Ferguson v. State

• Citation: 78 P.3d 40,276 Kan. 428
• Decision Date: 17 October 2003
• Docket Number: No. 86,736[1],86,736[1]
• Parties: EILEEN FERGUSON, Appellant, v. STATE OF KANSAS, Appellee.
• Court: Kansas Supreme Court

276 Kan. 428

78 P.3d 40

EILEEN FERGUSON, Appellant, v. STATE OF KANSAS, Appellee.

No. 86,736¹

Supreme Court of Kansas.

Opinion filed October 17, 2003.

Modified opinion filed November 12, 2003.

Stephen M. Joseph, of Joseph & Hollander, P.A., of Wichita, argued the cause and was on the briefs for appellant.

Keith E. Schroeder, district attorney, and Carla J. Stovall, attorney general, were on the brief for appellee.

The opinion of the court was delivered by

BRAZIL, S.J.:

A jury convicted petitioner Eileen Ferguson of arson in 1998 in Reno County Case No. 97 CR 207, after a fire destroyed the restaurant she had purchased. Ferguson filed a direct appeal of her conviction alleging, among other claims of error, that the information was jurisdictionally defective in that it failed to specifically set forth all the required elements of the crime of arson. The Court of Appeals affirmed her conviction after it found, under a post-State v. Hall analysis (State v. Hall, 246 Kan. 728, 793 P.2d 737 [1990]), that the information fairly advised Ferguson of the charges against her. (State v. Ferguson, No. 81,677, unpublished opinion filed March 17, 2000, rev. denied 269 Kan. 936 [2000]). After exhausting her avenues for direct appeal, Ferguson collaterally attacked her sentence in a motion to vacate on the ground that she was deprived of her constitutional right to effective assistance of counsel at trial. One of the deficiencies alleged by Ferguson was that trial counsel rendered constitutionally ineffective assistance when he failed to timely move to dismiss or to vacate judgment based on the jurisdictionally defective information. The district court denied her motion to vacate. The Court of Appeals reversed the district court, holding that trial counsel's non-strategic failure to file a motion for arrest of judgment under a facially defective complaint constituted ineffective assistance of counsel per se.

This court granted review of the State's petition and Ferguson's cross-petition for review. This case presents us with the paradoxical situation where, on direct appeal, an appellate court held that a jurisdictionally defective information did not prejudice the defendant, but on collateral attack, another panel of that court held that trial counsel's failure to move to vacate on the basis of the jurisdictionally defective information resulted in prejudice to the defendant.

The procedural background of this case began after a jury convicted Ferguson of the arson of her restaurant, Sampler's. Ferguson filed a direct appeal, challenging: (1) jurisdiction under a defective complaint; (2) jury instruction No. 6; (3) the trial court's admission of certain evidence; and (4) the adequacy of the evidence supporting the verdict. The Court of Appeals determined that the questioned jury instruction was not clearly erroneous, that any erroneous admission of evidence was harmless in light of the overwhelming nature of evidence of Ferguson's guilt, and that sufficient evidence supported the jury verdict. In answer to Ferguson's allegation on direct appeal that the complaint was jurisdictionally defective in that it failed to state that her acts were done "knowingly" and "by means of fire or explosive," required elements of arson under K.S.A. 21-3718(a)(2), the Court of Appeals wrote:

"Defendant argues the information charging her with arson is jurisdictionally defective because it fails to state all the essential elements of a crime. Defendant argues that the conviction should be vacated. We disagree.

"The information charged the crime of arson, K.S.A. 21-3718, and stated that defendant feloniously and willfully damaged Sampler's with the intent to defraud an insurer or lien holder. As we understand, the information failed to allege that defendant's acts were done `knowingly' and `by means of fire or explosive,' which are elements listed in K.S.A. 21-3718.

"State v. Hall, 246 Kan. 728, 765, 793 P.2d 737 (1990), sets out the standard of review for allegations of defects in the information raised for the first time on appeal. Hall stated:

