State v. O'Quinn

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NOT DESIGNATED FOR PUBLICATION

No. 118,977

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

CLETIS R. O'QUINN,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; CHRISTOPHER M. MAGANA, judge. Opinion filed
November 8, 2019. Affirmed in part and dismissed in part.

Sam Schirer, of Kansas Appellate Defender Office, for appellant.

Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before STANDRIDGE, P.J., PIERRON and ATCHESON, JJ.

PER CURIAM: Following a jury trial, Cletis R. O'Quinn was convicted of one
count each of aggravated kidnapping, aggravated sexual battery, and aggravated battery.
All three counts were found to be acts of domestic violence. The district court sentenced
O'Quinn to 620 months in prison and ordered him to pay $99 in restitution. O'Quinn now
appeals, claiming that (1) the State violated his statutory and constitutional rights to a
speedy trial, (2) his trial counsel was ineffective because he failed to contemporaneously
object to evidence of prior sexual misconduct, (3) he is entitled to a remand for a Van
Cleave hearing to determine whether his trial and posttrial counsel were ineffective for
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failing to introduce into evidence an allegedly exculpatory DNA test from his prior
convictions, (4) K.S.A. 2018 Supp. 60-455(d) violates sections 10 and 18 of the Kansas
Constitution Bill of Rights, and (5) the district court erred when it ordered him to pay $99
in restitution. Finding no error, we affirm in part and dismiss in part.

FACTS

On September 4, 2015, the State charged O'Quinn with one count each of
aggravated sexual battery and aggravated battery. The charges stemmed from an incident
that occurred on June 16, 2015, and involved O'Quinn's girlfriend/roommate, P.S. At the
time of the incident, O'Quinn was on lifetime parole for crimes he committed in 1989.

The district court issued a warrant for O'Quinn's arrest on September 4, 2015, the
same day that the criminal charges were filed. The arrest warrant provided for an
appearance bond of $75,000 and bond conditions to include pretrial services with an
electronic monitoring device. Although there is no return of service reflected on the
warrant itself, O'Quinn ultimately was arrested and taken into custody on March 19,
2016, a little over six months after the warrant was issued.

At the preliminary hearing, the district court found probable cause to believe
O'Quinn committed the crimes as alleged in the complaint and, in addition, found
probable cause to believe that he committed the crime of aggravated kidnapping.
Following the hearing, the State amended the complaint to charge O'Quinn with that
additional count for aggravated kidnapping. The State alleged all three counts involved
crimes of domestic violence. O'Quinn pled not guilty, and the matter was set for jury trial
on May 23, 2016. The trial was continued numerous times, however, and did not actually
begin until almost a year later on March 27, 2017, approximately 18 months after
O'Quinn was originally charged.

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Before trial, the State filed a motion seeking to introduce evidence of prior bad
acts and offenses of sexual misconduct committed by O'Quinn in the past. Specifically,
the State sought to introduce evidence of O'Quinn's: (1) 1989 convictions for aggravated
kidnapping, aggravated sexual battery, and aggravated battery; (2) a 2009 conviction for
domestic battery involving P.S., the same victim as alleged in this case; and (3)
involvement in incidents (including breaking and entering and tampering with a vehicle)
that allegedly occurred at P.S.'s home in the weeks after the June 16, 2015 incident.
O'Quinn objected to the State's motion, and a hearing was held on March 17, 2017. The
district court granted the motion to the extent that the State would be permitted to
introduce evidence of the 1989 convictions and the alleged breaking and entering that
occurred after the June 16, 2015 incident. But the court denied the motion with regard to
evidence of the 2009 domestic battery conviction and the alleged vehicle tampering,
meaning the State would be prohibited from introducing that particular evidence at trial.

Before the jury was sworn, defense counsel filed a motion to dismiss the case with
prejudice due to violations of O'Quinn's constitutional and statutory right to a speedy
trial. The court held a hearing on the motion and denied the motion to dismiss.

At trial, P.S. testified that she met O'Quinn at Old Chicago Pizza in Wichita's Old
Town district on June 16, 2015. At the time, P.S. and O'Quinn were in a relationship and
living together, albeit in separate rooms, but were having difficulties. P.S. testified she
agreed to meet O'Quinn at Old Chicago Pizza because he said he wanted to "talk." She
listened to him all through dinner, where she admitted to having a few alcoholic drinks,
while he tried to persuade her to get back together and to "make things work." But when
O'Quinn suggested that they get a room at a nearby hotel as they were leaving, P.S. told
him that she did not want to go and, in fact, did not want to continue her relationship with
him. P.S. testified O'Quinn became angry and tried to grab her phone out of her hand,
which caused the phone to fall on the street. P.S. tried to grab O'Quinn's phone out of his
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pocket but was unsuccessful. P.S. then walked away, leaving her phone on the street.
After making sure O'Quinn already had left in his truck, P.S. drove herself home.

