Tran v. State
| Decision Date | 13 May 2022 |
| Docket Number | 124,072 |
| Citation | 509 P.3d 597 (Table) |
| Parties | Danny TRAN, Appellant, v. STATE of Kansas, Appellee. |
| Court | Kansas Court of Appeals |
Kristen B. Patty, of Wichita, for appellant.
Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before Powell, P.J., Green, J., and Richard B. Walker, S.J.
Danny Tran appeals the summary denial of his K.S.A. 60-1507 motion, which raised several claims of ineffective assistance of appellate counsel related to the handling of a previous appeal. Tran contends his appellate counsel provided ineffective assistance by failing to include certain exhibits in the record on appeal that supported his underlying ineffective assistance claims related to his trial counsel's performance. After reviewing the issues presented, we affirm the trial court's summary denial of Tran's K.S.A. 60-1507 motion.
In 2009, Tran—who was 17 years old—pleaded guilty to aggravated robbery, kidnapping, two counts of aggravated battery, and aggravated burglary. The charges stemmed from an incident involving Tran and several codefendants, and the factual basis for Tran's plea was accurately summarized by this court in State v. Tran , No. 110,475, 2014 WL 6676105 (Kan. App. 2014) (unpublished opinion) (Tran II ).
2014 WL 6676105, at *1.
At sentencing in October 2010, the trial court followed the plea agreement by granting a dispositional departure and sentencing Tran to 36 months’ probation with an underlying prison term of 228 months. About a year later, the court revoked Tran's probation and ordered him to serve the underlying sentence. Tran appealed, and this court affirmed the revocation of his probation in September 2011. State v. Tran , No. 105,235, 2011 WL 4357858 (Kan. App. 2011) (unpublished opinion) (Tran I ).
In March 2013, Tran filed a pro se motion to withdraw his guilty plea, alleging that his trial counsel, Glen C. Robinson, provided ineffective assistance and that affected his decision to enter the plea. Tran claimed Robinson coerced him into entering the plea agreement by telling him there was no possibility his confession to the police could be suppressed. In a supplemental filing, Tran argued that his failure to file within the one-year time limit was justified by excusable neglect and, in the alternative, that the trial court could construe his motion as a K.S.A. 60-1507 motion and find manifest injustice excused the untimely filing as well.
After considering the parties’ arguments at a preliminary hearing, the trial court determined Tran had failed to show excusable neglect or manifest injustice to excuse an untimely filing under either construction of the motion. Tran appealed that decision. This court, in Tran II , concluded that "[b]ecause Tran asserted a claim in his pro se motion that, if true, could establish ineffective assistance of counsel, the district court erred when it failed to take the issue into consideration under the totality of the circumstances in evaluating Tran's claim of manifest injustice." 2014 WL 6676105, at *5. As a result, the Tran II court reversed and remanded the case for an evidentiary hearing on the merits of the motion. 2014 WL 6676105, at *5.
On remand, the trial court held an evidentiary hearing over two days in June 2015, during which Tran and Robinson testified and introduced several exhibits into evidence. After considering the parties’ arguments, the trial court took the matter under advisement to review the testimony and the various exhibits.
At a separate hearing about two weeks later, the trial court denied Tran's motion. The majority of the court's findings related to its conclusion that Tran's testimony at the hearing lacked credibility because the facts alleged in Tran's supporting affidavit were "inconsistent with the record that was produced in his underlying case." As a result, the court determined that Tran failed to show manifest injustice to excuse an untimely filing, but also that Robinson was not ineffective for failing to pursue a suppression motion. Tran timely appealed that decision.
This court concluded on appeal that substantial competent evidence supported the trial court's conclusions that Robinson was not ineffective and Tran would not have insisted on going to trial even if he had been fully informed about the suppression issue. State v. Tran , No. 115,813, 2017 WL 3202966, at *7 (Kan. App. 2017) (unpublished opinion) (Tran III ). Nevertheless, in reaching that conclusion, the Tran III court noted several times in the opinion that Tran's failure to include the exhibits offered at the hearing in the record on appeal required it to presume that the trial court made proper findings that the exhibits did not support Tran's ineffective assistance claim. 2017 WL 3202966, at *6-7.
Tran filed the current pro se K.S.A. 60-1507 motion in March 2020.
Tran's pro se motion argued that Carol Longenecker Schmidt—who handled the appeal of his most recent postconviction motion in Tran III —provided ineffective assistance for several reasons, but mainly because of her failure to include the relevant exhibits in the record on appeal. Tran also argued Schmidt failed to raise additional ineffective assistance of trial counsel claims, as well as several other trial errors.
The trial court held a preliminary hearing on the motion in September 2020, which Tran attended in person and was also represented by Mark Sevart—his court-appointed counsel. After hearing arguments from the parties, the trial court announced that it was summarily denying Tran's motion. The court explained from the bench that it perceived the primary question before it as whether Schmidt rendered ineffective assistance in her handling of the appeal, mainly by omitting the exhibits mentioned by the Tran III court. Thus, the court believed that the failure to include the exhibits
Although the trial court discussed each missing exhibit separately, it reached the same conclusion for all of them: that since Tran had alleged no inconsistencies between the omitted exhibits and the court's previous findings, Tran's ineffective assistance of appellate counsel claims were conclusory. For example, like the Tran III court, the trial court found based on the e-mails that "it was reasonable to believe that the State was making the similar offer to others." See Tran III , 2017 WL 3202966, at *7. As a result, the trial court concluded that Tran failed to show sufficient evidence to find Schmidt's performance was deficient because he had failed to allege any inconsistencies between the missing e-mails and the trial court's previous findings.
Before the trial court concluded the hearing, Sevart asked the court to reconsider, at a minimum, whether to conduct an evidentiary hearing on why Schmidt had not included the omitted exhibits. The court responded that Tran needed to make more than a "blanket" assertion that the Tran III court would have reached a different conclusion and suggested that it would entertain a motion for reconsideration of the summary denial if Sevart attached the omitted exhibits and supplied references to the record to support Tran's claims. Following the hearing, the court issued a motion minutes order summarily denying the motion but staying the deadline for appeal pending a ruling on the motion to reconsider.
Sevart then filed a written motion to reconsider in October 2020, focusing mainly on the underlying merits of the suppression issue. Attached to the motion were several exhibits, including: (1) a copy of a Miranda waiver form Tran signed before his interrogation, which showed Tran had checked the box stating he wished to remain silent; (2) a copy of the police report in which the officer stated that Tran initially signed the Miranda form that he wished to remain silent, but later changed his mind after the officer explained Tran could be charged with attempted murder; and (3) a transcript of the recorded interview.
The State filed a response in November 2020, arguing that Tran had not shown he was entitled to relief on his ineffective assistance of appellate counsel claim made in his K.S.A. 60-1507 motion. In this case, the State observed that the issues of Robinson's alleged ineffectiveness and the underlying suppression issue had been litigated in the previous appeal, so the only issue presently before the trial court was Schmidt's alleged ineffectiveness. On that point, the State contended that Tran again made only conclusory statements about Schmidt's alleged ineffectiveness and made no showing to establish prejudice.
On December 9, 2020, the trial court entered a written journal entry summarily denying Tran's motion for reconsideration. The court ruled that after reviewing the Miranda form and the attached transcript of Tran's interview, Tran had not convinced the court that Schmidt was ineffective for failing to include either exhibit in the record on appeal or that the outcome would have been different if the documents had been included.
Tran timely appeals.
Did the trial court err when it summarily denied Tran's K.S.A. 60-1507 motion?
Tran argues the trial court...
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