Review of the judgment of the Court of Appeals in an unpublished opinion filed June 2, 2006. Appeal from Johnson district court; STEPHEN R. TATUM, judge. Judgment of the Court of Appeals reversing the district court is affirmed. Judgment of the district court is reversed and remanded with directions.
1. A defendant who has been convicted of a felony and has appealed directly from that conviction has a statutory right to effective assistance of counsel when filing a petition for review in the direct appeal.
2. When a claim is made that counsel was ineffective for failing to file a petition for review following a negative outcome in a direct appeal from a felony conviction and sentence, the standards or test to be applied are: (1) If a defendant has requested that a petition for review be filed and the petition was not filed, the appellate attorney provided ineffective assistance; (2) a defendant who explicitly tells his or her attorney not to file a petition for review cannot later complain that, by following instructions, counsel performed deficiently; (3) in other situations, such as where counsel has not consulted with a defendant or a defendant's directions are unclear, the defendant must show (a) counsel's representation fell below an objective standard of reasonableness, considering all the circumstances; and (b) the defendant would have directed the filing of the petition for review. A defendant need not show that a different result would have been achieved but for counsel's performance.
3. If the defendant in this case can establish ineffective assistance of counsel in the failure to file a petition for review in his direct appeal, the appropriate remedy is to allow the filing of a petition for review out of time.
The opinion of the court was delivered by: Luckert, J.
This case raises two principal questions. First, does a criminal defendant whose felony conviction and sentence have been affirmed by the Court of Appeals have a right to effective assistance of appellate counsel when filing a petition requesting this court's discretionary review of the Court of Appeals' decision? Second, if a defendant does have such a right in a direct appeal, is the right denied when counsel fails to file a petition after the defendant has requested that a petition be filed? To resolve the second question, we must decide whether the traditional analysis for ineffective assistance of counsel, a modified version of that test, or an entirely different test will be applied. Our analysis requires us to consider several ancillary issues regarding the procedure and remedy to be applied.
A review of the procedural history of this case explains more fully the context of the issues. In 1997, Mark Weldon Kargus was charged with aggravated kidnapping and rape. The district court appointed counsel who withdrew after Kargus retained private counsel. Following a jury trial, Kargus was convicted as charged and sentenced. The Court of Appeals affirmed his convictions on direct appeal in State v. Kargus, No. 82,486, unpublished opinion filed June 2, 2000. A petition seeking review of that decision was not filed.
In March 2003, Kargus filed a pro se K.S.A. 60-1507 motion in which he argued, inter alia, that he received ineffective assistance of appellate counsel in the direct appeal because his attorney failed to file a petition for review despite Kargus' request that one be filed. The district court found that a petitioner does not have a constitutional right to counsel for the purpose of pursuing a discretionary review in the Kansas Supreme Court and summarily denied Kargus' K.S.A. 60-1507 motion.
Kargus appealed to the Court of Appeals. A Court of Appeals panel determined Kargus' right to effective appellate counsel on direct appeal extended to the petition for review phase of the appeal. Based upon Kargus' argument that his appellate counsel was ineffective for failing to file a petition for review after Kargus had asked his attorney to do so, the Court of Appeals determined the representation was ineffective and prejudicial because "filing a petition for review would have been successful at least to the extent of exhausting State remedies and thereby preserving the issue for federal habeas review." Kargus v. State, No. 92,432, unpublished opinion filed June 2, 2006, slip op. at 3. The panel observed that there was no evidence received from Kargus' appellate counsel, despite Kargus' allegation that he personally requested his attorney file a petition for review. Thus, the Court of Appeals determined that the district court should have conducted an evidentiary hearing on this matter. The case was reversed and remanded for an evidentiary hearing to determine whether an untimely petition for review should be permitted.
The State filed a petition for review, asking this court to resolve an apparent conflict between the holding in Kargus and other Court of Appeals' decisions, both published and unpublished. In particular, the State pointed to a decision of a different Court of Appeals panel in Swenson v. State, 35 Kan. App. 2d 709, 135 P.3d 157 (2006). Swenson was filed 2 weeks before Kargus. The Swenson panel agreed that the defendant had the right to effective assistance of counsel in seeking review of a Court of Appeals' decision. 35 Kan. App. 2d at 726. However, the Swenson panel employed a different analysis than that used by the Kargus panel when determining whether the failure to file a petition resulted in ineffective assistance of counsel. The Swenson panel held that, even if the defendant's appellate counsel was deficient in failing to file a timely petition for review, the defendant failed to meet the prejudice prong of the test for ineffective assistance of counsel because the petition would not have been granted. 35 Kan. App. 2d at 726-27.
We granted the State's petition for review in this case and the defendant's petition for review in Swenson v. State, No. 94,207, this day decided.
On our review of the Court of Appeals' decision in this case, the State argues that we should adopt the Swenson panel's analysis and conclude that a defendant's claim of ineffective assistance of counsel must fail where the defendant cannot show prejudice by appellate counsel's failure to file a discretionary petition for review. The defendant and a brief of amicus curiae, filed by counsel representing the Paul E. Wilson Defender Project, argue there is a right to effective assistance of counsel in pursuing a petition for review and a failure to file a petition for review is either presumptively prejudicial or a structural error that automatically results in a determination of ineffective assistance of counsel.
