Opinion
No. 108,166.
2013-09-4
Mario Joel FLORES, Appellant, v. STATE of Kansas, Appellee.
Appeal from Butler District Court; Charles M. Hart, Judge. Samuel D. Schirer, of Kansas Appellate Defender Office, for appellant. Darrin C. Devinney, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Butler District Court; Charles M. Hart, Judge.
Samuel D. Schirer, of Kansas Appellate Defender Office, for appellant. Darrin C. Devinney, county attorney, and Derek Schmidt, attorney general, for appellee.
Before LEBEN, P.J., BRUNS, J., and HEBERT, S.J.
MEMORANDUM OPINION
PER CURIAM.
Mario Joel Flores pled guilty to rape and was placed on probation. After Flores stipulated to violating the conditions of his probation for the third time, the district court revoked his probation. But the district court did modify Flores' sentence downward at the request of his counsel. About 8 months later, Flores filed a K.S.A. 60–1507 motion alleging ineffective assistance of counsel during his probation revocation hearing. The district court denied his motion after a preliminary hearing. On appeal, Flores fails to specify how his attorney's performance prejudiced him. Accordingly, we conclude that a full evidentiary hearing was unnecessary, and we affirm the district court's denial of Flores' K.S.A. 60–1507 motion. We do, however, remand the case to the district court to ensure Flores receives 108 days of jail credit on his sentence.
Facts
In September 2005, Flores pleaded guilty to rape. The court imposed an underlying prison sentence of 155 months and placed him on probation. He did not appeal. In October 2006, Flores was found in violation of the conditions of his probation by drinking alcohol at a bar. But the court reinstated his probation. In a hearing on September 17, 2009, Flores again admitted to violating the conditions of his probation by violating his curfew and consuming alcohol. The court reinstated his probation and electronic monitoring, ordering him to pay the associated fee. In a later hearing, on October 2, 2009, Flores had yet to pay the fee for his electronic monitoring and he had again violated his curfew. The court advised Flores that he needed to comply with every condition of his probation and to prioritize paying off his fees.
About a month later, on October 30, 2009, the court held another revocation hearing. Flores had paid down the fees for his electronic monitoring, but he had once again violated his curfew. The court reminded Flores that this was the second time he was before the court for a revocation hearing and that he had a 155–month sentence hanging over his head. Afterwards, the court reinstated Flores' probation but extended it for 1 year, to ultimately terminate on March 15, 2011. The court told Flores that if he was perfectly compliant with the conditions of probation and the electronic monitoring through January 1, 2010, the court would consider modifying his termination date back to March 15, 2010. Prior to recessing, the judge warned Flores:
“You've got about four months here that I'm going to strictly review what you're doing. If it comes up to about the first part of March and you're totally complian[t] with your probation and you're not dingin' around on these violations here and there, then I think you would have an opportunity to have this matter resolved and termination at that time, but it's up to you. If you don't do that and you're not in compliance and you're back here on something else and you don't get matters paid and you don't prioritize your life to be in compliance with probation, you've got this long, long prison sentence hanging over your head. So I'm not going to plead with you any further. I mean, that's it. We're down to it. We're down to 13 years in prison after going through what you've gone through for over three years on probation. Now's the time to buckle down and get this thing done.”
Flores again came before the court in a revocation proceeding on November 19, 2010. He stipulated to violating his probation by driving with a suspended license. As well, he had multiple violations of his electronic monitoring. The State recommended revoking his probation. And community corrections, who had been supervising Flores' probation, agreed. Flores' counsel requested that the court reinstate his probation and let him finish because his violations were relatively minor. In the alternative, counsel requested that the court modify Flores' underlying sentence downward. The district court revoked Flores' probation, but it did grant his request to modify his sentence downward. Flores was ordered to serve 120 months, which was a 35–month downward departure from his original sentence. Flores pleaded with the court to reinstate his probation, but his plea was denied. Flores did not appeal the revocation of his probation.
On July 29, 2011, Flores filed a K.S.A. 60–1507 motion alleging that his attorney during his probation revocation was ineffective. The district court conducted a preliminary hearing for Flores' motion on March 5, 2012. After hearing Flores' argument, the district court found that Flores' attorney was not ineffective, and it denied his motion. Flores timely appealed the denial of his motion.
Analysis
Issues Presented
The first issue presented is whether the district court erred in denying Flores' K.S.A. 60–1507 motion after a preliminary hearing. The second issue presented is whether Flores should have received an additional 108 days of jail credit. Summary Denial of K.S.A. 60–1507 Motion
A district court has three options when faced with a K.S.A. 60–1507 motion. First, it can summarily deny the motion without a hearing if the record, motions, and files conclusively show the movant is not entitled to relief. Second, it can conduct a preliminary hearing to determine if the movant raised substantial issues. Third, it can conduct a full evidentiary hearing if the issues raised by the movant are substantial. Bellamy v. State, 285 Kan. 346, Syl. ¶ 1, 172 P.3d 10 (2007). Here, the district court conducted a preliminary hearing and thereafter denied Flores' motion.
When the district court denies a movant's K.S.A. 60–1507 motion after holding a preliminary hearing, this court reviews the decision under a findings of fact and conclusions of law standard. As such, this court reviews the district court's factual findings to determine if substantial competent evidence supports them. Bellamy, 285 Kan. 346, Syl. ¶ 4, 172 P.3d 10. Evidence is substantial and competent when it is legal, relevant, and sufficient to support a conclusion in the mind of a reasonable person. See State v. May, 293 Kan. 858, 862, 269 P.3d 1260 (2012). This court then conducts an unlimited review as to whether those factual findings supported the district court's conclusions of law. Bellamy, 285 Kan. 346, Syl. ¶ 4, 172 P.3d 10; see Wilkins v. State, 286 Kan. 971, Syl. ¶ 3, 190 P.3d 957 (2008).
