BY THE COURT
1. If a
motion under K.S.A. 60-1507 presents substantial questions of
law or triable issues of fact and the movant is indigent, the
district court shall appoint counsel to assist the indigent
movant. If a motion under K.S.A. 60-1507 presents a
potentially substantial question of law or triable issue of
fact, the district court has the statutory power to appoint
counsel for movant in the exercise of its judicial
in circumstances where a K.S.A. 60-1507 movant is not
statutorily entitled to the appointment of counsel, if the
court conducts a hearing at which the State will be
represented by counsel, due process of law requires that the
movant be represented by counsel unless the movant waives
that right to counsel.
State is permitted to file a written response to a K.S.A.
60-1507 motion. The district court's consideration of the
State's response, standing alone, does not constitute a
hearing for purposes of determining whether due process of
law requires the movant to be represented by counsel.
a K.S.A. 60-1507 motion and the files and records of the
case, including any response to the motion from the State,
conclusively show that the movant is entitled to no relief
under that motion, the district court may summarily deny the
motion without appointing counsel for the movant.
of the judgment of the Court of Appeals in an unpublished
opinion filed July 7, 2017.
from Sedgwick District Court; James R. Fleetwood, judge.
Michael P. Whalen, of Law Office of Michael P. Whalen, of
Wichita, argued the cause, and Krystle M. S. Dalke, of the
same firm, was with him on the brief for appellant.
K. Isherwood, assistant district attorney, argued the cause,
and Lesley A. Isherwood, assistant district attorney, Marc
Bennett, district attorney, and Derek Schmidt, attorney
general, were with him on the brief for appellee.
Stewart petitions this court for review of the Court of
Appeals' decision affirming the district court's
summary denial of his K.S.A. 60-1507 motion. Stewart agrees
with the Court of Appeals' holding that the district
court erred in reviewing and relying upon the State
attorney's written response to Stewart's pro se
motion without first appointing counsel for Stewart.
Stewart's challenge on review is to the panel's
determination that the district court's error was
harmless because the motion, files, and record-exclusive of
the State's written response-conclusively established
that Stewart was not entitled to relief. Stewart claims that
there were facts missing from the record that required an
evidentiary hearing and appointment of counsel. We conclude
that summary denial of the 60-1507 motion was appropriate in
State cross-petitions, arguing that the Court of Appeals
erred in holding that "the district court may not invite
the State to respond to the [60-1507] motion or review an
unsolicited written response from the State until or unless
the movant is represented by a lawyer." Stewart v.
State, No. 115, 149, 2017 WL 2901146, at *5 (Kan. App.
2017) (unpublished opinion) (Stewart II). We agree
with the State that its filing of a written response,
standing alone, did not trigger Stewart's statutory right
to counsel. Ultimately, we affirm the district court's
summary denial of the motion.
and Procedural Overview
two trials resulted in a hung jury, a third jury convicted
Stewart of aggravated robbery. The 2011 incident giving rise
to the conviction involved three men who accosted a
pedestrian walking home from work on a dimly lit street. The
assailants battered the victim before removing $8, some
cigarettes, and a white lighter from his pockets. The victim
flagged down a patrol officer who apprehended two fleeing
individuals, Gerard Sillemon and Stewart. Sillemon had $8 in
his pocket, and the white lighter lay on the ground between
the two men. The victim identified Stewart-both at the crime
scene and at trial-as being one of the robbers.
trial, Sillemon testified that he pled guilty because he was
the only person involved in robbing the victim. Stewart
testified that he was in the vicinity and observed the crime,
but that he was not involved in the robbery in any way. He
claimed that the victim had misidentified him. Nevertheless,
the jury convicted Stewart of aggravated robbery.
direct appeal, Stewart raised three jury instruction
challenges and a cumulative error argument. One of
Stewart's jury instruction challenges argued that the
eyewitness identification instruction was clearly erroneous
for including "degree of certainty" as a factor for
the jury to consider. The Court of Appeals held this
instruction was erroneous but fell short of clear error.
State v. Stewart, No. 107, 723, 2013 WL 3455788
(Kan. App.) (unpublished opinion), rev. denied 298
Kan. 1207 (2013) (Stewart I).
Stewart timely filed the pro se K.S.A. 60-1507 motion that is
now before this court. The motion alleged error by the trial
judge, ineffective assistance of trial counsel, wrongful
failure to disclose a transcript by the State, discriminatory
collusion between the prosecutor and the accuser, and
conspiracy to convict Stewart on the basis of race by the
Sedgwick County Public Defender's Office.
a year later, the State, acting through counsel, filed a
response to Stewart's motion, addressing Stewart's
claims and arguing no evidentiary hearing was needed to
resolve them. The record is not clear as to whether the
district court ordered the State to respond or whether the
State responded on its own volition. The district court's
motion minutes sheet adopting the "authorities and
arguments of the State . . . as persuasive" and denying
Stewart's motion without a hearing is dated the same day
as the State filed its response, albeit the motions sheet was
file-stamped a week later.
appealed the summary denial to the Court of Appeals. He
alleged that the district court violated his due process
rights by failing to appoint counsel to represent him before
it considered the State attorney's written response to
the pro se motion. He also asserted that there are facts
absent from the record regarding trial counsel's
representation that require an evidentiary hearing, rendering
the summary denial erroneous.
Court of Appeals held that the district court materially
erred in considering the State's response to
Stewart's pro se motion without appointing counsel for
Stewart or providing him with an opportunity to argue beyond
the face of his original motion. Stewart II, 2017 WL
2901146, at *5. But the panel held that even though Stewart
was improperly deprived of the opportunity to be heard
through counsel, the error was harmless. The panel considered
Stewart's 60-1507 motion without referring to the
State's response and opined that the motion had presented
no viable claims, thereby rendering harmless the district
court's procedural error. 2017 WL 2901146, at *2-4, 6.
petitioned this court for review, arguing that the district
court and Court of Appeals erred by not granting him an
evidentiary hearing. The State cross-petitioned, arguing that
the Court of Appeals erred in holding that Stewart should