Ojeda v. State ( 2023 )

NOT DESIGNATED FOR PUBLICATION
No. 124,381
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
DANIEL OJEDA,
Appellant,
v.
STATE OF KANSAS,
Appellee.
MEMORANDUM OPINION
Appeal from Johnson District Court; BRENDA M. CAMERON, judge. Opinion filed January 20,
2023. Affirmed.
Brittany E. Lagemann, of Olathe, for appellant.
Daniel G. Obermeier, assistant district attorney, Stephen M. Howe, district attorney, and Derek
Schmidt, attorney general, for appellee.
Before ARNOLD-BURGER, C.J., BRUNS and HURST, JJ.
PER CURIAM: Daniel Ojeda appeals the district court's denial of his K.S.A. 60-
1507 motion, alleging multiple claims that his trial attorney rendered ineffective
assistance of counsel. The district court properly found that substantial competent
evidence demonstrated that Ojeda's trial counsel did not provide ineffective assistance of
counsel. While Ojeda's atypical challenge to two of his charges created unique defense
opportunities, the district court properly found that Ojeda's trial counsel's strategic
choices to assert those defenses were not deficient. This court affirms the district court's
denial of Ojeda's K.S.A. 60-1507 motion.
1
FACTUAL AND PROCEDURAL BACKGROUND
In 2004, a jury convicted Ojeda of aggravated kidnapping, rape, aggravated
criminal sodomy, attempted aggravated kidnapping and attempted rape for his attacks on
two women on two separate occasions. The facts supporting his convictions are relevant
to Ojeda's current claims and were summarized by a panel of this court on direct appeal:
"To set the stage for our discussion of the legal issues, we must first go through the facts
in some detail. We will begin with the version presented by the victims and investigating
officers.
"The first attack occurred on April 7, 2004. H.T., a 23-year-old woman, was
walking on the Tomahawk Creek Trail in Leawood. She noticed a man who twice rode
past her on his bike. When he came back a third time, he got off the bike and put her in a
"bear hug" from behind, pinning her arms to her side. He dragged her off the trail and
into the woods; he then forced her down on her hands and knees before pulling down her
pants and underwear. He fondled her breasts, pulled down his pants, and then penetrated
her with his penis first vaginally and then anally.
"H.T. said that the man also rubbed his penis on her and may have penetrated her
a second time vaginally, although she wasn't sure. At some point, though, he ejaculated,
which she felt on her thigh. H.T. said she didn't consent to any of this and that the man
rode away on his bicycle afterwards. She described him as about 5-foot, 10-inches tall,
185 pounds, 25 to 30 years old, clean shaven, and Hispanic, with dark hair and a decent
build.
"The second attack took place April 15, 2004. C.H., a 29-year-old woman, was
jogging on the same trail. She said she was attacked from behind by a man who tried to
pull a duct-tape gag over her mouth. C.H. grabbed the man's forearms, screamed, and
threw her elbows back. The attacker dropped the duct tape and ran away. She didn't see
his face but said the man was between 5-foot, 9-inches and 5-foot, 11-inches tall,
extremely fit, and had dark hair.
2
"While investigating the second attack, officers found a witness, Mark Adams,
who had seen a Hispanic man put his bike into the back of a tan Ford Explorer and
quickly leave the parking lot along the recreational trail. So officers staked out the
parking lot the next day watching for vehicles matching that description. Ojeda drove in,
and officers talked with him. Ojeda provided both fingerprints and a saliva swab for
DNA testing. Ojeda's fingerprints matched some found on duct tape discovered at the
scene of the attack, and his DNA matched DNA from semen found on H.T.'s jeans, shirt,
and underwear.
"The State charged Ojeda with rape and aggravated criminal sodomy for the
April 7 attack and attempted rape for the April 15 attack. In addition, because H.T. had
been moved from the visible trail into a less visible area before she was raped, the State
charged Ojeda with aggravated kidnapping against her. The State also charged Ojeda
with attempted aggravated kidnapping against C.H. based on the premise that, had he
gained physical control of her, Ojeda had been about to move her away from the trail just
as he had done with H.T.
