argued that his statements showed why the district court should
sever the relationship. The district court granted both the motion to withdraw and motion
for substitute counsel, finding an irreconcilable breakdown in communication between
Lindsey and Phelps.

In June 2015, Gary Conwell was appointed as Lindsey's third counsel. The case
was scheduled for a jury trial on August 31, 2015, but in early August 2015, Lindsey
filed a pro se motion to dismiss Conwell as his counsel, claiming Conwell had violated
the Kansas Rules of Professional Conduct (KRPC) (2015 Kan. Ct. R. Annot. 433) for
scope of representation, diligence, and communication, and that there was an attorney-
client breakdown. Subsequent to this motion, Conwell filed several motions to suppress.
At a later hearing, Lindsey withdrew his motion to dismiss his counsel, stating that the
differences had been resolved.

At a motion hearing on August 24, 2015, the district court ruled on several
motions. During the hearing, Lindsey informed the district court that he wished to
represent himself. After conducting a colloquy with Lindsey, the district court granted his
motion for self-representation and appointed Conwell his stand-by counsel. After
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representing himself for part of the hearing, Lindsey moved to have counsel represent
him; the district court granted Lindsey's motion and reappointed Conwell.

On August 29, 2015, Conwell filed a motion to withdraw as counsel, claiming
Lindsay had discharged Conwell that same day, there had been a complete breakdown in
communication, and because of Lindsey's actions and requests during the pretrial
conference on August 24, 2015. On August 31, 2015, at the hearing on Conwell's motion
to withdraw, the district court cleared the room and conducted an in camera examination
with only Conwell and Lindsey present. In relevant part, Conwell and Lindsey both
stated that the two had many disagreements regarding whether to file and argue pretrial
motions and that Conwell had refused to subpoena a witnesses who could provide
exculpatory evidence. Lindsey stated that he wanted to be represented by counsel. The
district court informed Lindsey that if new substitute counsel were appointed, the trial
would be delayed and any delay would be assessed against Lindsey for speedy trial
purposes. Lindsey agreed, and the district court granted Lindsey's motion on grounds of
justifiable dissatisfaction while noting that Lindsey had had two previous counsel and had
filed other motions for substitute counsel in the case.

In September 2015, Donald Hoffman was appointed as counsel, and the jury trial
was rescheduled for January 19, 2016.

On November 12, 2015, Hoffman, like Lindsey's prior counsel, filed a motion to
withdraw. Hoffman asserted a deterioration in the attorney-client relationship, the fact
that Lindsey had requested Hoffman to withdraw, and cited to KRPC 1.16(a) and (b) as
grounds for his withdrawal. That same day, Lindsey filed a pro se notice of speedy trial,
disagreeing with the January 2016 scheduled trial date.

As the district court had done during hearings on previous motions to withdraw, it
cleared the courtroom and held an in camera examination with only Lindsey and
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Hoffman present. Hoffman stated the relationship had deteriorated, in part from Lindsey's
refusal to waive his speedy trial rights and from Lindsey's demands that Hoffman take
certain actions—such as relitigating prior district court rulings and obtaining an expert
witness—that required more time than his speedy trial clock permitted. Hoffman stated
that he felt he could not continue as his attorney because Lindsey had disclosed that he
had an alibi but refused to give Hoffman the alibi witness' information. Hoffman
informed Lindsey that to pursue an alibi defense he had to make a disclosure to the State.
Lindsey's refusal to disclose resulted in Lindsey firing Hoffman and Hoffman filing his
motion to withdraw. Hoffman stated the disagreement made him question his ability to be
an effective counsel and had created such a hostile and argumentative relationship that he
did not believe he could continue as Lindsey's counsel. Lindsey declined to state anything
regarding Hoffman's motion to withdraw.

In considering Hoffman's motion, the district court noted that it was not the first
time Lindsey had been in this situation and that he had established a pattern of having an
angry demeanor and a consistent refusal to communicate with his attorney. The district
court found Lindsey's refusal to inform Hoffman of his alibi witness' information was
unreasonable and explained to Lindsey that the standard for ruling on Hoffman's motion
to withdraw and appoint substitute counsel was whether Lindsey had justifiable
dissatisfaction with his current counsel. After inviting the State back into the courtroom,
the district judge stated:

"Based on what I have heard and reviewed in camera, the Court finds that there
certainly has not been something established to which the Court can find issue with what
Mr. Hoffman has done. And based on what I've heard, I do not find that the defendant has
established justifiable dissatisfaction with his current counsel, Mr. Hoffman. I find that
Mr. Hoffman can continue to give effective aid in the presentation of the client's defense.
It is not a requirement that the defendant like his attorney. It . . . is not a requirement that
the attorney like the defendant. It appears to me, certain, that the defendant would be well
advised to communicate with his Counsel. Would be well advised to attempt to work
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with him as best he can. But there has not been an indication, or basis, for this Court to
believe that the motion filed by Mr. Hoffman should be granted. It is denied.

