Williams v. State

1

NOT DESIGNATED FOR PUBLICATION

No. 114,200

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

MARLIN D. WILLIAMS,
Appellant,

v.

STATE OF KANSAS,
Appellee.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; JAMES R. FLEETWOOD, judge. Opinion filed December 23,
2016. Affirmed.

Michael P. Whalen and Krystle M. S. Dalke, of Law Office of Michael P. Whalen, of Wichita, for
appellant.

Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before GARDNER, P.J., BUSER and STANDRIDGE, JJ.

BUSER, J.: In this habeas corpus proceeding, Marlin D. Williams contends the
district court committed reversible error when it summarily denied his K.S.A. 60-1507
motion. Williams claims the district court should have granted an evidentiary hearing in
order to consider whether his trial counsel provided constitutionally deficient
representation for his failure to challenge the legal sufficiency of the State's charging
document. Williams also faults the district court for not making sufficient findings as
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required under Supreme Court Rule 183(f) and (j) (2015 Kan. Ct. R. Annot. 271).
Finding no reversible error, we affirm the district court's judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On September 22, 2008, a jury convicted Williams of aggravated trafficking of a
person under 18 years of age, a severity level 1 person felony, in violation of K.S.A. 21-
3447(a)(2). On January 16, 2009, the district court sentenced Williams to a downward
durational departure sentence of 246 months' imprisonment.

Williams filed a direct appeal contending that K.S.A. 21-3447(a)(2) is
unconstitutionally overbroad and vague; he should have been charged and sentenced for
the more specific crime of promoting prostitution; the prosecutor committed misconduct;
and his sentence violated his constitutional rights as enunciated in Apprendi v. New
Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). Finding no
reversible error, our Supreme Court affirmed Williams' conviction and sentence. See
State v. Williams, 299 Kan. 911, 913-16, 329 P.3d 400 (2014).

The relevant facts underlying Williams' conviction were detailed by our Supreme
Court in its opinion:

