Swenson v. State

• Decision Date: 27 July 2007
• Docket Number: No. 94,207.,94,207.
• Parties: Nathaniel L. SWENSON, Appellant, v. STATE of Kansas, Appellee.
• Court: Kansas Supreme Court

162 P.3d 808

Nathaniel L. SWENSON, Appellant, v. STATE of Kansas, Appellee.

No. 94,207.

Supreme Court of Kansas.

July 27, 2007.

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

Kristi L. Barton, assistant district attorney, argued the cause, and Nola Tedesco Foulston, district attorney, and former attorney general, Phill Kline, and Paul J. Morrison, attorney general, were with her on the briefs for appellee.

Jean Gilles Phillips, Elizabeth Seale Cateforis, and Alice C. White, of University of Kansas School of Law, of Lawrence, were on the brief for amicus curiae The Paul E. Wilson Defender Project.

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

This is an appeal from the denial of Nathaniel L. Swenson's pro se K.S.A. 60-1507 motion. The district court denied the motion in its entirety. On appeal, the Court of Appeals affirmed in part, reversed in part, and remanded with directions. Swenson v. State, 35 Kan.App.2d 709, 135 P.3d 157 (2006). Swenson sought and this court granted review on only three of the many issues on which the Court of Appeals affirmed the district court. Each of the issues on which review was granted raises a claim of ineffective assistance of counsel. Specifically, Swenson argues the Court of Appeals erred in holding that defendant was not denied effective assistance of counsel when counsel (1) filed a petition for review 1 day after the deadline for such a filing; (2) did not call Swenson's mother as a witness at trial; and (3) did not file a motion to arrest judgment because of a defective complaint.

We reverse the Court of Appeals and the district court on the first two issues, determining that the filing of a petition for review 1 day out-of-time is ineffective assistance of counsel on appeal and that the Court of Appeals incorrectly concluded that Swenson was required to submit an affidavit from his mother in order to sustain his burden of establishing that there is a substantial question requiring an evidentiary hearing on a K.S.A. 60-1507 motion. We affirm the Court of Appeals' and district court's conclusions that trial counsel was not ineffective for failing to file a motion to arrest judgment, because we conclude on the record that the complaint was not defective.

A brief recitation of the procedural background relating to the three issues is helpful. In November 1999, Swenson was charged with aggravated battery after Freddie Hooks, Jr., was shot multiple times and sustained life-threatening injuries during a September 1999 incident. The State later filed an amended complaint and information charging Swenson with attempted first-degree murder. The amended complaint did not include an aggravated battery charge and did not specifically include the element of premeditation in the attempted first-degree murder charge.

In 2000, a jury convicted Swenson of attempted first-degree murder, and he was sentenced to 203 months' imprisonment. Swenson's conviction was affirmed by the Court of Appeals in State v. Swenson, No. 86,397, 46 P.3d 40, unpublished opinion filed May 10, 2002. Swenson's appellate counsel failed to timely file a petition for review with this court. In a letter written to Swenson, Swenson's appellate counsel stated that although he had mailed the petition for review within the 30-day filing period, it was not received for filing until 1 day after the filing period had expired. A motion to file a petition for review out of time was denied.

In March 2003, Swenson filed a pro se motion pursuant to K.S.A. 60-1507. Swenson's motion alleged numerous issues, several relating to trial error and several regarding ineffective assistance of trial and appellate counsel. The district court denied the K.S.A. 60-1507 motion after appointing counsel and holding a nonevidentiary hearing.

Swenson appealed to the Court of Appeals in Swenson v. State, 35 Kan.App.2d 709, 135 P.3d 157 (2006), raising the same issues. The Court of Appeals panel affirmed the district court's denial of Swenson's K.S.A. 60-1507 motion and its decision to refrain from holding an evidentiary hearing on all but one issue. The one issue on which the Court of Appeals reversed the district court related to trial counsel's failure to call Robert Turner as a witness at trial. Swenson had raised the same issue relating to two additional witnesses: Swenson's mother and Swenson himself. The district court ruled that the decision not to call each of these witnesses—Turner, Swenson's mother, and Swenson—was a matter of trial strategy. The Court of Appeals affirmed the district court's ruling as to Swenson and his mother but reversed the ruling regarding Turner, finding that there was no indication in the record that counsel had attempted to interview Turner and concluding "`defense counsel cannot make a strategic decision against pursuing a line of investigation when he or she has not yet obtained facts upon which that decision could be made.' [Citation omitted.]" Swenson, 35 Kan.App.2d at 719, 135 P.3d 157.

