Allison v. State

• Decision Date: 02 November 2018
• Docket Number: Nos. 114,607 , 114,608 , 118,043,s. 114,607
• Citation: 432 P.3d 87,56 Kan.App.2d 470
• Parties: Joshua D. ALLISON, Appellee, v. STATE of Kansas, Appellant.
• Court: Kansas Court of Appeals

56 Kan.App.2d 470

432 P.3d 87

Joshua D. ALLISON, Appellee,

v.STATE of Kansas, Appellant.

Nos. 114,607

114,608

118,043

Court of Appeals of Kansas.

Opinion filed November 2, 2018.

Kristafer R. Ailslieger, deputy solicitor general, and Derek Schmidt, attorney general, for appellant.

Kristen B. Patty, of Wichita, for appellee.

Before Standridge, P.J., Malone, J., and Stutzman, S.J.

Malone, J.:

This appeal began when Joshua D. Allison appealed the district court's order denying his K.S.A. 60-1507 motion alleging ineffective assistance of counsel at his criminal trial. In the process of the appeal, this court remanded for an evidentiary hearing pursuant to State v. Van Cleave , 239 Kan. 117, 716 P.2d 580 (1986), for examination of Allison's claim that the counsel appointed to represent him in district court in the K.S.A. 60-1507 proceeding was ineffective. On remand, the district court found that Allison's K.S.A. 60-1507 counsel had provided deficient representation, and the court ordered a new hearing on Allison's original K.S.A. 60-1507 motion. The State seeks to appeal from that ruling, presenting to us a jurisdictional issue of first impression in Kansas. For the reasons stated below, we find that this court lacks jurisdiction over the issue raised by the State in this appeal, so we dismiss the appeal without prejudice until we have a final decision from the district court in the K.S.A. 60-1507 proceeding.

FACTUAL AND PROCEDURAL BACKGROUND

We will review the complex factual and procedural background presented in this appeal. In 2012, a jury found Allison guilty of two counts of aggravated robbery and two counts of driving while suspended, and the district court sentenced him to a controlling term of 274 months' imprisonment. Allison filed a direct appeal, and this court affirmed his convictions on November 8, 2013. State v. Allison , No. 108,340, 2013 WL 5976066 (Kan. App. 2013) (unpublished opinion). Notably, Allison tried to bring an ineffective assistance of trial counsel claim in his direct criminal appeal, but this court declined to address the claim for the first time on appeal. Allison did not file a petition for review to the Kansas Supreme Court in his criminal case.

On April 25, 2014, Allison filed a pro se motion for habeas corpus relief pursuant to K.S.A. 60-1507. In the motion, Allison alleged that his trial counsel in his criminal case, Rustin Rankin, had failed to provide effective assistance of counsel as guaranteed by the Sixth Amendment to the United States Constitution. Allison offered many examples of the purported ineffective assistance of counsel, including (1) failure to appear for scheduled court hearings and giving no reason for his absence; (2) failure to strike a juror during voir dire; (3) failure to file pretrial motions; (4) failure to challenge the complaint or information as defective; (5) failure to investigate and interview relevant individuals; (6) failure to object to evidence admitted and testimony presented at trial; (7) failure to call witnesses; (8) failure to request jury instructions; and (9) failure to file a motion for arrest of judgment.

Allison's motion was assigned to the same judge who presided over his criminal trial, and the district court appointed Philip J. Bernhart to represent Allison in the K.S.A. 60-1507 proceeding. The district court held an evidentiary hearing on January 27, 2015. At the hearing, Allison presented testimony from six witnesses, including himself and Rankin. On April 22, 2015, the district court issued its written order finding that Rankin had provided constitutionally sufficient assistance of counsel, and so the district court denied Allison's K.S.A. 60-1507 motion.

Allison appealed to this court and obtained new appointed counsel to represent him on appeal. As part of the appeal, Allison filed a motion for remand pursuant to State v. Van Cleave for the district court to determine whether Allison was denied his statutory right to the effective assistance of counsel in the K.S.A. 60-1507 proceeding. On March 23, 2016, after noting the absence of a response from the State, the presiding judge of this court's motions panel granted Allison's motion for remand. The order stated in part:

"This matter is remanded to the district court for the limited purpose of allowing it to determine whether [Allison] was denied his statutory right to the effective assistance of counsel at the K.S.A. 60-1507 hearing....

