Bloom v. State

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NOT DESIGNATED FOR PUBLICATION

No. 110,577


IN THE COURT OF APPEALS OF THE STATE OF KANSAS

JAMES RYAN BLOOM,
Appellant,

v.

STATE OF KANSAS,
Appellee.


MEMORANDUM OPINION

Appeal from Reno District Court; TRISH ROSE, judge. Opinion filed May 6, 2016. Affirmed.

Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellant.

Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellee.

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

Per Curiam: In order to receive habeas corpus relief by way of a K.S.A. 60-1507
motion, a prisoner must show that his counsel's performance was deficient and that
counsel's errors prejudiced his defense. Because James Ryan Bloom has proved neither,
we affirm the district court's denial of relief.





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The case history provides a context for our analysis.

Bloom is serving a prison sentence for rape, six counts of aggravated indecent
liberties with a child, and one count of lewd and lascivious behavior. His convictions
were affirmed on direct appeal. State v. Bloom, No. 97,883, 2009 WL 743049 (Kan. App.
2009) (unpublished opinion), rev. denied 289 Kan. 1280 (2010).

In 2011, Bloom filed a K.S.A. 60-1507 motion alleging ineffective assistance of
trial counsel during plea negotiations. The district court dismissed his motion and Bloom
appealed. This court found that the district court failed to properly consider Bloom's
claim that he had received ineffective assistance in considering whether to accept the
State's offer of a plea agreement. This court reversed and remanded the case to the district
court with directions to hold an evidentiary hearing to make findings under the holding in
Lafler v. Cooper, 566 U.S. _____, 132 S. Ct. 1376, 182 L. Ed. 2d 398 (2012). The district
court on remand took evidence on the matter and denied Bloom relief. He appeals that
ruling.

In 2014, this court, at Bloom's request, remanded for an evidentiary hearing to
address Bloom's claim of ineffective assistance of K.S.A. 60-1507 counsel. After the
hearing, the district court once again denied Bloom relief. Bloom filed an amended notice
of appeal, and the case was re-docketed.

In this appeal, Bloom abandons his claim of ineffective assistance of his K.S.A.
60-1507 counsel and instead limits his argument to challenging the district court's prior
order denying him relief under Lafler. He argues his trial counsel provided ineffective
assistance by improperly advising him of his chances of winning at trial and advising him
about the applicability of two special sentencing rules. Bloom contends that if he had
been better informed he would have never taken the case to trial.

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Bloom's original K.S.A. 60-1507 motion was predicated primarily upon a claim
that his trial counsel provided ineffective assistance during plea negotiations. In short,
ignoring any terms regarding sentencing disposition or peripheral considerations, Bloom
rejected seven plea offers ranging from two counts of aggravated indecent liberties with a
child up to a final offer of six counts of aggravated indecent liberties with a child and one
count of lewd and lascivious behavior in exchange for dismissing the rape charge. If
Bloom had accepted the final plea offer, he faced a maximum potential sentence of 122
months in prison, i.e., twice the base sentence of 61 months. See K.S.A. 2006 Supp. 21-
4720(b)(4). Public defenders Sarah McKinnon and Kiehl Rathbun represented Bloom at
his 2006 trial. Rathbun was later disbarred in October 2007 for reasons unrelated to the
underlying case. See In re Rathbun, 285 Kan. 137, 169 P.3d 329 (2007).

In his brief, Bloom limits his arguments to challenging the district court's order
finding that his trial counsel provided effective assistance and advice during plea
negotiations. Bloom complains that he would have accepted a plea offer and not taken the
case to trial if not for the deficient performance of trial counsel during plea negotiations.
Specifically, he argues that he was prevented from making a knowing decision about the
various plea offers because he was never advised of two special sentencing rules—K.S.A.
2006 Supp. 21-4720(b)(4) and K.S.A. 2006 Supp. 21-4720(c). He also avers that his trial
counsel assured him that "the rape could not be proved and that the speedy trial issue was
a winner on appeal."

Our guiding principles in dealing with such questions are well established.

Claims involving ineffective assistance of counsel constitute mixed questions of
fact and law. State v. Bowen, 299 Kan. 339, 343, 323 P.3d 853 (2014). Consequently, the
district court must issue findings of fact and conclusions of law concerning all issues
presented. Supreme Court Rule 183(j) (2015 Kan. Ct. R. Annot. 271). In considering
appeals after the district court has held an evidentiary hearing, we review the district
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court's underlying factual findings for support by substantial competent evidence and the
legal conclusions based on those facts de novo. Bowen, 299 Kan. at 343.

