Thomas v. State

• Decision Date: 13 May 2022
• Docket Number: 123,912
• Citation: 508 P.3d 1292 (Table)
• Parties: Quinton C. THOMAS, Appellant, v. STATE of Kansas, Appellee.
• Court: Kansas Court of Appeals

508 P.3d 1292 (Table)

Quinton C. THOMAS, Appellant,

v.STATE of Kansas, Appellee.

No. 123,912

Court of Appeals of Kansas.

Opinion filed May 13, 2022.

Kristen B. Patty, of Wichita, for appellant.

Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, Derek Schmidt, attorney general, for appellee.

Before Malone, P.J., Schroeder and Hurst, JJ.

MEMORANDUM OPINION

Per Curiam:

Quinton C. Thomas appeals the district court's denial, following a preliminary hearing, of his K.S.A. 60-1507 motion. In his 60-1507 motion, Thomas argued, among many things, that his trial counsel was ineffective for failure to investigate an alibi witness. On appeal Thomas contends the district court erred in denying his motion without first holding a full evidentiary hearing on the ineffective assistance of trial counsel claim. This court is persuaded by Thomas' argument because the motion and available records do not conclusively show that Thomas is not entitled to relief on this claim. This court remands this case for an evidentiary hearing on Thomas' motion, solely for review of his ineffective assistance of trial counsel claim.

FACTUAL AND PROCEDURAL BACKGROUND

The State charged Thomas with three counts of aggravated robbery, one count of aggravated burglary, one count of aggravated battery, and one count of aggravated endangering a child related to three separate events. The aggravated burglary, aggravated battery, aggravated endangering of a child, and one count of aggravated robbery arose from a residential break-in on November 4, 2010, where a woman was robbed at gunpoint, a 16-month-old child was injured, and a man was shot. The remaining two aggravated robbery charges arose from robberies at gunpoint that occurred at two separate Advance America businesses—one on November 27, 2010, and the other on November 29, 2010.

Thomas had a jury trial in March 2013 where the jury convicted him on all counts. The district court sentenced Thomas to a total prison term of 423 months. Thomas filed a direct appeal, and a panel of this court affirmed his convictions and sentence rejecting his numerous arguments of procedural and constitutional error in his charges, trial, and sentencing. State v. Thomas , No. 110,571, 2015 WL 569371, at *1, 29 (Kan. App. 2015) (unpublished opinion). The mandate issued October 2, 2015. On June 6, 2016, Thomas filed a "Motion Requesting a Stay and Abeyance of Collateral Challenge, By Showing Cause, Pro-Se." In the motion, Thomas stated that he was aware this court had denied his direct appeal but was unaware of the outcome of his petition for review, which his attorney had informed him she was filing on his behalf. Thomas claimed he had not had contact with his appellate counsel since February 3, 2015, when she informed him in a letter that she intended to file a petition for review, and since he was in a segregated unit in federal custody, he could not research Kansas caselaw for his collateral motion. On June 8, 2016, the district court denied Thomas' motion, informing him that the Kansas Supreme Court denied his petition for review on September 23, 2015, and the mandate on his direct appeal issued on October 2, 2015. The district court included a printout of the activity on Thomas' case and a copy of the mandate from the district court file.

On March 5, 2018, Thomas filed a "Motion to Vacate and Set Aside Conviction & Petition for Writ of Habeas Corpus Pursuant to K.S.A. § 60-1507." Thomas affirmatively alleged manifest injustice and acknowledged his late filing, but argued the late filing should be excused for the reasons already asserted in his June 6, 2016 motion, and because when he returned to a Kansas facility in July 2017 it was on lockdown and he could not access the library until September 2017. Thomas' appellate counsel filed a brief in support of his untimely K.S.A. 60-1507 motion, emphasizing Thomas' lack of access to legal materials and noting his motion asserted actual innocence in regard to the November 4 residential break-in. The State conceded the statute of limitations issue, allowing Thomas' motion to proceed on the merits. Thomas' K.S.A. 60-1507 motion asserted eight substantive claims:

1. He was denied his right to a speedy trial under K.S.A. 22-4401, the Interstate Agreement on Detainers (IAD);

2. the State withheld evidence in violation of Brady v. Maryland , 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963) ;

3. the State committed prosecutorial error by failing to protect his IAD speedy trial rights;

4. he was denied effective assistance of trial counsel;

5. he was denied conflict-free counsel;

6. he was denied effective assistance of appellate counsel;

7. he was denied the right to be present at every critical stage of his proceedings, and;

8. cumulative errors denied him a fair trial and appellate review.

