Sumpter v. State

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NOT DESIGNATED FOR PUBLICATION

No. 117,732


IN THE COURT OF APPEALS OF THE STATE OF KANSAS

TIMOTHY SUMPTER,
Appellant,

v.

STATE OF KANSAS,
Appellee.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; JEFFREY SYRIOS, judge. Opinion filed January 18, 2019.
Affirmed.

Kelly H. Foos, Katie Gates Calderon and Ruth Anne French-Hodson, of Shook, Hardy & Bacon
L.L.P., of Kansas City, Missouri, for appellant.

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

Before ARNOLD-BURGER, C.J., ATCHESON, J., and LORI BOLTON FLEMING, District
Judge, assigned.

ATCHESON, J.: In 2012, a Sedgwick County District Court jury convicted Timothy
Sumpter of seven crimes arising from four incidents in which he sexually assaulted
different women. The State charged Sumpter in three cases that were consolidated for
trial. The jury found Sumpter not guilty of one felony, and some of the convictions were
for less serious crimes than the State had charged. After this court affirmed the verdicts
and sentences on direct appeal, Sumpter, with the aid of new lawyers, filed a habeas
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corpus motion contending he received constitutionally deficient legal representation and
asking that the convictions be reversed. See State v. Sumpter, No. 108,364, 2013 WL
6164520 (Kan. App. 2013) (unpublished opinion). The district court held a
nonevidentiary hearing on the motion with the prosecutor and Sumpter's new lawyers and
later issued a detailed written ruling denying Sumpter any relief. Sumpter has appealed
that ruling. We find Sumpter has failed to show a constitutional injury depriving him of a
fundamentally fair adjudication of the charges against him, meaning he has not persuaded
us that absent the errors he alleges there is a reasonable probability the outcome would
have been different. We, therefore, affirm the district court.

Given the issues Sumpter has raised, we dispense with an extended opening
narrative of the trial evidence and procedural history in favor of focused recitations tied
to the particular points. The parties know the record well. The four incidents resulting in
charges against Sumpter occurred between September 2010 and April 2011, so the
criminal code in effect then applies.[1] We turn to the general legal principles governing
habeas corpus motions under K.S.A. 60-1507 and then consider the issues Sumpter has
raised.

[1]The Legislature approved a recodification of the Kansas Criminal Code in
2010. The new code didn't go into effect until July 1, 2011.

Guiding Legal Principles

To prevail on a 60-1507 motion, a convicted defendant must show both that his or
her legal representation fell below the objective standard of reasonable competence
guaranteed by the right to counsel in the Sixth Amendment to the United States
Constitution and that absent the substandard lawyering there probably would have been a
different outcome in the criminal case. Strickland v. Washington, 466 U.S. 668, 687-88,
694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); Sola-Morales v. State, 300 Kan. 875, 882,
335 P.3d 1162 (2014); see Chamberlain v. State, 236 Kan. 650, Syl. ¶¶ 3, 4, 694 P.2d 468
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(1985) (adopting and stating Strickland test for ineffective assistance). A reasonable
probability of a different outcome "undermine[s] confidence" in the result and marks the
criminal proceeding as fundamentally unfair. See Strickland, 466 U.S. at 694. The
movant, then, must prove both constitutionally inadequate representation and sufficient
prejudice attributable to that representation to materially question the resulting
convictions.

As the United States Supreme Court and the Kansas Supreme Court have stressed,
review of the representation should be deferential and hindsight criticism tempered lest
the evaluation of a lawyer's performance be unduly colored by lack of success
notwithstanding demonstrable competence. See Strickland, 466 U.S. at 689-90; Holmes
v. State, 292 Kan. 271, 275, 252 P.3d 573 (2011). Rarely should a lawyer's representation
be considered substandard when he or she investigates the client's circumstances and then
makes a deliberate strategic choice among arguably suitable options. Strickland, 466 U.S.
at 690-91. Whether a lawyer had made reasoned strategic decisions bears on the
competence component of the Strickland test.

Regardless of the inadequacy of legal representation, a 60-1507 motion fails if the
movant cannot establish substantial prejudice. And the district court properly may deny a
motion that falters on the prejudice component of the Strickland test without assessing
the sufficiency of the representation. Strickland, 466 U.S. at 697 ("If it is easier to dispose
of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect
will often be so, that course should be followed."); see Edgar v. State, 294 Kan. 828, 843-
44, 283 P.3d 152 (2012); Oliver v. State, No. 106,532, 2013 WL 2395273, at *5 (Kan.
App. 2013) (unpublished opinion). In other words, even assuming a criminal defendant's
legal representation fell below the Sixth Amendment standard, he or she is not entitled to
habeas corpus relief if the result would have been no different with competent counsel.

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Sumpter has challenged the constitutional adequacy of both his trial lawyer and
the lawyer who handled the direct appeal. The Strickland test also guides review of an
appellate lawyer's representation of a defendant in a criminal case. See Miller v. State,
298 Kan. 921, 929-30, 318 P.3d 155 (2014) (applying Strickland test to performance of
lawyer handling direct appeal).

A district court has three procedural options in considering a 60-1507 motion. The
district court may summarily deny the motion if the claims in the motion and the record
in the underlying criminal case conclusively show the movant is entitled to no relief. Or
the district court may conduct a preliminary hearing with lawyers for the State and the
movant to determine if a full evidentiary hearing is warranted. Finally, the district court
may hold a full evidentiary hearing. See Sola-Morales, 300 Kan. at 881. Absent an
evidentiary hearing, the district court must credit the factual allegations in the 60-1507
motion unless they are categorically rebutted in the record of the criminal case. Where, as
here, the district court limits a preliminary hearing to the argument of counsel before
denying the motion, we exercise unlimited review of the ruling on appeal. Grossman v.
State, 300 Kan. 1058, 1061, 337 P.3d 687 (2014); Sola-Morales, 300 Kan. at 881. The
district court has received no new evidence, and we can review the motion and the
underlying record equally well.

With those principles in mind, we take up the points Sumpter has presented on
appeal from the district court's denial of his 60-1507 motion.

Aggravated Kidnapping Conviction

Sumpter contends the State failed to produce sufficient evidence to support the
jury's verdict for the aggravated kidnapping of J.B.—the most serious charge on which he
was convicted. Sumpter faults his trial lawyer for misunderstanding the fit between the
elements of aggravated kidnapping and the evidence against him and fumbling the issue
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in the district court. He also faults the lawyer handling the appeal for not raising
sufficiency of the evidence at all.

