Bogguess v. State

• Decision Date: 09 June 2017
• Docket Number: No. 111,299,111,299
• Citation: 395 P.3d 447
• Parties: Shannon BOGGUESS, Appellant, v. STATE of Kansas, Appellee.
• Court: Kansas Supreme Court

395 P.3d 447

Shannon BOGGUESS, Appellant,

v.STATE of Kansas, Appellee.

No. 111,299

Supreme Court of Kansas.

Opinion filed June 9, 2017

Krystle M. S. Dalke, of Law Office of Michael P. Whalen, of Wichita, argued the cause, and Michael P. Whalen, of the same firm, was with her on the brief for appellant.

Matt J. Maloney, assistant district attorney, argued the cause, and Marc Bennett, district attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by Stegall, J.:

In 2008, the State charged Shannon Bogguess with first-degree murder, aggravated robbery, aggravated kidnapping, aggravated assault, and criminal possession of a firearm—crimes for which he was ultimately convicted. His convictions were affirmed on appeal, and he later filed this action pursuant to K.S.A. 60-1507. The trial court denied the motion after conducting a nonevidentiary hearing, and the Court of Appeals affirmed on alternative grounds. We affirm the judgment of the district court and the judgment of the Court of Appeals, albeit on only one of its stated alternative grounds.

FACTUAL AND PROCEDURAL BACKGROUND

On the morning Bogguess was scheduled to go before a jury for trial, he requested a bench trial on stipulated facts. The district court conducted the following colloquy with Bogguess:

"THE COURT: And, Mr. Bogguess, just so that I am perfectly clear on this matter, you do understand that all charges contained in and set forth in the amended Information filed on May 29 of 2009, are scheduled for jury trial today?

"[BOGGUESS]: Yes, sir.

"THE COURT: You understand that we have a jury potentially of up to 50 people available from whom the jury selection would be made and from whom a jury of 12 persons and one alternate would be chosen to hear and decide the case?

"[BOGGUESS]: Yes, sir.

"THE COURT: You understand that you have the absolute right to have a jury trial and have the evidence presented to a jury, and after they've been instructed by myself, then the jury would make a decision as to your guilt or as to whether you were guilty or not guilty of each of the six charges against you in this Complaint/Information; do you understand that?

"[BOGGUESS]: Yes, sir.

"THE COURT: And is it your desire at this time to waive and give up your right to that jury trial and to proceed as both the State and your attorneys have advised me on a trial by stipulated fact?

"[BOGGUESS]: Yes, sir.

"THE COURT: And you understand that the stipulated fact will take the place of actual live testimony, that it will be in the form of documentation presented to me and that documentation are the only facts that I will receive, the only facts that I will consider, and the only facts from which I will make my judgment; do you understand that?

"[BOGGUESS]: Yes, sir.

"THE COURT: Do you have any questions whatsoever about any of the rights you have to have a jury trial and the effect of giving up those rights to a jury trial and submitting this matter to me for trial on stipulated facts alone? Do you have any questions you would like to confer with on your attorneys or that you would like to ask me at this time?

"[BOGGUESS]: No, sir."

At this point, the trial judge noted that he had conducted the preliminary hearing, heard the pretrial motions, reviewed Bogguess' interrogation tape, and read the documents provided as part of the stipulation. The trial judge also had a copy of the three-page stipulation agreement. The district court verified once again that Bogguess wanted to proceed under that agreement:

"THE COURT: I do have a stipulation of facts for bench trial. On page three it has signatures of all four counsel and signatures of Mr. Bogguess.

"Mr. Bogguess, is this your signature on the document ... ?

"[BOGGUESS]: Yes, it is.

"THE COURT: And this document is captioned stipulation of facts for bench trial?

"[BOGGUESS]: Yes, it is.

"THE COURT: Did you read this document, this stipulation of facts for bench trial, before you signed it?

"[BOGGUESS]: Yes, sir, I did.

"THE COURT: Do you agree that these are the facts you wish to stipulate to and submit to me for my decision in the case as to whether you're guilty or not guilty of these charges?

"[BOGGUESS]: Yes, sir."

The district court ultimately found Bogguess guilty on all counts. On the day of his scheduled sentencing, Bogguess filed a pro se "motion to dismiss counsel." Essentially, Bogguess made two claims in support of his dissatisfaction with his appointed counsel: (1) a conflict of interest because one of the potential prosecution witnesses was the cousin of an attorney at appointed counsel's firm; and (2) ineffective assistance of counsel for failing to present a closing argument at trial.

