Beth v. State
| Docket Number | 124,938 |
| Decision Date | 01 December 2023 |
| Parties | Jonathan M. Beth, Appellant, v. State of Kansas, Appellee. |
| Court | Kansas Court of Appeals |
NOT DESIGNATED FOR PUBLICATION
Submitted without oral argument.
Appeal from Neosho District Court; ROBERT J. FLEMING, judge.
Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellant.
Linus A. Thuston, county attorney, and Kris W. Kobach, attorney general, for appellee.
Before ATCHESON, P.J., MALONE and PICKERING, JJ.
Jonathan M. Beth appeals from the district court's denial of his K.S.A. 60-1507 motion after an evidentiary hearing. Beth's K.S.A. 60-1507 motion raised ineffective assistance of counsel claims against three attorneys. The proceedings in district court on Beth's K.S.A. 60-1507 motion extended for over seven years. In this appeal, Beth argues that procedural deficiencies in how his motion was handled in district court prevented him from fully litigating his claims against two of those attorneys. For the reasons stated below, we reject Beth's claims and affirm the district court's judgment.
In 2009, Beth pleaded guilty to one count of aggravated kidnapping for which the facts are not relevant to this appeal. The district court granted Beth's motion for a downward durational departure and sentenced him to 180 months' imprisonment with 36 months' postrelease supervision. During these proceedings, Beth was represented by his counsel, David Clark.
In 2010, Beth moved to withdraw his plea. The motion was prepared by Beth's newly appointed counsel, John J Gillett. In the motion, Beth alleged that his plea counsel Clark, was ineffective for failing to communicate with Beth about the case and for not visiting Beth in jail. The proceedings on the plea withdrawal motion extended for several years. Gillett later withdrew as counsel, and Daniel Schowengerdt was appointed to represent Beth on March 6 2013.
The plea withdrawal motion was ultimately set for hearing in April 2013. At the hearing, Beth called himself, Clark, and the trial prosecutor, Melissa Dugan, as witnesses. The district court entered its memorandum decision denying Beth's motion on June 11, 2013. In the memorandum decision, the district court found that Clark had effectively represented Beth throughout the plea and sentencing. Beth appealed the denial of his motion to withdraw plea but later voluntarily dismissed his appeal.
Beth filed a pro se K.S.A. 60-1507 motion on July 25, 2014. In his motion, Beth alleged that Gillett was ineffective in preparing the plea withdrawal motion and in representing Beth on the motion until Gillett withdrew a few weeks before the hearing. Beth also alleged that Clark provided ineffective assistance of counsel for much of the same reasons offered in his motion to withdraw plea-that Clark had failed to discuss the case or generally communicate with him and also that Clark had reviewed no discovery. Beth also alleged that Schowengerdt provided ineffective assistance for, among other things, not contacting witnesses to establish facts or to testify, canceling a witness subpoena, not reviewing discovery, and not conducting a meaningful cross-examination. The motion also alleged that Beth's appellate counsel was ineffective.
The K.S.A. 60-1507 proceedings extended for several years, and the district court ultimately held a preliminary hearing on November 21, 2017. At that hearing, Beth withdrew his claim against his appellate counsel. After speaking to the parties, the district court found that the case should proceed to an evidentiary hearing on the claims against Schowengerdt and Clark. Beth's claims of ineffective assistance against Gillett were not referenced during the hearing.
On January 2, 2018, Beth moved to alter or amend the judgment and claimed that the district court's order limiting an evidentiary hearing to the claims against Clark and Schowengerdt was error in that it "seemingly dismissed [his] claims against John Gillett." The record on appeal does not show that the district court addressed or ever ruled on Beth's motion to alter or amend the judgment.
The State moved to dismiss on May 18, 2018, and argued that claims against Clark's effectiveness were barred by res judicata because they were already litigated in Beth's motion to withdraw plea proceedings. On May 6, 2019, the district court entered a written order denying the State's motion to dismiss and finding that Beth had raised two ineffective assistance of counsel claims in his K.S.A. 60-1507 motion-one against Clark and one against Schowengerdt. The district court further found that Beth's claim against Clark was not barred by the doctrine of res judicata because the Kansas Supreme Court had held in Bogguess v. State, 306 Kan. 574, 395 P.3d 447 (2017), that an ineffective assistance of counsel claim in a K.S.A. 60-1507 motion is not barred by res judicata when it did not receive a complete review under the Sixth Amendment. The district court's order did not reference a claim against Gillett for ineffective assistance of counsel.
In a hearing on August 12, 2020, the district court referenced that Beth and the State had stipulated to a bifurcated evidentiary hearing in which the parties would first address Beth's claim against Schowengerdt and then address his claim against Clark only if the district court found that Schowengerdt had provided ineffective assistance. Later in that same hearing the district court more formally ruled from the bench that it would first hold a hearing on Beth's claim against Schowengerdt and if it found that Schowengerdt provided ineffective assistance of counsel, then the State would have seven days to respond to Beth's request for production of documents on the claim against Clark, and the court would later hold a hearing on that claim.
The district court held an evidentiary hearing on October 13, 2021. Beth represented himself at this hearing with standby counsel. For reasons not explained by either party or the record, the district court did not bifurcate the evidentiary hearing as it had previously ordered and, instead, proceeded to consider evidence on both Schowengerdt's and Clark's effectiveness as counsel. Beth did not object to this procedure at the hearing. We need not detail the evidence presented at the hearing to address the issues raised in this appeal. Interestingly, in his opening statement, Beth stated that he intended to call Gillett, who was under subpoena, as a witness at the hearing. But at the end of the hearing, when the district court asked Beth about whether he wanted to call Gillett or prepare a motion for citation of contempt against him, Beth responded, "No. I'm going to-I'm going to waive that, Your Honor." Beth then rested his case.
After hearing the evidence, the district court issued its memorandum decision on November 19, 2021, where it denied Beth's K.S.A. 60-1507 motion and found that Clark and Schowengerdt had provided effective assistance of counsel. Beth timely appealed the district court's judgment.
On appeal, Beth does not challenge any of the findings of fact or conclusions of law reached by the district court in its memorandum decision. Instead, Beth raises two issues on appeal, both concerning alleged procedural deficiencies in how his K.S.A. 601507 motion was handled in district court. Beth first claims the district court prevented him from presenting his ineffective assistance of counsel claim against Clark, depriving him of his right to due process. At the hearing on August 12, 2020, it appears the parties and the district court agreed to bifurcate the evidentiary hearing on the claims against Schowengerdt and Clark and proceed first with a hearing on the claims against Schowengerdt. Only if the district court found Schowengerdt to be ineffective would the district court proceed with a hearing on the claims against Clark. But when the evidentiary hearing was held on October 13, 2021, the district court heard evidence on the claims against both Schowengerdt and Clark. Beth did not object to this procedure at the hearing. But now on appeal, Beth argues that he "appeared at the evidentiary hearing with the belief that he was only trying the case against Schowengerdt and that any rulings on Clark's effectiveness would be held at a later time." Beth...
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