Campbell v. State, No. 91,206.

• Decision Date: 17 June 2005
• Docket Number: No. 91,206.
• Citation: 114 P.3d 162,34 Kan.App.2d 8
• Parties: MICHAEL CAMPBELL, Appellant, v. STATE OF KANSAS, Appellee.
• Court: Kansas Court of Appeals

34 Kan.App.2d 8

114 P.3d 162

MICHAEL CAMPBELL, Appellant, v. STATE OF KANSAS, Appellee.

No. 91,206.

Court of Appeals of Kansas.

Opinion filed June 17, 2005.

Stephen B. Chapman, of Chapman and White, LLC, of Olathe, for appellant.

Christopher L. Schneider, assistant district attorney, Nick A. Tomasic, district attorney, and Phill Kline, attorney general, for appellee.

Before JOHNSON, P.J., ELLIOTT and BUSER, JJ.

BUSER, J.

Michael Campbell appeals the district court's denial of his K.S.A. 60-1507 motion. Campbell contends that counsel appointed for the non-evidentiary hearing was ineffective, and that the district court improperly denied him an evidentiary hearing and failed to provide findings of fact and conclusions of law as required by Supreme Court Rule 183(j) (2004 Kan. Ct. R. Annot. 221). We affirm in part, reverse in part, and remand with directions for further proceedings consistent with this opinion.

Procedural Background

In December 1997, Campbell was charged with the first-degree murder of Sharon Schmid. At trial, the State presented a case supported by circumstantial evidence, and the jury ultimately convicted Campbell of the charged offense. See State v. Campbell, 268 Kan. 529, 997 P.2d 726,cert. denied 531 U.S. 832 (2000). Campbell appealed his conviction to the Kansas Supreme Court, arguing that the trial court abused its discretion in denying his challenge to the State's use of peremptory strikes against African-American jurors in violation of Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986), that testimony by the victim's sister violated pretrial rulings and prejudiced Campbell, and that prosecutorial misconduct adversely influenced the jury's verdict. The Supreme Court affirmed Campbell's conviction.

In October 2001, Campbell filed a motion pursuant to K.S.A. 60-1507 raising numerous allegations of error. The district court appointed counsel and, in March 2002, held a nonevidentiary hearing, without Campbell's presence, to determine the merits of the motion. At this hearing, Campbell's court-appointed counsel stated there was no basis for further proceedings and argued that Campbell's trial counsel was effective. The district court denied Campbell's motion and he appeals.

Ineffective Assistance of Counsel at K.S.A. 60-1507 Hearing

Campbell claims a denial of due process because his court-appointed counsel "actively advocated against Mr. Campbell's case" at the preliminary K.S.A. 60-1507 hearing. During the hearing, Campbell's counsel advised the court she had thoroughly reviewed the underlying criminal case file, transcripts, appellate file, and the Kansas Supreme Court opinion affirming Campbell's murder conviction. Additionally, she reported having spoken with Campbell's trial attorney. Based upon this review, counsel concluded:

"Although it would not please Mr. Campbell, I would have to state to the Court that based on my review of that, my experience of almost 15 years as a criminal defense attorney and a prosecutor, I do not find any basis to proceed. I think the file and the information that's presented to the Court speaks for itself. I think the Court would find upon reviewing all the information that I find Ms. Roe was not ineffective nor was the Appellate Defender's Office ineffective."

With regard to Campbell's ineffective assistance of trial counsel claim, his K.S.A. 60-1507 counsel also argued, "I don't think there would have been a different outcome in the matter." Campbell's counsel noted that Campbell was "very vague on the information he wants presented . . . even if they [sic] had additional information." Campbell's counsel praised the performance of Campbell's trial counsel by noting that she had done "a lot of extra work on his behalf." Counsel concluded her argument at the 60-1507 hearing by observing, "But, I — everything I see shows that she [trial counsel] was very effective, Your Honor, and prepared a wonderful record for the man." At the conclusion of counsel's argument, the prosecutor began his response, "Judge, I don't know that I need to say a whole lot."

On appeal, Campbell argues in his brief that his K.S.A. 60-1507 counsel's ineffectiveness violated the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution. During oral argument, however, Campbell's counsel conceded that Kansas law does not recognize a constitutional right to effective K.S.A. 60-1507 counsel. We agree. Kansas law is well settled that a K.S.A. 60-1507 proceeding is a civil action for which there is no constitutional right to effective assistance of counsel. See Pennsylvania v. Finley, 481 U.S. 551, 555, 95 L. Ed. 2d 539, 107 S. Ct. 1990 (1987); Brown v. State, 278 Kan. 481, 483, 101 P.3d 1201 (2004).

