Opinion
No. 108,846.
2013-11-8
Raymond HUBBARD, Appellant, v. STATE of Kansas, Appellee.
Appeal from Sedgwick District Court; Anthony J. Powell, Judge. Michael P. Whalen and Krystle M.S. Dalke, of Law Office of Michael P. Whalen, of Wichita, for appellant. Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Anthony J. Powell, Judge.
Michael P. Whalen and Krystle M.S. Dalke, of Law Office of Michael P. Whalen, of Wichita, for appellant. Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before GREEN, P.J., PIERRQN, J., and KNUDSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Four years after his conviction for aggravated robbery, Raymond Hubbard filed a motion pursuant to K.S.A. 60–1507 alleging ineffective assistance of trial counsel. The district court appointed counsel to represent Hubbard and conducted a preliminary hearing. After the preliminary hearing, the district court dismissed Hubbard's motion as untimely pursuant to K.S.A. 60–1507(f). We affirm the district court's decision.
The Underlying Circumstances
In 2008, Hubbard pled guilty to a charge of aggravated robbery. In entering his plea, Hubbard stated to the district court that he had completed 11 years of school and acknowledged there was no reason why his mental competence should be questioned. After a successful motion for downward departure, Hubbard was sentenced to 233 months in prison and given probation. On December 15, 2010, probation was revoked and the underlying sentence imposed. The K.S.A. 60–1507 proceedings
On March 7, 2012, Hubbard filed a pro se K.S.A. 60–1507 motion and memorandum in support, both of which were written by another prisoner. Hubbard moved to “take back an involuntary guilty plea pursuant to [K.S.A.] 22–3210 etc, based on manifest injustice, mental retardation, ineffective assistance counsel, etc.” Hubbard argued that because he had been diagnosed as “mentally retarded,” the court should not have accepted his guilty plea. Because his trial counsel failed to investigate his competency, he argued there was a reasonable probability that he was incompetent to plead guilty.
Specifically, Hubbard claimed five points of error to support his claim of ineffective assistance of trial counsel, Alice Osburn. First, he claimed Osburn failed to read police reports which said Hubbard was not at the scene of the robbery, none of the victims identified him as being a suspect, no evidence pointed to Hubbard being a suspect, and neither of the other suspects identified Hubbard as a suspect. Second, Osburn purportedly did not allow or advise Hubbard to attend his preliminary hearing. Third, Osburn failed to investigate to determine if Hubbard was mentally competent before entering into a plea agreement. Fourth, Hubbard claimed Osburn threatened him with a life sentence if he did not agree to the plea bargain. Finally, Hubbard claimed Osburn erred in failing to appeal the sentence resulting from his guilty plea. Based on these reasons, Hubbard claimed Osburn provided ineffective assistance of counsel and asked the district court to set aside his guilty plea.
To support his claim of mental retardation, Hubbard submitted his Social Security benefits statements, which labeled him as having a primary diagnosis of antisocial personality disorder and a secondary diagnosis of mental retardation. The disability was stated to have begun on November 10, 2009.
At a nonevidentiary hearing on Hubbard's motion, counsel for Hubbard admitted the K.S.A. 60–1507 motion was filed out of time. However, counsel stated Hubbard's main desire was to set aside his plea because it was not made knowingly and intelligently due to his mental handicap.
The district court noted that despite Hubbard's claim of mental retardation, there was nothing in the record indicating that he was incompetent to enter a plea. The court also noted that the Social Security benefits statements, the only evidence presented by Hubbard, referred to diagnoses made a full year after he entered his plea. The district court determined Hubbard had entered his plea knowingly and voluntarily. The district court also rejected Hubbard's K.S.A. 60–1507 motion because it was not filed in a timely manner and there had been no showing of manifest injustice to support an extension. Hubbard has filed a timely appeal. Hubbard's claims on appeal
Hubbard raises two issues on appeal. He claims the district court erred in dismissing his motion and failed to make specific findings of fact and conclusions of law on all of his claims, in violation of Supreme Court Rule 183(j) (2012 Kan. Ct. R. Annot. 274).
