Vanderpool v. State

1

NOT DESIGNATED FOR PUBLICATION

No. 118,949

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

MICHAEL VANDERPOOL SR.,
Appellant,

v.

STATE OF KANSAS,
Appellee.


MEMORANDUM OPINION

Appeal from Wyandotte District Court; R. WAYNE LAMPSON, judge. Opinion filed February 7,
2020. Affirmed.

Rebecca A. Hamilton, of Kansas City, Missouri, for appellant.

David Greenwald, assistant district attorney, Mark A. Dupree Sr., district attorney, and Derek
Schmidt, attorney general, for appellee.

Before BUSER, P.J., GREEN and MALONE, JJ.

PER CURIAM: Michael Vanderpool Sr. appeals the trial court's denial of his
K.S.A. 60-1507 motion, in which he alleged ineffective assistance of trial counsel.
Nevertheless, Vanderpool has not established that he is entitled to relief under K.S.A. 60-
1507. Therefore, we affirm the trial court.


2

Background

After a jury convicted Vanderpool of four counts of rape and eight counts of
aggravated criminal sodomy, the trial court sentenced Vanderpool to a controlling
sentence of 326 months' imprisonment followed by 36 months' postrelease supervision.
The victim of Vanderpool's crimes was Vanderpool's girlfriend's minor child; both
Vanderpool's girlfriend and her children lived with Vanderpool and some of his children.
Vanderpool filed a direct appeal with this court, but this court affirmed. State v.
Vanderpool, No. 100,552, 2009 WL 3737333 (Kan. App. 2009) (unpublished opinion),
rev. denied 290 Kan. 1104 (2010).

On June 23, 2011, Vanderpool moved for relief under K.S.A. 60-1507, arguing
that his trial counsel was ineffective. In his motion, Vanderpool alleged that his trial
counsel provided ineffective assistance of counsel in the following way: (1) not
introducing expert testimony to rebut the State's expert testimony about the victim's
physical examination and emotional state; (2) not introducing the testimony of his
children to establish that he treated the victim the same as his children and never abused
the victim; and (3) not introducing "testimony from certain eyewitnesses who could have
rebutted the account of the State's witnesses."

Eventually, the trial court appointed counsel to represent Vanderpool on his
K.S.A. 60-1507 motion. Habeas counsel filed an additional K.S.A. 60-1507, alleging that
trial counsel did not fully investigate Vanderpool's case before creating Vanderpool's
defense.

The trial court held an evidentiary hearing on Vanderpool's motion on October 23
and 24, 2014. At the hearing, Vanderpool's now-adult children, a defense attorney who
Vanderpool hired as an expert, and a clinical psychologist who reviewed the victim's
forensic interview, testified on his behalf. Vanderpool also testified on his own behalf.
3


Vanderpool's children testified that they never saw any sexual abuse occur. Of
note, only one of the four children testified that she lived full time with Vanderpool when
the alleged abuse occurred. The defense attorney testified he believed that trial counsel
could have presented evidence from Vanderpool's children because it would have
established that Vanderpool had "little, if any, opportunity" to commit the abuse. The
defense attorney explained that it would be important to cross-examine Vanderpool's ex-
girlfriend if she made inconsistent statements about believing her daughter's sexual abuse
allegations. But the defense attorney admitted that there may have been strategic reasons
why trial counsel made certain decisions. The clinical psychologist testified that during
the victim's interview with the Sunflower House, the interviewer asked some leading
questions about where and how the sexual abuse occurred.

In essence, Vanderpool repeated the complaints within his K.S.A. 60-1507
motion. He complained that his trial counsel did not have his children testify. He
complained that his trial counsel did not better explore the victim's emotional issues. And
he complained that his trial counsel did not cross-examine the victim and his ex-girlfriend
on inconsistent, implausible, or false statements.

Vanderpool's trial counsel testified on behalf of the State. Summarized, trial
counsel testified that he billed between 100 to 150 hours of work in Vanderpool's case.
He explained that he was unsure how many hours he actually worked because he did not
bill Vanderpool for all of his work. He also testified that he formulated a negative
defense, which focused on arguing that the State did not meet its burden of proof.

