Wilson v. State

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NOT DESIGNATED FOR PUBLICATION

No. 116,128

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

ROBERT WILSON,
Appellant,

v.

STATE OF KANSAS,
Appellee.


MEMORANDUM OPINION

Appeal from Wyandotte District Court; J. DEXTER BURDETTE, judge. Opinion filed June 23,
2017. Affirmed.

Michael G. Highland, of Bonner Springs, for appellant.

Jennifer S. Tatum, assistant district attorney, Mark A. Dupree Sr., district attorney, and Derek
Schmidt, attorney general, for appellee.

Before ARNOLD-BURGER, C.J., HILL, J., and HEBERT, S.J.

Per Curiam: Robert Wilson filed a motion pursuant to K.S.A. 60-1507 alleging
ineffective assistance of counsel. The district court, after preliminary inquiry, summarily
dismissed the motion without a hearing. Wilson appeals that ruling. We find that the
district court did not err in concluding that Wilson was not entitled to relief, and we
affirm the dismissal.




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Factual and Procedural Background

In November 2011, Wilson was convicted by a jury of rape and aggravated
criminal sodomy. Following the convictions, the district court considered and denied
Wilson's pro se motions for new trial and for dismissal of his counsel, finding no
ineffective assistance and no justifiable dissatisfaction. In February 2012, Wilson was
sentenced to concurrent terms of 586 months' imprisonment for aggravated criminal
sodomy and 155 months' imprisonment for rape.

Wilson took a direct appeal and, among other issues, alleged ineffective assistance
of counsel due to his trial counsel's failure to call as a witness Wilson's trial counsel in a
prior Missouri case in which Wilson had been acquitted on similar charges. A panel of
this court rejected Wilson's arguments and affirmed his convictions. State v. Wilson, No.
108,274, 2013 WL 6726263 (Kan. App. 2013) (unpublished opinion), rev. denied 301
Kan. 1052 (2015). The factual basis for Wilson's convictions is set forth in detail in the
appellate opinion. Wilson, 2013 WL 6726263, at *1-3.

Wilson filed his K.S.A. 60-1507 motion on September 2, 2015. He alleged
numerous claims of ineffective assistance of counsel, including allegations his trial
counsel failed to secure a transcript of his Missouri trial; trial counsel failed to subpoena
his Missouri trial counsel; and trial counsel ineffectively cross-examined the victim from
the Missouri case, who was called as a witness for the State. On September 11, 2015, the
district court filed a memorandum decision finding that after review of the files and
records of the case "it is conclusively shown that movant is entitled to no relief and his
petition is denied." The district court found Wilson presented no substantial issues of fact
or questions of law; the K.S.A. 60-1507 proceeding could not be used as a substitute for
direct appeal or as a substitute for a second appeal; and Wilson raised no exceptional
circumstances requiring a hearing.

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It is from this decision that Wilson now appeals.

Standard of Review

When the district court summarily denies a K.S.A. 60-1507 motion, we conduct 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. 874,
Syl. ¶ 2, 335 P.3d 1162 (2014).

Procedural Bar to Wilson's K.S.A. 60-1507 Motion

Wilson argues he is entitled to a hearing on his K.S.A. 60-1507 motion because he
raises issues of ineffective assistance of trial counsel. The State counters that since
Wilson raised the issue of ineffective assistance of trial counsel on his direct appeal, he is
now precluded by the doctrine of res judicata from raising the issue again in his motion.

When a criminal defendant files a direct appeal from his or her conviction and
sentence, "the judgment of the reviewing court is res judicata as to all issues actually
raised; those issues that could have been presented, but were not presented, are deemed
waived." Drach v. Bruce, 281 Kan. 1058, Syl. ¶ 12, 136 P.3d 390 (2006). A defendant's
failure to raise an issue on direct appeal "prevents the defendant from raising the claim in
a second appeal or in a collateral proceeding." 281 Kan. 1058, Syl. ¶ 12; see Woods v.
State, 52 Kan. App. 2d 958, 964-66, 379 P.3d 1134 (2016).

In the direct appeal from his conviction, Wilson specifically alleged that his trial
counsel was ineffective because he did not call as a witness Wilson's trial counsel from a
prior Missouri case involving similar circumstances and charges of which Wilson had
been acquitted. This claim was rejected by the reviewing court.

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Wilson now attempts to not only resurrect that claim, but also now claims trial
counsel failed to obtain a transcript of the Missouri trial and failed to effectively cross-
examine the victim from the Missouri case when she was called as a witness for the State
in the Kansas case. Wilson raised other allegations of ineffective assistance in his K.S.A.
60-1507 motion but has not briefed or argued those allegations in this appeal and, thus,
those other issues are deemed to be waived or abandoned. State v. Williams, 303 Kan.
750, 758, 368 P.3d 1065 (2016).

The three alleged instances of ineffective assistance of trial counsel which Wilson
attempts to raise through this appeal are all interrelated complaints regarding how his
counsel dealt with issues arising from Wilson's prior trial in Missouri. Wilson would have
had the same knowledge regarding the lack of alleged transcript and the alleged
ineffective cross-examination as he did regarding the alleged failure to subpoena the
Missouri attorney. He offers no explanation why he did not at least attempt to raise all
these related complaints in the original direct appeal.