Because the district court did not hold an evidentiary hearing, we have no insight
into what strategic decisions those lawyers may have made in assessing potential lines of
attack on that charge at the trial level and on the resulting conviction on appeal. As a
practical matter, evidence about those professional judgments commonly must be
developed in an evidentiary hearing on the 60-1507 motion at which the lawyer produces
his or her work file and testifies about why he or she handled the criminal case in a
particular manner. See State v. Hargrove, 48 Kan. App. 2d 522, 552, 293 P.3d 787
(2013); Johnson v. State, No. 109,169, 2014 WL 1362929, at *5 (Kan. App. 2014)
(unpublished opinion); Oliver, 2013 WL 2395273, at *5.[2]

[2]In criminal cases, defense lawyers typically need not explain why they
represented their clients as they did. If a defendant requests a new trial based on the
ineffectiveness of his or her trial lawyer or asserts ineffectiveness as a point on direct
appeal, the district court may—on its own or at the direction of an appellate court—hold
what's called a Van Cleave hearing to explore the claim. See State v. Van Cleave, 239
Kan. 117, Syl. ¶ 2, 716 P.2d 580 (1986). A Van Cleave hearing functionally replicates an
evidentiary hearing on a 60-1507 motion, except that it is held as part of the direct
criminal case rather than in a collateral proceeding. A district court could rely on the
evidentiary record from a Van Cleave hearing to summarily deny a 60-1507 motion
questioning purported strategic decisions of the trial lawyer. Usually, however,
ineffectiveness claims will be deferred to 60-1507 proceedings, since they become moot
if a defendant raises some other issue in the direct criminal case requiring a new trial. So
the record in most criminal cases lacks evidence about the defense lawyer's reasons for
representing the defendant as he or she did. This is such a case.

In rare situations, a reviewing court can say that a lawyer's action or inaction could
not have been the product of any reasoned strategic decision because the effect is so
patently detrimental to the client. See Hargrove, 48 Kan. App. 2d at 551 ("No sound
strategy could warrant a defendant assuming a heavier burden of proof than required
under the law in establishing a defense . . . . [an] error incontestably devoid of strategic
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worth."). Sumpter suggests the record here establishes that sort of error with respect to
his conviction for aggravated kidnapping.

But the quality of the lawyers' representation becomes irrelevant if Sumpter cannot
also show prejudice. If the trial evidence legally supports the jury's verdict and, thus, the
conviction, his argument founders on that part of the Strickland test. We engage that
analysis and conclude the State presented sufficient evidence to prove the aggravated
kidnapping charge. To assess sufficiency we review the evidence in a light most
favorable to the State as the prevailing party and ask whether reasonable jurors could
return a guilty verdict based on that evidence. State v. Butler, 307 Kan. 831, 844-45, 416
P.3d 116 (2018); State v. McBroom, 299 Kan. 731, 754, 325 P.3d 1174 (2014). Sumpter
does not contend his trial lawyer should have presented more or different evidence on the
charge.

In January 2011, Sumpter accosted J.B., a young woman, about 1 a.m. as she
walked to her car in a parking lot in Old Town, an entertainment district in downtown
Wichita. When they got to J.B.'s car, he forced his way in, grabbed J.B., and attempted to
sexually assault her. Sumpter had his knee across J.B.'s throat as he tried to touch her
vagina. She briefly lost consciousness. When she regained her senses, Sumpter was
masturbating. He forced J.B. to touch his penis. During the attack, Sumpter took J.B.'s car
keys from her as she attempted to fight him off and threw them out the window.

Part way through the attack, J.B. was able to force Sumpter out of the car and to
lock the doors. Sumpter then retrieved the keys and displayed the keys in an effort to get
J.B. to open the door. She did. Sumpter forced his way back in and resumed his assault.
Another car fortuitously pulled up. Sumpter got out of J.B.'s car. He spoke briefly to the
driver of the other car. J.B. drove away; she immediately contacted the police. Police
investigators later identified and interviewed the driver of the other car. The driver
described Sumpter jumping out of the car with his belt unbuckled as J.B. shouted, "He
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tried to rape me." As J.B. drove off, Sumpter told the man, "She's lying . . . . That's my
girl."

J.B. acknowledged she had been drinking that night. There were minor variations
in the accounts of the incident she gave police investigators, testified to at a preliminary
hearing, and then described for the jurors during the trial.

The State charged Sumpter with aggravated kidnapping, attempted rape, and
aggravated sexual battery. The jury convicted him of all three crimes.

For the aggravated kidnapping charge, the State had to prove Sumpter
"confin[ed]" J.B. by force "to facilitate" his intent to rape her and she suffered bodily
harm as a result. See K.S.A. 21-3420; K.S.A. 21-3421. Under the former code, the
relevant elements of kidnapping were: The "taking or confining of a person . . . by
force . . . with the intent to hold such person . . . to facilitate flight or the commission of
any crime." K.S.A. 21-3420. The infliction of "bodily harm" on the victim elevated the
crime to aggravated kidnapping. K.S.A. 21-3421. For purposes of the 60-1507 motion,
Sumpter doesn't dispute the evidence of the attempted rape or that J.B. was injured. He
focuses on the element of confinement.

In State v. Buggs, 219 Kan. 203, 215, 547 P.2d 720 (1976), the Kansas Supreme
Court held that kidnapping requires movement or confinement of the victim that is more
than "slight and 'merely incidental' to the commission of an underlying . . . crime." The
movement or confinement constituting facilitation required for kidnapping entails some
greater intrusion upon the victim's freedom than does the underlying crime and has some
discernible independence from the conduct necessary to carry out that crime. 219 Kan. at
216. The court identified several criteria differentiating movement or confinement
sufficient to support a kidnapping conviction from that legally considered no more than
an intrinsic part of another crime. The movement or confinement:
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"(a) Must not be slight, inconsequential and merely incidental to the other crime;

"(b) Must not be of the kind inherent in the nature of the other crime; and

"(c) Must have some significance independent of the other crime in that it makes
the other crime substantially easier of commission or substantially lessens the risk of
detection." 219 Kan. at 216.

The court characterized the considerations as illustrative rather than exhaustive
and pointed out they "may be subject to some qualification when actual cases arise." 219
Kan. at 216. Kansas courts continue to use the Buggs standards to assess evidence in
kidnapping and aggravated kidnapping cases bearing on the element of movement or
confinement. See State v. Curreri, 42 Kan. App. 2d 460, 462-65, 213 P.3d 1084 (2009);
State v. Brown, No. 115,613, 2017 WL 5015486, at *2-5 (Kan. App. 2017) (unpublished
opinion); State v. Harris, No. 113,879, 2017 WL 1035343, at *8-9 (Kan. App. 2017)
(unpublished opinion); PIK Crim. 4th 54.210, Comment. The Buggs court offered three
paired hypothetical examples—two involving robberies and one involving rape—to
illustrate what would and would not support a kidnapping charge. They described
movement of the victims or movement coupled with confinement and aren't especially
apt here.