Substantial evidence is legal and relevant evidence that a reasonable person could
accept as being adequate to support a conclusion. State v. May, 293 Kan. 858, 862, 269
P.3d 1260 (2012). Appellate courts do not reweigh evidence or reassess the credibility of
the witnesses. State v. Reiss, 299 Kan. 291, 296, 326 P.3d 367 (2014). Instead, we must
accept as true the inferences that support the trial court's findings. See State v. Morton,
286 Kan. 632, 641, 186 P.3d 785 (2008).

When alleging ineffective assistance of counsel the defendant must establish: (1)
that counsel's performance was constitutionally deficient, which requires a showing that
counsel made errors so serious that his or her performance was less than that guaranteed
by the Sixth Amendment to the United States Constitution; and (2) that counsel's
deficient performance prejudiced the defense, which requires a showing that counsel's
errors were so severe as to deprive the defendant of a fair trial. Strickland v. Washington,
466 U.S. 668, 687, 104 S. Ct. 3562, 82 L. Ed. 2d 864 (1984); Sola-Morales v. State, 300
Kan. 875, 882, 335 P.3d 1162 (2014).

A defendant's Sixth Amendment right to counsel extends to the plea-bargaining
process. Lafler, 132 S. Ct. at 1384; Missouri v. Frye, 566 U.S. ___, 132
S. Ct. 1399, 1405, 182 L. Ed. 2d 379 (2012); State v. Szczygiel, 294 Kan. 642, 646, 279
P.3d 700 (2012). During plea negotiations, a defendant is entitled to the effective
assistance of competent counsel. Lafler, 132 S. Ct. at 1384; Szczygiel, 294 Kan. at 646.

We must apply the standards set in Lafler when dealing with questions of
ineffective assistance of counsel when a defendant rejects a plea offer and goes to trial.
Under the performance prong of Strickland, a defendant must show that trial counsel's
representation fell below an objective standard of reasonableness. Lafler, 132 S. Ct. at
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1384. As a rule, trial counsel in the plea bargain process has a duty to communicate
formal offers from the prosecution to accept a plea on terms and conditions that may be
favorable to the accused. Frye, 132 S. Ct. at 1408. This court's review of counsel's
performance is highly deferential and requires consideration of all the evidence before the
judge or jury. We 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).

To establish prejudice under Strickland, a defendant must generally show there is
a reasonable probability that, but for trial counsel's errors, the result of the proceeding
would have been different. See Miller v. State, 298 Kan. 921, 934, 318 P.3d 155 (2014).
However, in the context of pleas, the prejudice question under Strickland becomes
whether a defendant can show that the outcome of the plea-bargaining process would
have been different with competent advice. Lafler, 132 S. Ct. at 1384. When, as in the
case here, the alleged ineffective advice or assistance led to the rejection of a plea offer,
not its acceptance, the prejudice alleged is having to stand trial. See Lafler, 132 S. Ct. at
1385. In such circumstances,

"[A] defendant must show that but for the ineffective advice of counsel there is a
reasonable probability that the plea offer would have been presented to the court (i.e., that
the defendant would have accepted the plea and the prosecution would not have
withdrawn it in light of intervening circumstances), that the court would have accepted its
terms, and that the conviction or sentence, or both, under the offer's terms would have
been less severe than under the judgment and sentence that in fact were imposed." Lafler,
132 S. Ct. at 1385.

See Frye, 132 S. Ct. at 1409.



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How the special sentencing rules work.

At that time, the sentencing judge could impose concurrent or consecutive
sentences in multiple conviction cases such as Bloom's. See K.S.A. 2006 Supp. 21-
4720(b). However, when consecutive sentences apply, the sentencing judge must
establish a base sentence for the controlling crime, which is the crime with the highest
severity ranking. K.S.A. 2006 Supp. 21-4720(b)(2). Here, Bloom's base crime was rape.
The district court at the sentencing hearing ordered all eight aggravated presumptive
sentences to be served consecutively, totaling 538 months. The district court then
acknowledged that under the double rule the overall sentence would be capped at 330
months.

K.S.A. 2006 Supp. 21-4720(b)(4) is termed the "double rule" and controls the total
sentence length in multiple conviction cases imposing consecutive presumptive
sentences. See State v. Peterson, 22 Kan. App. 2d 572, 575, 920 P.2d 463, rev. denied
260 Kan. 1000 (1996). Under that statute, the total prison sentence for a case involving
multiple convictions arising from multiple counts within a complaint cannot exceed twice
the base sentence for the primary crime. K.S.A. 2006 Supp. 21-4720(b)(4). Thus, for
Bloom, this would be twice the 165-month sentence for the rape conviction, for a total of
330 months.

