Allen v. State

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NOT DESIGNATED FOR PUBLICATION

No. 115,775

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

JOSEPH LEE ALLEN,
Appellant,

v.

STATE OF KANSAS,
Appellee.


MEMORANDUM OPINION

Appeal from Shawnee District Court; RICHARD D. ANDERSON, judge. Opinion filed December 8,
2017. Affirmed in part and dismissed in part.

Joseph Lee Allen, appellant pro se.

Jodi Litfin, deputy district attorney, Michael F. Kagay, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before MALONE, P.J., LEBEN, J., and KEVIN P. MORIARTY, District Judge, assigned.

PER CURIAM: Joseph Lee Allen was convicted of attempted first-degree murder
and criminal possession of a firearm. He filed a direct appeal with this court, alleging
ineffective assistance of trial counsel. We remanded the case for a hearing on his claims
pursuant to State v. Van Cleave, 239 Kan. 117, 716 P.2d 580 (1986). Following an
evidentiary hearing, where Allen appeared pro se, the district court denied Allen's
numerous ineffective assistance of counsel claims. This court affirmed the district court's
ruling. Allen subsequently filed a motion for relief under K.S.A. 60-1507, raising several
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trial errors and claims relating to the ineffectiveness of trial and appellate counsel. Allen
appeals the district court's summary denial of his motion.

FACTS

The relevant facts relating to Allen's convictions are set forth in this court's
opinion in State v. Allen, No. 101,367, 2010 WL 3636269 (Kan. App. 2010) (unpublished
opinion) (Allen I):

"Wayne 'Squirt' Brandon, Jr., was shot in front of his home sometime between
9:35 and 9:55 p.m. Immediately after the shooting, Brandon identified Allen as the
shooter and informed police that Allen drove a white Cadillac.
"At trial, Brandon again identified Allen as the shooter. Several of Brandon's
neighbors testified they heard gunshots but did not see the shooting or see Allen or his
white Cadillac in the area of the shooting. Russell Marshall, who was incarcerated with
Allen after the shooting, testified Allen admitted he shot Squirt, and gave Marshall a
letter to deliver to Squirt in which Allen offered Squirt 'a thousand dollars and a Cadillac
if he didn't show up for court.'
"Allen admitted writing two letters to Brandon offering him money, but
maintained the letters were counteroffers in response to Brandon's attempt to extort an
even larger sum of money from Allen. Allen denied giving Marshall a letter for Brandon
or telling Marshall he shot Brandon.
"Allen maintained he was at an auto auction at I-70 and Valencia Road on the
night of the shooting. The auction's general manager, Daniel Carlson, testified that
bidding ended around 9:30 p.m., but customers did not leave immediately after the
bidding. Further, according to Carlson, it normally would take 15 or 20 minutes to drive
from the auction site to the area of Brandon's home.
"Allen testified that when he left the auction at 9:50 p.m., he went to James
Lewis' home. According to defense witnesses, Allen left the auction sometime between
9:45 and 10:30 p.m., and arrived at Lewis' home between 10 and 11:30 p.m.
"A jury found Allen guilty of aggravated battery, an alternative count of
attempted first-degree murder, and criminal possession of a firearm.
. . . .
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"Before sentencing, Allen . . . sent correspondence to the district court . . .
alleg[ing] his trial counsel was ineffective for failing to subpoena witnesses, object to
evidence admitted at trial, cross-examine witnesses, or communicate with Allen. Finally,
Allen claimed he told [trial counsel] on several occasions he did not want [trial counsel]
to represent him at trial.
"At sentencing, Allen essentially read his letter to the court into the record and
reiterated his allegations regarding [trial counsel]'s ineffectiveness. Ultimately, the
district court . . . imposed a standard presumptive prison sentence of 586 months for the
attempted murder conviction, a concurrent standard sentence of 8 months for the firearm
conviction, and a postrelease supervision period of 36 months." 2010 WL 3636269, at
*1-2.