When P.S. arrived home between 10 and 11 p.m., she found her broken phone
sitting in a chair on her front porch. She picked it up and had just unlocked and opened
her front door when she was pushed from behind and fell forward into her living room.
The fall caused her phone, purse, and everything else in her hands to go flying. P.S.
testified that, at first, she did not know who had attacked her but eventually recognized
the attacker as O'Quinn when he began talking and turned her around. P.S. said O'Quinn
was acting aggressively and calling her a "bitch" as he pulled her into his bedroom. Once
he got her there, he threw P.S. onto the bed, choked her, ripped off her clothes, and
masturbated in an attempt to obtain an erection. He attempted to have sexual intercourse
with P.S. but was unable to obtain an erection. P.S. fought back and repeatedly told
O'Quinn to stop. P.S. said she was able to escape the bedroom at one point, but O'Quinn
prevented her from leaving the house. He eventually caught her again and dragged her
back to the bedroom. Once there, he continued to choke her—to the point that she saw
"stars"—and assaulted her until she fell off the bed. P.S. testified that, at this point,
O'Quinn helped her up, helped her to use the restroom, and then laid her down on the
couch in the living room. Rather than leave, however, O'Quinn laid down on another
couch and remained in P.S.'s home until approximately 5 or 6 a.m. the next morning,
when he eventually left. He returned later that morning to retrieve his work clothes,
which P.S. handed to him through the door.

P.S. suffered severe bruising to her arm, neck, and chest as a result of the attack.
P.S. did not immediately report the incident to police because she was afraid and did not
want to cause trouble in her family. So P.S. wore long sleeve shirts to cover up the
bruises.

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On June 25, 2015, nine days after the attack, P.S. was sitting alone in her living
room when she heard glass shatter in her basement. She looked down her basement stairs
and saw O'Quinn coming up toward her. P.S. ran from the house to her daughter's house
down the street, where she called the police.

Immediately after P.S. testified, the State called G.M., the woman whom O'Quinn
had attacked and sexually assaulted in 1989. In 1989, G.M. was 20 years old and working
at a convenience store in Wichita, Kansas. One night, when G.M. was working late and
alone, O'Quinn entered the store and asked her where to find the restrooms. She told him
but rather than move in the direction that G.M. indicated, O'Quinn remained where he
was and tried to talk to G.M. while she was stocking shelves. G.M. was attempting to
make it up to the front counter, where an emergency button was located, when O'Quinn
grabbed her arm and started punching her in the face. He then called her a "bitch" and
told her to "shut up" as he dragged her into the storage room at the back of the store.
Once he got her there, he showed her a knife and pushed her into a cooler where he
ripped off her pants and underwear and began masturbating in an attempt to obtain an
erection. G.M. testified O'Quinn continued to masturbate as he straddled her and cut her
neck with a knife. Fearing for her life, G.M. fought back and eventually was able to kick
O'Quinn in the groin and run out of the room. But as she did so, O'Quinn slashed at her
with the knife and cut the back of her leg from her buttocks down to her knee. G.M.
identified O'Quinn as her attacker and, following a jury trial, he was convicted of
aggravated kidnapping, aggravated sexual battery, and aggravated battery. The State
introduced the 1989 convictions into evidence in this case, under K.S.A. 2018 Supp. 60-
455(d), to demonstrate O'Quinn's propensity to commit violent acts of sexual misconduct.

The jury ultimately convicted O'Quinn of all three counts and found that each was
an act of domestic violence. Before sentencing, O'Quinn filed a motion for a judgment of
acquittal, a motion for a new trial, and a motion for a departure sentence. O'Quinn also
filed a pro se motion alleging that, for a number of different reasons, his trial counsel,
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Jama Mitchell, was ineffective. Recognizing the conflict that those claims created
between O'Quinn and Mitchell, the district court continued sentencing, appointed new
counsel, and set the matter for a hearing. At the hearing, O'Quinn testified about his
grievances against Mitchell. Those grievances covered a wide variety of issues but,
relevant here, largely centered on Mitchell's failure to contemporaneously object or
otherwise challenge the evidence of O'Quinn's 1989 convictions when it was presented at
trial. Mitchell also testified at the hearing. Mitchell explained that her decisions
throughout the trial were strategic in nature. This included her decision to not
contemporaneously object to or cross-examine G.M as a witness because Mitchell wanted
to get G.M. off of the witness stand as quickly as possible.

After hearing the evidence, the district court found O'Quinn failed to establish
ineffective assistance of counsel and denied his motion. The district court also denied
O'Quinn's motion for a judgment of acquittal, motion for a new trial, and motion for a
departure sentence. The district court then sentenced O'Quinn to 620 months in prison
and ordered him to pay $99 in restitution to P.S. for the phone that was broken during the
June 16, 2015 incident.