The principle recognized in Buggs theoretically avoids kidnapping convictions for
limited movement or confinement of a victim integral to the commission of another
crime. It may be thought of as a particularized application of the rule prohibiting
multiplicitous convictions for conduct amounting to a single crime. See State v. Weber,
297 Kan. 805, 808, 304 P.3d 1262 (2013) (convictions multiplicitous when State
prosecutes single crime as two or more offenses exposing defendant to pyramiding
punishments for one wrong); State v. McKessor, 246 Kan. 1, 10-11, 785 P.2d 1332
(1990) (recognizing Buggs standards directed at multiplicity problem). The Buggs court
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effectively laid out a totality-of-the-circumstances standard that, unlike a bright-line rule,
creates a fuzzy border where close cases turn on seemingly minor differences. It also
diminishes any given case as precedent for a somewhat similar, though not entirely
analogous, set of circumstances.

Here, Sumpter confined J.B. in the midst of the criminal episode when she forced
him out of her car and he retrieved her keys that he had earlier thrown out the window. At
that point, J.B. was unable to leave. If she tried to get out of the car, Sumpter could easily
seize her. And she couldn't drive the car away, thereby escaping, without the keys.
Sumpter had, thus, effectively trapped J.B. in the enclosed space of the vehicle—a
circumstance he highlighted by displaying the keys to her. Sumpter then used the keys as
part of a ploy to get J.B. to unlock the car to get them back. When she did, he forced his
way in and resumed his assault of her. The confinement was clear, deliberate, and more
than instantaneous. To support a kidnapping or aggravated kidnapping conviction, the
confinement need not be extended. No particular amount of time is required; the fact of
confinement is sufficient. Buggs, 219 Kan. at 214; State v. Ellie, No. 110,454, 2015 WL
2342137, at *6 (Kan. App. 2015) (unpublished opinion).

The standoff between Sumpter and J.B. and, thus, the confinement cannot be
characterized as simply incidental to or inherent in the sexual assault. Sumpter held J.B.
hostage in a specific place and sought to gain access to that place to commit a crime
against her. But that situation could have been the prelude to all sorts of crimes and was
not unique to rape or even sex offenses. Having gotten into the car, Sumpter could have
robbed or severely beaten J.B. The point is Sumpter trapped J.B. in a small, closed place
of limited safety and induced J.B. to compromise that safety in an effort to escape. Her
effort permitted Sumpter entry to the car making the commission of the crime that
followed "substantially easier" than if he had to physically break in to the car. The
circumstances fit within the Buggs test for a confinement sufficiently distinct from the
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underlying crime to be successfully prosecuted as an aggravated kidnapping given J.B.'s
undisputed injuries.

The specific facts here tend to set this conviction apart from more common
confinement scenarios found to be kidnapping. See, e.g., State v. Weigel, 228 Kan. 194,
Syl. ¶ 4, 612 P.2d 636 (1980) (robber herds bank employees into vault and attempts to
lock it); State v. Dunn, 223 Kan. 545, 547, 575 P.2d 530 (1978) (three inmates at state
prison hold two employees hostage in office for five hours while demanding "a car and
free passage" from facility in exchange for their release). But it is no less a kidnapping
because it is unusual. By the same token, however, these circumstances do not lend
themselves to any sweeping conclusion or rule about confinement as an element of
kidnapping. Because the trial evidence was sufficient for the jury's verdict, Sumpter
could have suffered no prejudice from his lawyers' handling of the charge and conviction
either in the district court leading up to and during the trial or on direct appeal in this
court. He has failed to show a basis for relief under K.S.A. 60-1507.

Consolidation of Cases for Trial

Sumpter contends the lawyers representing him in the district court and on appeal
failed to properly contest the consolidation of three cases comprising four separate
incidents for a single trial. He says the unfair prejudice to him of having the jurors hear
about the four sexually based assaults substantially outweighed any judicial efficiency in
trying the cases together. And, he says, his lawyers provided constitutionally substandard
representation in fumbling the issue.

Given the exceedingly broad rules governing the admissibility of sexual
misconduct as other crimes evidence, Sumpter cannot demonstrate undue prejudice in his
consolidated trial. As we explain, had he been tried separately in each case or for each
incident, the other incidents would have been admissible under K.S.A. 2011 Supp. 60-
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455(c) to show his propensity or proclivity to engage in sexually aggressive and unlawful
conduct. In the consolidated case, however, the jurors were instructed they could consider
only the evidence admitted as to a particular charge in determining Sumpter's guilt or
innocence of that charge—theoretically preventing them from relying on the multitude of
incidents to bolster the State's evidence of each incident. See PIK Crim. 4th 68.060.
Ultimately, Sumpter was better off in a consolidated trial than in sequential trials of each
case in which the other incidents would have been admitted as propensity evidence.
Neither outcome, however, could be described as advantageous to Sumpter.

We outline briefly the three separate cases the State filed against Sumpter. The
State charged the attack on J.B. in one case. We have already laid out those charges and a
summary of the attack. When the police questioned Sumpter months later, he initially
said he didn't know J.B. but admitted to being in Old Town at the same time when a
woman attacked him and he defended himself. Sumpter agreed with the detectives that he
might be the person shown in an indistinct surveillance video of J.B.'s car and what
happened there.

At trial, Sumpter offered a confusing story about J.B. spitting on him and then
pulling him into the car and coming on to him sexually. He admitted touching J.B.'s
buttocks and masturbating but denied trying to touch her pubic area.

In a second case, the State charged Sumpter based on two distinct incidents:

• In September 2010, Sumpter met A.C., a 23-year-old woman, at a party, and they
arranged to get together sometime later at a fast food restaurant. From the restaurant,
Sumpter drove them to a nature trail where they walked and talked for a while. Sumpter
then pulled A.C. to the ground, grabbed her buttocks, and masturbated. A.C. convinced
him to stop and left the area. Shortly afterward, Sumpter texted A.C. to explain that a
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nurse told him he had a bad reaction to a prescription medication. A.C. reported the
assault to the police the next day.

When detectives questioned him months later, Sumpter denied knowing A.C. or
having any contact with her. Investigators obtained copies of the text messages between
Sumpter and A.C., and those communications were admitted as evidence in the trial.
During his testimony, Sumpter told the jurors he had gone to the nature trail with A.C.
and had touched her in a sexual manner. He suggested the encounter had been
consensual. The jury found Sumpter not guilty of attempted rape and found him guilty of
misdemeanor sexual battery as a lesser included offense of aggravated sexual battery, a
felony.

• In February 2011, Sumpter called A.P., a 24-year-old woman, who he knew from
her employment at a supermarket where Sumpter regularly shopped. As a store
employee, A.P. occasionally cashed checks for Sumpter. According to A.P., Sumpter
telephoned her in the middle of the night and asked to meet her ostensibly because he was
distraught over the death of a close friend. She declined, saying she had to be at work
early in the morning. When A.P. arrived at the supermarket, Sumpter was already there.
He tried and failed to coax her into leaving with him so they could talk about his friend;
he then followed her into the store. In one of the aisles, Sumpter hugged A.P. and fondled
her buttocks. She protested, and he left. A.P. reported the incident to the police that day.

