Opinion
111,907.
07-17-2015
Jacob WALDRUP, Appellant, v. STATE of Kansas, Appellee.
Adam M. Hall, of Collister & Kampschroeder, of Lawrence, for appellant. Patrick J. Hurley, assistant district attorney, Charles E. Branson, district attorney, and Derek Schmidt, attorney general, for appellee.
Adam M. Hall, of Collister & Kampschroeder, of Lawrence, for appellant.
Patrick J. Hurley, assistant district attorney, Charles E. Branson, district attorney, and Derek Schmidt, attorney general, for appellee.
Before LEBEN, P.J., SCHROEDER and GARDNER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Jacob Waldrup appeals the summary denial of his K.S.A. 60–1507 motion. Upon our de novo review of Waldrup's K.S.A. 60–1507 motion, we find the district court did not err in summarily dismissing his motion, and we affirm.
Facts
A jury convicted Jacob Waldrup of two counts of the sale of cocaine, third offense, and the district court sentenced him to a controlling prison term of 162 months.
The facts underlying Waldrup's convictions are set forth in State v. Waldrup, 46 Kan.App.2d 656, 659–61, 263 P.3d 867 (2011), rev. denied 296 Kan. 1135 (2013), and we deem it unnecessary to repeat them in this opinion.
On direct appeal, Waldrup alleged the following:
• The sale of cocaine is an alternative means crime based on the definition of sale given to the jury. The State failed to present sufficient evidence of each of the alternative means of committing the sale of cocaine.
• The State violated his right to a speedy trial under the Agreement on Detainers, K.S.A. 22–4401 et seq.
• The State violated his constitutional right to a speedy trial.
• The district court erred in refusing to provide the jury with a cautionary instruction on the testimony of confidential informants.
• The district court improperly limited his cross-examination of a confidential informant.
• The district court erred in failing to give a unanimity instruction in a multiple acts case.
• The cumulative effect of the trial errors deprived him of a fair trial.
Finding no error, a panel of this court affirmed Waldrup's convictions. 46 Kan.App.2d at 659, 669, 674–76, 682–83, 685–87, 263 P.3d 867. Waldrup subsequently filed a petition for review, which our Supreme Court denied on February 20, 2013.
Almost 1 year later, on February 14, 2014, Waldrup filed a pro se K.S.A. 60–1507 motion challenging his convictions on eight grounds:
• The district court deprived him of his constitutional right to selfrepresentation because he “chose to represent himself after [his] [a]ttorney [,] Angela Keck[,] was forced to withdraw due to [a] conflict involving State [']s witness, Stephanie Jones[, but] [t]he [district judge] then admonished [him] and told him that she would appoint him counsel.”
• The State improperly placed him in double jeopardy, as evidenced by the fact that the “jury had been selected and enpaneled [sic ] when the conflict between State[']s witness (Jones) and ... Keck [was discovered].... It was [Waldrup's] understanding and the perception casted by the [district] [c]ourt that options would be explored as to what would happen.”
• The prosecutor committed reversible misconduct by “deceiving the defense” as to Jones' contact information, withholding potentially exculpatory evidence, and enticing the district court to improperly treat Jones' “change of testimony ... as work product.”
• His trial attorney, Michael R. Clarke, violated his constitutional right to effective assistance of counsel by failing to challenge “the photo officers used to obtain a witness I.D.,” which the State failed to produce during discovery, and refusing, despite his request, to play the entire recording of the drug buys to the jury.
• The State failed to maintain a proper chain of custody for the cocaine evidence and the “evidence was never bagged or tagged with its seizure information.”
• Waldrup challenged the veracity of Cynthia Roubison's testimony regarding drug purchases she supposedly made from him prior to the sting because jail records proved he was detained on unrelated charges during the timeframe Roubison claimed she made these purchases.
• Roubison should have “never been allowed to be a witness ... or an informant” because “she has a real fear of being jailed” and will do whatever it takes to avoid incarceration.
• The State violated his speedy trial rights by intentionally delaying its issuance of a warrant.
On March 26, 2014, the district court summarily denied Waldrup's K.S.A. 60–1507 motion, finding the motion, files, and records of the case conclusively showed Waldrup was not entitled to relief. In its 16–page memorandum decision, the district court thoroughly analyzed each of the issues Waldrup raised in his motion. The district court found:
• Waldrup waived his right to self-representation because he did not clearly and unequivocally express a desire to proceed pro se.
• The principle of double jeopardy did not prohibit Waldrup's second prosecution because due to a legal defect in his former trial, i.e., Keck's conflict of interest with one of the State's witnesses, the district judge exercised sound discretion in determining justice required a mistrial and Waldrup did not object to the jury's discharge.
