Pabst v. State
Decision Date | 19 September 2008 |
Docket Number | No. 97,139.,97,139. |
Citation | 192 P.3d 630 |
Parties | Tod A. PABST, Appellant, v. STATE of Kansas, Appellee. |
Court | Kansas Supreme Court |
Richard Ney, of Ney, Adams & Sylvester, of Wichita, argued the cause and was on the briefs for the appellant.
Jared S. Maag, deputy solicitor general, argued the cause and was on the brief for the appellee.
Tod A. Pabst appeals the denial of his K.S.A. 60-1507 motion for postconviction relief from his conviction for premeditated first-degree murder. Pabst raises a number of issues, none of which require us to reverse his conviction.
In 1997, Pabst was first convicted of premeditated first-degree murder in the shooting death of his fiancée, Phoebe Harkins. However, that conviction was overturned by this court because the prosecutor's remarks in closing argument denied Pabst a fair trial. See State v. Pabst, 268 Kan. 501, 511, 996 P.2d 321 (2000).
Upon the retrial in 2000, the victim's parents hired a private attorney, Pedro Irigonegaray, to act as associate counsel to assist the prosecutor, pursuant to K.S.A. 19-717. Irigonegaray actively participated in the murder trial. At the time, he was also employed to assist with civil litigation which would be impacted by the outcome of the criminal trial. The jury again convicted Pabst of premeditated first-degree murder, and that conviction was affirmed by this court in State v. Pabst, 273 Kan. 658, 44 P.3d 1230, cert. denied 537 U.S. 959, 123 S.Ct. 384, 154 L.Ed.2d 311 (2002).
Approximately a year and a half later, on October 15, 2003, Pabst filed a K.S.A. 60-1507 motion through a retained attorney which alleged 11 grounds for relief. However, for his last ground, Pabst's attorney stated that, because of the applicable statute of limitation, he had filed the motion prior to a full investigation and review and informed the court that Pabst intended to file supplemental pleadings, with leave of court, after an examination of the record. Inexplicably, there was no activity on the motion until September 2, 2004, when Pabst's attorney withdrew as counsel.
Pabst requested appointed counsel on November 19, 2004, but apparently never returned the requisite paperwork. He then hired current counsel, Richard Ney, who entered an appearance on March 1, 2005, and several months later filed a pleading entitled, "Amended Petition Pursuant to K.S.A. 60-1507." The pleading set forth 16 grounds for relief, 10 of which differed from the original motion. Pabst had not sought or obtained leave of court to file a supplemental pleading.
The State, after obtaining a continuance, filed an answer which, inter alia, sought to dismiss those claims which were not raised in the original 60-1507 motion because the new claims were barred by the new limitation period in K.S.A. 60-1507(f). In a reply and a separate motion to strike, Pabst argued that, under K.S.A. 60-215, he had the right to amend his motion as a matter of course at any time prior to the State filing a responsive pleading; that the claims made in both pleadings were of the same type, permitting the later claim to relate back; and that the State had failed to specifically plead a statute of limitations defense as required by the Rules of Civil Procedure.
At an evidentiary hearing on March 15, 2006, the parties first presented arguments on the statute of limitations issue. The district court ruled that Kansas law does not require the State to answer or otherwise plead to a convict's 60-1507 motion in order to refute the motion or the evidence offered in support of the motion; that it is presumed that when a movant sets out grounds for relief under K.S.A. 60-1507, he or she has listed all of the grounds upon which he or she is relying; and that a movant cannot avail himself or herself of the relation-back standard by raising an ineffective assistance of counsel claim in the original petition and then amending the petition to assert another ineffective assistance claim based on a distinct type of attorney malfeasance. The district court dismissed the allegations found in (d), (e), (f), (g), (h), (i), (j), (l), (m), and (p) of the amended "petition." The district court proceeded on the originally filed 60-1507 motion, permitting Pabst to raise the grounds that had been abandoned by the amended "petition."
Pabst and Irigonegaray testified as Pabst's witnesses. Irigonegaray related that he was retained by the victim's sister and parents to be an associate to the attorney general's office under K.S.A. 19-717 to assist with the prosecution of the murder trial. Irigonegaray admitted that he represented the victim's sister and her husband in a termination of parental rights and adoption case involving Pabst's child. At the time of the criminal retrial, Pabst had filed a motion to set aside the termination, and Irigonegaray was involved in the case. Irigonegaray's office was also involved in other civil cases involving the victim's family which were at least prompted by the murder, albeit the record is not altogether clear on the details of those cases or the extent of Irigonegaray's involvement.
Although Irigonegaray admitted involvement in the civil cases, he denied that he ever used information from the civil cases to gain an advantage in the criminal trial. However, he did admit that the murder conviction had some impact on the attempt to set aside his client's adoption of Pabst's child. Further, Irigonegaray did use the fact that Pabst had filed two civil cases involving property to argue for a hard 40 sentence based on murder for financial gain, although the sentencing court rejected the argument and refused to impose the enhanced minimum sentence.