Sumpter later told detectives he knew A.P. because she cashed checks for him at
the store. He denied grabbing or hugging A.P. At trial, Sumpter admitted he hugged A.P.
and touched her buttocks. The jury convicted Sumpter of misdemeanor sexual battery as
a lesser included offense of a charge of aggravated sexual battery.

In the third case, the State charged Sumpter with the April 2011 kidnapping and
sexual assault of A.E., a 19-year-old woman. A.E. said she and Sumpter separately turned
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up at a loosely organized gathering at a friend of a friend's house. They became separated
from the other partygoers, and Sumpter exposed himself and began to masturbate. A.E.
said when she got angry and tried to leave, Sumpter began crying about his dead father—
the trial evidence showed Sumpter's father had died years earlier. A.E. testified that she
felt sorry for Sumpter. They left the house and drove around in Sumpter's SUV. Sumpter
began talking about killing himself, so A.E. tried to get away. Sumpter grabbed her and
they physically fought.

As a private security guard pulled up to the SUV, Sumpter told A.E. he would take
her back to the party. But after the security guard left, Sumpter drove down a dirt road,
stopped the vehicle, and attacked her. A.E. said Sumpter put his hands down her pants
and grabbed her buttocks as she fought back. A Sedgwick County sheriff's deputy drove
up to the SUV and got out to investigate what was going on. By then, it was about 2:30
a.m. A.E. described what had happened. Sumpter offered that he and A.E. actually had
been in a relationship for over a year. The deputy arrested Sumpter.

At trial, Sumpter admitted trying to have sex with A.E. while they were in the
SUV. He denied masturbating in front of her at the party and trying to grab her buttocks.
The State had charged Sumpter with aggravated sexual battery and kidnapping. The jury
convicted him of aggravated sexual battery and of criminal restraint, a misdemeanor, as a
lesser offense of kidnapping.

The State filed a motion to consolidate the three cases (and, thus, the four
incidents) for trial to a single jury. Sumpter opposed the motion and requested the
incidents involving A.C. and A.P. be severed for separate trials. The district court ordered
consolidation. In his direct appeal, Sumpter challenged the order, arguing the incidents
were not sufficiently similar to be joined for trial under K.S.A. 22-3203. He did not argue
that consolidation was unduly prejudicial. On direct appeal, this court found
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consolidation satisfied the statutory requirements and affirmed the district court's ruling
on that basis. Sumpter, 2013 WL 6164520, at *3-6.[3]
[3]As a member of the panel deciding the direct appeal, I wrote a short
concurrence that deliberately bordered on the delphic but hinted at reservations about
consolidation. Sumpter, 2013 WL 6164520, at *12. I was troubled by the possibility of
undue prejudice to Sumpter in a single trial of all four incidents. But the appellate lawyer
did not brief that issue and at oral argument indicated she hadn't really considered it. So I
confined my review to what the parties presented. See State v. Bell, 258 Kan. 123, 126-
27, 899 P.2d 1000 (1995) (as general rule, court should not consider issue parties have
neither raised nor briefed). The issue has been fully briefed in this proceeding. Based on
that argument and the broad legislative mandate in K.S.A. 2011 Supp. 60-455(d), I am
persuaded Sumpter did not face legally impermissible prejudice in the consolidated trial.

In his 60-1507 motion, Sumpter constitutionalizes the consolidation issue by
arguing that his lawyers in the criminal case failed to competently present undue
prejudice as a compelling ground against a single trial. Without an evidentiary hearing,
we pass on reviewing what strategic considerations, if any, shaped the lawyers'
approaches to consolidation and turn to the second aspect of the Strickland test to explore
whether the outcome might have been different if Sumpter had received a separate trial
on each incident. We, therefore, have to unspool what likely would have happened if
Sumpter had successfully opposed the State's motion to consolidate and compare that
with how the actual trial played out.

As we have explained, in the trial, the district court instructed the jurors that they
should separately consider the evidence on each count or charge and that they should be
"uninfluenced" in deciding Sumpter's guilt on that count or charge by the evidence
bearing on the other charged crimes. See PIK Crim. 4th 68.060. Based on the instruction,
the jurors should have considered each incident separate from the other three. Appellate
courts presume that jurors follow the instructions they are given. State v. Mattox, 305
Kan. 1015, 1027, 390 P.3d 514 (2017). In a backward looking evaluation, a criminal
defendant must point to something in the record suggesting otherwise to make any legal
headway. See State v. Kleypas, 305 Kan. 224, 279, 382 P.3d 373 (2016). Nothing
15

indicates the jurors deviated from that directive in their deliberations. The Kansas
Supreme Court has endorsed an instruction like PIK Crim. 4th 68.080 as an effective tool
for directing jurors on how to consider evidence during their deliberations in cases
involving distinct criminal episodes. See State v. Cruz, 297 Kan. 1048, 1057-58, 307 P.3d
199 (2013).

During the pretrial proceedings on consolidation, Sumpter's lawyer argued that
jurors would be hard pressed to compartmentalize the evidence on each of the four
incidents and to disregard the fairly intuitive implication that the sheer number of
separate allegations tended to reinforce the validity of each one. The recognized dangers
in admitting other crimes evidence include portraying the defendant as a chronic
lawbreaker deserving of punishment for that reason alone or supporting the defendant's
guilt through a pattern of alleged wrongdoing even though the evidence of any one
instance may be weak. See State v. Gunby, 282 Kan. 39, 48-49, 144 P.3d 647 (2006). The
same danger lurks in a single trial of consolidated criminal episodes, notwithstanding a
contrary jury instruction. Despite those genuine concerns, Sumpter has failed to show that
any of those dangers were realized in his trial.

The jurors returned a decidedly mixed set of verdicts. They found Sumpter not
guilty of one especially serious felony, convicted him of lesser offenses on three charges,
and convicted him as charged of four crimes. We hesitate to read too much into those
decisions. They do not, however, indicate a jury in the throes of an irrational passion or
prejudice to convict regardless of the evidence. And the Kansas Supreme Court has
recognized split verdicts may be viewed as consistent with a jury following the
admonition of an instruction based on PIK Crim. 4th 68.060. See Cruz, 297 Kan. at 1058.
In short, the outcome in Sumpter's trial was not obviously infected with unfair prejudice
because the jury considered all four incidents. This court so noted in considering
Sumpter's direct appeal. Sumpter, 2013 WL 6164520, at *6.

