State v. Phoenix

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NOT DESIGNATED FOR PUBLICATION

No. 115,694

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

JERSHAWN L. PHOENIX,
Appellant.


MEMORANDUM OPINION

Appeal from Wyandotte District Court; WESLEY K. GRIFFIN, judge. Opinion on remand filed
April 19, 2019. Affirmed.

Kai Tate Mann, of Kansas Appellate Defender Office, for appellant.

Jennifer S. Tatum, assistant district attorney, Mark A. Dupree Sr., district attorney, and Derek
Schmidt, attorney general, for appellee.

Before STANDRIDGE, P.J., BUSER, J., and MCANANY, S.J.

PER CURIAM: After granting review, the Kansas Supreme Court remanded this
case for reconsideration in light of its recent decision in White v. State, 308 Kan. 491, 421
P.3d 718 (2018), which held that the 2016 amendments to K.S.A. 60-1507(f) were not
retroactive. As directed, we have reconsidered the facts of this case in light of White and,
for the following reasons, affirm the district court's decision.



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FACTS

On October 26, 2007, Jershawn L. Phoenix was charged with one count of rape
and one count of aggravated criminal sodomy. The charges were based on allegations that
Phoenix digitally raped and orally sodomized his 13-year-old cousin. Phoenix was
arrested at his home and, as he was being led away, Phoenix spontaneously
acknowledged that he knew why he was being arrested. Later, Phoenix provided a formal
statement to a police investigator about the events surrounding the alleged attack.

At a Jackson v. Denno hearing held on April 30, 2009, the district court
determined that both the spontaneous utterance and the subsequent formal statement were
voluntarily made and therefore admissible. The district court also determined that
evidence of an incriminating phone call made by Phoenix from jail was admissible.

On August 27, 2009, Phoenix pled guilty to one count of aggravated criminal
sodomy, admitting that he orally sodomized the 13-year-old victim. In exchange for the
plea, the State dismissed the remaining rape charge in this case as well as all charges in a
separate criminal case pending against Phoenix. The State also agreed to recommend a
downward durational departure prison sentence to 129 months in lieu of the presumptive
guideline sentence of life without the possibility of parole for 25 years.

On October 21, 2009, the district court imposed the departure sentence
recommended by the State. Phoenix did not file a direct appeal from the conviction and
sentence.

On July 2, 2013, Phoenix filed a motion to correct an illegal sentence, alleging
procedural irregularities in the charging document. The district court summarily denied
that motion, finding that the charging document was not defective as claimed. Phoenix
did not appeal this ruling.
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On March 26, 2015, Phoenix filed a pro se motion for an evidentiary hearing
pursuant to State v. Van Cleave, 239 Kan. 117, 716 P.2d 580 (1986). In the motion,
Phoenix alleged that both of his appointed trial counsel were ineffective by failing to
investigate the facts or law surrounding his warrantless arrest and by failing to pursue any
defense in this matter. Although the original motion requested a Van Cleave hearing, the
district court construed the motion as a request for relief pursuant to K.S.A. 60-1507 and
summarily dismissed it as untimely.

Phoenix appealed, arguing the district court erred in denying his K.S.A. 60-1507
motion without appointing counsel and holding at least a preliminary hearing on his
claims. On May 5, 2017, a panel of this court affirmed the decision of the district court to
dismiss the claim for relief. State v. Phoenix, No. 115,694, 2017 WL 1826048 (Kan. App.
2017) (unpublished opinion). Specifically, the panel made a finding that Phoenix's
motion was untimely filed and held that manifest injustice did not exist to justify the
untimely filing. 2017 WL 1826048, at *5.

On October 12, 2017, the Supreme Court granted Phoenix's petition for review.

On July 6, 2018, the Kansas Supreme Court issued its decision in White. In that
case, the Supreme Court held that the 2016 amendments to K.S.A. 60-1507(f)—which
limit the scope of the court's manifest injustice inquiry—were not retroactive. In light of
its decision in White, the Kansas Supreme Court summarily vacated the order of
dismissal in Phoenix's case and remanded it for us to reconsider Phoenix's claim using the
more broad preamendment manifest injustice inquiry set forth in Vontress v. State, 299
Kan. 607, Syl. ¶ 8, 325 P.3d 1114 (2014).




