Iserhardt v. State

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NOT DESIGNATED FOR PUBLICATION

No. 111,269

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

MICHAEL ISERHARDT,
Appellant,

v.

STATE OF KANSAS,
Appellee.


MEMORANDUM OPINION

Appeal from Shawnee District Court; EVELYN Z. WILSON, judge. Opinion filed October 16,
2015. Affirmed.

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

Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before MALONE, C.J., MCANANY and ATCHESON, JJ.

Per Curiam: Michael Iserhardt appeals the Shawnee County District Court's
denial of his untimely motion for habeas corpus relief from his plea of no contest to
aggravated sexual battery and the resulting sentence. Iserhardt contends he was mentally
incompetent to enter the plea—something he says both his lawyer and the district court
taking the plea should have realized. After an evidentiary hearing on the habeas corpus
motion, the district court concluded Iserhardt had failed to show manifest injustice
excusing the requirement in K.S.A. 60-1507(f) that such motions be filed within 1 year
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after the conclusion of direct proceedings in the criminal case. We find no error and
affirm.

In late 2009, the Shawnee County District Attorney charged Iserhardt with one
count of attempted rape, then a severity level 3 person felony violation of K.S.A. 21-
3502, and aggravated sexual battery, then a severity level 5 person felony violation of
K.S.A. 21-3518, arising from an incident more than 3 years earlier. The victim was a 20-
year-old woman. Throughout the case, Iserhardt contended he and the woman had a
consensual encounter. The victim consistently maintained otherwise.

Iserhardt's appointed lawyer worked out a plea arrangement with the district
attorney under which Iserhardt would plead no contest to the lesser charged offense of
aggravated sexual battery in exchange for dismissal of the attempted rape charge. In
February 2010, Iserhardt did so. The district court taking the plea found Iserhardt
knowingly and voluntarily decided to resolve the charges that way and adjudged him
guilty of aggravated sexual battery based on the prosecutor's factual proffer establishing
the elements of that offense.

In May 2010, the district court sentenced Iserhardt to 110 months in prison as a
persistent sexual offender. At the sentencing hearing, Iserhardt personally addressed the
district court to explain the incident had been consensual and to ask for leniency.
Iserhardt filed no direct appeal, so the time for appellate review expired in mid-2010.

On July 3, 2012, Iserhardt filed a pro se motion under K.S.A. 60-1507 challenging
the constitutional propriety of his conviction on various grounds, including his lack of
competency during the plea hearing. The district court appointed a lawyer to represent
Iserhardt on his 60-1507 motion. The lawyer later filed an amended motion alleging
Iserhardt's counsel in the direct criminal case was constitutionally ineffective for not
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investigating Iserhardt's mental health history and recognizing him to be incompetent at
the plea hearing.

The lawyer also filed a motion to correct Iserhardt's sentence as illegal under
K.S.A. 22-3504. The district court denied that motion, a ruling we have considered in a
separate appeal. See State v. Iserhardt, No. 111,270 (this day decided) (Kan. App. 2015)
(unpublished opinion). The challenge to the sentence has no particular bearing on the
issue in this appeal.

We point out several other procedural or factual matters before getting to the
substance of Iserhardt's claim. The lawyer representing Iserhardt in the direct criminal
case did not testify at the 60-1507 hearing, nor did the victim of Iserhardt's assault. The
district court judge hearing and ruling on the 60-1507 motion did not take Iserhardt's plea
in the direct criminal case but did sentence him. So the judge actually saw Iserhardt and
interacted with him in 2010.

As to the substantive issue, we start with some givens. If a criminal defendant is
mentally incompetent in the sense that he or she does not understand the legal
proceedings and cannot assist in them, he or she cannot enter a valid plea. A plea from an
incompetent defendant violates the due process protections of the Fourteenth Amendment
to the United States Constitution and must be set aside. See State v. Shopteese, 283 Kan.
331, 339, 153 P.3d 1208 (2007); United States v. Wingo, 789 F.3d 1226, 1234-35 (11th
Cir. 2015). A lawyer knowingly permitting an incompetent client to enter a plea leading
to an adjudication of guilt almost certainly would have provided constitutionally
inadequate representation under the Sixth Amendment to the United States Constitution.

Under K.S.A. 60-1507(f)(1), a movant must file for habeas corpus relief within 1
year after the termination of appellate jurisdiction over the direct criminal case. Iserhardt
filed his petition past the 1-year limit. But the time bar may be excused "to prevent a
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manifest injustice." K.S.A. 60-1507(f)(2). The movant bears the burden of proving
grounds for relief by a preponderance of the evidence. Kansas Supreme Court Rule
183(g) (2014 Kan. Ct. R. Annot. 285). Accordingly, Iserhardt had to prove to the district
court that granting his motion would avert a manifest injustice.

The Kansas Supreme Court recently outlined pertinent factors for determining
whether claims made in an untimely 60-1507 proceeding establish manifest injustice to
include: (1) persuasive reasons for failing to file a timely motion; (2) substantial legal or
factual grounds indicative of a claim "deserving of the district court's consideration" on
the merits; and (3) a "colorable claim" of actual innocence. Vontress v. State, 299 Kan.
607, 616, 325 P.3d 1114 (2014). The ultimate determination of manifest injustice
depends upon the totality of the circumstances of a given 60-1507 proceeding, and no one
consideration controls the outcome. 299 Kan. at 616-17.

