Zabala v. State

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NOT DESIGNATED FOR PUBLICATION

No. 116,661

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

JERRY LEE ZABALA,
Appellant,

v.

STATE OF KANSAS,
Appellee.

MEMORANDUM OPINION

Appeal from Pratt District Court; FRANCIS E. MEISENHEIMER, judge. Opinion filed October 13,
2017. Affirmed.

Daniel O. Lynch, of Johnston, Eisenhauer, Eisenhauer & Lynch, LLC, of Pratt, for appellant.

Clay A. Kuhns, special prosecutor, of Ashland, Gaten T. Wood, special prosecutor, of Medicine
Lodge, and Derek Schmidt, attorney general, for appellee.

Before BRUNS, P.J., MCANANY, J., and HEBERT, S.J.

PER CURIAM: Jerry Lee Zabala filed a K.S.A. 60-1507 motion claiming his trial
counsel was ineffective. The district court initially denied the motion without an
evidentiary hearing. On appeal, a panel of our court reversed and remanded the matter to
the district court for an evidentiary hearing. See Zabala v. State, No. 107,048, 2013 WL
1010302 (Kan. App. 2013) (unpublished opinion). Following the evidentiary hearing, the
district court denied Zabala's motion. Zabala's appeal again brings the matter to us.



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FACTS

Zabala's charges arose out of a report that he inappropriately touched a nine-year-
old girl in a restroom in a public park. A jury convicted him of aggravated indecent
liberties with a child, obstructing official duty, and three counts of misdemeanor battery
against law enforcement officers. His convictions were affirmed on appeal. State v.
Zabala, No. 97,875, 2008 WL 3367570, at *7 (Kan. App. 2d 2008) (unpublished
opinion).

Zabala then moved for relief pursuant to K.S.A. 60-1507. He alleged that he had
been mentally incompetent to stand trial on the charges against him and that his trial
counsel was ineffective in not seeking to have him examined for competency before trial.
At the evidentiary hearing on his motion following remand by our court, the district court
heard the testimony of Zabala, Debbie Zabala, and Robert Slinkard.

Debbie, Zabala's mother, testified that she had been concerned about her son's
mental health all of his life. Zabala was nine years old the first time he stayed at Larned
State Hospital. Debbie said that Zabala was "out of control" and had a "[b]ehavioral
problem."

Debbie visited Zabala once after his 2006 arrest in the current case. When asked
whether Zabala appeared coherent and could talk to her, Debbie said that he could talk to
her. She did not attend Zabala's trial.

At the time of the hearing on Zabala's K.S.A. 60-1507 motion, Zabala believed his
mental retardation or mental illness prevented him from receiving a fair trial. He did not
remember much from his arrest, but he knew he was charged with indecent liberties with
a child. He also testified that he was having hallucinations, and he remembered cutting
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his arms. He said he saw shadows and ghosts, and he reported hearing spirits who told
him to hurt himself.

Debbie noticed that her son did not appear to understand everything that was
happening at the evidentiary hearing on his K.S.A. 60-1507 motion.

Before the proceedings in the present case, Zabala received a mental health
evaluation in a 2005 case. L. Michael Garrett conducted that evaluation in August 2005,
approximately nine months before Zabala was arrested in our current 2006 case. Garrett's
report indicated that Zabala was competent to stand trial because "he understands the
nature and the purpose of the proceedings against him and has the ability and desire to
work with an attorney to present a legal defense." According to Garrett, Zabala had a
moderate incapacity to understand the roles of courtroom personnel and his ability to
testify or to challenge witnesses was moderately impaired.

No mental health evaluation or competency evaluation was conducted during
Zabala's 2006 case or before sentencing.

After Zabala's convictions in our present case but before he was transferred to the
Kansas Department of Corrections (KDOC), a physician's assistant visited Zabala in jail
and prepared a report indicating that Zabala was suffering from depression and had been
cutting his arms for attention.

When Zabala was transferred to KDOC to serve his sentences, KDOC prepared a
reception diagnostics unit report which indicated that Zabala was mildly retarded with an
IQ of 64-78. According to the report, Zabala had a pattern of a psychotic disorder most
consistent with paranoid schizophrenia.


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In January 2007, Zabala was transferred to Larned Mental Health Facility.