"In trial testimony, Ojeda admitted that he had attacked H.T. with the intent to
rape her. But he said he ejaculated before any penetration could occur because he was so
excited and nervous. He also denied having drug H.T. away from the trail path. Ojeda
didn't testify about the events of April 15.
"During deliberations, the jury sent a question to the judge: 'Can we consider the
events of April 7th to determine the intent of [the] April 15th events?' The judge
responded: 'Evidence of the events of April 7 may be considered for the purpose of
proving the defendant's intent on April 15.'
"The jury convicted Ojeda on all charges, and the district court sentenced Ojeda
to a controlling prison sentence of 330 months." State v. Ojeda, No. 105,438, 2012 WL
3289944, at *1-2 (Kan. App. 2012).
3
During initial pretrial proceedings, Ojeda was represented by appointed public
defenders, but before trial in August 2009, Ojeda hired private defense counsel who this
court will refer to throughout this opinion as trial counsel or trial attorney.
Trial Counsel's Conduct and Trial Strategy
Ojeda's trial counsel first appeared on Ojeda's behalf at a scheduling conference on
September 3, 2009, where he obtained a continuance of an imminent motions hearing to
allow him time to prepare. He stated that he had discussed this rescheduling with Ojeda,
and the motions hearing was then scheduled for October 28, 2009.
Trial counsel filed six motions in October 2009, including a motion to reconsider
bind-over on count five. For the attempted rape charge related to the attack on C.H., trial
counsel argued:
"[C]ount five of the complaint states Defendant did: 'approach [C.H.] from
behind when [C.H.] was jogging on a secluded path in a wooded park area and placed a
length of duct tape across the face of [C.H.].' Those are the only facts laid out in the
complaint to support the charge of attempted rape.
"The State presented evidence at Preliminary Hearing regarding both of the
incidents, and Defendant was bound over on all five charges.
"Based on a reading of count five of the complaint as a separate charge from the
four other counts, there is no indication of any intent to rape [C.H.]. Nothing in the
factual scenario accusing Defendant of placing duct tape on [C.H.]'s mouth from behind
suggests any type of sexual motivation by Defendant. It is only through a combined
reading of count five with the counts one through three from the incident involving [H.T.]
that any sexual intent could be presumed. It is improper to consider any of the evidence
relating to this separate incident when deciding to bind Defendant over on count five. The
consideration of a separate incident would be governed by K.S.A. 60-455 which states in
relevant part, 'evidence that a person committed a crime or civil wrong on a specified
occasion, is inadmissible to prove his or her disposition to commit crime or civil wrong
4
as basis for an inference that the person committed another crime or civil wrong on
another specified occasion . . .
"Bluntly put, the events of April 15th must stand on their own and support the
charge in count five on their own, and even viewed in 'best light,' for the State the
evidence presented at preliminary hearing fails in that regard."
At the hearing on the defense motions on October 28, 2009, trial counsel reiterated
the arguments he made in his motion to reconsider bind-over on count five and explained
that he and his client had "not requested separate trials at this juncture." The district court
noted during the hearing that "[i]f [trial counsel] wants to pursue a motion to sever, I will
certainly consider that. The law is very—pretty concise about when the defendant might
be entitled to a severance of the issues." The court ultimately denied the motion and the
trial was set for April 19, 2010.
During trial, on direct examination by his attorney, Ojeda testified that he attacked
H.T. on April 7, 2004, but did not penetrate her because he prematurely ejaculated while
pulling down her pants and pulling out his penis because he was "very excited and very
nervous." Upon further questioning from his attorney, Ojeda testified that his premature
ejaculation was how his semen got on H.T.'s jeans, shirt, and underwear. Ojeda further
testified that neither prior to nor after ejaculating did he penetrate H.T. Trial counsel did
not ask Ojeda questions about the attack on C.H. on April 15, 2004.
Upon cross-examination, Ojeda testified that he intended to rape H.T. when he
attacked her on April 7, 2004. Ojeda further testified that the idea of raping women
excited him and that attacking a woman walking alone in the park and pulling her pants
and panties down also excited him. Although he intended to rape H.T., Ojeda maintained
on cross-examination that when he pulled H.T.'s pants down and pulled his penis out, he
immediately ejaculated and never penetrated her.