Gerald Wells was appointed to represent Allen on direct appeal to this court. On
appeal, Allen claimed he received ineffective assistance of trial counsel and sought
remand to the district court for a Van Cleave hearing. A panel of this court agreed that a
Van Cleave hearing was necessary to develop the facts and evidentiary record regarding
Allen's ineffective assistance of counsel claims and remanded the case to the district court
for that purpose. Allen I, 2010 WL 3636269, at *3.

On remand, the judge who presided over Allen's original criminal trial conducted
the Van Cleave hearing. Allen, appearing pro se with help from "standby counsel,"
offered testimony from several witnesses. Thereafter, the district court issued a detailed
memorandum decision and order denying Allen's multiple claims of ineffective
assistance of counsel. Once again, Wells was appointed to represent Allen on appeal,
where a panel of this court affirmed the district court's ruling. State v. Allen, No. 110,353,
2014 WL 6775823 (Kan. App. 2014) (unpublished opinion) (Allen II).

On July 31, 2015, and August 13, 2015, Allen filed two pro se motions for relief
under K.S.A. 60-1507, raising multiple trial errors and claims of ineffective assistance of
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trial and appellate counsel. The district court summarily denied Allen's motions in a
lengthy and detailed memorandum decision and order. Allen timely appeals.

ANALYSIS

In order to be granted relief under K.S.A. 60-1507, Allen must establish by a
preponderance of the evidence one of the following: (1)"the judgment was rendered
without jurisdiction"; (2) "the sentence imposed was not authorized by law or is
otherwise open to collateral attack"; or (3) "there has been such a denial or infringement
of the constitutional rights of the prisoner as to render the judgment vulnerable to
collateral attack." K.S.A. 2016 Supp. 60-1507(b); see Supreme Court Rule 183(g) (2017
Kan. S. Ct. R. 222).

A district court has three options when handling a K.S.A. 2016 Supp. 60-1507
motion:

"'(1) The court may determine that the motion, files, and case records conclusively show
the prisoner is entitled to no relief and deny the motion summarily; (2) the court may
determine from the motion, files, and records that a potentially substantial issue exists, in
which case a preliminary hearing may be held. If the court then determines there is no
substantial issue, the court may deny the motion; or (3) the court may determine from the
motion, files, records, or preliminary hearing that a substantial issue is presented
requiring a full hearing.' [Citation omitted.] " Sola-Morales v. State, 300 Kan. 875, 881,
335 P.3d 1162 (2014).

The standard of review depends upon which of these options a district court uses. When
the district court summarily denies a K.S.A. 60-1507 motion, an appellate court conducts
de novo review to determine whether the motion, files, and records of the case
conclusively establish that the movant is not entitled to relief. 300 Kan. at 881.

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To avoid the summary denial of his K.S.A. 60-1507 motion, Allen must establish
he is entitled to an evidentiary hearing. This burden requires Allen's assertions be more
than conclusory statements. He must either set forth an evidentiary basis to support his
assertions or his basis must be evident from the record. If such a showing is made, the
court is required to hold a hearing unless the motion is a second or successive motion
seeking similar relief. 300 Kan. at 881.

Allen's K.S.A. 60-1507 motion alleged both trial errors and claims of ineffective
assistance of counsel. Absent exceptional circumstances, "[a] proceeding under K.S.A.
60-1507 ordinarily may not be used as a substitute for direct appeal involving mere trial
errors or as a substitute for a second appeal." Supreme Court Rule 183(c)(3).
Additionally, in a K.S.A. 60-1507 proceeding the district court is not required to entertain
a second or successive motion for similar relief on behalf of the same prisoner. K.S.A.
2016 Supp. 60-1507(c); see State v. Trotter, 296 Kan. 898, 904, 295 P.3d 1039 (2013);
Supreme Court Rule 183(d). A movant in a 60-1507 motion is presumed to have set forth
all grounds for relief. Also a movant is prohibited from presenting any claims that could
have been raised in a prior motion. Trotter, 296 Kan. 898, Syl. ¶ 2 ("[A] subsequent
motion need not be considered in the absence of a showing of circumstances justifying
the original failure to list a ground."). Accordingly, a district court may dismiss a second
or successive motion unless exceptional circumstances justify considering it. See 296
Kan. at 904; State v. Kelly, 291 Kan. 868, 872, 248 P.3d 1282 (2011); Supreme Court
Rule 183(c). Although Allen had not filed a K.S.A. 60-1507 motion prior to the current
motions at issue, he did raise numerous claims of ineffective assistance of counsel during
the Van Cleave proceedings. Typically these claims are raised in K.S.A. 60-1507
motions. Thus, the rule regarding successive motions is applicable here. Allen must
therefore show exceptional circumstances in order to warrant review of the issues raised
in his motions.

