McIntyre v. State

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NOT DESIGNATED FOR PUBLICATION

No. 119,674

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

TERRY D. MCINTYRE,
Appellant,

v.

STATE OF KANSAS,
Appellee.


MEMORANDUM OPINION

Appeal from Douglas District Court; SALLY D. POKORNY, judge. Opinion filed November 8,
2019. Affirmed.

Ryan J. Eddinger, of Kansas Appellate Defender Office, for appellant.

Kate Duncan Butler, assistant district attorney, Charles E. Branson, district attorney, and Derek
Schmidt, attorney general, for appellee.

Before GARDNER, P.J., BUSER, J., and LAHEY, S.J.

PER CURIAM: Terry D. McIntyre appeals the district court's summary denial of his
second K.S.A. 60-1507 motion. He raises two issues. First, McIntyre contends the district
court erred because it was required to conduct a full evidentiary hearing on remand to
comply with the mandate from our court. Second, McIntyre claims the district court
applied an incorrect legal standard when evaluating his claims of ineffective assistance of
appellate counsel. Upon our review, we find no error and affirm the district court's
summary denial of the second K.S.A. 60-1507 motion.

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FACTUAL AND PROCEDURAL BACKGROUND

This case has a long procedural history involving multiple proceedings in our state
and federal courts. In 2000, a jury found McIntyre guilty of rape, aggravated kidnapping,
kidnapping, aggravated robbery, and aggravated criminal sodomy. The district court
sentenced McIntyre to a controlling sentence of 645 months in prison. Our court affirmed
McIntyre's convictions in State v. McIntyre, No. 86,715, unpublished opinion filed April
26, 2002 (Kan. App.), rev. denied 274 Kan. 1116 (2002) (McIntyre I). On his direct
appeal, McIntyre was represented by Autumn L. Fox.

In April 2002, McIntyre brought a pro se legal malpractice lawsuit against his trial
counsel, James Rumsey. The district court granted summary judgment against McIntyre,
and our court affirmed. McIntyre v. Rumsey, No. 90,200, 2003 WL 22990205, at *4 (Kan.
App. 2003) (unpublished opinion) (McIntyre II).

In September 2002, McIntyre filed a pro se K.S.A. 60-1507 motion, asserting that
Rumsey provided ineffective assistance of counsel during trial and Fox provided
ineffective assistance on direct appeal. The district court held a four-day evidentiary
hearing on McIntyre's 36 claims of ineffective assistance of trial and appellate counsel.
The district court denied McIntyre's K.S.A. 60-1507 motion, finding that his ineffective
assistance claims were without merit.

McIntyre appealed the district court's denial of his first K.S.A. 60-1507 motion,
claiming the district court ignored his claims of ineffective assistance. He retained John
W. Fay as appellate counsel. Our court affirmed and found the district court's
"comprehensive" decision provided extensive findings and conclusions which addressed
the issues that McIntyre raised. McIntyre v. State, No. 94,786, 2007 WL 1309576, at *1
(Kan. App. 2007) (unpublished opinion) (McIntyre III).
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In March 2008, McIntyre sought federal habeas corpus relief. The United States
District Court for the District of Kansas, however, denied McIntyre's writ in McIntyre v.
McKune, No. 08-3089-SAC, 2011 WL 686120 (D. Kan. 2011) (unpublished opinion)
(McIntyre IV). The Tenth Circuit Court of Appeals denied McIntyre's request for a
certificate of appealability and in November 2012 the United States Supreme Court
denied certiorari.

In December 2012, McIntyre filed a second K.S.A. 60-1507 motion—which is the
subject of this appeal. In this motion, McIntyre claimed that Fay provided ineffective
assistance during the appeal of the denial of his first K.S.A. 60-1507 motion. According
to McIntyre, Fay provided ineffective assistance by failing to reassert the 36 issues that
McIntyre raised in district court. McIntyre claimed this failure resulted in the federal
court holding that he procedurally defaulted on the 36 issues which precluded federal
court review.

