BY THE COURT
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.
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.
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.
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.
of the judgment of the Court of Appeals in an unpublished
opinion filed July 14, 2017.
from Sedgwick District Court; James R. Fleetwood, Judge.
Kristen B. Patty, of Wichita, argued the cause and was on the
brief for appellant.
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.
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.
and Procedural Overview
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).
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).
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.
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.
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).
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.
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.
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
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
timely petitioned for review.
Court's Adoption of State's Response as its Findings
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
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 ...