"And Mr. Hoffman, I know that you're a professional and you will continue to act
professionally. And although you asked to withdraw, that motion has been denied. And I
know you will continue to try to work with Mr. Lindsey as your client.

"Mr. Lindsey, I hope you will try to work with Mr. Hoffman as your attorney."

A. Did the district court commit a legal or factual error?

Lindsey first argues that the district court legally and factually erred in denying
Hoffman's November 2015 motion to withdraw as counsel by applying the incorrect legal
standard and placing the burden on him to prove justifiable dissatisfaction to warrant the
appointment of new counsel.

However, contrary to Lindsey's assertion, the burden is on a defendant to present
an articulated statement of justifiable dissatisfaction in order to trigger the district court's
duty to inquire further. Staten, 304 Kan. at 970. While the law imposes a threshold
burden of establishing justifiable dissatisfaction on defendants, that burden only triggers a
district court's duty to conduct an adequate inquiry into the alleged conflicts. See
Pfannenstiel, 302 Kan. at 763-64.

Here, the district court gave Hoffman and Lindsey the opportunity to explain the
allegedly deteriorated attorney-client relationship before denying the motion; thus, the
district court conducted an adequate inquiry. Accordingly, the district court did not abuse
its discretion in failing to conduct any inquiry into the alleged conflict and did not deny
the motion solely on the defendant's failure to give an articulated statement of justifiable
dissatisfaction. See Staten, 304 Kan. at 971.

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Lindsey also argues the district court factually erred by placing the burden on him
because his silence during the in camera examination shows that he did not request or
argue in support of Hoffman's removal. But the record fails to support Lindsey's
argument. Hoffman's motion read: "[T]he defendant requested that counsel withdraw
from further representation." During the in camera examination, Hoffman stated Lindsey
fired him before he filed the motion to withdraw as his counsel. Also, Hoffman stated
that the attorney-client relationship was deteriorating, in part, because of Lindsey's
refusal to waive his speedy trial rights. The fact that Lindsey declined to state anything at
the in camera examination gives rise to the reasonable inference that Lindsey supported
Hoffman's request, not that he was somehow opposed to Hoffman's withdrawal or
removal as counsel.

B. Was the district court's denial of Hoffman's motion to withdraw arbitrary, fanciful,
and unreasonable?

Second, Lindsey argues that the district court's denial of Hoffman's motion to
withdraw as counsel was arbitrary, fanciful, and unreasonable. Lindsey asserts the district
court erred in ignoring Hoffman's statements at the in camera examination that he could
not reconcile or resurrect an effective attorney-client relationship with Lindsey. In other
words, the court did not make a reasonable decision in light of the facts that came
forward at the hearing. See Staten, 304 Kan. at 971.

"Irreconcilable conflict between a defendant and his or her attorney may, in certain
circumstances, require the appointment of substitute counsel to protect the defendant's
Sixth Amendment right to effective assistance of counsel." Carter, 284 Kan. at 321.
"[D]isagreements or a lack of communication between a defendant and counsel will not
always rise to the level of justifiable dissatisfaction." State v. Brown, 305 Kan. 413, 425,
382 P.3d 852 (2016). A district court does not abuse its discretion in denying a motion for
new counsel "where the irreconcilable conflict resulted from the defendant's refusal to
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cooperate or communicate with trial counsel." State v. Ferguson, 254 Kan. 62, Syl. ¶ 3,
864 P.2d 693 (1993).

Here, the district court found—and the record supports—that Lindsey's refusal to
provide Hoffman with an alibi witness' information was unreasonable, and Lindsey does
not challenge this finding as error on appeal. See State v. Gonzalez, 307 Kan. 575, Syl. ¶
7, 412 P.3d 968 (2018) (issues not raised on appeal are waived).

Lindsey also argues that we should not consider whether he would have had the
same type of problems with a different attorney because the district court did not make
that finding. But the record establishes that Hoffman was Lindsey's fourth appointed
counsel, and Lindsey had had communication difficulties with each of his prior appointed
counsel. The district court noted that Lindsey had established a pattern of being angry
and refusing to communicate with his attorney, and expressly advised Lindsey to make an
effort to communicate with Hoffman. Therefore, the record supports an implied finding
that Lindsey likely would have had the same communication problems with any attorney
based on his established pattern.

Overall, despite Hoffman's expressed view that he felt that he could not continue
the attorney-client relationship, the district court's ruling had a reasonable basis to
conclude that if Lindsey started to communicate with Hoffman, then Hoffman could
provide him with effective assistance of counsel. See Brown, 305 Kan. at 425. We find
no abuse of discretion on the part of the district court by denying Hoffman's motion to
withdraw.

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C. Did Hoffman provide representation free from conflicts of interest?

Lindsey argues that the district court's failure to grant Hoffman's motion to
withdraw prejudiced him at trial because it led to a loud argument that occurred in front
of the jury, necessitating a new trial because Hoffman was duty bound to seek a mistrial.