At the end of the hearing, the trial court took the parties' arguments under
advisement. It then issued an order denying Vanderpool's K.S.A. 60-1507 motion. The
trial court agreed with the State's argument that Vanderpool's trial counsel did not provide
4

ineffective assistance of counsel. In explaining its decision, the trial court held the
following:

"After a careful examination of the transcript, it is the finding of this Court that the
motion must fail to all claims. It is clear that certain testimony might have been
emphasized in a different or perhaps a more intensive manner, but it is clear that the
focus of the defense, from the beginning to the end of the trial was to put the State to their
burden of proof. The transcript is clear that trial counsel followed through on that
strategy. His examination of witnesses, and his decision to not call certain witnesses, fed
into his approach that the [S]tate had not brought this information forward and thus did
not prove their case. . . . While this might not be the only approach, this Court does not
find this to be ineffective. The Court also considered the testimony that [trial] counsel
was ineffective in not challenging the interview of the alleged victim at the [the forensic
interview]. In all candor, this Court found the testimony of the [State's forensic
interviewer] to be less than persuasive. The Court notes that the position of [trial counsel]
was more reasonable, in that the [victim's] statement [during the forensic interview]
clearly provided [a] strong argument that the version of the victim was weak and should
be disregarded. . . . Taken in totality, this Court finds that the trial testimony does not
support that the performance of [trial counsel] fell below a standard of reasonableness."

Vanderpool did not timely appeal the denial of his K.S.A. 60-1507 motion. But
while retaining jurisdiction, this court remanded to the trial court to determine whether
habeas counsel provided ineffective assistance of counsel by not timely filing
Vanderpool's appeal. See Vanderpool v. State, No. 118,949, 2019 WL 4383313 (Kan.
App. 2019) (unpublished opinion). Following a hearing in accordance with Albright v.
State, 292 Kan. 193, Syl. ¶ 5, 251 P.3d 52 (2011), the trial court held that habeas counsel
was ineffective for failing to timely appeal from the adverse decision despite
Vanderpool's known desire to appeal. Thus, this court now has jurisdiction to consider
the merits of Vanderpool's argument under Albright.

5

Although this court provided Vanderpool's new counsel opportunity to submit
supplemental briefing, Vanderpool's new counsel declined to do so. Accordingly, we now
consider the merits of Vanderpool's brief submitted by habeas counsel.

Did the Trial Court Err by Denying Vanderpool's K.S.A. 60-1507 Motion?

When the trial court denies a K.S.A. 60-1507 motion after a full evidentiary
hearing, an appellate court uses a bifurcated standard of review. We review the trial
court's factual findings for substantial competent evidence. But we review the trial court's
legal conclusions de novo. See State v. Butler, 307 Kan. 831, 853, 416 P.3d 116 (2018).

When a K.S.A. 60-1507 movant alleges ineffective assistance of counsel, the
movant must satisfy the two-prong test under Strickland v. Washington, 466 U.S. 668,
687, 104 S. Ct. 2052, 80 L. Ed. 2d 674, reh. denied 467 U.S. 1267 (1984): First, the
movant must establish that counsel's representation was deficient under the totality of the
circumstances. Second, the movant must establish that he or she suffered prejudice. This
means that but for counsel's deficient performance, the jury would have reached a
different verdict. See also Sola-Morales v. State, 300 Kan. 875, 882, 335 P.3d 1162
(2014) (relying on Strickland, 466 U.S. at 687).

In his appellate brief, Vanderpool makes 27 claims of ineffective assistance of
counsel. He contends that his trial counsel did not investigate his case before trial. He
contends that his trial counsel never addressed the victim's forensic interview. But most
of Vanderpool's contentions concern his trial counsel's failure to call certain witnesses, as
well as challenge the inconsistent and implausible statements of certain witnesses.
Specifically, he complains about his trial counsel's failure to challenge implausible and
inconsistent testimony by his ex-girlfriend (and the victim's mother), the victim, and the
victim's grandmother. Vanderpool also takes issue with his trial counsel's failure to
challenge the State's assertion that the victim reported the abuse after a triggering event,
6

during which she encountered Vanderpool for the first time in over a year. According to
Vanderpool, this assertion was false because he saw the victim all the time despite being
separated from her mother.

Nevertheless, the record on appeal establishes that trial counsel provided
Vanderpool with an adequate defense. Trial counsel's strategy for Vanderpool's case was
a negative defense, emphasizing the State's burden of proof. Trial counsel stressed that
because Vanderpool lived with the victim, the defense could not establish that
Vanderpool never spent time alone with the victim. In short, at Vanderpool's trial, trial
counsel asked the jury to consider the quality of the State's evidence against Vanderpool.