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The question posed here, however, is whether Sumpter reasonably could have
expected a different outcome had the district court denied the State's request to
consolidate and ordered a separate trial for each incident. If so, then, Sumpter has
demonstrated the sort of prejudice required under Strickland.

Absent consolidation, the State presumably would have sought to introduce at one
trial the circumstances of the other three episodes as relevant evidence of other crimes or
wrongs under K.S.A. 2011 Supp. 60-455(d), to prove Sumpter's propensity to engage in
sexual misconduct and that he acted on that propensity. See State v. Smith, 299 Kan. 962,
970, 327 P.3d 441 (2014). In pertinent part, K.S.A. 2017 Supp. 60-455(d) states:

"(d) Except as provided in K.S.A. 60-445, and amendments thereto, in a criminal
action in which the defendant is accused of a sex offense . . . evidence of the defendant's
commission of another act or offense of sexual misconduct is admissible, and may be
considered for its bearing on any matter to which it is relevant and probative."

Propensity entails a disposition or proclivity to engage in the defined activity.
Accordingly, to be admitted as propensity evidence under K.S.A. 2017 Supp. 60-455(d),
an instance of conduct need only be sufficiently similar to the charged crime to display a
common sexually based disposition or proclivity. Without belaboring the factual
circumstances, each incident shows a proclivity on Sumpter's part consistent with the
other incidents. So the evidence would fall within the broad rule of admissibility in
K.S.A. 2017 Supp. 60-455(d). For purposes of our analysis, we assume the evidence
would not be admissible under the more restrictive requirements of K.S.A. 2017 Supp.
60-455(b).

Even when a district court finds evidence satisfies the general test for admissibility
in K.S.A. 2017 Supp. 60-455(d), it must then determine that the probative value
outweighs any undue prejudice to the defendant before allowing the jury to hear the
evidence. State v. Bowen, 299 Kan. 339, Syl. ¶ 7, 323 P.3d 853 (2014) (recognizing 60-
17

455[d] requires balancing of probativeness and undue prejudice); State v. Huddleston,
298 Kan. 941, 961-62, 318 P.3d 140 (2014) (noting K.S.A. 60-445, cited in 60-455[d],
permits balancing probativeness against undue prejudice to exclude unfairly prejudicial
evidence). The Kansas Supreme Court has recognized an array of factors that should be
assessed in making the determination as to sexually based propensity evidence:

"'1) how clearly the prior act has been proved; 2) how probative the evidence is of the
material fact it is admitted to prove; 3) how seriously disputed the material fact is; and 4)
whether the government can avail itself of any less prejudicial evidence. When analyzing
the probative dangers, a court considers: 1) how likely it is such evidence will contribute
to an improperly-based jury verdict; 2) the extent to which such evidence will distract the
jury from the central issues of the trial; and 3) how time consuming it will be to prove the
prior conduct. [Citations omitted].' United States v. Benally, 500 F.3d 1085, 1090-91
(10th Cir. 2007)." Bowen, 299 Kan. at 350.

In each of Sumpter's hypothetical separate trials, the key consideration in admitting the
other incidents would be the proof of their factual circumstances and whether the jurors
would be required to spend inordinate time and effort in evaluating disputed evidence
about them, effectively creating mini-trials.

We believe a district court likely would have admitted the incidents and that
decision would have fallen within its wide judicial discretion. State v. Wilson, 295 Kan.
605, Syl. ¶ 1, 289 P.3d 1082 (2012) (district court's weighing of probative value against
undue prejudice reviewed for abuse of judicial discretion). By evaluating the accounts of
each of the incidents and Sumpter's out-of-court statements about them, we can reach
reliable conclusions about their admissibility under 60-455(d). Sumpter's trial testimony
doesn't really factor into that assessment, since admissibility typically would be based on
the State's pretrial request. See K.S.A. 2017 Supp. 60-455(e) (State must disclose
evidence at least 10 days before trial). Identity is not a compelling issue in any of the
incidents. A.C. and J.B. each spent considerable time with her attacker. A.C. produced
18

inculpatory text messages from Sumpter consistent with her account. Sumpter admitted to
police that he was in Old Town when J.B. was assaulted and conceded he might be
depicted in the surveillance video. And Sumpter was arrested with A.E. in his SUV.
Identity isn't an issue with A.P., either. If the incident happened, A.P. wouldn't have been
mistaken about who assaulted her. It happened in the aisle of the supermarket where she
worked. By his own admission, Sumpter knew A.P. casually because he had interacted
with her as a regular customer at the store.

Likewise, Sumpter's out-of-court statements bolster the argument for admissibility.
As we mentioned, Sumpter's denial that he even knew A.C. was undercut by his
contemporaneous text messages with her. Those messages not only confirmed they knew
each other but that Sumpter had done something untoward for which he was apologizing.
The contradiction creates strong circumstantial evidence of a guilty mind and, thus,
culpability of conduct roughly consistent with A.C.'s account. See United States v.
Holbert, 578 F.2d 128, 129 (5th Cir. 1978) ("long line of authority . . . recognizes that
false exculpatory statements may be used not only to impeach, but also as substantive
evidence tending to prove guilt"); United States v. Lepore, No. 1:15-cr-00367-WSD,
2016 WL 4975237, at *2 (N.D. Ga. 2016) (unpublished opinion) ("False exculpatory
statements may be used as evidence of consciousness of guilt."). There was similar, if
less compelling, evidence as to J.B. Sumpter told the driver who pulled up near J.B.'s car
that J.B. was his girlfriend—a patent falsehood. Months later, Sumpter gave an evolving
version of his conduct that began with an admission he was in Old Town about the time
J.B. was attacked but didn't know her. He then offered a claim that some woman
assaulted him for no apparent reason, and finally he allowed that he might be the man in
the surveillance video. That sort of shifting narrative, especially coupled with the driver's
account of Sumpter's explanation during the incident, also points to a guilty mind. The
episode incident involving A.E., where a sheriff's deputy caught Sumpter with her in his
SUV on a secluded road in the middle of the night, prompted a similarly disputed
19

representation—that he and A.E. were in a long-standing relationship. That didn't square
with what the deputy observed or A.E. said.

So the implausibility and inconsistency of Sumpter's statements and explanations
of each of those incidents would support a conclusion favoring the victim's overall
account portraying a sexually motivated assault. The evidence was considerably stronger
than an uncorroborated accusation and a corresponding unimpeached denial. In turn, a
district court could find those incidents admissible as 60-455(d) evidence of propensity.
To be sure, each trial would have been longer because of the propensity evidence. But
that would not be a compelling reason to exclude the evidence, especially since the
additional time likely would have been a couple of days. In the actual trial, the jurors
heard about four days of testimony.

