Baskin v. State
| Decision Date | 23 November 2022 |
| Docket Number | 124,284 |
| Parties | Benton G. Baskin, Appellant, v. State of Kansas, Appellee. |
| Court | Kansas Court of Appeals |
NOT DESIGNATED FOR PUBLICATION
Appeal from Sedgwick District Court; KEVIN M. SMITH, judge. Affirmed.
Mark Sevart, of Derby, for appellant, and Benton G. Baskin appellant pro se.
Matt J. Maloney, assistant district attorney, Marc Bennett district attorney, and Derek Schmidt, attorney general, for appellee.
Before ATCHESON, P.J., BRUNS, J., and PATRICK D. MCANANY, S.J.
Benton G. Baskin appeals from the district court's denial of his K.S.A. 60-1507 motion. On appeal, he contends that the district court erred in dismissing several of his claims without holding an evidentiary hearing. Baskin also contends that his constitutional right to a speedy trial was violated and he claims his previous trial and appellate counsel were ineffective for failing to raise the issue. In addition, he filed a pro se brief in which he contends that his prior counsel was ineffective for failing to raise the issue of whether his constitutional right to be present at all critical stages was violated. Finding no error, we affirm the district court's denial of Baskin's K.S.A. 60-1507 motion.
On August 28, 2015, a jury convicted Baskin of rape, aggravated criminal sodomy, kidnapping, and aggravated sexual battery. The district court sentenced Baskin to a 492-month prison term. On direct appeal, a panel of this court affirmed Baskin's convictions and his sentence. State v Baskin, No. 115,271, 2017 WL 1367048 (Kan. App. 2017) (unpublished opinion). In doing so, the panel rejected Baskin's claims that the district court erred when it: (1) improperly instructed the jury on the kidnapping charge; (2) improperly allowed the State to amend the kidnapping complaint at the close of the State's evidence; (3) improperly used his criminal history to enhance his sentence; and (4) failed to grant his motion to dismiss based on the alleged violation of his statutory right to a speedy trial. 2017 WL 1367048, at *1-4. Baskin's petition for review was denied by our Supreme Court on October 3, 2017, and his writ of certiorari was denied by the United States Supreme Court on March 19, 2018. Baskin v. Kansas, 138 S.Ct. 1301 (2018). Because the underlying facts are stated in the previous opinion and are not necessary to resolve the issues raised on appeal, they will not be repeated here. Any facts relevant to the issues raised will be discussed in the analysis portion of this opinion.
After the United States Supreme Court denied his motion for rehearing on the writ of certiorari, Baskin filed a timely pro se K.S.A. 60-1507 motion. In his motion, Baskin alleged numerous allegations of trial error in addition to allegations of ineffective assistance of trial and appellate counsel. Subsequently, the district court appointed an attorney to represent him on his K.S.A. 60-1507 motion.
On June 1, 2021, the district court held a nonevidentiary hearing at which the district court judge allowed counsel to address each of the issues raised by Baskin in the K.S.A. 60-1507 motion. The district court advised the parties that it had reviewed the written motion and believed that many of the issues raised were mere trial errors that did not warrant an evidentiary hearing. However, the district court gave counsel the opportunity to present arguments as to what issues needed to be addressed at the full evidentiary hearing.
At the end of the hearing, the district court found that the majority of the issues raised were trial errors that did not entitle Baskin to either a full evidentiary hearing or habeas relief. The district court ruled the following issues should be addressed at the evidentiary hearing regarding Baskin's claims of ineffective assistance of counsel: (1) trial counsel's decisions regarding pretrial motions; (2) trial counsel's decision regarding a Jackson v. Denno hearing; and (3) trial counsel's decisions in the jury selection process. The district court also left it to Baskin's K.S.A. 60-1507 counsel's discretion as to whether he wished to call appellate counsel to address any issues regarding ineffective assistance of appellate counsel.