5
During cross-examination, the State attempted to question Ojeda about the attack
on C.H., but trial counsel objected and claimed the questioning was beyond the scope of
his direct examination. He emphasized in his objection that his "direct [examination] was
specifically about April 7th" and that he "was just very specific about the date." The
district court ultimately sustained the objection and explained that "anything related to
the [C.H.] piece of this, Counts IV and V, are outside the scope. Any prior statements the
defendant made about the [H.T.] piece of this, Counts I, II, and III, are fair game." After
Ojeda's testimony the defense then rested.
During trial counsel's closing argument, he emphasized that none of Ojeda's DNA
was found on H.T.'s genital area. He stated that an experienced doctor had tested
numerous anal, cervical, and vaginal swabs and "not one cell [of Ojeda] was found" on
H.T. in those areas. He argued that "the State would have you [the jury] believe based
upon their theory that my client inserted himself multiple times into [H.T.] and left not
one single cell." He then reiterated that, in his opening statement, he stated that he was
not going to ask the jury to find Ojeda innocent, but ask for a verdict that was consistent
with the evidence. He argued that the evidence related to the attack on H.T. supported
attempted rape and kidnapping, not completed rape.
During deliberations, the jury sent out several questions, including "'Can we
consider the events of April 7th to determine the intent of April 15th events?'" Ojeda's
attorney objected to the State's proposed answer of "yes" on the grounds of joinder,
K.S.A. 60-455 evidence, and because the jury already received instructions regarding the
issue. Specifically, trial counsel argued that jury instruction No. 9 already informed the
jury that all the evidence may be considered regarding intent and that any answer beyond
referring the jury to the instructions it already had would be "underlining or
overemphasizing a specific instruction." The district court responded to the objection by
explaining that it had
6
"reviewed Instruction No. 9 which does say you can consider all of the evidence in the
case, but I am worried about Instruction No. 10 which is a pattern instruction, 6807 which
also says, 'Each crime charged against the defendant is a separate and distinct offense.
You must decide each charge separately on the evidence and law applicable to it
uninfluenced by your decision as to the other charge.'"
When reading jury instruction Nos. 9 and 10 together, the district court was
concerned that the jury would misunderstand the instructions and mistakenly believe it
could not consider all the evidence when evaluating each separate count. The district
court also observed that
"I don't think we considered a motion to sever in this, but we did consider a
motion to reconsider the bind over on Count V, and I think I probably stated for the
record at the time without Counts 1, II and III I don't think he would have been bound
over on Count V.
"So it has always been the law of this case that the Counts I, II and III were
considered as part of the evidence of the defendant's intent as to counts—well, as to
Count V."
Ultimately, the district court decided to send the following response to the jury:
"'Evidence of the events of April 7th may be considered for the purpose of proving the
defendant's intent on April 15th.'" The jury then reached verdicts in the case and found
Ojeda guilty on all five counts. The first three counts related to the attack on H.T. on
April 7, 2004: (Count I) aggravated kidnapping; (Count II) rape; (Count III) aggravated
criminal sodomy. The final two counts related to the attack on C.H. on April 15, 2004:
(Count IV) attempted aggravated kidnapping and (Count V) attempted rape.
On July 9, 2010, the court sentenced Ojeda to 165 months of incarceration for
each of Counts I and II: 123 months imprisonment for Count III and 61 months of
incarceration for each of Counts IV and V. The court ordered each sentence to run
consecutively, with Ojeda's maximum sentence to be 330 months of imprisonment.
7
Ojeda's Direct Appeal and K.S.A. 60-1507 Motion Alleging Ineffective Assistance of Trial
Counsel
Trial counsel filed a timely notice of appeal, and the public Appellate Defender's
Office represented Ojeda in his direct appeal. One of Ojeda's arguments on direct appeal
was that the district court erred in response to the jury's question, "'Can we consider the
events of April 7th to determine the intent of [the] April 15th events?'" A panel of this
court held that "[t]he district court's answer was legally correct" and found "no abuse of
discretion in its response." 2012 WL 3289944, at *5. This court further affirmed Ojeda's
convictions and determined it did not have jurisdiction to consider Ojeda's challenge to
his sentence, and affirmed the district court's judgment. 2012 WL 3289944, at *1-6. The
Kansas Supreme Court denied review. (297 Kan. 1253).
