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Craig Alan Fischer v. State of Kansas

March 1, 2013


Appeal from Hamilton District Court; MICHAEL L. QUINT, judge.


SYLLABUS BY THE COURT 1. When certain errors are alleged, K.S.A. 60-1507 controls Kansas habeas corpus relief for sentencing issues and collateral attacks on convictions. These post-conviction proceedings are civil in nature and not controlled by the same constitutional requirements applicable to criminal cases. 2. A prisoner has no statutory right under K.S.A. 60-1507 to attend an evidentiary hearing. K.S.A. 60-1507(b) provides that the district court may entertain and determine a motion filed under the statute without requiring the prisoner's production. 3. When a district court considers a K.S.A. 60-1507 motion, it may: (a) determine that the motion, files, and case records conclusively show the prisoner is entitled to no relief and deny the motion summarily; (b) determine from the motion, files, and records that a potentially substantial issue exists, in which case a preliminary hearing may be held after appointment of counsel. If the court then determines there is no substantial issue, the

court may deny the motion; or (c) determine from the motion, files, records, or preliminary hearing that there is a substantial issue requiring an evidentiary hearing. 4. When a district court finds there is a substantial issue requiring an evidentiary hearing for a K.S.A. 60-1507 motion, Supreme Court Rule 183(h) (2012 Kan. Ct. R. Annot. 274) supplements the statute and makes clear the circumstances when a prisoner's production is required. It provides that a prisoner must be produced for a hearing when there are substantial issues of fact regarding events in which the prisoner participated. 5. When a district court grants a K.S.A. 60-1507 evidentiary hearing to consider substantial issues of fact regarding events in which the prisoner participated, Supreme Court Rule 183(h) preserves the district court's discretion to determine the reasonable manner under the circumstances to facilitate the prisoner's production for that hearing. A district court may require the prisoner to be physically present in the courtroom or may use alternative means, if available, such as two-way interactive technology. 6. Under Supreme Court Rule 145 (2012 Kan. Ct. R. Annot. 259), a district court may use a telephone or other electronic conferencing means to conduct any hearing or conference, other than a trial on the merits. Under K.S.A. 2012 Supp. 60-243(a), for good cause in compelling circumstances and with appropriate safeguards, a trial court may permit testimony in open court by contemporaneous transmission from a different location.

7. An important consideration in using any alternative to a prisoner's physical presence in the courtroom for an evidentiary hearing under K.S.A. 60-1507 must be whether the court can give fair consideration to the particular claims in dispute, as well as the prisoner's ability to meaningfully participate in the proceedings. This includes the capability to consult privately with counsel. 8. Judicial discretion is abused if judicial action is (a) arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted by the trial court; (b) based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion; or (c) based on an error of fact, i.e., if substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based. 9. A district court has the primary duty of providing adequate findings and conclusions on the record under Supreme Court Rule 165 (2012 Kan. Ct. R. Annot. 262). But a party also has an obligation to object to inadequate findings of fact and conclusions of law to preserve the issue for appeal because this gives the district court an opportunity to correct its error. 10. An adequate record must exist for an appellate court to determine whether a district court abused its discretion. Without such a record, the appellate court may remand for additional findings.

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

Review of the judgment of the Court of Appeals in Fischer v. State, 41 Kan. App. 2d 764, 206 P.3d 13 (2009).

Judgment of the Court of Appeals reversing the district court is reversed. Judgment of the district court is reversed and remanded with directions.

The opinion of the court was delivered by BILES, J.: The State of Kansas challenges a decision by a divided Court of Appeals panel ordering a correctional facility inmate's physical presence at his K.S.A. 60-1507 evidentiary hearing. The majority reversed the trial court's determination that the inmate would participate by telephone. The panel held that there was no discretion as a matter of law and ordered that the inmate be transported for new proceedings. Fischer v. State, 41 Kan. App. 2d 764, 765-69, 206 P.3d 13 (2009). To resolve the issue, we consider the circumstances under which a prisoner must be produced for such proceedings and the technological alternatives for fair consideration of habeas corpus claims, while giving prisoners reasonable-but meaningful-participation in court hearings affecting them.