The possible exception to admissibility under 60-455(d) is the incident with A.P.
Basically, A.P. said Sumpter hugged and groped her without consent, and he denied
doing anything of the kind to her. No circumstantial evidence associated with their
interaction lent any particular credibility to either version. So the admissibility of the
episode with A.P. as other crimes evidence in a trial of any of the other incidents might
be questionable. But the other three incidents would have been admissible in a trial of the
episode in which A.P. was the victim. And the incident with A.P. reflects the least
persuasive propensity evidence, since it entailed a brief, though wholly unwelcome and
disquieting, sexual touching in a public place and lacked the violent physical aggression
of the other incidents.

In short, Sumpter would have had to confront largely the same evidence, except
perhaps for the incident involving A.P., in separate trials of the charges arising from the
attacks involving A.C., J.B., and A.E. Given the sweeping rule of admissibility in K.S.A.
2017 Supp. 60-455(d), a district court need not give the jurors a limiting instruction
confining their consideration of the propensity evidence to a narrow purpose or point.
20

State v. Prine, 297 Kan. 460, Syl. ¶ 4, 303 P.3d 662 (2013). The jurors in those
hypothetical separate trials would have been free to consider the other crimes evidence
for virtually any ground bearing on Sumpter's guilt of the charged crimes against the
particular victim. The district court would not have given an instruction comparable to
PIK Crim. 4th 68.060 confining the jurors' consideration of the evidence on a particular
charge to the facts pertaining directly to that charge. As a result, Sumpter would have
been materially disadvantaged in separate trials compared to the consolidated trial he
received.

Sumpter, of course, says the reverse is true and submits he might well have chosen
not to testify in at least some of the separate trials but effectively had to testify in the
consolidated trial and, thus, to speak to all of the allegations against him in front of the
jurors. Sumpter's argument, however, rests on the premise that in each separate trial none
of the other incidents would have been admitted as evidence. But, as we have explained,
the premise is faulty. Sumpter cannot point to actual legal prejudice consistent with the
Strickland test flowing from the consolidated trial as compared to separate trials.

Overlooked Instances of Prosecutorial Error

In his 60-1507 motion, Sumpter contends the lawyer handling the direct appeal
failed to brief instances of prosecutorial error during the trial and the failure amounted to
constitutionally deficient representation. The lawyer did argue on appeal that the
prosecutor made several improper remarks in closing argument impermissibly painting
Sumpter as a liar and, thus, engaged in misconduct warranting a new trial. On direct
appeal, this court found those portions of the closing argument to be fair comment based
on the evidence and free of any error. Sumpter, 2013 WL 6164520, at *11.

We mention that the Supreme Court revamped the standards for assessing claims
of prosecutorial error after Sumpter's trial and direct appeal. See State v. Sherman, 305
21

Kan. 88, 108-09, 378 P.3d 1060 (2016). We suppose, however, that the standards in
effect at the time of Sumpter's trial and appeal should govern our review of this collateral
challenge to his convictions. The Kansas Supreme Court declined to apply Sherman in
cases that were fully briefed on direct appeal when it was decided. See State v.
Netherland, 305 Kan. 167, 180-81, 379 P.3d 1117 (2016). And the issue here is the
constitutional adequacy of Sumpter's legal representation when the earlier standards for
prosecutorial error governed; so it follows the quality of the representation should be
measured against the law as it was then. See Baker v. State, 20 Kan. App. 2d 807, Syl.
¶ 3, 894 P.2d 221 (1995) (criminal defense lawyer typically not considered
constitutionally ineffective for failing to foresee distant or unusual change in law); Mayo
v. Henderson, 13 F.3d 528, 533-34 (2d Cir. 1994) (under Strickland test, "[c]ounsel is not
required to forecast changes in the governing law"). The choice, however, is not
especially significant. Under either the pre-Sherman standards or Sherman itself, the
focus for our purposes rests on sufficiently substantial prejudice to Sumpter to
compromise his right to a fair trial.

Before Sherman, the Kansas courts use a well-recognized, two-step test for
measuring the impropriety of closing arguments in criminal cases:

"'First, the appellate court must decide whether the comments fall outside the wide
latitude afforded a prosecutor in discussing the evidence and the law. Second, if the
prosecutor has exceeded those bounds, the appellate court must determine whether the
improper comments constitute plain error; that is, whether the statements prejudiced the
jury to the extent the defendant was denied a fair trial. State v. McReynolds, 288 Kan.
318, 323, 202 P.3d 658 (2009) (outlining mode of analysis); see State v. King, 288 Kan.
333, 351, 204 P.3d 585 (2009) (noting considerable range permitted advocates, including
prosecutor, in arguing their causes in jury summations).'" State v. Franco, 49 Kan. App.
2d 924, 938, 319 P.3d 551 (2014) (quoting State v. Schreiner, 46 Kan. App. 2d 778, 793-
94, 264 P.3d 1033 [2011], rev. denied 296 Kan. 1135 [2013]).

22

If the argument falls outside what is proper, the courts then look at three factors to
assess the degree of prejudice:

"'(1) whether the misconduct was gross and flagrant; (2) whether the misconduct showed
ill will on the prosecutor's part; and (3) whether the evidence was of such a direct and
overwhelming nature that the misconduct would likely have had little weight in the minds
of jurors. None of these three factors is individually controlling. Moreover, the third
factor may not override the first two factors unless the harmless error tests of both K.S.A.
60-261 [refusal to grant new trial is inconsistent with substantial justice] and Chapman v.
California, 386 U.S. 18, [22-24,] 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967) [conclusion
beyond a reasonable doubt that the error . . . changed the result of the trial], have been
met.' [Citations omitted.]" State v. McReynolds, 288 Kan. 318, 323, 202 P.3d 658 (2009).

We apply that test here with the observation that the first part used to assess error in a
closing argument was carried over in Sherman, while the second part for assessing
prejudice now looks exclusively at the impact of any erroneous argument on the fairness
of the trial without considering prosecutorial ill-will or the flagrancy of the impropriety—
misconduct that may be more directly and effectively remedied in other ways.

Sumpter contends that in closing argument to the jurors, the prosecutor
mischaracterized the content of the security video depicting part of the episode with J.B.
The contention is unavailing. First, although the security video was played for the jurors
during the trial and admitted as an exhibit, it is not part of the record on appeal. We
cannot compare the video to the prosecutor's description and cannot really assess any
purported error. See State v. Kidd, 293 Kan. 591, 601, 265 P.3d 1165 (2011) (party
claiming error has obligation to provide sufficient record for appellate review); Harman
v. State, No. 108,478, 2013 WL 3792407, at *1 (Kan. App.) (unpublished opinion)
("When there are blanks in that record, appellate courts do not fill them in by making
assumptions favoring the party claiming error in the district court."). On its face, the
prosecutor's comment about the video was proper. The prosecutor invited the jurors to
23

review the video during their deliberations. He described part of what was shown (and
what the jurors had already seen during the trial) and explained how it conflicted with
Sumpter's testimony. But he expressed no personal opinion about the veracity of the
video or Sumpter's account. Given what's in front of us, we find no prosecutorial error.

