Rice v. State

• Decision Date: 12 March 2010
• Docket Number: No. 101,534.,101,534.
• Citation: 225 P.3d 1200
• Parties: Jerry D. RICE, Appellant, v. STATE of Kansas, Appellee.
• Court: Kansas Court of Appeals

225 P.3d 1200

Jerry D. RICE, Appellant, v. STATE of Kansas, Appellee.

No. 101,534.

Court of Appeals of Kansas.

March 12, 2010.

Richard Ney, of Ney, Adams & Sylvester, of Wichita, for appellant.

Michael A. Russell, chief deputy district attorney, Jerome A. Gorman, district attorney, and Steve Six, attorney general, for appellee.

Before McANANY, P.J., GREEN and MALONE, JJ.

MALONE, J.

This is Jerry D. Rice's fourth appeal before the Kansas appellate courts. In this appeal, Rice challenges the district court's denial of his motion to amend his K.S.A. 60-1507 motion to add claims of ineffective assistance of appellate counsel. We reverse and remand with directions for the district court to allow Rice to amend his motion.

On March 24, 1994, Rice was convicted by jury trial of first-degree murder for the death of his wife who disappeared in 1992 and whose body has never been found. The underlying facts were set forth by the Kansas Supreme Court in State v. Rice, 261 Kan. 567, 570-79, 932 P.2d 981 (1997) (Rice I). We will review only the procedural history of the case. Following his conviction, Rice pursued a direct appeal to the Kansas Supreme Court raising numerous issues, including a claim of ineffective assistance of trial counsel. Specifically, Rice claimed he received ineffective assistance of trial counsel because his Missouri-licensed attorney had mistakenly advised Rice that if he testified at trial, all of his prior felony convictions would have automatically come into evidence. Pending the direct appeal, the Kansas Supreme Court remanded the case for an evidentiary hearing on the ineffective assistance of counsel claim pursuant to State v. Van Cleave, 239 Kan. 117, 119-20, 716 P.2d 580 (1986).

On remand, Rice's trial counsel, Willard Bunch, testified that he knew Rice had numerous felony convictions and believed that if Rice had testified at trial all of those convictions could come into evidence, as he understood the rule to be in Missouri and in federal court. For that reason, Bunch advised Rice not to testify. Bunch stated he did not consult with Kansas counsel on the question. Bunch testified that had he known the rule in Kansas, he would not have hesitated to advise Rice to testify on his own behalf. Rice also testified at the hearing and stated that his decision not to testify at trial was based completely on Bunch's advice that all of his prior convictions would come into evidence if he testified. After hearing the evidence, the district court found that Bunch had labored under an incorrect understanding of Kansas law, causing him to advise Rice not to testify. Nevertheless, the district court found that Bunch's representation was not so deficient as to require a new trial. See Rice I, 261 Kan. at 595-98, 932 P.2d 981.

On appeal, the Kansas Supreme Court determined that Bunch's advice that Rice should not testify at trial was not based on any justifiable strategic considerations but instead was based on counsel's attempt to practice law in a jurisdiction where he was not licensed and without having a correct understanding of the Kansas rules of evidence. Accordingly, a unanimous court found that Bunch's performance as counsel was unconstitutionally deficient. 261 Kan. at 607, 932 P.2d 981. However, a majority of the court was not convinced that Rice established that, had he testified, there was "a reasonable probability that the result of the proceeding would have been different." 261 Kan. at 609, 932 P.2d 981. Consequently, the Supreme Court upheld the district court's ruling that Rice was not deprived of a fair trial based on ineffective assistance of trial counsel, and Rice's conviction was affirmed. 261 Kan. at 609, 932 P.2d 981. Three justices dissented and expressed the view that Rice should have been granted a new trial based on ineffective assistance of trial counsel. 261 Kan. at 609-13, 932 P.2d 981(Davis, J., dissenting, joined by Allegrucci and Six, JJ.).

Rice subsequently filed a motion to correct illegal sentence, which the district court denied. In State v. Rice, 273 Kan. 870, 874, 46 P.3d 1155 (2002) (Rice II), the Kansas Supreme Court affirmed Rice's hard-40 sentence. This appeal did not involve any claims of ineffective assistance of counsel.