For context, while the State was questioning Karen Lowe, the FBI forensic
examiner on trace evidence, the following occurred:

"Q. [THE STATE]: Ms. Lowe, I'm handing you back State's Exhibit 182.
Ms. Lowe, I want—
(Loud off-the-record discussion was had between Mr. Hoffman and the
defendant.)
"THE COURT: Just a minute. Counsel, I can hear you.
"THE DEFENDANT: We need a break, Your Honor.
"THE COURT: All right. We'll take a break for 15 minutes, ladies and
gentlemen.
. . . .
"THE COURT: All right. We are on the record, outside of the presence of the
jury.
"Mr. Lindsey is here, all counsel are here.
"I understand that you wanted to see me, Mr. Lindsey?
"THE DEFENDANT: Attorney/client conflict. I'd ask that the District Attorney
be excused.
. . . .
"THE COURT: All right. I'll ask that the prosecutors please step out.
. . . .
"THE COURT: Okay. How can I help you?
"THE DEFENDANT: Well, I feel like there's attorney/client-deteriorating
relationship based on the fact of—I asked my counsel for a certain amount of questions to
ask this witness, in particular to my defense, which is a major defense to me, as excluding
exculpatory evidence, as excluding the possibility that this child's DNA was on my
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clothing, and it says that in the report. And I wanted the jury to hear that. I asked him,
could he please not exclude this witness because there was questions I wanted to be
addressed before the jury.
"I think Mr. Hoffman made some statements towards me that I didn't appreciate,
which turned the heads of the jury. So I don't know—I don't know if—I don't know if this
could cause prejudice to me or not, if me and my attorney is arguing in front of the jury. I
don't think that's been beneficial to me at all.
"And when I want to talk to him outside the presence of the jury, I can't talk to
him. I have discussed this with this man before about my defense as to this DNA.
"The Court is aware of Gary Conwell with the same issue about this DNA
being—the FBI being down here. I wanted them down here for a particular reason
because it's part of my defense. I'm facing three off-grid sentences plus 50 years. I feel
like if my attorney don't—tell me he don't care what I feel about my case, then there's no
attorney/client relationship."

The district court then advised Lindsey that Hoffman had to listen and think about
how a witness' testimony affected the entire case and that it was Hoffman's responsibility
to decide what questions to ask and not ask. Lindsey acknowledged that the district court
would not continue the trial but asked the district court to note for the record that there
was a breakdown in the attorney-client relationship. Hoffman then disclosed that the
argument stemmed from Lindsey wanting to recall the FBI forensic examiner to ask two
questions on DNA evidence that Hoffman felt were unnecessary because the report
admitted into evidence showed an absence of DNA and, in Hoffman's opinion, the
additional questions could lessen the effect of the lack of DNA. Eventually, however,
Hoffman requested and the district court agreed to recall the FBI forensic examiner to
allow Hoffman to ask the additional questions, which he did.

For Lindsey's argument to prevail on appeal, we are required to make three
findings in order to conclude that Lindsey suffered real harm and prejudice from the
district court's prior denial of Hoffman's motion to withdraw as counsel: (1) The district
court erred in denying Hoffman's prior motion to withdraw as counsel; (2) the denial of
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Hoffman's motion caused or related to the loud argument that occurred later at trial; and
(3) a conflict of interest arose between Hoffman and Lindsey on whether to request a
mistrial.

First, as discussed above, Lindsey's argument fails out of the starting gate because
we have already held that the district court did not err by inquiring into and denying
Hoffman's motion to withdraw as counsel. Second, even if we assume the district court
erred by denying Hoffman's motion to withdraw, the attorney-client disputes cited in
Hoffman's motion to withdraw before trial differ from the argument at trial, causing us to
question a connection between the denial of Hoffman's motion to withdraw and the loud
argument during the trial. Hoffman's motion to withdraw was based on Lindsey's request
for more pretrial motions, a refusal to waive his speedy trial rights, and whether to assert
an alibi defense; the disagreement at trial stemmed from what questions to ask a witness
on cross-examination. Lindsey fails to provide any authority that a denial of a pretrial
motion to withdraw as counsel—where the district court inquired into the conflict—could
cause a defendant prejudice at trial when the conflicts serving the basis for the
withdrawal motion before trial differed from the conflict during trial. Gonzalez, 307 Kan.
575, Syl. ¶ 7 ("When a party fails to brief an issue, that issue is deemed waived or
abandoned.").

Lindsey also claims the argument in front of the jury required Hoffman to request
a mistrial and amounts to an actual conflict of interest that affected Hoffman's
effectiveness as counsel. Lindsey argues that the essence of the conflict was Hoffman
cursing at him in front of the jury and then failing to seek a mistrial.

The party claiming an error occurred has the burden of designating a record that
affirmatively shows prejudicial error. State v. McCullough, 293 Kan. 970, 997-98, 270
P.3d 1142 (2012). However, Lindsey's argument on appeal is not supported by the record.
There is no indication in the record that a conflict of interest arose between Lindsey and
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Hoffman on whether to request a mistrial. While discussing the matter in camera,
Lindsey stated that Hoffman made statements to him that he did not appreciate and that
turned the heads of the jury. The record also does not contain any finding by the district
court regarding what Hoffman said and what the jury heard. More importantly, the record
fails to support Lindsey's assertions that Hoffman cursed at him during the trial and that
the district court heard this. Rather, the record establishes that the disagreement between
Lindsey and Hoffman largely centered on what questions to ask a witness for the State.