• Waldrup's allegations of prosecutorial misconduct were conclusory and procedurally barred because the misconduct did not affect a constitutional right and Waldrup had failed to allege exceptional circumstances excusing his failure to raise this issue on direct appeal.
• Waldrup's ineffective assistance of counsel allegations were meritless because Waldrup neglected to establish that his counsel's performance prejudiced him.
• Waldrup's challenge to the cocaine's chain of custody, Roubison's supposedly inaccurate claim that she purchased cocaine from Waldrup prior to the sting, and Roubison's alleged bias went to the weight of the evidence rather than to its admissibility. Therefore, the jury had the ability to make a determination as to Roubison's credibility and “weigh the fact that the cocaine was improperly stored and inventoried when considering all the evidence presented during the trial.”
• The State did not deprive Waldrup of his speedy trial rights because this issue was addressed on direct appeal and, “[i]n Kansas, a warrant is stayed while the defendant is incarcerated in another state, as Kansas does not have the authority to serve a warrant outside of its borders.”
Analysis
Did the district court err when it summarily dismissed Waldrup's K.S.A. 60–1507 motion?
Although Waldrup acknowledges that the district court's memorandum decision was “thoughtful, considering alterative scenarios under the legal theories [he] advanced,” he contends that the district court erred when it dismissed his K.S.A. 60–1507 motion without holding an evidentiary hearing because the court's analysis was “overly narrow.” According to Waldrup, “[i]nstead of limiting itself to the particular legal theories advanced by [him], [the district court] was bound to determine, broadly, whether ... the well-pleaded facts could entitle [him] to relief under any legal theory if given a complete development at an evidentiary hearing. [Citation omitted.]” Waldrup insists that the district court's “narrow construction” affected his substantial rights because “at least one avenue of relief—i.e. a valid legal claim—was ignored or overlooked by the district court.” Specifically, Waldrup claims that the facts he recited in support of his various allegations of error, when read in context with the record of his underlying criminal case, support the notion that his second trial subverted the protections afforded him by the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution because the prosecutor intentionally goaded him into moving for a mistrial.
A district court has three options when handling a K.S.A. 60–1507 motion:
“(1) The court may determine that the motion, files, and case records conclusively show the prisoner is entitled to no relief and deny the motion summarily; (2) the court may determine from the motion, files, and records that a potentially substantial issue exists, in which case a preliminary hearing may be held. If the court then determines there is no substantial issue, the court may deny the motion; or (3) the court may determine from the motion, files, records, or preliminary hearing that a substantial issue is presented requiring a full hearing.” Fischer v. State, 296 Kan. 808, 822–23, 295 P.3d 560 (2013).
When, as is true in this case, the district court summarily denies a K.S.A. 60–1507 motion, an appellate court reviews that decision using a de novo standard of review. See Edgar v. State, 294 Kan. 828, 836, 283 P.3d 152 (2012).
As the State asserts, Waldrup's claim that the district court had an obligation to find issues in his pro se K.S.A. 60–1507 motion he neglected to raise is meritless. District courts are required to hold an evidentiary hearing on a K.S.A. 60–1507 motion and make findings of fact and conclusions of law with respect thereto, unless the motion, files, and records of the case conclusively show the movant is not entitled to relief. K.S.A. 60–1507(b) ; Supreme Court Rule 183(f) and (j) (2014 Kan. Ct. R. Annot. 285). While pro se pleadings are liberally construed to give effect to the pleading's content rather than the labels and forms used by the litigant to articulate his or her arguments, a motion brought under K.S.A. 60–1507 calls for more specificity than perhaps an ordinary motion. See State v. Kelly, 291 Kan. 563, 564–65, 244 P.3d 639 (2010) ; Pabst v. State, 287 Kan. 1, 25, 192 P.3d 630 (2008) ; Cosby v. State, No. 109,880, 2014 WL 4435848, at *8 (Kan.App.2014) (unpublished opinion), petition for rev. filed October 3, 2014.
To avoid the summary denial of a K.S.A. 60–1507 motion, it is the movant's burden to allege facts that prove that his or her motion warrants an evidentiary hearing. Trotter v. State, 288 Kan. 112, 131–32, 200 P.3d 1236 (2009). 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, 294 Kan. at 836, 283 P.3d 152. In stating the evidentiary basis, however, the K.S.A. 60–1507 motion must “merely ‘set forth a factual background, names of witnesses or other sources of evidence to demonstrate that petitioner is entitled to relief.’ [Citation omitted.]” Swenson v. State, 284 Kan. 931, 938, 169 P.3d 298 (2007).
Indeed, Kansas Supreme Court Rule 183(e) (2014 Kan. Ct. R. Annot. 286) provides that a “motion to vacate, set aside, or correct a sentence is sufficient if it is in substantial compliance with the judicial council form.” Further, “when a movant submits the form, he or she ‘is presumed to have listed all of the grounds upon which he is relying.’ [Citation omitted.]” Pabst, 287 Kan. at 25, 192 P.3d 630.