The State responded to Thomas' motion on September 29, 2020, requesting the district court to summarily deny the motion. The district court held a preliminary, nonevidentiary hearing on November 20, 2020, where it heard arguments from both parties and took the motion under advisement. The court reconvened on December 4, 2020, and denied Thomas' motion without an evidentiary hearing.

Thomas also filed a pro se motion to reconsider, which the district court denied. Thomas appeals the district court's denial, both pro se and through counsel.

DISCUSSION

Thomas contends only that the district court erred by denying his K.S.A. 60-1507 motion without holding an evidentiary hearing on his ineffective assistance of trial counsel claim—thus, he has abandoned any arguments regarding the other seven claims in his motion. See Nguyen v. State , 309 Kan. 96, 108-09, 431 P.3d 862 (2018) ("Our general rule is that an issue not raised or briefed is deemed waived and abandoned.").

I. The district court erred in denying Thomas' K.S.A. 60-1507 motion without holding an evidentiary hearing on his ineffective assistance of trial counsel claim.

A district court can resolve a K.S.A. 60-1507 motion in one of three ways: (1) finding that the motion, files, and records of the case conclusively show the defendant is not entitled to relief and summarily deny the motion; (2) finding that the motion, files, and records of the case show that a potentially substantial issue exists and grant a preliminary hearing after appointing counsel; or (3) finding that the motion, files, records of the case, or preliminary hearing show that there is a substantial issue requiring an evidentiary hearing. State v. Adams , 311 Kan. 569, 578, 465 P.3d 176 (2020). Here, the district court followed option (2) and held a preliminary hearing, where Thomas was represented by conflict-free counsel before denying Thomas' motion.

When a district court denies a 60-1507 motion after a preliminary hearing, this court reviews the district court's findings of fact to determine whether they are supported by substantial competent evidence and whether they are sufficient to support the district court's conclusions of law. This court has unlimited review over a district court's conclusions of law and its decision to grant or deny a 60-1507 motion. Adams , 311 Kan. at 578. Thomas filed his 60-1507 motion pro se, and although courts must liberally construe pro se pleadings, Thomas was still required to allege facts sufficient to warrant an evidentiary hearing. Mere conclusory allegations, without factual basis in the record, are insufficient to raise a substantial issue of fact necessitating an evidentiary hearing. Mundy v. State , 307 Kan. 280, 304, 408 P.3d 965 (2018).

Ineffective assistance of trial counsel claims are analyzed under a two-prong test—first, the movant must show that counsel's performance was deficient. If that is shown, the movant must next show that the deficient performance was prejudicial. To show deficient performance, the defendant must establish that counsel's performance fell below an objective reasonableness standard. Defendants must overcome a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. If deficient performance is shown, the defendant must establish prejudice by showing, based on the totality of the evidence, there was a reasonable probability that the deficient performance affected the outcome of the proceedings. Khalil-Alsalaami v. State , 313 Kan. 472, 485-86, 486 P.3d 1216 (2021).

In Thomas' motion, he asserted:

"First, Mr. Wagle failed to investigate the matter, failed to locate and question witness, and failed to put on any defense.

"[Thomas] had an Alibi Defense concerning the events of November 4, 2010. At the time of the alleged events, [Thomas] was with his cousin, [A.C.], and could not have committed the crimes alleged. [A.C.] had already given statements to the FBI, concerning November 4, 2010. Mr. Wagle never obtained the FBI Investigation reports from the FBI. Never contacted [A.C.], and never served Notice of [Thomas'] Alibi defense.

"Had Mr. Wagle properly engaged in the role of counsel, as stated above, [Thomas] would have been found not guilty of the events charged for November 4, 2010. [Thomas] is actually innocent of these charges."

At the preliminary hearing on Thomas' motion, his counsel asserted that a full evidentiary hearing was necessary because the record did not reveal whether Thomas' trial counsel investigated—or took any action regarding the alibi witness. The State argued that Thomas' motion failed to carry his burden to show he was entitled to an evidentiary hearing because he...