ANALYSIS

1. Speedy trial

a. Statutory right

O'Quinn argues he was deprived of his statutory right to a speedy trial because the
State held him in custody based solely on the charges filed against him in this case and
failed to bring him to trial within 150 days of his arraignment. Although the district court
found no statutory speedy trial violation, appellate courts exercise unlimited review over
a district court's legal rulings regarding alleged violations of a defendant's statutory right
to a speedy trial. State v. Vaughn, 288 Kan. 140, 143, 200 P.3d 446 (2009).
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Pursuant to K.S.A. 2018 Supp. 22-3402(a):

"If any person charged with a crime and held in jail solely by reason thereof shall
not be brought to trial within 150 days after such person's arraignment on the charge,
such person shall be entitled to be discharged from further liability to be tried for the
crime charged, unless the delay shall happen as a result of the application or fault of the
defendant or a continuance shall be ordered by the court under subsection (e)."

Here, neither party disputes that more than 150 days attributable to the State
elapsed between O'Quinn's arraignment on April 20, 2016, and the start of his trial on
March 27, 2017. Instead, the question presented is whether O'Quinn was being held in
jail solely by reason of the crimes charged in this case. See K.S.A. 2018 Supp. 22-
3402(a).

At a hearing on the speedy trial issue before the district court, O'Quinn's parole
officer, Ed Desir, testified that O'Quinn had been placed on lifetime parole after being
released from the prison sentence he served for the 1989 convictions. Desir explained that
the current charges pending against O'Quinn in this case necessarily triggered a duty on
his part to charge O'Quinn with a violation of the conditions of his parole in the 1989
case and place a hold on him based on the alleged violation. Desir testified he went to the
jail on April 1, 2016, about two weeks after O'Quinn was taken into custody in this case,
and personally served O'Quinn with a written statement of charges and report of parole
violation. Desir described the hold placed on O'Quinn as one grounded in "a [n]umber 2
laws" parole violation, meaning the parole violation charged and the resulting hold was
based on the parolee's violation of a city, county, state or federal law.

O'Quinn testified at the hearing as well. O'Quinn conceded that Desir personally
served him on April 1, 2016, with a written statement of charges and report of parole
violation. But O'Quinn argued his detention for violation of parole in the 1989 case could
not be taken into account for speedy trial purposes because it was entirely dependent on
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the outcome of the current case. The district court disagreed, finding there was no
statutory speedy right violation because O'Quinn was in custody on a parole hold and
therefore was not being held solely on the current charges. The district court also found
that the delay was not long enough to implicate O'Quinn's constitutional right to a speedy
trial and, even if it was, O'Quinn failed to demonstrate the requisite prejudice necessary
to justify a dismissal on that basis. The court denied the speedy trial motion to dismiss,
and the case proceeded to trial.

On appeal, O'Quinn concedes that, as of April 1, 2016, he was being detained
based on his parole violation. Nevertheless, O'Quinn argues it is improper for the district
court to consider the parole hold as part of its statutory speedy trial analysis because his
detention for the parole violation is entirely dependent on the outcome of the current
case. But O'Quinn's argument is undermined by testimony at the hearing from his parole
officer stating that, even if the current charges against O'Quinn were dismissed or he was
acquitted, he would continue to be detained under the hold until the parole board made a
final decision on whether to revoke parole. Based on these facts, we find O'Quinn was
not being held in jail solely by reason of the crimes charged in this case.

Our finding in this regard is supported by our Supreme Court's decision in State v.
Hill, 257 Kan. 774, 778, 895 P.2d 1238 (1995). In Hill, the defendant was held in custody
awaiting trial on multiple counts of aggravated kidnapping, aggravated robbery, rape,
aggravated burglary, and theft. The defendant was also subject to a parole hold based on
his arrest for violations of state law. The defendant claimed his statutory speedy trial
rights were violated. But our Supreme Court summarily rejected the defendant's claim,
finding "that K.S.A. 22-3402 was inapplicable because the defendant was not being held
in jail solely on the charges herein." 257 Kan. at 778.

