Robertson v. State

• Decision Date: 06 February 2009
• Docket Number: No. 95,188.,95,188.
• Parties: Joshua ROBERTSON, Appellant, v. STATE of Kansas, Appellee.
• Court: Kansas Supreme Court

201 P.3d 691

Joshua ROBERTSON, Appellant, v. STATE of Kansas, Appellee.

No. 95,188.

Supreme Court of Kansas.

February 6, 2009.

Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, argued the cause and was on the briefs for appellant.

Jan Satterfield, county attorney, argued the cause, and Paul J. Morrison, attorney general, was with her on the briefs for appellee.

The opinion of the court was delivered by BEIER, J.:

This is a K.S.A. 60-1507 action brought by movant Joshua Robertson to challenge his jury convictions of first-degree murder, arson, and aggravated burglary. The district judge appointed counsel and conducted a nonevidentiary hearing before ruling against Robertson; a panel of our Court of Appeals affirmed the district court. Robertson v. State, No. 95,188, 2007 WL 570179, unpublished opinion filed February 23, 2007. We granted Robertson's petition for review.

This case requires us to decide whether a K.S.A. 60-1507 movant must demonstrate legal prejudice when the performance of his or her motion counsel has plainly been inadequate.

Factual and Procedural Background

Robertson's convictions arose out of his involvement in the grisly murder of Patricia Self, his girlfriend's mother, and the burning of Self's home. We affirmed Robertson's conviction and his hard 50 life sentence on direct appeal, rejecting seven claims of error. State v. Robertson (Robertson I), 279 Kan. 291, 109 P.3d 1174 (2005).

The K.S.A. 60-1507 motion that launched this action asserted nine claims: (1) Robertson's confession was not voluntary because he was distraught and in pain from an injury to his hand, and was obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); (2) the prosecutor engaged in misconduct by stating that Robertson was aware of a plan to murder Self; (3) the jury's request for the prosecution's overhead supplementing the definition of premeditation required a mistrial; (4) the police exceeded the scope of a patdown search under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and illegally arrested Robertson; (5) testimony regarding Robertson's conversation with his girlfriend about making her parents "disappear" was not credible; (6) Robertson's trial counsel provided ineffective assistance (a) by failing to seek a competency evaluation regarding Robertson's inability to abide by advice and to demonstrate the involuntariness of his statements; (b) because of a conflict of interest, evidenced by counsel's attempt to withdraw from representation; and (c) by failing to challenge violations of Robertson's Fourth Amendment rights; (7) Robertson's appellate counsel provided ineffective assistance by failing to raise Fourth Amendment claims; (8) Robertson's Fourteenth Amendment rights were violated, apparently because he was incompetent to stand trial; and (9) an indistinct, general expression of dissatisfaction with "[a]ll objections, arguements [sic], and filings of trial counsel and appellate counsel."

The district judge who presided over Robertson's criminal trial also presided over the proceedings on this K.S.A. 60-1507 motion. The judge appointed counsel to represent Robertson on the motion; Robertson was not present for the district court's nonevidentiary hearing.

At the hearing, the district judge stated that his initial review of the record and files had led him to believe there were no issues warranting review but that he had appointed counsel for Robertson to make an independent review and to inform him whether there appeared to be any basis for relief.

Robertson's appointed 60-1507 counsel stated that he had reviewed the transcript for Robertson's trial, the K.S.A. 60-1507 motion, and pleadings in the case. Although counsel did not agree with the jury's verdict, he said, Robertson's claims of prosecutorial misconduct, error in the jury's request to see an overhead on premeditation, and violation of due process rights were trial errors that should have been raised on direct appeal. When the district judge noted that certain of these issues were in fact raised on direct appeal, counsel admitted that he had not read this court's decision affirming Robertson's convictions.

Counsel also addressed Robertson's claim of ineffective assistance of trial counsel, specifically the allegations that trial counsel had failed to withdraw despite Robertson's refusal to follow his advice and that counsel had failed to seek a competency examination to challenge the voluntariness of Robertson's confession or his competency to stand trial. Counsel suggested that trial counsel's representation was "exceptional" and that it would be impossible to determine that it was in any way unreasonable or defective; in fact, trial counsel had arranged for Robertson to submit to a mental health evaluation to determine the viability of a mental disease or defect defense. Counsel, noting his duty not to file frivolous pleadings, ultimately suggested that Robertson's claims either should have been raised on direct appeal or were without merit.

