Cellier v. State

• Decision Date: 26 January 2001
• Docket Number: No. 83,993.,83,993.
• Citation: 18 P.3d 259,28 Kan. App.2d 508
• Parties: LANCE C. CELLIER, Appellant, v. STATE OF KANSAS, Appellee.
• Court: Kansas Court of Appeals

28 Kan. App.2d 508

18 P.3d 259

LANCE C. CELLIER, Appellant, v. STATE OF KANSAS, Appellee.

No. 83,993.

Court of Appeals of Kansas.

Opinion filed January 26, 2001.

Richard Ney, of Law Offices of Richard Ney, of Wichita, for appellant.

Mark Goodman, county attorney, Joe E. Lee, former county attorney, and Carta J. Stovall, attorney general, for appellee.

Before ELLIOTT, P.J., KNUDSON, J., and JACK L. BURR, District Judge, assigned.

ELLIOTT, J.:

Following the affirmance by the Kansas Supreme Court of his convictions of first-degree premeditated murder and aggravated kidnapping, see State v. Cellier, 263 Kan. 54, 948 P.2d 616 (1997), Lance C. Cellier filed a K.S.A. 60-1507 motion based on five allegations of ineffective assistance of counsel. He appeals the denial of his motion. We affirm.

A thorough understanding of the factual and procedural background of the criminal trial underlying this 60-1507 action as documented in the Supreme Court's opinion is important in understanding the arguments Cellier now advances. Throughout this opinion, the "1507 court" refers to the district court which heard the 1507 motion and the "trial court" refers to the court which heard the underlying criminal trial.

For present purposes, the two landmark cases on the issue of ineffective assistance of counsel are Strickland v. Washington, 466 U.S. 668, 80 L. Ed.2d 674, 104 S. Ct. 2052, reh. denied 467 U.S. 1267 (1984), and Chamberlain v. State, 236 Kan. 650, 694 P.2d 468 (1985). Strickland announced the now familiar test of evaluating a claim of ineffective assistance of counsel. A defendant must show: (1) counsel's performance "fell below an objective standard of reasonableness," 466 U.S. at 688, and (2) the deficient performance prejudiced the defendant, 466 U.S. at 694.

Regarding the "performance prong," our Supreme Court wrote in Chamberlain:

"The proper standard for judging attorney performance is that of reasonably effective assistance, considering all the circumstances. When a convicted defendant complains of the ineffectiveness of counsel's assistance, the defendant must show that counsel's representation fell below an objective standard of reasonableness. Judicial scrutiny of counsel's performance must be highly deferential, and a fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. A court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." 236 Kan. at 656-57.

Chamberlain also set forth the generally applicable standards for evaluating the prejudice prong as follows:

"With regard to the required showing of prejudice, the proper standard requires the defendant to show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. A court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury.'" 236 Kan. at 657.

We need not address the performance prong if the defendant fails to prove prejudice. State v. Pink, 236 Kan. 715, 732, 696 P.2d 358 (1985), overruled in part on other grounds State v. Van Cleave, 239 Kan. 117, 716 P.2d 580 (1986)

.

As with all applications of the Strickland test, whether a defendant has made the requisite showing depends on the facts of the particular case. See Strickland, 466 U.S. at 695-96. When, as here, the 60-1507 court has made findings of fact and conclusions of law, this court on appeal reviews whether the decision reached by the trial court follows as a matter of law from the facts stated as its basis and also whether the facts so stated have any substantial support in the evidence. State v. Orr, 262 Kan. 312, 322, 940 P.2d 42 (1997). We do not reweigh the testimony or the credibility of witnesses. At the same time, our review of the performance and prejudice components remains de novo as mixed questions of law and fact. 262 Kan. at 322. We now turn to Cellier's five claims.

Was trial counsel ineffective when counsel failed to preserve one issue for direct appeal?

The trial court denied Cellier's motion to suppress four statements made to police. Cellier, 263 Kan. at 63. The Supreme Court refused to address Cellier's appeal of that ruling because trial counsel did not properly object at trial to the admission of the statements. 263 Kan. at 65 (citing State v. Milo, 249 Kan. 15, 18, 815 P.2d 519 [1991]) ("When ... a motion to suppress is denied, the moving party must object to the evidence at trial to preserve the issue on appeal."). Cellier now argues trial counsel was ineffective by failing to preserve the issue for appellate review.