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ANALYSIS

A defendant has one year from when a conviction becomes final to file a habeas
corpus motion. K.S.A. 60-1507(f)(1). Phoenix was sentenced on October 21, 2009. He
did not file an appeal; thus, his conviction became final on November 4, 2009. This
means Phoenix had until November 4, 2010, to file a habeas corpus motion. But Phoenix
did not file his motion requesting an evidentiary hearing on the issue of ineffective
assistance of trial counsel until March 26, 2015, over four years after the deadline.

Notably, the one-year time limitation for bringing an action may be extended by
the district court to prevent manifest injustice. K.S.A. 60-1507(f)(2). But Phoenix did not
acknowledge the untimely nature of his filing or make any claim of manifest injustice in
the pro se pleading he filed with the district court, even though the State asked the district
court to deny Phoenix's motion for relief based on its untimeliness. And the district court
ultimately dismissed the motion, in part, based on Phoenix's failure to file it before the
November 4, 2010 deadline. Not surprisingly, the district court did not discuss the issue
of manifest injustice in its order denying Phoenix relief because Phoenix never raised the
issue in his pleading.

Preservation

Phoenix claims for the first time on appeal that the one-year time limitation for
bringing his ineffective assistance of counsel claim should be extended in this case to
prevent manifest injustice. See K.S.A. 60-1507(f)(2). Generally, issues not raised before
the trial court cannot be raised on appeal. State v. Carter, 305 Kan. 139, 159, 380 P.3d
189 (2016). An appellate court may consider a new argument on appeal only if the newly
asserted theory involves a pure question of law arising on proved or admitted facts that is
finally determinative of the case or if consideration of the new theory is necessary to
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serve the ends of justice or to prevent denial of fundamental rights. State v. Northern, 304
Kan. 860, 864-65, 375 P.3d 363 (2016).

Phoenix does not cite to any of these exceptions to the general rule that a new
legal theory may not be asserted for the first time on appeal. In fact, Phoenix does not
even acknowledge in his appellate brief that he is raising the issue of manifest injustice
for the first time on appeal. Kansas Supreme Court Rule 6.02(a)(5) (2019 Kan. S. Ct. R.
34) requires an appellant to explain why an issue not raised below should be considered
for the first time on appeal. Litigants who fail to comply with this rule risk a ruling that
the issue is improperly briefed, and the issue will be considered waived or abandoned.
State v. Williams, 298 Kan. 1075, 1085, 319 P.3d 528 (2014); see State v. Godfrey, 301
Kan. 1041, 1044, 350 P.3d 1068 (2015) (holding that Rule 6.02[a][5] is to be strictly
enforced). Because Phoenix provides no justification for this court to consider counsel's
ineffectiveness for the first time on appeal, we decline to consider the issue.

Manifest injustice

But even if Phoenix had preserved the issue, he is not entitled to relief because he
fails to establish that the one-year time limit for bringing a claim of ineffective assistance
of counsel must be extended in order to prevent manifest injustice in this case.

Relevant here, the definition of manifest injustice has changed over the course of
the last few years. In 2014, the Kansas Supreme Court held that manifest injustice must
be determined by considering whether: (1) the movant provides persuasive reasons or
circumstances that prevented him or her from filing the K.S.A. 60-1507 motion within
the time limitation, (2) the merits of the movant's claims raise substantial issues of law or
fact deserving the district court's consideration, and (3) the movant sets forth a colorable
claim of actual innocence. Vontress, 299 Kan. 607, Syl. ¶ 8.

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In 2016, the Legislature amended the habeas statute, codifying the first and third
factors set out by the Vontress court while removing the second factor from
consideration. L. 2016, ch. 58, § 2, see K.S.A. 2018 Supp. 60-1507(f)(2)(A). Therefore,
manifest injustice, as defined by the amended statute, now requires the court to only
consider: (1) "why the prisoner failed to file the motion within the one-year time
limitation or [2] whether the prisoner makes a colorable claim of actual innocence."
K.S.A. 2018 Supp. 60-1507(f)(2)(A).

