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Swenson v. State

July 27, 2007; see modified opinion filed October 15, 2007

NATHANIEL L. SWENSON, APPELLANT,
v.
STATE OF KANSAS, APPELLEE.



Review of the judgment of the Court of Appeals in 35 Kan. App. 2d 709, 135 P.3d 157 (2006). Appeal from Sedgwick district court; PAUL W. CLARK, judge. The judgment of the Court of Appeals affirming in part and reversing in part, and remanding to the district court is affirmed in part and reversed in part. The judgment of the district court is affirmed in part, reversed in part, and remanded for further proceedings.

SYLLABUS BY THE COURT

1. Appellate counsel's filing of a petition for review 31 days after a Court of Appeals' mandate falls below an objective standard of reasonableness and effectively denies a defendant a statutory right to counsel. As a remedy, appellate counsel is allowed to file a petition for review out of time.

2. A movant has the burden to prove his or her K.S.A. 60-1507 motion warrants an evidentiary hearing; the movant must make more than conclusory contentions and must state an evidentiary basis in support of the claims, or an evidentiary basis must appear in the record. In stating the evidentiary basis, the K.S.A. 60-1507 motion must set forth a factual background, names of witnesses, or other sources of evidence to demonstrate that the movant is entitled to relief.

3. It is error to deny a K.S.A. 60-1507 motion without a hearing where the motion alleges facts that do not appear in the original record but that, if true, would entitle the movant to relief, and the motion identifies readily available witnesses whose testimony would support such facts or other sources of evidence.

4. Where a motion filed pursuant to K.S.A. 60-1507 claims trial counsel was ineffective because counsel did not file a motion to dismiss or to vacate the judgment alleging a defective complaint, the common-sense rule announced in State v. Hall, 246 Kan. 728, 793 P.2d 737 (1990), overruled on other grounds by Ferguson v. State, 276 Kan. 428, 444-45, 78 P.3d 40 (2003), is used to analyze the prejudice prong in the test for ineffective assistance of trial counsel. In order to succeed on his or her ineffective assistance of counsel claim, the defendant must show that counsel's allegedly deficient conduct either: (1) prejudiced the defendant's preparation of a defense; (2) impaired the defendant's ability to plead the conviction in any subsequent prosecution; or (3) limited the defendant's substantial rights to a fair trial.

5. An attempt crime has three essential elements: (1) the intent to commit the crime, (2) an overt act toward the perpetration of the crime, and (3) a failure to consummate the crime.

6. The crime of attempted felony murder is not recognized in Kansas. As a result, a charge of attempted first-degree murder can fall only under K.S.A. 21-3401(a), premeditated first-degree murder.

7. A complaint charging attempted first-degree murder is sufficient if it includes the three elements of attempt even if it does not include the elements of first-degree premeditated murder. Consequently, defense counsel is not ineffective for failing to file a motion to arrest judgment based upon the failure of the complaint to include the element of premeditation.

The opinion of the court was delivered by: Luckert, J.

This is an appeal from the denial of Nathaniel L. Swenson's pro se K.S.A. 60-1507 motion. The district court denied the motion in its entirety. On appeal, the Court of Appeals affirmed in part, reversed in part, and remanded with directions. Swenson v. State, 35 Kan. App. 2d 709, 135 P.3d 157 (2006). Swenson sought and this court granted review on only three of the many issues on which the Court of Appeals affirmed the district court. Each of the issues on which review was granted raises a claim of ineffective assistance of counsel. Specifically, Swenson argues the Court of Appeals erred in holding that defendant was not denied effective assistance of counsel when counsel (1) filed a petition for review 1 day after the deadline for such a filing; (2) did not call Swenson's mother as a witness at trial; and (3) did not file a motion to arrest judgment because of a defective complaint.

We reverse the Court of Appeals and the district court on the first two issues, determining that the filing of a petition for review 1 day out-of-time is ineffective assistance of counsel on appeal and that the Court of Appeals incorrectly concluded that Swenson was required to submit an affidavit from his mother in order to sustain his burden of establishing that there is a substantial question requiring an evidentiary hearing on a K.S.A. 60-1507 motion. We affirm the Court of Appeals' and district court's conclusions that trial counsel was not ineffective for failing to file a motion to arrest judgment, because we conclude on the record that the complaint was not defective.

A brief recitation of the procedural background relating to the three issues is helpful. In November 1999, Swenson was charged with aggravated battery after Freddie Hooks, Jr., was shot multiple times and sustained life-threatening injuries during a September 1999 incident. The State later filed an amended complaint and information charging Swenson with attempted first-degree murder. The amended complaint did not include an aggravated battery charge and did not specifically include the element of premeditation in the attempted first-degree murder charge.

In 2000, a jury convicted Swenson of attempted first-degree murder, and he was sentenced to 203 months' imprisonment. Swenson's conviction was affirmed by the Court of Appeals in State v. Swenson, No. 86,397, unpublished opinion filed May 10, 2002. Swenson's appellate counsel failed to timely file a petition for review with this court. In a letter written to Swenson, Swenson's appellate counsel stated that although he had mailed the petition for review within the 30-day filing period, it was not received for filing until 1 day after the filing period had expired. A motion to file a petition for review out of time was denied.

In March 2003, Swenson filed a pro se motion pursuant to K.S.A. 60-1507. Swenson's motion alleged numerous issues, several relating to trial error and several regarding ineffective assistance of trial and appellate counsel. The district court denied the K.S.A. 60-1507 motion after appointing counsel and holding a nonevidentiary hearing.

Swenson appealed to the Court of Appeals in Swenson v. State, 35 Kan. App. 2d 709, 135 P.3d 157 (2006), raising the same issues. The Court of Appeals panel affirmed the district court's denial of Swenson's K.S.A. 60-1507 motion and its decision to refrain from holding an evidentiary hearing on all but one issue. The one issue on which the Court of Appeals reversed the district court related to trial counsel's failure to call Robert Turner as a witness at trial. Swenson had raised the same issue relating to two additional witnesses: Swenson's mother and Swenson himself. The district court ruled that the decision not to call each of these witnesses--Turner, Swenson's mother, and Swenson--was a matter of trial strategy. The Court of Appeals affirmed the district court's ruling as to Swenson and his mother but reversed the ruling regarding Turner, finding that there was no indication in the record that counsel had attempted to interview Turner and concluding "'defense counsel cannot make a strategic decision against pursuing a line of investigation when he or she has not yet obtained facts upon which that decision could be made.' [Citation omitted.]" Swenson, 35 Kan. App. 2d at 719.

In affirming the district court on the three issues before us, the Court of Appeals panel held that Swenson's right to effective assistance of counsel extended throughout the proceedings, including the claimed deficiencies at trial and when seeking review of the Court of Appeals' decision. Regarding the first issue, while Swenson could establish his counsel failed to file a timely petition for review, the panel concluded that he failed to meet the prejudice prong of the test for ineffective assistance of appellate counsel because he had not shown his petition would be granted. Second, the panel held that by failing to present an affidavit of his mother, Swenson failed to establish a substantial issue of fact or law regarding whether trial counsel was ineffective for not investigating and utilizing evidence from his mother. Finally, the panel concluded there was nothing in the record to indicate that the defense was ...


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