State v. Davis, 85,096.

• Decision Date: 13 July 2001
• Docket Number: No. 85,096.,85,096.
• Citation: 26 P.3d 681,271 Kan. 892
• Parties: STATE OF KANSAS, Appellee, v. ANTHONY L. DAVIS, Appellant.
• Court: Kansas Supreme Court

271 Kan. 892

26 P.3d 681

STATE OF KANSAS, Appellee, v. ANTHONY L. DAVIS, Appellant.

No. 85,096.

Supreme Court of Kansas.

Opinion filed July 13, 2001.

Steven R. Zinn, deputy appellate defender, argued the cause, and Jessica R. Kunen, chief appellate defender, was with him on the brief for appellant. The appellant was on a supplemental brief pro se.

Richard A. Olmstead, assistant district attorney, argued the cause, and Nola Foulston, district attorney, and Carla J. Stovall, attorney general, was with him on the brief for appellee.

The opinion of the court was delivered by

DAVIS, J.:

Anthony L. Davis appeals from the district court's summary denial of his motion to correct an illegal sentence which the court treated as a K.S.A. 60-1507 motion alleging ineffective assistance of counsel. Davis argues that the failure of his attorney to attempt to suppress the testimony of Davis' girlfriend, Rose Thomas, constituted ineffective assistance of counsel because Thomas entered into an agreement with the State to testify in exchange for immunity from prosecution.

The pertinent underlying facts in this case can be found in State v. Davis, 247 Kan. 566, 802 P.2d 541 (1990). Briefly stated, they are as follows: Davis was convicted of first-degree felony murder, aggravated robbery, and aggravated arson in the death of his greatgrandfather, Willie Bryant. The key witness for the State was Thomas, and it is her testimony that forms the basis for this appeal.

Thomas testified that she accompanied Davis to visit Bryant to show Bryant their new-born child. Thomas testified that she and Davis used cocaine before going to see Bryant, and when they arrived Davis asked Bryant for some money to buy milk and diapers for the baby. Thomas testified that when Bryant gave them $10, she and Davis noticed that Bryant's wallet contained a large sum of money.

While they were leaving Bryant's house, Davis stole a gun. Thomas and Davis then went to a drug house where Davis traded the stolen gun and the money for cocaine. After using the cocaine, they returned to Bryant's house to ask for more money. When Bryant refused, Davis went into the bathroom and returned with a can of paint. Davis hit Bryant with the can of paint. Davis then picked Bryant up and placed him on the couch, saying that he was sorry. However, he then struck Bryant repeatedly with a tire jack.

Thomas testified that Davis then went into the kitchen, got a paper bag, and started several fires. Thomas stated that she suggested to Davis that they should burn the house and gave a burning bag to him. Davis set more fires around the house. Thomas testified that as they were leaving the house, Davis told her to get Bryant's money from the floor where it had fallen. Thomas testified that as they left, she saw Bryant on the floor trying to get up. Bryant died as the result of smoke inhalation and carbon monoxide asphyxiation from the fire.

We affirmed Davis' convictions. On February 11, 1999, Davis filed what he classified as a motion to correct an illegal sentence pursuant to K.S.A. 22-3504(1). He contended that his sentence was illegal because his counsel was ineffective for failing to file a motion to suppress Thomas' testimony, which he claimed was obtained illegally in violation of Kansas Rule of Professional Conduct (KRPC) 3.4(b) (2000 Kan. Ct. R. Annot. 389) and K.S.A. 21-3807(a)(1), compounding a crime. He also contended that his counsel had failed to engage in any pretrial discovery which would have suggested that a suppression motion would be applicable. Davis' theory with regard to KRPC 3.4(b) and K.S.A. 21-3807 was that the State had violated the rule and the statute in presenting Thomas' testimony because the State secured the testimony by promising not to prosecute Thomas. Davis later amended his motion to make clear that he was contending that Thomas, rather than the State, violated K.S.A. 21-3807 in accepting immunity.

The district court summarily denied Davis' motion. The court found that Davis' motion should be classified as one alleging ineffective assistance of counsel. The court then went on to find that the State did not violate K.S.A. 21-3807 or KRPC 3.4(b). The court further found that a violation of K.S.A. 21-3807 would not require suppression in any event and, therefore, there was no ineffective assistance of counsel in failing to file a motion for suppression.

The question at issue in this case is whether the district court erred in summarily denying Davis' motion without the appointment of counsel or a hearing. Although Davis couched his arguments in terms of a motion to correct an illegal sentence, his arguments were actually pertaining to the ineffectiveness of his trial counsel. This makes little difference as both are treated in the same manner. See State v. Duke, 263 Kan. 193, 196, 946 P.2d 1375 (1997). In both cases, the district court is to make a preliminary examination to determine whether substantial questions of law or fact are raised, and if the findings are in the negative, the court may summarily deny the motion. 263 Kan. at 196. The decision concerning whether to hold an evidentiary hearing on a motion to correct an illegal sentence is subject to an abuse of discretion standard. See 263 Kan. at 195. Davis' claim in this case is that his counsel was ineffective because she did not file a motion to suppress the testimony of Thomas. We have held that before counsel's assistance is determined to be so defective as to require reversal, a defendant must establish that: (1) counsel's performance was deficient, which means counsel made errors so serious that counsel's performance was less than that guaranteed by the Sixth Amendment to the United States Constitution, and (2) the deficient performance prejudiced the defense, which requires a showing of a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. State v. Sperry, 267 Kan. 287,...