Sumpter next contends the prosecutor inaccurately described a pro se pretrial
motion he filed for a bond reduction. By way of background, the prosecutor used the
motion as a statement against interest to cross-examine Sumpter during the trial. In
closing argument, the prosecutor said the motion was consistent with Sumpter's
testimony that included admissions to facts supporting lesser included offenses while
denying facts that would support the more serious charges. A pro se pleading or
statements a criminal defendant personally makes in court in the course of self-
representation typically are treated as admissions. See State v. Burks, 134 Kan. 607, 608-
09, 7 P.2d 36 (1932); United States v. Thetford, 806 F.3d 442, 447 (8th Cir. 2015).

The prosecutor did appear to misrepresent the motion. In the motion, Sumpter
seems to argue that he and his lawyer concluded he could be found guilty only of
misdemeanors based on the testimony presented at the preliminary hearing and, therefore,
should receive a bond reduction. In the motion, Sumpter neither admitted to committing
misdemeanors nor conceded the accuracy of the preliminary hearing evidence. He simply
argued the State's strongest evidence would prove only misdemeanors. So to the extent
the prosecutor's closing argument to the jury characterized the pretrial motion as some
admission of guilt, it amounted to error. But nothing suggested the prosecutor acted out
of ill-will, and the error wasn't flagrant in the sense the prosecutor built a theme of the
closing argument around the motion. See State v. Judd, No. 112,606, 2016 WL 2942294,
at *8-9 (Kan. App. 2016) (unpublished opinion) (under pre-Sherman standard, prosecutor
committed reversible error in closing argument by repeatedly misstating basic point of
law as singular theme in arguing to jury for conviction on thin circumstantial evidence).
Moreover, the error didn't somehow shift the tide of the case, especially in light of
24

Sumpter's trial testimony. On the witness stand, Sumpter did admit to conduct likely
amounting to comparatively minor crimes against A.C., J.B., and possibly A.E.

The failure of Sumpter's trial and appellate lawyers to raise this point in the direct
criminal case could not have resulted in material prejudice under the Strickland test. The
prosecutor's misstatement about the pretrial motion was not of the magnitude to call into
question the jury's verdicts. So the error cannot warrant relief in a collateral challenge to
those verdicts under K.S.A. 60-1507.

For his final challenge to the prosecutor's closing argument, Sumpter says the
prosecutor misled the jurors about what the State had to prove to convict him of the
attempted rape of J.B. In describing the elements of the attempted crime, the prosecutor
told the jurors Sumpter had to intend to commit rape when he confined J.B. So, the
prosecutor explained, the State did not have to show that Sumpter actually had sex with
J.B.—only that he intended to. That's a misstatement of law, since an intent to have
consensual sex would not be rape. Without an objection, the prosecutor seemed to realize
the problem, corrected himself, and told the jurors the crime required an intent to commit
rape. Arguably, though, the correction wasn't a model of clarity.[4]

[4]This is what the prosecutor said:

"And he [Sumpter] told you what his intent was with [J.B.] He minimizes it and
says well, I didn't go into that car with the intent to have sex with her. But clearly he told
you on the stand, I was going to have sex with her, I thought, I thought she wanted it.
Clearly he intended to have sex. I don't have to prove rape occurred, I don't have to prove
sex occurred, I have to prove he took her—or I'm sorry, he confined her with the intent to
commit sex, commit rape against her. Clearly that was his intent, he told you even
yesterday that's what he intended to do."

We see no prosecutorial error. The prosecutor misspoke, realized as much, and
immediately offered a revised statement of the law to the jurors. Those kinds of slips are
an unavoidable part of the unscripted presentation that is trial practice. The record shows
nothing more. See State v. Jones, 47 Kan. App. 2d 512, 535, 276 P.3d 804 (2012)
25

(Atcheson, J., concurring) (deliberate line of questions lacking factual basis "was not a
slip of the tongue or a single, poorly phrased question that could be excused as the
occasional byproduct of the unscripted give-and-take of trial practice"); State v.
Alexander, No. 114,729, 2016 WL 5344569, at *5-6 (Kan. App. 2016) (unpublished
opinion), rev. denied 306 Kan. 1320 (2017). Sumpter cannot lay a foundation for relief
here. Even if the prosecutor's comment were ambiguous or erroneous, the relevant jury
instruction accurately set forth the elements, including the intent to commit rape, and
tracked with what appeared to be the prosecutor's revision. Given the brevity of the
prosecutor's comment and the clarity of the jury instruction, Sumpter could not have been
materially prejudiced.

Other Challenges Raised in Sumpter's 60-1507 Motion

Sumpter has raised several additional issues in his 60-1507 motion that fail to
warrant relief or further consideration in an evidentiary hearing. Either the record
establishes no factual basis to find for Sumpter or settled law forecloses his claims.

• Sumpter contends his statutory right to a speedy trial was violated because he
was not present to object to continuances his lawyer requested and received from the
district court. At the time, the State had to bring a defendant in custody to trial within 90
days, as provided in K.S.A. 22-3402. Delays attributable to a defendant, such as
continuances to prepare for trial, did not count against the 90-day period. But district
courts could not grant continuances to defense lawyers if their clients objected. State v.
Hines, 269 Kan. 698, 703-04, 7 P.3d 1237 (2000). The Kansas Supreme Court has
recognized that if a defendant is not present when his or her lawyer requests a
continuance (and, thus, cannot object), any resulting delay should be counted in the
statutory speedy trial period. State v. Brownlee, 302 Kan. 491, 507-08, 354 P.3d 525
(2015).

26

Premised on that rule, Sumpter says because he wasn't present when his lawyer
requested and received the continuances, his trial was delayed more than 90 days in
violation of K.S.A. 22-3402. We assume the calculation to be accurate for purposes of
resolving the issue. Neither Sumpter's trial lawyer nor his appellate lawyer asserted a
statutory speedy trial violation. Sumpter contends the omission compromised his Sixth
Amendment right to adequate legal representation. The remedy for a statutory speedy
trial violation requires any conviction be set aside and the underlying charges be
dismissed with prejudice. K.S.A. 22-3402(1). The failure to assert a valid violation would
fall below the standard of care and could not be justified as a strategic culling of potential
issues. Prejudice to the defendant in overlooking or discarding a speedy trial violation
would be manifest.

But Sumpter's claim fails because the Legislature amended K.S.A. 22-3402 while
his case was on direct appeal to eliminate a speedy trial violation based on the
circumstances he now argues. As amended, K.S.A. 2017 Supp. 22-3402 states in relevant
part:

"If a delay is initially attributed to the defendant, but is subsequently charged to the state
for any reason, such delay shall not be considered against the state . . . and shall not be
used as a ground for dismissing a case or for reversing a conviction unless not
considering such delay would result in a violation of the constitutional right to a speedy
trial or there is prosecutorial misconduct related to such delay." K.S.A. 2017 Supp. 22-
3402(g).

