Rowell v. State

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NOT DESIGNATED FOR PUBLICATION

No. 115,711

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

JAMES ROWELL,
Appellant,

v.

STATE OF KANSAS,
Appellee.

MEMORANDUM OPINION


Appeal from Geary District Court; DAVID R. PLATT, judge. Opinion filed September 22, 2017.
Affirmed.

Sam S. Kepfield, of Hutchinson, for appellant.

Michelle L. Brown, assistant county attorney, and Derek Schmidt, attorney general, for appellee.

Before MALONE, P.J., PIERRON and BRUNS, JJ.

PER CURIAM: In 2003, James Rowell pled no contest to one count of attempted
first-degree murder, one count of aggravated robbery, and one count of aggravated
kidnapping. In 2014, he filed a K.S.A. 60-1507 motion. The district court summarily
dismissed the motion as untimely. Rowell appeals, alleging the district court erred in
dismissing his motion because it presented substantial issues of law and fact. We affirm.

On July 12, 2002, the State charged Rowell with one count of attempted first-
degree murder, one count of aggravated robbery, one count of aggravated kidnapping,
one count of conspiracy to commit first-degree murder, one count of conspiracy to
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commit aggravated robbery, one count of conspiracy to commit aggravated kidnapping,
and one count of possession of marijuana. The charges arose out of an incident in April
2002, in which Rowell and two codefendants carjacked a vehicle and kidnapped the
driver, Michael Streeter, at gunpoint. The three codefendants took Streeter and the
vehicle to Junction City. On the way, Rowell sat in the back seat with Streeter and held a
gun to Streeter's head. Once they arrived in Junction City, Rowell and his codefendants
ordered Streeter to get out of the vehicle. Someone pistol-whipped Streeter, and one of
Rowell's codefendants hit Streeter multiple times with a machete. Streeter remembered
that someone was strangling him before he became unconscious.

Rowell was 17 years old at the time of the crime, but the district court certified
him for adult prosecution under K.S.A. 38-1636. On March 3, 2003, he pled no contest to
one count of attempted first-degree murder, one count of aggravated robbery, and one
count of aggravated kidnapping. On April 4, 2003, the district court sentenced him to 310
months' imprisonment. Rowell appealed, but the Court of Appeals dismissed the appeal
for lack of jurisdiction because Rowell had received a presumptive sentence. State v.
Rowell, No. 92,560, 2005 WL 824101 (Kan. App. 2005) (unpublished opinion) (Rowell
I). The mandate issued on May 16, 2005.

On January 24, 2011, Rowell filed a pro se motion to correct an illegal sentence
arguing the district court did not have jurisdiction to sentence him due to errors regarding
his adult certification. The court summarily denied the motion. The Court of Appeals
affirmed, finding that substantial competent evidence supported the district court's
decision to certify Rowell for adult prosecution, and the court properly considered the
statutory factors listed in K.S.A. 38-1636(e). State v. Rowell, No. 106,713, 2012 WL
4794652 (Kan. App. 2012) (unpublished opinion) (Rowell II).

On July 10, 2014, Rowell filed a pro se motion under K.S.A. 60-1507. He asserted
eight grounds for relief: (1) trial counsel was ineffective for failing to advise him of his
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potential sentences before entering the plea agreement; (2) trial counsel was ineffective
for failing to object to judicial misconduct during sentencing; (3) trial counsel was
ineffective for failing to appeal his adult certification; (4) he should be allowed to
withdraw his plea because trial counsel did not advise him of his potential sentence; (5)
trial counsel was ineffective for failing to investigate potential witnesses for his adult
certification hearing; (6) trial counsel was ineffective for failing to present any evidence
at the adult certification hearing; (7) the State violated due process by offering the
affidavit of probable cause into evidence at the certification hearing; and (8) appellate
counsel for Rowell's K.S.A. 22-3504 motion was ineffective for failing to raise every
issue in his original motion on appeal.

Before ruling on the motion, the district court held a status hearing with the State
and Rowell's appointed counsel. The court had appointed counsel to review Rowell's
motion, but all parties present agreed the motion was untimely. The court summarily
denied the motion, finding it had not been filed within the one-year time limit for K.S.A.
60-1507 motions. Rowell appeals.

