Todd v. State

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NOT DESIGNATED FOR PUBLICATION

No. 112,481

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

ALLEN MICHAEL TODD,
Appellant,

v.

STATE OF KANSAS,
Appellant.


MEMORANDUM OPINION

Appeal from Wyandotte District Court; R. WAYNE LAMPSON, judge. Opinion filed July 29, 2016.
Affirmed.

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

Allen Michael Todd, appellant pro se.

Christopher L. Schneider, assistant district attorney, Jerome A. Gorman, district attorney, and
Derek Schmidt, attorney general, for appellee.

Before ARNOLD-BURGER, P.J., SCHROEDER, J., and JEFFREY E. GOERING, District Judge,
assigned.

Per Curiam: Allen Michael Todd was convicted of intentional second-degree
murder. Todd took a direct appeal from that conviction alleging numerous trial errors; his
convictions were affirmed. State v. Todd, No. 98,145, 2008 WL 5428174 (Kan. App.
2008) (unpublished opinion), rev. denied 289 Kan. 1285 (2009). Todd then filed a motion
for relief pursuant to K.S.A. 60-1507. Following an evidentiary hearing, the district court
denied relief. Todd brings this appeal alleging: (1) the district court failed to make
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sufficient findings of fact and conclusions of law when it denied relief; and (2) the district
court committed error when it concluded that trial counsel had provided reasonable
representation. Finding no error, we affirm the district court.

Did the district court make sufficient findings of fact and conclusions of law when
it denied Todd relief?

The sole issue argued by Todd's appellate counsel is that the district court did not
comply with Kansas Supreme Court Rule 183(j) (2015 Kan. Ct. R. Annot. 271) when it
denied the K.S.A. 60-1507 motion. Whether the district court complied with the
requirements of Rule 183(j) is a question of law over which we exercise de novo review.
Phillips v. State, 282 Kan. 154, 178-79, 144 P.3d 48 (2006). In order to preserve a
challenge to the sufficiency of a district court's findings and conclusions for appellate
review, the party claiming insufficiency must object and give the district court the first
opportunity to correct any error. 282 Kan. at 179. In situations where the appellant failed
to object below, we may presume that the district court found all facts necessary to
support its judgment. 282 Kan. at 179. We will, however, remand a case that lacks
specific findings if the district court's error precludes meaningful appellate review.

In this case, Todd acknowledges that he did not object to the specificity of the
district court's findings. Nevertheless, he argues they were so deficient that they preclude
meaningful appellate review. Accordingly, we turn our attention to the issues raised in
Todd's K.S.A. 60-1507 motion and the district court's rulings on those issues.

Todd's K.S.A. 60-1507 motion attacked his sentence on five grounds: (1)
prosecutorial misconduct; (2) his ability to present a defense was impeded when the
district court prevented him from introducing hearsay evidence and evidence of the
victim's prior convictions; (3) denial of the right to a fair trial based on the issuance of an
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Allen instruction; (4) ineffective assistance of counsel at trial and on direct appeal; and
(5) cumulative error.

The district court quickly dispensed with the first three of Todd's five issues at the
end of the evidentiary hearing, noting:

"The prosecutorial misconduct was, in fact, raised on direct appeal. And the same with
the—with the hearsay statement of the defendant's mother. And also the other issue was
the question of the Allen instruction [instruction 14], and that issue's been raised over and
over again. I don't believe that it would have—that it made any difference in this case."

In Todd's direct appeal, we did consider Todd's claims related to prosecutorial
misconduct as well as the claim that Todd's right to present a defense was impaired by
the exclusion of certain evidence, including the hearsay statements of Todd's mother and
evidence of the victim's prior gun convictions. See Todd, 2008 WL 5428174. Because
these claims had already been addressed on direct appeal, it was proper for the district
court to summarily dismiss them. See Kansas Supreme Court Rule 183(c)(3) (2015 Kan.
Ct. R. Annot. 272) ("A proceeding under K.S.A. 60-1507 ordinarily may not be used . . .
as a substitute for a second appeal."). Just because the district court was succinct in its
ruling on these issues does not mean that its ruling was not in compliance with Rule
183(j). The district court noted these issues had been raised on direct appeal. The law is
well settled that you do not get to use K.S.A. 60-1507 as a vehicle for a second appeal.
There is no reason for the district court to take two pages of transcript to convey what can
be said in two sentences.

As to the issue related to the Allen instruction, although Todd did not raise this
issue on direct appeal, he certainly could have. In fact, in his direct appeal Todd
challenged a number of other instructions that were given by the district court at trial. As
noted above, a K.S.A. 60-1507 motion cannot be used as a substitute for a direct appeal
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or as a substitute for a second appeal. Kansas Supreme Court Rule 183(c)(3) (2015 Kan.
Ct. R. Annot. 271). Because such claims are disallowed except under circumstances when
a constitutional right is impacted by the alleged error, summary dismissal was
appropriate.

