BY THE COURT
State waives the ability to raise a statute of limitations
defense to a K.S.A. 60-1507 motion in the appellate court if
it did not raise that defense in the trial court.
Sixth Amendment to the United States Constitution guarantees
a criminal defendant the right to effective assistance of
counsel. To show a violation, the defendant must meet the
two-part test set out in Strickland v. Washington,
466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984):
that the attorney's conduct fell below an objective
standard of reasonableness and that the attorney's
inadequate conduct prejudiced the defendant.
Prejudice is shown if there is a reasonable probability that
the proceeding's outcome would have been different had
the representation been adequate. A reasonable probability is
one sufficient to undermine confidence in the outcome.
determine Strickland prejudice in cases alleging a
failure to present mitigation for purposes of sentencing, the
court must reweigh the evidence in aggravation against the
totality of available mitigating evidence.
this case, where the aggravating circumstances greatly
outweigh the mitigating circumstances, defendant fails to
show the attorney's representation prejudiced him, even
though the defendant's attorney offered no mitigating
evidence at sentencing.
from Labette District Court; Jeffry L. Jack, judge.
A. Kaul, of Kansas Appellate Defender Office, for appellant.
Stephen P. Jones, county attorney, and Derek Schmidt,
attorney general, for appellee.
Leben, P.J., Malone and Gardner, JJ.
Anthony Baker repeatedly abused and then murdered a
19-month-old infant who was in his care. He pled guilty to
felony murder, child abuse, possession of marijuana, and
obstruction of official duty. The Kansas Supreme Court
affirmed his convictions and sentence on appeal. State v.
Baker, 297 Kan. 482, 301 P.3d 706 (2013). Baker then
moved for relief under K.S.A. 60-1507, alleging that his
counsel was constitutionally ineffective at sentencing for
not presenting any mitigating evidence of his mental health.
After an evidentiary hearing, the district court found that
Baker suffered no prejudice from any deficient performance by
counsel at sentencing. We agree. Given the overwhelming
aggravating factors, we find no reasonable probability that
the omitted evidence would have changed the conclusion that
the aggravating circumstances outweighed the mitigating
circumstances and, thus, the sentence imposed. Baker has not
met his burden to show a reasonable probability that, but for
counsel's deficient performance, he would have received a
and Procedural Background
2011, Baker pleaded guilty to felony murder, child abuse,
possession of marijuana, and obstruction of official duty. As
part of the plea agreement, Baker reserved the right to argue
for concurrent sentences and the State reserved the right to
argue for consecutive sentences.
sentencing, Baker agreed his criminal history score was a B.
The sentencing court, Judge Robert Fleming, heard testimony
from the victim's family. The State asked to present
evidence regarding the extent of the victim's injuries.
Baker's appointed counsel, Samuel Marsh, stated he did
not think that was necessary because the State could have had
a preliminary hearing if it so desired. Marsh also submitted
a brief arguing against double jeopardy for the felony murder
and child abuse crimes. Marsh stated:
"I'm trying to raise those issues, Judge, because
hopefully I want to get this right. Obviously, this is a life
sentence. He's going to go to prison for life.
"I think the issue here is whether you run these
sentences consecutively or concurrently, and ultimately
that's your decision. And I've raised the issues. The
State's raised the issues. I think it's up to you to
make the decision."
Fleming then heard testimony from the pathologist in which he
recounted his findings from the autopsy. The pathologist
concluded the child died from trauma to his head and abdomen.
The pathologist testified the injuries to the child were done
with a lot of energy and force. Marsh had no questions for
this witness and stated he had no further evidence he wished
to present. When Judge Fleming asked for Baker's
statement or whether he had any mitigating evidence, Baker
replied that he was sorry because nothing would heal the
family's pain. Baker did not mention any mental health
Fleming sentenced Baker to life imprisonment on the murder
count, 128 months in prison on the child abuse count, 12
months in prison on the marijuana possession count, and 7
months in prison for the obstruction of official duty count.
The sentence for felony murder, an "off-grid
crime," was life in prison with parole eligibility after
serving 20 years (with no deductions for good-time credits).
See K.S.A. 21-3401; K.S.A. 21-4706(c); and K.S.A. 2010 Supp.