Consequently, as the State points out, a panel of this court recently rejected an argument similar to that raised by Waldrup. See Cosby, 2014 WL 4435848, at *8. In Cosby, the district court summarily denied the defendant's K.S.A. 60–1507 motion, wherein the defendant alleged that the trial court violated his due process rights by refusing to grant his request for new trial counsel. On appeal, the defendant contended, among other arguments, that the district court erred because it interpreted his motion too narrowly, i.e., the court “ ‘adopted a result-affirming bias' rather than broadly construing the [request for substitute counsel] as one of ineffective assistance of counsel.” 2014 WL 4435848, at *5, 8. The panel rejected this argument:
“But as noted in Pabst, a K.S.A. 60–1507 motion calls for more specificity than perhaps an ordinary motion. [Citation omitted .] Nothing in Cosby's original motion suggests that he was raising [trial counsel's] effectiveness as an issue. In fact, his exhibits and annotations point out his attempts to acquire new counsel and his reasoning for the requests, not any ineffectiveness on [trial counsel's] part. Moreover, Cosby specifically asserts, contrary to any ineffectiveness claim, that he is not claiming his trial counsel was ineffective for failing to obtain an acquittal or new trial. Therefore, he fails to assert any prejudice as a result of counsel's actions. It is obvious from the content of the motion that his single claim concerns only the district court's failure to appoint substitute counsel when requested.” 2014 WL 4435848, at *8.
Similar to Cosby, while Waldrup's motion does discuss his belief that his second trial violated the constitutional guarantees against double jeopardy, it does not do so in the context of intentional prosecutorial misconduct. The Double Jeopardy Clause and Section 10 of the Kansas Constitution Bill of Rights, which is equivalent to the United States Constitution, protect criminal defendants from multiple prosecutions for the same offense. State v. Wittsell, 275 Kan. 442, 446, 66 P.3d 831 (2003). Generally, however, when the defendant consents or fails to object to a mistrial, double jeopardy does not bar retrial unless intentional prosecutorial misconduct precipitated the mistrial. State v. Graham, 277 Kan. 121, 133, 83 P.3d 143 (2004). In other words, “[w]hen a ... defendant's request for mistrial becomes inevitable because the prosecution has intentionally subverted the defendant's right to a fair trial, a second prosecution for the same offense is barred by double jeopardy.” State v. Morton, 283 Kan. 464, Syl. ¶ 2, 153 P.3d 532 (2007). However, this exception, which stems from Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982), only applies in limited circumstances. Morton, 283 Kan. at 468–71, 153 P.3d 532. As our Supreme Court explained in Morton: “Kennedy requires something more than misconduct, even intentional and reversible misconduct, in order to bar retrial. It requires that the prosecutor intended to provoke a mistrial, to goad a defendant into sacrificing his or her choice to live with the outcome from the first jury.”283 Kan. at 471, 153 P.3d 532.
In his K.S.A. 60–1507, Waldrup did not contend that the prosecutor goaded him into requesting or consenting to a mistrial. Instead, Waldrup's motion challenged the mistrial on a ground contrary to the position he now takes on appeal, i.e., he alleged that the district court declared the mistrial without his consent:
“The jury had been selected and enpaneled [sic] when the conflict between State[']s witness (Jones) and Attorney Angela Keck. The Court never formally advised or stated the word declaring a mistrial. It was the defendants understanding and the perception casted by the Court that options would be explored as to what would happen.” (Emphasis added.)
Therefore, as in Cosby, it is obvious from the content of Waldrup's motion that he did not challenge his retrial under Kennedy. See Cosby, 2014 WL 4435848, at *8. Finally, we note Waldrup did not object to the district court's determination a mistrial was required when his attorney's conflict became apparent. See Graham, 277 Kan. at 133, 83 P.3d 143. “ ‘Retrial is constitutionally permissible where the governmental conduct was not intended to provoke the defendant into seeking a mistrial.’ [Citation omitted.]” Graham, 277 Kan. at 133, 83 P.3d 143.
Conclusion
The district court did not err when it summarily denied Waldrup's motion. The district court had no obligation to comb through Waldrup's motion and the underlying case record for issues Waldrup failed to enumerate in his K.S.A. 60–1507 motion. Waldrup had the burden to show his K.S.A. 60–1507 motion warranted an evidentiary hearing, and he failed. The district court did not ignore a valid claim for relief under Kennedy because Waldrup failed to show an evidentiary hearing was warranted based on egregious prosecutorial misconduct that precipitated the mistrial and his retrial.
Affirmed.