Ojeda filed a timely pro se K.S.A. 60-1507 motion on February 12, 2014, arguing
that his trial attorney provided ineffective assistance of counsel. Relevant to this appeal,
Ojeda asserted three specific claims. First, Ojeda argued that "[trial attorney's] failure to
file a motion to sever Counts 1, 2, and 3, from Counts 4, and 5 constitute[d] ineffective
assistance of counsel." Second, Ojeda argued that "[trial attorney's] placing . . . Ojeda on
the stand at trial to incriminate and give evidence against himself for [the] jury to use to
consider Counts 4, and 5 constituted ineffective assistance of counsel." Finally, Ojeda
asserted a cumulative error claim.
The district court appointed Ojeda counsel to represent him in his K.S.A. 60-1507
motion proceedings and held an evidentiary hearing on July 16, 2015, where both Ojeda
and his trial counsel testified. On direct examination by Ojeda's 60-1507 counsel, Ojeda
testified that his trial counsel "told me I ha[d] to testify" and that trial counsel failed to
explain why Ojeda needed to testify or explain that he was not required to testify. Ojeda's
60-1507 attorney asked Ojeda, "Did [trial counsel] tell you how to testify because it
would help your case, or did he just say, you're required to testify?" Ojeda responded,
8
"[he] told me not to say anything the first—about the two—two of the charges. That in
doing so I would be able to take care of the three—other three charges by saying that
with the other two charges." The 60-1507 attorney then asked, "So, if I understand you
right, by saying you were guilty of two of the charges, then the strategy was to say you
weren't guilty of the other three charges?" Ojeda responded affirmatively but said, "When
you say, if I prove my innocence the first three charges, I don't have to say nothing. I
prove my innocence on other two charges." Ojeda appeared to testify that the trial
strategy, as he understood it, was for Ojeda to testify about the first three charges to prove
his innocence and then he would not have to testify about the remaining two charges
because he would have also proven his innocence as to those charges as well.
Ojeda testified that he intended to prove his innocence on the first three charges by
"[t]elling the truth as to what happened." Ojeda explained that his trial counsel told him
that if he testified about what happened in the first three charges, the jury would most
likely not find him guilty and thereby also assume he was not guilty of the remaining two
charges. Ojeda then testified that the prosecution did, in fact, ask him questions about the
remaining two charges—which he intentionally had not testified about on direct—and
that is why the jury found him guilty of all five charges. Ojeda said that he believed the
State would not have met its burden if Ojeda had not testified at trial. Ojeda also testified
that he knew the difference between being told he had to testify and being told testifying
would help at trial, and that his trial counsel told him he had to testify. Additionally,
Ojeda said that his trial counsel never told him that his refusal to testify could not be used
against him by the State.
The State asked Ojeda, "[your trial counsel's] theory of defense was, as to counts
one, two, and three, was that you never completed the crimes, and therefore you're guilty
of attempted—attempt to commit the counts one, two, and three?" Ojeda responded, "It
wasn't a theory. He told me to tell the truth. I did what he told me to do. I never did what
they accused me of." The State then asked Ojeda, "You were the only person that could
9
present that evidence to the jury, correct? . . . You were the only one there that could
testify that you ejaculated prior to committing the crimes?" Ojeda responded, "Yes." The
State then asked, "So you had to testify in order to present that argument?" Ojeda
answered, "That's what my attorney told me to do."
Trial counsel then testified regarding his trial strategy. He testified that he
considered filing a motion to sever counts four and five from counts one, two, and three
but ultimately decided not to. He testified that his memory of the decision was not perfect
because it had been five years, but that he remembered discussing the decision "ad
nauseam" with Ojeda. He also explained that the decision not to seek severance was
partially motivated by Ojeda's potential exposure at sentencing if he were convicted in
both trials and the general nature of the defense. According to him, if he had tried to
sever the counts, there was no guarantee the court would have granted it, and—even if it
had—if Ojeda were convicted in the first trial, the State could have sought to admit that
evidence under K.S.A. 60-455 in the second trial. He further explained that his defense
was especially focused on sentencing and how different convictions would impact
Ojeda's sentence, and that "the thrust of [his] defense" was to get convictions of
attempted crimes.