Wilson's K.S.A. 60-1507 motion herein is not salvaged by any apparent
exceptional circumstances excusing his failure to include the complaints on the direct
appeal. See Kansas Supreme Court Rule 183(c)(3) (2017 Kan. S. Ct. R. 222). Wilson
cites no unusual events or intervening changes in the law which prevented him from
reasonably being able to raise all of the trial errors in his first appeal. See State v.
Mitchell, 297 Kan. 118, 123, 298 P.3d 349 (2013). Exceptional circumstances can include
ineffective assistance of counsel. Rowland v. State, 289 Kan. 1076, 1087, 219 P.3d 1212
(2009). However, in Rowland, the ineffective counsel was appellate counsel who failed to
preserve an issue on appeal. Here, Wilson presents no argument that any failure of
appellate counsel on direct appeal prevented him from raising all of his issues regarding
ineffective assistance of trial counsel at that time. Further, Wilson's suggestion that he
may have been prevented from establishing a trial record regarding the disposition of his
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motion for new trial was addressed by this court on direct appeal and it was determined
that no error had occurred in that regard.

The doctrine of res judicata is intended to prevent an individual from splitting a
single issue—here a claim of ineffective assistance of trial counsel—into multiple legal
proceedings. See Shelton v. DeWitte, 271 Kan. 831, 836-37, 26 P.3d 650 (2001).
Similarly, Kansas Supreme Court Rule 183(c)(3) promotes finality regarding issues that
have been or could have been litigated on direct appeal. Wilson presents no persuasive
argument as to why the doctrine and the rule should not foreclose consideration of his
K.S.A. 60-1507 motion in this case.

Wilson's K.S.A. 60-1507 Motion Does Not Warrant an Evidentiary Hearing

Even if Wilson could surmount the procedural hurdles presented by the doctrine of
res judicata and Kansas Supreme Court Rule 183(c)(3), the question remains whether the
motion, records, and files of the case conclusively establish that he is not entitled to
relief. In claiming ineffective assistance of counsel, Wilson assumes the burden to show
that his claim warrants an evidentiary hearing. State v. Sprague, 303 Kan. 418, 425, 362
P.3d 828 (2015). The motion must be premised on more than mere conclusory
contentions and must state an evidentiary basis in support of the claim or an evidentiary
basis must appear in the record. 303 Kan. at 425. Thus the issue on appeal is whether
Wilson's motion alleges sufficient facts to warrant an evidentiary hearing.

To prevail on a claim of ineffective assistance of counsel, a defendant must first
establish that the performance of counsel was deficient under the totality of the
circumstances, and, if so that the defendant was prejudiced, i.e., that there is a reasonable
probability that the jury would have reached a different result 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.
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denied 467 U.S. 1267 [1984]). In this context, reasonable probability means a probability
sufficient to undermine confidence in the outcome. Sprague, 303 Kan. at 426.

Judicial scrutiny of counsel's performance is highly deferential and requires
consideration of all the evidence before the judge or jury. The reviewing court 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).

We first note that the issue regarding failure to subpoena prior Missouri counsel as
a witness has already been reviewed on direct appeal and deemed not to be an error.
Wilson, 2013 WL 6726263, at *8-9.

Wilson's remaining arguments regarding the alleged failure of trial counsel to
obtain a transcript of his Missouri trial and his arguments regarding failure to effectively
cross-examine the Missouri victim/witness are inextricably interrelated. The record is not
entirely clear whether Wilson's trial counsel actually secured a copy of the transcript, but
in colloquy with the trial court, there is some indication he had access to and familiarity
with the Missouri trial transcript. He indicated to the trial court he made a strategic
decision not to seek entry of the transcript, so as not to prejudice or conflict with his
objection to the State's K.S.A. 60-455 evidence. The record clearly indicates that he met
with the Missouri attorney prior to the trial and was thoroughly familiar with the Missouri
proceedings. He also had access to a deposition which the Missouri victim/witness had
given prior to the Kansas trial, and he thoroughly cross-examined her. In his closing
argument, he demonstrated numerous inconsistencies in her testimony. He emphasized
that the Missouri jury had acquitted Wilson, and he urged the Kansas jury to consider that
verdict when evaluating her testimony in the Kansas case.

More to the point here, beyond mere conclusory allusions regarding unspecified
"wild inconsistent statements," Wilson fails to articulate how the Missouri transcript
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would have assisted his attorney in offering anything more or less than what the jury had
already heard. The State presented the detailed testimony of the Kansas victim together
with other evidence tending to corroborate her recollection of the events. Wilson fails to
suggest what testimony or impeachment of the Missouri victim/witness was missing from
the Kansas trial or how any such omissions would have affected the jury's assessment of
the credibility of the Kansas victim.

Wilson's motion, on its face, is simply inadequate to demonstrate ineffective
assistance of counsel, much less any potential prejudice. He has raised no factual issue or
legal question which would in any way undermine our confidence in the jury verdict.

Summary dismissal

To the extent, if any, that Wilson's K.S.A. 60-1507 motion survives the procedural
bars above discussed, we conclude that the motion, files, and records of the case
conclusively show that Wilson has not carried the burden of providing any viable issue of
fact or question of law which would entitle him to an evidentiary hearing. We concur in
the determination of the district court that Wilson's motion was, and is, subject to
summary dismissal.

Affirmed.