Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Stewart v. State

Supreme Court of Kansas

July 12, 2019

Reginald Stewart, Appellant,
v.
State of Kansas, Appellee.

         SYLLABUS 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 discretion.

         2. Even 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.

         3. The 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.

         4. When 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.

         Review of the judgment of the Court of Appeals in an unpublished opinion filed July 7, 2017.

          Appeal 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.

          Boyd 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.

          JOHNSON, J.

         Reginald 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 this case.

         The 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.

         Factual and Procedural Overview

         After 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.

         At 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.

         On 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).

         Subsequently, 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.

         Almost 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.

         Stewart 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.

         The 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.

         Stewart 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 have ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.