McCarty v. State, 89,886.

Decision Date30 January 2004
Docket NumberNo. 89,886.,89,886.
Citation83 P.3d 249,32 Kan.App.2d 402
PartiesEDRICK MCCARTY, Appellant, v. STATE OF KANSAS, Appellee.
CourtKansas Court of Appeals

Libby K. Snider, assistant appellate defender, for the appellant. Kristi L. Barton, assistant district attorney, Nola Foulston, district attorney, and Phill Kline, attorney general, for the appellee.

Before GREENE, P.J., LEWIS and MALONE, JJ.

LEWIS, J.

Movant Edrick McCarty was originally convicted of attempted aggravated robbery and first-degree murder in April 1999. He was sentenced to life imprisonment on the murder charge and 136 months' imprisonment on the attempted aggravated robbery charge. He appealed his convictions, and they were affirmed in State v. McCarty, 271 Kan. 510, 23 P.3d 829 (2001).

Movant next filed this action, seeking relief under K.S.A. 60-1507. Among other things, movant claims he received ineffective assistance of trial counsel. He alleged he received ineffective assistance of trial counsel because the State had offered a plea that would have resulted in movant being incarcerated for 11 years, but his attorney told him the plea would cause him to be incarcerated for 36 years. First of all, we are aware of no statute which would impose a sentence of only 11 years for a charge of aggravated robbery and first-degree murder. We rather doubt movant's allegations.

The trial court did hold a nonevidentiary hearing and held there was no unprofessional conduct by trial counsel, and the motion was supported by conclusory allegations only, and the trial court summarily dismissed it. This appeal followed.

On this appeal, the only issue is whether movant received ineffective assistance of counsel during his nonevidentiary hearing on his 60-1507 motion. We hold that movant may not raise this issue under the circumstances and affirm the trial court's decision on the basis that movant has no right to make a claim of ineffective assistance of counsel under the circumstances of this case.

The law of Kansas is rather clear on this issue. In Holt v. Saiya, 28 Kan. App. 2d 356, 362, 17 P.3d 368 (2000), we said: "Kansas law is clear that in collateral post-conviction proceedings, an inmate does not have a constitutional right to counsel and without a constitutional right, there can be no claim of ineffective assistance of counsel." (Emphasis added.) See also Foy v. State, 17 Kan. App. 2d 775, 844 P.2d 744,rev. denied 252 Kan. 1091 (1993) (holding that there is no constitutional right to counsel in discretionary appeals). Since movant had no constitutional right to counsel, he is not able to bring a claim of ineffective assistance of counsel before the court.

Movant acknowledges the cases cited above and the Kansas precedent. However, he asserts those decisions should not control because Kansas has implicated the provisions of the due process clause by voluntarily establishing a procedure for post-conviction relief. He relies on Evitts v. Lucey, 469 U.S. 387, 83 L. Ed. 2d 821, 105 S. Ct. 830 (1985), for support of his argument. In Evitts, the court held the dismissal of a defendant's appeal violates his or her due process rights when the dismissal was the result of ineffective assistance of counsel. However, in Evitts, the right to counsel was limited to "the first appeal as of right." 469 U.S. at 394.

In Pennsylvania v. Finley, 481 U.S. 551, 555, 95 L. Ed. 2d 539, 107 S. Ct. 1990 (1987), the Court determined that an indigent defendant did not have the right to counsel in a collateral postconviction proceeding. The Court further held that because an indigent does not have the right to counsel in these circumstances, he or she is not entitled to the protections provided for in the procedure for withdrawal as counsel for an indigent defendant set forth in Anders v. California, 386 U.S. 738, 18 L. Ed. 2d 493, 87 S. Ct. 1396 (1967). Additionally, the Court rejected an argument that Evitts required the State to ensure an inmate receives the same level of protection by his or her counsel during a collateral postconviction proceeding as he or she would have had on direct appeal. 481 U.S. at 557-58. Furthermore, the Court determined that the State was not required to make the choice of providing no counsel or abiding by the strict procedures set forth in Anders. 481 U.S. at 559.