"On May 4, 2007, a Dallas, Texas, police detective was patrolling an area known
for prostitution activity when he observed a young girl walking along the street. A Ford
Explorer, which the detective recognized as the vehicle of a known prostitute, pulled up
near the young girl, but the young girl kept walking when she spotted the clearly marked
patrol car. The girl's youthful appearance and behavior aroused the detective's suspicions,
causing him to follow her to a gas station where he stopped her and asked for her name
and birth date. . . . She eventually told him her real name—L.M.—and her . . . birth
date—October 10, 1991. Upon learning L.M.'s true identity and that she was only 15
years of age, the detective . . . discovered L.M. had been reported as a runaway from
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Wichita, Kansas. L.M. was transported to Dallas police headquarters for an interview. In
the interview, L.M. explained she met a pimp in Wichita named 'Pressure' in late April or
early May. Pressure recruited her to join his prostitution ring and then drove her from
Wichita to Dallas so she could work for him. L.M. gave detectives permission to examine
the phone she had with her; the detectives found a phone number with a Wichita area
code labeled 'Preasure.'
"L.M. was returned to Wichita. Once there, she learned that Pressure's real name
was Marlin Williams. She reported this to law enforcement officers in Wichita.
. . . .
"At trial, L.M. provided details about her first contact with Williams; her first
encounter was at a party, and the second was when Williams drove to the place she was
living. During this second meeting, Williams, who was accompanied by a female
prostitute, recruited L.M. to join in his prostitution ring.
"L.M. explained that several weeks before she met Williams she had run away
from the Wichita Children's Home. By the time L.M. met Williams, her living situation
was rocky. . . . Consequently, when Williams asked her to work as a prostitute, she
agreed because she 'didn't have no choice; it was just the first choice that came up.' She
admitted, 'I knew what I was getting myself into.'
. . . .
"Before leaving Wichita, Williams stopped at a house. The female prostitute—
whom L.M. estimated to be about 20 years of age—and L.M. stayed in the car, and L.M.
asked the woman what prostituting was like, whether Williams would buy her condoms,
and what he would do if she looked at anyone. Williams then took L.M. and the woman
to an apartment where he told L.M. to undress so he could look at her. After the
inspection, Williams drove to another location and picked up a man he called 'Casper'
. . . . Before they left Wichita, Williams told L.M. she should not be working the streets
because she 'is far too pretty for that' and once he had enough money she would be
working in a club. Williams also told L.M., 'My ho's make money.'
"The woman and Casper accompanied Williams and L.M. to Dallas. Once they
got to a hotel, Williams told L.M. to perform oral sex on him. When during the trial L.M.
was asked why she obeyed, L.M. responded, 'That's just what you have to do. And I
believe he said that to[o], like, . . . You got to do what I say.' Soon after Williams'
demand and within hours of arriving in Dallas, Williams told L.M. the minimum amount
she should charge for various sex acts and the minimum she had to make before she
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returned to the hotel. He then gave her a beeper phone and sent her out to walk the
streets.
"L.M. testified she and Williams stayed in three hotels over the next several days.
After the first day, L.M. worked 10 to 12 hours a day, starting at the times Williams
directed. According to L.M., she made about $1,000 per day and she gave all of that
money to Williams, except for a relatively small amount of cash she had on her when she
was taken into custody by the police. Williams would periodically check on her, asking
her where she was and how much she had made. Every few hours she would return to the
hotel to give Williams the money she had been paid and to shower. . . .
. . . .
"At trial, Williams testified in his own defense. He told the jury that he stayed at
the first hotel on April 29, 2007, with a woman he met in Dallas. He denied going to
Dallas with L.M., but he did admit to seeing her as he was leaving his hotel. . . . Williams
indicated he then returned to Kansas and, on May 3, 2007, drove back to
Dallas . . . .Williams testified that he again saw L.M., this time at the second hotel's
swimming pool. She walked up and said, 'I know you from somewhere.' After some small
talk, they realized they were both from Wichita and the conversation continued from
there. L.M. asked him to get her some liquor, and he took her to the liquor store. While
driving to the liquor store she asked for his phone number, and he gave it to her. He also
gave her his nickname 'Pressure.' He testified that L.M. told him she was 19 or 20 years
old." 299 Kan. at 913-16.

Shortly after the Supreme Court affirmed his conviction on direct appeal, Williams
filed the pro se K.S.A. 60-1507 motion, which is the subject of this appeal. Williams
alleged that his trial attorney provided constitutionally deficient representation because
even though the "complaint information was fatally defective, due to [its] failure to allege
that [he] committed the acts of fraud, forced labor and involuntary servitude, which are
the judicial requirements of K.S.A. 21-3447(a)(2)," his trial attorney neglected to file a
motion for arrest of judgment under K.S.A. 22-3502. Williams claimed that he suffered
prejudice as a result of his attorney's negligence because "a timely motion for arrest of
judgment would have invoked review under the stringent 'pre-Hall' standards'" and a
conviction based upon a fatally defective complaint "must be reversed 'Pre-Hall.'"
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Williams also filed a supplemental K.S.A. 60-1507 motion. In it, Williams
explained that he filed a pro se motion to dismiss the complaint prior to trial noting that it
was defective. But at the hearing on the motion his trial attorney stated, "'I[']m just going
to call to the court's attention that the language with or without force, threat or coercion,
it appears that we do not have that word [fraud] in there, which I'm going to suggest that
we add to an amended information.'" Later, when the prosecutor filed an amended
complaint that only changed the dates of the alleged crimes, Williams' trial attorney
"refused to bring the issue to the court's attention that [the] essential element [of fraud]
was not amended to [sic] the [complaint] information."