The district court denied McIntyre's second K.S.A. 60-1507 motion. In denying
the motion, the district court did not address whether the pleading was timely filed or
whether Fay was ineffective in his appellate representation. Instead, the district court
ruled as a matter of law that McIntyre had no constitutional or statutory right to effective
assistance of retained counsel during the appeal of his first K.S.A. 60-1507 motion.

McIntyre timely appealed, contending the district court erred by finding that he
had no right to effective assistance of retained counsel on appeal during his first K.S.A.
60-1507 motion. Our court affirmed the district court's summary denial of McIntyre's
second K.S.A. 60-1507 motion in McIntyre v. State, No. 111,580, 2015 WL 4094258, at
*3 (Kan. App. 2015) (unpublished opinion) (McIntyre V). We held that McIntyre's
motion was not timely filed within the one-year limitation period, and he failed to claim
any exception for manifest injustice as permitted under K.S.A. 60-1507(f)(2). 2015 WL
4094258, at *3. Having found that McIntyre's second K.S.A. 60-1507 motion was
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procedurally barred, we declined review on the merits of the district court's ruling and
concluded that the district court reached the correct result but for a different reason. 2015
WL 4094258, at *3-4.

Our Supreme Court granted review and reversed our decision in McIntyre v. State,
305 Kan. 616, 385 P.3d 930 (2016) (McIntyre VI). The Supreme Court determined that
"[i]n order for the district court to consider the merits of McIntyre's motion, it therefore
had to reach the threshold conclusion that it was extending the filing time to prevent
manifest injustice." 305 Kan. at 617-18. Because the State failed to object to the district
court's extension of the filing time, the Supreme Court reversed our affirmance based on
the procedural bar of K.S.A. 60-1507(f). The Supreme Court then remanded the case to
our court with directions to resolve the issue McIntyre raised in his brief on appeal. 305
Kan. at 618.

On remand from the Supreme Court, our court considered McIntyre's argument
that the district court erred by finding that a K.S.A. 60-1507 movant represented by
retained appellate counsel has no statutory right to effective legal assistance. In response
to McIntyre's argument, the State asserted that even if the district court's decision was
erroneous, any error was harmless "'because the record, motion and files demonstrated
McIntyre was not entitled to any relief.'"

In McIntyre v. State, 54 Kan. App. 2d 632, 643, 403 P.3d 1231 (2017) (McIntyre
VII), our court reversed the district court and held that McIntyre had a statutory right to
effective assistance from his retained appellate counsel during his first K.S.A. 60-1507
motion. We declined to hold the error harmless "because such a finding would require us,
as an appellate court, to resolve factual matters related to the claimed ineffectiveness of
retained appellate counsel and the record on appeal is insufficient for de novo review." 54
Kan. App. 2d at 643. Accordingly, we remanded the case to the district court "with
directions to consider whether McIntyre's retained appellate counsel provided ineffective
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assistance on appeal of the denial of McIntyre's first K.S.A. 60-1507 motion." 54 Kan.
App. 2d at 643.

On remand in the district court, the State asked to respond to McIntyre's second
K.S.A. 60-1507 motion by submitting a motion for summary denial. The district court
granted the State's request, reasoning that the case had returned to "step one" and should
be evaluated to determine whether summary denial was proper. McIntyre's attorney
agreed with the suggested procedure, stating:

"Judge, I think that is right. As you say that, maybe I am jumping ahead by
getting an expert, just anticipating there is going to be issues of fact. It strikes me that
there probably are, but that doesn't mean I am right. . . .
. . . .
"But certainly, [if] it doesn't warrant an evidentiary hearing, or only warrants a
preliminary hearing, and I think the Court can make that decision."

The State moved to deny McIntyre's second K.S.A. 60-1507 motion. The State
argued that McIntyre's allegations were conclusory and unsupported by the record, Fay's
performance was objectively reasonable, and McIntyre failed to show prejudice from any
allegedly defective performance. In response, McIntyre argued that the "mandate rule"
prevented the district court from granting the State's motion. McIntyre also asserted that
his second K.S.A. 60-1507 motion raised issues of fact and law which required an
evidentiary hearing.