O'Quinn attempts to distinguish the facts in his case by noting that, unlike Hill, he
did not violate his parole by failing to report his arrest for state law violations; instead,
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his hold was based on the underlying state law violations themselves. But O'Quinn's
distinction is without a difference and is inconsistent with the language of the applicable
statute, K.S.A. 2018 Supp. 22-3402. The legal proposition upon which the decision in
Hill was based is clear: The statutory speedy trial provision set forth in K.S.A. 2018
Supp. 22-3402 does not apply when the defendant is being held in custody on the current
charges and on a parole violation, even if the parole violation arises from the current
charges. 257 Kan. at 778. This court is duty bound to follow Kansas Supreme Court
precedent, unless there is some indication the court is departing from its previous
position. State v. Meyer, 51 Kan. App. 2d 1066, 1072, 360 P.3d 467 (2015). We see no
such indication. As the district court held, O'Quinn's statutory speedy trial right was not
violated because O'Quinn was in custody on a parole hold and, therefore, was not being
held solely on the current charges. See K.S.A. 2018 Supp. 22-3402(a).

b. Constitutional right

O'Quinn also argues he was deprived of his constitutional right to a speedy trial as
guaranteed by both the Sixth Amendment to the United States Constitution and section
10 of the Kansas Constitution Bill of Rights. When a defendant raises a constitutional
speedy trial claim, it is a question of law subject to de novo review. State v. Rivera, 277
Kan. 109, 113, 83 P.3d 169 (2004).

The Sixth Amendment and section 10 of the Kansas Constitution Bill of Rights
guarantee a criminal defendant the right to a public and speedy trial.

"The Sixth Amendment right to a speedy trial is . . . not primarily intended to
prevent prejudice to the defense caused by passage of time; that interest is protected
primarily by the Due Process Clause and by statutes of limitations. The speedy trial
guarantee is designed to minimize the possibility of lengthy incarceration prior to trial, to
reduce the lesser, but nevertheless substantial, impairment of liberty imposed on an
accused while released on bail, and to shorten the disruption of life caused by arrest and
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the presence of unresolved criminal charges." United States v. MacDonald, 456 U.S. 1, 8,
102 S. Ct. 1497, 71 L. Ed. 2d 696 (1982).

In Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972), the
United States Supreme Court announced a balancing test and identified factors for courts
to consider in determining whether a defendant's Sixth Amendment right to a speedy trial
has been violated. These factors include: (1) the length of the delay, (2) the reason for
the delay, (3) the defendant's assertion of his or her right, and (4) prejudice to the
defendant. 407 U.S. at 530. None of the factors are controlling in determining whether a
defendant's constitutional right to a speedy trial has been violated, but the factors must be
considered together with such other circumstances as may be relevant. 407 U.S. at 533.
We discuss each factor in turn.

(1) Length of delay

The Supreme Court in Barker noted that the length of the delay in bringing a
defendant to trial acts as a "triggering mechanism" for applying the remaining three
factors. "Until there is some delay which is presumptively prejudicial, there is no
necessity for inquiry into the other factors that go into the balance." Barker, 407 U.S. at
530. With regard to this particular factor, our Kansas Supreme Court has resisted setting
rigid rules for what length of time is presumptively prejudicial, preferring to examine
each delay in the context of the facts in that particular case. See State v. Weaver, 276
Kan. 504, 509, 78 P.3d 397 (2003) ("'[T]he delay in each case is analyzed according to its
particular circumstances.'"). Accordingly, the "tolerable delay for an ordinary crime is
less than for a complex one." 276 Kan. at 511.

The balancing test set forth in Barker considers the period of time from attachment
of the protection until trial. See State v. Davis, 277 Kan. 309, 334, 85 P.3d 1164 (2004).
Unlike the statutory speedy trial right, which attaches at arraignment, the constitutional
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speedy trial right attaches at the formal charging or arrest, whichever occurs first. Rivera,
277 Kan. at 112.

In this case, O'Quinn originally was charged on September 4, 2015, with felony
aggravated sexual battery (domestic violence offense) and felony aggravated battery
(domestic violence offense). So O'Quinn's constitutional right to a speedy trial attached
on September 4, 2015. His trial did not begin until March 27, 2017, which is 18 months
after O'Quinn originally was charged.

The question presented is whether, under the particular circumstances presented in
this case, the 18-month period of time between September 4, 2015, and March 27, 2017,
is presumptively prejudicial. In considering this question, we note that the district court
issued a warrant for O'Quinn's arrest on September 4, 2015, the same day that the charges
were filed. The arrest warrant provided for an appearance bond of $75,000 and bond
conditions to include pretrial services with an electronic monitoring device. The arrest
warrant does not indicate a return of service. O'Quinn was arrested and taken into custody
on March 19, 2016. O'Quinn made his first appearance on March 21, 2016, over six
months after the charges were filed. Although we could parse out the circumstances
surrounding the next 12-month delay between O'Quinn's first appearance and his trial, we
find the 18-month delay in this case to be presumptively prejudicial, primarily because of
the unexplained 6-month delay between when the case was filed and when the State
scheduled O'Quinn for his first appearance on the charges. Accordingly, we move on to
analyze the balance of the Barker factors.

