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Review of the judgment of the Court of Appeals in an unpublished opinion filed September 23, 2011. Appeal from Sedgwick District Court; TIMOTHY H. HENDERSON, judge.
Judgment of the Court of Appeals affirming the district court is reversed. Judgment of the district court is reversed, and the case is remanded with directions.
1. 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.
2. When the district court denies a K.S.A. 60-1507 motion based only on the motion, files, and records after a preliminary hearing, appellate courts exercise de novo review.
3. 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. If a movant satisfies that burden, the court is required to grant a hearing unless the motion is second or successive and seeks similar relief.
4. The Sixth Amendment to the United States Constitution guarantees a criminal defendant the right to effective assistance of counsel; the right to effective counsel encompasses the right to representation that is free from conflicts of interest.
5. Claims for ineffective assistance of counsel under the Sixth Amendment fall into three categories. The first category arises in cases in which it is claimed that the attorney's performance was so deficient that the defendant was denied a fair trial. The second category applies when the assistance of counsel was denied entirely or denied at a critical stage of the proceeding. The third category arises in situations where the defendant's attorney actively represented conflicting interests.
6. When reviewing an attorney's alleged deficient performance, a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of alleged deficiencies.
7. When considering claims of ineffective assistance of counsel, strategic choices made after counsel's 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.
8. The United States Supreme Court recognizes three sub-categories of ineffective assistance of counsel claims based on a conflict of interest, including conflicts of interest that are rooted in an attorney's personal or financial interests.
9. The United States Supreme Court has not defined a defendant's burden for establishing a basis to reverse a district court in a proceeding in which it is alleged the defense attorney was ineffective because of a conflict of interest that is rooted in the attorney's personal or financial interests.
Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, argued the cause and was on the brief for appellant.
Boyd K. Isherwood, assistant district attorney, argued the cause, Nola Tedesco Foulston, former district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, were with him on the briefs for appellee.
NUSS, C.J. BILES, J. and MORITZ, J., not participating.
[300 Kan. 876] OPINION
Santiago Sola-Morales filed a motion for postconviction relief under K.S.A. 60-1507, alleging his trial counsel was unconstitutionally ineffective. The district court denied his motion without conducting an evidentiary hearing, and the Court of Appeals affirmed. We granted his petition for review.
[300 Kan. 877] We hold the district court erred in denying the motion without conducting an evidentiary hearing. Accordingly, we reverse the decisions of the Court of Appeals and district court and remand to the district court for such a hearing.
Facts and Procedural History
In April 2005, the State charged Sola-Morales with second-degree murder. The charges arose from an incident in Wichita where Frank Sibat was fatally shot in his home. After his arrest, Sola-Morales admitted he was with Sibat that night and gave law enforcement officers several inconsistent accounts of Sibat's death. Sola-Morales eventually told them he shot Sibat but maintained he had done so in self-defense. He ultimately pled not guilty.
Pro se motion to dismiss
After a May 6, 2005, preliminary hearing and arraignment, the district court initially set trial for June 27, but the case was continued. According to later statements made by Sola-Morales' counsel appointed to represent him at the January 2010 hearing on his 1507 motion, Sola-Morales believed his trial was being delayed unreasonably and several times asked his trial counsel, " What's going on? Why is this taking so long? I thought I had a right to speedy trial?" Per his 1507 counsel's repeating Sola-Morales' version, " His [trial] counsel says, . . . 'the State keeps asking for continuances, and the Court keeps granting them.'" His 1507 counsel explained to the court that Sola-Morales therefore understood the State had asked for those continuances. In Sola-Morales' affidavit attached to his 1507 motion he swore, " That based upon my knowledge and belief, I state that my court appointed attorney told me that the continuances that were taken in my case were taken by the state." According to his 1507 counsel, " So Mr. Sola-Morales files his own Motion to Dismiss the case, and says let's get rid of this case because it's not progressing appropriately."
On February 21, 2006, Sola-Morales indeed had filed a pro se motion to dismiss-nearly 8 months after the initial trial setting. He alleged the State had violated his statutory speedy trial rights by failing to bring his case to trial within 90 days without cause.
[300 Kan. 878] In Sola-Morales' motion, he specifically alleged he had been incarcerated for 313 days, and the State had requested three trial continuances. But in its March 2, 2006, response, the State contended defense counsel had requested six continuances and it had requested none. So it opposed dismissal on speedy trial grounds, arguing the delay should be charged to Sola-Morales. The response's certificate of service shows a copy was sent to Sola-Morales' trial counsel. The record on appeal does not disclose a copy of the response was ever provided--from any source--to Sola-Morales.