Trial counsel further testified that he and Ojeda discussed Ojeda testifying "at
length." And although the attorney did not "have a specific recollection of an oral
conversation from five years ago" explaining that it was Ojeda's choice to testify, he
explained that telling clients it is their decision whether to testify is his "normal course of
representation" and he did not remember "doing it differently."
Trial counsel also testified that "[Ojeda's] testimony at trial was consistent with
what we had talked about," and that he did not ever recall telling a client to lie on the
stand, "[s]o if [Ojeda] says I told him to tell the truth, I probably did say something to
that effect." While he said that he did not specifically remember telling Ojeda that he had
10
to testify to pursue their defense strategy, he testified: ". . . I believe, given our defense,
that I probably did recommend to him, strongly, that he would have to testify to make our
defense believable." He explained that, as he recalled, his defense strategy focused on the
first three counts related to the attack on H.T. because Ojeda's sentence would be less if
the convictions were limited to level three felonies, as in the attempted charges, and he
was not convicted of a severity level one felony.
Trial counsel also testified that he likely limited the scope of his questioning of
Ojeda on direct examination "so that [Ojeda] couldn't be cross examined with respect to"
counts four and five. He explained that he "discussed it at great length" with Ojeda and,
to the best of his memory, wanted to avoid exposing Ojeda to cross examination on the
other counts. He further testified that he and Ojeda "talked about that the defense was
relative to the level one charge," and that, prior to trial, he prepared Ojeda for trial and
went over Ojeda's testimony with him. Trial counsel explained that, as he recalled,
"[Ojeda] was going to testify that there wasn't a completion of the crime that would
constitute a level one felony."
On October 15, 2015, the district court denied Ojeda's K.S.A. 60-1507 motion in a
ruling from the bench, and explained:
"Frankly, I didn't find [Ojeda's testimony] to be credible. [Trial counsel] filed
many motions in this case. He's a thorough lawyer, and I think his testimony was
credible, but he did file numerous motions on behalf of the defendant, a motion to include
testimony of sexually transmitted disease, motion for discovery, two motions in limine, a
motion for bill of particulars, and a motion to reconsider bind over at the preliminary
hearing, which is unusual quite frankly, but he did do that. I don't want to say unusual,
but just extra thorough, quite frankly, to ask for that. A motion for a new trial, which was
ten pages. It wasn't just a boilerplate motion, but had specifics in it, and his motions were
well done.
11
"In [trial counsel's] testimony he had indicated he had been practicing law since
1986. He had, I thought, very good reasons for his theory of the defense after speaking
with the defendant, and I thought that was reasonable under all the facts of the case.
"He indicated he discussed at length with the defendant whether he would testify.
He always tells defendants it's their choice, it's one of their own choices. He does give
recommendations, but he lets them decide that. He said he had discussed severing the
case. He had discussed that at ad nauseam with the defendant and because of the nature
of the case and all the facts surrounding that he chose the path that he did. He had good
reasonings for his questioning, I think, of the victims in the case and how that evolved,
and he didn't want the defendant to be cross-examined regarding the second victim. He
said he had prepared the defendant for his testimony. He discussed with him not
testifying, and their theory of defense. So I found his testimony to be credible and not
deficient in any way.
"In hindsight if the defendant, you know, doesn't like maybe the result, but that is
not the standard here.
"The defendant did appeal his conviction. He had been convicted of all counts at
the jury trial. He did appeal. The Court of Appeals confirmed those convictions.
"In his 60-1507 petition he claimed that [his trial attorney] was ineffective for
failing to cover [sic] Counts IV and V from Counts I, II and III, but [trial counsel]
testified the reasons for his theory, and I don't believe that was an error.
....
"He must show, of course, that [trial counsel's] performance was constitutionally
deficient, and that he was prejudiced.