In White, the Kansas Supreme Court held that the 2016 amendments to K.S.A. 60-
1507 do not apply to motions filed before July 1, 2016. 308 Kan. 491, Syl. ¶ 1. In this
case, Phoenix filed his habeas motion before July 1, 2016. Under the holding in White
then, we must consider all three Vontress factors to determine whether manifest injustice
warrants an extension of the one-year time limitation for filing the habeas petition in this
case.

With regard to the first and third factors, Phoenix failed to provide a reason for his
late filing and did not make a claim of actual innocence. Thus, the only issue remaining
for this court to address is whether the merits of Phoenix's claims raise substantial issues
of law or fact deserving the district court's consideration. See Vontress, 299 Kan. 607,
Syl. ¶ 8.

To that end, Phoenix asserts in his appellate brief that the merits of his ineffective
assistance of counsel claims raise a substantial issue deserving of the court's
consideration and therefore warrants an extension of time to file his habeas petition. To
prevail on a claim of ineffective assistance of counsel, a movant must establish (1)
counsel's performance was deficient under the totality of the circumstances and (2)
prejudice, i.e., a reasonable probability that but for counsel's deficient performance, the
outcome of the proceeding would have been different. See State v. Sprague, 303 Kan.
418, 426, 362 P.3d 828 (2015).
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Deficient performance

Phoenix claims trial counsel's performance was deficient based on counsel's
failure to file a motion claiming that Phoenix's arrest was illegal and, in turn, to file a
motion to suppress as fruit of the poisonous tree the three inculpatory statements he made
while in custody after his illegal arrest. In support of this claim, Phoenix sets forth the
following facts:

"[O]n October 24, 2007, Kansas City, Kansas Police Officer Jason Pittman arrived at Mr.
Phoenix's residence and knocked on the door, which Mr. Phoenix answered by opening.
Mr. Phoenix then alleges Officer Pittman asked 'do you know where I can find (Jershawn
Phoenix)?' at which point Mr. Phoenix attempted to close the door. However, Officer
Pittman prevented Mr. Phoenix from shutting his front door by placing his foot in the
doorway, and then forced his way into Mr. Phoenix's home."

Officer Pittman's testimony at the Jackson v. Denno hearing is consistent with
Phoenix's rendition of the relevant facts:

"Q: [A]fter you spoke to all the witnesses, you did make attempts to take the defendant
into custody?
"A: I did.
"Q: Where did that take place?
"A: At his residence
"Q: And where was that?
"A: At [address omitted].
"Q: How did you make contact with Mr. Phoenix?
"A: I knocked on the door.
"Q: And what happened when you knocked on the door?
"A: He opened it.
"Q: What happened when he opened the door?
"A: He started to shut it and I stuck my foot in the door.
"Q: Defendant started to close the door?
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"A: Yeah.
"Q: And after you stuck your foot in the door, up until that point, had either you or the
defendant said anything to one another?
"A: No.
"Q: What happened after you stuck your foot in the door?
"A: I handcuffed him.
"Q: Did you handcuff him inside the residence or outside the residence?
"A: We were inside the residence[,] like right in the doorway."

Phoenix claims that Officer Pittman's actions in crossing the threshold of the
doorway into his home to effectuate his arrest was accomplished without the existence of
exigent circumstances and therefore violated his constitutional right to be free from
unreasonable seizures. Phoenix then claims his trial counsel's performance was deficient
in failing to file a motion to suppress subsequent statements based on the illegal arrest.

Applying United States Supreme Court precedent on exigent circumstances,
however, we are not persuaded the arrest in this case was illegal. Courts generally
recognize four types of exigent circumstances that may obviate the warrant requirement
in a case such as this: (1) preventing harm to law enforcement officers or others by
capturing a dangerous suspect, see Warden v. Hayden, 387 U.S. 294, 298-99, 87 S. Ct.
1642, 18 L. Ed. 2d 782 (1967); (2) securing evidence in the face of its imminent loss, see
Kentucky v. King, 563 U.S. 452, 455, 131 S. Ct. 1849, 179 L. Ed. 2d 865 (2011); (3) hot
pursuit of a fleeing suspect, see United States v. Santana, 427 U.S. 38, 42-43, 96 S. Ct.
2406, 49 L. Ed. 2d 300 (1976); and (4) thwarting escape of a suspect, see Welsh v.
Wisconsin, 466 U.S. 740, 759, 104 S. Ct. 2091, 80 L. Ed. 2d 732 (1984) (White, J.,
dissenting).

