Schoonover v. State

• Decision Date: 03 August 1978
• Docket Number: No. 49317,49317
• Citation: 2 Kan.App.2d 481,582 P.2d 292
• Parties: Mrs. J. W. SCHOONOVER, a/k/a Nellie L. Schoonover, Appellant, v. STATE of Kansas, Appellee.
• Court: Kansas Court of Appeals

Page 292

582 P.2d 292

2 Kan.App.2d 481

Mrs. J. W. SCHOONOVER, a/k/a Nellie L. Schoonover, Appellant, v. STATE of Kansas, Appellee.

No. 49317.

Court of Appeals of Kansas.

Aug. 3, 1978.

Review Denied Sept. 13, 1978.

Syllabus by the Court

1. A trial judge is not disqualified to hear a motion to vacate a conviction, brought under K.S.A. 60-1507, merely because he presided over petitioner's original trial and has heard and denied a previous motion to vacate.

2. The right to effective assistance of counsel presupposes that counsel will be competent and capable of conducting a genuine defense on behalf of the accused. While the law does not guarantee the assistance of the most brilliant and experienced counsel, it does require honest, loyal, genuine and faithful representation on the part of counsel, be he retained or appointed.

3. Conduct of defense counsel which is so dishonest, incompetent or inadequate as to amount in practical effect to no counsel at all clearly violates a defendant's Sixth Amendment right to counsel. However, conduct which amounts to a substantial deviation from that expected of a reasonably competent lawyer in the community, such that no lawyer of average ability would engage in it, and which causes the client's conviction or otherwise works to the client's substantial disadvantage, is also a deprivation of the constitutional guarantee of "effective" counsel.

4. In applying the foregoing standard to counsel's performance, the effective assistance of counsel cannot be equated with the successful assistance of counsel. The adequacy of an attorney's services on behalf of an accused must be gauged by the totality of his representation, not by fragmentary segments analyzed in isolated cells.

5. In a second proceeding under K.S.A. 60-1507 it is Held : (a) the trial judge properly declined to disqualify himself; (b) there has been no intervening change in the law governing the standards for effective counsel since petitioner's first 1507 proceeding; (c) there were no unusual circumstances requiring a second evidentiary hearing on the competence of petitioner's trial counsel; (d) the trial court properly dismissed the proceeding as an abuse of the remedy.

Thomas E. Gleason, Jr., of Thomas E. Gleason, Chartered, Ottawa, for appellant.

James W. Clark, County Atty., for appellee.

Before FOTH, C. J., and PARKS and SWINEHART, JJ.

FOTH, Chief Judge:

This is an appeal from the dismissal as an abuse of the remedy of petitioner's second motion under K.S.A. 60-1507 to vacate her conviction of first degree murder.

Petitioner was convicted in 1974 and appealed. She abandoned her direct appeal following the institution of her first 1507 action, in which she alleged that she had been denied effective assistance of counsel at her trial. The trial court denied that petition and the denial was affirmed in Schoonover v. State, 218 Kan. 377, 543 P.2d 881 (1975), cert. den. 424 U.S. 944, 96 S.Ct. 1412, 47 L.Ed.2d 349 (1976). Petitioner brought this second 1507 action, alleging once again that she was denied effective assistance of counsel at her murder trial. She contended that both unusual circumstances and a change of law justified the successive petition. She also moved that the judge who presided at her trial and heard her first motion disqualify himself.

The trial judge first denied the motion to disqualify himself. On the proffered justifications for the successive motion he ruled as a matter of law that there had been no intervening change of law since the first motion. On the remaining issue he conducted an evidentiary hearing to determine whether her retained counsel at the first collateral proceeding failed or were prevented from fully developing the alleged inadequacy of her trial counsel. At the conclusion of this limited hearing, the judge ruled that petitioner had failed to prove unusual circumstances justifying the bringing of a second 1507 motion and sustained the state's motion to dismiss. She appeals, challenging all three rulings.

1. Her argument for disqualification is that the judge who conducted the trial and particularly one who has already heard one motion to vacate cannot impartially evaluate the fairness of the prior proceedings.

The argument runs directly contrary to the legislative philosophy behind the enactment of 60-1507, which in 1964 replaced collateral attacks by habeas corpus in the county of confinement with a motion to vacate in the court of conviction. One obvious purpose of the change was to bring into play the familiarity of the original trial judge with the case.

