Taylor v. State

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NOT DESIGNATED FOR PUBLICATION

No. 119,251

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

JUSTIN CHARLES TAYLOR,
Appellant,

v.

STATE OF KANSAS,
Appellee.


MEMORANDUM OPINION

Appeal from Riley District Court; JOHN F. BOSCH, judge. Opinion filed March 1, 2019. Affirmed.

Gerald E. Wells, of Jerry Wells Attorney-at-Law, of Lawrence, for appellant.

Barry K. Disney, senior deputy county attorney, Barry R. Wilkerson, county attorney, and Derek
Schmidt, attorney general, for appellee.

Before GARDNER, P.J., HILL and SCHROEDER, JJ.

PER CURIAM: Justin Charles Taylor entered a no contest plea to one count of
voluntary manslaughter and one count of rape. More than two years after he was
sentenced, Taylor filed a K.S.A. 60-1507 motion alleging ineffective assistance of
counsel. The district court summarily denied that motion as untimely, finding Taylor had
not shown manifest injustice as is necessary to extend the one-year filing limitation.
Taylor appeals, arguing that he showed manifest injustice because his attorney had failed
to meaningfully consider his mental illness before allowing him to enter a plea, which
was not knowingly or understandably made. Finding no error, we affirm.

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Factual and procedural background

Taylor was first charged with second-degree murder. The district court appointed
Larry McRell to represent Taylor in that criminal case. Several months later, McRell filed
a notice of intent to rely on the defense of mental disease or defect. McRell then moved
to suppress Taylor's statements to police, arguing that they had been made while Taylor
was "mentally ill." McRell consulted with Dr. David Mouille, a licensed psychologist.
Mouille interviewed Taylor and his parents, reviewed documents, and reported his
synopsis of Taylor's mental health issues.

While Taylor's murder charge was pending, The State charged Taylor with another
crime—a rape. Taylor entered into a plea agreement in which the State agreed to reduce
the second-degree murder charge to voluntary manslaughter and to consolidate the
homicide and rape cases. Taylor pleaded no contest to both crimes.

Before sentencing, Taylor filed a long sentencing memorandum which included
his letter apologizing for and acknowledging the wrongness of his "inexcusable" actions.
The district court sentenced Taylor to the standard presumptive prison term of 155
months for the rape and 59 months for the homicide. Taylor did not file a direct appeal.

But more than two years after he was sentenced, Taylor filed the K.S.A. 60-1507
motion which underlies this appeal. That motion claims that his trial counsel was
ineffective. Taylor claimed that his counsel "refused [him] a valid defense" because he
knew Taylor had made statements about not knowing of the actual offense, memory loss,
illicit drug use, and altered state of mind. Taylor supported these claims by alleging that
his attorney knew he had multiple mental disorders but had not consulted with a mental
health expert. Taylor then argued that he should be allowed to withdraw his plea because
his counsel was ineffective.

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The district court summarily denied Taylor's K.S.A. 60-1507 motion and
combined motion to withdraw his plea, relying on the factors listed in Vontress v. State,
299 Kan. 607, 325 P.3d 1114 (2014), and the statutory language in K.S.A. 2014 Supp.
22-3210. It found that Taylor had neither shown manifest injustice, as is necessary to
avoid the one-year time limitation to file his 60-1507 motion, nor shown good cause as is
necessary to withdraw his plea. Taylor timely appealed.

Did the district court err in summarily dismissing Taylor's K.S.A. 60-1507 motion?

On appeal, the parties address Taylor's motion as a single motion under K.S.A. 60-
1507 alleging ineffective assistance of counsel. Taylor's brief on appeal argues only that
he established manifest injustice to excuse the untimeliness of his K.S.A. 60-1507
motion. We thus review Taylor's motion as a K.S.A. 60-1507 motion but we recognize
that his plea motion is, as Taylor explains, "inexorably intertwined" with this motion.