Campbell's counsel properly noted, however, that following the filing of briefs in this case, the Supreme Court determined that Kansas law providing a statutory right to counsel requires in certain circumstances that counsel be effective for indigents in K.S.A. 60-1507 proceedings. Brown, 278 Kan. at 483. In Brown, an indigent inmate filed a K.S.A. 60-1507 motion. Counsel was appointed by the court, a nonevidentiary hearing was held, and the district court denied relief. Subsequently, court-appointed counsel failed to advise Brown of this adverse ruling or his right to appeal. Over 2 years after the court's denial of Brown's motion, Brown learned of this adverse judgment. Motions to file an appeal out of time were then filed by Brown and his counsel. The district court denied relief, citing Robinson v. State, 13 Kan. App. 2d 244, 767 P.2d 851, rev. denied 244 Kan. 738 (1989).

In Robinson, the Court of Appeals held that a movant's Fourteenth Amendment due process rights were not violated when an appeal from the dismissal of his K.S.A. 60-1507 motion was dismissed due to his counsel's failure to timely file the appeal. Robinson, 13 Kan. App. 2d at 249. The rationale employed by the court was that since Robinson had no constitutional right to counsel he could not "save his untimely appeal from the dismissal of his 1507 motion by claiming ineffective assistance of counsel." Robinson, 13 Kan. App. 2d at 249-50. The Supreme Court in Brown, however, overruled the district court and allowed Brown's appeal to be filed out of time. In specifically overruling Robinson and its progeny, the Supreme Court held: "When counsel is appointed by the court in post-conviction matters, the appointment should not be a useless formality." Brown, 278 Kan. at 484. The Court found that court-appointed counsel's 2-year delay in notifying his client of the adverse ruling and his client's right to appeal "cannot even meet the most minimal of standards." Brown, 278 Kan. at 484.

Our Supreme Court has never held that the statutory right enunciated in Brown is applicable to factual situations other than when court-appointed counsel waits for 2 years to notify a client of a denial of his or her K.S.A. 60-1507 motion and the right to appeal that adverse decision. The present case, however, shares important similarities with Brown that clearly suggest the appropriateness of applying the Brown precedent to the case at bar.

First, both cases involve counsel appointed under K.S.A. 2000 Supp. 22-4506(b) "to assist" indigent defendants seeking redress pursuant to K.S.A. 60-1507 after a judicial finding that the motion presents "substantial questions of law or triable issues of fact." K.S.A. 2000 Supp. 22-4506(b). The statute's noteworthy language that "the court shall appoint counsel" in these circumstances is not optional, but mandatory.

Second, both cases involve egregious conduct that "cannot even meet the most minimal of standards" for court-appointed counsel. Brown, 278 Kan. at 484. In Brown, counsel's 2-year delay in advising his incarcerated client that the K.S.A. 60-1507 motion was denied and that the law provided him important appeal rights was a flagrant omission of counsel's statutory responsibilities.

In the present case, counsel's argument at the hearing consisted of a strong refutation of her client's claims. In particular, with regard to Campbell's claim that his trial counsel was ineffective, counsel advised the court that her review of the record revealed "Ms. Roe [trial counsel] was not ineffective nor was the Appellate Defender's office ineffective." Having disparaged the evidence regarding the performance prong of Campbell's Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984), claim, counsel proceeded to undermine the prejudice prong of her client's claim by opining, "I don't think there would have been a different outcome in the matter." Campbell's counsel praised his trial attorney and argued against an evidentiary hearing because Campbell "was very vague on the information he wants presented." Campbell's counsel left no doubt as to her opinion that Campbell's motion was without merit: "Although it would not please Mr. Campbell, I would have to state to the Court that based on my review . . . [and] my experience of almost 15 years as a criminal defense attorney and a prosecutor, I do not find any basis to proceed." The argument by Campbell's counsel was detailed, forceful, and effective. Unfortunately for Mr. Campbell, his attorney's advocacy was nothing less than a denunciation of his motion seeking habeas corpus relief.

As set forth in detail below, our review of the record reveals certain legal issues which appear to warrant an evidentiary hearing and consideration by the trial court. The failure of Campbell's counsel to identify and argue for these legal issues may have been ineffective. We are not persuaded, however, that this particular aspect of Campbell's counsel's representation "cannot meet the most minimal of standards" required of counsel appointed pursuant to K.S.A. 2000 Supp. 22-4506(b). Rather, our sole concern, based upon a review of the hearing transcript, is that Campbell's court-appointed counsel...