Appeal from Butler District Court; DAVID A. RICKE, judge.
SYLLABUS BY THE COURT 1. When a district court holds a full evidentiary hearing on the issues raised in a K.S.A. 60-1507 motion, the court must issue findings of fact and conclusions of law concerning all the issues presented. An appellate court reviews the district court's findings of fact to determine whether they are supported by substantial competent evidence and are sufficient to support the district court's conclusions of law. Appellate review of the district court's conclusions of law is de novo. 2. To support a claim of ineffective assistance of counsel, the defendant must prove that (1) counsel's performance was deficient, and (2) counsel's deficient performance was sufficiently serious to prejudice the defense and deprive the defendant of a fair trial. 3. Under the facts of this case, trial counsel's request for a general verdict form in an alternative means case did not constitute ineffective assistance of counsel. 4. Sexual intercourse with a person who does not consent under circumstances when the victim is overcome by force or fear, in violation of K.S.A 21-3502(a)(1)(A), is a single, unified means of committing rape.
The opinion of the court was delivered by: Malone, C.J.:
Before MALONE, C.J., HILL and BRUNS, JJ.
Mary Ann Wright appeals the district court's judgment denying her claims for relief under K.S.A. 60-1507. Wright was convicted of rape and her conviction was affirmed by the Kansas Supreme Court on direct appeal. State v. Wright, 290 Kan. 194, 224 P.3d 1159 (2010). Wright later filed a K.S.A. 60-1507 motion raising claims of ineffective assistance of counsel. The district court denied relief after conducting an evidentiary hearing. On appeal, Wright argues that her trial counsel's request for a general verdict form when she was charged with alternative means of committing rape violated her constitutional right to effective assistance of counsel. Wright further argues that her appellate counsel was unconstitutionally ineffective for failing to argue in her direct appeal that sexual intercourse with a person who does not consent under circumstances when the victim is overcome by force or fear constitutes alternative means of committing rape.
We conclude that Wright's trial counsel was not ineffective for requesting a general verdict form on the rape charge. As to Wright's appellate counsel, the district court's finding that counsel's performance did not fall below an objective standard of reasonableness is supported by substantial competent evidence. But even if the performance of Wright's appellate counsel was somehow deficient, we conclude that Wright has failed to show prejudice. Accordingly, we affirm the district court's judgment denying Wright's claims for relief under K.S.A. 60-1507.
FACTUAL AND PROCEDURAL BACKGROUND
Wright provided massages out of her home, and the rape charge stemmed from a client's allegations that Wright had penetrated her vagina with two fingers during a May 2005 massage. At the March 2006 trial, the evidence established that the client, J.L., had dozed off during the massage and when she awoke to the realization that Wright was digitally penetrating her vagina, she was paralyzed with fear. The district court instructed the jury that it could find Wright guilty of rape if "'the act of sexual intercourse was committed without the consent of J.L. under circumstances when: (a) she was overcome by force or fear; or (b) she was unconscious or physically powerless.'" See 290 Kan. at 199. The district court and the State initially agreed that an appropriate verdict form would list two alternative means of committing rape and give the jury the option to convict Wright on either, both, or neither. But at the specific request of Wright's trial counsel, the district court gave the jury a general verdict form on the charge of rape. The jury found Wright guilty of rape, and the district court sentenced her to 155 months' imprisonment.
Wright appealed to this court, arguing that her conviction should be reversed because there was insufficient evidence to convict her under the "force or fear" means of committing rape. See 290 Kan. at 200. This court affirmed Wright's conviction in an unpublished opinion filed June 6, 2008, (citing Griffin v. United States, 502 U.S. 46, 112 S. Ct. 466, 116 L. Ed. 2d 371 , and State v. Dixon, 279 Kan. 563, 112 P.3d 883 , disapproved by Wright, 290 Kan. at 206) rev. granted 287 Kan. 769 (2008), and holding that it is proper to affirm an alternative means case "'if there is strong evidence supporting one theory and no evidence supporting the other theory' because any error is harmless. [Citation omitted.]" See 290 Kan. at 200. Because Wright effectively conceded that there was sufficient evidence to convict her under the unconscious or physically powerless means of committing rape, this court rejected Wright's alternative means argument and upheld her rape conviction. See 290 Kan. at 200.