"While a criminal defendant has the right to consult with appointed counsel and to
discuss the general direction of his or her defense, the strategic and tactical decisions are
matters for the professional judgment of counsel. State v. Bafford, 255 Kan. 888, 895,
879 P.2d 613 (1994)." State v. McCormick, 37 Kan. App. 2d 828, 838, 159 P.3d 194, rev.
denied 284 Kan. 949 (2007). Lindsey admits on appeal that the attorney-client conflict
involved a matter of Hoffman's trial strategy and was resolved through Hoffman's recall
of Brown as a witness. Therefore, the conflict between Hoffman and Lindsey involved
trial strategy within Hoffman's purview and was not irreconcilable or a conflict of interest
that required the appointment of substitute counsel or the declaration of a mistrial.

Lindsey also claims the district court's in camera examinations were improper and
required Hoffman to disclose privileged information regarding his alibi defense which
created a conflict of interest. The district court conducted an in camera examination
outside the State's presence due to the potential disclosure of attorney-client privileged
information.

In Pfannenstiel, the defendant argued that the district court erred in failing to
appoint substitute counsel to argue his pro se motion for discharge of counsel during the
district court's inquiry because his filing of the pro se motion created a conflict of interest
with his current counsel. The Kansas Supreme Court disagreed, holding that precedent
required a district court to appoint substitute counsel only after the district court's inquiry
17
into a potential conflict of interest and after finding that the defendant had established
justifiable dissatisfaction with current counsel. 302 Kan. at 765-66. Generally, a district
court's inquiry into attorney dissatisfaction typically occurs in the State's presence, but
some disclosures may require a district court to conduct the inquiry in chambers. See 302
Kan. at 765 (citing United States v. Foster, 469 F.2d 1, 5 [1st Cir. 1972]). Our Supreme
Court reasoned that

"the inquiry into whether a defendant has demonstrated justifiable dissatisfaction with his
attorney requires both the court and defense counsel to walk a delicate line in making the
inquiry. The Supreme Court has observed that judges must explore the basis of the
alleged conflict of interest 'without improperly requiring disclosure of the confidential
communications of the client.' Holloway, 435 U.S. 487. Moreover, other courts draw a
meaningful distinction between (1) an attorney truthfully recounting facts and (2) an
attorney going beyond factual statements and advocating against the client's position."
(Emphasis added.) 302 Kan. at 766.

We conclude the district court acted within its discretion in conducting the in
camera examination with only Hoffman and Lindsey. The district court neither compelled
nor required Hoffman to disclose any privileged information regarding the attorney-client
relationship with Lindsey during the in camera examination into Hoffman's motion to
withdraw as counsel. Rather, the district court asked if Hoffman wanted to add anything
to his motion to withdraw as counsel during the in camera examination, and Hoffman
stated his reasons for believing that the attorney-client relationship was deteriorated.
Contrary to Lindsey's arguments on appeal, the district court's question did not require or
compel Hoffman's disclosures. Therefore, Lindsey's assertion that the district court
improperly required Hoffman's disclosures is without merit.

Lindsey also argues that Hoffman's statements during the in camera examination
improperly advocated against Lindsey's position and were harmful to him. In
Pfannenstiel, the defendant filed a pro se motion to discharge his current attorney. Our
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Supreme Court ultimately held, however, that the district court did not abuse its
discretion in conducting an appropriate inquiry into his dissatisfaction because his
counsel did not argue against his pro se motion or result in a conflict of interest:

"Pfannenstiel's counsel also approached the line of advocating against
Pfannenstiel's position by saying, 'Mr. Pfannenstiel has misunderstood some things I've
told him.' But counsel immediately followed that statement by arguing that the district
court should grant Pfannenstiel's motion. Taken in context, the comment about the
misunderstandings actually supported Pfannenstiel's view that there had been a
breakdown in communication between him and his attorney." 302 Kan. at 767.

As applied to this case, Lindsey did not file a pro se motion for substitute counsel,
but Hoffman's motion stated that Lindsey requested Hoffman to withdraw as counsel, and
Hoffman's statements to the district court regarding the dispute of the alibi defense
supported Lindsey's request. Hoffman expressly stated that due to Lindsey's refusal to
disclose any alibi witness' information, he was not sure if he could resurrect an attorney-
client relationship with Lindsey and the dispute made him question whether he could
provide effective assistance of counsel. Hoffman's statements support his motion to
withdraw as counsel due to a breakdown in communication and conflicts. Moreover, the
disclosure occurred outside the State's presence and would not likely cause harm to
Lindsey during any subsequent hearing. Thus, Hoffman did not argue against Lindsey's
request that he withdraw as Lindsey's counsel and his statements were not harmful to
Lindsey.

