Blacklock v. State, 122,738

CourtCourt of Appeals of Kansas
Writing for the CourtPER CURIAM.
Citation500 P.3d 1226 (Table)
Parties Christopher BLACKLOCK, Appellant, v. STATE of Kansas, Appellee.
Docket NumberNo. 122,738,122,738
Decision Date17 December 2021

500 P.3d 1226 (Table)

Christopher BLACKLOCK, Appellant,
STATE of Kansas, Appellee.

No. 122,738

Court of Appeals of Kansas.

Opinion filed December 17, 2021.

Richard P. Klein, of Olathe, for appellant, and Christopher Blacklock, appellant pro se.

Shawn E. Minihan, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.

Before Bruns, P.J., Green and Isherwood, JJ.


Per Curiam

Christopher Blacklock appeals from the district court's denial of his K.S.A. 60-1507 motion. On appeal, Blacklock asserts four issues: First, whether the district court erred in allowing him to proceed pro se during part of his jury trial; second, whether the district court erred in finding that his trial counsel was not ineffective; third, that the district court erred in finding no prosecutorial error; and fourth, that the district court erred in failing to grant him relief on a jury instruction issue. Some of Blacklock's claims were summarily dismissed while the district court held an evidentiary hearing on others. Finding no error, we affirm the district court's denial of Blacklock's motion.


On August 11, 2011, a jury convicted Christopher Blacklock of second-degree murder, possession with intent to distribute marijuana, and possession of drug paraphernalia. Later, the district court sentenced Blacklock to a 311-month prison term. On direct appeal, a panel of this court affirmed Blacklock's convictions and his sentence. State v. Blacklock , No. 107,466, 2014 WL 3731885 (Kan. App. 2014) (unpublished opinion), rev. denied 302 Kan. 1012 (2015). Because the underlying facts are stated in the previous opinion, they will not be repeated here. Rather, those facts will be discussed as necessary in the Analysis portion of this opinion.

After a mandate was issued in the direct appeal, Blacklock filed a pro se K.S.A. 60-1507 motion that was later supplemented by counsel. On December 3, 2018, the district court held a nonevidentiary hearing at which several of the claims asserted by Blacklock were summarily dismissed. The district court held an evidentiary hearing on Blacklock's remaining claims on January 11, 2019. Blacklock chose to represent himself during both hearings. At the evidentiary hearing, both Blacklock and his former trial attorney testified. At the conclusion of the hearing, the district court denied the remaining claims asserted in Blacklock's K.S.A. 60-1507 motion.

On February 22, 2019, Blacklock filed a timely notice of appeal from the denial of his K.S.A. 60-1507 motion. Blacklock's appellate counsel filed a brief on behalf of his client. In his brief, Blacklock's attorney asserts—for the first time—that the district court erred in allowing his client to represent himself during part of the jury trial. In addition, we granted Blacklock's request to file a pro se supplemental brief. In his supplemental brief, Blacklock claims that his trial attorney was ineffective and alleges prosecutorial error. Blacklock also argues in his supplemental brief that the district court erred in instructing the jury.


A district court has three options when handling a K.S.A. 60-1507 motion:

" ‘(1) The court may determine that the motion, files, and case records conclusively show the prisoner is entitled to no relief and deny the motion summarily; (2) the court may determine from the motion, files, and records that a potentially substantial issue exists, in which case a preliminary hearing may be held. If the court then determines there is no substantial issue, the court may deny the motion; or (3) the court may determine from the motion, files, records, or preliminary hearing that a substantial issue is presented requiring a full hearing.’ [Citations omitted.]" White v. State , 308 Kan. 491, 504, 421 P.3d 718 (2018).

The standard of review depends on which of these options a district court used. 308 Kan. at 504.

Here, the district court summarily denied some of the claims asserted in Blacklock's K.S.A. 60-1507 motion at a nonevidentiary hearing and denied the remaining claims on the merits at an evidentiary hearing. For that reason, we review the issues raised on appeal that arise out of the summary dismissal under a de novo review to determine whether the motion, files, and records of the case conclusively establish that the movant is not entitled to relief. Beauclair v. State , 308 Kan. 284, 293, 419 P.3d 1180 (2018). In contrast, we review the issues raised on appeal that arise out of the evidentiary hearing 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. Fuller v. State , 303 Kan. 478, 485, 363 P.3d 373 (2015).