Assistant Attorney General Stephen Maxwell testified on the State's behalf, acknowledging that he was the lead attorney on the case and had assigned the handling of several parts of the trial to Irigonegaray. Specifically, he assigned Irigonegaray the opening statement, 7 out of 25 State witnesses, 1 or 2 of the defense witnesses, and a portion of the closing argument. However, Maxwell asserted that he controlled the case and everything that Irigonegaray did on the case was subject to Maxwell's prior approval.
On July 18, 2006, the district court issued its memorandum decision denying Pabst's 60-1507 motion. Pabst timely appealed.
When an evidentiary hearing has been conducted in the district court, the standard of review for an appeal from a K.S.A. 60-1507 motion denial involves determinations of whether the factual findings of the district court are supported by substantial competent evidence and whether those findings are sufficient to support its conclusions of law. Bledsoe v. State, 283 Kan. 81, 88, 150 P.3d 868 (2007). "The ultimate denial of the 60-1507 motion involves a legal question requiring independent appellate review." Drach v. Bruce, 281 Kan. 1058, 1063, 136 P.3d 390 (2006), cert. denied ___ U.S. ___, 127 S.Ct. 1829, 167 L.Ed.2d 317 (2007).
To the extent that our decision turns on Pabst's due process claim or on our interpretation of statutes, we have an unlimited review. See State v. Robinson, 281 Kan. 538, 539-40, 132 P.3d 934 (2006).
In his original motion, Pabst asserted that his "rights were denied" when a special prosecutor hired by the victim's family usurped the role of the State, "thereby placing the Petitioner in the position of being prosecuted by victims of the crime." In the "Amended Petition," filed by Ney, Pabst argued that his trial was rendered fundamentally unfair by Irigonegaray's participation because of a conflict of interest, and that the existence of the conflict of interest violated the Due Process Clause of the 14th Amendment.
The district court first determined that there were two reasons why the issue was not properly before the court on a 60-1507 motion. Pointing to Supreme Court Rule 183(c)(3) (2007 Kan. Ct. R. Annot. 243) and Johnson v. State, 271 Kan. 534, 24 P.3d 92 (2001), the district court noted that K.S.A. 60-1507 cannot be used as a substitute for an appeal or as a second appeal of mere trial errors, unless those errors affect constitutional rights and there were exceptional circumstances excusing the failure to appeal them. The district court found no exceptional circumstances excusing Pabst from raising the issue in his direct appeal. Further, the district court specifically found that trial counsel knew of the potential conflict of interest issue and failed to timely object or raise the issue before the district court, thereby failing to preserve the issue for appeal.
However, in the alternative, the district court reviewed cases which had dealt with the issue of prosecutors with a conflict of interest. The court found this case to be factually distinguishable from the others, principally because Pabst did not seek disqualification before the trial court and because Irigonegaray was not the sole or controlling prosecutor, but rather participated under the direct supervision of the assistant attorney general. Moreover, the district court concluded that it is not structural error when a private attorney, retained under K.S.A. 19-717, has a conflict of interest "unless the private attorney effectively controlled critical prosecutorial decisions." In this case, the district court found that any error that may have occurred was subject to a harmless error analysis.
On appeal, Pabst's first four issues involve the alleged conflict of interest of Irigonegaray. First, he argues that Irigonegaray's participation in the prosecution while laboring under a conflict of interest violated K.S.A. 19-705 and the Due Process Clause of the 14th Amendment, rendering his trial fundamentally unfair. Next, Pabst challenges the district court's holding that he could not raise the issue in a 60-1507 motion, arguing in the alternative that (1) the conflict of interest constituted...
To continue reading
Request your trial-
State v. Carr
...development of harmless error review in recent years and the legislature's expressed preference for the same. See Pabst v. State, 287 Kan. 1, 13, 192 P.3d 630 (2008) (vast majority of errors fall within category of “trial error[s]” subject to harmless error review); K.S.A. 60–261 (“At every......
-
Thompson v. State
...For civil actions, K.S.A. 60–215 authorizes and controls relation back of pleading amendments. As we discussed in Pabst v. State, 287 Kan. 1, 192 P.3d 630 (2008), the version of K.S.A. 60–215, specifically its subsection (a), in effect at the time of Thompson's motion and attempted amendmen......
-
LaPointe v. State
...State under K.S.A. 60-226(b)(6). In addressing the State's argument in Moll, this court noted that our Supreme Court in Pabst v. State, 287 Kan. 1, 192 P.3d 630 (2008), has acknowledged that aspects of the Code of Civil Procedure are not necessarily applicable to K.S.A. 60-1507 proceedings.......
-
State v. Trotter
...could have been raised on appeal, provided there were exceptional circumstances excusing the failure to appeal."); Pabst v. State, 287 Kan. 1, 6, 192 P.3d 630 (2008) (K.S.A. 60-1507 action cannot be used as a substitute for an appeal of trial a. Jurisdiction Although Trotter presents an arg......