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. Sola-Morales v. State,
300 Kan. 875, 881, 335 P.3d 1162 (2014). A defendant has one year from when a
conviction becomes final to file a motion under K.S.A. 60-1507(a). K.S.A. 60-1507(f)(1).
The district court may extend the one-year time limitation for bringing an action under
K.S.A. 60-1507(f)(1) only to prevent a manifest injustice. K.S.A. 60-1507(f)(2). Manifest
injustice must be determined from the totality of the circumstances. Vontress v. State, 299
Kan. 607, 616, 325 P.3d 1114 (2014). A defendant who files a motion under K.S.A. 60-
1507 outside the one-year time limitation in K.S.A. 60-1507(f) and fails to affirmatively
assert manifest injustice is procedurally barred from maintaining the action. State v.
Trotter, 296 Kan. 898, 905, 295 P.3d 1039 (2013).
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Rowell filed his K.S.A. 60-1507 motion nine years after his conviction became
final. This is clearly outside the one-year time limitation for K.S.A. 60-1507 motions.
Rowell did not affirmatively assert manifest injustice at the district court level. On
appeal, he argues his claims amount to manifest injustice because they raise substantial
issues of law or fact.

Effective July 1, 2016, the Kansas Legislature amended K.S.A. 60-1507, adding
subsection (f)(2)(A), which states:

"For purposes of finding manifest injustice under this section, the court's inquiry shall be
limited to determining why the prisoner failed to file the motion within the one-year time
limitation or whether the prisoner makes a colorable claim of actual innocence. As used
herein, the term actual innocence requires the prisoner to show it is more likely than not
that no reasonable juror would have convicted the prisoner in light of new evidence."
K.S.A. 2016 Supp. 60-1507(f)(2)(A).

A number of unpublished Kansas Court of Appeals decisions have held the amendment
applies retroactively because it is procedural rather than substantive, and it only partially
limits the inquiry for determining if manifest injustice exists. See, e.g., State v. Phoenix,
No. 115,694, 2017 WL 1826048, at *3 (Kan. App. 2016) (unpublished opinion), petition
for rev. filed June 5, 2017; Olga v. State, No. 115,334, 2017 WL 840296, at *2-3 (Kan.
App. 2016) (unpublished opinion), petition for rev. filed April 3, 2017; Perry v. State,
No. 115,073, 2017 WL 462659, at *3 (Kan. App. 2016) (unpublished opinion), petition
for rev. filed March 2, 2017. Even if this court applies K.S.A. 2016 Supp. 60-
1507(f)(2)(A) retroactively, Rowell has failed to allege manifest injustice. He has not
provided a reason why he did not file this motion within the one-year time limit nor does
he bring a colorable claim of actual innocence.

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Even under the prior standard for manifest injustice, however, Rowell's claims still
fail. In determining whether manifest injustice exists, courts previously could also
consider whether the merits of the movant's claims raised substantial issues of law or fact
deserving of the district court's consideration. See Vontress, 299 Kan. 607, Syl. ¶ 7. The
record conclusively shows Rowell did not raise any substantial issues of law or fact.

Trial Counsel's Representation at Rowell's Adult Certification Hearing

Rowell's primary argument on appeal is that his trial counsel was ineffective at his
adult certification hearing. Under K.S.A. 38-1636, the State may move to have the district
court authorize adult prosecution for a juvenile offender. K.S.A. 38-1636(a)(1). Upon
such a motion, the court must hold a hearing and rule on the motion before any further
proceedings. K.S.A. 38-1636(c). In determining whether to prosecute a juvenile offender
as an adult, the court considers eight factors:

"(1) The seriousness of the alleged offense and whether the protection of the
community requires prosecution as an adult or designating the proceeding as an extended
jurisdiction juvenile proceeding;
"(2) whether the alleged offense was committed in an aggressive, violent,
premeditated or willful manner;
"(3) whether the offense was against a person or against property. Greater weight
shall be given to offenses against persons, especially if personal injury resulted;
"(4) the number of alleged offenses unadjudicated and pending against the
respondent;
"(5) the previous history of the respondent, including whether the respondent had
been adjudicated a juvenile offender under this code and, if so, whether the offenses were
against persons or property, and any other previous history of antisocial behavior or
patterns of physical violence;
"(6) the sophistication or maturity of the respondent as determined by
consideration of the respondent's home, environment, emotional attitude, pattern of living
or desire to be treated as an adult;
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"(7) whether there are facilities or programs available to the court which are
likely to rehabilitate the respondent prior to expiration of the court's jurisdiction under
this code; and
"(8) whether the interests of the respondent or of the community would be better
served by criminal prosecution or extended jurisdiction juvenile prosecution." K.S.A. 38-
1636(e).

Because Rowell was 17 years old at the time of the crime and the State charged
him with a person felony and a felony committed while in possession of a firearm,
Rowell was presumed to be an adult. K.S.A. 38-1636(a)(2)(A). At the hearing, he bore
the burden of rebutting this presumption. K.S.A. 38-1636(a)(2).

