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Breedlove v. State

Supreme Court of Kansas

July 12, 2019

Terral Breedlove, Appellant,
v.
State of Kansas, Appellee.

         SYLLABUS BY THE COURT

         1. Although not encouraged because it is susceptible to abuse, a district court's adoption of the State's response to a K.S.A. 60-1507 motion as the court's entire findings of fact and conclusions of law is not, as a matter of law, always reversible error. The K.S.A. 60-1507 movant has the burden to show that the district court failed to conduct an independent review of the motion, files, and records before summarily denying the motion.

         2. An indigent K.S.A. 60-1507 movant has a statutory right to appointed counsel when the district court finds that the motion presents substantial questions of law or triable issues of fact. Procedural due process dictates that a K.S.A. 60-1507 movant has a right to counsel whenever the district court conducts an actual hearing at which the State is represented by counsel.

         3. To prevail on a claim of ineffective assistance of counsel, a defendant must first establish that counsel's performance was deficient, and, if so, further establish prejudice, i.e., there was a reasonable probability that the jury would have reached a different result but for the deficient performance.

         4. A poverty affidavit may be filed in lieu of paying the $195 filing fee required by K.S.A. 2015 Supp. 60-2008 for dispositive motions. A poverty affidavit filed to originally docket a case may suffice as the poverty affidavit to subsequently file a dispositive motion under K.S.A. 2015 Supp. 60-2008 in the same case.

         Review of the judgment of the Court of Appeals in an unpublished opinion filed July 14, 2017.

          Appeal from Sedgwick District Court; James R. Fleetwood, Judge.

          Kristen B. Patty, of Wichita, argued the cause and was on the brief for appellant.

          Lance J. Gillett, 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

          Johnson, J.

         Terral Breedlove 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. With respect to the 60-1507 motion, Breedlove argues that the district court violated due process by failing to appoint counsel to represent him after reviewing a response from the State; that the district court abdicated its duties when it adopted the State's response to the motion as its findings of fact and conclusions of law; and that the district court erred in finding that his motion failed to raise substantial issues regarding the effectiveness of his trial counsel. In addition, Breedlove challenges the district court's assessment of a $195 filing fee as a condition precedent to accepting his "Motion for Summary Disposition," which asked the district court to take action on his motion that had been pending for more than two years. We affirm the summary denial of the motion, but reverse the imposition of the filing fee.

         Factual and Procedural Overview

         Terral Breedlove was 17 in 1995 when he and a codefendant fatally shot a man behind a Wichita grocery store and stole his car. Breedlove was tried as an adult for this and other crimes and, relevant here, a jury convicted him of felony murder. His convictions and sentences were affirmed on direct appeal. State v. Breedlove, No. 80, 952, unpublished opinion filed July 9, 1999 (Kan.) (Breedlove I).

         In 2006 Breedlove filed a motion to correct an illegal sentence on the basis that the district court lacked jurisdiction because he was not initially charged in juvenile court and the State did not obtain authorization to prosecute Breedlove as an adult. This court agreed and reversed the convictions and vacated the sentences. State v. Breedlove, 285 Kan. 1006, 1017, 179 P.3d 1115 (2008) (Breedlove II).

         The State brought charges in juvenile court, along with a motion requesting authorization for adult prosecution (MAP), which the juvenile court granted. Breedlove was represented by counsel at various stages in the juvenile and adult proceedings, including at the juvenile detention hearing, the hearing on the MAP, and at the eventual jury trial as an adult in Sedgwick County District Court.

         At the retrial in 2009, Breedlove's codefendant, Israel Sosa, implicated Breedlove as the trigger man. A jailhouse informant testified regarding an overheard conversation in which Breedlove implicated himself. Other witnesses said they saw Breedlove in the vicinity of the murder and that he was armed and looking for a vehicle. Breedlove was defended by attorney John Sullivan at the retrial.

         Breedlove was again convicted of first-degree murder and sentenced to life in prison. This court affirmed on direct appeal. State v. Breedlove, 295 Kan. 481, 482, 286 P.3d 1123 (2012) (Breedlove III).

         The mandate issued October 9, 2012; Breedlove filed a pro se K.S.A. 60-1507 motion on September 4, 2013. Included with the motion were an affidavit of indigency, a motion to proceed in forma pauperis, and copies of his inmate trust account balance for the preceding six months. Breedlove filed an amended 60-1507 motion on November 12, 2013.

         During the period from 2013 to 2015, Breedlove sent several letters to the district court requesting updates on his case. When those inquiries failed to get his motion heard, Breedlove attempted to file a motion for summary disposition in 2015. But the district court refused to accept the filing without an accompanying $195 fee, which is required for dispositive motions, such as motions for summary judgment. Eventually, in August 2015, Breedlove paid the $195 fee and his motion requesting disposition was filed.

         Thereafter, the district court-which had already emailed the prosecutor's office requesting a response at least twice-again emailed the prosecutor, requesting that an attorney for the State file a response to Breedlove's 60-1507 motion. The State's response was filed on September 17, 2015, and two business days later the district court summarily denied the motion, adopting the State's response as the court's findings of facts and conclusions of law.

         Breedlove timely appealed. The Court of Appeals affirmed, holding that the district court's adoption of the State's response as its findings of facts and conclusions of law was not error; that the district court did not err in summarily denying Breedlove's 60-1507 motion without appointing an attorney despite asking the State for a response; that none of Breedlove's attorneys provided ineffective assistance of counsel; and that the district court did not err in imposing the filing fee for the dispositive motion. Breedlove v. State, No. 115, 401, 2017 WL 3001360, at *1 (Kan. App. 2017) (unpublished opinion) (Breedlove IV).

         Breedlove timely petitioned for review.

         District Court's Adoption of State's Response as its Findings

         Breedlove argues that the district court abdicated its constitutional responsibility and ceded judicial power to the State by adopting the State's response as its findings of fact and conclusions of law. He points out that the district court failed to act upon his motion for two years, and then adopted the State's response as its findings two business days after it was filed. Breedlove makes the conclusory claim that the procedure employed by the district court denied him due process.

         Standard of Review

         A summary denial of a 60-1507 motion is reviewed de novo to determine whether the motion, files, and records of the case conclusively establish that the movant is not entitled to relief. Sola-Morales v. State, 300 Kan. 875, 881, 335 P.3d 1162 (2014). Likewise, whether a district court's findings of fact and conclusions of law are sufficient is reviewed de novo. Robertson v. State, 288 Kan. 217, 232, 201 P.3d 691 (2009). And finally, "[t]he issue of whether due process has been ...


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