Baker v. State

• Decision Date: 20 December 2019
• Docket Number: No. 118,695,118,695
• Parties: Mark Anthony BAKER, Appellant, v. STATE of Kansas, Appellee.
• Court: Kansas Court of Appeals

457 P.3d 183

Mark Anthony BAKER, Appellant,

v.STATE of Kansas, Appellee.

No. 118,695

Court of Appeals of Kansas.

Opinion filed December 20, 2019.

Korey A. Kaul, of Kansas Appellate Defender Office, for appellant.

Stephen P. Jones, county attorney, and Derek Schmidt, attorney general, for appellee.

Before Leben, P.J., Malone and Gardner, JJ.

Gardner, J.:

Mark Anthony Baker repeatedly abused and then murdered a 19-month-old infant who was in his care. He pled guilty to felony murder, child abuse, possession of marijuana, and obstruction of official duty. The Kansas Supreme Court affirmed his convictions and sentence on appeal.

State v. Baker , 297 Kan. 482, 301 P.3d 706 (2013). Baker then moved for relief under K.S.A. 60-1507, alleging that his counsel was constitutionally ineffective at sentencing for not presenting any mitigating evidence of his mental health. After an evidentiary hearing, the district court found that Baker suffered no prejudice from any deficient performance by counsel at sentencing. We agree. Given the overwhelming aggravating factors, we find no reasonable probability that the omitted evidence would have changed the conclusion that the aggravating circumstances outweighed the mitigating circumstances and, thus, the sentence imposed. Baker has not met his burden to show a reasonable probability that, but for counsel's deficient performance, he would have received a lesser sentence.

FACTUAL AND PROCEDURAL BACKGROUND

In 2011, Baker pleaded guilty to felony murder, child abuse, possession of marijuana, and obstruction of official duty. As part of the plea agreement, Baker reserved the right to argue for concurrent sentences and the State reserved the right to argue for consecutive sentences.

Baker's sentencing hearing

At sentencing, Baker agreed his criminal history score was a B. The sentencing court, Judge Robert Fleming, heard testimony from the victim's family. The State asked to present evidence regarding the extent of the victim's injuries. Baker's appointed counsel, Samuel Marsh, stated he did not think that was necessary because the State could have had a preliminary hearing if it so desired. Marsh also submitted a brief arguing against double jeopardy for the felony murder and child abuse crimes. Marsh stated:

"I'm trying to raise those issues, Judge, because hopefully I want to get this right. Obviously, this is a life sentence. He's going to go to prison for life.

"I think the issue here is whether you run these sentences consecutively or concurrently, and ultimately that's your decision. And I've raised the issues. The State's raised the issues. I think it's up to you to make the decision."

Judge Fleming then heard testimony from the pathologist in which he recounted his findings from the autopsy. The pathologist concluded the child died from trauma to his head and abdomen. The pathologist testified the injuries to the child were done with a lot of energy and force. Marsh had no questions for this witness and stated he had no further evidence he wished to present. When Judge Fleming asked for Baker's statement or whether he had any mitigating evidence, Baker replied that he was sorry because nothing would heal the family's pain. Baker did not mention any mental health issues.

Judge Fleming sentenced Baker to life imprisonment on the murder count, 128 months in prison on the child abuse count, 12 months in prison on the marijuana possession count, and 7 months in prison for the obstruction of official duty count. The sentence for felony murder, an "off-grid crime," was life in prison with parole eligibility after serving 20 years (with no deductions for good-time credits). See K.S.A. 21-3401 ; K.S.A. 21-4706(c) ; and K.S.A. 2010 Supp. 22-3717(b)(2). The other three crimes had presumptive sentences under the guidelines, which provide three potential sentences based on the severity level of the crime and the defendant's criminal-history score. Judge Fleming imposed the aggravated sentences for each crime and ordered them to run consecutive. This meant that Baker would first serve the 20-year minimum sentence for felony murder and then serve up to another 147 months.

In ruling, Judge Fleming stated: "[F]rankly, to take out your frustrations on an innocent baby ... I consider to be the most cowardly, egregious, disgusting kind of conduct I can imagine. And I think it certainly merits a sentence for abuse of a child in the aggravated range in the grid box." At other times in the sentencing hearing, the sentencing court stated it was not inclined to look for equity for Baker. And it concluded the hearing by stating: "Well, as I said before, notwithstanding [defense counsel's] comments about consecutive sentences lacking equity or being fundamentally unfair, Mr. Baker is entitled to due process. He's had it. He's pled guilty. I'm not inclined to be charitable toward him."