On June 30, 2003, Rice filed a K.S.A. 60-1507 motion. In the motion, Rice identified new evidence of his innocence that he claimed was not available at the time of his trial. Rice also alleged ineffective assistance of trial counsel and he listed 42 reasons why Bunch's representation at trial was constitutionally deficient. Rice's claims of ineffective assistance of trial counsel in his K.S.A. 60-1507 motion were different from the claim litigated at the Van Cleave hearing concerning the advice not to testify at trial. The new claims of ineffective assistance of trial counsel included allegations that Bunch had never read the Kansas hard-40 sentencing statute prior to trial and that he neither offered any evidence nor made any argument to the jury during the penalty phase of the trial. Rice also claimed that Bunch had failed to investigate a defense witness and that he failed to impeach key prosecution witnesses.

On August 9, 2004, the district court held a hearing on Rice's K.S.A. 60-1507 motion. Regarding Rice's claims of ineffective assistance of trial counsel, the district court determined that Rice was attempting to revisit an issue which had previously been litigated during the Van Cleave hearing and affirmed on appeal by the Kansas Supreme Court. Accordingly, the district court dismissed all of Rice's claims of ineffective assistance of trial counsel. At the hearing, Rice orally moved to amend his K.S.A. 60-1507 motion to include claims that his counsel was ineffective at the Van Cleave hearing and on direct appeal for failing to raise all meritorious claims of ineffective assistance of trial counsel. The district court denied Rice's attempt to amend his K.S.A. 60-1507 motion, finding that Rice did not have a constitutional right to effective assistance of counsel at the Van Cleave hearing. The district court then heard evidence on Rice's claim of newly discovered evidence and took the matter under advisement. In a memorandum decision filed on June 13, 2005, the district court found that the witnesses called by Rice did not present new evidence and that their testimony was neither reliable nor persuasive. Accordingly, the district court denied Rice's request for relief under K.S.A. 60-1507.

Rice appealed the district court's decision denying his K.S.A. 60-1507 motion. On appeal, this court affirmed the district court's decision as to the claim of newly discovered evidence. Rice v. State, 37 Kan.App.2d 456, 467-68, 154 P.3d 537, rev. denied 284 Kan. 946 (2007) (Rice III). As to the ineffective assistance of trial counsel claims, this court affirmed the district court and concluded that because Rice had effected a Van Cleave remand during the direct appeal for the purpose of adjudicating the effectiveness of trial counsel, he was procedurally barred from raising additional claims of ineffective assistance of trial counsel in his subsequent K.S.A. 60-1507 motion. 37 Kan.App.2d at 464-65, 154 P.3d 537. As for the district court's denial of Rice's motion to amend his K.S.A. 60-1507 motion to add claims of ineffective assistance of appellate counsel, this court stated that ordinarily the district court has broad discretionary power to grant or deny the amendment of pleadings. However, this court determined that the district court had erroneously concluded as a matter of law that Rice's right to counsel under the Sixth Amendment to the United States Constitution was inapplicable to the Van Cleave hearing. Accordingly, this court remanded to allow the district court to exercise its discretion to either grant or deny Rice's motion to amend. Rice III, 37 Kan.App.2d at 465-66, 154 P.3d 537.

On remand, Rice filed a written motion to amend his K.S.A. 60-1507 motion pursuant to K.S.A. 60-215(a) on October 29, 2007. In the written motion to amend, Rice reiterated his oral motion to include claims that his counsel was ineffective at the Van Cleave hearing and on direct appeal for failing to raise all meritorious claims of ineffective assistance of trial counsel. The motion to amend stated that "the claims the Petitioner seeks to raise in his amended petition are essentially the exact same claims he raised in his original petition with the difference that Petitioner is alleging his appellate counsel was ineffective in failing to raise these issues at the remand hearing." The motion to amend further stated that the evidence that would be presented in support of the amended motion would essentially be the same evidence that would have been presented in support of the original motion. Rice denied any undue delay or bad faith, arguing that he raised the issue of amending his motion to include these claims in written pleadings filed in January 2004 and orally at the evidentiary hearing in August 2004.

On November 6, 2008, the district court issued an order denying Rice's motion to amend his K.S.A. 60-1507 motion. The district court found that Rice's motion to amend his original K.S.A. 60-1507 motion to include allegations of ineffective assistance of appellate counsel stated new claims and a new cause of action. Relying on Ludlow v. State, 37 Kan.App.2d 676, 157 P.3d 631 (2007), the district court found that Rice was required to include all grounds for relief in his original motion and the "relation-back" doctrine found in K.S.A. 60-215(c) does not apply in K.S.A. 60-1507 proceedings. The district court also denied Rice's motion to amend based on undue delay. Specifically, the district court found that Rice had sufficient time to amend his motion prior to August 9, 2004, but instead he waited until the day of the evidentiary hearing to attempt to amend the motion. Finally, the district court concluded that the doctrine of laches applied...