The district court scheduled a March 10, 2006, hearing on Sola-Morales' pro se motion to dismiss. But at the 2010 hearing on Sola-Morales' 1507 motion, his 1507 counsel and the prosecutor both agreed his trial counsel had withdrawn the motion. There is no record of a 2006 hearing about the motion. Nor is there an order or journal entry of disposition in the record on appeal. The only documentary evidence concerning the motion's disposition is an entry on the district court's record of action for activities occurring on March 10, 2006--and it states " withdrawn."
According to Sola-Morales' 1507 counsel at the 2010 hearing, his trial counsel's continuances were obtained without his client's knowledge. His 1507 counsel argued the withdrawal of Sola-Morales' motion to dismiss also was accomplished without Sola-Morales' knowledge, much less his consent. Indeed, Sola-Morales' affidavit in support of his 1507 motion states that on the day scheduled for his hearing on his pro se motion to dismiss he was never taken to court for the hearing. Rather, he swears " my attorney told me that 'the court dismissed my motion.'"
In other words, he was not told the motion had been voluntarily withdrawn by his counsel.
Trial began 18 days after disposition of Sola-Morales' pro se motion to dismiss: March 28, 2006. There, the State presented testimony from Pedro Medina. Pertinent to Sola-Morales' issue in the current appeal, Medina testified he worked with Sola-Morales and Sola-Morales told him he had fought and killed a person. Medina [300 Kan. 879] testified generally about Sola-Morales' description of the incident and that Sola-Morales was drunk at work the day after the incident. According to Medina, Vladimir Martinez was also present during part of this conversation. Although defense counsel subpoenaed Martinez, he never testified.
Before Sola-Morales' case-in-chief, his counsel asked the district court to permit testimony from Stephen Peterson about the violent tendencies of the decedent Sibat. The court accepted the proffer that Peterson would testify about specific instances of Sibat's prior violent conduct. During his proffer, defense counsel told the court he knew opinion and reputation testimony about Sibat's propensity for violence was admissible. But emphasized he was particularly seeking admission of testimony about specific instances of violence.
During trial, the court ruled that Peterson's anticipated testimony about specific instances of violence was inadmissible. Although the court implied it would admit opinion or reputation testimony about Sibat's propensity for violence, it did not explicitly address that issue. Sola-Morales' trial counsel never called Peterson as a witness to offer such testimony. According to Sola-Morales' affidavit attached to his later 1507 motion, if Peterson were called as a witness he would have testified about Sibat's reputation as being a " mean drunk" and his " reputation in the community for violence."
Germane to the other issue on appeal, the district court ultimately instructed the jury on second-degree murder, voluntary manslaughter, and on the version of involuntary manslaughter requiring an unintentional killing during the commission of a lawful act in an unlawful manner. The jury convicted Sola-Morales of voluntary manslaughter, and the court sentenced him to 216 months' imprisonment. The Court of Appeals affirmed on direct appeal, and we denied his petition for review. See State v. Sola-Morales, 185 P.3d 972, 2008 WL 2510154 (Kan. App. 2008) (unpublished opinion), rev. denied 287 Kan. 769 (2009).
Motion under K.S.A. 60-1507
Sola-Morales then filed the present pro se 1507 motion for postconviction relief. Although the initial motion raised multiple issues, [300 Kan. 880] the only issue before this court is his allegation that his trial counsel was ineffective in violation of the Sixth Amendment to the United States Constitution. More specifically, Sola-Morales claims his counsel was ineffective in three distinct ways: (1) by failing to object to the allegedly incomplete involuntary manslaughter instruction, (2) by failing to adequately investigate and elicit essential trial testimony from Martinez and Peterson, and (3) by failing to be honest with Sola-Morales, e.g., about who had requested the pretrial continuances, which effectively denied his statutory right to a speedy trial.
As noted, the district court held a preliminary hearing on the 1507 motion in January 2010 where Sola-Morales was represented by different court-appointed counsel. But he did not appear personally, and no additional evidence was taken.
After oral argument, the court denied the motion, adopted the State's response, and instructed the State to prepare a journal entry. That journal entry states Sola-Morales failed to show that deficient performance by his counsel caused him prejudice to support any of his three allegations of ineffective assistance of counsel. As for the speedy trial issue in particular, the court ruled that trial continuances can be requested unilaterally by counsel, citing State v. Bafford, 255 Kan. 888, 895, 879 P.2d 613 (1994) (" [T]he decision of whether to move for a continuance 'does not require a specific consultation between the attorney and client.'" ).
Court of Appeals
A panel of the Court of Appeals affirmed the district court's denial of 1507 relief. See Sola-Morales v. State, 260 P.3d 101, 2011 WL 4440414 (Kan. App. 2011) (unpublished opinion). We granted Sola-Morales' petition for review under ...