Right to Effective Assistance of Counsel
The first consideration is the question of law of whether Kargus had the right to effective assistance of counsel in pursuing discretionary review of the Court of Appeals' decision in his direct appeal. The district court ruled that there is no constitutional right to counsel in order to pursue a discretionary review before this court, citing Foy v. State, 17 Kan. App. 2d 775, 844 P.2d 744, rev. denied 252 Kan. 1091 (1993).
In Foy, the appellant argued his counsel was ineffective for failing to inform him that he could petition for review to this court. The Foy court observed that this court's decision whether to review a Court of Appeals' decision is discretionary. 17 Kan. App. 2d at 775-76; see K.S.A. 20-3018(b); K.S.A. 2006 Supp. 22-3602(e); Supreme Court Rule 8.03 (2006 Kan. Ct. R. Annot. 62). It further noted that, in Wainwright v. Torna, 455 U.S. 586, 587-88, 71 L.Ed. 2d 475, 102 S.Ct. 1300 (1982), the United States Supreme Court held that a criminal defendant could not be deprived of effective assistance of counsel for retained counsel's failure to file a timely application for review in the Florida Supreme Court because the defendant had no constitutional right to counsel in a discretionary appeal. Foy, 17 Kan. App. 2d at 775-76.
In addition to Wainwright, the Foy court cited Robinson v. State, 13 Kan. App. 2d 244, 250, 767 P.2d 851, rev. denied 244 Kan. 738 (1989), where it was held that the dismissal of the defendant's appeal of the denial of his K.S.A. 60-1507 motion due to the failure of his attorney to timely perfect the appeal did not violate the defendant's due process rights because the constitutional right to counsel does not exist in state post-conviction proceedings. Foy, likewise, held that the appellant did not have a constitutional right to counsel to pursue a discretionary review in the Kansas Supreme Court. Consequently, the panel held that Foy was not denied effective assistance of counsel when his attorney failed to file a petition for review or failed to let him know that he had the option to do so. 17 Kan. App. 2d 775, Syl.
Ten years later, this court overruled Robinson in deciding Brown v. State, 278 Kan. 481, 101 P.3d 1201 (2004), the case on which Kargus relies to argue that he has a right to counsel. In Brown, this court held that, although there is no constitutional right to appointed counsel to pursue a K.S.A. 60-1507 motion, there is a statutory right under certain circumstances to counsel for collateral attacks and such a right includes a right to have the effective assistance of counsel. 278 Kan. 481, Syl.; see K.S.A. 2006 Supp. 22-4522(e)(4).
The Brown court looked to other jurisdictions where courts held that some standard of competence is required by appointed counsel and quoted the following from Cullins v. Crouse, 348 F.2d 887, 889 (10th Cir. 1965):
"'Although the right to counsel in a civil case is not a matter of constitutional right under the Sixth Amendment, counsel should be appointed in post conviction matters when disposition cannot be made summarily on the face of the petition and record. When counsel is so appointed he must be effective and competent. Otherwise, the appointment is a useless formality.'" Brown, 278 Kan. at 484.
This court agreed with the Tenth Circuit Court of Appeals' analysis.
In overruling Robinson and its progeny, this court held that, where there was a statutory right to counsel, there was a right that counsel be effective and competent. It was also pointed out that it would be impossible for Brown to obtain post-conviction relief if he was not permitted to file his appeal out of time. Because Brown's counsel did not timely inform him of the right to appeal the denial of his K.S.A. 60-1507 motion, this court held he should be permitted to file his appeal out of time. 278 Kan. at 484-85.
In this case, the Court of Appeals implicitly expanded the Brown analysis to Kargus' case, observing that "Foy's analysis has changed since Brown." In support of this reasoning, the panel recognized that another unpublished Court of Appeals' decision, Swarthout v. State, Nos. 93,133 and 93,134, unpublished opinion filed May 13, 2005, relied on Brown and held that counsel's failure to file a petition for review denied Swarthout's statutory right to effective assistance of counsel.
In its petition for review, the State distinguishes Brown because it dealt with a defendant's appeal of the denial of his K.S.A. 60-1507 motion, whereas the present case deals with the discretionary review of a Court of Appeals' decision in a direct appeal from a conviction. The State further notes that nowhere in Brown did this court specifically state that we were overruling Foy.
While the State is correct that Brown did not overrule Foy, it is incorrect in implying that Foy must be overruled to reach the conclusion suggested by Kargus. The Foy panel considered only the issue of whether there was a constitutional right to counsel. The panel did not discuss a statutory right, and Kargus argues that, like the situation in Brown, he was statutorily entitled to effective assistance of counsel in pursuit of his petition for review. Brown, however, did not address the question now before us. In fact, no decision of this court specifically addresses the issue of whether there is a statutory right to counsel when filing a petition for review.
The determination of whether there exists a statutory right to counsel for the purpose of filing a petition for review requires construction of statutes relating to appellate procedure and appointment of counsel. "The interpretation of a statute is a question of law over which this court has unlimited review." State v. Bryan, 281 Kan. 157, 159, 130 P.3d 85 (2006). The general rules we apply when construing statutes are well-settled:
"The fundamental rule of statutory construction, to which all other rules are subordinate, is that the intent of the legislature governs. An appellate court may consider various aspects of a statute in attempting to determine the legislative intent. The court must first look at the intent as expressed in the language of the statute. When the language is plain and unambiguous, an appellate court is bound to implement the expressed intent. Ordinary words are to be given their ordinary meanings without adding something that is not readily found in the statute or eliminating that which is readily found therein. An appellate court must consider all of the provisions of a statute in pari materia rather than in isolation, and these provisions must be reconciled, if ...