On June 16, 2021, the district court held an evidentiary hearing on Baskin's remaining claims. At the evidentiary hearing, both Baskin and his trial counsel testified. But his appellate counsel was not called as a witness. At the conclusion of the hearing, the district court took the matter under advisement. On June 21, 2021, the district court denied Baskin's K.S.A. 60-1507 motion in a 12-page written memorandum decision.
After Baskin filed this appeal, his current appellate counsel filed a brief on his behalf. In addition, we granted Baskin's request to file a pro se supplemental brief with a 15-page limit. Despite our order, Baskin's 18-page brief exceeded the page limit set by this court.
On appeal, Baskin's appellate counsel presented two issues for review. First, whether the district court should have granted an evidentiary hearing on all of the claims for relief set forth in his K.S.A. 60-1507 motion. Second whether the district court erred by failing to dismiss the underlying criminal case due to an alleged violation of his constitutional right to a speedy trial. In his supplemental brief, Baskin presents two additional issues. The first issue he presents relates to the constitutional right to speedy trial issue asserted by his appellate counsel. He also asserts that the district court denied his right to be present at all critical stages of his criminal proceeding. The second issue he presents is whether the district court erred in failing to hold a hearing on his claim of ineffective assistance of his K.S.A. 60-1507 counsel.
As discussed above, the district court held a nonevidentiary hearing at which it decided that some of Baskin's claims asserted in his K.S.A. 60-1507 motion required an evidentiary hearing while others did not. When a district court denies claims asserted in a K.S.A. 60-1507 motion after a preliminary hearing, our review on appeal is unlimited. Grossman v. State, 300 Kan. 1058, 1061, 337 P.3d 687 (2014). In contrast, when claims asserted in a K.S.A. 60-1507 motion are denied after an evidentiary hearing, we review the record to determine whether the district court's findings of fact are supported by substantial competent evidence and are sufficient to support the district court's conclusions of law. Balbirnie v. State, 311 Kan. 893, 897-98, 468 P.3d 334 (2020).
Baskin contends that the district court erred in concluding that he was entitled to an evidentiary hearing on some of the claims he asserted in his K.S.A. 60-1507 motion but not on others. Based on our review of his briefs as well as the record on appeal, we find that Baskin's argument on this issue falls short. In his brief, Baskin's counsel merely sets out a laundry list of 17 claims he raised in his motion and suggests that three of them-9, 10, and 14-"may be insufficient to overturn the verdict." In addition, he suggests that two other claims-5 and 17-"may be moot." Evidently, this is because they relate to issues presented at a preliminary hearing held prior to trial. Generally, our Supreme Court has found that State v. Jones, 290 Kan. 373, 381, 228 P.3d 394 (2010). Baskin does not make any claim that these errors caused prejudice at trial.
Baskin's counsel then asserts:
Notwithstanding, to be entitled to relief under K.S.A. 60-1507, the movant-in this case Baskin-must establish by a preponderance of the evidence either: (1) "the judgment was rendered without jurisdiction"; (2) "the sentence imposed was not authorized by law or is otherwise open to collateral attack"; or (3) "there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack ...." K.S.A. 2021 Supp. 60-1507(b) (grounds for relief); see also Supreme Court Rule 183(g) (2022 Kan. S.Ct. R. at 244) (preponderance burden).
We recognize that pro se K.S.A. 60-1507 motions are generally to be liberally construed. Mundy v. State, 307 Kan. 280, 304, 408 P.3d 965 (2018). But pro se movants still bear the burden to allege facts that are sufficient to warrant an evidentiary hearing on their motions. "[M]ere conclusions of the . . . movant are not sufficient to raise a substantial issue of fact when no factual basis is alleged or appears from the record." State v. Jackson, 255 Kan. 455, 463, 874 P.2d 1138 (1994).
When a pro se movant offers only conclusory statements and incomplete facts, the movant presents no evidentiary basis to support the claims. Mundy, 307 Kan. at 304. In...
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