In affirming the district court on the three issues before us, the Court of Appeals panel held that Swenson's right to effective assistance of counsel extended throughout the proceedings, including the claimed deficiencies at trial and when seeking review of the Court of Appeals' decision. Regarding the first issue, while Swenson could establish his counsel failed to file a timely petition for review, the panel concluded that he failed to meet the prejudice prong of the test for ineffective assistance of appellate counsel because he had not shown his petition would be granted. Second, the panel held that by failing to present an affidavit of his mother, Swenson failed to establish a substantial issue of fact or law regarding whether trial counsel was ineffective for not investigating and utilizing evidence from his mother. Finally, the panel concluded there was nothing in the record to indicate that the defense was prejudiced by the omission of the premeditation element in the amended complaint and, therefore, on this issue as well, Swenson had not raised a substantial question regarding the prejudice prong of the test of ineffective assistance of counsel.

Additional facts relevant to the three issues before us will be discussed below.

Standard of Review

In Lujan v. State, 270 Kan. 163, 170-71, 14 P.3d 424 (2000), this court explained that there are three avenues of approach for the district court faced with a K.S.A. 60-1507 motion. First, the court may determine that the motion, files, and records of the case conclusively show that the movant is entitled to no relief and summarily deny the movant's motion. Second, the court may determine from the motion, files, and record that a substantial issue or issues are presented, requiring a full evidentiary hearing with the presence of the movant. Finally, the court may determine that a potentially substantial issue or issues of fact are raised in the motion, supported by the files and record, and hold a preliminary hearing after appointment of counsel to determine whether in fact the issues in the motion are substantial. In the event the court determines that the issue or issues are not substantial, the court may move to a final decision without the presence of the movant. If the issue or issues are substantial, involving events in which the movant participated, the court must proceed with a hearing in the presence of the movant.

In this case, the district court followed the third avenue of approach by appointing counsel and conducting a preliminary hearing. After the preliminary hearing, the district court concluded that no substantial question of law or triable issues of fact had been raised and denied Swenson relief on his K.S.A. 60-1507 motion. The district court has discretion to ascertain whether the claim is substantial before granting an evidentiary hearing and ordering the movant's presence at the hearing. Gaudina v. State, 278 Kan. 103, 107-08, 92 P.3d 574 (2004); Supreme Court Rule 183(h) (2006 Kan. Ct. R. Annot. 228).

Our review of whether there was a substantial issue warranting an evidentiary hearing focuses upon ineffective assistance of counsel claims. In cases dealing with claims alleging ineffective assistance of counsel, there are mixed questions of fact and law that sometimes require de novo review. See State v. Mathis, 281 Kan. 99, 110, 130 P.3d 14 (2006). Under a traditional analysis of ineffective assistance of counsel, before counsel's assistance is determined to be so defective as to require reversal of a conviction, the defendant must establish two things. First, the defendant must establish that counsel's performance was deficient, which requires a showing that counsel made errors so serious that his or her performance was less than that guaranteed to the defendant. Second, the defendant must establish that counsel's deficient performance prejudiced the defense, which requires a showing that counsel's errors were so serious as to deprive the defendant of a fair trial. Mathis, 281 Kan. at 109-10, 130 P.3d 14; see Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

ISSUE 1: Did the Court of Appeals Err in Holding that Appellate Counsel Provided Swenson with Effective Assistance of Counsel Even Though Counsel Failed to File a Timely Petition for Review in the Kansas Supreme Court?

Swenson contends the Court of Appeals erred in rejecting his argument that appellate counsel was ineffective for failing to file a timely petition for review in the Kansas Supreme Court. The Court of Appeals panel concluded that, even if counsel had been deficient for failing to file a timely petition for review, counsel's conduct was not prejudicial and, therefore, did not constitute ineffective assistance of counsel. 35 Kan.App.2d at 726-27, 135 P.3d 157.

The same issue was raised in another case heard on the same docket as Swenson's petition...