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Baker v. State

Court of Appeals of Kansas

December 20, 2019

Mark Anthony Baker, Appellant,
v.
State of Kansas, Appellee.

         SYLLABUS BY THE COURT

         1. The 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.

         2. The 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.

         3. 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.

         4. To 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.

         5. In 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.

          Appeal from Labette District Court; Jeffry L. Jack, judge.

          Korey A. Kaul, of Kansas Appellate Defender Office, for appellant.

          Stephen P. Jones, county attorney, and Derek Schmidt, attorney general, for appellee.

          Before Leben, P.J., Malone and Gardner, JJ.

          Gardner, J.

         Mark 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 lesser sentence.

         Factual and Procedural Background

         In 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.

         Baker's sentencing hearing

         At 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."

         Judge 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 issues.

         Judge 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.

         In 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."

         Baker's 60-1507 motions

         Baker 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.

         Baker 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.

         The evidentiary hearing on Baker's 60-1507 motions

         A 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 judge:

"[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."

         Marsh 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 testifying."

"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 away."

         Marsh 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.

         A 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.

         Sward 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.

         Baker 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.

         Baker's 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.

         Carl 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.

         With 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.

         Judge Jack's ruling

         In 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.

         As to 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.

         Instead, 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.

         Judge 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.

         Judge Jack concluded that Baker failed to show prejudice, so he denied his motion. Baker filed a timely notice of appeal.

         I. Is Baker's Amended K.S.A. 60-1507 Motion Timely?

         We 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. 60-1507[f][1]).

         Judge 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).

         We 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.

         II. Did the District Court Err in Denying Baker's K.S.A. 60-1507 Motion?

         We next 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 1089 (2011).

         The Strickland standard

         The 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 687).

         A 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.

         We thus 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).

         The 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).

         Baker 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 [2012]).

         Judge Jack's application of the Strickland standard

         The 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.

         Judge 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).

         And 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.

         Nonetheless, 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.

         Strickland's application to noncapital sentencing proceedings

         The 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.

         To 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 [2003] [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.

         Baker 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, ...


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