Baker's 60-1507 motions

Baker timely filed the K.S.A. 60-1507 motion he now appeals. It alleges: (1) the district court abused its discretion in sentencing Baker by denying his request to run the sentences concurrent and (2) he received ineffective assistance of counsel because his attorney "promised that the plea would be granted" yet he did not end up receiving a concurrent sentence. Baker claimed the concurrent sentences agreement was the reason he agreed to enter the plea and he believed the plea bargain would be honored. Baker further stated that he did not raise this argument in his direct appeal because his appellate attorney had not consulted him before filing it.

Baker later filed three amended 60-1507 motions. In the first, filed in December 2014, Baker again argued ineffective assistance of counsel regarding his ability to request concurrent sentences. Baker argued that the written plea agreement was ambiguous, that he did not understand the State was free to argue in favor of consecutive sentences, and that he did not understand the court could order a sentence different than agreed to in the plea agreement. In August 2015, Baker filed a second amended motion. This motion added another ineffective assistance of counsel claim, alleging his trial counsel failed to investigate Baker's mental health history and failed to offer mitigating evidence of mental illness and traumatic childhood events. Baker's third amended motion, filed in February 2017, included the same arguments but focused mostly on counsel's failure to investigate and failure to present mitigating evidence.

The evidentiary hearing on Baker's 60-1507 motions

A different judge, Judge Jeffry Jack, conducted the evidentiary hearing on Baker's K.S.A. 60-1507 motion. Marsh agreed that he could have put on mitigating evidence at Baker's sentencing hearing. Marsh stated whether the sentences were run consecutive or concurrent was ultimately up to the district court's discretion. Marsh admitted he was aware of Baker's mental health issues, as he had discussed Baker's mental health issues with Baker, but he never had Baker's mental health evaluated. Marsh was initially concerned about Baker's competency to stand trial, but he thought Baker seemed competent. Marsh considered presenting Baker's mental health issues to the sentencing court as mitigating evidence but decided not to do so. His reason was based on his long, personal experience with the sentencing judge:

"[M]y experience appearing before Judge Fleming, especially in child cases, was that we were probably better off going in and taking responsibility for our actions, hoping that these would be consecutive, rather than going in and trying to mitigate through psychological mumbo-jumbo, for lack of a better term."

Marsh had met Baker's family members before sentencing but did not ask any of them to testify on Baker's behalf at the sentencing hearing. Marsh stated: "You know, I don't recall talking to anyone. We knew he was going to get a life sentence. There had been some changes in the plea ... I don't specifically remember talking to them about testifying."

When asked whether Marsh was satisfied with the plea agreement, he testified:

"I mean, obviously, if you get a person a life sentence, that's not a great agreement, but I was [satisfied] in this case. He was charged with ... murder. He was charged with a[n] aggravated sodomy charge. If that could have resulted in the death penalty upon those convictions. The sentence for murder could have been a hard 50. The sentence for aggravated sodomy could have been life without eligibility for parole.... His ultimate sentence was life. Eligibility for parole after 20. The agg[ravated] sodomy went away. So therefore, the death penalty went away. While I wouldn't say that I was completely satisfied. I wish we could have got the sentences concurrently. But we made a lot of very serious charges and serious consequences go away."

Marsh felt that the longer the case went on, the greater the chances were for the death penalty. Marsh had negotiated other plea agreements with the State, but the State rejected them. Marsh stated there could be a sufficient factual basis for the murder charge, but his and Baker's main goal was to make the aggravated sodomy charge go away. Because Baker had previous aggravated indecent liberty convictions that could have been presented to the jury, Marsh believed a jury would have convicted Baker on the current sodomy charge had it not been dismissed due to Baker's plea. Marsh discussed all the options with Baker and Baker accepted the plea. The plea dismissed the aggravated sodomy charge and thus took the death penalty off the table. The plea preserved Baker's ability to argue for concurrent sentences.

A mental health professional, Dr. Jon Sward, also testified as an expert witness. Sward testified that the purpose of a mental health evaluation is to do a comprehensive evaluation of a person's mental, emotional, behavioral, functional, and personality makeup and then recommend treatment plans for each person. Sward testified that Baker's medical...