22-3717(b)(2). The other three crimes had presumptive
sentences under the guidelines, which provide three potential
sentences based on the severity level of the crime and the
defendant's criminal-history score. Judge Fleming imposed
the aggravated sentences for each crime and ordered them to
run consecutive. This meant that Baker would first serve the
20-year minimum sentence for felony murder and then serve up
to another 147 months.
ruling, Judge Fleming stated: "[F]rankly, to take out
your frustrations on an innocent baby . . . I consider to be
the most cowardly, egregious, disgusting kind of conduct I
can imagine. And I think it certainly merits a sentence for
abuse of a child in the aggravated range in the grid
box." At other times in the sentencing hearing, the
sentencing court stated it was not inclined to look for
equity for Baker. And it concluded the hearing by stating:
"Well, as I said before, notwithstanding [defense
counsel's] comments about consecutive sentences lacking
equity or being fundamentally unfair, Mr. Baker is entitled
to due process. He's had it. He's pled guilty.
I'm not inclined to be charitable toward him."
timely filed the K.S.A. 60-1507 motion he now appeals. It
alleges: (1) the district court abused its discretion in
sentencing Baker by denying his request to run the sentences
concurrent and (2) he received ineffective assistance of
counsel because his attorney "promised that the plea
would be granted" yet he did not end up receiving a
concurrent sentence. Baker claimed the concurrent sentences
agreement was the reason he agreed to enter the plea and he
believed the plea bargain would be honored. Baker further
stated that he did not raise this argument in his direct
appeal because his appellate attorney had not consulted him
before filing it.
later filed three amended 60-1507 motions. In the first,
filed in December 2014, Baker again argued ineffective
assistance of counsel regarding his ability to request
concurrent sentences. Baker argued that the written plea
agreement was ambiguous, that he did not understand the State
was free to argue in favor of consecutive sentences, and that
he did not understand the court could order a sentence
different than agreed to in the plea agreement. In August
2015, Baker filed a second amended motion. This motion added
another ineffective assistance of counsel claim, alleging his
trial counsel failed to investigate Baker's mental health
history and failed to offer mitigating evidence of mental
illness and traumatic childhood events. Baker's third
amended motion, filed in February 2017, included the same
arguments but focused mostly on counsel's failure to
investigate and failure to present mitigating evidence.
evidentiary hearing on Baker's 60-1507 motions
different judge, Judge Jeffry Jack, conducted the evidentiary
hearing on Baker's K.S.A. 60-1507 motion. Marsh agreed
that he could have put on mitigating evidence at Baker's
sentencing hearing. Marsh stated whether the sentences were
run consecutive or concurrent was ultimately up to the
district court's discretion. Marsh admitted he was aware
of Baker's mental health issues, as he had discussed
Baker's mental health issues with Baker, but he never had
Baker's mental health evaluated. Marsh was initially
concerned about Baker's competency to stand trial, but he
thought Baker seemed competent. Marsh considered presenting
Baker's mental health issues to the sentencing court as
mitigating evidence but decided not to do so. His reason was
based on his long, personal experience with the sentencing
"[M]y experience appearing before Judge Fleming,
especially in child cases, was that we were probably better
off going in and taking responsibility for our actions,
hoping that these would be consecutive, rather than going in
and trying to mitigate through psychological mumbo-jumbo, for
lack of a better term."
had met Baker's family members before sentencing but did
not ask any of them to testify on Baker's behalf at the
sentencing hearing. Marsh stated: "You know, I don't
recall talking to anyone. We knew he was going to get a life
sentence. There had been some changes in the plea . . . I
don't specifically remember talking to them about
"I mean, obviously, if you get a person a life sentence,
that's not a great agreement, but I was [satisfied] in
this case. He was charged with . . . murder. He was charged
with a[n] aggravated sodomy charge. If that could have
resulted in the death penalty upon those convictions. The
sentence for murder could have been a hard 50. The sentence
for aggravated sodomy could have been life without
eligibility for parole. . . . His ultimate sentence was life.
