Mundy v. State
| Decision Date | 19 January 2018 |
| Docket Number | No. 112,131,112,131 |
| Citation | 408 P.3d 965 |
| Parties | Vivian L. MUNDY, Appellant, v. STATE of Kansas, Appellee. |
| Court | Kansas Supreme Court |
Kristen B. Patty, of Wichita, argued the cause and was on the brief for appellant.
Jon S. Simpson, assistant solicitor general, argued the cause, and Stefani K. Hepford, assistant attorney general, and Derek Schmidt, attorney general, were on the brief for appellee.
Under K.S.A. 2016 Supp. 60-1507, only "[a] prisoner in custody under sentence of a court of general jurisdiction" may file a motion under the statute. Given that requirement, may a Kansas court adjudicate a 60-1507 motion after a defendant's term of probation has expired and the defendant has been released from physical custody? As a matter of first impression for this court, we conclude the answer is that a court may proceed with hearing the motion.
Often, under those circumstances, the movant's issues may become moot. Mootness is not a concern in this case, however, because an unpaid order of restitution issued as a consequence of the movant's convictions could be vacated if relief is granted. Consequently, we consider the issues raised by Vivian Mundy's 60-1507 motion and her petition for review, which seeks review of the Court of Appeals decision in Mundy v. State , No. 112131, 2015 WL 5458546 (Kan. App. 2015) (unpublished opinion).
In broad terms, those issues relate to arguments Mundy either (1) raises for the first time on appeal regarding whether her 60-1507 counsel was ineffective or (2) raises in her 60-1507 motion regarding whether her trial counsel was ineffective. More specifically, we first determine, contrary to the Court of Appeals, that Mundy's notice of appeal was worded in a manner that allowed appellate jurisdiction over the issue of whether Mundy's 60-1507 counsel was ineffective. Nevertheless, we are unable to resolve Mundy's claim that 60-1507 counsel was ineffective because the record is insufficient to resolve the factual questions and yet she has not requested a remand as allowed by State v. Van Cleave , 239 Kan. 117, 120–21, 716 P.2d 580 (1986), in order to flesh out the merits of her claims. As to Mundy's claims about her trial counsel's ineffectiveness, we hold the district court did not use an improper procedure in handling her motion and the district court did not err in summarily denying the motion.
Accordingly, even though we disagree with the Court of Appeals on one point, we affirm the Court of Appeals and the district court.
The facts of Mundy's criminal case are tangential to her current appeal from her 60-1507 motion but nevertheless help explain her arguments. Mundy was a licensed, master's level social worker who enrolled as a Medicaid provider in 2003. She primarily provided behavioral and cognitive therapy
to individuals with traumatic brain injuries. In 2007, after reviewing Mundy's billings, the fiscal agent for Kansas' Medicaid program referred Mundy to the Attorney General's office for possible fraud investigation.
After investigation, the State charged Mundy with six counts of making a false claim to the Medicaid program, in violation of K.S.A. 21-3846(a)(1) ; one count of obstructing a Medicaid fraud investigation, in violation of K.S.A. 21-3856(a)(1) ; and one count of concealment of records, in violation of K.S.A. 21-3849. The State alleged Mundy caused Medicaid to pay more than $207,000 for services she did not actually provide.
At trial, a data analyst explained the problems with Mundy's records that had been identified through audit proceedings. These problems included lack of documentation, alterations to documents, overbilled units, instances where Mundy claimed to have been providing therapy in two different places at the same time, instances where Mundy claimed to have provided therapy at a time when another service provider had billed for therapy, and occasions where Mundy was shopping when she claimed to have been providing services. Mundy's defense was that she was terrible with paperwork but did not intend to defraud the State—she offered evidence, for example, that on some occasions she underbilled or failed to bill for some of her services and in one case had failed to cash a check from Medicaid.
