Graham v. State, 78178

• Decision Date: 23 January 1998
• Docket Number: No. 78178,78178
• Citation: 263 Kan. 742,952 P.2d 1266
• Parties: Ronald GRAHAM, Appellee, v. STATE of Kansas, Appellant.
• Court: Kansas Supreme Court

Page 1266

952 P.2d 1266

263 Kan. 742

Ronald GRAHAM, Appellee, v. STATE of Kansas, Appellant.

No. 78178.

Supreme Court of Kansas.

Jan. 23, 1998.

Syllabus by the Court

1. The standard for review of an appeal of a K.S.A. 60-1507 motion is the same as the standard required for other civil proceedings. Where the trial court has made findings of fact and conclusions of law, the function of an appellate court is to determine whether the findings are supported by substantial competent evidence and whether the findings are sufficient to support the trial court's conclusions of law. Furthermore, upon appellate review the appellate court accepts as true the evidence and all inferences to be drawn from the evidence which support or tend to support the findings of the trial judge.

2. 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. 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.

3. When a trial court considers a claim of ineffective assistance of counsel, it must follow the two-prong test established by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984), and adopted by this court in Chamberlain v. State, 236 Kan. 650, 656-57, 694 P.2d 468 (1985). The test requires that the defendant show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the Thomas P. Alongi, Assistant County Attorney, argued the cause, and Carla J. Stovall, Attorney General, was with him on the brief for appellant.

defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial.

Jessica R. Kunen, Chief Appellate Defender, argued the cause, and Randall L. Hodgkinson, Assistant Appellate Defender, and Steven R. Zinn, Deputy Appellate Defender, were on the brief for appellee.

LOCKETT, Justice:

Defendant filed a second K.S.A. 60-1507 petition, claiming (1) the trial court violated his constitutional rights in admitting a prior uncounseled Arkansas plea conviction at trial and when computing his sentence and (2) he was denied effective assistance of counsel at trial and during his first K.S.A. 60-1507 hearing. Defendant requested that he be granted a new trial or his sentence be recalculated without including the prior Arkansas conviction. The district judge granted the defendant a new trial. The State appeals.

1. The Underlying Criminal Action

In 1987, defendant Ronald Graham was tried and convicted in Geary County of possession of methamphetamine, K.S.A.1987 Supp. 65-4127b(b)(2); possession of marijuana, K.S.A.1987 Supp. 65-4127b(a)(3); and possession of cocaine, K.S.A. 65-4127a (Ensley). Evidence of Graham's two prior narcotics convictions, a 1983 Kansas and a 1985 Arkansas conviction, was admitted during the trial under K.S.A. 60-455. Because of the two prior felonies, Graham's sentence was statutorily enhanced to life imprisonment. K.S.A. 65-4127a (Ensley). His convictions were affirmed in State v. Graham, 244 Kan. 194, 768 P.2d 259 (1989). Graham's sentence was later commuted to 15 years to life by Governor Finney. Graham has served 10 years.

The facts of Graham's 1987 convictions were that on November 6, 1986, Junction City police officer James Nixon, knowing that he had previously issued Graham a traffic ticket for driving with a suspended license, stopped a blue Camaro driven by Graham. The car was not registered in Graham's name. Aware that a bench warrant had been issued for Graham's arrest, Nixon arrested Graham.

Noticing that Graham's eyes were extremely bloodshot, Nixon searched Graham for weapons and contraband. In Graham's jeans, Nixon found a plastic packet containing cocaine residue. In the lower right pocket of Graham's jacket, Nixon found a plastic sandwich bag with eight small plastic packages containing cocaine. The officer also found a large plastic bag containing a large amount of methamphetamine, another plastic bag containing marijuana, and three hand-rolled marijuana cigarettes in the car. After Graham was booked, another packet of marijuana was discovered in his jacket.

At Graham's trial, the State presented witnesses, including Officer Nixon, who testified regarding the arrest. Certified copies of Graham's two prior narcotics convictions were admitted into evidence.