Standard of review

When the district court summarily denies a K.S.A. 60-1507 motion, we conduct a
de novo review to determine whether the motion, files, and records of the case
conclusively establish that the movant is not entitled to relief. Sola-Morales v. State, 300
Kan. 875, 881, 335 P.3d 1162 (2014).

To avoid the summary denial of a motion brought under K.S.A. 60-1507, a
movant bears the burden of establishing entitlement to an evidentiary hearing. To meet
this burden, Taylor's contentions must be more than conclusory. To do so, he must set
forth an evidentiary basis to support those contentions, or the evidentiary basis must be
evident from the record. If Taylor makes such a showing, the court must hold a hearing
unless the motion is a successive motion seeking similar relief. Sola-Morales, 300 Kan. at
881 (citing Holt v. State, 290 Kan. 491, 495, 232 P.3d 848 [2010]); see State v. Sprague,
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303 Kan. 418, 425, 362 P.3d 828 (2015). "Under K.S.A. 60-1507, a district court must
conduct an evidentiary hearing unless the motion, files, and records of the case
conclusively show that the petitioner is not entitled to relief." Bellamy v. State, 285 Kan.
346, Syl. ¶ 6, 172 P.3d 10 (2007).

The one-year limit and exceptions under K.S.A. 60-1507

A person in custody serving a sentence has one year to file a timely K.S.A. 60-
1507 motion. When no direct appeal is taken, that time begins to run when the
jurisdiction of the appellate court terminates. The one-year limitation can be extended
only to prevent "manifest injustice." K.S.A. 60-1507(f). The movant bears the burden to
establish manifest injustice by a preponderance of the evidence. See Supreme Court Rule
183(g) (2019 Kan. S. Ct. R. 228).

Our Supreme Court defined "manifest injustice" in Vontress as meaning
"'obviously unfair'" or "'shocking to the conscience.'" 299 Kan. at 614; see White v. State,
308 Kan. 491, 496, 421 P.3d 718 (2018). Vontress also established a nonexhaustive list of
three factors for judges to consider under the totality of the circumstances:

"(1) the movant provides persuasive reasons or circumstances that prevented him or her
from filing the 60-1507 motion within the 1-year time limitation; (2) the merits of the
movant's claim raise substantial issues of law or fact deserving of the district court's
consideration; and (3) the movant sets forth a colorable claim of actual innocence, i.e.,
factual, not legal, innocence." 299 Kan. at 616.

We need not give these factors equal weight and no single factor is dispositive. 299 Kan.
at 616. We consider the totality of the circumstances without simply tallying these three
factors in a "mechanical" or "mathematical" way. White, 308 Kan. at 513.

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In 2016, however, the Legislature amended K.S.A. 60-1507, limiting the factors
courts can consider in determining manifest injustice. It adopted the first and third
Vontress factor above but not its second—whether there existed a "substantial issue of
law or fact." Nor did it incorporate Vontress' allowance for other, nonlisted factors. Thus
a court's manifest injustice determination may now consider only two factors: (1)
whether the movant provides persuasive reasons or circumstances that prevented the
filing of the 60-1507 motion within the one-year time limitation; and (2) whether the
movant sets forth a colorable claim of actual innocence.

In White, our Supreme Court held that those limiting amendments to K.S.A. 60-
1507 do not apply retroactively to motions filed before July 1, 2016. 308 Kan. at 502.
Taylor filed his motion in June 2014, so the 2016 amendments do not apply to it. As a
result, we consider all three Vontress factors, as did the district court, to determine
whether Taylor established manifest injustice by a preponderance of the evidence.

Taylor does not argue that the first Vontress factor applies— he fails to give any
persuasive reason he could not have filed his K.S.A. 60-1507 motion within the one-year
time limit. Nor does he claim that he is innocent of his underlying crimes, as the third
Vontress factor requires. Instead, he accepted responsibility for his crimes. Taylor claims
that he does not fully remember raping his victim because he was under the influence of
mind-altering drugs at the time, but he acknowledges that he committed that offense.
Taylor's focus, and ours, is solely on the second factor—whether the merits of his claim
raise substantial issues of law or fact deserving of the district court's consideration.