As a final note, Hoffman, subsequently moved to continue the scheduled January
19, 2016 jury trial to investigate Lindsey's alibi defense. Accordingly, the disclosure of
Lindsey's alibi defense was ultimately made known to the State and to the district court in
open court. Moreover, Hoffman's statements that he needed Lindsey to disclose the alibi
defense witness' information during the in camera examination follows the statutory
requirements under K.S.A. 22-3218.
19
Therefore, no conflict of interest resulted from Hoffman's disclosures at the in
camera examination. The district court did not err in denying Hoffman's motion to
withdraw, and Lindsey's Sixth Amendment rights were not violated.

II. DID THE DISTRICT COURT ERR IN DENYING LINDSEY'S SECOND AMENDED
MOTION FOR A NEW TRIAL?

Lindsey argues that the district court erred in considering his second amended
motion for new trial as a premature K.S.A. 60-1507 motion and denying the motion
without considering the merits of his ineffective assistance of counsel claims.

Additional Relevant Facts

The jury entered the verdicts against Lindsey on January 29, 2016. On March 31,
2016, the district court held a hearing and denied Hoffman's motion for new trial and
Lindsey's first pro se motion for new trial.

On April 5, 2016, Lindsey filed a pro se motion titled Judicial Notice, in which he
waived his right to be present at sentencing and moved the district court to dismiss
Hoffman as his counsel. On April 11, 2016, Hoffman filed a motion to withdraw as
counsel and Lindsey also filed a pro se motion titled Second Amended Motion for New
Trial, which argued, in part, Hoffman was ineffective as his trial counsel. Lindsey later
filed a supplemental memorandum in support of his second motion.

At the hearing on April 14, 2016, the district court held an in camera examination
on Hoffman's motion to withdraw as counsel with only Lindsey and Hoffman present.
After hearing argument from Lindsey and Hoffman, the district court at first denied the
motion to withdraw as counsel. In ruling on Lindsey's second amended motion for new
trial, the district court first construed and denied Lindsey's claims raised in prior motions
20
for new trial as a motion to reconsider. The district court also denied the additional claims
as out of time and as a premature K.S.A. 60-1507 motion. After hearing additional
argument, the district court ultimately granted Hoffman's motion to withdraw as
Lindsey's counsel.

Neither party challenges the district court's denial of Lindsey's claims that were
construed as a motion to reconsider. Instead, the parties contest whether the district court
could properly deny an untimely motion for new trial asserting ineffective assistance of
counsel claims as a premature K.S.A. 60-1507 motion.

The interpretation of a statute is a question of law over which an appellate court
has unlimited review. See State v. Collins, 303 Kan. 472, 473-74, 362 P.3d 1098 (2015).
"'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). When a statute is plain and unambiguous, we do not speculate about the
legislative intent behind the clear language and we refrain from reading something into
the statute that is not readily found in its words. State v. Barlow, 303 Kan. 804, 813, 368
P.3d 331 (2016).

Under K.S.A. 2017 Supp. 22-3501(1), a criminal defendant has 14 days after the
verdict to move for a new trial if the motion is not based on newly discovered evidence.
Lindsey filed his second amended motion for new trial over 14 days after the verdict;
therefore, his second amended motion for new trial was untimely.

However, "[a]n untimely motion for new trial that asserts ineffective assistance of
counsel may be treated as a collateral attack on a judgment under K.S.A. 60-1507."
(Emphasis added.) State v. Jarmon, 308 Kan. 241, Syl. ¶ 5, 419 P.3d 591 (2018). But
K.S.A. 2017 Supp. 60-1507(a) does not permit relief when the movant is not "in custody
under sentence of a court of general jurisdiction." Lindsey filed his motion prior to being
21
sentenced; therefore, he was not in custody under a sentence. See Baker v. State, 297
Kan. 486, 491, 303 P.3d 675 (2013) (motion filed under K.S.A. 60-1507 premature when
prior to sentencing). Thus, according to the plain language of K.S.A. 2017 Supp. 60-
1507(a), the district court was correct that Lindsey's ineffective assistance of counsel
claims, when construed as a collateral attack under K.S.A. 60-1507, were premature. See
State v. Dunerway, No. 111,457, 2015 WL 5224703, at *11 (Kan. App. 2015)
(unpublished opinion), review denied 305 Kan. 1254 (2016).

We disagree with our concurring colleague's assertion that State v. Reed, 302 Kan.
227, 352 P.3d 530 (2015), compelled the district court to consider the merits of Lindsey's
ineffective assistance of counsel claims. Instead, our explication of Reed is that a district
court may treat an untimely motion for a new trial containing ineffective assistance of
counsel claims as a collateral attack under K.S.A. 60-1507 and retain the jurisdiction to
do so, not that it must do so. See 302 Kan. at 233-36.