Eligibility for parole after 20. The agg[ravated] sodomy went
away. So therefore, the death penalty went away. While I
wouldn't say that I was completely satisfied. I wish we
could have got the sentences concurrently. But we made a lot
of very serious charges and serious consequences go
felt that the longer the case went on, the greater the
chances were for the death penalty. Marsh had negotiated
other plea agreements with the State, but the State rejected
them. Marsh stated there could be a sufficient factual basis
for the murder charge, but his and Baker's main goal was
to make the aggravated sodomy charge go away. Because Baker
had previous aggravated indecent liberty convictions that
could have been presented to the jury, Marsh believed a jury
would have convicted Baker on the current sodomy charge had
it not been dismissed due to Baker's plea. Marsh
discussed all the options with Baker and Baker accepted the
plea. The plea dismissed the aggravated sodomy charge and
thus took the death penalty off the table. The plea preserved
Baker's ability to argue for concurrent sentences.
mental health professional, Dr. Jon Sward, also testified as
an expert witness. Sward testified that the purpose of a
mental health evaluation is to do a comprehensive evaluation
of a person's mental, emotional, behavioral, functional,
and personality makeup and then recommend treatment plans for
each person. Sward testified that Baker's medical records
showed previous methamphetamine use, a diagnoses of
post-traumatic stress disorder (PTSD), cannabis use disorder,
an adjustment disorder with a depressive reaction, and an
unspecified personality disorder.
also interviewed Baker in person. Sward learned that Baker
had a difficult childhood comprised of his mother abandoning
him, sexual abuse, a physically abusive father and
stepmother, and substance abuse that started at an early age.
Sward estimated Baker's intellectual functioning was
"low normal to maybe slightly below normal." Baker
also had psychiatric problems that started in his childhood
such as attention deficit hyperactivity disorder, dyslexia,
bipolar disorder, and oppositional defiant disorder.
told Sward he had found his mother's body after she
committed suicide and this caused nightmares and frequent
intrusive memories. Sward found this supported a PTSD
diagnosis. Tests also indicated Baker might have some
neurological problems and behavioral dysfunction, would
likely have difficulty in forming close relationships, and
would tend to be emotionally restricted. Sward testified that
those who were abused as a child also become abusers
themselves, not necessarily because of intent, but as more of
"a si[de] effect." Ultimately, Sward concluded
Baker had complex PTSD at the time he committed his crimes.
sister testified that Baker told her he feels remorse for his
actions and she would have been willing to testify to his
good character at this sentencing hearing had she been asked.
Baker's grandmother and father would have also testified
to Baker's good character if asked. Baker testified that
he spent time in and out of juvenile facilities and at mental
hospitals throughout his life. Baker stated Marsh would have
had access to this history as far as he was aware.
Folsom, a criminal defense lawyer, also testified as an
expert witness. Folsom stated he tries to put on mitigating
evidence at every sentencing hearing no matter what the
offense is. Folsom testified: "If it's a contested
hearing, . . . I think that there is some duty to present
mitigating evidence to balance the aggravating
evidence." Folsom stated: "Otherwise, you're,
the defense lawyer is abandoning the rule of advocate in that
situation." Folsom testified evidence that mitigates
one's culpability or explains events or circumstances
leading up to a certain offense are particularly powerful.
respect to Baker's case, because Baker received the
aggravated number for each offense, Folsom would have argued
for a standard or mitigated sentence "or maybe argue
that one of the counts should be [run] concurrently with the
first degree murder." Folsom stated the mitigating
evidence could have helped the district court give Baker
something other than the worst possible sentence on every
count. Folsom opined that Marsh should have reasoned there
was some sort of mental illness going on and should have
immediately had Baker evaluated. Folsom did not think
Marsh's failure to present any mitigating evidence could
be seen as a strategic decision. Folsom concluded Marsh's
representation fell below the objective standard of
reasonableness because "powerful" mitigating
evidence existed of Baker's mental illness yet it was not
investigated or presented to the district court.
ruling, Judge Jack cited the appropriate standard to
determine whether Marsh was ineffective was the two-pronged
test set forth in Strickland v. Washington, 466 U.S.
668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
Strickland requires Baker to show: (1) that
Marsh's conduct fell below an objective standard of
reasonableness; and (2) to show prejudice-a reasonable
probability that, but for counsel's deficient
performance, the outcome of his sentencing proceeding would
have been different. 466 U.S. at 687.
Marsh's conduct, Judge Jack held the evidence presented a
very close question. Although Marsh probably should have
investigated Baker's mental health, he was unsure whether
Marsh was required to investigate further. Judge Jack stated
that Marsh's decision was tactical and he had a reason
for doing what he did: "It wasn't a fanciful or
crazy reason, but he based it on his 20 years of experience
as a criminal defense lawyer" in Kansas, on the facts of
this case, and on his knowledge of the particular judge he
was appearing in front of. Judge Jack stated there is more to
sentencing than just aggravating and mitigating factors-a
court also considers the number, severity, and type of crime;
chances of rehabilitation; dangers to the community; and the
court's own observations of the defendant. Judge Jack
held that Marsh had taken all of those factors into account
in making his decisions. Ultimately, Judge Jack did not
definitively rule on whether Marsh's performance was
deficient under the first Strickland prong.