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Generally, exceptional circumstances are unusual events or intervening changes in
the law that prevent a defendant from being able to raise all of the claimed errors in the
prior proceeding. Wimbley v. State, 292 Kan. 796, Syl. ¶ 1, 275 P.3d 35 (2011). Allen
asserts that the exceptional circumstance in this case was Wells' ineffectiveness in failing
to raise the present issues in either Allen I or Allen II. See Rowland v. State, 289 Kan.
1076, 1087, 219 P.3d 1212 (2009) (exceptional circumstances can include ineffective
assistance of counsel).

To establish ineffective assistance of appellate counsel, Allen must show that (1)
counsel's performance, based upon the totality of the circumstances, was deficient in that
it fell below an objective standard of reasonableness and (2) he was prejudiced to the
extent that there is a reasonable probability that, but for counsel's deficient performance,
the appeal would have been successful. Miller v. State, 298 Kan. 921, 930-31, 934, 318
P.3d 155 (2014). 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). The failure of appellate counsel to raise an issue
on appeal is not, per se, ineffective assistance of counsel. Laymon v. State, 280 Kan. 430,
439-40, 122 P.3d 326 (2005); see Rice v. State, 37 Kan. App. 2d 456, 465, 154 P.3d 537
(2007) ("Any claim of ineffective assistance of appellate counsel must be viewed from
the perspective and in the context of the appeal.").

Allen argues that Wells was ineffective in multiple ways that can be summarized
as follows. First, Allen alleges that Wells failed to raise several trial errors in his original
direct appeal to this court in Allen I. Second, Allen contends that following the Van Cleve
proceedings, Wells failed to raise several allegations relating to trial counsel's
ineffectiveness in his appeal to this court in Allen II.

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1. Direct appeal: Allen I

The trial errors that Allen claims were improperly abandoned by Wells are set
forth in two separate sections in Allen's brief: "Abandoned Trial Errors" and "Appellant
Additional Issues."

a. Abandoned trial errors

Allen argues that Wells was ineffective for failing to raise the following issues on
direct appeal: (1) the district court erred in failing to instruct the jury on informant
testimony; (2) the district court erred in admitting K.S.A. 60-455 evidence; (3) trial
counsel failed to present argument on a motion for judgment of acquittal; (4) the
prosecutor committed misconduct by arguing facts not in evidence, commenting on
witness credibility, and committing a Doyle violation; (5) the district court erred in
denying his motion for new trial based on newly discovered evidence; and (6) cumulative
error. See Doyle v. Ohio, 426 U.S. 610, 618-19, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976).

Allen did not raise these issues in his K.S.A. 60-1507 motion. It is well accepted
that issues not raised before the trial court cannot generally be raised for the first time on
appeal. See Kelly, 298 Kan. at 971. This includes constitutional grounds for reversal.
State v. Godfrey, 301 Kan. 1041, 1043, 350 P.3d 1068 (2015). Moreover, an appeal from
the denial of a 60-1507 motion generally cannot be used as a platform for raising an
entirely new issue. See Trotter v. State, 288 Kan. 112, 127-28, 200 P.3d 1236 (2009).
Allen concedes that the specific issues raised as abandoned trial errors were "not
completely clear" in his 1507 motion but suggests that these issues may still be reviewed
because he raised them "in an oblique way" by arguing that Wells abandoned viable
issues on direct appeal.