Unlike in the present case, the district court in Reed chose to consider the merits of
the defendant's ineffective assistance of counsel claims despite the State's assertions that
the court lacked the jurisdiction to do so. Our Supreme Court reasoned that ineffective
assistance of counsel claims were "unique" and that district courts were well equipped to
deal with such claims immediately because the evidence concerning such claims would
be the "most accessible and fresh." 302 Kan. at 233, 236. The court also stated that
"[b]ecause [the defendant] had yet to be sentenced, strictly speaking, K.S.A. 60-1507 was
inapplicable." 302 Kan. at 233. Moreover, the court observed that the district court,
which construed the defendant's untimely new trial motion as one under K.S.A. 60-1507
and elected to hold an evidentiary hearing on the defendant's ineffective assistance
claims, "may have jumped the procedural gun" when doing so prior to the defendant's
sentencing. 302 Kan. at 235. We interpret these caveats to mean that our Supreme Court,
in the interest of judicial economy, was unwilling to dismiss on jurisdictional grounds a
defendant's ineffective assistance of counsel claims once the district court held an
22
evidentiary hearing and considered the merits of such claims. Accordingly, the district
court here did not err in refusing to consider the merits of Lindsey's claims as a premature
K.S.A. 60-1507 motion.

Affirmed.

* * *

MALONE, J., concurring: I concur in the result reached by the majority that Jeremy
James Lindsey's convictions should be affirmed. Lindsey's first claim that the district
court violated his constitutional right to effective counsel by denying Donald Hoffman's
pretrial motion to withdraw based on a conflict of interest presents a close question, but I
agree with the majority that the district court committed no reversible error under the
facts and circumstances of this case. The majority also concludes that the district court
did not err in summarily denying Lindsey's second amended motion for a new trial
without addressing the merits of his ineffective assistance of counsel claims. I find that
the district court erred in the manner that it rejected Lindsey's motion. But for the reasons
stated herein, I find that the record conclusively shows that Lindsey is not entitled to
relief on his ineffective assistance of counsel claims.

As the majority opinion states, Lindsey filed an untimely pro se motion titled
Second Amended Motion for New Trial, which argued, in part, that Hoffman was
ineffective as his trial counsel. Lindsey later filed a supplemental memorandum in
support of his motion. Some of Lindsey's claims against Hoffman had already been
addressed by the district court in ruling on Hoffman's motion to withdraw, but some of
Lindsey's ineffective assistance of counsel claims against Hoffman were new. In ruling
on Lindsey's second amended motion for new trial, the district court construed it as a
motion for reconsideration to the extent that some of the claims had already been
23
addressed by the court. The district court denied the additional claims as out of time and
as a premature K.S.A. 60-1507 motion. The district court ruled:

"All right. I'll address first the Second Amended Motion for New Trial. The
ineffective assistance of counsel claims, to the extent that they have been explored in
requesting new trial, I interpret this to be a motion to reconsider the Motion for New
Trial, which has already been denied, and—the additional matters that are raised in the
Second Motion for New Trial, I'm going to find that they are out of time. Could have
been raised before for one thing. And for another thing, I agree with the State in that a
1507 motion—1507 motion is premature."

As the majority opinion states, neither party challenges the district court's denial of
Lindsey's claims that were construed as a motion to reconsider. Instead, the parties
contest whether the district court could properly deny an untimely motion for new trial
asserting ineffective assistance of counsel claims as a premature K.S.A. 60-1507 motion.

Perhaps, as the majority states, the district court may have had some discretion on
whether to address the untimely claims in Lindsey's second amended motion for new
trial. But to the extent that the district court had discretion to address the new claims in
Lindsey's motion, the court did not seem to be aware of it. I interpret the district court's
ruling as a finding that it had no discretion but to deny Lindsey's new claims of
ineffective assistance of counsel because the claims were "out of time" and constituted a
"premature" K.S.A. 60-1507 motion. But this finding is contrary to our Supreme Court's
ruling in State v. Reed, 302 Kan. 227, 352 P.3d 530 (2015). In Reed, the defendant,
before being sentenced, filed an untimely motion for new trial raising an ineffective
assistance of counsel claim. Over the State's objection, the district court treated Reed's
motion as one filed under K.S.A. 60-1507 and reached the merits of the ineffective
assistance of counsel claim after holding an evidentiary hearing. 302 Kan. at 233.

24
On appeal, the Reed court stated: "Because Reed had yet to be sentenced, strictly
speaking, K.S.A. 60-1507 was inapplicable." (Emphasis added.) 302 Kan. at 233. But the
court went on to find that the district court could address the untimely claim anyway,
finding that an ineffective assistance of counsel claim "is unique." 302 Kan. at 233; see
also State v. Jarmon, 308 Kan. 241, Syl. ¶ 5, 419 P.3d 591 (2018) (holding untimely
motion for new trial asserting ineffective assistance of counsel may be treated as a
collateral attack on a judgment under K.S.A. 60-1507); State v. King, No. 115,646, 2018
WL 2073524, at *8 (Kan. App. 2018) (unpublished opinion) (finding district court has
jurisdiction to address untimely motion for new trial asserting ineffective assistance of
counsel), petition for rev. filed June 4, 2018; State v. Denomme, No. 113,941, 2016 WL
3031252, at *2, 8 (Kan. App. 2016) (unpublished opinion) (reviewing summary denial of
untimely motion for new trial asserting ineffective assistance of counsel), rev. denied 306
Kan. 1323 (2017); and State v. Herting, No. 110,746, 2015 WL 8588057, at *1-2 (Kan.
App. 2015) (unpublished opinion) (reviewing, after remand from Supreme Court based
on Reed, untimely motion for new trial asserting ineffective assistance of counsel), rev.
denied 305 Kan. 1255 (2016).

