Swenson v. State

• Decision Date: 19 May 2006
• Docket Number: No. 94,207.,94,207.
• Citation: 135 P.3d 157
• Parties: Nathaniel L. SWENSON, Appellant, v. STATE of Kansas, Appellee.
• Court: Kansas Court of Appeals

135 P.3d 157

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

No. 94,207.

Court of Appeals of Kansas.

May 19, 2006.

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Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellant.

Kristi L. Barton, assistant district attorney, Nola Tedesco Foulston, district attorney, and Phill Kline, attorney general, for appellee.

Before MALONE, P.J., GREEN and BUSER, JJ.

GREEN, J.

Nathaniel Swenson appeals from the trial court's denial of his K.S.A. 60-1507 motion. First, Swenson argues that the trial court in his underlying criminal case should not have allowed the State to amend the complaint. We determine that the State's amendment of the complaint before trial to charge attempted first-degree murder was proper as there was no indication from the record that Swenson's substantial rights were prejudiced. Moreover, Swenson's argument relating to the State's amendment of the complaint during trial to alternatively charge aggravated battery is moot because Swenson was never convicted of this offense.

Next, Swenson contends that the trial court failed to make adequate findings of fact and conclusions of law on all the issues presented in his 60-1507 motion. With the exception of one ineffective assistance of counsel issue, we determine that the trial court's factual findings and legal conclusions adequately addressed the issues in this case. Next, Swenson asserts that his trial attorney was ineffective for failing to investigate exculpatory witnesses; for failing to move for arrest of judgment; and for failing to provide a defense to the element of premeditation. We determine that an evidentiary hearing is necessary to address the issue of whether defense counsel was ineffective for failing to investigate a witness who had information that possibly could show Swenson's innocence. As to all other ineffective assistance of counsel issues raised by Swenson, we determine that his arguments lack merit.

Finally, Swenson maintains that his appellate attorney was ineffective for failing to timely petition our Supreme Court for review of his case. Because Swenson has failed to establish that he was prejudiced by the action of his appellate attorney, his claim of ineffective assistance of counsel fails. Accordingly, we affirm in part, reverse in part, and remand for an evidentiary hearing.

In his underlying criminal case, Swenson was charged with aggravated battery in November 1999. Swenson waived preliminary hearing. In February 2000, the State filed an amended complaint and information charging Swenson with attempted first-degree murder. An aggravated battery charge was not included in the amended complaint and information. A preliminary hearing was conducted, and Swenson was bound over and arraigned on the attempted first-degree murder charge. At the preliminary hearing, the victim in this case, Freddie Hooks, Jr., indicated that he had been shot multiple times during an incident occurring in September 1999 and had sustained life-threatening injuries. Hooks identified Swenson as the individual who had shot him.

In June 2000, the case against Swenson proceeded to a jury trial. After opening statements but before the presentation of evidence, the prosecutor stated that he would be filing an amended information to include an aggravated battery charge. Indicating that the amended complaint and information was in response to Swenson wanting a jury instruction on aggravated battery and that there was no objection by Swenson to filing an amended information, the prosecutor stated:

"[Prosecutor:] I think we needed to make a record. We discussed it a little bit about proceeding on this Amended Information and no objection to going right into the jury trial on this Amended Information, which I don't believe—I believe I'm entitled to do it, but it's my understanding, too, that the defense wanted an instruction on an agg. battery. I decided that the safest way to do it is to do it through an alternative count.

"I just want it clear that there is no objection to the Amended Information and then proceeding right into the jury trial on this Amended Information.

"The Court: [Defense counsel?]

"[Defense counsel:] No objection, Your Honor.

"The Court: All right. That's the way we'll proceed."

During the jury trial, Hooks again testified about the severity of his injuries resulting from the shooting and identified Swenson as the person who shot him. Swenson did not testify at trial. The jury was instructed on the crimes of aggravated battery, attempted first-degree murder, and attempted second-degree murder. The jury found Swenson guilty of attempted first-degree murder. Swenson was sentenced to 203 months in prison. One day after the jury verdict, the State filed a written amended information charging Swenson with attempted first-degree murder or alternatively aggravated battery.

Swenson appealed his conviction to this court, arguing that the trial court should have instructed the jury that Hooks' credibility had been impeached by his prior convictions and that the trial court erroneously allowed an officer to compare Swenson's appearance in court to his appearance in a mug shot. This court affirmed Swenson's conviction. Swenson's counsel failed to timely file a petition for review with our Supreme Court. Although Swenson's counsel moved to file the petition for review out of time, his request was denied.

In March 2003, Swenson moved for relief under K.S.A. 60-1507 as a pro se litigant. In his 60-1507 motion, Swenson alleged that the amended complaint and information was fatally defective due to the element of premeditation being omitted from his attempted first-degree murder charge; that his attorney was ineffective by not filing a motion for arrest of judgment and by not presenting a defense against premeditation; that the trial court abused its discretion by failing to take notice that the element of premeditation was omitted from the amended complaint and information; that the trial court abused its discretion by allowing the State to amend the complaint to charge a different crime; that his trial counsel was ineffective by not calling witnesses who could provide exculpatory testimony and could discredit Hooks' testimony; and that his appellate counsel was ineffective by failing to timely file a petition for review.

The trial court conducted a nonevidentiary hearing at which it heard arguments from Swenson's counsel and from the State. At the conclusion of the hearing, the trial court found that Swenson's presence was not necessary and that the files and records conclusively established that Swenson was not entitled to relief.

I. Standard of Review

There are three avenues of approach for the trial 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 involving the presence of the movant. Lujan v. State, 270 Kan. 163, 170-71, 14 P.3d 424 (2000).

Here, the trial court followed the third avenue of approach by appointing counsel and conducting a preliminary hearing. After the preliminary hearing, the trial court concluded that no substantial question of law or triable issues of fact had been raised and denied Swenson relief on his 60-1507 motion. The trial court has discretion to ascertain whether the claim is substantial before granting an evidentiary hearing and ordering the prisoner's presence at the hearing. Gaudina v. State, 278 Kan. 103, 107-08, 92 P.3d 574 (2004); Supreme Court Rule 183(h) (2005 Kan. Ct. R. Annot. 228). Judicial discretion is abused when no reasonable person would take the view of the trial court. Woodberry v. State, 33 Kan.App.2d 171, 173, 101 P.3d 727, rev. denied 278 Kan. 852 (2004).

II. Jurisdiction

First, Swenson contends that the trial court never obtained jurisdiction in his underlying criminal case on either the attempted murder or aggravated battery charge. Relying on K.S.A.2005 Supp. 22-3201(e), Swenson maintains that there was no jurisdictional authority for the State to amend the complaint to charge a new crime. Whether jurisdiction exists is a question of law over which an appellate court's scope of review is unlimited. State v. Hodgden, 29 Kan.App.2d 36, 38, 25 P.3d 138, rev. denied 271 Kan. 1040 (2001).

The State alleges that Swenson failed to raise this issue in his 60-1507 motion and thus it is not properly before this court. Generally, issues not raised before the trial court cannot be raised on appeal. State v. Williams, 275 Kan. 284, 288, 64 P.3d 353 (2003). Nevertheless, it appears that Swenson sufficiently raised this issue in his pro se 60-1507 motion when he argued that the trial court erred in allowing the State to amend the complaint to charge a different crime from that contained in the original complaint. See Bruner v. State, 277 Kan. 603, 605, 88 P.3d 214 (2004) (Pro se pleadings are to be given a liberal construction.). In liberally construing Swenson's pro se 60-1507 motion, we determine that he sufficiently raised his present argument at the trial court...