Appeal from Mitchell District Court; THOMAS M. TUGGLE, judge.
1. K.S.A. 60-1507 actions are civil in nature and not criminal; therefore, such actions are governed by the rules of civil procedure. The State has the right to appeal the district court's decision under K.S.A. 2007 Supp. 60-2102(a)(4).
2. Generally, when a defendant appeals from the denial of a K.S.A. 60-1507 motion, the appellate court determines whether the factual findings of the district court are supported by substantial competent evidence and whether those findings are sufficient to support its conclusions of law. This same standard of review applies when the motion is granted and the State appeals.
3. A claim alleging ineffective assistance of counsel presents mixed questions of fact and law requiring de novo review. Before counsel's assistance is determined to be so defective that it requires reversal of a conviction, the defendant must establish two things. First, the defendant must establish that counsel's performance was deficient. This requires a showing that counsel made errors so serious that counsel's performance was less than that guaranteed to the defendant by the Sixth Amendment to the United States Constitution. Second, the defendant must establish that counsel's deficient performance prejudiced his defense. This requires a showing that counsel's errors were so serious that defendant was denied a fair trial.
4. Strategic choices made after a thorough investigation of law and facts relevant to plausible options are virtually unchallengeable, and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.
5. Under the facts of this case, trial counsel's failure to investigate any prosecution witness, failure to contact any of the witnesses suggested by the defendant, and failure to investigate a victim's prior abuse allegation constitutes ineffective assistance of counsel.
6. A two-part test is applied in deciding a motion for a new trial based on newly discovered evidence: (1) The defendant must show that the newly proffered evidence could not have been produced at trial with reasonable diligence; and (2) the newly discovered evidence is of such materiality that a reasonable probability exists that it would produce a different result upon retrial. The abuse of discretion standard applies to the decision of whether to grant a new trial based on newly discovered evidence.
The opinion of the court was delivered by: Marquardt, J.
Before MARQUARDT, P.J., GREEN and LEBEN, JJ.
The State appeals the district court's grant of Charles McHenry, Jr.'s K.S.A. 60-1507 motion, finding he received ineffective assistance of trial counsel. We affirm.
In February 2001, McHenry was charged with one count of aggravated indecent liberties with a child, one count of criminal sodomy, one count of rape, and one count of aggravated criminal sodomy. The alleged victim was his daughter, N., who was 13 years old at the time.
At trial, the State claimed that N. would owe her father sexual activity for allowing her to attend social activities and giving her money. She was also the favored child in the family. It was undisputed that McHenry and his wife, N.'s mother (Mother), had a tumultuous relationship.
McHenry was convicted by a jury in August 2001 of rape, aggravated indecent liberties with a child, and criminal sodomy. He filed motions for judgment of acquittal and a new trial, which were denied. McHenry received a controlling sentence of 214 months' imprisonment. His conviction was affirmed in direct appeals to this court ...