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Bogguess v. State

Supreme Court of Kansas

June 9, 2017

Shannon Bogguess, Appellant,
v.
State of Kansas, Appellee.

          Review of the judgment of the Court of Appeals in an unpublished opinion filed May 29, 2015.

         SYLLABUS BY THE COURT

         When a Sixth Amendment ineffective assistance of counsel claim does not receive complete review during a direct appeal the claim is not barred by res judicata during a subsequent collateral action proceeding pursuant to K.S.A. 60-1507.

Appeal from Sedgwick County District Court; James R. Fleetwood, judge.

         Judgment of the Court of Appeals affirming the district court is affirmed. Judgment of the district court is affirmed.

          Krystle M. S. Dalke, of Law Office of Michael P. Whalen, of Wichita, argued the cause, and Michael P. Whalen, of the same firm, was with her on the brief for appellant.

          Matt J. Maloney, assistant district attorney, argued the cause, and Marc Bennett, district attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.

          OPINION

          Stegall, J.

         In 2008, the State charged Shannon Bogguess with first-degree murder, aggravated robbery, aggravated kidnapping, aggravated assault, and criminal possession of a firearm-crimes for which he was ultimately convicted. His convictions were affirmed on appeal, and he later filed this action pursuant to K.S.A. 60-1507. The trial court denied the motion after conducting a nonevidentiary hearing, and the Court of Appeals affirmed on alternative grounds. We affirm the judgment of the district court and the judgment of the Court of Appeals, albeit on only one of its stated alternative grounds.

         Factual and Procedural Background

         On the morning Bogguess was scheduled to go before a jury for trial, he requested a bench trial on stipulated facts. The district court conducted the following colloquy with Bogguess:

"THE COURT: And, Mr. Bogguess, just so that I am perfectly clear on this matter, you do understand that all charges contained in and set forth in the amended Information filed on May 29 of 2009, are scheduled for jury trial today?
"[BOGGUESS]: Yes, sir.
"THE COURT: You understand that we have a jury potentially of up to 50 people available from whom the jury selection would be made and from whom a jury of 12 persons and one alternate would be chosen to hear and decide the case?
"[BOGGUESS]: Yes, sir.
"THE COURT: You understand that you have the absolute right to have a jury trial and have the evidence presented to a jury, and after they've been instructed by myself, then the jury would make a decision as to your guilt or as to whether you were guilty or not guilty of each of the six charges against you in this Complaint/Information; do you understand that?
"[BOGGUESS]: Yes, sir.
"THE COURT: And is it your desire at this time to waive and give up your right to that jury trial and to proceed as both the State and your attorneys have advised me on a trial by stipulated fact?
"[BOGGUESS]: Yes, sir.
"THE COURT: And you understand that the stipulated fact will take the place of actual live testimony, that it will be in the form of documentation presented to me and that documentation are the only facts that I will receive, the only facts that I will consider, and the only facts from which I will make my judgment; do you understand that?
"[BOGGUESS]: Yes, sir.
"THE COURT: Do you have any questions whatsoever about any of the rights you have to have a jury trial and the effect of giving up those rights to a jury trial and submitting this matter to me for trial on stipulated facts alone? Do you have any questions you would like to confer with ...

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