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But even a liberal reading of Allen's 1507 motion fails to establish that he properly
preserved these arguments below. "Under extraordinary circumstances an appellate court
may consider a claim of ineffective assistance of counsel for the first time on appeal if
there are no factual issues and the two-prong ineffective assistance of counsel test can be
applied as a matter of law based upon the appellate record." Trotter, 288 Kan. 112, Syl.
¶ 11. Here, a number of factual issues regarding Wells' failure to raise these issues on
direct appeal remain unresolved, leaving this court unable to apply the two-prong
ineffective assistance of counsel test as a matter of law. The lack of any factual findings
made at the district court level is detrimental to Allen's claim of ineffective assistance of
counsel with respect to these issues. Because they are not properly before us for review,
Allen's abandoned trial errors should be dismissed.

b. Appellant's additional issues

Allen argues that Wells was ineffective for only raising the issue of ineffective
assistance of counsel in Allen I, thereby failing to raise the following additional
arguments: (1) the district court erred in failing to issue an alibi jury instruction, (2) the
evidence was insufficient to support his conviction for attempted first-degree murder, (3)
the district court erred in failing to instruct the jury on severity level 7 aggravated battery,
(4) Allen's due process rights were violated by the "alleg[ed] disappearance of the white
Cadillac" video, and (5) the prosecutor committed misconduct by introducing perjured
testimony at trial. Allen raised these issues in his 1507 motion, so they are properly
before us for review.

(1) District court's failure to issue an alibi instruction

Allen contends that Wells was ineffective for failing to argue that the district court
should have sua sponte issued an alibi instruction, claiming that such an instruction was
mandatory and was otherwise "needed to balance out the eyewitness instruction."
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But a "'separate instruction on the defense of alibi is not required where adequate
and proper instructions are given on the elements of the crime charged and on the
prosecution's burden to prove guilt beyond a reasonable doubt.' [Citations omitted.]"
Jenkins v. State, 32 Kan. App. 2d 702, 708, 87 P.3d 983 (2004). Allen does not allege any
defect in the instructions on the elements of the crimes charged or on the State's burden to
prove guilt beyond a reasonable doubt. The record indicates the jury was properly
instructed in this regard. As a result, Wells' failure to raise this argument cannot be
considered deficient.

(2) Sufficiency of the evidence for attempted first-degree murder

Allen argues his conviction for attempted first-degree murder should be set aside
because the State failed to prove he intended to kill Brandon. Allen states that Wells was
ineffective for failing to address this issue properly. Allen claims the evidence presented
at trial only supports a conviction for aggravated battery.

But Allen does not set forth any persuasive argument to undermine the jury's
finding that he acted with the intent to kill Brandon. Allen's argument, as presented in his
brief, is simply an invitation to reweigh the evidence, which this court cannot do. See
State v. Dunn, 304 Kan. 773, 822, 375 P.3d 332 (2016). Therefore, it cannot be said that
Wells' failure to raise this issue on appeal was deficient.

(3) Lesser included offense instruction

Allen alleges that Wells should have argued that the district court erred by failing
to instruct the jury on a lesser included offense of aggravated battery.

The jury convicted Allen of severity level 4 aggravated battery, defined as
"[i]ntentionally causing great bodily harm to another person." K.S.A. 21-3414(a)(1)(A).
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Allen claims the court should have instructed the jury on severity level 7 aggravated
battery, which criminalizes "intentionally causing bodily harm to another person with a
deadly weapon, or in any manner whereby great bodily harm, disfigurement or death can
be inflicted." K.S.A. 21-3414(a)(1)(B). The distinction between the two crimes is
whether Allen intentionally caused great bodily harm or merely caused bodily harm.