For the first time on appeal, Blacklock contends that the district court erred in granting his request to represent himself on the final day of his four-day jury trial. Despite vigorously arguing at trial for the opportunity to represent himself, Blacklock now asserts that the district court denied him his constitutional right to counsel by granting his request to represent himself. However, based on our review of the record, we find that the district court appropriately advised Blacklock of his rights and allowed him to represent himself. We also find that the district court appropriately appointed standby counsel.

In general, issues not raised before the district court cannot be raised for the first time on appeal. See State v. Kelly , 298 Kan. 965, 971, 318 P.3d 987 (2014). Still, there are several exceptions to the general rule, including: (1) the newly asserted theory involves only a question of law arising on proved or admitted facts and is finally determinative of the case; (2) consideration of the theory is necessary to serve the ends of justice or to prevent denial of fundamental rights; and (3) the district court was right for the wrong reason. State v. Johnson , 309 Kan. 992, 995, 441 P.3d 1036 (2019). Because the Sixth Amendment to the United States Constitution guarantees the right to counsel in a criminal prosecution, we find that the ends of justice will be served to consider this issue on the merits. See State v. Galaviz , 296 Kan. 168, 174, 291 P.3d 62 (2012).

In State v. Burden , 311 Kan. 859, 863-64, 467 P.3d 495 (2020), the Kansas Supreme Court reviewed the procedure to be followed by a district court in determining a defendant's request for self-representation:

"This court has suggested a three-step framework for a district court judge to use in determining if a waiver is knowing and intelligent. First, a court should advise the defendant of the right to counsel and to appointed counsel if indigent. Second, the defendant must possess the intelligence and capacity to appreciate the consequences of his or her decision. And third, the defendant must comprehend the charges and proceedings, punishments, and the facts necessary for a broad understanding of the case. State v. Buckland , 245 Kan. 132, 138, 777 P.2d 745 (1989).

"To assure the defendant appreciates the consequences of waiving representation by counsel, Buckland suggests the court explain that the defendant will be held to the same standards as an attorney; that the judge will not assist in or provide advice about presenting a defense; and that it is advisable to have an attorney because many trial techniques, evidence rules, and the presentation of defenses require specialized training and knowledge. 245 Kan. at 138 ; see Bunyard , 307 Kan. at 475-76 (citing a seven-step checklist found in Cateforis, Kansas Criminal Law 11-9 [5th ed. 2016]).

"This court has not required use of a checklist, however. Instead, courts weigh whether a defendant has knowingly and intelligently waived the right to counsel by examining the circumstances of each case. State v. Armstrong , 240 Kan. 446, 453, 731 P.2d 249 (1987)."

Here, a review of the trial transcript reveals that the district court advised Blacklock of his right to counsel and warned him against representing himself. The district court also advised Blacklock of the potential ramifications of self-representation as well as of the limited role played by standby counsel. Nevertheless, Blacklock insisted on representing himself. The record also reflects that Blacklock's decision was knowingly and intelligently made.

On the morning of the second day of the jury trial, Blacklock first conveyed an interest in representing himself. Specifically, Blacklock expressed an interest in being allowed to question the witnesses and potentially recalling one of the State's witnesses. After the district court warned him of the potential dangers of self-representation in a criminal jury trial, Blacklock dropped his request but suggested that he might want to raise the issue again at a later point in the trial. In particular, the district court warned Blacklock:

"I don't know what your legal training is but I just say it's a very dangerous move on your part, it's risky, has a lot of risk and your lawyers can talk to you about it. You have a right to represent yourself if you want—and I know they have policies and so forth. I have had trials where I had standbys, where defendants try the case themselves and have standby counsel in case they want a lawyer as the thing goes along. We deal with it as we get to it. It can cause big

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