Consistent with these decisions, I believe this court should find that the district
court erred in the manner that it rejected Lindsey's second amended motion for new trial.
Lindsey could have waited to raise his new claims of ineffective assistance of trial
counsel in a typical postjudgment K.S.A. 60-1507 motion. But he chose to raise the
claims in a motion for new trial, and I believe the district court erred in the manner that it
summarily rejected the claims. But for the reasons stated herein, it is unnecessary to
remand Lindsey's case for an evidentiary hearing because the record conclusively shows
that Lindsey is not entitled to relief on his claims.

Under K.S.A. 2017 Supp. 60-1507(b), the district court may summarily deny a
motion without holding an evidentiary hearing if "'the motion and the files and records of
the case conclusively show that the movant is entitled to no relief.'" State v. Sharkey, 299
25
Kan., 87, 95, 322 P.3d 325 (2014) (quoting Albright v. State, 292 Kan. 193, 196, 251
P.3d 52 [2011]). The defendant has the burden to prove his or her K.S.A. 60-1507 motion
warrants an evidentiary hearing and must make more than conclusory contentions in
support of the claims. Sola-Morales v. State, 300 Kan. 875, 881, 335 P.3d 1162 (2014).

The Sixth Amendment to the United States Constitution guarantees that in all
criminal prosecutions, the accused shall have the right to receive the effective 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, 300 Kan. at 882 (relying on Strickland v. Washington, 466
U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674, reh. denied 467 U.S. 1267 [1984]).

In his pro se motion, Lindsey asserted Hoffman provided ineffective assistance of
counsel for several reasons, which included (1) failing to impeach witnesses using prior
inconsistent statements; (2) failing to investigate S.H.'s prior statement that the former
prosecutor on the case, Veronica Dersch, encouraged her to testify falsely; (3) failing to
obtain defense experts to testify about the DNA and forensic evidence; (4) failing to
conduct an independent investigation of the crime scenes; and (5) failing to obtain a
defense expert to testify about penetration to establish the rape charges. Also, at the
hearing on the motion, Lindsey asserted that Hoffman cursed him in front of the jury;
failed to call any witnesses in his defense; refused to allow him to testify; and failed to
communicate adequately with him. I will address each of these claims in turn.

Failure to impeach witnesses

Lindsey's motion asserted that Hoffman was ineffective in failing to impeach
certain witnesses. Specifically, Lindsey asserted that Hoffman failed to impeach Edward
26
Hines, Terry Hampton, and Michelle Harris using prior inconsistent statements. Hines
and Hampton were witnesses who made reports to the police about suspicious activity
that led to Lindsey's arrest. Harris was living with Lindsey and their child at an apartment
in September 2014, and Lindsey drove her car during the time in question.

In his motion, Lindsey argued Hoffman was ineffective in failing to impeach
Hines using his prior inconsistent statements from the preliminary hearing that (1) he
could not determine the race of the person later identified as Lindsey or (2) if the person
he saw was a man or a women. But the record shows that Hoffman impeached Hines, and
he admitted that he stated at the preliminary hearing that he could not tell if the person
was a man or a woman. Thus, the record conclusively shows that this claim lacks merit.

Next, Lindsey argued that Hoffman was ineffective in failing to impeach Hampton
on his prior inconsistent statements from a previous hearing. Lindsey did not assert what
prior inconsistent statements Hoffman should have used, but the record shows that
Hoffman impeached Hampton on his ability to recall which day he saw the man—later
identified as Lindsey—leave the yellow house and whether he saw the man jump over the
fence. Thus, Hoffman did not fail to impeach Hampton using his prior inconsistent
statements and the record supports a summary denial of this claim.

Next, Lindsey argued that Hoffman failed to impeach Harris using her prior
inconsistent statements to Ashley Lang and Detective Stults-Lindsey. But again, Harris
admitted at the trial that she talked to Lang and Stults-Lindsey shortly after the incident.
Harris stated that she initially told Stults-Lindsey that she did not have anything to tell
her because she did not know anything. Harris also admitted that she did not tell Lang the
same story that she testified to at trial but spun her a "tale." Finally, Harris admitted that
she initially told the police that she had no concerns about the safety of their child and
that Lindsey would not do anything to harm a child. Thus, the record conclusively
supports the summary denial of these claims.
27
Failure to call former prosecutor

Lindsey's motion argued that Hoffman was ineffective in failing to call the former
prosecutor, Dersch, about whether she coached S.H. to identify Lindsey as her attacker.
But the district court granted Lindsey's pretrial motion in limine, in part, which prevented
S.H. from providing an in-court identification of Lindsey without requesting the district
court to conduct an inquiry outside the presence of the jury. At trial, however, S.H. made
no in-court identification of Lindsey. Thus, Lindsey can show no prejudice on this claim
and the record conclusively shows that Hoffman was not ineffective in failing to call
Dersch as a witness about whether she coached S.H. to identify Lindsey as her attacker.