The Due Process Clause of the Fourteenth Amendment to the United States Constitution and K.S.A. 22–3716(b) guarantee a defendant the right to effective counsel in a probation revocation hearing. See State v. Galaviz, 296 Kan. 168, Syl. ¶ 1, 291 P.3d 62 (2012). And although the right is guaranteed by due process, courts can apply the analysis under the Sixth Amendment to determine counsel's effectiveness in the context of a probation revocation. See Galaviz, 296 Kan. at 174–78, 291 P.3d 62.
So Flores must establish two factors to support his claim of ineffective assistance. First, he must show that counsel's performance was so deficient that the revocation proceeding “cannot be relied on as having produced a just result.” Second, he must show that counsel's performance prejudiced him, i.e., there was “a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different.” On review, we presume counsel's performance was effective and give a high level of deference to counsel's decisions. Wilkins, 286 Kan. 971, Syl. ¶ 6, 190 P.3d 957.
Flores bears the burden to “allege facts sufficient to warrant a hearing on the 60–1507 motion.” See LaPointe v. State, 42 Kan.App.2d 522, 535, 214 P.3d 684 (2009), rev. denied 290 Kan. 1094 (2010). In support of his claim, Flores alleged counsel was ineffective for showing up 45 minutes late, failing to adequately review his file, and failing to adequately consult with him. And Flores claims that the record itself reflects counsel's ineffective assistance or, in the alternative, that he needs a full evidentiary hearing to establish his claim.
“[S]trategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.” Holmes v. State, 292 Kan. 271, Syl. ¶ 6, 252 P.3d 573 (2011). Flores' allegations, if true, may be sufficient to show deficient performance—the failure to become even adequately familiar with the facts of his case would not be the result of strategic and reasonable professional judgment.
Nevertheless, to be entitled to a full evidentiary hearing, Flores must also make some argument that the result would have been different had counsel performed effectively, in other words, he must allege sufficient prejudice. See Barr v. State, 287 Kan. 190, 197–99, 196 P.3d 357 (2008); Wilkins, 286 Kan. 971, Syl. ¶ 6, 190 P.3d 957;Williams v. State, No 104,054, 2011 WL 1877818, at *2 (Kan.App.2011) (unpublished opinion), rev. denied 293 Kan. –––– (October 24, 2011).
In this case, Flores said he had adequate time to speak with counsel and stipulated to violating the conditions of his probation. Counsel argued that Flores' violations were minor and that he was almost finished with his probation. Moreover, counsel explained that Flores' excuse for driving with a suspended license—that the warning about his suspended license went to his old address—was reasonable and that similar things had happened to counsel in the past. Counsel concluded by asking the court to reinstate Flores' probation or in the alternative to modify his underlying sentence downward. And the court did modify Flores' sentence downward. Although Flores claims he “would have received a better disposition” had counsel performed differently, it is not our place to speculate (and Flores does not specify on appeal) what else counsel could have done or said to obtain a better result.
Ultimately, “[o]nce there has been evidence of a violation of the conditions on which probation was granted, the decision to revoke probation rests in the sound discretion of the district court .” State v. Gumfory, 281 Kan. 1168, Syl. ¶ 1, 135 P.3d 1191 (2006). The same district judge presided over Flores' sentencing, every revocation hearing, and the preliminary hearing on Flores' K.S .A. 60–1507 motion. In Flores' revocation hearing, the judge noted that he had become “very well acquainted with” Flores over the course of his case. And the judge said he gave a lot of weight to community corrections' recommendation, which was to revoke Flores' probation. He also said that “the driving while suspended is just literally the straw that broke the camel's back.” Considering the judge's knowledge of the case, counsel's reminder of any specific fact would have likely had little impact on the judge's decision.
Furthermore, in the preliminary hearing on Flores' K.S.A. 60–1507 motion, the judge read through the history of violations in Flores' case. The judge again explained that “the Court was most concerned in hearing recommendation from [Flores'] Community Corrections Intensive Supervision Officer,” who recommended revocation. And the judge found that Flores' counsel was not ineffective, as evinced by his success in persuading the court to reduce Flores' underlying sentence.
Fatal to his appeal, Flores fails to argue what counsel should have said or what he should have reviewed that would have enabled him to convince the district judge to forgo his reliance on the recommendation of community corrections or otherwise change his mind. See State v. Beachy, No. 105,514, 2011 WL 5143134, at *3 (Kan.App.2011) (unpublished opinion) (suggesting there is no need for an evidentiary hearing on ineffective assistance when the merits of the claim are based on a reading of the record and an allegation that things could have been done differently). Because Flores' does not sufficiently allege prejudice and he raises no substantial issues of law or fact, the district court did not err in denying his motion without a full evidentiary hearing. Jail Credit
Flores also raised a second issue on appeal, contending that he should have received an additional 108 days of jail credit. The State concedes that Flores is entitled to 108 days of jail credit towards his sentence for time he served during his probation. The State indicated that the error will be corrected with an order nunc pro tunc. Because it is unclear from the record whether a nunc pro tunc order has been entered, we remand this matter to the district court for correction of this error.
Affirmed in part and remanded to ensure Flores receives 108 days of jail credit towards his sentence.