In his supplemental motion, Williams maintained the trial evidence did not support
a finding that he committed fraud, because

"[i]t is evident that the alleged victim made statements that she knew the defendant and
she knew he was a pimp by the way he talked and had another white female in the car
with him. The alleged victim also stated that she knew the purpose for going to Dallas
Texas with the defendant was for . . . her to engage in prostitution."

In short, Williams argued that since the crime of aggravated trafficking required fraud
and the evidence did not prove fraud, the jury may have returned a not guilty verdict if
his trial attorney had brought the purportedly defective complaint not listing fraud to the
district court's attention.

On March 23, 2015, the district court summarily denied Williams' motion, finding
that he had "failed to state any grounds for which relief [could] be granted" pursuant to
K.S.A. 60-1507. The district court also found that "even if the allegations were accepted
on their face they pose little likelihood of having any effect on the outcome of the case."

Williams filed a timely appeal.
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ANALYSIS

On appeal, Williams contends the district court erred when it summarily denied
his K.S.A. 60-1507 motion without holding an evidentiary hearing. The State, on the
other hand, urges us to affirm the district court's decision because, as a matter of law,
Williams is not entitled to the relief he requests.

At the outset, a summary review of Kansas law pertinent to this appeal is
necessary. District courts are required to hold an evidentiary hearing on a K.S.A. 60-1507
motion and make findings of fact and conclusions of law unless the motion, files, and
records of the case conclusively show the movant is not entitled to relief. K.S.A. 60-
1507(b); Supreme Court Rule 183(f) and (j).

To avoid the summary denial of a K.S.A. 60-1507 motion, a movant bears the
burden of establishing entitlement to an evidentiary hearing. Sola-Morales v. State, 300
Kan. 875, 881, 335 P.3d 1162 (2014). To meet this burden, a movant's contentions must
be more than conclusory, and either the movant must set forth an evidentiary basis to
support those contentions or the 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. When—as in this case—the
district court summarily denies a K.S.A. 60-1507 motion, an appellate court conducts a
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.

Given that the crux of Williams' motion is based on the claimed ineffective
assistance of trial counsel, a brief summary of the pertinent constitutional standards
applicable to this issue is also in order. When a defendant's K.S.A. 60-1507 motion is
premised upon an allegation of ineffective assistance of counsel, the defendant must
satisfy the constitutional standards set forth in Strickland v. Washington, 466 U.S. 668,
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687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). See Thompson v. State, 293 Kan. 704,
715, 270 P.3d 1089 (2011).

Under the Strickland test, the movant must establish (1) counsel's performance
was deficient, i.e., counsel's performance fell below an objective standard of
reasonableness, considering all the circumstances, and (2) there is "'a reasonable
probability'" that, but for counsel's error(s), the result of the proceeding would have been
different, i.e., counsel's deficient performance prejudiced the defense and deprived the
defendant of a fair trial. Fuller v. State, 303 Kan. 478, 486, 363 P.3d 373 (2015). "'[A]
reasonable probability is a probability sufficient to undermine confidence in the
outcome.' [Citation omitted.]" State v. Cheatham, 296 Kan. 417, 432, 292 P.3d 318
(2013).

Preliminarily, Williams first claims the district court violated Supreme Court Rule
183(j) by failing to make sufficient findings of fact and conclusions of law to support its
summary denial. Because of the district court's omission, Williams asks us to reverse and
remand his case with directions to hold a full evidentiary hearing.

In order to provide appellate courts with an opportunity for meaningful review,
Supreme Court Rule 183(j) requires district courts to make findings of fact and
conclusions of law "on all issues presented" in a K.S.A. 60-1507 motion. See Gaudina v.
State, 278 Kan. 103, 107-08, 92 P.3d 574 (2004) (remand required for compliance with
Rule 183[j]; district court's findings and conclusions were insufficient to allow review of
all claims following summary denial of K.S.A. 60-1507 motion); Stewart v. State, 30
Kan. App. 2d 380, 382, 42 P.3d 205 (2002) (boilerplate journal entries do not comply
with Rule 183[j]).

