Stewart v. State

• Decision Date: 12 July 2019
• Docket Number: No. 115,149,115,149
• Citation: Stewart v. State, 444 P.3d 955 (Kan. 2019)
• Court: Kansas Supreme Court
• Parties: Reginald STEWART, Appellant, v. STATE of Kansas, Appellee.

444 P.3d 955

Reginald STEWART, Appellant,

v.STATE of Kansas, Appellee.

No. 115,149

Supreme Court of Kansas.

Opinion filed July 12, 2019.

Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, argued the cause, and Krystle M. S. Dalke, of the same firm, was with him on the brief for appellant.

Boyd K. Isherwood, assistant district attorney, argued the cause, and Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, Wichita, and Derek Schmidt, attorney general, Topeka, were with him on the brief for appellee.

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

Reginald Stewart petitions this court for review of the Court of Appeals' decision affirming the district court's summary denial of his K.S.A. 60-1507 motion. Stewart agrees with the Court of Appeals' holding that the district court erred in reviewing and relying upon the State attorney's written response to Stewart's pro se motion without first appointing counsel for Stewart. Stewart's challenge on review is to the panel's determination that the district court's error was harmless because the motion, files, and record—exclusive of the State's written response—conclusively established that Stewart was not entitled to relief. Stewart claims that there were facts missing from the record that required an evidentiary hearing and appointment of counsel. We conclude that summary denial of the 60-1507 motion was appropriate in this case.

The State cross-petitions, arguing that the Court of Appeals erred in holding that "the district court may not invite the State to respond to the [60-1507] motion or review an unsolicited written response from the State until or unless the movant is represented by a lawyer." Stewart v. State , No. 115,149, 2017 WL 2901146, at *5 (Kan. App. 2017) (unpublished opinion) ( Stewart II ). We agree with the State that its filing of a written response, standing alone, did not trigger Stewart's statutory right to counsel. Ultimately, we affirm the district court's summary denial of the motion.

FACTUAL AND PROCEDURAL OVERVIEW

After two trials resulted in a hung jury, a third jury convicted Stewart of aggravated robbery. The 2011 incident giving rise to the conviction involved three men who accosted a pedestrian walking home from work on a dimly lit street. The assailants battered the victim before removing $8, some cigarettes, and a white lighter from his pockets. The victim flagged down a patrol officer who apprehended two fleeing individuals, Gerard Sillemon and Stewart. Sillemon had $8 in his pocket, and the white lighter lay on the ground between the two men. The victim identified Stewart—both at the crime scene and at trial—as being one of the robbers.

At trial, Sillemon testified that he pled guilty because he was the only person involved in robbing the victim. Stewart testified that he was in the vicinity and observed the crime, but that he was not involved in the robbery in any way. He claimed that the victim had misidentified him. Nevertheless, the jury convicted Stewart of aggravated robbery.

On direct appeal, Stewart raised three jury instruction challenges and a cumulative error argument. One of Stewart's jury instruction challenges argued that the eyewitness identification instruction was clearly erroneous for including "degree of certainty" as a factor for the jury to consider. The Court of Appeals held this instruction was erroneous but fell short of clear error. State v. Stewart , No. 107,723, 2013 WL 3455788 (Kan. App.) (unpublished opinion), rev. denied 298 Kan. 1207 (2013) ( Stewart I ).

Subsequently, Stewart timely filed the pro se K.S.A. 60-1507 motion that is now before this court. The motion alleged error by the trial judge, ineffective assistance of trial counsel, wrongful failure to disclose a transcript by the State, discriminatory collusion between the prosecutor and the accuser, and conspiracy to convict Stewart on the basis of race by the Sedgwick County Public Defender's Office.

Almost a year later, the State, acting through counsel, filed a response to Stewart's motion, addressing Stewart's claims and arguing no evidentiary hearing was needed to resolve them. The record is not clear as to whether the district court ordered the State to respond or whether the State responded on its own volition. The district court's motion minutes sheet adopting the "authorities and arguments of the State ... as persuasive" and denying Stewart's motion without a hearing is dated the same day as the State filed its response, albeit the motions sheet was file-stamped a week later.

Stewart appealed the summary denial to the Court of Appeals. He alleged that the district court violated his due process rights by failing to appoint counsel to represent him before it considered the State attorney's written response to the pro se motion. He also asserted that there are facts absent from the record regarding trial counsel's representation that require an evidentiary hearing, rendering the summary denial erroneous.