Discussion and Conclusion
When the district court denies relief under K.S.A. 60–1507 based solely upon counsel's legal argument at a nonevidentiary hearing and the court's review of the files and records of the case, an appellate court is in as good a position as the district court to consider the merits. Thus, appellate review is de novo. Barr v. State, 287 Kan. 190, 196, 196 P.3d 357 (2008).
To avoid the summary denial of a motion brought under K.S.A. 60–1507, a movant bears the burden of establishing entitlement to an evidentiary hearing. To meet this burden, a movant's contentions must be more than conclusory, and either the movant must set forth an evidentiary basis to support those contentions or the basis must be evident from the record. Edgar v. State, 294 Kan. 828, 836, 283 P.3d 152 (2012). See, e.g., Holt v. State, 290 Kan. 491, 495, 232 P.3d 848 (2010); State v. Holmes, 278 Kan. 603, 629, 102 P.3d 406 (2004).
In regards to the claim of ineffective assistance of counsel, Hubbard bears the burden of presenting evidence that would warrant an evidentiary hearing. See Edgar, 294 Kan. at 836. Here, Hubbard presents no evidence that counsel was ineffective. Hubbard simply makes the conclusory claim that counsel should have investigated Hubbard's mental illness and retardation. Hubbard also fails to demonstrate that he was actually incompetent at the time he made his guilty plea. He argues: “[L]ogically speaking, barring some type of blunt trauma, a person does not develop mental retardation later on in life.” This claim is unsupported by caselaw, expert testimony, or evidence from the record. Hubbard himself was unaware of this diagnosis until over a year after the plea agreement was made. Hubbard provides no evidence to suggest counsel should have investigated Hubbard's mental state when the plea was entered. We conclude his claim of error is without merit.
On appeal, Hubbard argues that his K.S.A. 60–1507 motion alleging ineffective assistance of counsel should be construed as a motion to withdraw plea pursuant to K.S.A. 22–3210. We acknowledge that in the district court Hubbard's memorandum in support of his K.S.A. 60–1507 motion made reference to K.S.A. 22–3210. However, Hubbard did not proceed with any K.S.A. 22–3210 argument before the district court; he argued only his K.S.A. 60–1507 motion alleging ineffective assistance of counsel. Hubbard's failure to properly raise the issue before the district supports a conclusion that he cannot do so on appeal. See Wood v. Groh, 269 Kan. 420, 433–34, 7 P.3d 1163 (2000). We acknowledge there are exceptions to this rule as discussed in State v. Hawkins, 285 Kan. 842, Syl. ¶ 2, 176 P.3d 174 (2008). However, Hubbard has not briefed any of the exceptions noted in Hawkins or given any coherent explanation as to why the issue should be considered for the first time on appeal. We conclude Hubbard has failed to comply with Supreme Court Rule 6.02(a)(5) (2012 Kan. Ct. R. Annot. 38); see also State v. Breeden, 297 Kan. 567, Syl. ¶ 2, 304 P.3d 660 (2013) (declining to consider issue for this reason).
Hubbard also claims the district court erred in failing to make rulings on each of his claims pursuant to Supreme Court Rule 183(j). Supreme Court Rule 183(j) requires a court to make findings of fact and conclusions of law on all issues presented. Here, the issue presented to the district court was an untimely K.S.A. 60–1507 motion. For an untimely K.S.A. 60–1507 motion to be heard, a movant must demonstrate manifest injustice, which has been interpreted to mean “ ‘obviously unfair’ “ or “ ‘shocking to the conscience.’ “ See K.S.A. 60–1507(f)(1)–(2); Ludlow v. State, 37 Kan.App.2d 676, 686, 157 P.3d 631 (2007).
The district court clearly determined there was nothing in the record to demonstrate Hubbard was not competent to enter a plea. The district court also noted Hubbard's disability determination by the Social Security Administration was not provided until a year after his plea. Consequently, the district court held Hubbard failed to demonstrate manifest injustice. Because Hubbard failed to meet the threshold of manifest injustice, the district court was not required to review the merits of Hubbard's individual claims in his untimely K.S.A. 60–1507 motion. See K.S.A. 60–1507(f). We conclude the district court's findings of fact and conclusions of law were sufficient.
Affirmed.