The jury found Mundy guilty of five counts of making a false claim to the Medicaid program and one count of obstructing a Medicaid fraud investigation. Mundy was sentenced to a total of 18 months' imprisonment, but the district court suspended execution of the term of imprisonment and placed Mundy on community corrections probation for 24 months with a 12–month postrelease period. The district court later ordered Mundy to pay $103,231.88 in restitution to the Kansas Medicaid Program, plus $54,792.25 to the Attorney General's Medicaid Fraud and Abuse Division for reasonable investigative and prosecution expenses.
Mundy appealed, raising four issues, all of which were rejected by the Court of Appeals except one: The Court of Appeals agreed that three of Mundy's five convictions for making a false claim were multiplicitous. State v. Mundy , No. 104958, 2012 WL 2045298 (Kan. App. 2012) (unpublished opinion), rev. denied 296 Kan. 1134 (2013). The Court of Appeals therefore reversed the erroneous convictions, vacated the corresponding sentences, and otherwise affirmed the district court. 2012 WL 2045298, at *9, 11.
Mundy thereafter filed a pro se motion under 60-1507 and raised two claims: "Failure of Counsel to represent adequately"; and "Coercion by the State to get witnesses to testify." Only her first claim, ineffective assistance of trial counsel, is before us. As to that claim, Mundy's motion listed eight complaints about her retained trial counsel.
The district court appointed a different attorney to represent Mundy on her 60-1507 claims. The record indicates a hearing on Mundy's motion was originally scheduled, although it was cancelled the next day due to "parties negotiating." About a month later, the State filed its response in opposition to Mundy's 60-1507 motion. The State urged the district court to dismiss Mundy's motion for failure to comply with court rules, and in the alternative to summarily deny Mundy's motion because she made only conclusory contentions and identified no evidentiary basis in support of her claims.
The district court, when issuing its ruling, reorganized and consolidated Mundy's claims as follows:
cases would make good witnesses.
Addressing those claims, the district court first stated it was "clear from the record that [trial counsel] subpoenaed numerous witnesses prior to trial and that several of those witnesses testified at the trial." Mundy's pleadings gave "[n]o information ... stating the names of additional witnesses desired to be called or the substance of their testimony," and "[w]ithout specific names and facts" the district court was "not in a position to go forward to hearing." Second, the district court determined Mundy's motion failed to identify which witnesses trial counsel allegedly did not interview, nor did it identify what relevant evidence those witnesses possessed. "The lack of facts presented by [Mundy] ... does not overcome the presumption that [trial counsel] used reasonable professional judgment in his preparation and investigation of the case." As for declining to use head trauma
patients as witnesses, the district court concluded trial counsel exercised reasonable professional judgment. Third, Mundy had made only "naked allegations" that trial counsel was ineffective by being preoccupied with another case, by giving work to a nonattorney within his office, or by refusing to return Mundy's retainer. And fourth, the court concluded a bare allegation that an unidentified friend gave some unidentified sort of legal advice to trial counsel was a meritless claim.
In summary, the district court ruled that Mundy had failed to show trial counsel's representation fell below an objective standard of reasonableness, and she had also "failed to plead facts sufficient to allow [the district court] to proceed to an evidentiary hearing." Accordingly, the district court summarily denied Mundy's 60-1507 motion.
Mundy's 60-1507 counsel filed a notice of appeal, and a third attorney was ultimately appointed to pursue that appeal. In briefs before the Court of Appeals, Mundy first argued her release from probation did not deprive courts of jurisdiction. She then raised three issues regarding the substance of her claims. As to 60-1507 counsel, she asserted he had done "absolutely nothing" other than file a notice of appeal, a performance which "failed to meet ‘the most minimal of standards' " and constituted ineffective assistance. As to her claims of ineffective assistance of trial counsel, Mundy argued she was deprived of due process when the district court denied her motion without following one of the three procedural options outlined in Lujan v. State , 270 Kan. 163, 14 P.3d 424 (2000). Finally, she contended her 60-1507 motion, when liberally construed, entitled her to an evidentiary hearing.
The Court of Appeals agreed with Mundy that her release from probation did not deprive either the district court or the Court of Appeals of jurisdiction....
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