Taylor showed no substantial issues of law or fact re: ineffectiveness of counsel.

Under the second factor, Taylor argues that his trial attorney was ineffective for
failing to sufficiently question whether Taylor had the capacity to enter a plea. Taylor,
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citing Mouille's report, contends that he could not have knowingly and understandably
entered a plea.

To prevail on a claim of ineffective assistance of counsel, a criminal defendant
must establish (1) that the performance of defense counsel was deficient under the totality
of the circumstances, and (2) prejudice. Sola-Morales, 300 Kan. at 882 (relying on
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 [1984]).
To establish prejudice, the defendant must show a reasonable probability that, but for
counsel's deficient performance, the outcome of the proceeding would have been
different. A reasonable probability means a probability sufficient to undermine
confidence in the outcome. Sprague, 303 Kan. at 426.

Judicial scrutiny of counsel's performance in a claim of ineffective assistance of
counsel is highly deferential and requires consideration of all the evidence before the
judge or jury. The reviewing court must strongly presume that counsel's conduct fell
within the broad range of reasonable professional assistance. State v. Kelly, 298 Kan. 965,
970, 318 P.3d 987 (2014). We apply that presumption here.

Contrary to Taylor's assertion that McRell did not contact a mental health
professional, the record shows McRell consulted with Mouille, a licensed psychologist.
McRell considered Mouille’s report and relied on it as the basis for Taylor’s defense
before determining the best course of action for Taylor's case. McRell not only filed a
notice of intent to rely on mental disease and defect but also filed a motion to suppress
Taylor's statements to police, arguing that they had been made while Taylor was
"mentally ill." McRell thus brought Taylor's mental issues to the district court's attention.

Taylor relies on Mouille's report. But Mouille's report, based on his diagnostic
interview and records review, does not show that Taylor did not understand his plea or
that McRell was ineffective. Mouille's stated purpose for the diagnostic interview was "to
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determine whether Mr. Taylor displayed any symptoms of a mental illness that might
impact the legal issues in which he is now involved." He "found indications of the
probable presence of several debilitating illnesses, any one of which would limit [his]
ability to cooperate fully." Mouille's report recommended that Taylor be removed from
custody and moved to a secure hospital because he was a danger to himself. He opined
that Taylor had displayed symptoms of various mental illnesses, and he offered one
"possible diagnosis." But Mouille stated "[i]t is quite probable Mr. Taylor is affected by
more than one illness, but to be more specific about which illness affects him, I would
need to conduct a much more thorough evaluation."

Mouille's report did not state that Taylor had any mental disease or defect.
Although it said Taylor showed symptoms of some mental issues, it concluded that a
"much more thorough evaluation" was needed to make a diagnosis. McRell abandoned
the mental disease or defect defense only when Taylor chose to enter into a plea
agreement with the State. A reasonable attorney could have acted as McRell did. The
record fails to suggest that McRell's performance was somehow deficient under the
totality of the circumstances. Taylor has failed to set forth an evidentiary basis to support
his claims of ineffective assistance of counsel, and none is evident from the record.

Taylor showed no substantial issues of law or fact re: involuntariness of his plea.

