Avila v. State, 083019 KSCA, 119, 800

Docket Nº:119, 800
Opinion Judge:PER CURIAM
Party Name:Eric J. Avila, Appellant, v. State of Kansas, Appellee.
Attorney:Christina M. Kerls, of Kansas Appellate Defender Office, for appellant. Boyd K. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Judge Panel:Before Buser, P.J., Green and Malone, JJ.
Case Date:August 30, 2019
Court:Court of Appeals of Kansas
 
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Eric J. Avila, Appellant,

v.

State of Kansas, Appellee.

No. 119, 800

Court of Appeals of Kansas

August 30, 2019

NOT DESIGNATED FOR PUBLICATION

Appeal from Sedgwick District Court; Deborah Hernandez Mitchell, judge.

Christina M. Kerls, of Kansas Appellate Defender Office, for appellant.

Boyd K. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.

Before Buser, P.J., Green and Malone, JJ.

MEMORANDUM OPINION

PER CURIAM

This is an appeal of the district court's summary denial of Eric J. Avila's K.S.A. 60-1507 motion alleging ineffective assistance of counsel. Upon our review, we find no reversible error and, therefore, affirm the district court's summary denial of the motion.

Factual and Procedural Background

In 2012, in a consolidated proceeding, Avila was found guilty upon his no contest pleas to kidnapping, second-degree murder, and burglary. The district court sentenced Avila to a controlling sentence of 289 months in prison.

In January 2013, Avila filed a motion to withdraw his pleas on the ground that his counsel was ineffective. First, Avila alleged that his counsel failed to explain that if he went to trial he could be convicted of a lesser included offense. Second, Avila complained that his counsel failed to discuss and explain case strategies. Avila also claimed that he was not in the right state of mind when he entered the pleas because he was taking psychotropic drugs. The district court denied the motion, and our court affirmed after allowing Avila to file a late notice of appeal. State v. Avila, No. 110, 597, 2014 WL 7566045 (Kan. App. 2014) (unpublished opinion). Our Supreme Court denied Avila's petition for review on August 20, 2015.

Over two years later, on December 7, 2017, Avila filed a pro se K.S.A. 60-1507 motion that is the subject of this appeal. The motion alleged ineffective assistance of counsel. In particular, Avila stated he recently discovered that his counsel "made many blunders and serious errors before coming to him with a Plea Agreement." He claimed his counsel prevented him from participating in his defense by depriving him of discovery materials and facts.

Avila also alleged that he was not guilty of the crimes because of his mental status on the night of the murder. He claimed that he informed his counsel that on that evening he had ingested Xanax, OxyContin, and whiskey and, as a result, had drifted in and out of consciousness. Avila further complained that his counsel failed to obtain a toxicology report and failed to investigate his mental illnesses of schizophrenia and post-traumatic stress disorder (PTSD).

Because of his diminished mental status, Avila asserted that had he gone to trial his counsel could have argued for the lesser included offense of manslaughter. Moreover, Avila claimed he would not have pled no contest if his trial counsel had informed him of all possible defenses. In summary, Avila asserted that his counsel's performance fell below an objective standard of reasonableness.

The State responded that Avila's motion was untimely and that he failed to assert manifest injustice or a colorable claim of innocence to justify an extension of time to...

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