The district court held a certification hearing on May 15, 2002. Ronald Hodgson
represented Rowell at the hearing. Linda Barnes-Pointer was present at the hearing. She
had been appointed as Rowell's counsel in the event the court chose to certify Rowell for
adult prosecution.

During the hearing, the district court granted a recess to give Hodgson an
opportunity to go over the charges in the State's second amended complaint with Rowell.
After the recess, Hodgson called Rowell to testify. Rowell's mother was also at the
hearing "in case there's some clarification that's necessary," though she did not testify.

Rowell told the court he was 17 years old and lived with his mother. He did not
have a job prior to April 2002 and was completely financially dependent on his mother.
He had dropped out of high school, but he had enrolled in an alternative school to
complete his GED. Before being arrested, he had planned on going to the Job Corps.
Rowell felt he was better suited for the juvenile system because he did not have a
criminal record, and he had been a good citizen.

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The State then called Sergeant Samuel Niemczyk. Niemczyk had written the
affidavit of probable cause for Rowell's arrest. The State offered into evidence
Niemczyk's affidavit as well as photographs Niemczyk had taken of Streeter's injuries.

After the presentation of evidence, both parties presented closing arguments. The
court then continued the hearing in order to take the matter under advisement. On May
22, 2002, the court held another hearing to rule on the certification. The court found
Rowell met the criteria for adult prosecution and was unable to rebut the presumption.
The court found that factors (1), (2), (3), (4), (7), and (8) all favored adult prosecution
because of the gravity and number of offenses charged and the manner in which they
were committed. The court also found that Rowell had no previous criminal history, and
the evidence did not weigh one way or the other as to factor (6).

Rowell asserts Hodgson was ineffective because he failed to investigate any
defenses or rebuttal evidence, and he failed to present any rebuttal evidence at the adult
certification hearing. To prevail on a claim of ineffective assistance of counsel, a criminal
defendant must establish (1) that the performance of defense counsel was deficient under
the totality of the circumstances, and (2) prejudice, i.e., that there is a reasonable
probability the outcome of the proceeding would have been different absent the deficient
performance. Sola-Morales v. State, 300 Kan. 875, 882, 335 P.3d 1162 (2014) (relying on
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674, reh.
denied 467 U.S. 1267 [1984]). If a defendant fails to establish prejudice, this court may
deny relief without addressing the adequacy of counsel's representation. See 466 U.S. at
697 ("If it is easier to dispose of an ineffectiveness claim on the ground of lack of
sufficient prejudice . . . that course should be followed."); Sola-Morales v. State, 300
Kan. 875, 886, 335 P.3d 1162 (2014).

The decision on which witnesses to call is a strategic decision within the exclusive
purview of counsel. Bledsoe v. State, 283 Kan. 81, 92, 150 P.3d 868 (2007). If counsel
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has made a strategic decision after making a thorough investigation of the law and the
facts relevant to the realistically available options, then counsel's decision is virtually
unchallengeable. Strategic decisions made after a less than comprehensive investigation
are reasonable exactly to the extent a reasonable professional judgment supports the
limitations on the investigation. State v. Cheatham, 296 Kan. 417, 437, 292 P.3d 318
(2013) (citing Strickland, 466 U.S. at 690-91).

Here, Rowell claims Hodgson could have done more to rebut the presumption at
his certification hearing. In his original motion, Rowell claimed Hodgson could have
presented his mother, church members, his basketball coach, his neighbors, and the staff
of his alternative school as witnesses in his defense at the adult certification hearing. On
appeal, he does not argue Hodgson should have presented these witnesses, so he has
abandoned this argument. State v. Williams, 303 Kan. 750, 758, 368 P.3d 1065 (2016).
Nonetheless, Rowell failed to proffer any testimony concerning his proposed witnesses in
his original motion. In the absence of any proffered testimony, there is no way to
determine if Hodgson erred in not calling these witnesses. See Ziesenis v. State, No.
101,003, 2010 WL 1253619 (Kan. App. 2010) (unpublished opinion) (holding there was
no basis for finding trial counsel ineffective for failing to call proposed witnesses because
defendant failed to proffer testimony).

On appeal, Rowell argues Hodgson erred by not calling an expert to testify.
Because Rowell did not present this argument to the district court, it is not properly
before us on appeal. State v. Kelly, 298 Kan. 965, 971, 318 P.3d 987 (2014). Furthermore,
he has failed to assert any prejudice. He only claims a psychologist or counselor could
have determined whether he was more amenable to juvenile services or adult prosecution.
He does not claim any such expert would have found adult prosecution inappropriate or
that there is a reasonable probability such testimony would have changed the outcome of
the hearing.