We reverse the Court of Appeals because its decision strips district courts of the discretion we hold that they have. But we reverse the district court's judgment because the record on appeal is inadequate for us to conclude whether the district court abused that discretion. We remand to the district court for further proceedings, including development of a more comprehensive record based on the factors discussed below as to whether this particular inmate should be transported to the courthouse for the evidentiary hearing in controversy.


A jury convicted Craig A. Fischer of attempted first-degree murder, aggravated kidnapping, attempted rape, and criminal possession of a firearm. He was sentenced to an 842-month prison term, and the convictions were affirmed on appeal. State v. Fischer, No. 87,740, 2004 WL 1609116 (Kan. App.) (unpublished opinion), rev. denied 278 Kan. 848 (2004).

In September 2005, Fischer filed a pro se K.S.A. 60-1507 motion for post-conviction relief claiming ineffective assistance of trial counsel. Fischer alleged his attorney at the time failed to: (1) investigate, interview, and present possible alibi witnesses; (2) object to allegedly prejudicial statements made by the trial judge; (3) present evidence of a claimedviolation of Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986) (racially-motivated peremptory challenges by State); and (4) object to photographs taken of Fischer by law enforcement for use in a photo lineup.

In 2007, the district court scheduled an evidentiary hearing and appointed counsel for Fischer to advance his motion as permitted by K.S.A. 22-4506 (district court may appoint counsel after finding a 1507 motion presents substantial questions of law or triable issues of fact and movant is determined to be indigent). On the day of the hearing, Fischer appeared by telephone. His counsel called several witnesses to testify, who were in the courtroom and assisted by a Spanish translator. The testimony of another witness was presented by written deposition. Fischer also testified over the telephone. The State did not call any witnesses.

The record on appeal does not reflect whether Fischer filed a pre-hearing motion to physically appear at the hearing, nor does it explain how arrangements were made for Fischer to participate by telephone from the El Dorado Correctional Facility where he was incarcerated. At oral argument, appellate counsel for both parties were unfamiliar with the lower court's pre-hearing arrangements for the telephone conferencing. These deficiencies hamper our ability to resolve the question on appeal.

But the record does reflect that once the district court called the correctional facility to connect with Fischer and the proceedings got under way, Fischer promptly objected that he was not physically present. This objection was immediately overruled without explanation. The entire exchange between Fischer and the district court appears as follows from the hearing transcript:

"Mr. Fischer: Okay. I'd just like for the record-is the record going?

"The Court: Yes, it is.

"Mr. Fischer: I'd just like to state for the record that I'd like to object that this wasn't- that I'm not present for this.

"The Court: Okay.

"Mr. Fischer: I believe it's a habeas corpus and I should have been present.

"The Court: Okay.

"Mr. Fischer: Okay, thank you.

"The Court: You're preserved for [the] record."

In its subsequent written decision denying the K.S.A. 60-1507 motion on its merits, the district court stated that Fischer was given "special permission" to appear by telephone and that his request to personally appear was denied "due to his two previous convictions for murder and the conviction of the underlying case of attempted murder."

The hearing transcript reflects that once the evidentiary portion of the proceedings began, Fischer stated four times he could not hear clearly what was being said. Initially, the court asked whether Fischer wanted the court to move the microphone in the courtroom closer to those in attendance, to which Fischer replied, "Yeah, I'm having a hard time hearing." The court then told the attorney speaking to "talk loud." Soon after, the court addressed Fischer again, asking if he could hear what the attorney was saying. Fischer replied, "No, I'm really having a difficult time with hearing. . . . [b]oth the attorneys are not coming through very well." The court replied that a microphone would be placed closer to the attorneys' lips to "make them talk loud." Then again, during a witness' direct examination, Fischer spoke up and said, "I'm sorry to interrupt, but I cannot hear this witness at all." The court asked the witness to get closer to the microphone ...

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