This court has already analyzed the effect of Evitts and Finley in Robinson v. State, 13 Kan. App. 2d 244, 248-49, 767 P.2d 851, rev. denied 244 Kan. 738 (1989). In its analysis, the Robinson court analogized its case to Wainwright v. Torna, 455 U.S. 586, 587-88, 71 L. Ed. 2d 475, 102 S. Ct. 1300 (1982). In discussing Wainwright, the court in Robinson stated:

"There, the Florida Supreme Court dismissed an application for writ of certiorari because it was not timely filed. Respondent claimed he had been denied effective assistance of counsel by failure of retained counsel to timely file the application for certiorari. The United States Supreme Court held that, because a criminal defendant has no constitutional right to counsel in a discretionary appeal, he could not be deprived of the effective assistance of counsel by his retained counsel's failure to timely file the application. [Citation omitted.]" 13 Kan. App. 2d at 250.

This case is controlled by our decision in Robinson v. State, 13 Kan. App. 2d at 250, where we said that a movant did not receive ineffective assistance of counsel by his or her counsel's failure to file a timely appeal of the denial of a 60-1507 motion because the movant did not have the constitutional right to counsel. In addition, the court has already recognized the difference between the statutory right to counsel and a constitutional right to counsel. See Holt v. Saiya, 28 Kan. App. 2d at 362. A statutory right to counsel does not create the constitutional right necessary for a 60-1507 claim. In order to be able to maintain an action for ineffective assistance of counsel, an inmate must show that his or her counsel's actions were so deficient that the inmate was deprived of the counsel guaranteed by the Sixth Amendment to the United States Constitution. If there is no constitutional right to counsel guaranteed, then an inmate cannot maintain an ineffective assistance of counsel claim. In the present case, movant was not guaranteed counsel in his 60-1507 motion by the Sixth Amendment, and his arguments concerning ineffective assistance of counsel are without merit.

We will discuss briefly the statutory right to counsel in Kansas.

K.S.A. 2002 Supp. 22-4506(b) requires the court to appoint counsel to an indigent inmate on a 60-1507 motion "[i]f the court finds that the petition or motion presents substantial questions of law or triable issues of fact." Inasmuch as the trial court in this case found that the record conclusively showed that movant was not entitled to relief, we do not believe that K.S.A. 2002 Supp. 22-4506(b) applies, and he had no right to counsel even under our statutory procedures.

In Holt v. Saiya, we recognized the statutory right to counsel created by 22-4506(b). We stated in that case: "Kansas law is clear that in collateral post-conviction proceedings, an inmate does not have a constitutional right to counsel and without a constitutional right, there can be no claim of ineffective assistance of counsel." 28 Kan. App. 2d at 362.

In Kansas, we have provided a statutory right to counsel through 22-4506(b) since 1969. This particular law existed well before the decisions in Robinson, Foy, and Holt. Despite the existence of the Kansas statutory right to counsel, we have consistently held that a person cannot bring an ineffective assistance of counsel claim against his or her K.S.A. 60-1507 counsel under that statute because it does not create a constitutional right to counsel in postconviction proceedings.

For those reasons, movant has no right to bring an ineffective assistance of counsel claim, and we affirm the trial court's decision denying his 60-1507 motion.

Affirmed.

GREENE, J., dissenting:

I respectfully dissent from that portion of the majority opinion that concludes that there can be no ineffective assistance of counsel claim against counsel appointed for postconviction proceedings pursuant to K.S.A. 2002 Supp. 22-4506(b). I recognize that this conclusion appears to be buttressed by the decision of a panel of our court in Holt v. Saiya, 28 Kan. App. 2d 356, 362, 17 P.3d 368 (2000), which stated that "Kansas law is clear that in collateral post-conviction proceedings, an inmate does not have a constitutional right to counsel and without a constitutional right, there can be no claim of ineffective assistance of counsel." Notwithstanding this claim of "clear" law, our Supreme Court has not had occasion to address the issue.

With due respect to the Saiya panel, it appears to me that we may have too quickly applied federal law addressing whether there is a constitutional right to effective assistance of counsel; such decisions are not necessarily instructive and certainly not controlling when addressing the statutory right to counsel in Kansas postconviction proceedings. The reason that there is no basis for a claim of ineffective assistance of counsel in some states and in the federal system is that there is no right to counsel in such proceedings. As stated in Saiya, "[i]f there is no right to counsel, there can be no claim of ineffective assistance of counsel." 28 Kan. App. 2d at 363. In Kansas, however, there is a statutory right to counsel, and the rationale of the decisions cited in Saiya becomes wholly inapplicable. Moreover, our decisions prior to Saiya appear to have been prone to the same error. See Foy v. State, 17 Kan. App. 2d 775, 776, 844 P.2d 744,rev. denied 252...

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