The district court summarily denied McIntyre's second K.S.A. 60-1507 motion. In
particular, the district court found that none of the appellate decisions required a full
evidentiary hearing on McIntyre's motion. After reviewing the 36 issues that McIntyre
claimed Fay should have raised, the district court ruled that each issue was meritless. The
district court concluded that Fay's representation was not deficient and, even if it was
deficient, McIntyre had not shown prejudice in his appeal.
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McIntyre appeals.

APPELLATE MANDATE

McIntyre contends the district court erred by summarily denying his second
K.S.A. 60-1507 motion because the court was required to conduct a full evidentiary
hearing in order to comply with our mandate in McIntyre VII. McIntyre claims that our
court's reasoning in McIntyre VII that we were unable to hold that the district court's error
was harmless precluded the district court from summarily denying his motion on remand.
In response, the State asserts that McIntyre is barred from presenting this argument
because he raises the issue for the first time on appeal and he also invited any error.

Generally, issues not raised before the district court may not be raised on appeal.
State v. Smith, 308 Kan. 778, 784, 423 P.3d 530 (2018). But contrary to the State's
assertion, McIntyre argued the mandate rule barred summary denial of his second K.S.A.
60-1507 motion before the district court. Accordingly, McIntyre did not waive this issue.

We also find the invited-error doctrine does not prevent McIntyre from raising this
issue on appeal. Whether the invited-error doctrine applies is a question of law over
which we exercise unlimited review. State v. Parks, 308 Kan. 39, 42, 417 P.3d 1070
(2018). Under the invited-error doctrine, a party may not invite and lead a district court
into error and then complain of that error on appeal. State v. Fleming, 308 Kan. 689, 696,
423 P.3d 506 (2018). No bright-line rule exists for applying the invited-error doctrine and
courts consider the context of the party's actions in causing the alleged error when
determining whether to apply the doctrine. 308 Kan. at 701. Additionally, invited error is
a judicially created rule and thus "should be tailored as necessary to serve its particular
purpose without unnecessarily thwarting the ends of justice." State v. Hargrove, 48 Kan.
App. 2d 522, 553, 293 P.3d 787 (2013).
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At a status conference in the district court, McIntyre's counsel agreed with the
State and district court that the court had the ability to consider summarily denying
McIntyre's second K.S.A. 60-1507 motion. But, McIntyre should not be deemed to have
invited error by joining the State and district court in potentially misinterpreting the
district court's powers under our appellate mandate. See State v. Horn, 291 Kan. 1, 10,
238 P.3d 238 (2010) ("The defendant should not be deemed to have invited error by
joining with the prosecutor and trial judge in misinterpreting the court's statutory
authority.").

Most importantly, McIntyre's counsel subsequently reversed his legal position and
argued that the McIntyre VII mandate prevented summary denial. The district court
considered counsel's argument but found the appellate mandate did not require a full
evidentiary hearing. In reviewing McIntyre's actions in context, he did not invite any
error and effectively challenged the district court's authority under the McIntyre VII
mandate to deny his second K.S.A. 60-1507 motion without holding an evidentiary
hearing.

Having rejected the State's argument that McIntyre is procedurally barred from
raising the mandate argument, we will consider the merits of the claim.

K.S.A. 60-2106(c) provides that an appellate court's mandate "shall be controlling
in the conduct of any further proceedings necessary in the district court." Similarly, under
K.S.A. 20-108, a district court must execute any further proceedings "according to the
command of the appellate court made therein." Under these statutes, a district court must
follow an appellate court's mandate without exception. State v. Kleypas, 305 Kan. 224,
297, 382 P.3d 373 (2016). "In other words, a district court may address those issues
necessary to the resolution of the case that were left open by the appellate court's
mandate." Edwards v. State, 31 Kan. App. 2d 778, 781, 73 P.3d 772 (2003).