The facts presented here are analogous to those presented in Santana. In Santana,
an undercover narcotics officer arranged to buy heroin from Patricia McCafferty and
waited while she obtained the drugs from "Mom Santana." McCafferty returned with the
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heroin and was arrested. Moments later, officers observed Santana standing in the
doorway of her home, holding a bag which contained packets of heroin. As the officers
approached the house and identified themselves, Santana retreated into her vestibule. The
police followed her into the house and arrested her. Santana was subsequently convicted
for possession of heroin with intent to distribute. In affirming Santana's conviction, the
Court first held that she had no reasonable expectation of privacy while standing in her
doorway. 427 U.S. at 42. And, since the officers had probable cause to believe that she
had committed a felony, there was no Fourth Amendment violation when they proceeded
to arrest her without a warrant because the officers were in "hot pursuit" of an individual
they had probable cause to believe had committed a crime. 427 U.S. at 42-43. The Court
specifically noted that Santana's retreat into her house could not thwart an otherwise
proper arrest:

"The fact that the pursuit here ended almost as soon as it began did not render it any the
less a 'hot pursuit' sufficient to justify the warrantless entry into Santana's house. Once
Santana saw the police, there was likewise a realistic expectation that any delay would
result in destruction of evidence." 427 U.S. at 43.

Having found Phoenix's arrest was lawful, we necessarily find no merit to
Phoenix's claim that trial counsel's performance was deficient for failing to file a motion
to suppress based on an unlawful arrest.

Prejudice

Even if Phoenix had established deficient performance, he has failed to show the
prejudice required to prevail on an ineffective assistance of counsel claim. When the
defendant pleads guilty, the prejudice that must be shown is that but for counsel's errors,
there was a reasonable probability the defendant would not have pled guilty and would
have insisted on going to trial. State v. Kelly, 298 Kan. 965, 969-70, 318 P.3d 987 (2014).

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To support his claim of prejudice, Phoenix alleges the following in his appellate
brief:

"Had these statements, been excluded as evidence, Mr. Phoenix may have taken his case
to trial, in which he could have won acquittal. However, the inclusion of his three
statements into evidence likely changed the calculus of his decision making, dissuading
him from taking his case to trial, and foregoing his constitutional right to a fair trial."
(Emphasis added.)

We find Phoenix's conclusory statement falls short of establishing a reasonable
probability that he would not have pled guilty and would have insisted on going to trial.
This is especially true in reviewing the entire record. The evidence in the case consisted
of detailed allegations by the victim and corroboration by a friend of the victim who
heard Phoenix apologize to the victim immediately after the abuse. Although Phoenix
makes much of the fact that he provided a formal statement to the police during an
interview after being Mirandized, he fails to acknowledge that he did not confess to the
crimes with which he was charged during that interview. Phoenix has failed to establish
that suppression of the "nonconfession" and the other two statements—one in which he
stated he knew why he was being arrested and the other a telephone call from the jail in
which the topic discussed is unknown—would have triggered a reasonable probability
that he would not have pled guilty and would have insisted on going to trial. It is an
appellant's burden to designate a record affirmatively showing prejudice. State v. Kettler,
299 Kan. 448, 465, 325 P.3d 1075 (2014). Phoenix has failed to do so here.

In sum, Phoenix has failed to establish that the merits of his claims of ineffective
assistance of counsel raise a substantial issue deserving of the court's consideration,
which is an issue we consider in determining manifest injustice under the second
Vontress factor. We already have determined that Phoenix failed to provide a reason for
his late filing or to make a claim of actual innocence, which are issues we consider in
determining manifest injustice under the first and third Vontress factors. Considering the
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totality of the circumstances related to each of the three Vontress factors, we find Phoenix
has failed to establish that manifest injustice warrants an extension of time to file his
habeas corpus petition.

Affirmed.