State v. Van Cleave

• Decision Date: 28 March 1986
• Docket Number: No. 58238,58238
• Parties: STATE of Kansas, Appellee, v. Thomas E. VAN CLEAVE, Appellant.
• Court: Kansas Supreme Court

Page 580

716 P.2d 580

239 Kan. 117

STATE of Kansas, Appellee, v. Thomas E. VAN CLEAVE, Appellant.

No. 58238.

Supreme Court of Kansas.

March 28, 1986.

Syllabus by the Court

1. In an appeal from conviction of a crime, the allegation that the defendant did not have effective assistance of counsel will not be considered for the first time on appeal. Our holding to the contrary in State v. Pink, 236 Kan. 715, 696 P.2d 358 (1985), is overruled.

2. When appellate counsel in a criminal case desires to raise the issue of ineffective assistance of counsel and that issue has never been ruled upon by the trial court, defendant may seek a remand of the case to the trial court for an initial determination of the issue. In doing so, the procedure for remand to consider newly discovered evidence explained in State v. Shepherd, 232 Kan. 614, 657 P.2d 1112 (1983), and set forth in this opinion, should be followed.

3. The scope of appellate review when the defendant challenges the sufficiency of the evidence to support a conviction is whether the evidence, viewed in the light most favorable to the prosecution, convinces the appellate court that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. The appellate court looks only to the evidence in favor of the verdict to determine if the essential elements of the charge are sustained.

4. The crime and penalty in effect at the time of the offense are controlling unless the legislature has given retroactive effect to any statutory changes made subsequent to the time of the commission of the crime.

5. A sentence imposed by a trial court will not be disturbed on the ground it is excessive, provided it is within the limits prescribed by law and within the realm of discretion on the part of the trial court, and the sentence is not the result of partiality, prejudice, oppression or corrupt motive.

6. A trial court is not empowered to impose a sentence below the statutory minimum.

Jillian T. Waesche, Asst. Public Defender, argued and on brief, for appellant.

Geary N. Gorup, Asst. Dist. Atty., argued, and Robert T. Stephan, Atty. Gen., and Clark V. Owens, Dist. Atty., were with him on brief, for appellee.

HOLMES, Justice:

Thomas E. Van Cleave appeals from his conviction of one count of aggravated indecent liberties with a child. K.S.A. 1983 Supp. 21-3504. The statute as it existed at the time of this offense classified the crime as a Class B felony. Van Cleave was sentenced on January 8, 1985, to serve a minimum term of five years and a maximum term of twenty years as provided by K.S.A. 1985 Supp. 21-4501(b).

The facts were partially disputed. The victim was the six-year-old granddaughter of the appellant and testified to the events which took place in October 1983. She contended that appellant took her into the bedroom, undressed her, pulled his own pants down, got on top of her and attempted intercourse. Other witnesses for the prosecution included the victim's mother and the police officer who interviewed the appellant. Their testimony corroborated that of the victim. Appellant testified he found his granddaughter naked on the bed, that he laid down next to her to talk and that his only physical contact with her was to put his hand on her leg. He contended that due to a broken ankle it would have been impossible for him to get on top of the victim. He also testified he did not pull his pants down or expose himself and denied the statements attributed to him by the police officer. The only other witness was Mrs. Van Cleave, who corroborated her husband's testimony. The jury believed the State's evidence and convicted the appellant.

The first issue on appeal is that appellant had ineffective assistance of counsel, and he points to certain trial proceedings which he alleges support that claim. As this issue was not raised below the State contends it is not a proper issue before this court. We agree. The question of whether a defendant may raise the issue of ineffective assistance of counsel for the first time on appeal has been the subject of recent conflicting decisions of this court. In State v. Porter, Green & Smith, 228 Kan. 345, 615 P.2d 146 (1980), two of the defendants contended they had been denied the effective assistance of counsel although that issue had never been before, or determined by, the trial court. We stated:

"This issue was never raised at any time during the trial nor on the defendants' motion for a new trial. The trial court was therefore not given an opportunity to consider this issue. Since the point was not presented to or determined by the district court, it is not properly before this court and will not be considered for the first time on appeal." p. 354, 615 P.2d 146.

In State v. Chamberlain, 234 Kan. 422, 672 P.2d 604 (1983), wherein it appeared that the appellant's claim of ineffective assistance of counsel might have merit, we stated:

"The trial judge heard the entire trial and did have the opportunity to observe and evaluate defense counsel's performance throughout, but the claim of ineffective assistance of counsel has never been presented to him. We will not consider this issue until the trial court has had an opportunity to consider and rule upon it." p. 425, 672 P.2d 604.

See also State v. Roberts, 226 Kan. 740, Syl. p 3, 602 P.2d 1355 (1979), wherein Justice Prager pointed out, under similar circumstances, that the remedy, if any, is under K.S.A. 60-1507. In State v. Pink, 236 Kan. 715, 696 P.2d 358 (1985), the issue was again before this court and we stated:

"The State maintains that since the trial court was never given an opportunity to consider this issue, it is not properly before the appellate court. This rule is stated in State v. Porter, Green & Smith, 228 Kan. 345, 615 P.2d 146 (1980). However, in order to prevent a denial of fundamental rights, we may consider this issue on appeal. State v. Puckett, 230 Kan. 596, 598-99, 640 P.2d 1198 (1982). Since defendant Kelly received a new court-appointed counsel to represent him on appeal, we think it best serves the ends of justice to consider this issue raised by the newly appointed counsel." 236 Kan. at p. 731, 696 P.2d 358.

We have now determined that our holdings in the earlier cases were correct and our decision to the contrary in Pink is overruled. An allegation of ineffective assistance of counsel will not be considered for the first time on appeal.

The principal problem facing an appellate court when a claim of ineffective assistance of counsel is raised for the first time on appeal is that the trial court, which observed counsel's performance and was aware of the trial strategy involved, is in a much better position to consider counsel's competence than an appellate court is in reviewing the issue for the first time from a cold record. Many times what would appear in the record as an indication of ineffective counsel was fully justified under the circumstances present in the trial court. The trial judge should be the first to make a determination of such an issue and our refusal to consider the matter for the first time on appeal is sound. As Justice Prager pointed out in Roberts, a remedy exists under K.S.A. 60-1507. We believe there is another option which would avoid the delay and expense of a separate action and a separate appeal. The issue arises, of course, when new counsel enters the case after trial counsel has argued a motion for new trial and filed a notice of appeal. We believe that the procedure we recommended in State v. Shepherd, 232 Kan. 614, 657 P.2d 1112 (1983), when there is a claim of newly discovered evidence while the case is pending upon appeal, is equally applicable to a claim of ineffective assistance of counsel which arises after the district court has lost jurisdiction of the case pending appeal. In Shepherd, we stated:

"The statutes do not provide any specific procedure for the handling and determination of a motion to remand a case from the appellate courts. The granting of a motion to remand a case from the appellate courts for the purpose of the trial court hearing a motion for new trial based upon alleged newly discovered evidence or for other trial court proceedings lies within the sound discretion of the appellate court. The granting of such a motion is not a matter of right which accrues in every case merely by filing a motion seeking remand. While the statutes are silent on procedural standards, better practice suggests that a defendant seeking to have a case remanded from the appellate courts should set forth with some specificity sufficient details of the evidence to be presented to the trial court in support of the motion for new trial so the appellate court may determine in the first instance whether there are valid grounds to expect that a new trial might be granted by the trial court. The appellate courts cannot be expected to operate in a vacuum and grant every motion to remand a case already on appeal absent a showing that the motion for new trial has merit and is not frivolous or an attempt...