Our present procedure was borrowed from and parallels the similar procedure for collateral attack by motion in federal courts by federal prisoners, 28 U.S.C. § 2255. In construing the federal statute the federal courts have been unanimous: Wagner v. United States, 418 F.2d 618 (9th Cir. 1969) (a trial judge is not disqualified from conducting proceedings on a second motion attacking a sentence because he tried the case against petitioner and passed on the first motion attacking the sentence); Panico v. United States, 412 F.2d 1151 (2d Cir. 1969), cert. den. 397 U.S. 921, 90 S.Ct. 901, 25 L.Ed.2d 102 (1970) (one of the purposes for which Congress passed Section 2255 was to make use of the personal observations of the trial judge of trial occurrences in ruling upon attacks on convictions because of such occurrences); Mirra v. United States, 379 F.2d 782 (2d Cir. 1967) (the fact that personal observations by the judge on trial necessarily enter into his rulings in a 2255 action is not cause for disqualification); Walters v. United States, 404 F.Supp. 996 (S.D.N.Y.1975), affirmed 542 F.2d 1166 (1976) (the mere fact that the same judge who presided at trial now rules on the petitioner's motion is not cause for disqualification. Indeed, one of the purposes of 28 U.S.C. § 2255 was to permit the trial judge, because of his familiarity with the original proceedings and ability to supplement the record, to hear motions collaterally attacking the trial process).

Kansas cases and our statute governing disqualification also indicate that prejudice will not be assumed from the fact that the judge presided over other hearings involving the same litigants. For example, in Oswald v. State, 221 Kan. 625, 561 P.2d 838 (1977), the court rejected the argument that an affidavit stating that the trial judge was biased and had made numerous rulings adverse to petitioner in his criminal trial and his first 1507 motion required a change of judges. See also Hulme v. Woleslagel, 208 Kan. 385, 493 P.2d 541 (1972), and Sheldon v. Board of Education, 134 Kan. 135, 4 P.2d 430 (1931), for applications of the rule that previous adverse rulings of a trial judge, although numerous and erroneous, are not ordinarily and alone sufficient to show such bias or prejudice as would disqualify him.

Our statute governing disqualification of judges states that a party may secure a change of judge on account of prejudice by filing an affidavit stating Facts and Reasons to support an allegation of actual prejudice. K.S.A. 20-311d(B )(5). Petitioner's only reason was legally insufficient and the trial judge properly denied the motion.

2. Petitioner's "intervening change of law" argument is based on an evolving judicial doctrine which, she says, holds trial counsel to a higher standard of competence than that previously recognized in Kansas. Her argument is that her trial counsel's performance may have met the old, lower standard applied in her first 1507 proceeding, but it does not meet the new, higher standard which she says should now be adopted in this state.

A leading case in the area is United States v. DeCoster, 159 U.S.App.D.C. 326, 487 F.2d 1197 (1973). There the court noted that its earlier language, requiring counsel's performance to be so bad as to render the trial a "farce and mockery" in order to be deemed "ineffective," had since been repudiated as a literal formulation of the applicable test. Rather, it was but "a vivid description of the principle that the accused has a heavy burden in showing requisite unfairness." (159 U.S.App.D.C. p. 330, 487 F.2d p. 1201.) In that case the court went further and adopted a black-letter standard for judging a defendant's Sixth Amendment right to counsel: "A defendant is entitled to the reasonably competent assistance of an attorney acting as his diligent conscientious advocate." (159 U.S.App.D.C. p. 331, 487 F.2d p. 1202. Emphasis in original.) The court went on to say that, in general, counsel should be guided by the American Bar Association Standards for the Defense Function.

Similar language may be found in other federal and state decisions. E. g., Moore v. United States, 432 F.2d 730, 736 (3d Cir. 1970) (exercise the customary skill and knowledge which normally prevails at the time and place); United States ex rel. Williams v. Twomey, 510 F.2d 634, 641 (7th Cir. 1975) (a minimum standard of professional representation); Beasley v. United States, 491 F.2d 687, 696 (6th Cir. 1974) (reasonably effective assistance); Coles v. Peyton, 389 F.2d 224, 226 (4th Cir. 1968), cert. den. 393 U.S. 849, 89 S.Ct. 80, 21 L.Ed.2d 120 (list of detailed requirements to be effective); Crismon v. United States, 510 F.2d 356, 358 (8th Cir. 1975) (customary skill and diligence of reasonably competent attorney); Risher v. State, 523 P.2d 421 (Alaska 1974) (lawyer with ordinary training and skill in criminal law); People v. White, 182 Colo. 417, 514 P.2d 69, 72 (1973) (competent counsel well-prepared to serve client); Pitts v. Glass, 231 Ga. 638, 639, 203 S.E.2d 515, 517 (1974) (reasonable effectiveness at time services rendered); State v. Kahalewai, 54 Hawaii 28, 30, 501 P.2d 977, 979 (1972) (not errorless, but within range of competence in criminal cases); State v. Tucker, 97 Idaho 4, 539 P.2d 556 (1975) (reasonably competent assistance of counsel acting as diligent conscientious advocate); State v. Massey,...