Dr. Robert W. Barnett, a clinical psychologist, examined Iserhardt and testified at
the hearing on the 60-1507 motion. Dr. Barnett noted that Iserhardt suffered a traumatic
head injury when he was 3 years old and the injury impaired his learning, social
functioning, and comprehension. At the hearing, Dr. Barnett agreed Iserhardt's history
and limited abilities should have "raised considerable flags" about his intellectual
capacity to enter a plea and to grasp what was being asked of him in that process.
According to Dr. Barnett, Iserhardt lacked the capacity to knowledgeably and
understandably enter a plea without "a great deal of care . . . to properly orient" him to the
proceeding. But Dr. Barnett also reported that Iserhardt could read at the high school
level and displayed adequate language skills during the psychological testing and
examination. On an IQ test Dr. Barnett administered, Iserhardt scored as mildly mentally
retarded in areas other than verbal comprehension.

Iserhardt testified that he was under a great deal of stress around the time of the
plea and in stressful environments his brain "shuts down." Iserhardt said the lawyer
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representing him in the direct criminal case showed him the plea agreement just before
the plea hearing and they never discussed it fully. According to Iserhardt, he answered
"yes" to each of the district court's questions during the plea hearing simply as an
"instinctive response." Iserhardt testified he really did not understand what he agreed to
in the plea. Iserhardt's father also testified about Iserhardt's difficulty in understanding
and taking directions. He said he discussed Iserhardt's limitations with the lawyer
handling the direct criminal case.

The transcripts of the plea hearing and the sentencing are part of the appellate
record, so we have reviewed them. At the plea hearing, Iserhardt told the district court he
was 34 years old, had completed high school, and could read and write English. The
transcript shows that Iserhardt answered a number of the district court's questions in the
negative, such as whether he had been promised anything or threatened in some way to
cause him to enter a plea. So contrary to Iserhardt's assertion during the 60-1507 hearing,
he was not simply answering questions affirmatively as the result of a stressed-induced
stupor or a mental impairment that left him incapable of discernment. During the plea
hearing, Iserhardt agreed he had adequate time to consult with his lawyer and had no
complaints about his legal representation. He also agreed that he had freely and
voluntarily signed a written plea agreement outlining the reduction in charges, the
maximum sentence, and rights he would be giving up by pleading no contest.

At the plea hearing, the district court covered a range of matters, including those in
the written agreement, and in doing so set out a sufficient legal basis for accepting
Iserhardt's plea. Iserhardt doesn't suggest otherwise. The hearing was conducted in a way
that Iserhardt really had to answer only "yes" or "no" to the vast majority of the district
court's questions and was not required to give any narrative responses. Nothing in the
transcript indicates Iserhardt to have been incompetent or uncomprehending. His
answers, though exceptionally short, were logically appropriate. And he did not engage in
any tangential conversation, let alone musings that could be characterized as strange or
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babbling. But a transcript would not capture unusually long pauses between question and
answer, hesitancy or tentativeness in tone of voice, or other cues suggestive of uneasiness
or confusion.

At the sentencing hearing, about 3 months later, Iserhardt personally made a pair
of lengthy statements to the district court. In the first, he explained why he likely would
be unable to reimburse the cost of his court-appointed lawyer if those fees were assessed
against him. The explanation is logical and coherent. The district court wound up
agreeing with Iserhardt and declined to assess the fees.

Second, Iserhardt made an extended statement to the district court about why he
ought to be treated with leniency. As we have indicated, he admitted having sexual
contact with the victim but insisted the activity was consensual. Iserhardt suggested the
victim lied because she didn't want to upset her boyfriend. The presentation was direct
and comprehensible—it did not display bizarre or disordered thinking, such as blaming
CIA thought-control rays or space aliens. In making his presentation, Iserhardt clearly
grasped the sentence he faced and suggested several lesser alternatives to the district
court. As a tactical matter, Iserhardt may have done himself no favors by denying
responsibility and painting the victim as a liar. The district court didn't go for it. But
Iserhardt's statement undercuts any fair notion that he might have been legally
incompetent at the sentencing.

When Iserhardt was transferred to the custody of the Kansas Department of
Corrections shortly after his sentencing, he went through an evaluation to assist in placing
him at a particular facility. The written report was admitted at the 60-1507 hearing and
showed Iserhardt to have mild mental retardation and a borderline personality disorder
with antisocial features. It did not indicate mental incompetence or a lack of orientation.

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The district court concluded Iserhardt had failed to prove a manifest injustice
excusing the untimely filing of the 60-1507 motion. The district court relied primarily on
the transcript of the plea hearing, the Department of Corrections report, and Iserhardt's
appearance and testimony at the 60-1507 hearing to conclude he was legally competent at
the plea hearing. All of that would be circumstantial evidence supporting his competency
to enter the plea. The district court found Iserhardt to be "appropriate in his demeanor" at
the 60-1507 hearing and "articulate" and "appropriate in his word use in testifying." In
short, the district court concluded nothing at the hearing indicated he might be or have
been incompetent.