On a petition for review before our Supreme Court, Wright again did not challenge the sufficiency of the State's proof on the unconscious or physically powerless means of committing rape; rather, she asserted again that there was insufficient proof of rape committed by force or fear. Wright contended that even though one of the alternative means of committing rape was sufficiently proved the court should reverse her conviction because another alternative means was not sufficiently proved pursuant to State v. Timley, 255 Kan. 286, 875 P.2d 242 (1994).
In analyzing Wright's claim, our Supreme Court traced the history of alternative means jurisprudence in Kansas. 290 Kan. at 201-06. In reviewing Kansas caselaw, our Supreme Court acknowledged a perceived tension between Timley and Dixon. In Timley, the defendant was convicted of multiple counts of rape and aggravated criminal sodomy, and on appeal, the defendant argued that the district court erred in instructing the jury that it could find him guilty if it found that the sexual acts were perpetrated by use of force or fear because the instructions deprived him of a unanimous verdict. The Timley court found that in an alternative means case, where a single offense may be committed in more than one way, there must be jury unanimity as to guilt for the single crime charged, but unanimity is not required as to the means by which the crime was committed so long as substantial evidence supports each alternative means. 255 Kan. at 289. The court concluded there was sufficient evidence for the jury to find Timley guilty of the crimes both by the means of force and by the means of fear, so there was no error in including both alternative means in one instruction to the jury. 255 Kan. at 290. In Dixon, a case involving alternative means of committing burglary, the court concluded that when there is sufficient evidence supporting one alternative means of committing a crime and no evidence of the other theory, instructing the jury on both means is harmless error. 279 Kan. at 605-06. The Wright court determined that Timley and Dixon "'simply cannot coexist.'" 290 Kan. at 205. The Wright court specifically adopted the Timley rule, disapproving any contrary language in Dixon. 290 Kan. at 206.
Applying the Timley rule to Wright's case, our Supreme Court found no error and affirmed Wright's rape conviction, stating there was sufficient evidence to find Wright guilty beyond a reasonable doubt of committing rape by force or fear. 290 Kan. at 206. The court stated that it did not matter that the initial penetration by Wright may not have been temporally coincidental with J.L.'s fear. 290 Kan. at 207. The court concluded that "[t]here is no error under the Timley alternative means rule here, because the evidence of each means of committing rape-by force or fear or by unconsciousness-was sufficient to uphold a guilty verdict on the rape charge." 290 Kan. at 207.
Wright subsequently filed a motion pursuant to K.S.A. 60-1507. She argued that her right to effective assistance of counsel under the Sixth and Fourteenth Amendments to the United States Constitution had been violated by both her trial and appellate counsel. Among other reasons, Wright claimed that her trial counsel was ineffective because he erroneously argued for a general verdict form instead of a special verdict form which would have required the jury to identify the specific means of committing rape upon which the guilty verdict was based. Wright contended that her appellate counsel was ineffective for failing to argue that rape by force or fear presented two alternative means of committing the crime. After a preliminary review of the motion, the district court appointed counsel for Wright and granted an evidentiary hearing.
At the evidentiary hearing, Gail Jensen, Wright's trial counsel, testified that he did not argue force and fear as separate alternative means of committing rape, nor did he make a distinction between the two. He believed that the only way the State could prove rape was on the theory that the sexual act occurred while J.L. was unconscious. Regarding the verdict form, Jensen did not recall whether he requested a general or a special verdict form. Upon reviewing the transcript of the jury trial, Jensen stated that it appeared he argued for a general form. When asked why, Jensen stated that he believed a general verdict form was more consistent with his position that the evidence supported only one means by which his client could have committed the crime.
Next, Michelle Davis, Wright's appellate counsel, testified at the hearing. Davis testified that she argued force and fear as one means of committing rape and that she understood Timley as ruling that a jury need not be unanimous on one alternative means of committing the crime as long as there is sufficient evidence of each means. Davis also testified that the Timley court treated force and fear as two separate means of committing rape, and Davis stated that although she did not raise force and fear as separate means, she should have done so because it was a meritorious argument. Davis admitted that it was not a strategic move; rather, she just did not think of raising force and fear as separate means of committing rape.
After hearing the evidence, the district court took the matter under advisement. The district court subsequently filed a written opinion denying Wright's K.S.A. 60-1507 motion, finding that neither trial counsel nor appellate counsel was ...