K.S.A. 2017 Supp. 22-3210(a) embodies due process requirements and adds
statutory conditions precedent to the acceptance of a plea. State v. Edgar, 281 Kan. 30,
37, 127 P.3d 986 (2006). Before a court can accept a defendant's plea, the State must
present an adequate factual basis establishing all the elements of the crimes charged.
K.S.A. 2017 Supp. 22-3210(a)(4). And the district court must personally inform the
defendant of the consequences of the plea, making sure that the defendant understands
them. State v. Moses, 280 Kan. 939, 948-49, 127 P.3d 330 (2006). The district court
complied with these requirements before accepting Taylor's plea.
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Taylor generally contends that his mental issues rendered his plea involuntary. But
the plea hearing, the plea agreement, and the sentencing hearing refute that conclusion.
At the plea hearing, the district court explained the charges Taylor was facing, explained
the rights Taylor would be waiving if he entered a guilty or no contest plea, and
questioned Taylor on his education level and his understanding of the plea. Taylor
responded appropriately to all those inquiries, agreeing that he had ample opportunity to
discuss the consequences of his plea with his attorney, that he was about to graduate from
college, and that there had been no force, threats, or coercions involved in getting his
plea, and that he was not under the influence of any mind-altering substance when he
pleaded. The State then gave a factual account of Taylor's crimes before the district court
accepted Taylor's plea. The colloquy between Taylor and the judge who took his plea
shows that Taylor knew and understood the consequences of his plea.

The plea agreement that Taylor signed does the same. In that agreement, Taylor
acknowledged that he had discussed its contents with his attorney and that he understood
that he would be found guilty of the charges he pleaded to. The plea agreement
significantly cut the time Taylor would have spent in prison had he been found guilty of
the original charge (second-degree murder, a severity level 1 felony) instead of the
reduced charge of voluntary manslaughter (a severity level 3 felony) to which he pleaded.

Similarly, the sentencing hearing transcript shows that Taylor understood his plea,
took responsibility for his actions, and eloquently apologized for them to the victims and
families who were present. Nothing in Taylor's statements, nor his interaction with the
district court evidences that Taylor was struggling with a mental illness to the extent that
could render his plea involuntary or unknowing.

Here, as above, Taylor relies solely on Mouille's report. Although Mouille's report
states that Taylor showed some symptoms of mental illness, it did not attempt to diagnose
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his illness. Nor did it suggest that Taylor lacked the ability to knowingly make or
understand a no contest plea.

Ultimately, Taylor fails to support with some evidence his claim that McRell was
ineffective or that his plea was involuntarily made. Instead, Taylor gives only conclusory
statements that his attorney knew he had a mental illness and somehow forced Taylor’s
hand in accepting the plea agreement. Because Taylor made only unsupported conclusory
statements, Taylor fails to show that a substantial issue of law or fact existed to excuse
the untimeliness of his K.S.A. 60-1507 motion.

Totality of the circumstances

Our review of the totality of the circumstances shows that dismissal of Taylor's
untimely K.S.A. 60-1507 motion will not result in manifest injustice. McRell consulted a
mental health professional and considered Taylor's mental deficiencies when deciding
how to proceed with his case.

We note that several of Taylor's contentions in this K.S.A. 60-1507 motion should
have been raised instead in a direct appeal. In his original motion, Taylor argued that
McRell should have called expert and non-expert witnesses, requested psychological
exams for his mental state, challenged his co-defendant's credibility, and reviewed lesser
included offenses with him. Some of these assertions are inaccurate, as McRell did obtain
a report from Mouille. Most of these arguments would have been relevant only if Taylor
had gone to trial. Taylor cannot use a proceeding under K.S.A. 60-1507 as a substitute for
a direct appeal. Supreme Court Rule 183(c)(3) (2019 Kan. S. Ct. R. 228). Exceptional
circumstances may allow a defendant to raise trial errors, including ineffective assistance
of counsel, for the first time in a K.S.A. 60-1507 motion, but Taylor has not shown
ineffectiveness or other exceptional circumstances here. See Rowland v. State, 289 Kan.
1076, 1087, 219 P.3d 1212 (2009) (finding ineffective assistance of counsel as a potential
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exceptional circumstance allowing consideration of a mere trial error in a K.S.A. 60-1507
motion).

Conclusion

Taylor filed his 60-1507 motion more than one year after his underlying
conviction was final. That motion was untimely, yet Taylor failed to establish that
manifest injustice will result if he is not allowed to proceed. The district court properly
dismissed this motion.

Affirmed.