At his sentencing hearing, the district court denied Bogguess' motion after it questioned him about his claims. With respect to dissatisfaction arising from appointed counsel's performance, the district court ruled:

"Mr. Bogguess, I presided over your bench trial. It was a bench trial on stipulated fact[s]. Before we began those proceedings I went to great pains, great effort to make sure you understood that a bench trial on stipulated fact [s] was a trial in front of me alone, not in front of a jury of 12 people, and that it would be on stipulated fact[s] agreed to by you, your defense attorneys and the State attorneys as to what evidence through a summary would be presented to me, and that only that summary of evidence would be considered by me in making my decisions as to whether or not the State had proven you guilty of any of the charges they brought against you.

....

"Final arguments, Mr. Bogguess, are a courtesy to counsel. Quite honestly, more times than not they hurt rather than help the party making final arguments, but they are a courtesy. In a situation in a case where you're having a bench trial on stipulated fact, final arguments really aren't much of a necessity at all. And the fact that [appointed counsel] didn't give one on your behalf or if he gave an extremely abbreviated one on your behalf, I find nothing in that that would indicate ineffective assistance of counsel."

The district court then sentenced Bogguess to life in prison without the possibility of parole for 25 years for the first-degree murder count and imposed a consecutive 631 months' imprisonment for the remaining counts.

Bogguess directly appealed his conviction and sentence, which we affirmed. State v. Bogguess (Bogguess I) , 293 Kan. 743, 268 P.3d 481 (2012). Among the several issues we resolved in his direct appeal, we considered and rejected Bogguess' claim that the district court erred by denying his pro se motion on the day of sentencing.

"Before determining whether to appoint new counsel, the trial court must make some inquiry into the defendant's complaints. [Citation omitted.] Here, the trial court held a hearing before sentencing at which it summarized the pro se motion and allowed Bogguess, his counsel, and the State to make statements and present arguments.

"Bogguess alleged that his counsel had a conflict of interest because one of the State's witnesses was the cousin of an employee in his counsel's office. This witness worked at one of the stores where Bogguess used Collins' credit card to make a purchase. The prosecutor explained that the witness was on the list provided to defense counsel that the State did not intend to call at trial. The trial court listened to Bogguess' concerns and ultimately decided that there was no potential prejudice or conflict of interest.

"Bogguess also complained that his counsel was ineffective in providing no closing argument at the bench trial. The trial judge noted that he presided over the bench trial on stipulated facts and that closing arguments are not evidence to be considered in determining guilt. The trial court ultimately decided that the allegations raised in the motion were wholly without merit and denied the motion." 293 Kan. at 754, 268 P.3d 481.

It is important to note that we evaluated both the conflict of interest claim and the ineffective assistance of counsel claim within the framework of a motion to disqualify counsel and appoint new counsel. See Bogguess I , 293 Kan. at 753–54, 268 P.3d 481 (citing State v. Sappington , 285 Kan. 158, 166, 169 P.3d 1096 (2007) [stating that to warrant the appointment of new trial counsel, a defendant must show justifiable dissatisfaction with appointed counsel] ). We did not discuss or conduct any analysis under Strickland v. Washington , 466 U.S. 668, 689, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984) (establishing the two-part test of an ineffective assistance of counsel claim pursuant to the Sixth Amendment). Nor did we hear arguments concerning or consider whether Bogguess was entitled to a remand for an evidentiary hearing on his claims pursuant to State v. Van Cleave , 239 Kan. 117, 119–121, 716 P.2d 580 (1986) (establishing guidelines for an appellate court when determining whether to remand a case for an evidentiary hearing on an ineffective assistance of counsel claim). Instead, we found that "the trial court had a reasonable basis for believing the attorney-client relationship had not deteriorated to the point where appointed counsel could no longer give effective aid in the fair presentation of Bogguess' defense. The trial court did not abuse its discretion by refusing to appoint new counsel." Bogguess I , 293 Kan. at 754, 268 P.3d 481.

Subsequently, Bogguess filed the instant case, a pro se K.S.A. 60-1507 motion collaterally attacking his conviction and sentence. As explained by the Court of Appeals panel below:

"On November 28, 2012, Bogguess filed a pro se K.S.A. 60-1507 motion, alleging that his trial counsel violated his constitutional right to effective assistance of conflict-free counsel and that the district court deprived him of his due process rights when it refused to suppress his confession. His essential contention was that [appointed counsel] had a conflict of interest and provided deficient

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