(2) Reason for delay

Under the second Barker factor, O'Quinn argues that the State's requests to
continue the trial were made in bad faith. In addressing this factor, courts considers
"whether the government or the criminal defendant is more to blame" for the delay.
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Doggett v. United States, 505 U.S. 647, 651, 112 S. Ct. 2686, 120 L. Ed. 2d 520 (1992).
Deliberate delay by the State "'to hamper the defense' weighs heavily against the
prosecution.'' Vermont v. Brillon, 556 U.S. 81, 90, 129 S. Ct 1283, 173 L. Ed. 2d 231
(2009) (quoting Barker, 407 U.S. at 531).

The State's initial request to continue the trial was granted on September 19, 2016,
without a record being taken. Relying on the absence of a record to establish otherwise,
O'Quinn argues this court "should not assume that the State is continuing trial for a
legitimate reason when it does so in a mysterious and unconstitutional manner."
Significantly, it is the appellant's burden to designate a record that shows reversible error.
State v. Valdez, 266 Kan. 774, 792, 977 P.2d 242 (1999). At the hearing on his motion to
dismiss for violation of his speedy trial rights, O'Quinn had the opportunity to develop a
record regarding the reason for the continuance at issue. He failed to do so, instead
focusing on his parole hold and the prejudice he was enduring as a result of his detention.
O'Quinn never suggested that the State's request for this continuance was made in bad
faith. In the absence of evidence to the contrary, we will not assume bad faith on the
State's part in this first request to continue the trial.

The State's second request to continue the trial was made because the prosecutor
was looking into additional discovery material and was considering filing a K.S.A. 60-
455 pretrial motion, which it decided to do several weeks later. In this instance, the
district court expressly found that the State had a "good-faith basis'' for requesting the
continuance. On appeal, O'Quinn asserts the State "had no legitimate reason to wait that
long" to file its K.S.A. 60-455 motion and suggests the State should have filed the motion
during the multiple periods of time when he had requested the trial be continued. We are
not persuaded by O'Quinn's argument.

The final continuance in the case was required based on O'Quinn's refusal to waive
the potential conflict of interest discovered when the original prosecutor learned about
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her father's prior representation of O'Quinn. But even if this portion of the delay is
attributed to the State, the State was clearly acting in good faith when it informed defense
counsel about the issue and then assigned a new prosecutor to the case.

We find nothing in the record to support O'Quinn's argument that the State's
requests to continue the trial were made in bad faith. Rather, the record demonstrates that
the State was actively preparing for trial, including tracking down the victim from a 27-
year-old crime, even as O'Quinn himself requested multiple continuances. As such, this
factor weighs against O'Quinn.

(3) Assertion of right

Regarding the third Barker factor, the record demonstrates that O'Quinn asserted
his right to a speedy trial on numerous occasions beginning in September 2016. That he
did so repeatedly and emphatically, both during trial proceedings and in letters and filings
that he submitted to the district court, weighs in his favor.

(4) Prejudice to the defendant

Actual prejudice from delay can result from oppressive pretrial incarceration, the
anxiety and concern of the accused, and the possibility that the defendant's defense will
be impaired by dimming memories and loss of exculpatory evidence. Doggett, 505 U.S.
at 654; Barker, 407 U.S. at 532. Under this fourth Barker factor, O'Quinn relies on all of
these factors. At the hearing on the motion, O'Quinn testified that his incarceration "just
gave me a lot of undue stress and anxiety." He complained that he was "here just on an
allegation." O'Quinn noted that he had been diagnosed with an eye condition in 2013 and
that "[t]hey take me to the doctor for that'' every 90 days. O'Quinn said that he had not
been able to prepare a defense because he had not been able to personally "go talk to
anybody'' or bring people to defense counsel's office to meet with counsel. Finally, he
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claimed that he had lost "income, job, vehicle . . . and . . . a lot of friends because of this
allegation."

O'Quinn's claims find little to no support in the record. First, O'Quinn was not
arrested until 6 months after the charges were initially filed, meaning that he was only
incarcerated for 12 of the 18 months between his charging and the beginning of his trial.
O'Quinn's own testimony shows that he was receiving medical care and medication for
his eye condition. Although he referred to his anxiety as severe, O'Quinn did not provide
any specific examples of how his anxiety was more than any criminal defendant in his
position, and his testimony suggests that the anxiety he was experiencing was based on
his perception that he being held on only "an allegation" that he committed the crimes
charged. Of course, the same is true for all defendants who are in custody awaiting trial.
O'Quinn's claim that that he could not personally assist in his defense is likewise
unavailing, as he never asserted that he was unable to provide counsel the names of
witnesses with relevant information. Finally, O'Quinn offered no details regarding his lost
job or vehicle; in any event, these are, again, circumstances that are common to all
pretrial detainees. This factor does not weigh in favor of O'Quinn.