Graham took the stand and testified that on the day before his arrest, he and a friend were working on the Camaro, which belonged to their friend, Alan Marks. He further stated that he and Miller then went to a club, left the club about 11:30 p.m., and ran into Marks, who borrowed Graham's jacket.

Graham testified that he spent the night at Miller's house. Waking during the night, he discovered that he had urinated in his pants. He went to the bathroom, disrobed and washed, and went back to sleep. Upon awakening the next day, he realized he was late for his court appearance. Since his pants were still wet, he put on Miller's pants, his own shirt, and Miller's jacket. He then drove Marks' Camaro in the direction of the courthouse and was stopped by Officer Nixon. Graham stated that when he was stopped, he believed his eyes appeared red and irritated because he had not worn glasses while working on Marks' automobile and After the defense rested, the Geary County prosecutor, David Platt, who had previously testified for the State, was called as a rebuttal witness. Over Graham's objection, Platt related that during Graham's 1983 preliminary examination, as in this case, Graham had claimed he did not know there were drugs in the pocket of the shirt he was wearing. Platt stated Graham had testified that " 'the shirt was shared by [Graham] and three roommates and that there were a number of people that had been at their apartment that night, and that they'd had a party and the shirt had been laying there at some time and he put it on prior to leaving and being arrested on a traffic offense.' " 244 Kan. at 200, 768 P.2d 259.

possibly had received some weld burns to his eyes.

The State's second rebuttal witness, Officer A.B. Farrow, had moved Graham from his jail cell to a holding cell after he was arrested in Kansas. At that point, Graham was represented by counsel. During that visit, Graham made incriminating statements to Farrow. At a Jackson v. Denno hearing outside the presence of the jury, Farrow testified he spoke to Graham for 2 1/2 hours about an investigation Farrow was conducting regarding a close friend of Graham's, Kent Lakin, who had died in a bomb explosion. Farrow stated that in the course of the conversation, Graham told him Lakin had been building a bomb to kill Officer Nixon. Farrow testified that later in the conversation Graham stated that as many times as Officer Nixon had tried to catch him with drugs, sooner or later Nixon was bound to get lucky. Graham also admitted to Farrow he had sold methamphetamine and cocaine and had set up a known local drug dealer in business. Farrow testified he had not planned to discuss the charges against Graham; that Graham's statements were not solicited, but voluntary; and that no immunity was promised.

Regarding the 1985 Arkansas conviction, a police officer testified he stopped the automobile in which Graham was a passenger and found cocaine in the car. When the car was stopped, Graham was wearing a leather jacket identical to the one he was wearing when arrested by Officer Nixon. The Arkansas police officer further testified that Graham pled guilty to the crime of possession of cocaine with intent to deliver.

The jury convicted Graham of possession of marijuana, possession of methamphetamine, and possession of cocaine.

2. The Direct Appeal, State v. Graham, 244 Kan. 194, 768 P.2d 259.

On appeal, Graham first argued that certified copies of the 1983 Kansas and 1985 Arkansas narcotic convictions were erroneously admitted under K.S.A. 60-455 to prove his disposition to commit the crime charged. For purposes of this 60-1507 appeal, it is important that at a pretrial hearing, Graham's trial counsel raised the 60-455 issue but did not challenge the voluntariness of Graham's uncounseled plea to the 1985 Arkansas conviction.

The Graham court noted that the trial court had conducted a lengthy pretrial hearing prior to admitting evidence of Graham's 1983 and 1985 convictions at trial and found that the evidence was relevant to prove facts disputed and material allowed by K.S.A. 60-455. The Graham court then observed that where illegal possession of drugs is charged, intent may be the only issue. In that instance, the similarity of the prior offense to the crime charged is a key factor when determining whether that evidence is relevant to intent. Since Graham's intent to possess drugs was the primary issue, the Graham court found the prior crimes evidence was properly admitted under K.S.A. 60-455 to show knowledge, intent, and absence of mistake or accident. 244 Kan. at 197-99, 768 P.2d 259.

Graham next claimed that the probative value of his prior convictions was not sufficient to overcome the prejudicial effect of their admission. The Graham court rejected this claim, finding that the evidence did...