`Information defect challenges raised for the first time on appeal shall be reviewed by applying (1) the reasoning of K.S.A. 22-3201(4) complaint/information/indictment amendment cases as expressed in State v. Switzer, 244 Kan. 449, 769 P.2d 645 (1989), State v. Nunn, 244 Kan. 207, 768 P.2d 268 (1988), and State v. Rasch, 243 Kan. 495, 497, 758 P.2d 214 (1988), as that reasoning relates to jurisdiction and the substantial rights of the defendant; (2) the "common-sense" test of State v. Wade, 244 Kan. 136, 766 P.2d 811 (1989), and State v. Micheaux, 242 Kan. 192, 747 P.2d 784 (1987); and (3) the rationale of United States v. Pheaster, 544 F.2d 353 (9th Cir. 1976), cert. denied 429 U.S. 1099 (1977). Of paramount importance, we shall look to whether the claimed defect in the information has: (a) prejudiced the defendant in the preparation of his or her defense; (b) impaired in any way defendant's ability to plead the conviction in any subsequent prosecution; or (c) limited in any way defendant's substantial rights to a fair trial under the guarantees of the Sixth Amendment to the United States Constitution and the Kansas Constitution Bill of Rights, § 10. If a defendant is able to establish a claim under either (a), (b), or (c), the defective information claim, raised for the first time on appeal, will be allowed.'

"The sufficiency of the information should be determined on the basis of practical rather than technical considerations, and the Hall court adopted a common sense approach. The court should give the information a liberal construction in favor of validity. Hall, 246 Kan. at 764.

"In both State v. Waterberry, 248 Kan. 169, 172, 804 P.2d 1000 (1991), and State v. Kluge, 25 Kan. App. 2d 461, 463, 966 P.2d 683 (1998), the court agreed essential allegations were omitted from complaints; however, the court concluded that a fair reading of the information properly advised the defendant of his or her charges.

"Unquestionably, defendant was not prejudiced by the challenged information. The information provided the name of the crime and the statute of the crime. The missing elements can be supplied by implication. Defendant received a thorough preliminary hearing setting out the allegations. There is no evidence to indicate that defendant was not fully aware of the charges against her and able to provide a defense, could not plead the conviction in any subsequent prosecution, or that the information violated her rights."

In Ferguson's direct appeal, the Court of Appeals applied the post-Hall analysis and concluded that a fair reading of the information fairly advised Ferguson of the charges against her. Finding no reversible error, the Court of Appeals affirmed Ferguson's conviction. This court denied further review on June 13, 2000.

On June 19, 2000, Ferguson filed a motion in the district court to vacate her sentence pursuant to K.S.A. 60-1507, claiming she had been deprived of her constitutional right to effective assistance of counsel at trial. The district court summarized Ferguson's claims in regard to trial counsel's deficiencies as:

"(a) The Information did not charge her with a crime. Her attorney failed to move for dismissal of the Information under K.S.A. 22-3208 or to arrest judgment under K.S.A. 22-3502 on the ground that the Information did not charge a crime. She alleges that this failure was outside the range of professionally competent assistance of counsel, and that, had said counsel made the motion, the Court would have been compelled to grant the motion.

"(b) That her attorney failed to properly investigate the origin of the fire and failed to present expert testimony from an arson investigator at her trial. She contends that if her attorney had presented this type of testimony, the result of her trial probably would have been different, and that his failure to do so was outside the range of professionally competent assistance of counsel.

"(c) Further, that her trial attorney failed to properly investigate the financial condition of Eileen's, Inc., and to present expert testimony from an accountant at trial to demonstrate that the Sampler's Restaurant produced a positive cash flow and was profitable. She further contends that if her attorney had presented this type of testimony, the result of her trial probably would have been different, and that his failure to do so was outside the range of professionally competent assistance of counsel."

The district court denied her motion to vacate after conducting an evidentiary hearing. At the hearing, Ferguson offered the testimony of five witnesses in support of her contention that she had been denied effective assistance of counsel during her trial. Those witnesses were (1) Jack Focht, an attorney; (2) Francis Meisenheimer, Ferguson's trial attorney; (3) Dr. John D. De Haan, expert criminalist in the field of arson investigation; (4) John Evans, Ferguson's public accountant; and (5) David Mitchell, certified public accountant.

At the evidentiary hearing, Jack Focht, a practicing attorney for over 40 years, testified that Meisenheimer did not render reasonably competent representation when he failed to file a motion to arrest judgment. In Focht's opinion, Meisenheimer's failure to file a motion to arrest judgment based on the defective information resulted in prejudice to Ferguson on appeal. Focht stated that, had Meisenheimer filed such a motion, "she would not be seated here today as a convicted person, but would be free."

Meisenheimer testified that he recognized prior to the trial that both the complaint and information "omitted the language regarding `by means of fire or explosive.'" He stated it was his intent to raise the matter in a motion for dismissal or judgment of acquittal at the conclusion of the trial. Meisenheimer did not raise the issue at the conclusion of trial and did not file a motion to arrest judgment...