"[Trial counsel] here in his representation of the defendant, I believe, was more
than reasonable in his assistance. It was more than competent. He had the advice of
counsel and representation by effective counsel. I think it's clear from the record that
12
Judge Ruddick was intent and committed to giving Mr. Ojeda a very hefty sentence, the
heaviest that he could give, and the facts support that.
"So I do not find that the petitioner, Mr. Ojeda's petition, should be granted.
Therefore, it is not."
On May 2, 2017, Ojeda filed an untimely pro se notice of appeal, as well as a
motion requesting to file his notice of appeal out of time, and a motion for appointment
of appellate counsel. Ojeda argued that his appointed 60-1507 counsel failed to keep him
updated on his case, never informed him that the district court denied his motion, and did
not inform him of his right to an appeal. The State did not object to Ojeda's request to file
his notice of appeal out of time. The district court granted Ojeda's motion to file his
notice of appeal out of time, and this court granted Ojeda's motion to docket his appeal
out of time.
DISCUSSION
Ojeda now appeals the district court's denial of his K.S.A. 60-1507 motion,
alleging his trial counsel's ineffective assistance of counsel. Specifically, Ojeda argues
the following in this appeal:
"1. [Trial counsel] failed to file a motion to sever Counts 1, 2, and 3 from Counts 4 and
5, because a conviction of the second crime was unlikely without the inference of
intent of the first crime. [Trial counsel's] ineffective assistance of counsel lead [sic] to
Mr. Ojeda's convictions in Counts 4 and 5.
"2. [Trial counsel] made Mr. Ojeda take the stand in his own defense, which lead [sic] to
Mr. Ojeda making incriminating statements that lead [sic] to his convictions in
Counts 1 through 5. Without those incriminating statements, Mr. Ojeda would likely
not have been found guilty. [Trial counsel's] ineffective assistance of counsel led to
Mr. Ojeda's convictions.
13
"3. [Trial counsel's] cumulative errors in representing Mr. Ojeda lead [sic] to his
convictions in Counts 1 through 5, thus violating Mr. Ojeda's right to effective
assistance of trial counsel."
Standard of Review and Legal Standard
When, as here, the district court conducted a full evidentiary hearing of the
defendant's 60-1507 motion, and made findings of fact and conclusion of law, this
court applies the bifurcated standard of review typically applied in civil
proceedings. See Khalil-Alsalaami v. State, 313 Kan. 472, 486, 486 P.3d 1216(2021). This court first determines "whether the district court's factual findings are
supported by substantial competent evidence" and whether those factual findings
support the district court's legal conclusions. Khalil-Alsalaami, 313 Kan. at 486
(quoting Bellamy v. State, 285 Kan. 346, 355, 172 P.3d 10 [2007]). This court
exercises unlimited review over the district court's legal conclusions and its
decision to grant or deny the 60-1507 motion. 313 Kan. at 486.
Substantial competent evidence is legal and relevant evidence which a reasonable
person might accept as sufficient to support a conclusion. Geer v. Eby, 309 Kan. 182,
190, 432 P.3d 1001 (2019); see Khalil-Alsalaami, 313 Kan. at 486 (explaining that
substantial competent evidence possesses both relevance and substance and which
furnishes a substantial basis in fact from which the issues can reasonably be resolved).
When "reviewing a district court's factual findings for substantial competent evidence,
appellate courts do not 'reweigh evidence, pass on the credibility of witnesses, or resolve
conflicts in the evidence.'" Khalil-Alsalaami, 313 Kan. at 486 (quoting State v. Sanders,
310 Kan. 279, 294, 445 P.3d 1144 [2019]).
This court analyzes claims of ineffective assistance of trial counsel under a two-
prong test, first determining whether the defendant has shown that defense counsel's
14
performance was deficient. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.
2052, 80 L. Ed. 2d 674, reh. denied 467 U.S. 1267 (1984); see also Chamberlain v. State,
236 Kan. 650, 656-57, 694 P.2d 468 (1985) (adopting the test articulated in Strickland);
Khalil-Alsalaami, 313 Kan. at 485. If the defendant satisfies the first prong, the court then
determines whether there is a reasonable probability that, absent defense counsel's errors,
the result would have been different. See Khalil-Alsalaami, 313 Kan. at 485.