Importantly, however, Williams did not object to the district court's allegedly
inadequate findings of fact and conclusions of law. In order to give the district court the
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opportunity to correct inadequacies, litigants and their counsel generally bear the
responsibility of objecting to such errors and in the absence of an objection, omissions in
findings will not be considered on appeal. See State v. Herbel, 296 Kan. 1101, 1119, 299
P.3d 292 (2013). Without an objection, we may presume the district court found all the
facts necessary to support its judgment, unless the lack of specific findings precludes
meaningful review. See State v. Vaughn, 288 Kan. 140, 143, 200 P.3d 446 (2009).

In the present appeal, any inadequacy in the district court's compliance with
Supreme Court Rule 183(j) does not hinder our ability to review whether Williams was
entitled to an evidentiary hearing. Our reading of the district court's order persuades us
that the court found Williams' attorney was not ineffective for not filing a motion that
was legally without merit. Additionally, the attorney's failure to file a motion challenging
the complaint was not prejudicial because, given that it was without merit, its filing
would not have changed the outcome of the proceeding. After conducting an independent
review of the district court's order, Williams' motions and the case file, we conclude the
findings memorialized in the district court's order are sufficient to allow us to
meaningfully review Williams' issue on appeal.

Next, we consider the crux of Williams' appeal. Under the Sixth Amendment to
the United States Constitution and § 10 of the Kansas Constitution Bill of Rights, a
defendant is guaranteed the right to be informed of the nature and cause of the accusation
against him or her. State v. Inkelaar, 293 Kan. 414, 433, 264 P.3d 81 (2011), overruled
on other grounds by State v. Dunn, 304 Kan. 773, 375 P.3d 332 (2016). Accordingly, a
charging document that fails to include an essential element of a charged crime is
generally considered to be "'fatally defective,'" and thereby, insufficient to confer subject
matter jurisdiction upon the district court to convict the defendant of the alleged offense.
293 Kan. at 433-34. See K.S.A. 22-3201.

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When a K.S.A. 60-1507 movant claims that his or her trial counsel was ineffective
for failing to file a motion to dismiss or arrest judgment due to an allegedly defective
charging document, "the common-sense rule announced in State v. Hall, 246 Kan. 728,
793 P.2d 737 (1990), overruled on other grounds by Ferguson v. State, 276 Kan. 428,
444-45, 78 P.3d 40 (2003), is used to analyze the prejudice prong in the test for
ineffective assistance of trial counsel." Swenson v. State, 284 Kan. 931, Syl. ¶ 4, 169 P.3d
298 (2007). In Swenson, our Supreme Court explained:

"Under the common-sense rule established in Hall, a charging document is
sufficient, even if an essential element of an offense is missing, if it would be fair to
require the defendant to defend based on the charge as stated in the charging
document. . . . [Therefore, i]n order to succeed on his or her ineffective assistance of
counsel claim, the defendant must show that counsel's allegedly deficient conduct either:
(1) prejudiced the defendant's preparation of a defense; (2) impaired the defendant's
ability to plead the conviction in any subsequent prosecution; or (3) limited the
defendant's substantial rights to a fair trial. [Citations omitted.]" 284 Kan. at 941.

As noted earlier, Williams was charged and convicted of the crime of aggravated
trafficking. K.S.A. 21-3447(a)(2) defines the offense of aggravated trafficking as
"recruiting, harboring, transporting, providing or obtaining, by any means, a person under
18 years of age knowing that the person, with or without force, fraud, threat or coercion,
will be used to engage in forced labor, involuntary servitude or sexual gratification of the
defendant or another."

Prior to trial, Williams filed a pro se motion to dismiss, which alleged that the
charging document was fatally defective because the State failed to allege a necessary
statutory element of the offense, i.e., "'use[d] to engage in forced labor.'" At the hearing
on Williams' motion, the prosecutor argued that because the State had chosen to proceed
under the theory that Williams intended to recruit, harbor, transport, provide, or obtain by
any means with or without force, threat, or coercion, the victim to engage in sexual
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gratification, rather than the other purposes or methods of committing the crime, the
State was not required to include all of the other possible methods of committing that
offense.