Viewed individually or collectively, the Barker factors do not support O'Quinn's
claim that he was deprived of his constitutional right to a speedy trial.

2. Ineffective assistance of counsel

To prevail on a claim of ineffective assistance of counsel, a criminal defendant
must establish that (1) the performance of defense counsel was deficient under the totality
of the circumstances and (2) prejudice, i.e., that there is a reasonable probability the jury
would have reached a different result absent the deficient performance. Sola-Morales v.
State, 300 Kan. 875, 882, 335 P.3d 1162 (2014) (relying on Strickland v. Washington,
466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 [1984]). If counsel has made a
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strategic decision after making a thorough investigation of the law and the facts relevant
to the realistically available options, then that strategic decision by counsel is virtually
unchallengeable. Strategic decisions made after a less than comprehensive investigation
are reasonable exactly to the extent a reasonable professional judgment supports the
limitations on the investigation. State v. Cheatham, 296 Kan. 417, 437, 292 P.3d 318
(2013).

a. K.S.A. 60-455 evidence

O'Quinn argues that his trial counsel's performance was deficient because she
failed to contemporaneously object when evidence of his 1989 convictions was
introduced under K.S.A. 2018 Supp. 60-455(d). Where, as here, the district court
conducted an evidentiary hearing on an ineffective assistance of counsel claim, an
appellate court reviews the district court's factual findings under a substantial competent
evidence standard and its legal conclusions based on those findings under a de novo
standard. State v. Butler, 307 Kan. 831, 853, 416 P.3d 116 (2018).

Although deficient performance is the first component of ineffective assistance of
counsel, we need not decide the issue of deficient performance here. This is because,
even if true, O'Quinn has failed to demonstrate prejudice, i.e., a reasonable probability
that the jury would have reached a different verdict if the alleged deficient performance
had not occurred. See Sola-Morales, 300 Kan. at 882.

We begin our prejudice analysis by noting that, in the absence of a
contemporaneous objection, we are precluded from reviewing a district court's decision
regarding the introduction of evidence at trial. But that preclusion applies only to our
review of whether the district court erred in allowing or disallowing evidence to be
introduced. In the context of O'Quinn's claim here, we must decide whether there is a
reasonable probability that the jury would have reached a different verdict had counsel
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made a contemporaneous objection to the K.S.A. 60-455 evidence. To that end, we find it
highly unlikely that the district court would have granted a contemporaneous objection
when the State introduced the K.S.A. 2018 Supp. 60-455(d) evidence. The issue was fully
litigated during a pretrial hearing, at the close of which the district court issued a well-
reasoned ruling, on the record, that addressed each of the arguments O'Quinn raised.

Moreover, even if a contemporaneous objection had been made and granted, the
direct evidence of the crimes committed by O'Quinn was substantial. There was extensive
testimony from the alleged victim, as well as from police officers who corroborated key
elements of the victim's account. In sum, we find no reasonable probability that the jury
would have reached a different verdict if O'Quinn's trial counsel had contemporaneously
objected to the admission of the K.S.A. 2018 Supp. 60-455(d) evidence. See Sola-
Morales, 300 Kan. at 882.

b. DNA evidence

For the first time on appeal, O'Quinn argues his trial and posttrial counsel provided
him ineffective assistance of counsel by refusing to introduce into evidence what
O'Quinn believes to be exculpatory DNA evidence from his 1989 convictions. Some
additional facts are necessary here. Following his jury trial convictions, O'Quinn filed a
pro se motion asserting that the "semen stain collected at [the] scene" of G.M.'s 1989
sexual assault had been left by a man who had had a vasectomy. O'Quinn alleged that he
had never had a vasectomy. The implication of these claims was that trial counsel had
been ineffective by not bringing this to the jury's attention when evidence of the prior
1989 convictions were introduced at trial.

The district court appointed counsel to represent O'Quinn and then held an
evidentiary hearing on the motion asserting ineffective assistance of trial counsel.
O'Quinn testified that he had told his trial attorney that he had never had a vasectomy.
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O'Quinn thought this was relevant to his current criminal case because a semen sample
from his 1989 case had been left by a man who had had a vasectomy. Notwithstanding
this alleged relevance, O'Quinn testified that trial counsel "blew if off." When trial
counsel testified, she confirmed that O'Quinn had informed her of his belief that forensic
testing excluded him as the person who had sexually assaulted G.M. in 1989. In response,
trial counsel explained to O'Quinn that she was "not going to relitigate [the 1989] case."