Following an evidentiary hearing on Cellier's K.S.A. 60-1507 motion, the 1507 court held that while counsel breached an essential duty in failing to object to the admission of the evidence, there was no prejudice because "the statements were knowingly and voluntarily made in compliance with the Miranda requirements"; thus, "there was not a reasonable probability that the trial court's suppression of the defendant's confession would have been overturned [on appeal]."

Cellier argues the 1507 court erred because counsel's deficient performance is ineffective per se and prejudice is presumed. As noted above, the State does not contest the 1507 court's finding that trial counsel breached an essential duty; thus, the only issue is whether Cellier suffered prejudice. We begin by addressing what prejudice Cellier must demonstrate.

Generally, in order to demonstrate prejudice, a defendant must show a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Roe v. Flores-Ortega, 528 U.S. 470, 145 L. Ed.2d 985, 120 S. Ct. 1029 (2000). This showing of prejudice is required in cases where the defendant's claim involves counsel's performance during the course of a legal proceeding, either at trial or on appeal. In these cases involving mere "attorney error," the defendant is required to demonstrate the errors "`actually had an adverse effect on the defense.'" 528 U.S. at 482 (quoting Strickland, 466 U.S. at 693). Thus, if Cellier's claim is one where reliability is presumed, he then must show, but for counsel's failure to object, he would have prevailed on appeal. See, e.g., Jackson v. Shanks, 143 F.3d 1312, 1320 (10th Cir. 1998)

.

The United States Supreme Court has noted, however, two types of cases when the strong presumption of reliability gives way and prejudice is presumed because "the adversary process itself [is] presumptively unreliable." United States v. Cronic, 466 U.S. 648, 659, 80 L. Ed.2d 657, 104 S. Ct. 2039 (1984). First, prejudice is presumed when there has been a complete denial of counsel. See Penson v. Ohio, 488 U.S. 75, 88-89, 102 L. Ed.2d 300, 109 S. Ct. 346 (1988). Second, prejudice is presumed when there are "various kinds of state interference with counsel's assistance." Strickland, 466 U.S. at 692. In these two types of cases, prejudice is presumed because a "case-by-case inquiry into prejudice is not worth the cost." 466 U.S. at 692 (citing Cronic, 466 U.S. at 658). Further, these impairments of the right to effective assistance of counsel are easily identified and easy for the government to prevent because the prosecution is directly responsible. Strickland, 466 U.S. at 692.

The United States Supreme Court has further noted two types of cases where a "similar, though more limited, presumption of prejudice" is warranted. Strickland, 466 U.S. at 692. The first of these two situations occurs when "counsel is burdened by an actual conflict of interest." 466 U.S. at 692. In this situation, "[p]rejudice is presumed only if the defendant demonstrates that counsel `actively represented conflicting interests' and that `an actual conflict of interest adversely affected his lawyer's performance.'" 466 U.S. at 692 (quoting Cuyler v. Sullivan, 446 U.S. 335, 350, 64 L. Ed.2d 333, 100 S. Ct. 1708 [1980]).

Flores-Ortega illustrates the second situation where a more limited presumption of prejudice is warranted. There, the habeas corpus petitioner alleged counsel was ineffective for failing to file a notice of appeal. In discussing prejudice, the Court stated counsel's deficient performance deprived the defendant "of more than a fair judicial proceeding; that deficiency deprived [the defendant] of the appellate proceeding altogether." 528 U.S. at 483. The Court stated this case was unusual because "counsel's alleged deficient performance arguably led not to a judicial proceeding of disputed reliability, but rather to the forfeiture of a proceeding itself," the appeal process. 528 U.S. at 483. In these circumstances, the Flores-Ortega Court held there cannot be "any `presumption of reliability'... to judicial proceedings that never took place." 528 U.S. at 483 (quoting Smith v. Robbins, 528 U.S. 259, 286, 145 L. Ed. 2d 756, 120 S. Ct. 746 [2000]).

While holding in these circumstances a defendant need not make a further showing of prejudice with respect to the reasonable probability of success on appeal on the underlying merits of his claim, a defendant must still show "a reasonable probability that, but for counsel's deficient failure to consult with him about an appeal, he would have timely appealed." Flores-Ortega, 528 U.S. at 484. This is because "counsel's deficient performance must actually cause the forfeiture of the defendant's appeal. If the defendant cannot demonstrate that, but for counsel's deficient performance, he would have appealed," he has not been deprived of anything and is not entitled to relief. 528 U.S. at 484 (citing Peguero v. United States, 526 U.S. 23, 143 L....