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Landrum v. Goering

Supreme Court of Kansas

July 21, 2017

Shane Landrum, Petitioner,
v.
Jeffrey E. Goering, Presiding Judge, Criminal Division, Kansas 18th Judicial District; and State of Kansas, Respondents, and State Board of Indigents' Defense Services, Intervenor/Respondent.

         SYLLABUS BY THE COURT

         K.S.A. 22-4508 requires a district court to conduct an ex parte hearing when an attorney other than a public defender, including an attorney privately retained to represent a defendant, asks the court to consider a defendant's request for investigative, expert, or other services. The district court must determine (1) whether the defendant is financially unable to pay for such services and (2) whether the requested services are necessary to an adequate defense. If the district court finds the defendant is financially unable to pay for necessary services, it must authorize counsel to obtain the services for the defendant and approve State Board of Indigents' Defense Services compensation and payment under K.S.A. 22-4508.

         Original action in mandamus. Writ of mandamus granted in part.

          Sarah G. Swain, of The Swain Law Office, of Lawrence, argued the cause and was on the petition, and Cooper Overstreet, of the same firm, was with her on the briefs for petitioner.

          Stephen Phillips, assistant attorney general, and Derek Schmidt, attorney general, were on the response for respondent Hon. Jeffrey Goering.

          Boyd K. Isherwood, assistant district attorney, was on the response for respondent State of Kansas.

          Daniel E. Lawrence, of Fleeson, Gooing, Coulson & Kitch, L.L.C., of Wichita, argued the cause, and Stephen E. Robison, of the same firm, was with him on the response and briefs for intervenor/respondent State Board of Indigents' Defense Services.

          OPINION

          LUCKERT, J.

         This original action in mandamus raises the question of whether a partially indigent defendant who has retained counsel may pursue funding for certain services through the State Board of Indigents' Defense Services (Board or BIDS). The parties readily acknowledge that K.S.A. 22-4508 contemplates that a court-appointed attorney may request an ex parte hearing before the district court when acting as counsel for a partially indigent defendant who is financially unable to obtain investigative, expert, or other services necessary for an adequate defense. If the district court determines that (1) the defendant is financially unable to pay for such services and (2) the requested services are necessary to an adequate defense, then the district court shall authorize counsel to obtain the services on the defendant's behalf. We conclude the plain language of K.S.A. 22-4508 also permits privately retained counsel to pursue the same procedure, so long as the defendant is financially unable to obtain investigative, expert, or other services necessary to an adequate defense.

         Facts and Procedural Background

         The State charged Shane Landrum with first-degree murder, and he has been in state custody since his arrest in December 2014. Landrum is represented by privately retained counsel-that is, by an attorney who is neither a public defender nor court appointed. It is unclear who retained Landrum's counsel or how her fees are funded.

         Landrum, through his retained counsel, moved to be declared partially indigent in early 2015. Landrum filed a financial affidavit in support of his motion, although he provided minimal information and completed only the case number, his name, his signature, and the date. He drew a line through the remaining questions regarding his financial situation. He listed no dependents or spouse, although his statement of facts in this mandamus proceeding indicates he has a wife and child. He also did not account for any resources used for paying attorney fees. On May 8, 2015, the then-presiding criminal judge of the Eighteenth Judicial District declared Landrum partially indigent.

         Subsequently, Landrum requested a copy of the transcript for a preliminary hearing. The district court granted the request, ordering Landrum to pay 25% of the cost. Landrum also requested funding for investigative services, which the court approved.

         After those orders were entered, the Honorable Jeffrey E. Goering assumed the duties of presiding criminal judge of the Eighteenth Judicial District. Landrum presented Judge Goering with a request for a transcript for the entire trial of another defendant charged with having acted with Landrum to commit first-degree murder. Ultimately, Judge Goering denied the request. Judge Goering explained: "[A]n indigent (or partially indigent) Defendant may only access BIDS for payment of expenses associated with his defense through appointed counsel, " and, "going forward, based [on Morrow v. State, 18 Kan.App.2d 236, 849 P.2d 1004 (1993), ] I will not be approving any requests by retained counsel for State or county payment of expenses." (Emphasis added.) Landrum filed a motion to reconsider, which was denied. Judge Goering clarified he would honor requests the previous presiding judge had approved but would not grant future requests by retained counsel.

         Landrum filed a Petition for Writ of Mandamus, naming Judge Goering and the State of Kansas as Respondents. Judge Goering responded and asked not to appear in the action "as an advocate for either side or to address the substantive merits of Petitioner's mandamus action." The State, through the Sedgwick County District Attorney's office, advocated for the Board to be added as a party and disclaimed any other interest in the matter: "In short, in what manner a criminal ...


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