In any event, Todd's complaint in this appeal is that the district court did not make
sufficient findings of fact and conclusions of law in dispensing of the allegations of trial
error involving the Allen instruction. But remand is only necessary if the failure to make
specific findings precludes meaningful appellate review. Phillips, 282 Kan. at 179.

Todd did not object to the giving of the Allen instruction at trial. As such, the
record is reviewed posttrial to determine whether the use of the instruction was clearly
erroneous. In order to apply this standard of review, the reviewing court "first determines
whether the instruction was erroneous. State v. Betancourt, 299 Kan. 131, 135, 322 P.3d
353 (2014). This is a legal question subject to de novo review. 299 Kan. at 135. In the
next step, the court will review the entire record to determine whether it was clearly
erroneous for the trial court to give the instruction. 299 Kan. at 135. An instruction will
only be found to be clearly erroneous if the reviewing court is "firmly convinced the jury
would have reached a different verdict without the error." 299 Kan. at 135.

Given this standard of review, insufficient findings by the district court on the
propriety of the use of the Allen instruction would not preclude meaningful appellate
review. In this appeal, Todd does not make any argument that it was error for the district
court to deny his request for relief pursuant to K.S.A. 60-1507 based on the fact that an
Allen instruction had been given in his trial. He simply complains about the adequacy of
the district court's findings on this issue. We find that the district court's findings were
sufficient on the issue of the Allen instruction, and even if the district court did commit
error in the sufficiency of its findings, such error would not preclude appellate review and
therefore does not require remand to the district court.
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As to the claim that the district court made insufficient findings of fact concerning
Todd's claim of ineffective assistance of trial counsel, the district court addressed each
allegation of defective performance Todd raised during the evidentiary hearing and
concluded that each claim was without merit. The district court summarized its view of
trial counsel's performance as follows:

"In looking at Mr. Ball's representation . . . I'm sure it wasn't perfect. They
seldom are. But he certainly represented his client in a manner that got to the jury the
defense theory on this case, which was that Mr. Todd was justified in killing Mr. Palton.
And the jury just did not buy that.
. . . .
"So I believe his representation was more than adequate."

Whether counsel's performance was deficient is determined by the two-part
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) test.
Sola-Morales v. State, 300 Kan. 875, 882, 335 P.3d 1162 (2014). Under Strickland, the
court first determines if counsel's performance was deficient under a totality of the
circumstances. State v. Bledsoe, 283 Kan. 81, 90, 150 P.3d 868 (2007). If counsel's
performance was deficient, the court next determines if there was prejudice to the
defendant, that is, whether there is a reasonable probability that the jury would have
reached a different result absent the deficiencies in counsel's performance. 283 Kan. at
90. We prefer that the district court include this analysis when resolving issues of
ineffective assistance of counsel. See Harris v. State, 31 Kan. App. 2d 237, 239, 62 P.3d
672 (2003).

In this case, although the district court did not reference Strickland, it did address
each of Todd's claims of ineffective assistance and concluded that trial counsel's
performance was reasonable. Because the district court concluded that trial counsel's
performance was reasonable, there was no need to address the second part of the
Strickland test—whether Todd was prejudiced by counsel's performance. Again, Todd's
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appellate counsel does not argue that this determination was in error, only that the district
court failed to articulate sufficient findings of fact and conclusions of law in support of its
ruling. We conclude that the district court's findings of fact and conclusions of law on
this issue were sufficient to allow for meaningful appellate review.

Finally, Todd claimed in his K.S.A. 60-1507 motion that his counsel on direct
appeal was ineffective. Nevertheless, at the evidentiary hearing on the motion, Todd's
appellate counsel was not called as a witness and was only briefly mentioned during the
hearing. The extent of Todd's testimony on the subject was that his appellate attorney
provided him with trial transcripts but did not otherwise consult with him about the
appeal. Todd made no argument and presented no evidence that the outcome of his
appeal would have been different had his appellate counsel consulted with him about his
appeal.

When a prisoner requests relief under K.S.A. 60-1507 on the basis of ineffective
assistance of appellate counsel, the movant bears the burden of proving two things: (1)
that appellate counsel's performance fell below an objective standard of reasonableness,
and (2) "'the appellant was prejudiced to the extent that there is a reasonable probability
that, but for counsel's deficient performance, the appeal would have been successful.'"
Laymon v. State, 280 Kan. 430, 437, 122 P.3d 326 (2005).

On this issue, the district court held:

"So I believe [the trial attorney's] representation was more than adequate, and I don't find
anything in what has been raised now that would lead me to a different finding about the
appellate counsel. He raised issues that were kind of glaring issues in the trial and tried
to run those by the Court of Appeals, and they didn't believe him."