After considering the testimony of O'Quinn and trial counsel, the district court
concluded that O'Quinn's vasectomy claim was a "non-issue." On appeal, O'Quinn
submits that his vasectomy-related ineffective assistance of counsel claim was only a
"non-issue" because posttrial counsel failed to properly litigate it in district court.
Specifically, O'Quinn argues posttrial counsel should have engaged in discovery to find
the testing results before the hearing.

As a general rule, claims of ineffective assistance of counsel will not be heard for
the first time on appeal. Rowland v. State, 289 Kan. 1076, 1084, 219 P.3d 1212 (2009).
This is because the district court, which observed counsel's performance and is aware of
the trial strategy employed, is in a much better position to consider the competence of
counsel and should have the first opportunity to rule on the issue. State v. Van Cleave,
239 Kan. 117, 119-20, 716 P.2d 580 (1986). As such, when a defendant raises an
ineffective assistance of counsel claim for the first time on direct appeal, appellate courts
have three options: (1) Follow the general rule and refuse to address the issue, allowing
the defendant to pursue relief through a K.S.A. 60-1507 motion; (2) rule on the merits in
the "extremely rare" cases that there is a sufficient record to do so; or (3) remand the case
for a Van Cleave hearing "so that facts relevant to determination of the legal issue may be
developed and an evidentiary record established." Rowland, 289 Kan. at 1084; see State
v. Reed, 302 Kan. 227, 233-34, 352 P.3d 530 (2015). Whether to remand a case for a Van
Cleave hearing lies within the sound discretion of the appellate court. Van Cleave, 239
Kan. at 120.
18
"In Van Cleave, we set guidelines for an appellate court to follow in exercising
its discretion when deciding whether to remand a case for an evidentiary hearing. In that
case, we noted an appellant's counsel must do more than simply read the cold record of
the proceedings before the district court and then argue that he or she would have handled
the case differently. We held that counsel must attempt to determine the circumstances
under which trial counsel did—or did not—proceed as the appellate counsel believes
preferable and conduct at least some investigation into the claimed ineffectiveness. We
then noted: 'Except in the most unusual cases, [for an appellate counsel] to assert a claim
of ineffective assistance of counsel without an independent inquiry and investigation
apart from reading the record is questionable to say the least.' [Citations omitted.]" State
v. Levy, 292 Kan. 379, 389, 253 P.3d 341 (2011).

In this case, O'Quinn is requesting a Van Cleave hearing to determine whether his
trial and posttrial counsel provided ineffective assistance by refusing to engage in
discovery to find and then introduce into evidence what O'Quinn believes to be DNA
evidence that would exonerate him of his 1989 crimes of conviction. Although O'Quinn
argues in his brief that the exculpatory testing results do seem to have a basis in fact,
there is no factual evidence in the record to support this argument. Instead, the merits of
O'Quinn's ineffective assistance of counsel claim rely entirely on appellate counsel's
reading of the cold record and the allegation that things could have been done differently.
That is not enough to satisfy the minimum requirements for a Van Cleave remand. See
State v. Levy, 292 Kan. 379, 389, 253 P.3d 341 (2011). Accordingly, we will proceed to
the merits of O'Quinn's claim.

The underlying premise of O'Quinn's ineffective assistance of counsel claim is that
DNA evidence exists that would exonerate him of his 1989 crimes of conviction. But
O'Quinn's claim of innocence based on this DNA evidence already has been litigated and
found to be without merit. See O'Quinn v. State, No. 86,113, 2004 WL 1683103, at *3-4
(Kan. App. 2004) (unpublished opinion). In fact, the DNA report that O'Quinn relies on
specifically concluded "that O'Quinn's 'claims of factual innocence in the sexual assault
19
of [G.M.] are not supported by [its] findings.'" 2004 WL 1683103, at *4. Therefore, not
only is the DNA report irrelevant to the case at hand, but it is also not the exculpatory
evidence that O'Quinn claims.

For the reasons stated above, we conclude trial and posttrial counsel did not
provide deficient representation by refusing to introduce DNA evidence from his 1989
convictions. See Sola-Morales, 300 Kan. at 882.

3. Constitutionality of K.S.A. 2018 Supp. 60-455(d)

O'Quinn alleges K.S.A. 2018 Supp. 60-455(d) violates sections 10 and 18 of the
Kansas Constitution Bill of Rights. The constitutionality of a statute is a question of law
subject to unlimited review. Appellate courts presume that statutes are constitutional and
must resolve all doubts in favor of a statute's validity. As such, if there is any reasonable
construction that would maintain the Legislature's apparent intent, the court must
interpret the statute in the way that makes it constitutional. State v. Soto, 299 Kan. 102,
121, 322 P.3d 334 (2014).