Judge Jack found no prejudice. He did not think it was
probable that Judge Fleming would have made a different
decision or that there would have been a different outcome
even if Marsh had presented mitigating mental health
evidence. He found the aggravating factors would have likely
outweighed the mitigating factors and Baker would still have
received consecutive sentences. Having heard all the
mitigating evidence, Judge Jack did not think testimony from
Baker's family that he was a good grandson would have
changed Judge Flemings's opinion of Baker's crimes.
And if Baker's sister had been called to testify to his
good character, she would likely have testified on
cross-examination that Baker had sexually abused her, which
may have aggravated the situation.
Jack specifically addressed the expert testimony about
Baker's mental health. He stated Baker's PTSD arose
from two events-his mother's death and the events of
these crimes-yet Baker had committed serious crimes before he
found his mother's body and before he committed these
crimes. Judge Jack noted the uncontested evidence that Baker
had committed crimes against this child repeatedly, not just
on the one date he was convicted of. Baker committed a series
of brutal events and had tried to hide his crimes from
police. Judge Jack did not think the sentencing court would
have credited Baker's PTSD evidence-instead, presenting
that evidence may have increased the sentence if that had
been an option. Judge Jack stated that he would have given
Baker the same sentences that Judge Fleming gave him.
Jack concluded that Baker failed to show prejudice, so he
denied his motion. Baker filed a timely notice of appeal.
Baker's Amended K.S.A. 60-1507 Motion Timely?
first address the State's argument that Baker's three
amended K.S.A. 60-1507 motions are untimely. The State
contends the amended motions were not filed within the
one-year statutory limitation and do not relate back to the
date of Baker's original timely motion because they
substantially changed the arguments and claims Baker made in
the original motion. See Pabst v. State, 287 Kan. 1,
Syl. ¶ 7, 192 P.3d 630 (2008) (finding that an amendment
to a K.S.A. 60-1507 motion that asserts a new ground for
relief which is supported by facts that differ in both time
and type from the grounds set forth in the original motion
does not relate back to the date of the original motion, so
as to circumvent the one-year limitation of K.S.A.
Jack did not address this timeliness issue, apparently
because the State did not raise it below. We find no citation
to the record presenting this defense. By not raising the
defense of untimeliness to the district court, the State
waived that defense on appeal, as we have previously held:
"Proceedings under K.S.A. 60-1507 are civil in nature
and are governed by the rules of civil procedure. Smith
v. State, 22 Kan.App.2d 922, 923, 924 P.2d 662 (1996).
The bar of a statute of limitations is not a jurisdictional
bar, but rather an affirmative defense which must be pled.
K.S.A. 2017 Supp. 60-208(c)(1)(P). A party may waive the
statute of limitations defense, and the district court may
proceed to hear and decide the case. Diversified
Financial Planners, Inc. v. Maderak, 248 Kan. 946, 948,
811 P.2d 1237 (1991). If a party fails to properly assert an
affirmative defense before the district court, it waives the
defense on appeal. 248 Kan. at 948.
"K.S.A. 2017 Supp. 60-1507(f) is comparable to a statute
of limitations. See Morningstar v. State, No. 116,
857, 2018 WL 297336, at *2 (Kan. App. 2018) (unpublished
opinion) (calling K.S.A. 2017 Supp. 60-1507[f] a statute of
limitations); Bradford v. State, No. 117, 354, 2017
WL 6062089, at *1 (Kan. App. 2017) (unpublished opinion)
(calling K.S.A. 2016 Supp. 60-1507[f] a statute of
limitations). Our statutes of limitation, when read together,
do not impose an absolute, unconditional time bar to a civil
action. They permit the tolling of the limitation period
during the disability of the plaintiff (K.S.A. 60-508 and
60-515) or when the defendant has absconded, has concealed
himself or herself, or has departed the state (K.S.A.
60-517). Similarly, the one-year time limitation of K.S.A.
2017 Supp. 60-1507(f) may be extended to prevent manifest
injustice. Thus, the running of the one-year period in K.S.A.