The corollary "double-double rule" is found in K.S.A. 2006 Supp. 21-4720(c), the
statute controlling consecutive departure sentences. See Peterson, 22 Kan. App. 2d at
575. K.S.A. 2006 Supp. 21-4720(c)(1) allows the sentencing judge to depart from a
presumptive sentence within the context of consecutive sentences if aggravating factors
are found. When a departure sentence is imposed for any of the individual crimes
sentenced consecutively, the imprisonment term of that departure sentence cannot exceed
twice the maximum presumptive imprisonment term for that crime. K.S.A. 2006 Supp.
21-4720(c)(2). In turn, the total controlling sentence may not exceed twice the maximum
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departure sentence. K.S.A. 2006 Supp. 21-4720(c)(3). Here, Bloom's 165-month sentence
for rape could have been departed to 330 months under K.S.A. 2006 Supp. 21-4720(c)(2).
With this departure in hand, the seven remaining counts could then run consecutively,
with the total imprisonment term of the remaining consecutive sentences not to exceed
twice the maximum departure sentence, i.e., 660 months.

Citing State v. Williams, 275 Kan. 284, 64 P.3d 353 (2003), Bloom argues that his
lack of knowledge of the impact of the special sentencing rules on the potential sentences
he faced is reversible error. Bloom's reliance on Williams is unpersuasive.

This case is not like Williams. Williams concerned a defendant moving to
withdraw a plea prior to sentencing and the trial court's statutory duty under K.S.A. 2002
Supp. 22-3210 to advise the defendant, before accepting his or her guilty plea, of the
maximum penalty that it could impose. The Kansas Supreme Court found that the trial
court's misstatement at the plea hearing regarding the maximum sentence that could be
imposed was a serious error sufficient to allow the defendant to withdraw his pleas. 275
Kan. at 290. Williams did not deal with whether trial counsel was deficient in allegedly
failing to recognize and inform a defendant of the effects of the special sentencing rules,
and its holding does not help Bloom's argument.

Second, the record supports that trial counsel properly counselled Bloom on both
of the special sentencing rules and the corresponding impact they had on his possible
sentence. Bloom does dispute the district court's finding that he was properly advised of
the severity level and sentencing range for each charge against him, including the rape
charge. McKinnon testified that she explained the sentencing ranges and double rule to
Bloom if he was convicted of rape. McKinnon also testified that she discussed the final
plea offer from the State and Bloom rejected it. The final plea offer clearly acknowledged
that Bloom would benefit at sentencing from the double rule if he accepted the offer.
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As for the double-double rule, the record supports that Bloom was aware of the
implications of this special sentencing rule. On September 14, 2006, the State filed a
motion seeking an upward durational departure sentence citing, in part, the fiduciary
relationship between a parent defendant and child victim as an aggravating factor. See
State v. Ippert, 268 Kan. 254, 260, 995 P.2d 858 (2000). McKinnon testified that she
discussed the ramifications of that motion with Bloom and that he faced 660 months in
prison. McKinnon also testified that she discussed the September 28, 2006, plea offer
from the State with Bloom. That plea offer specified, in part, that the State would dismiss
the pending departure motion. This would have limited Bloom's exposure to
approximately 10 years in prison.

We find no error in denying Bloom relief on his claims regarding the lack of
advice from trial counsel regarding the two special sentencing rules. We turn now to his
claims of incorrect legal advice.

Bloom argues that the district court abused its discretion because the court in its
June 19, 2013, order denying him relief never made any findings addressing the issue of
incorrect legal advice from Rathbun assuring Bloom of his chances of success on the
speedy trial issue on appeal and him not being convicted of the rape charge. Bloom
asserts that because of this incorrect legal advice the district court should have followed
"the law of Lafler" and addressed the issue of prejudice.

