Hobby v. State

• Decision Date: 05 October 2012
• Docket Number: No. 105,138.,105,138.
• Citation: 286 P.3d 239
• Parties: Terrance HOBBY, Appellant, v. STATE of Kansas, Appellee.
• Court: Kansas Court of Appeals

286 P.3d 239

Terrance HOBBY, Appellant,

v.STATE of Kansas, Appellee.

No. 105,138.

Court of Appeals of Kansas.

Oct. 5, 2012.

Appeal from Wyandotte District Court; David W. Boal, Judge.

Prince Adebayo Ogunmeno, of Ogunmeno Law Firm, LLC, of Kansas City, for appellant.

Terrance Hobby, appellant pro se.

Michael A. Russell, chief deputy district attorney, Jerome A, Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.

Before GREEN, P.J., ATCHESON and BRUNS, JJ.

MEMORANDUM OPINION

PER CURIAM.

Terrance Hobby appeals from the judgment of the trial court denying his motion for relief under K.S.A. 60–1507. In his motion, he challenges his 2003 convictions by a jury for attempted first-degree murder, aggravated kidnapping, and attempted intimidation of a witness. Hobby raises numerous issues including a claim that his statutory right to a speedy trial was violated; that the information was partially defective; that the trial court erred in admitting evidence under K.S.A. 60–455; and that the trial court erred in failing to give certain lesser included offense instructions. Hobby also maintains that his trial attorney and appellate counsel were ineffective in a number of respects. Finding no reversible error, we affirm.

Hobby was charged in Wyandotte County District Court with various crimes and was ultimately convicted by a jury of attempted first-degree murder, aggravated kidnapping, and attempted intimidation of a witness. The evidence at trial was summarized by this court as follows:

“On February 13, 2003, Hobby confronted his ex-wife, D.H., tied her with duct tape, and forced her into her SUV. Hobby then drove from their location in Missouri to a house in Kansas. Once there, Hobby untied D.H.'s feet and hands and took her at gunpoint inside the house. Hobby led D.H. into a bedroom where he told her to take off her pants; D.H. complied. After hours of talking, Hobby put his finger into D.H.'s vagina, supposedly to check if she had sex the previous night. Hobby talked about killing D.H. and himself. Eventually, Hobby set the gun down on the bed, and D.H. grabbed the gun.

“As Hobby approached D.H., she fired the gun twice. D.H. ran and hid downstairs and Hobby went outside. D.H. testified she called the police and said ‘Please, I don't have any idea where I'm at. Please help me. I've shot my husband. He's going to kill me.’ D.H. continued to hide inside the house, but Hobby came back in and found her. Hobby pushed a table up against D.H., grabbed her, and said, ‘Bitch, I'm going to kill you.’ Hobby then picked up a hammer and hit her repeatedly. Eventually, the police arrived and handcuffed Hobby. Both D.H. and Hobby were taken to the hospital for treatment of their injuries.” State v. Hobby, 2005 WL 3527000, at *1 (Kan . App.2005) (unpublished opinion), rev. denied 281 Kan. 1380 (2006).

After receiving a sentence of 480 months in prison, Hobby filed a direct appeal. On appeal, Hobby challenged the jury selection process under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). He also contended that the trial court erred in denying his motion for a new trial based on a juror sleeping during the trial. Hobby also alleged that he was denied due process because police released D.H.'s SUV before conducting a thorough examination of the vehicle. Finally, Hobby asserted that the trial court abused its discretion in denying his request for a continuance because Officer Bundy, who spoke with D.H. after the incident, had not been served with the trial subpoena of the defense. This court rejected all of Hobby's arguments and affirmed both his convictions and sentence. Our Supreme Court denied review on May 9, 2006. State v. Hobby, 2005 WL 3527000,rev. denied 281 Kan. 1380 (2006).

Eleven months later, Hobby moved under K.S.A. 60–1507, alleging the following: (1) that his statutory right to a speedy trial was violated; (2) that the aggravated kidnapping charge was defective; (3) that the trial court had violated his constitutional right to be present at all critical stages of the proceeding; (4) that the trial court erred in not giving various lesser included offense instructions; (5) that the trial court abused its discretion in admitting evidence under K.S.A. 60–455; and (6) that trial counsel was ineffective for failing to object to evidence under K.S.A. 60–455, failing to properly subpoena defense witnesses, failing to adequately present the issue of the sleeping juror, and failing to move to arrest judgment because of the defective information.

For reasons unexplained in the record, Hobby's motion remained pending for over a year before the trial court appointed counsel to represent him and scheduled a hearing. In August 2008, more than 2 years after the direct appeal became final, Hobby filed a pro se “amended motion” under K.S.A. 60–1507. In this motion, Hobby asserted new issues: that his appellate counsel was ineffective for failing to raising issues regarding speedy trial, improper use of K.S.A. 60–455 evidence, and insufficient evidence of premeditation on direct appeal.