2017 Supp. 60-1507(f) does not provide a jurisdictional bar
that prevents the court from hearing the motion. Because the
one-year time limit in K.S.A. 2017 Supp. 60-1507(f) is not
jurisdictional, it may be waived if not asserted."
Lewis v. State, No. 117, 985, 2018 WL 4038981, at *2
(Kan. App. 2018) (unpublished opinion).
believe this reasoning is sound and we adopt it here. The
State waived the time limit of K.S.A. 2018 Supp.
60-1507(f)(1) by not asserting it earlier. We thus consider
all of Baker's motions to be timely.
the District Court Err in Denying Baker's K.S.A. 60-1507
address the substance of Baker's claim that the district
court erred in denying his K.S.A. 60-1507 motion. Because the
district court held an evidentiary hearing on Baker's
K.S.A. 60-1507 motion, we review its factual findings for
substantial competent evidence and evaluate whether those
findings support the trial judge's conclusions of law. We
review the district court's legal conclusions de novo.
Thompson v. State, 293 Kan. 704, 715-16, 270 P.3d
Sixth Amendment to the United States Constitution guarantees
a criminal defendant the right to effective assistance of
counsel. To prevail on a claim of ineffective assistance of
counsel, a criminal defendant must establish: (1)
counsel's performance was deficient under the totality of
the circumstances, and (2) prejudice, meaning that it is
reasonably probable that the jury would have reached a
different result absent the deficient performance.
Sola-Morales v. State, 300 Kan. 875, 882, 335 P.3d
1162 (2014) (relying on Strickland, 466 U.S. at
reviewing court may first consider the prejudice prong of an
ineffective assistance of counsel claim by assuming trial
counsel's alleged errors amounted to deficient
performance. Edgar v. State, 294 Kan. 828, 843, 283
P.3d 152 (2012) (quoting Strickland, 466 U.S. at
697). We do so here, as did the district court. We note that
even in a death penalty case, the decision not to present
mitigation may be supported in certain cases by
"strategic judgments," provided the reviewing court
is satisfied with "the adequacy of the investigations
supporting those judgments." Wiggins v. Smith,
539 U.S. 510, 521, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003).
Perhaps that is the case here. Yet Marsh's decision not
to present any "psychological mumbo-jumbo" may not
have been reasonable merely because he believed Judge Fleming
was the type of judge who wanted defendants to accept
responsibility for child crimes. Presenting evidence of
Baker's mental health issues as a mitigating sentencing
factor would not have precluded Baker from accepting
responsibility for his crimes. For purposes of expediency we
assume, without deciding, that Marsh's performance was
deficient under the totality of the circumstances.
focus our analysis on whether Baker has shown prejudice.
Baker has the burden to show prejudice-none is presumed. See
State v. Sprague, 303 Kan. 418, 426, 362 P.3d 828
(2015); State v. Kettler, 299 Kan. 448, 465, 325
P.3d 1075 (2014). "The challenged aspects of
counsel's performance-failing to adduce mitigating
evidence and waiving closing argument-are plainly of the same
ilk as other specific attorney errors subject to
Strickland's performance and prejudice
components. See, e.g., Darden v. Wainwright, 477
U.S. 168, 184, 106 S.Ct. 2464, 91 L.Ed.2d 144." Bell
v. Cone, 535 U.S. 685, 686, 122 S.Ct. 1843, 1846, 152
L.Ed.2d 914 (2002).
ultimate focus of the Strickland test is centered on
fairness and is used to determine whether the result of a
particular proceeding is unreliable because of a breakdown in
the adversarial process. Strickland, 466 U.S. at
696. Baker must show that counsel's errors were so
serious that they deprived him of a fair sentencing
proceeding. See State v. Hedges, 269 Kan. 895, 913,
8 P.3d 1259 (2000).
must show a reasonable probability that, but for
counsel's deficient performance, the outcome of the
sentencing proceeding would have been different.
Sprague, 303 Kan. at 426. A reasonable probability
is a probability sufficient to undermine confidence in the
outcome of those proceedings. State v. DeWeese, 305
Kan. 699, 710, 387 P.3d 809 (2017). The reasonable
probability test asks whether the newly disclosed evidence
puts the whole case in such a different light as to undermine
confidence in the result. State v. Moore, 302 Kan.
685, 701, 357 P.3d 275 (2015) (quoting State v.