After the hearing, the district judge denied relief because Robertson sought to pursue issues he could have raised on direct appeal and no exceptional circumstances excused his failure to raise them at that juncture, or, to the extent Robertson argued that he had received ineffective assistance of counsel, which may constitute such an exceptional circumstance, the issues had no substantive merit. The district judge stated incorrectly that motion counsel had reviewed this court's opinion in Robertson's direct appeal, but that error had no evident impact on the judge's reasoning or result.

Robertson's brief to the Court of Appeals in this action raised three claims: (1) The district judge should have considered the merits of Robertson's ineffective assistance claim based on trial counsel's failure to investigate (a) Robertson's competence at the time he made incriminating statements to law enforcement, and (b) the falsity of certain testimony; (2) counsel at the K.S.A. 60-1507 hearing was ineffective; and (3) the district judge's findings of fact and conclusions of law in support of his decision on the K.S.A. 60-1507 motion were inadequate under Supreme Court Rule 183(j). His brief also appeared to take the position that his Fourth Amendment claim was appropriate for consideration on this K.S.A. 60-1507 motion because it could not have been considered on his direct appeal due to a failure to preserve the issue in the district court.

Our Court of Appeals panel agreed with Robertson that his counsel's performance at the K.S.A. 60-1507 motion hearing was similar to that of counsel criticized in Campbell v. State, 34 Kan.App.2d 8, 114 P.3d 162 (2005). As in Campbell, Robertson's counsel made no argument in favor of his client's motion and advocated against his client by arguing that trial counsel's performance was reasonable. Robertson v. State, No. 95,188, slip op. at 3. But the Court of Appeals panel noted that the right to effective assistance of counsel on collateral challenges is statutory, not constitutional, and that appointment of counsel is discretionary rather than mandatory, depending on whether there are substantial issues of law or triable issues of fact. See Campbell, 34 Kan.App.2d at 12, 114 P.3d 162. The Court of Appeals panel distinguished Campbell from Robertson's case by noting that certain issues contained in the Campbell motion required an evidentiary hearing. The panel suggested that the movant in Campbell had shown prejudice consistent with the prejudice required when a movant alleges ineffective assistance of trial counsel under the test set out in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Here, the panel noted, Robertson alleged no prejudice other than the fact that his motion was denied. Slip op. at 3-5.

The panel then analyzed whether the district judge had abused his discretion, the standard of review applicable at the time, by denying Robertson's motion on the merits, concluding that Robertson was not entitled to relief. Slip op. at 5.

First, the panel concluded Robertson's trial counsel was not constitutionally ineffective for failing to demand a competency evaluation to challenge the voluntariness of Robertson's confession. Trial counsel had argued that the confession was not voluntary; the district court held that it was; and that ruling was upheld by this court on direct appeal. Moreover, Robertson alleged no mental illness, and a mental health evaluation was not justified merely on the strength of Robertson's assertion that he had felt pressured during his interrogation. Slip op. at 6.

Second, the panel concluded that trial and appellate counsel were not ineffective for failing to raise a Fourth Amendment challenge to Robertson's arrest based on Terry, 392 U.S. at 30-31, 88 S.Ct. 1868 (officer may detain person in public place on reasonable suspicion that person committing, has committed, about to commit crime). Robertson failed to explain the substance of his claim; failed to show why counsel was ineffective for failing to object or raise such a challenge; and did not address why the district judge erred in rejecting this argument. Moreover, the panel concluded that the argument was without merit because Robertson's warrantless public arrest was not a Terry stop and did not violate the Fourth Amendment. The officer who seized Robertson had probable cause to arrest him, and "neither trial nor appellate counsel could be considered ineffective for failing to raise an issue that would not have been successful." Robertson, Slip op. at 7-9.

The panel finally observed that the district court judge's stated rationale for denying Robertson's K.S.A. 60-1507 motion was "sparse," but it concluded that the findings and conclusions were adequate under Supreme Court Rule 183(j). Slip op. at 9.

The same issues before the Court of Appeals are raised by...