The Court of Appeals held that the district court materially erred in considering the State's response to Stewart's pro se motion without appointing counsel for Stewart or providing him with an opportunity to argue beyond the face of his original motion. Stewart II , 2017 WL 2901146, at *5. But the panel held that even though Stewart was improperly deprived of the opportunity to be heard through counsel, the error was harmless. The panel considered Stewart's 60-1507 motion without referring to the State's response and opined that the motion had presented no viable claims, thereby rendering harmless the district court's procedural error. 2017 WL 2901146, at *2-4, 6.

Stewart petitioned this court for review, arguing that the district court and Court of Appeals erred by not granting him an evidentiary hearing. The State cross-petitioned, arguing that the Court of Appeals erred in holding that Stewart should have been appointed counsel upon the State filing a written response to the motion.

APPOINTMENT OF COUNSEL FOR 60-1507 MOVANT

In addressing Stewart's procedural challenge to the manner in which the district court handled the 60-1507 motion, the Court of Appeals noted the procedure set forth in K.S.A. 60-1507(b) ; the statutory right to counsel provided by K.S.A. 22-4506(b) ; and our restatement of the statutory mandates in Supreme Court Rule 183 (2017 Kan. S. Ct. R. 222). 2017 WL 2901146, at *5. The panel summarized our caselaw establishing three options for a district court upon receiving a 60-1507 motion as follows:

"The district court can summarily dismiss the motion after reviewing it and the contents of the case file. Bellamy v. State , 285 Kan. 346, 353-54, 172 P. 3d 10 (2007). Otherwise, the district court has two choices. It can conduct a preliminary hearing during which lawyers for the State and for the defendant present legal argument and otherwise address whether the circumstances call for a full evidentiary hearing. A limited amount of evidence may be received at that preliminary hearing. Bellamy , 285 Kan. at 354 [172 P.3d 10]. Or the district court can appoint a lawyer for the movant, bypass the preliminary hearing, and set the motion for a full evidentiary hearing. See 285 Kan. at 353-54 [172 P.3d 10]." 2017 WL 2901146, at *5.

The panel determined that the options do not include the circumstance in which the district court considers the arguments contained in a written response filed by the State, "without affording the movant the equivalent opportunity to be heard through a lawyer." 2017 WL 2901146, at *5. Our task is to determine whether that interpretation of the statutory right to counsel is correct.

Standard of Review

The extent of Stewart's statutory right to counsel during a K.S.A. 60-1507 proceeding is a question of law over which this court has unlimited review. See Mundy v. State , 307 Kan. 280, 294, 408 P.3d 965 (2018) (quoting Robertson v. State , 288 Kan. 217, 227, 201 P.3d 691 [2009] ); see also Bellamy v. State , 285 Kan. 346, 355, 172 P.3d 10 (2007) (disapproving application of the abuse of discretion standard for reviewing the results of K.S.A. 60-1507 motions without specifically discussing K.S.A. 22-4506 ). But cf. State v. Sharkey , 299 Kan. 87, 95, 322 P.3d 325 (2014) ("The determination of whether the motion presents substantial questions of law justifying the appointment of counsel ‘ "rests within the sound discretion of the trial court." ’ ").

In addition, resolution of this issue requires interpretation of K.S.A. 60-1507, K.S.A. 22-4506, and Supreme Court Rule 183 (2019 Kan. S. Ct. R. 228). "Interpretation of statutes and Supreme Court rules raises questions of law reviewable de novo." Thompson v. State , 293 Kan. 704, 710, 270 P.3d 1089 (2011).

Stewart also argued before the Court of Appeals that the district court's failure to appoint counsel resulted in a due process violation. "The issue of whether due process has been afforded is a question of law over which [this court has] unlimited review." Hogue v. Bruce , 279 Kan. 848, 850, 113 P.3d 234 (2005).

Analysis

Stewart's due process claim is based upon the notion that a response by the State triggers a pro se 60-1507 movant's right to be appointed counsel. He points to the decisions in State v. Hemphill , 286 Kan. 583, 596, 186 P.3d 777 (2008) ; Alford v. State , 42 Kan. App. 2d 392, 402, 212 P.3d 250 (2009) ; Oliver v. State , No. 113,035, 2016 WL 1391757, at *3 (Kan. App. 2016) (unpublished opinion); and Stevenson v. State , No. 96,082, 2007 WL 438745, at *2 (Kan. App. 2007) (unpublished opinion), as supporting that contention. The State counters that these cases are clearly distinguishable because their due process holdings were based upon the district court holding a hearing at which the State was represented by counsel but the movant was not. Moreover, the State contests Stewart's contention that, when a court considers a written response, it is tantamount to the court conducting an in-court hearin...