Opinion
No. 107,048.
2013-03-8
Jerry Lee ZABALA, Appellant, v. STATE of Kansas, Appellee.
Appeal from Pratt District Court; Robert J. Schmisseur, Judge. Nancy Ogle, of Ogle Law Office, L.L.C., of Wichita, for appellant. Gaten T. Wood, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Pratt District Court; Robert J. Schmisseur, Judge.
Nancy Ogle, of Ogle Law Office, L.L.C., of Wichita, for appellant. Gaten T. Wood, assistant county attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., McANANY, J., and KNUDSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Jerry Lee Zabala was convicted of taking aggravated indecent liberties with a child, obstructing official duty, and three counts of battery against a law enforcement officer. His convictions and sentences were affirmed on appeal. State v. Zabala, No. 97,875, 2008 WL 3367570 (Kan.App.2008) (unpublished opinion), rev. denied July 1,2009.
Zabala moved for relief pursuant to K.S.A. 60–1507. Though Zabala's motion was untimely, the district court appointed counsel to represent Zabala and considered it on the merits in order to prevent manifest injustice.
In an amended and second amended 60–1507 motion, Zabala alleged that he was not competent to stand trial and that his trial counsel was ineffective in not asking the court to order a competency examination before trial and again before sentencing.
At the preliminary hearing on Zabala's motion, which Zabala did not attend, the district court invited Zabala's counsel to submit documentation for the court to review before determining whether Zabala was entitled to a full evidentiary hearing. Zabala's counsel provided the court with various psychiatric evaluations dating back to when Zabala was 9 years old; an evaluation and classification report prepared by the Kansas Department of Corrections (KDOC) in advance of Zabala's sentencing; a medical record from the Pratt County jail where Zabala was held before his trial and sentencing; a statement from Zabala's mother; and a competency evaluation report prepared in connection with an earlier charge against Zabala and dated 9 months before Zabala's crimes in the current case. The district court found that the information contained in the documents did not justify holding an evidentiary hearing on Zabala's motion. None of these documents was included in the record on appeal. The court denied relief on Zabala's motion, and this appeal followed.
Zabala claims that the district court erred in denying his K.S.A. 60–1507 motion without first conducting a full evidentiary hearing. In making its ruling, the district court made a number of determinations, some of which were of fact and some of which can be categorized as legal conclusions.
Based upon its review of the documents provided at the preliminary hearing, the district court determined the Lamed State Hospital records were too remote in time; the KDOC reports provided no insight into Zabala's competency to stand trial; the affidavit of Zabala's mother lacked specificity; the Pratt County jail records were inconsistent with Zabala's claim of incompetency; and the competency evaluation report prepared in connection with an earlier charge and dated 9 months before Zabala's crimes in the current case was evidence that Zabala was competent to stand trial in the present case.
Zabala has failed to include these documents in the record on appeal. Zabala has the burden to include in the record an evidentiary basis that supports his claim of error. See Trotter v.. State, 288 Kan. 112, 131–32, 200 P.3d 1236 (2009). Thus, he has no basis in this appeal upon which to contend that the district court erred in its review of these records. But we still must consider the facts alleged in Zabala's motion and the legal conclusions to be drawn from the record in order to determine whether the district court should have held an evidentiary hearing on the motion.
In the amended motion Zabala's counsel filed before the preliminary hearing, Zabala alleged that his trial counsel had a reasonable suspicion that Zabala was incompetent to stand trial and that his trial counsel would testify that
“his suspicion was such to cause him to question the Petitioner's mother regarding the Petitioner's mental stability and that for whatever reason, [trial counsel] chose not to take additional steps to verify the Petitioner's competency given that Petitioner's mother had no expertise or experience to properly address [trial counsel's] concerns.”
The district court did not discuss this allegation in its ruling.
In State v. Davis, 277 Kan. 309, 85 P.3d 1164 (2004), our Supreme Court found that counsel's decision not to seek a competency evaluation just prior to trial constituted ineffective assistance of counsel despite the fact that Davis had been found competent about 6 months earlier. Davis had a long history of mental illness going back to his adolescence. In November 1999, Davis was found incompetent to stand trial and was committed to the Larned State Hospital. After treatment at Larned he was found competent to stand trial, and Davis' prosecution resumed in May 2000. But by November 2000, Davis showed signs that his mental condition had deteriorated. Nevertheless, the case proceeded to trial.
After Davis' conviction, trial counsel testified at a hearing regarding his own effectiveness pursuant to State v. Van Cleave, 239 Kan. 117, 716 P.2d 580 (1986). He testified that he had reason to doubt Davis' competency prior to trial and that Davis “ ‘should have probably had another evaluation.’ “ Davis, 277 Kan. at 319. Our Supreme Court held that it was clear that counsel was ineffective in failing to seek another competency evaluation in Davis' case, and further found a reasonable probability that but for counsel's error the disposition of the case would have been different. 277 Kan. at 323–24.
In Davis the facts regarding counsel's conduct were developed at a VanCleave evidentiary hearing on Davis' motion. But Zabala was not given the opportunity to fully present his evidence at an evidentiary hearing. The record indicates there was a concern for Zabala's mental health prior to trial. At the preliminary hearing, Zabala's counsel stated:
“It is my contention that though a competency evaluation was performed in 2005 before he stood trial in 2005 here in Pratt County, that given his hallucinations while here in custody in Pratt County and his hallucinations while in El Dorado ... Mr. Zabala experienced decline in his mental health and that his decline in mental health contributed to his inability to assist his counsel....”
The district court must hold a K.S.A. 60–1507 evidentiary hearing when the motion alleges facts that, if true, would entitle the movant to relief and when the motion identifies a readily available witness whose testimony would support such facts. Swenson v. State, 284 Kan. 931, 939, 169 P.3d 298 (2007). Here, Zabala alleged facts in his motion which, if true, would entitle him to relief. He alleged that he was not competent to stand trial at the time of his trial and at sentencing and that his trial counsel would testify that he suspected that Zabala was not competent but took no significant action on that concern. The district court should have ordered an evidentiary hearing on Zabala's claim of ineffective assistance of counsel.
Reversed and remanded.