Section 10 provides:

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

Section 18 similarly provides that "[a]ll persons, for injuries suffered in person,
reputation or property, shall have remedy by due course of law." Historically, Kansas
courts have analyzed the due process requirements of sections 10 and 18 as coextensive
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with their federal counterparts. See State v. Wilkinson, 269 Kan. 603, 608-09, 9 P.3d 1
(2000) (applying same analysis to federal due process challenge as to section 18
challenge); Murphy v. Nelson, 260 Kan. 589, 597-98, 921 P.2d 1225 (1996) (declining to
construe section 18 differently from federal due process protections and applying federal
law to a section 18 challenge); see also State v. Morris, 255 Kan. 964, 981, 880 P.2d
1244 (1994); State v. Busse, 231 Kan. 108, 110, 642 P.2d 972 (1982); State v. Haze, 218
Kan. 60, 62, 542 P.2d 720 (1975); State v. Hill, 189 Kan. 403, 411-12, 369 P.2d 365
(1962) (analyzing various due process protections contained in section 10 in same way as
federal due process protections).

In support of his challenge to K.S.A. 2018 Supp. 60-455(d), O'Quinn argues the
statute unconstitutionally permitted the jury to consider evidence regarding his 1989
convictions to prove his propensity to commit the crimes charged in this case. Doing so,
O'Quinn argues, diminishes the State's burden of proof and undermines the presumption
of innocence concept that is fundamental to American criminal law jurisprudence.

But the Kansas Supreme Court recently rejected this same argument, holding that
the historical "use of propensity evidence in Kansas, coupled with the procedural
safeguard of weighing the probative against the prejudicial effect of the evidence, leads
[to the conclusion] that . . . K.S.A. 2018 Supp. 60-455(d) does not violate federal
constitutional protections." State v. Boysaw, 309 Kan. 526, 536, 439 P.3d 909 (2019). It
then concluded that "[a]ny future challenge to the admission of propensity evidence
under K.S.A. 2018 Supp. 60-455(d) that is based on state constitutional provisions will
need to explain why this court should depart from its long history of coextensive analysis
of rights under the two constitutions." 309 Kan. at 538. O'Quinn has provided no such
explanation in this case. We are duty bound to follow Kansas Supreme Court precedent;
therefore, we find O'Quinn's claim to be without merit. See Meyer, 51 Kan. App. 2d at
1072.

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4. Restitution

At sentencing, the district court imposed a $99 restitution order to cover P.S.'s
expenses for repairing or replacing a damaged cell phone. On appeal, O'Quinn challenges
the order of restitution, claiming the evidence at trial establishes that O'Quinn damaged
P.S.'s cell phone well before he engaged in the alleged conduct forming the basis for his
aggravated battery, aggravated sexual battery, and aggravated kidnapping convictions.

As a general rule, issues not raised before the district court cannot be raised on
appeal. State v. Kelly, 298 Kan. 965, 971, 318 P.3d 987 (2014); see State v. Arnett, 307
Kan. 648, 650-52, 413 P.3d 787 (2018). There are, however, several exceptions to the
general rule, including to following:

"(1) The newly asserted theory involves only a question of law arising on proved or
admitted facts and is determinative of the case; (2) consideration of the theory is
necessary to serve the ends of justice or to prevent the denial of fundamental rights; and
(3) the district court is right for the wrong reason." State v. Phillips, 299 Kan. 479, 493,
325 P.3d 1095 (2014).

Regardless of which exception applies, it is incumbent on the appellant to explain why an
issue that was not raised below should be considered for the first time on appeal.
Supreme Court Rule 6.02(a)(5) (2019 Kan. S. Ct. R. 34).

Here, O'Quinn acknowledges that he is raising this issue for the first time on
appeal but argues that an exception to the general rule applies, namely that the issue
arises from proved or admitted facts and involves a question of law that is determinative
of the case. Specifically, O'Quinn argues that the facts regarding the damage to the phone
are undisputed and therefore the issue is merely a legal question regarding whether there
is a causal link between those facts and the crimes of conviction. But O'Quinn's argument
is undercut by the briefing in this matter, which reflects a material dispute between the
22
parties over the facts giving rise to the restitution order. O'Quinn denies that he attacked
P.S. on June 16, 2015, and instead claims that the damages to the phone were exclusively
caused by the altercation outside of Old Chicago Pizza. While the State acknowledges the
phone was damaged before O'Quinn initiated the attack for which he was charged and
convicted, it alleges that the phone was further damaged during that attack. In light of this
factual discrepancy, we cannot say that the restitution issue arises from proven or
admitted facts. Because it does not qualify as an exception to the general rule, we dismiss
O'Quinn's challenge to the district court's order of restitution based on his failure to
preserve the issue for appeal. See State v. Gross, 308 Kan. 1, 6, 417 P.3d 1049 (2018)
(preservation rule is based on prudential, not jurisdictional, concerns).

Affirmed in part and dismissed in part.