Indeed, the district court's order denying Bloom relief was based on the court's
factual determination that there had been no deficient performance by his counsel, and
not on prejudice. However, the failure to establish either Strickland prong is fatal to an
ineffective assistance of counsel claim. Chamberlain v. State, 236 Kan. 650, 655, 694
P.2d 468 (1985). Therefore, we, like the district court, need not inquire into whether
prejudice resulted from trial counsel's performance if we determine that it was not
deficient. See Strickland, 466 U.S. at 697.
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The district court denied Bloom relief on his K.S.A. 60-1507 motion after holding
a full evidentiary hearing. Bloom did not object to the district court making inadequate
findings of fact and conclusions of law. Therefore, he has failed to preserve any such
complaint for appeal. See State v. Edwards, 290 Kan. 330, Syl. ¶ 5, 226 P.3d 1285
(2010). Moreover, the record does not rebut that presumption that the district court found
all facts necessary to support its order. See State v. Vaughn, 288 Kan. 140, 143, 200 P.3d
446 (2009).

Moving to Bloom's argument, the district court found that "McKinnon did not
misrepresent to [Bloom] the likelihood of a successful appeal on the speedy trial issue" or
"lead [Bloom] to believe the State would not be successful in prosecuting [Bloom] if the
victim failed to appear." In short, the district court found that Bloom did not receive
incorrect legal advice. This finding is supported by substantial evidence.

A review of the record reveals that McKinnon testified that she had discussed with
Bloom the strengths and weaknesses of the State's case against him but acknowledged
that Rathbun "had the bulk of those conversations with [Bloom]." McKinnon testified
that she discussed with Bloom the speedy trial related issues and the corresponding
motion to dismiss. She acknowledged telling Bloom that he had a good speedy trial
argument and that if he entered a plea he would waive any appeal issues but clarified that
she "could not tell him with any degree of certainty what an appeal court would do" with
the issue. McKinnon stated she believed that the speedy trial issue may have factored into
Bloom's decision to reject plea offers.

Rathbun also testified that he had discussed with Bloom the strengths and
weaknesses of the State's case. He summarized his discussion about the strengths of the
State's case as follows:

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"[T]he strength of their case depended on the availability of witnesses. And if
you assume they had them available, and they were cooperative, they had an extremely
strong case. If the witnesses were not available or were not cooperative in the sense they
invoked their Fifth Amendment rights against incrimination and were not available to
testify against Mr. Bloom, they had an extremely weak case."

Rathbun also considered any evidence of Bloom's confession strengthened the State's
case.

In discussing the weaknesses of the State's case, Rathbun acknowledged that the
victim was not available. He stated:

"I . . . recall that we talked about what would happen if she were found and
brought to court, and I recall Mr. Bloom being very firm in his belief that she would not
testify against him, and l recall us admonishing him that in our experience he needed to
anticipate that might happen. We needed to plan for each eventuality and look at the
merits of each."

Rathbun also testified he and McKinnon explained to Bloom that the speedy trial issue
was complex and they could not predict an appellate court ruling on the issue. Rathbun
testified he had no specific recollection of having discussed with Bloom the strength of
the rape charge.

At the same evidentiary hearing, Bloom had the burden to raise those issues he
believed he could establish by a preponderance of the evidence that would entitle him to
relief under K.S.A. 60-1507. See K.S.A. 60-1507(b); Supreme Court Rule 183(g) (2015
Kan. Ct. R. Annot. 271). Bloom recalled his conversations with trial counsel about the
strengths and weaknesses of the State's case against him. He acknowledged having
discussed the speedy trial issue and then stated, "I was told they can't prove a rape
charge" because the victim "said it didn't happen." Bloom, however, subsequently offered
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conflicting testimony when he stated he could not recall discussing "what the possible
substance" of the victim's testimony would be. And during closing arguments, Bloom's
K.S.A. 60-1507 counsel only argued that Bloom "was led to believe . . . that the case
would be dismissed for [the] speedy trial issue" and the possibility that the victim would
not show up to testify. Bloom's K.S.A. 60-1507 counsel did not argue Bloom received
incorrect legal advice about the rape charge.

De novo review only extends to evaluating the legal conclusions the district court
made at the first hearing based on its underlying factual findings that are supported by
substantial competent evidence. See Bowen, 299 Kan. at 343. McKinnon and Rathbun's
testimony, which the district court found to be more credible than Bloom's, provided
substantial competent evidence to support both the district court's findings that Bloom's
trial counsel's conduct did not fall below an objective standard of reasonableness and its
decision to deny relief on this claim. In other words, the district court simply found
Bloom's statement that trial counsel told him the rape charge could not be proved was not
credible. On review, we do not reweigh testimony nor assess witness credibility in
deciding if substantial competent evidence exists. See Reiss, 299 Kan. at 296.

Bloom has failed—as a matter of law—to establish trial counsel's performance
was deficient. The district court did not err in denying Bloom's K.S.A. 60-1507 motion.

Affirmed.