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"The appellate mandate rules are a subset of judicial policy regarding law of the
case and are designed to implement consistency and finality of judicial rulings." State v.
Dumars, 37 Kan. App. 2d 600, 603, 154 P.3d 1120 (2007). Upon remand, a district court
"must implement both the letter and spirit of the mandate, taking into account the
appellate court's opinion and the circumstances it embraces." State v. Collier, 263 Kan.
629, Syl. ¶ 4, 952 P.2d 1326 (1998). When an appellate mandate decides a particular
issue—either by explicit language or by necessary implication—the district court is
foreclosed from reconsidering that issue. However, if the mandate does not direct the
judgment of the district court, the district court possesses discretion over the remaining
trial proceedings. Edwards, 31 Kan. App. 2d at 781.

The interpretation of an appellate court mandate is a question of law subject to
unlimited review. Gannon v. State, 303 Kan. 682, 702, 368 P.3d 1024 (2016). Similarly,
whether a district court complied with an appellate mandate presents a question of law
which we review de novo. State v. Warren, 307 Kan. 609, 612, 412 P.3d 993 (2018).
When examining a district court's actions for compliance with an appellate mandate, we
look to both the language of the mandate and any attendant circumstances. Gannon, 303
Kan. at 703.

In considering a K.S.A. 60-1507 motion, a district court has three procedural
options:

"First, it may determine that the motion, files, and records of the case conclusively show
that the movant is entitled to no relief, in which case it will summarily deny the motion.
Second, the court may determine from the motion, files, and record that a substantial
issue or issues are presented, requiring a full evidentiary hearing with the presence of the
movant. Third, the court may determine that a potentially substantial issue or issues of
fact are raised in the motion, supported by the files and record, and hold a preliminary
hearing after appointment of counsel to determine whether in fact the issues in the motion
are substantial." Mundy v. State, 307 Kan. 280, Syl. ¶ 7, 408 P.3d 965 (2018).
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In keeping with these procedural options, an evidentiary hearing on a K.S.A. 60-
1507 motion is only required when a district court determines that the motion presents
substantial issues of law or fact. 307 Kan. at 302. But if the motion, files, and records
conclusively show that the movant is not entitled to relief, the district court may deny the
motion without holding an evidentiary hearing.

In this case, no appellate court determined that McIntyre's motion presented
substantial issues of law or fact. The district court originally denied McIntyre's motion,
finding that he had no right to effective assistance of retained appellate counsel during his
first K.S.A. 60-1507 motion. Our court affirmed, finding that McIntyre's motion was
procedurally barred as untimely. Our Supreme Court reversed and remanded with
directions to our court to address McIntyre's argument that the district court erred by
finding that he had no right to effective assistance of retained counsel.

On remand, although we found that McIntyre had a statutory right to effective
assistance from retained counsel, McIntyre VII, 54 Kan. App. 2d at 643, our court refused
to find the error harmless. As a result, we reversed and remanded "with directions to
consider whether McIntyre's retained appellate counsel provided ineffective assistance on
appeal of the denial of McIntyre's first K.S.A. 60-1507 motion." 54 Kan. App. 2d at 643.

As previously stated, a district court may address issues necessary to resolving a
case which were left outstanding by the appellate court's mandate. But the district court
may not reconsider an issue which an appellate court has decided by explicit language or
by necessary implication.

Our court in McIntyre VII did not explicitly decide whether McIntyre's K.S.A. 60-
1507 motion required an evidentiary hearing upon remand. Ordinarily, an explicit ruling
by the appellate court is easily identified in the opinion. Edwards, 31 Kan. App. 2d at
781. Unlike the mandate in McIntyre VII, when our court determines that a K.S.A. 60-
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1507 motion requires an evidentiary hearing, we typically state that the case is remanded
for an evidentiary hearing. See, e.g., Harris v. State, No. 115,185, 2017 WL 840227, at
*2 (Kan. App. 2017) (unpublished opinion). In this case, instead of mandating an
evidentiary hearing, we remanded with directions to the district court to consider
McIntyre's claims that Fay provided ineffective appellate assistance in McIntyre's first
K.S.A. 60-1507 motion. No express language in McIntyre VII directed that the district
court conduct an evidentiary hearing or precluded a summary review of McIntyre's
K.S.A. 60-1507 motion.