For example, in closing arguments, trial counsel challenged the victim's
inconsistent statements and implausible accusations, pointing to her forensic interview.
Then, he challenged Vanderpool's ex-girlfriend's inconsistent statements while also
noting Vanderpool's ex-girlfriend's disdain for Vanderpool. Trial counsel also questioned
why the State never called experts to talk about the victim's emotional state or veracity of
the victim's allegations. Then, trial counsel alleged that the police did very little
investigation to support its case against Vanderpool. Based on the police's minimal
investigation, trial counsel asserted that the jury could never know what actually
happened between Vanderpool and the victim.

Also, at the evidentiary hearing on Vanderpool's K.S.A. 60-1507 motion, trial
counsel explained his trial strategy. Trial counsel explained that he believed a negative
defense was Vanderpool's best option because Vanderpool had no alibi. He explained that
in the past when his clients had no alibi, he has had the most success by using a negative
defense. He stressed that because Vanderpool lived with the victim, the defense could not
establish that Vanderpool never spent time alone with the victim. Accordingly, he
testified that he did not believe it was necessary to call other witnesses, like Vanderpool's
children, because it was uncontested that Vanderpool spent time alone with the victim.
7

He further testified that Vanderpool's children could only say that they never witnessed
any sexual abuse, which would not definitively establish that the abuse never happened.

Next, trial counsel explained that he did not hire his own medical expert to
challenge the victim's medical evaluation because he believed that this evaluation also
helped Vanderpool's defense; the State's medical expert testified that the victim presented
no physical evidence of sexual contact. Trial counsel then explained that he did not
challenge the admission of the victim's forensic interview for the same reason; that is, he
believed that the victim's inconsistent and implausible statements during that interview
helped Vanderpool's defense.

Thus, trial counsel had a well-developed trial plan that rested on a negative
defense. This negative defense questioned whether the State had met its burden of proof.
By choosing a negative defense, trial counsel's testimony established that he considered
other defense options, like an affirmative defense. Yet, after examining Vanderpool's
case, trial counsel made a strategic decision to present a negative defense. Vanderpool's
arguments ignore his trial counsel's chosen negative defense trial strategy. Vanderpool's
arguments hinge on his belief that trial counsel should have presented more evidence on
his behalf, but trial counsel's strategy hinged on a lack of evidence.

When reviewing ineffective assistance of counsel claims, courts must strongly
presume that counsel's performance fell within the broad range of reasonable assistance
of counsel. State v. Kelly, 298 Kan. 965, 970, 318 P.3d 987 (2014). Moreover, we will
not find ineffective assistance of counsel when counsel has made a strategic decision
following a thorough investigation. See State v. Cheatham, 296 Kan. 417, 437, 292 P.3d
318 (2013). Here, the evidence supports that trial counsel engaged in a thorough
investigation before settling on his negative defense strategy. Accordingly, we hold that
trial counsel provided effective assistance of counsel.

8

Notwithstanding the preceding, we note that Vanderpool never explains how trial
counsel's alleged mistakes changed the jury's verdict. Instead, Vanderpool simply
complains about what he believed his trial counsel should have done. So, even if we
assumed for argument's sake that trial counsel provided deficient performance,
Vanderpool cannot establish that trial counsel's performance prejudiced his defense.

Last, we also note that Vanderpool's accusations constitute conclusory conjecture.
For instance, Vanderpool contends that his trial counsel did not more vigorously advocate
his case because he had "developed strong ties with child advocates whose primary goal
was to protect children . . . ." And he argues that his trial counsel was "going through the
motions of presenting a defense, but his heart [was not] in it. [His trial counsel] just
want[ed] it to be over with so he [could] move on to other things." But nothing in the
record supports these allegations. Indeed, Vanderpool never cites to the record in his
analysis, but merely asserts that trial counsel erred in 27 distinct ways without any
evidentiary backing. "Conclusory contentions without evidentiary basis are not sufficient
for relief." Gilkey v. State, 31 Kan. App. 2d 77, 82, 60 P.3d 351 (2003). We thus reject
Vanderpool's arguments for this reason, too.

Affirmed.