Dunerway v. State, 123,250

CourtCourt of Appeals of Kansas
Writing for the CourtPER CURIAM
PartiesJesse D. Dunerway Jr., Appellant, v. State of Kansas, Appellee.
Docket Number123,250,123,503,123,761
Decision Date16 September 2022

Jesse D. Dunerway Jr., Appellant,
v.

State of Kansas, Appellee.

Nos. 123,250, 123,503, 123,761

Court of Appeals of Kansas

September 16, 2022


NOT DESIGNATED FOR PUBLICATION

Appeal from Sedgwick District Court; DEBORAH HERNANDEZ MITCHELL, judge.

Jesse David Dunerway Jr., appellant pro se.

Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.

Before ARNOLD-BURGER, C.J., SCHROEDER and WARNER, JJ.

MEMORANDUM OPINION

PER CURIAM

Jesse D. Dunerway Jr. timely appeals from the district court's summary denial of his K.S.A. 60-1507 motion following a nonevidentiary hearing. He asserts claims of ineffective assistance of counsel, prosecutorial error, and cumulative error. Finding no error by the district court in summarily denying his motion, we affirm.

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FACTS

A jury convicted Dunerway of aggravated burglary, criminal threat, aggravated kidnapping, and two counts of aggravated battery for which he was sentenced to 554 months' imprisonment. Another panel of this court upheld his convictions and sentences on direct appeal. State v. Dunerway, No. 111,457, 2015 WL 5224703, at *1 (Kan. App. 2015) (unpublished opinion). The underlying facts are taken from Dunerway's direct appeal:

"In April 2013, the State charged Dunerway with aggravated robbery, two counts of aggravated battery aggravated burglary, and criminal threat. Later, the State amended these charges to include a third count of aggravated battery and a count of aggravated kidnapping. These charges stemmed from two separate incidents in March 2013 in which Dunerway asserted his authority as a pimp over two women Indy Sweatmon and Patricia Carrion
"In the first incident, Carrion was staying with a friend named Arvelle Roberts when, early in the morning, Dunerway banged on Roberts' door. When Carrion failed to answer immediately, Dunerway kicked the door in and entered the apartment. Immediately, he began beating Carrion with a two-by-four board, injuring her and fracturing her thumb. Dunerway then demanded that Carrion leave with him. As they walked, he carried the board and threatened Carrion by saying, '[Y]ou move, I'm going to kill you on sight.' At Dunerway's subsequent trial, Sweatmon would testify that Carrion worked for Dunerway as a prostitute. Also at trial, police officer Jordan Edison testified that Carrion told him Dunerway 'grabbed her by her hair' and dragged her first out of bed and then out of the apartment.
"In the second incident, Sweatmon and a man named Edward Dixson spent part of the evening talking, drinking, and driving around. Dixson paid $100 to have sex with her 'when [she] felt comfortable.' According to Dixson's account of the incident, they eventually drove to a house, where Sweatmon disappeared inside and returned with Dunerway in tow. Dixson encouraged Sweatmon to climb back into his truck, but immediately after she climbed in, Dunerway struck him. Dunerway kicked Dixson and demanded his money, and Sweatmon brandished a knife. After a good deal of struggle,
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Dunerway managed to extract $300 from Dixson's pocket. Sweatmon eventually handed Dunerway the knife, and Dunerway cut Dixson. However, Sweatmon later testified that she and Dixson 'started kind of, like, tussling or whatever' before Dunerway ran out of the house, reached into the truck, and struck Dixson.
"Immediately prior to trial, the State requested that the district court declare Carrion unavailable to testify. After testimony and argument, the district court determined that Carrion was unavailable because she could not be located. Accordingly, Carrion's testimony from the preliminary hearing was read into the record at trial. Also at trial, a police officer and Dunerway himself both testified that Dunerway's explanation for what happened between he and Dixson was that Dixson attacked Sweatmon and Dunerway attempted to protect her. Regarding the incident with Carrion, Dunerway testified that he and Carrion were in a dating relationship until about 3 weeks before Carrion was attacked but that he never saw Carrion on the day in question.
"A jury convicted Dunerway of aggravated battery on Carrion and Dixson, aggravated burglary, criminal threat, and aggravated kidnapping but acquitted him of the aggravated robbery and the aggravated battery of Roberts." Dunerway, 2015 WL 5224703, at *1-2.

A mandate affirming Dunerway's convictions and sentences was issued on December 22, 2016. Initially, Dunerway filed a timely K.S.A. 60-1507 motion but withdrew the motion and then timely filed another K.S.A. 60-1507 motion, raising 15 issues. Dunerway later amended his motion, waiving five of the issues. Ultimately, the claims Dunerway argued before the district court were:

• His trial counsel, Ronald Lyon, was ineffective for failing to object to Sweatmon's testimony that Dunerway was Carrion's and Sweatmon's pimp;
• Lyon and direct appeal counsel were ineffective for failing to argue criminal restraint as a lesser included offense of aggravated kidnapping;
• Lyon was ineffective in his cross-examination of Roberts and for not calling Christopher Davis and Jeanstar Blandes as alibi witnesses;
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• Lyon was ineffective for failing to make a hearsay objection to Police Officer Jordan Edison's testimony regarding Carrion's statements;
• Lyon and appellate counsel were ineffective in failing to argue the district court erred in finding Carrion was unavailable at trial and admitting her preliminary hearing testimony;
• Lyon was ineffective for failing to investigate potential alibi defenses;
• the prosecutor erred in closing argument;
• Lyon was ineffective for failing to object to the prosecutor's comments in closing arguments;
• Dunerway's due process rights were violated because he was prosecuted for aggravated kidnapping of Carrion based on preliminary hearing testimony, but he was unable to cross-examine Carrion or Dixson at trial; and
• cumulative error.

The district court held a nonevidentiary 60-1507 preliminary hearing with Dunerway present and with counsel. Dunerway also argued on his own behalf. The district court took the matter under advisement and later issued a written order finding Dunerway was not entitled to relief on any of his claims. Additional facts are set forth as necessary.

ANALYSIS

Standard of Review

Under current Kansas law, 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
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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.]" State v. Adams, 311 Kan. 569, 577-78, 465 P.3d 176 (2020).

"[Our] standard of review depends upon which of these options the district court used." 311 Kan. at 578. When the district court denies a K.S.A. 60-1507 motion based only on the motions, files, and records after a nonevidentiary preliminary hearing, we are in just as good a position as the district court to consider the merits. Therefore, our standard of review is de novo. Grossman v. State, 300 Kan. 1058, 1061, 337 P.3d 687 (2014).

Dunerway basically raises nine issues in his brief. However, in the interests of clarity, we have condensed his issues into three claims: (1) errors by trial counsel; (2) prosecutorial error; and (3) cumulative error.

Dunerway's ineffective assistance of trial counsel arguments fail.

Dunerway asserts his trial counsel was ineffective for several reasons. His arguments can generally be summarized as claims his trial counsel was ineffective for: (1) failing to investigate or present alibi witnesses and (2) failing to object to or challenge the admission of testimony or other evidence by the State. His arguments on these points fail...

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