Our court's decision in McIntyre VII also did not implicitly rule that an evidentiary
hearing was required on remand. We have adopted a three-pronged test for determining
whether an appellate decision implicitly foreclosed further inquiry into a subject:

"(1) the issue necessarily had to have been considered in the prior appeal in order to reach
a decision; (2) consideration of the issue on remand would abrogate the appellate court's
decision; or (3) the issue is so closely related to an issue explicitly resolved by the
appellate court that no additional consideration is necessary." Edwards, 31 Kan. App. 2d
at 781.

In McIntyre VII the State did not rebut McIntyre's claim that he had the statutory
right to effective assistance of retained appellate counsel in his first K.S.A. 60-1507
motion. 54 Kan. App. 2d at 636. Instead, the State argued that any error was harmless
because the record, motion, and files showed that McIntyre was not entitled to relief.
Citing Wimbley v. State, 292 Kan. 796, 807, 275 P.3d 35 (2011), our court refused to find
the error harmless, noting:

"We decline the State's invitation to find the district court's erroneous legal
conclusion to be harmless error because such a finding would require us, as an appellate
court, to resolve factual matters related to the claimed ineffectiveness of retained
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appellate counsel and the record on appeal is insufficient for de novo review." McIntyre
VII, 54 Kan. App. 2d at 643.

By refusing to decide the merits of McIntyre's claims for the first time on appeal,
the McIntyre VII court held the case did not present the extraordinary circumstances
permitting it to find ineffective assistance of counsel as a matter of law without a prior
determination in the district court. See Wimbley, 292 Kan. at 807-08. In Wimbley, our
Supreme Court reiterated:

"'[I]n most cases a district court must consider the evidence to determine the two-prong
test for establishing ineffective assistance of counsel, which requires a defendant to show
(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) defendant was
prejudiced to the extent that there was a reasonable probability of success but for
counsel's deficient performance.'" 292 Kan. at 807 (quoting Trotter v. State, 288 Kan.
112, Syl. ¶ 10, 200 P.3d 1236 [2009]).

The Wimbley court continued:

"Only under extraordinary circumstances, i.e., where 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, may an appellate court consider an ineffective assistance
of counsel claim without a district court determination of the issue." (Emphasis added.)
292 Kan. at 807.

We are persuaded that the district court faithfully executed our mandate issued in
McIntyre VII. This conclusion is supported by our review of the transcript of the remand
hearing. At the outset, the district court provided a summary of the case facts developed
during the jury trial. It then reviewed the procedural history of the case highlighting the
relevant legal and factual claims made by McIntyre in his postconviction proceedings.
The district court then analyzed the 36 claims McIntyre unsuccessfully raised in the
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district court that he asserted should have been appealed in his first K.S.A. 60-1507
motion. This comprehensive review comprised 18 pages of transcript. The district judge
explained her detailed analysis:

"So the reason I have gone through all of those [36 claims] is because there
seems to be some argument that in the other courts that have looked at these issues, that
they have not thoroughly examined Mr. McIntyre's issues that he has raised. So as far
as—that is sort of all of the facts to go through and look at."

Having considered the facts underlying McIntyre's 36 claims, the district court
mentioned the law relevant to ineffective assistance of appellate counsel claims. In
particular, the district court noted that appellate counsel should exercise professional
judgment in not presenting frivolous appellate issues and that it was appellate counsel's
prerogative to present only meritorious matters to the appellate courts.