That section of the statute precludes counting a continuance originally assessed to a
criminal defendant against the State (and, thus, against the speedy trial time) if a court
later concludes the time was erroneously charged to the defendant in the first place. The
limitation would be applicable here if we assume the continuances should not have been
assessed to Sumpter because he had not authorized or otherwise agreed to them. The
Kansas Supreme Court has held the amendment of K.S.A. 22-3402 adding subsection (g)
27

to be procedural and, thus, applicable to any case on direct appeal when it became
effective. State v. Dupree, 304 Kan. 43, Syl. ¶ 5, 371 P.3d 862 (2016). The court denied
relief to the defendant in Dupree in circumstances legally comparable to those Sumpter
now presents. 304 Kan. at 57. Sumpter cannot demonstrate a violation of his speedy trial
rights under K.S.A. 22-3402. His lawyers, therefore, could not have inadequately
represented him by failing to allege a purported violation.

• Sumpter contends his lawyers in the criminal case inadequately represented him
by failing to challenge the panel of potential jurors summoned at the start of the trial
because the group included no African-Americans. Sumpter is African-American. A
criminal defendant has a Sixth Amendment right to a jury composed of persons both
called for jury duty and then selected to serve in a manner free of racial discrimination,
thus reflecting a fair cross-section of the community. Berghuis v. Smith, 559 U.S. 314,
319, 130 S. Ct. 1382, 176 L. Ed. 2d 249 (2010); Duren v. Missouri, 439 U.S. 357, 359, 99
S. Ct. 664, 58 L. Ed. 2d 579 (1979) (recognizing right as incorporated through the Due
Process Clause of the Fourteenth Amendment and, thus, applicable to state criminal
proceedings). Sumpter did not challenge the composition of the panel of potential jurors
at trial or on direct appeal. Ordinarily, a defendant cannot litigate points in a 60-1507
motion that could have been raised on direct appeal. To do so, a defendant must show
extraordinary circumstances. Those circumstances may include the constitutional
inadequacy of his lawyers in the criminal case. As with the other issues, we have no idea
why Sumpter's trial and appellate lawyers did not pursue this claim.

To advance an underrepresentation claim, Sumpter must present evidence that
African-Americans appear in venires or panels from which juries are selected in numbers
disproportionately below their percentage in the community generally and the reason lies
in their "systematic exclusion . . . in the jury-selection process." See 439 U.S. at 364. In
support of his 60-1507 motion, Sumpter has offered nothing to show that African-
Americans are routinely underrepresented in jury pools in Sedgwick County. His claim
28

sinks on that failure. The absence of African-Americans from the particular jury panel
called for his case is nothing more than a statistical anomaly so far as the record evidence
demonstrates. An aberration in one panel does not and cannot advance an
underrepresentation claim that turns on the systemic exclusion of a recognized group,
such as African-Americans, from jury service.

• As part of his sentence, Sumpter will be required to register as a sex offender
when he gets out of prison and to report as directed under the Kansas Offender
Registration Act, K.S.A. 2017 Supp. 22-4901 et seq. He challenges registration as cruel
and unusual punishment violating the Eighth Amendment to the United States
Constitution. He also submits a jury must make the specific findings requiring
registration consistent with constitutional due process protections. As Sumpter concedes,
the Kansas Supreme Court has rejected the arguments that KORA entails punishment
subject to the Eighth Amendment or violates due process requirements for jury findings.
See State v. Huey, 306 Kan. 1005, 1009-10, 399 P.3d 211 (2017), cert. denied 138 S. Ct.
2673 (2018) (KORA provisions not considered punishment under Eighth Amendment; in
turn, no due process requirement jury find facts supporting registration).

• Sumpter similarly contends lifetime postrelease supervision imposed on him as
part of his sentence amounts to constitutionally cruel and unusual punishment. Under this
condition, Sumpter will have to report to a parole officer after his release from prison and
will be subject to restrictions on his travel, searches of his residence, and other limitations
on his liberty. Those limitations are different from (and in addition to) the reporting
requirements under KORA.

Again, Sumpter acknowledges the Kansas Supreme Court has turned aside
constitutional challenges to lifetime postrelease supervision for comparable convicted sex
offenders. See State v. Williams, 298 Kan. 1075, 1089-90, 319 P.3d 528 (2014) (lifetime
postrelease supervision not cruel and unusual punishment); State v. Mossman, 294 Kan.
29

901, 921, 930, 281 P.3d 153 (2012). Sumpter also suggests the requirement violates the
Equal Protection Clause of the Fourteenth Amendment, but he neither clearly articulates
the disadvantaged class to which he purportedly belongs nor explains why such a
classification would be constitutionally impermissible. Our court has rejected equal
protections attacks on lifetime postrelease supervision. State v. Dies, No. 103,817, 2011
WL 3891844, at *4-5 (Kan. App. 2011) (unpublished opinion) (holding that lifetime
postrelease supervision for adult sex offenders does not violate equal protection).

• As he did on direct appeal, Sumpter contends the district court improperly
considered his criminal history in determining his sentence. He argues that the district
court's use of his past convictions in determining an appropriate sentence impairs his
constitutional rights because the fact of those convictions was not proved beyond a
reasonable doubt to the jury. He relies on the United States Supreme Court's decision in
Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), to
support that proposition. We denied relief on this issue on direct appeal. Sumpter, 2013
WL 6164520, at *11. We do so again now.

The Kansas Supreme Court has consistently rejected that argument and has found
the State's current sentencing regimen conforms to the Sixth and Fourteenth Amendments
with respect to the use of a defendant's past convictions in determining a presumptive
statutory punishment. State v. Fischer, 288 Kan. 470, Syl. ¶ 4, 203 P.3d 1269 (2009);
State v. Ivory, 273 Kan. 44, 46-48, 41 P.3d 781 (2002). We, therefore, decline Sumpter's
invitation to rule otherwise, especially in light of the court's continuing affirmation of
Ivory. State v. Pribble, 304 Kan. 824, 838-39, 375 P.3d 966 (2016); State v. Hall, 298
Kan. 978, 991, 319 P.3d 506 (2014).


30

Conclusion

We have endeavored to meticulously review the numerous points Sumpter has
raised on appeal from the denial of his motion for relief under K.S.A. 60-1507. In doing
so, we have examined the underlying criminal prosecution, including the trial evidence
and the briefing in the direct appeal. We find the district court properly denied the
motion. Given the issues and the record, the district court did not need to hold an
evidentiary hearing.

Affirmed.