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In his brief, Rowell invites comparison with Mullins v. State, 30 Kan. App. 2d
711, 46 P.3d 1222 (2002). The Mullins court found trial counsel was ineffective for
failing to consult with or procure an expert witness in a child sexual abuse case. 30 Kan.
App. 2d at 717-18. In Mullins, the defendant presented testimony from two expert
witnesses: (1) a criminal defense attorney who stated reasonable trial counsel would have
consulted with an expert in preparation for trial; and (2) an expert on the subject of
interviewing child sex abuse victims who stated the victim's interviews were not reliable.
In contrast, Rowell has not only failed to proffer testimony from his speculative expert,
he has not even asserted any such testimony would have been favorable. Because Rowell
has failed to establish prejudice, his claim regarding ineffective assistance of counsel at
his adult certification hearing is without merit.

Trial Counsel's Failure to Appeal Rowell's Certification

Next, Rowell contends Pointer-Barnes, Rowell's counsel once he was certified for
adult prosecution, was ineffective for failing to appeal his adult certification. Under
K.S.A. 38-1681(a), an order authorizing prosecution as an adult is not appealable until
after conviction. A defendant may appeal his or her certification even if he or she pled no
contest. K.S.A. 38-1681(a)(1)(A). Pointer-Barnes filed a timely notice after Rowell's
sentencing appealing "all adverse findings in the plea and sentencing" of Rowell's case.
Thus, it appears she did in fact appeal his adult certification.

Rowell's claim may be better focused on his appellate counsel for failing to
challenge his adult certification on appeal. To succeed on this claim, however, Rowell
would have to demonstrate the appeal would have been successful. Miller v. State, 298
Kan. 921, 930-31, 934, 318 P.3d 155 (2014). This is unlikely because in Rowell II the
court found substantial competent evidence supported the district court's decision to
certify Rowell for adult prosecution. 2012 WL 4794652, at *3.

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Trial Counsel's Failure to Advise Rowell of Possible Penalties Prior to Entering Plea

Finally, Rowell asserts Pointer-Barnes was ineffective because she failed to advise
him of the possible penalties before he entered his plea and promised him a shorter
sentence than he received. According to Rowell, he should therefore be allowed to
withdraw his plea. To prevail on a claim of ineffective assistance of plea counsel, the
defendant must show that (1) counsel's performance fell below an objective standard of
reasonableness, and (2) there is a reasonable probability that, but for counsel's errors, the
defendant would not have pled no contest and would have insisted on going to trial. See
State v. Kelly, 298 Kan. 965, 969-70, 318 P.3d 987 (2014). The record shows Rowell is
not entitled to relief on this claim.

Powell's plea agreement and the transcript of his plea hearing establishes that
Rowell knew the possible penalties for his charged offenses and that the court was free to
impose any sentence within the penalty range before he entered his no contest plea.
Rowell's plea agreement listed the penalty ranges for his charges. In the agreement,
Rowell acknowledged that he had discussed the possible penalties with trial counsel and
that the district court was not bound by the agreement. At the plea hearing, the court
explained the sentencing range to Rowell and explained it was not bound by the
agreement. Rowell also agreed that no one had made any threats or promises to him in
order to induce him to enter the plea. Additionally, Rowell did not contemporaneously
object to his sentence and waited nine years before bringing this claim. See Kelly, 298
Kan. at 970-71 (finding colloquy with judge regarding possible penalties, lack of
contemporaneous objection, and 12-year delay in bringing claim weighed in favor of
finding defendant's ineffective assistance of plea counsel claim without merit). Thus, this
claim fails.
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Abandoned Points

Rowell raised several other arguments in his motion including: (1) trial counsel
was ineffective for failing to object to judicial misconduct at his sentencing hearing; (2)
the State's conduct at his certification hearing violated his rights to due process; and (3)
appellate counsel for his K.S.A. 22-3504 motion was ineffective for failing to raise every
issue on appeal that he raised before the district court. He does not raise any of these
arguments on appeal. As such, he has waived and abandoned them. Williams, 303 Kan. at
758.

Conclusion

Rowell filed his K.S.A. 60-1507 motion well outside the one-year time limit. He
did not affirmatively assert manifest injustice, and all of his claims were without merit.
Thus, the district court did not err in summarily dismissing his motion as untimely.

Affirmed.