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Although this conclusion is very brief, we hardly see how the district court could
have given a more detailed ruling given the lack of attention that Todd gave to this issue
at the evidentiary hearing. While Todd complained about the fact that his appellate
counsel did not consult with him during the direct appeal, he did not identify any issue
that he thought should have been raised in the direct appeal that was not addressed by
appellate counsel, or that the lack of consultation impaired in any way appellate counsel's
ability to fully argue the issues that were presented in the direct appeal. The district court
concluded that appellate counsel raised the "glaring" trial issues in the direct appeal, and
that this constituted reasonable representation. The district court's findings of fact and
conclusions of law on this issue were sufficient to allow for meaningful appellate review.

Did the district court commit error when it concluded that Todd's trial counsel
provided reasonable representation?

In his supplemental pro se brief, Todd argues that the district court committed
error in its determination that his trial counsel provided reasonable representation.
Specifically, Todd argues that his trial counsel, Charles Ball, was deficient in failing to
call Myka Hoskins as a witness and by failing to disclose to him a plea offer. Our review
of this issue is bifurcated because such issues present mixed questions of law and fact.
State v. Bowen, 299 Kan. 339, 343, 323 P.3d 853 (2014). Factual issues are reviewed for
substantial competent evidence and the legal conclusions based on those facts are
reviewed de novo. 299 Kan. at 343.

Judicial scrutiny of counsel's performance in an ineffective assistance of counsel
claim is highly deferential; this court presumes 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). As noted above, to prevail on a claim of ineffective assistance of
counsel, a defendant must establish that counsel's performance was deficient based on a
totality of the circumstances and that such deficiencies resulted in prejudice, meaning that
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there is a reasonable probability that but for counsel's errors the jury would have reached
a different verdict. Sola-Morales, 300 Kan. at 882 (relying on Strickland, 466 U.S. at
687). We begin our analysis of this issue by noting that the judge who presided over the
evidentiary hearing on Todd's K.S.A. 60-1507 motion was the same judge who presided
over Todd's underlying criminal trial.

Todd first contends that Ball erred when he chose not to have Hoskins testify at
trial. According to Todd, Hoskins would have testified that she saw that the victim had a
gun—evidence that would have supported Todd's claim of self-defense. At the K.S.A.
60-1507 hearing Todd testified that Ball told him the reason he opted not to have
Hopkins testify was because she was only 16 years old at the time of trial. Ball testified
that he could not remember why he did not call Hoskins, but knew there was "a valid
reason." Ball speculated that the reason may have been that there was a pending CINC
case in which Hoskins was involved.

At the close of the hearing, the district court concluded that Ball's decision not to
put Hoskins on the stand was a reasoned, professional judgment. The district court
recognized that there are any number of reasons why Ball may have elected not to call
Hoskins, and that "it's difficult to second-guess when somebody—an attorney with
knowledge of what a witness's testimony would be decides that he's not going to call
him."

"'It is within the province of a lawyer to decide what witnesses to call, whether and
how to conduct cross-examination, and other strategic and tactical decisions.'" Sola-
Morales, 300 Kan. at 887. Because so much deference is given to attorneys to make
strategic trial decisions, in order for a defendant to prevail on a claim of ineffective
assistance of counsel based on the attorney's decision not to call a certain witness, the
defendant must establish that "the trial counsel's alleged deficiencies were not the result
of strategy." 300 Kan. at 888.
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We note that Todd did not call Hoskins as a witness at the evidentiary hearing on
his K.S.A. 60-1507 motion. Accordingly, whether Hoskins would have offered the trial
testimony Todd claims she would have offered is, to a certain degree, conjecture. Todd
conceded at the evidentiary hearing that Ball had talked to Hoskins' mother before
making the decision not to call Hoskins as a witness. So Ball had some idea of what
Hoskins' trial testimony would have been when he made the decision not to call her as a
witness.

In any event, Todd bears the burden of establishing that Ball's decision not to call
Hoskins was not the result of trial strategy. We conclude that Todd has not carried this
burden. There is evidence in the record that Ball knew that Hoskins was a potential
witness, that he spoke with Hoskins' mother, and that he made a conscious decision not to
call her as a witness. Although Ball could not recall years after the trial why he made that
decision, it is clear from the record that the decision was a strategic one. The district court
committed no error in denying Todd's claim of ineffective assistance of counsel on this
ground.

Todd next claims that Ball was ineffective for failing to communicate the State's
offer of a plea deal to him. This claim is easily addressed. Todd failed to present any
evidence that the State ever made a plea offer. Todd readily conceded that he was not
interested in any plea offers. Because Todd never authorized Ball to engage in plea
negotiations, the district court correctly observed "if your client tells you he doesn't want
a plea, you're not really ethically in a position to get a plea offer." Ball could not have
communicated a plea offer that was never made by the State, nor could he have initiated
plea negotiations without Todd's authorization. The district court correctly denied Todd's
claim of ineffective assistance of counsel on this ground.

Affirmed.