Slinkard testified that he had no concern with Zabala's mental capacity during the
time that he represented him. When he was appointed to Zabala's case, Slinkard spoke
with Kathy Wood, who was Zabala's trial counsel in the 2005 criminal case. Wood told
Slinkard that she had filed a motion to determine Zabala's mental competency to stand
trial and that Zabala had been found competent to stand trial. Slinkard had no reason to
believe that Zabala's competency had changed between the competency evaluation in
2005 and his trial in 2006.

Slinkard said that he spoke with Zabala's mother, Debbie, who told him that
Zabala was mildly retarded. Slinkard asked Debbie if Zabala's mental condition had
changed over the last year. Debbie told Slinkard there was no change. When Slinkard
learned that the 2005 competency evaluation found that Zabala had "some minor
incapacity in regards to courtroom personnel," Slinkard went over the roles of the various
court personnel with Zabala, and Zabala "didn't question any of that when I . . . did that."
Slinkard questioned Zabala about the legal process and was satisfied that Zabala
understood the process. He testified:

"I knew that he was competent. I knew that we had specific conversations regarding what
items we needed to suppress, in regards to motions. We went over at length the issue
regarding the eye witness testimony and the identification. He understood those issues
and the importance of those issues, so—and he was able to participate with me in regards
to those issues."

Further, Slinkard considered the concerns raised in the 2005 competency evaluation. To
address those concerns, Slinkard specifically addressed the trial process with Zabala and
believed he understood the roles of all of the parties in the case.

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But after observing Zabala testify at the K.S.A. 60-1507 evidentiary hearing,
Slinkard believed Zabala's level of mental functioning since 2006 had deteriorated. The
things Zabala now complained about had been handled at trial, and Zabala obviously had
forgotten about them. For example,

"I would attempt to visit [Zabala] almost every time I was in Pratt, and that's
because we did file a lot of motions. We had, you know, a lengthy suppression hearing
regarding issues. We prepared for the preliminary hearing together. We went over the
photographs. There was photographic evidence. There was an alleged—the prosecution
alleged that he switched his clothes out of the—out of his backpack, things of that nature,
so we did confer, quite frequently."

The district court concluded that Zabala failed to establish by a preponderance of
the evidence that he was not competent to stand trial in 2006. In addition, the court found
that Zabala failed to establish that trial counsel's representation fell below an objective
standard of reasonableness. The district court stated:

"[T]he existence of Petitioner's mental health issues do not automatically equate to
incompetence to stand trial. A review of Petitioner's testimony indicates that he did not
specifically claim that he didn't understand the proceedings nor did he specifically claim
he was unable to assist his attorney. He did indicate a limited recollection of the
proceedings and discontent with the result his attorney obtained for him. If anything, his
testimony shows he did comprehend the proceedings and is dissatisfied with the results of
those proceedings."

The court found Slinkard to be a "compelling and credible" witness.

"A review of the court file indicates [Slinkard] filed numerous pretrial motions on behalf
of Petitioner and vigorously argued identification and search and seizure issues on his
behalf. Counsel conducted his own investigation of Petitioner's mental health issues and
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was very well aware of Petitioner's prior mental health history. He described Petitioner
being aware and involved in the litigation on the identification and search issues."

ANALYSIS

On appeal Zabala claims the district court erred when it denied him relief on his
motion. This raises mixed questions of fact and law. In our appellate review we examine
the record to determine whether substantial competent evidence supports the district court
factual findings. We then review de novo the district court's legal conclusions. Fuller v.
State, 303 Kan. 478, 485, 363 P.3d 373 (2015).

Competency to stand trial

Zabala claims his mental health deteriorated significantly between his competency
evaluation in August 2005 and his trial in the present case in September 2006. The
criminal trial of an incompetent defendant violates due process. Cooper v. Oklahoma,
517 U.S. 348, 354, 116 S. Ct. 1373, 134 L. Ed. 2d 498 (1996).

A criminal defendant is presumed competent to stand trial. State v. Cellier, 263
Kan. 54, 70, 948 P.2d 616 (1997). When a criminal defendant challenges competency,
the defendant carries the burden of proof by a preponderance of the evidence. State v.
Barnes, 293 Kan. 240, 256, 262 P.3d 297 (2011). In order to succeed, the defendant must
show that the defendant is unable "to understand the nature and purpose of the
proceedings against him" or "to make or assist in making his defense" due to a mental
illness or defect. K.S.A. 22-3301; see Cellier, 263 Kan. at 70.