Warrior, 294 Kan. 484, 511, 277 P.3d 1111');">277 P.3d 1111 ).
Jack's application of the Strickland
record shows that Judge Jack may not have properly applied
this test here. He correctly stated the Strickland
test, yet he required Baker to show that it was "more
likely than not" that the sentencing judge would have
made a different decision had the mitigating evidence been
presented. But Strickland makes clear that "a
defendant need not show that counsel's deficient conduct
more likely than not altered the outcome in the case."
466 U.S. at 693. Instead, the reasonable probability standard
is a lesser standard- that there is a reasonable probability
that, but for counsel's unprofessional errors, the result
of the proceeding would have been different. "A
reasonable probability is a probability sufficient to
undermine confidence in the outcome." 466 U.S. at 694.
"This requires showing that counsel's errors were so
serious as to deprive the defendant of a fair trial, a trial
whose result is reliable." 466 U.S. at 687. But it
"is not enough for the defendant to show that the errors
had some conceivable effect on the outcome of the
proceeding." 466 U.S. at 693.
Jack also stated that he would have given Baker the same
sentences that Judge Fleming gave him. To the extent that
Judge Jack may have applied a subjective standard instead of
an objective one (reasonable probability), he erred, as
Strickland calls for an inquiry into the objective
reasonableness of counsel's performance. Cf.
Harrington v. Richter, 562 U.S. 86, 110, 131 S.Ct.
770, 178 L.Ed.2d 624 (2011).
Judge Jack may or may not have considered Judge Fleming's
alleged philosophy in child victim cases in determining
prejudice. To the extent he did so, he erred. This is because
Strickland teaches that a particular judge's
unusual propensity toward harshness or leniency, even if
relevant to counsel's strategy or performance, is
irrelevant to the prejudice inquiry.
"The assessment of prejudice should proceed on the
assumption that the decisionmaker is reasonably,
conscientiously, and impartially applying the standards that
govern the decision. It should not depend on the
idiosyncracies of the particular decisionmaker, such as
unusual propensities toward harshness or leniency. Although
these factors may actually have entered into counsel's
selection of strategies and, to that limited extent, may thus
affect the performance inquiry, they are irrelevant to the
prejudice inquiry. Thus, evidence about the actual process of
decision, if not part of the record of the proceeding under
review, and evidence about, for example, a particular
judge's sentencing practices, should not be considered in
the prejudice determination." Strickland, 466
U.S. at 695.
our application of the proper standard to evaluate prejudice
results in the same conclusion as Judge Jack's-Baker
fails to show prejudice sufficient to warrant resentencing.
application to noncapital sentencing proceedings
Supreme Court's jurisprudence "suggests that any
amount of actual jail time has Sixth Amendment
significance." Glover v. United States, 531
U.S. 198, 199, 121 S.Ct. 696, 148 L.Ed.2d 604 (2001)
(applying Strickland to a noncapital sentencing
proceeding); see Lafler v. Cooper, 566 U.S. 156,
165, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012) (stating that the
Strickland standard applies at sentencing because
any amount of additional jail time given would have Sixth
Amendment significance). Yet Baker cannot show a reasonable
probability that his jail time would have been reduced by
even one month had Marsh presented the mitigating evidence
argued on appeal.
determine Strickland prejudice in cases alleging a
failure to investigate and present mitigation, as here, the
court must "'reweigh the evidence in aggravation
against the totality of available mitigating
evidence.'" Ayestas v. Davis, 584 U.S.____,
138 S.Ct. 1080, 1100, 200 L.Ed.2d 376 (2018) (quoting
Wiggins v. Smith, 539 U.S. 510, 534, 123 S.Ct. 2527,
156 L.Ed.2d 471  [finding the mitigating evidence
counsel failed to discover and present was
"powerful"]); see Porter v. McCollum, 558
U.S. 30, 41, 130 S.Ct. 447, 175 L.Ed.2d 398 (2009) (per
curiam). Although Kansas cases have not addressed that issue,
we apply that standard here.
asserts that his counsel was ineffective for not introducing
mitigating evidence to persuade the sentencing judge to
sentence him to a lower grid box number rather than to the
aggravated grid box number he received, or to sentence him to
concurrent sentences. As Baker concedes, his ultimate claim
in his 60-1507 motions is that "Marsh was ineffective
for failing to put on any evidence to support his request
that the sentences run concurrently." At sentencing,
although Marsh requested concurrent sentences, ...