The State filed a response to Hobby's original motion and moved to dismiss the amended motion as untimely. Another attorney was appointed to represent Hobby. In August 2009, an evidentiary hearing was held on Hobby's motion. Only Hobby and his trial counsel, James Foster, testified during this hearing.

In its memorandum decision, the trial court held that the claims raised in Hobby's amended motion were untimely under K.S.A. 60–1507(f) and dismissed them. The trial court determined the new issues he raised should have been apparent when the original motion was filed, and Hobby failed to show manifest injustice for the delay in filing the amended issues. The trial court also found that Hobby's speedy trial rights were not violated and the speedy trial issue should have been raised on direct appeal. The court also rejected Hobby's contention that the aggravated kidnapping charge was defective. After discussing Hobby's various issues of ineffective assistance of trial counsel, the court found counsel was effective. Moreover, the court determined that even if there was some defect in Foster's performance, Hobby had not been prejudiced by Foster's performance.

Standards Applicable to 60–1507 Appeals

In this case, where the trial court conducts an evidentiary hearing on a K.S.A. 60–1507 motion, an appellate court reviews any factual findings for substantial competent evidence and evaluates whether those findings support the trial judge's conclusions. The trial judge's legal conclusions, however, are reviewed de novo. Thompson v. State, 293 Kan. 704, 715–16, 270 P.3d 1089 (2011).

Under Supreme Court Rule 183(c), a K.S.A. 60–1507 motion cannot be used as a substitute for a direct appeal, or as a second appeal. (2011 Kan. Ct. R. Annot. 259). Thus, a defendant cannot raise issues that were, or could have been, raised on direct appeal. State v. Neer, 247 Kan. 137, 140–41, 795 P.2d 362 (1990). “Mere trial errors are to be corrected by direct appeal, but trial errors affecting constitutional rights may be raised even though the error could have been raised on appeal, provided there were exceptional circumstances excusing the failure to appeal.” Supreme Court Rule 183(c) (2011 Kan. Ct. R. Annot. 260).

Hobby also raises various issues of ineffective assistance of both trial and appellate counsel. A contention of ineffective assistance of counsel presents mixed questions of law and fact requiring de novo review. State v. Adams, 292 Kan. 151, 167, 254 P.3d 515 (2011). As a result, an appellate court “reviews the underlying factual findings for substantial competent evidence and the legal conclusions based on those facts de novo.” Boldridge v. State, 289 Kan. 618, 622, 215 P.3d 585 (2009).

To support a contention of ineffective assistance of counsel, the defendant is required to prove that (1) counsel's performance was deficient, and (2) counsel's deficient performance was sufficiently serious to prejudice the defense and deprive the defendant of a fair trial. State v. Gleason, 277 Kan. 624, 643, 88 P.3d 218 (2004).

“To establish ineffective assistance of counsel on appeal, defendant must show ‘(1) counsel's performance, based upon the totality of the circumstances, was deficient in that it fell below an objective standard of reasonableness, and (2) [defendant] was prejudiced to the extent that there is a reasonable probability that, but counsel's deficient performance, the appeal would have been successful.’ [Citations omitted.]” State v. Smith, 278 Kan. 45, 51–52, 92 P.3d 1096 (2004).

The failure of appellate counsel to raise an issue on appeal is not, per se, ineffective assistance of counsel. Laymon v. State, 280 Kan. 430, 439, 122 P.3d 326 (2005).

With these various standards in mind, we will address Hobby's issues.

I. Did the State Violate Hobby's Right to a Speedy Trial under K.S.A. 22–3402 and was Hobby's Appellate Counsel Ineffective for Not Raising this Issue on Direct Appeal?

In his initial motion, Hobby asserted that the trial court violated his right to a speedy trial under K.S.A. 22–3402. Hobby asserts that he was held in jail for 101 days chargeable to the State. In his untimely amended motion under K.S.A. 60–1507, Hobby included the additional contention that his appellate counsel was ineffective for failing to raise the speedy trial issue in his direct appeal.

First, we must consider whether Hobby's statutory right to a speedy trial is a trial error that should have been raised on direct appeal. See Martinez v. State, 2012 WL 1237878, at *2 (Kan.App.2012) (unpublished opinion). Issues that that could have been raised on direct appeal are normally not considered in connection with a motion under K.S.A. 60–1507 absent exceptional circumstances. Trotter v. State, 288 Kan. 112, 125, 200 P.3d 1236 (2009).

Granted, Kansas courts have recognized that ineffective assistance of counsel can constitute...