Here, Zabala did not request a competency hearing and did not challenge his
competency until he filed his K.S.A. 60-1507 motion. At the hearing on that motion
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Zabala bore the burden of proof by a preponderance of the evidence. See Kansas
Supreme Court Rule 183(g) (2017 Kan. S. Ct. R. 222).

Zabala relies on the evidence presented at the evidentiary hearing in the KDOC's
admission report, which was based on an evaluation 90 to 120 days after his convictions.
But there is no evidence that his intellectual functioning diminished from the time of his
initial evaluation in 2005, which found he was competent to stand trial, and his later trial
in the present case in 2006. With regard to the Department of Corrections postconviction
admission report, Zabala conceded that a defendant can transition between competent and
incompetent over a relatively short period of time. See State v. Davis, 277 Kan. 309, 313,
85 P.3d 1164 (2004) (defendant's status changed from incompetent to competent over a
six-month period of time).

When Zabala was evaluated about three weeks after trial while in jail and awaiting
transfer to KDOC, he was described as calm, cooperative, and oriented. He responded
appropriately to questions. Zabala recognized what he had had been convicted of and he
denied his guilt.

When undergoing an evaluation to consider his transfer to Larned, the hearing
process was explained to Zabala, he expressed an understanding of the process, and he
agreed to sign a waiver of his rights before such a transfer.

During Zabala's testimony at the K.S.A. 60-1507 hearing, he never claimed that he
did not understand the proceedings nor did he claim he was unable to assist his attorney.
Zabala testified about his mental health and defects, but he established no connection
between his mental health and his competency to stand trial.

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The district court found, and there is substantial competent evidence supporting
the findings, that Zabala understood the nature and purpose of the proceedings against
him and was able to assist in his own defense. See K.S.A. 22-3301.

Ineffective assistance of counsel

Zabala claims that the decision of his trial counsel not to seek a competency
evaluation prior to trial constituted ineffective assistance of counsel. The standards for
measuring counsel's effectiveness are well known to the parties and can be found in Sola-
Morales v. State, 300 Kan. 875, 882, 335 P.3d 1162 (2014) (relying on Strickland v.
Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674, reh. denied 467 U.S.
1267 [1984]).

In our review of counsel's performance we are highly deferential to the decisions
of counsel. We strongly presume that counsel's conduct fell within the broad range of
reasonable professional assistance absent a contrary finding. State v. Kelly, 298 Kan. 965,
970, 318 P.3d 987 (2014). 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. State v. Sprague, 303 Kan. 418, 426, 362 P.3d 828 (2015).

Failure to seek a competency evaluation may later be deemed ineffective
assistance of counsel when there is "reason to doubt" a defendant's competency to stand
trial and counsel fails to seek a competency hearing. See Davis, 277 Kan. at 323-24.

In Davis, our Supreme Court found that counsel was ineffective in not seeking a
competency evaluation prior to trial. 277 Kan. at 323, 327-29. But our current case
presents different controlling facts from those in Davis. Trial counsel in Davis admitted
that he should have sought another competency evaluation for his client. Further, Davis
had been previously found incompetent and became competent only after treatment at
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Larned. Even though Davis was deemed competent, a physician stated that it was
unlikely that Davis would remain competent throughout the stress of trial.

The fact that Zabala suffered from mental illness does not automatically mean that
he was not competent to stand trial. See State v. Hill, 290 Kan. 339, 371, 228 P.3d 1027
(2010). Here, unlike in Davis, Zabala was never found to be incompetent at any point. At
the evidentiary hearing, Slinkard testified that Zabala's previous attorney advised him of
the results of the 2005 competency evaluation. Slinkard also consulted with Zabala's
mother. Slinkard testified that he had no reason to believe that Zabala's competency had
changed since 2005. He had many conversations with Zabala in regards to various
motions and trial strategies, and it was apparent to Slinkard that Zabala understood the
importance of the issues and was able to participate and assist in his own defense. The
district court found Slinkard's testimony to be credible.

The district court's factual findings are supported by substantial competent
evidence, and those facts support the legal conclusion that Slinkard was effective in his
representation of Zabala. The district court did not err in denying Zabala's K.S.A. 60-
1507 motion.

Affirmed.