Applying the law to the facts, the district judge stated, "I can only emphasize that a
number of [claims] are frivolous." The district court also related that it had reviewed the
lengthy and detailed memorandum from the Honorable Sam Crowe, the federal district
court judge who concluded that, although McIntyre's federal habeas corpus petition was
procedurally defaulted, "he still examined [33 allegations] and found that there was just
no basis or anything in any of those claims that, even if they were not defaulted, would
have convinced any court that trial counsel was ineffective." See McIntyre IV, 2011 WL
686120. In this way—and consistent with our mandate—the district court fully
considered McIntyre's claims and found there was no basis for an allegation of ineffective
assistance of appellate counsel because Fay did not appeal the 36 meritless issues.

Our court's refusal to find the district court's error harmless in McIntyre VII did not
preclude summary denial of McIntyre's K.S.A. 60-1507 motion on remand. Rather, our
mandate in McIntyre VII directed the district court to consider whether Fay provided
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ineffective assistance during the appeal of McIntyre's first K.S.A. 60-1507 motion. An
evidentiary hearing was not required. Instead, the mandate left open the issue of whether
the motion, files, and records of the case conclusively showed that McIntyre was entitled
to no relief. Here, the district court conducted a lengthy hearing, considered arguments of
counsel and briefing, and then concluded that McIntyre's second K.S.A. 60-1507 motion
should be denied without an evidentiary hearing. We can find no error in this procedure.

Accordingly, we find the district court complied with the mandate in McIntyre VII
when it denied McIntyre's second K.S.A. 60-1507 motion without conducting an
evidentiary hearing.

APPLICATION OF THE CORRECT LEGAL STANDARD

McIntyre also contends the district court erred when it denied his K.S.A. 60-1507
motion because it applied an incorrect legal standard. He claims the district court
improperly considered whether his arguments "would have been successful on appeal"
instead of having a "reasonable probability of success" when addressing whether Fay's
failure to raise those arguments prejudiced McIntyre. We exercise unlimited review over
whether the district court applied the correct legal standards. Harrison v. Tauheed, 292
Kan. 663, 677, 256 P.3d 851 (2011).

The appropriate legal standards governing McIntyre's claims of ineffective
assistance of counsel are well established. To prove ineffective assistance of appellate
counsel, McIntyre was required to 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) the defendant was prejudiced to the extent that there is a
reasonable probability that, but for counsel's deficient performance, the appeal would
have been successful." State v. Salary, 309 Kan. 479, 483, 437 P.3d 953 (2019).

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In this case, the district court found that had appellate counsel raised and briefed
the 36 issues requested by McIntyre, "there is just no likelihood of success on appeal."
McIntyre relies on this statement and argues that the district court applied "a more
stringent 'would have succeeded on appeal' standard" when addressing the prejudice
prong of his ineffective assistance claims.

McIntyre's argument ignores the district court's recitation of the proper legal
standards at the remand hearing. After addressing each of the 36 claims that McIntyre
argued Fay should have raised, the district court noted that McIntyre had the right to
effective assistance of appellate counsel during his first K.S.A. 60-1507 motion. The
district court then stated that to succeed on the claims of ineffective assistance, McIntyre
needed to prove prejudice by showing "there was a reasonable probability that, but for
counsel's deficient performance, the appeal would have been successful." The district
court then found that McIntyre failed to show prejudice because none of the issues that he
alleged Fay should have raised had appellate merit.

The district court's recitation of the proper legal standards reveals that it was well
aware of the burdens that Kansas caselaw places on a party to establish ineffective
assistance of counsel. By finding that none of McIntyre's claims had merit, the district
court appropriately found that McIntyre suffered no prejudice from Fay's failure to raise
those claims. See Johnson v. State, No. 110,317, 2014 WL 5312933, at *5 (Kan. App.
2014) (unpublished opinion) ("Johnson could have suffered no prejudice from the failure
to raise points that have no legal merit."). We find that the district court applied the
correct standard of review in ruling that McIntyre failed to show prejudice in the legal
assistance provided by his appellate counsel.

Affirmed.