Whether the district court erred in failing to give a lesser included instruction turns
on whether the instruction is both legally and factually appropriate. See State v. Soto, 301
Kan. 969, Syl. ¶ 9, 349 P.3d 1256 (2015). A severity level 7 aggravated battery is a lesser
included offense of a severity level 4 aggravated battery, so the instruction would have
been legally appropriate. State v. Williams, 295 Kan. 506, 521, 286 P.3d 195 (2012).
Allen suggests that the instruction was also factually appropriate because the evidence
presented at trial indicated that Brandon was shot only one time, meaning that Allen
merely caused bodily harm. "Whether there is evidence in the case to support the giving
of a lesser included instruction is a determination to be made by the trial court. If there is
evidence that the harm was slight, trivial, moderate, or minor, then the trial court must
give a lesser included instruction." State v. Brice, 276 Kan. 758, 774, 80 P.3d 1113
(2003). Allen presents no support for his conclusory assertion that Brandon's injuries
were slight, trivial, moderate, or minor. Mere conclusory allegations without an
evidentiary basis will not support an ineffective assistance of counsel claim. Holt v. State,
290 Kan. 491, 496, 232 P.3d 848 (2010). Wells' failure to raise this argument in Allen I
cannot be considered deficient. More importantly, the trial testimony of the surgeon, Dr.
Brent Steward, who provided care to the victim, stated the victim had a gunshot wound to
the chest. Dr. Steward testified the injuries to the victim were life threatening and the
bullet was lodged "within the bone of—the vertebral bone of the spine." It was not until
three or four weeks after the shooting before the doctor believed the victim was no longer
in a life threatening position. Additionally, Dr. Steward testified the victim had been in a
coma for weeks.
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Clearly, a severity level 7 aggravated battery instruction should not have been
given to the jury with these facts.

(4) Alleged disappearance of the white Cadillac video

Allen claims that Wells was ineffective in failing to address any issues relating to
the alleged disappearance of a video purporting to show a white Cadillac leaving the
scene of the crime. Allen asserts that his due process rights were violated because this
video was not admitted into evidence.

As discussed by the district court, the videotape issue was thoroughly litigated
during the Van Cleave proceedings. There, the district court held:

"[A]s noted by Allen's counsel, the disappearance of the videotape was not
particularly significant. Therefore, counsel's decision not to try to do more about the lack
of videotape evidence at trial which admittedly contained no evidence contrary to Officer
Jepson's testimony was strategically sound. After all, Officer Jepson had already testified
multiple times that he was positive that the white Cadillac in the tape was not the white
Cadillac the State alleged Allen drove. Admitting to the jury that there was a potential
videotape that no longer existed could not have helped Allen's defense. Therefore, Allen
cannot establish prejudice from the jury's inability to view the tape or the lack of an
explanation regarding the missing tape. Further, Allen has not established prejudice since
he did not present evidence at the hearing that would show the tape was destroyed in bad
faith or would otherwise have impacted the jury's verdict."

Given the district court's previous findings regarding the videotape, it cannot be
said that Wells was ineffective in failing to raise this issue on appeal.




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(5) Prosecutorial misconduct

Allen contends that Wells was ineffective for failing to argue that the prosecutor
committed misconduct by introducing perjured testimony at trial.

Again, this issue was considered and rejected by the district court following the
Van Cleave proceedings. There, the court concluded: "At the evidentiary hearing, Allen
failed to present any evidence of the prosecutor's knowing solicitation of perjured
testimony. Thus, Allen cannot show that his due process rights were violated, and his
prosecutorial misconduct claim must fail on the merits."

Allen provides no support for his conclusory argument that the prosecutor
knowingly introduced perjured testimony at trial. As a result, Wells' failure to make this
argument on appeal was not ineffective. See Holt, 290 Kan. at 496.

2. Appeal following Van Cleave proceedings: Allen II

Allen next sets forth several issues relating to Wells' failure to raise certain
arguments, following the Van Cleave proceedings, relating to trial counsel's
ineffectiveness. Because Allen proceeded pro se at the evidentiary hearing, the relevant
question is whether he provided a sufficient evidentiary basis for Wells to proceed on
these claims. Allen presented some, but not all, of these issues during the Van Cleave
hearing. Allen cannot expect Wells to raise issues on this appeal that were not preserved
by Allen at his Van Cleave hearing.

a. Issues presented during Van Cleave proceedings

Allen argues that Wells was ineffective for not challenging trial counsel's: (1)
failure to cross-examine Officer Jepson about the white Cadillac video; (2) failure to
present the jury with an unredacted interrogation video of Allen's interview with
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Detective Troy Willard; (3) failure to cross-examine Ed Brock on certain issues; (4)
failure to investigate and present the testimony of Lester McDonald, Corey Lewis, and
Pam Hazlett; (5) decision to admit into evidence a group photo of Allen and his relatives;
and (6) failure to file a motion to suppress State's Exhibit 31. The district court rejected
these arguments following the Van Cleave hearing.