"... This court retains jurisdiction over the appeal. Briefing is stayed. If [Allison] receives an adverse decision from the district court upon remand and wishes to have it reviewed by this court, he may submit an amended notice of appeal within 14 days of the entry of that judgment. [Allison] is ordered to serve and file with the Clerk of the Appellate Courts a report on the status of the proceedings by April 22, 2016."

Notably, this court's order outlined no procedure for the parties to take if Allison received a favorable decision from the district court upon remand. On December 19, 2016, the same judge who presided over the prior hearings held an evidentiary Van Cleave hearing on the effectiveness of Allison's K.S.A. 60-1507 counsel, Bernhart. Allison and Bernhart both testified at the hearing, which concluded on March 1, 2017.

On June 23, 2017, the district court filed its written order and found that Bernhart had "failed to review ... the sentencing transcript; jury trial voir dire transcript; [and] closing arguments transcript of either counsel; the only transcript reviewed by Mr. Bernhart was the trial transcript." The district court also found that before the initial K.S.A. 60-1507 hearing, Bernhart did not review most of the State's discovery; he had no contact with Rankin; he did not review Rankin's files on Allison; he did not review Rankin's bills for services purportedly rendered to Allison; and he did not inquire into disciplinary proceedings pending against Rankin which eventually led to his disbarment. The district court concluded: "The only way to remove the taint of the prior proceedings is to grant [Allison] a new hearing on the original 60-1507 petition."

On July 5, 2017, after receiving the district court's order, this court issued an order to show cause noting that "[t]he district court's ruling that [Allison] is entitled to a new hearing on his K.S.A. 60-1507 motion appears to render this appeal moot," and ordering the parties to show cause why the appeal should not be dismissed. The day before the responses to the show-cause order were due, the State filed a notice of cross-appeal "from the decision of the Court dated June 23, 2017." In its cross-appeal docketing statement, the State conceded that the order it was appealing from was not a final decision because Allison's "appeal of the trial court's order denying [his] claim of ineffective assistance of trial counsel ... remains pending before the Court of Appeals." Even so, the State cited K.S.A. 2017 Supp. 60-1507(d) as the statutory authority for its appeal.

On July 28, 2017, both parties responded to this court's order to show cause as to why the appeal should not be dismissed as moot. The parties agreed that Allison's issues on appeal were moot but the State expressed its intention to "docket a new appeal as the appellant" from the district court's ruling following the Van Cleave hearing. On the same day, Allison filed a motion for involuntary dismissal of the State's cross-appeal. Then on July 31, 2017, the State docketed a separate appeal, Case No. 118,043, in which it purported to appeal the district court's order granting a new hearing on Allison's K.S.A. 60-1507 motion. Allison also filed a motion for involuntary dismissal of the new appeal.

On August 1, 2017, the presiding judge of this court's motions panel issued an order in this case that stated: "Appellant's direct appeal is dismissed as moot. This appeal will continue under the State's cross-appeal, although the State will now be referred to as the Appellant and Mr. Allison as the Appellee." On August 8, 2017, this court issued a show-cause order in both this appeal and Case No. 118,043, noting that "these appear to be the exact same appeal," and ordering the parties to show cause why the cases should not be consolidated. On the same day, this court issued an order in both cases denying Allison's motion for involuntary dismissal. But the order specifically stated: "If [Allison] continues to believe that this court lacks jurisdiction[,] he should brief this matter for the panel assigned to hear the merits of this appeal." Finally, on August 28, 2017, this court issued an order consolidating Case No. 118,043 with this appeal.

DOES THIS COURT HAVE JURISDICTION OVER THIS APPEAL ?

On appeal, the State contends that the district court erred in granting Allison a new hearing on his K.S.A. 60-1507 motion because of ineffective assistance of counsel in the initial proceedings. The State argues that the district court did not analyze Bernhart's conduct under the objectively reasonable performance standard. The State also argues that the district court did not assess whether there was a reasonable probability that, but for Bernhart's purported errors, the outcome of the K.S.A. 60-1507 proceeding would have been different.

Allison contends that this court lacks jurisdiction over the State's appeal because it is an improper interlocutory appeal from the district court's ruling that Allison is entitled to a new hearing on his K.S.A. 60-1507 motion. Alternatively, Allison argues that the district court did not err in granting him a new hearing after finding that Bernhart failed to provide Allison with effective assistance in the prosecution of his K.S.A. 60-1507 motion. The State filed no reply brief and has not responded to Allison's claim that this court lacks jurisdiction over this appeal.

We will first address Allison's claim that this court lacks jurisdiction over the State's appeal. Whether jurisdiction exists is a question...