The district court denied Williams' motion, finding that the complaint was not
defective because aggravated trafficking may be committed by several different methods
and the State need not charge the commission of the offense by listing all of the other
possible theories of prosecution specified in the statute. The district judge advised
Williams: "You're charged with taking this young lady down to Texas and having her for
gratification of you or another, potential clients, I suppose, engage in sexual activity. . . .
That fits the statute. . . . It is certainly within the State's right to charge as they have had
and leave out theories."

Later, the State filed an amended information which constituted the charging
document used at trial. It read:

"[I]n the County of Sedgwick, and State of Kansas, and on or between the 5th day of
April, 2007 and the 29th day of April, 2007, A.D., one MARLIN D. WILLIAMS did then
and there unlawfully, recruit, harbor, transport, provide or obtain by any means, a
person, to-wit: L.N.M., a child under eighteen (18) years of age, to-wit: fifteen (15) years
of age, year of birth: 1991, knowing the person, with or without force, threat or coercion,
will be used to engage in sexual gratification of the defendant or another[.]" (Emphasis
added.)

Consistent with the amended information, the district court provided the jury with
the following instruction:

"The defendant is charged with the crime of Aggravated Trafficking. The
defendant pleads not guilty.
"To establish this charge, each of the following claims must be proved:
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"1. That the defendant did unlawfully recruit or transport by any means, L.N.M.;
"2. That L.N.M. was a person under eighteen years of age;
"3. That the defendant knew that with or without force, threat or coercion,
L.N.M. would be used to engage in sexual gratification of the defendant or another; and
"4. That this act occurred on or between the 5th day of April, 2007 and the 29th
day of April, 2007 in Sedgwick County, Kansas."

Of note, Williams does not claim there was any variance between the charging document
and the elements instruction.

As the district court found with respect to the State's omission of the phrase "used
to engage in forced labor" from the charging document prior to Williams' trial—a finding
Williams did not challenge on direct appeal—the words fraud, forced labor, and
involuntary servitude do not represent essential elements of the crime of aggravated
trafficking that must be plead in every criminal case. On the contrary, this language
merely describes either synonymous or redundant terms to define the same prohibited
conduct or alternative methods by which the crime may be committed. As our Supreme
Court stated in State v. Hemby, 264 Kan. 542, 549-50, 957 P.2d 428 (1998) (quoting
State v. Davis, 247 Kan. 566, 572, 802 P.2d 541 [1990]):

"'When pleading a crime that may be committed by several different methods in a
single-count complaint or information, the State may charge the commission of the
offense in any or all of the methods specified in the statute. When the information alleges
one or more methods for a commission of a crime, the general rule is that the instructions
should be confined to the charges contained in the information and should not be broader
or narrower than the information.'"

Contrary to Williams' legal argument, the State was fully entitled to omit the
words fraud, forced labor, and involuntary servitude from the charging document. As
detailed in the Factual and Procedural Background section, the State's theory of the case
did not allege that these methods played any role in the commission of the offense. The
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omission of these surplus words, given the State's theory of prosecution, did not make the
charging document defective, but simply stated the particular means or method by which
the State alleged Williams had committed the crime.

The charging document fully apprised Williams of the factual and legal nature of
the State's case; therefore, it is clear that Williams' challenge to the effectiveness of his
trial counsel must fail on its merits because the language used in the charging document
was proper. Moreover, it did not prejudice Williams' ability to prepare a defense, impair
his ability to plead the conviction in any subsequent prosecution, or limit his substantial
rights to a fair trial. We hold the district court did not err when it summarily denied
Williams' K.S.A. 60-1507 motion because it failed to properly allege facts which showed
he was entitled to relief.

Affirmed.