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McIntyre v. State

Court of Appeals of Kansas

September 1, 2017

Terry D. McIntyre, Appellant,
v.
State of Kansas, Appellee.

         SYLLABUS

         1. Under K.S.A. 22-4506(b), if the district court finds that a K.S.A. 60-1507 motion presents substantial questions of law or triable issues of fact the movant has a statutory right to the effective assistance of counsel regardless of indigency.

         2. Under K.S.A. 22-4506(c), if an appeal is taken in a K.S.A. 60-1507 cause of action the movant has a statutory right to the effective assistance of counsel regardless of indigency.

         Appeal from Douglas District Court; Sally D. Pokorny, judge. Reversed and remanded with directions.

          Randall L. Hodgkinson and Janine Cox, of Kansas Appellate Defender Office, for appellant.

          Natalie Yoza and Patrick J. Hurley, assistant district attorneys, Charles E. Branson, district attorney, and Derek Schmidt, attorney general, for appellee.

          Before Malone, P.J., Hill and Buser, JJ.

          Buser, J.

         This case returns to our court on remand from the Supreme Court with directions to resolve the legal issue previously presented to us: Did Terry D. McIntyre have a statutory right to the effective assistance of retained counsel in his appeal of an adverse K.S.A. 60-1507 judgment?

         Upon our review, we make two legal conclusions: First, under K.S.A. 22-4506(b), if the district court finds that a K.S.A. 60-1507 motion presents substantial questions of law or triable issues of fact the movant has a statutory right to the effective assistance of counsel regardless of indigency. Second, under K.S.A. 22-4506(c), if an appeal is taken in a K.S.A. 60-1507 cause of action the movant has a statutory right to the effective assistance of counsel regardless of indigency.

         Applying these two legal conclusions to the unique facts of this case, we reverse the district court's summary denial of McIntyre's second K.S.A. 60-1507 motion and remand with directions to consider whether McIntyre's retained counsel provided ineffective assistance in the appeal of the denial of McIntyre's first K.S.A. 60-1507 motion.

         Factual and Procedural Background

         This case has a long and involved procedural history which is summarized below. On December 8, 2000, McIntyre was convicted of aggravated kidnapping, kidnapping, aggravated robbery, aggravated criminal sodomy, and rape. He was sentenced to 645 months' imprisonment. Our court affirmed the convictions in State v. McIntyre, No. 86, 715 (Kan. App.) (unpublished opinion), rev. denied 274 Kan. 1116 (2002). During the direct appeal, McIntyre was represented by Autumn L. Fox.

         On April 24, 2002, McIntyre brought a pro se legal malpractice lawsuit against his trial counsel, James Rumsey. The district court granted summary judgment to Rumsey, and our court affirmed. McIntyre v. Rumsey, No. 90, 200, 2003 WL 22990205, at *4 (Kan. App. 2003) (unpublished opinion).

         On September 23, 2002, McIntyre filed a pro se K.S.A. 60-1507 motion, asserting that Rumsey provided ineffective assistance at trial and Fox provided ineffective assistance on direct appeal. McIntyre appeared pro se during the four-day evidentiary hearing on his motion. On May 3, 2005, the district court denied the K.S.A. 60-1507 motion and filed a memorandum opinion finding that McIntyre's ineffectiveness claims were "without any merit whatsoever."

         McIntyre filed an appeal of this adverse decision and retained John W. Fay as appellate counsel. As part of his duties and responsibilities as appellate counsel, Fay prepared and filed the appellant's brief. On May 4, 2007, our court affirmed the district court's judgment denying McIntyre's K.S.A. 60-1507 motion, and the Supreme Court denied review on October 1, 2007. McIntyre v. State, No. 94, 786, 2007 WL 1309576 (Kan. App. 2007) (unpublished opinion).

         McIntyre sought federal habeas corpus relief in March 2008. But his writ was denied by the United States District Court for the District of Kansas in February 2011, the Tenth Circuit Court of Appeals denied his appeal on May 9, 2012, and ...


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