When a criminal defendant's claims regarding ineffective assistance of counsel
have been previously adjudicated through a Van Cleave evidentiary hearing, that
defendant "is procedurally barred from relitigating the effectiveness of trial counsel in a
1507 motion, absent exceptional circumstances." Rice, 37 Kan. App. 2d at 464. In
denying Allen's 1507 motion, the district court discussed each of these arguments in its
lengthy and well-reasoned memorandum decision and order, finding that Allen had failed
to establish a sufficient evidentiary basis at the Van Cleave hearing to support his claims
and had otherwise failed to show that the district court's prior ruling was in error.

Allen's conclusory arguments in his brief are no different from those raised during
the Van Cleave proceedings, and he has not offered any evidence or support to establish
the Van Cleave court's rulings were in error. Because Allen failed to establish an
evidentiary basis for these claims, Wells' failure to raise these arguments in Allen II
cannot be considered deficient. See Holt, 290 Kan. at 496.

b. Issues not presented during Van Cleave proceedings

Finally, Allen argues that Wells was ineffective in not challenging trial counsel's
failure to: (1) investigate or present testimony from the emergency responders who
arrived on scene to care for Brandon, (2) cross-examine the doctor who cared for
Brandon, (3) file a pretrial motion to prevent the State from introducing evidence of
Patricia Sanders' criminal history, (4) request an alibi instruction, (5) hire a trajectory
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expert, and (6) impeach Brandon through use of his criminal history and evidence that
Brandon sent his father to federal prison.

With respect to the first issue listed above, Allen listed the emergency responders
as potential witnesses in his 1507 motion, but he did not present any argument thereafter
relating to these witnesses. Notably, the district court did not address this issue in its
memorandum decision and order. Because this argument is being raised for the first time
on appeal, the district court made no factual findings from which we may evaluate Wells'
failure to raise this issue in Allen II. See Trotter, 288 Kan. 112, Syl. ¶ 11. As a result, this
issue is not properly before us for review and may be dismissed.

As for the remaining issues, the burden was on Allen—as a pro se litigant—to
develop an evidentiary record at the Van Cleave hearing. The district court noted, and
Allen appears to concede, that he did not present any of these issues at the hearing. Given
Allen's failure to address these issues at the Van Cleave hearing, Wells could not have
raised them in Allen II. Allen offers no other exceptional circumstance which would
warrant this court's consideration of these issues.

CONCLUSION

Allen failed to raise many of his current arguments in his 1507 motion. These
claims are not properly before us for review and may be dismissed. See Trotter, 288 Kan.
at 127-28. With respect to Allen's remaining arguments that were raised in his 1507
motion, they involve mere trial errors and ineffective assistance of counsel claims that
were similar to claims raised during the Van Cleave proceedings. Thus, Allen had to
show exceptional circumstances to warrant review of the claims raised in his motion. See
K.S.A. 2016 Supp. 60-1507(c); Trotter, 296 Kan. 898, Syl. ¶ 2; Supreme Court Rule
183(c)(3). The exceptional circumstance alleged by Allen—Wells' ineffectiveness in
failing to raise these issues on appeal—does not entitle him to relief. The district court's
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comprehensive written decision addresses Allen's claims that Wells provided ineffective
assistance of counsel in Allen I and Allen II. After careful review of the record on appeal
and the arguments in Allen's brief, the panel affirms the district court's determination that
Allen has failed to establish that Wells' performance was deficient in any respect. The
district court's memorandum decision and order adequately explains the reasons for its
summary dismissal of Allen's 1507 motion.

Affirmed in part and dismissed in part.