The district court also found Iserhardt's assertion that his encounter with the victim
resulted in consensual sexual activity did not create a manifest injustice, since there was
no particular reason to conclude a jury would necessarily find his version credible. While
Iserhardt's version of the events would have provided a defense at trial had the jurors
believed it, the district court correctly recognized such evidence does not in and of itself
advance a claim of actual innocence and, thus, of manifest injustice in contrast to, say, a
victim's recantation or compelling forensic evidence implicating someone other than a
defendant who has disclaimed involvement in the crime. (Here, DNA evidence placed
Iserhardt in the victim's presence and indicated a sexual encounter. But the evidence was
neither especially inculpatory nor exculpatory, since Iserhardt admitted as much.) In his
60-1507 motion, Iserhardt identified by name witnesses he asserted would have testified
to information calling the victim's credibility into question. He presented no evidence at
the hearing pertaining to that assertion. Such evidence, however, fails to support a claim
of actual innocence. See Neer v. State, No. 111,230, 2015 WL 1310815, at *4 (Kan. App.
2015) (unpublished decision); Patterson v. Bartlett, 56 Fed. Appx. 762 (9th Cir. 2002).

When reviewing the denial of a 60-1507 motion after a full evidentiary hearing, an
appellate court accepts the district court's findings of fact to the extent that they are
supported with substantial competent evidence. The appellate court exercises unlimited
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review of the determinative legal issues. Thompson v. State, 293 Kan. 704, 715-16, 270
P.3d 1089 (2011); Bellamy v. State, 285 Kan. 346, 355, 172 P.3d 10 (2007).

We take the district court's statement that Iserhardt's "mental issues at the time of
the plea hearing were not significant enough to show it would be manifestly unjust for
the conviction to stand" to be a factual finding of competency. Although the
determination is couched as a conclusion, it necessarily entails that factual finding.
Without rehashing what has been laid out, there is ample evidence to support the finding,
including the transcripts of the plea hearing and sentencing and the district court's
observation of Iserhardt during the 60-1507 hearing. The district court implicitly
discounted Dr. Barnett's ultimate opinion—which did not entail a conclusion that
Iserhardt was, in fact, incompetent at the plea hearing but that he might have been. Again,
the other evidence compiled at the 60-1507 hearing supports the district court's decision
to give little weight to Dr. Barnett's opinion.

Those findings emphatically point against manifest injustice based on the merits of
the 60-1507 claim, one of the factors expressly mentioned in Vontress. In other words,
there isn't much in the way of evidence that Iserhardt was legally incompetent when he
entered his plea. As to the other factors listed in Vontress, we have noted Iserhardt
presented no evidence suggesting a substantial reason for his delay in filing the 60-1507
motion. So that also points against manifest injustice. Finally, as we have indicated,
Iserhardt presented nothing advancing a substantial claim for actual innocence, the third
factor. Nor did he offer evidence suggesting some other ground for manifest injustice in
the direct criminal case. Accordingly, we agree with the district court that Iserhardt has
failed to prove a manifest injustice excusing the 1-year time bar on 60-1507 motions. The
motion, therefore, was properly dismissed as untimely. As a practical matter, we also
necessarily conclude that Iserhardt has failed to prove he was legally incompetent when
he entered his plea of no contest. Apart from the time bar, that claim fails on the merits,
too.
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As an alternative issue on appeal, Iserhardt contends the district court made
insufficient findings in its written order denying the 60-1507 motion. He says the district
court didn't comply with Rule 183(j) (2014 Kan. Ct. R. Annot. 287) because the order
didn't include findings on "all issues presented" in his motion, specifically: (1) the
lawyer's failure to investigate his mental capacity; (2) a conflict of interest; and (3) the
lawyer's failure to call the witnesses who ostensibly would have impaired the victim's
credibility. As Iserhardt acknowledges, the remedy on this issue would require a remand
to the district court for additional findings. We conclude, however, the district court
adequately addressed the points.

First, since Iserhardt was competent to enter a plea, the lawyer's failure to
investigate his capacity—assuming there was a failure—made no difference. The district
court's order necessarily recognized as much as a component of its ruling on manifest
injustice. No specific finding was required. In his motion, Iserhardt simply stated "[a]
conflict of interest was found in my case" without any elaboration. He presented no
evidence at the 60-1507 hearing as to a conflict. The claim was abandoned, and the
district court had no obligation to make any formal findings of fact about it. See State v.
Rojas-Marceleno, 295 Kan. 525, 543, 285 P.3d 361 (2012) (claim not adequately briefed
deemed abandoned). Although the district court did not directly address the potential
witness testimony Iserhardt mentioned in his motion, he abandoned the point by not
producing the witnesses at the hearing or at least offering sworn or attested statements
from them. The secondhand assertions in the motion may have been sufficient to go
forward, but they were not good enough at an evidentiary hearing.

Affirmed.