Failure to obtain defense experts on DNA and forensic evidence

Lindsey's motion claimed that Hoffman provided ineffective assistance of counsel
in failing to obtain an expert to analyze the DNA evidence. But Hoffman stated at the
hearing that he did not obtain additional DNA testing on the evidence because he thought
that the State's evidence showing a lack of Lindsey's DNA at the crime scenes was
sufficient. The jury heard from a DNA forensic expert, Tarah Brown, that there was no
semen and no male DNA detected on vaginal swabs collected during S.H.'s forensic
exam. Brown testified that the only positive DNA findings connected to Lindsey were
found on his underwear and pants but that S.H. was excluded as a potential contributor.
Given the lack of DNA evidence provided by the State at trial, it was unnecessary for
Hoffman to call an expert witness to rebut the State's evidence.

Lindsey also asserted that Hoffman was ineffective for failing to hire an expert on
cell phone evidence to rebut the State's evidence at trial about Lindsey's cell phone. But
Hoffman cross-examined the State's forensic examiner, Patrick Ladd, about his testimony
on the evidence collected from the black iPhone identified at trial as Lindsey's. Ladd
admitted that he could not tell who was using the cell phone based on the data he
28
collected. Hoffman also cross-examined Ladd about the accuracy of the cell phone
locations. Ladd admitted that many people live in the zones identified in the State's
exhibits and that cell phone towers cover up to a 40-mile capacity and overlap each other
at times. In short, the cell phone evidence was not damaging to Lindsey at trial and
Hoffman was not ineffective for failing to hire an expert witness to rebut the testimony.

Failure to conduct independent investigation of the crime scenes

Lindsey's motion included a conclusory allegation that Hoffman's failure to
conduct an independent investigation of the crime scenes constitutes ineffective
assistance of counsel. But Lindsey pointed to no information to explain how Hoffman's
failure to conduct an independent investigation of the crime scenes prejudiced him at
trial. Because Lindsey's claim on this point is conclusory and fails to show prejudice, an
evidentiary hearing is not warranted.

Failure to obtain expert witness about penetration

Lindsey's motion claimed that Hoffman was ineffective in failing to obtain a
medical expert on whether S.H. was penetrated by her attacker. At trial, S.H. testified that
her attacker raped her at the three different locations on the night in question: in the
alley, in the woods, and at the yellow house. The sexual assault nurse examiner (SANE),
Jennifer Harris, testified that the injuries to S.H.'s genitalia resulted from multiple blunt
force trauma consistent with sexual assault. But Harris could not testify that there was a
penetration of the vaginal vault.

The State also published S.H.'s forensic video for the jury at trial. In the video,
S.H. stated that her attacker had sex with her three times: once in the alley, in the woods,
and at the house where he broke the window. S.H. stated that her attacker touched her
29
private part with his private part but that it did not go inside the line of her private part.
S.H. stated she did not remember how it felt and she could not see his private part.

Lindsey does not assert how Hoffman's failure to obtain a medical expert to testify
on this issue prejudiced him. The jury reviewed S.H.'s conflicting statements in the
forensic interview and her testimony at trial. Hoffman cross-examined S.H. based on her
testimony. The SANE nurse testified that she could not tell whether there was penetration
of the vaginal vault. Lindsey fails to assert how his case would have been strengthened
had Hoffman called another expert to testify about penetration when the State's own
expert could not establish penetration. There is no reasonable probability the jury would
have reached a different result absent the alleged deficient performance.

Additional arguments at the hearing

Lindsey presented several additional arguments at the hearing that were not
addressed in the pro se motion. Specifically, Lindsey asserted that Hoffman cursed him in
front of the jury, failed to call any witnesses in his defense, refused to allow him to
testify, and failed to communicate adequately with him. The district court addressed most
of these claims in ruling on Hoffman's motion to withdraw. But the district court did not
address Lindsey's claim that Hoffman was ineffective in refusing to allow him to testify.

At the hearing, Hoffman disputed this claim and argued that he gave Lindsey the
opportunity up until the last minute to testify. The record also includes the district court's
colloquy with Lindsey on his right to testify at trial, after the State rested and before
Lindsey presented his case in chief. The district court informed Lindsey that while his
attorney may advise him on his right to testify, Lindsey did not have to follow that advice
because the decision was his alone whether to testify. Lindsey stated that he understood
and that he had no questions about his right to testify. Also, after the defense rested and
30
before the jury instructions conference, the district court directly asked Lindsey if he
wanted to testify. Lindsey replied: "No, Your Honor. No."

To sum up, I find that the district court erred in the manner that it rejected
Lindsey's second amended motion for new trial. But the record conclusively shows that
Lindsey is not entitled to relief on his claims of ineffective assistance of counsel. Thus, I
agree with the majority that Lindsey's convictions should be affirmed.