"To establish deficient performance under the first prong, 'the defendant must
show that counsel's representation fell below an objective standard of reasonableness.'"
Khalil-Alsalaami, 313 Kan. at 485 (quoting Strickland, 466 U.S. at 688). When analyzing
this prong, this court affords deference to the attorney's strategic decisions and past
performance must be viewed "free from the distorting effects of hindsight." Khalil-
Alsalaami, 313 Kan. at 485.
'"Judicial scrutiny of counsel's performance must be highly deferential. It is all too
tempting for a defendant to second-guess counsel's assistance after conviction or adverse
sentence, and it is all too easy for a court, examining counsel's defense after it has proved
unsuccessful, to conclude that a particular act or omission of counsel was unreasonable.
A fair assessment of attorney performance requires that every effort be made to eliminate
the distorting effects of hindsight, to reconstruct the circumstances of counsel's
challenged conduct, and to evaluate the conduct from counsel's perspective at the time.'"
Khalil-Alsalaami, 313 Kan. at 485-86 (quoting Strickland, 466 U.S. at 689).
Under the second prong, the defendant must show that defense counsel's deficient
performance prejudiced them. To demonstrate prejudice, the defendant must establish
with reasonable probability that the deficient performance affected the outcome of the
proceedings, based on the totality of the evidence. Khalil-Alsalaami, 313 Kan. at 485. "'A
reasonable probability is a probability sufficient to undermine confidence in the outcome.
A court hearing an ineffectiveness claim must consider the totality of the evidence before
15
the judge or jury.'" Khalil-Alsalaami, 313 Kan. at 486 (quoting Edgar v. State, 294 Kan.
828, 838, 283 P.3d 152 [2012]).
If counsel made a strategic decision after making a thorough investigation of law
and facts relevant to plausible options, then counsel's decision is "'virtually
unchallengeable.'" State v. Butler, 307 Kan. 831, 854, 416 P.3d 116 (2018) (quoting State
v. Coones, 301 Kan. 64, 74-75, 339 P.3d 375 [2014]). Additionally, strategic decisions
after a less-than-complete investigation are reasonable to the extent that reasonable
professional judgments support limiting the investigation. Butler, 307 Kan. at 854;
Strickland, 466 U.S. at 690-91.
"'In other words, counsel has a duty to make reasonable investigations or to make
a reasonable decision that makes particular investigations unnecessary. In any
ineffectiveness case, a particular decision not to investigate must be directly assessed for
reasonableness in all the circumstances, applying a heavy measure of deference to
counsel's judgments.'" Butler, 307 Kan. at 854 (quoting Coones, 301 Kan. at 74-75,
which in turn quotes Strickland, 466 U.S. at 690-91).
The district court did not err in denying Ojeda's claim that his trial attorney rendered
ineffective assistance of counsel by not severing counts one, two, and three from counts
four and five.
Ojeda claims that the district court erred in denying his claim that his trial attorney
rendered ineffective assistance of counsel for failing to file a motion to sever counts one,
two, and three from counts four and five. Ojeda argues that trial counsel was aware of
this option because he discussed the possibility of severance during an argument in
support of another motion, but his failure to pursue it "amounts to deficient
performance." In support of his argument, Ojeda contends that the jury would not have
convicted him of counts four and five without the inference of intent from counts one,
two, and three.
16
Trial counsel attempted to have count five dismissed before trial. When the district
court denied the motion to dismiss count five, trial counsel made the strategic decision to
try the counts relating to the separate attacks together. He testified that he considered the
potential impact on Ojeda's sentencing if he were convicted in one case and then his
criminal history score would increase for the second case. Additionally, as the State
notes, even if the district court severed the cases, the State had many options to eliminate
any potential benefit to Ojeda by filing to join the cases into a single trial, deciding the
order in which the cases would be tried, and seeking admittance of the evidence from the
first attack in the second trial pursuant to K.S.A. 2009 Supp. 60-455(d). Accordingly, the
entire purpose for which Ojeda claims his trial attorney should have filed a motion to
sever would likely not have been achieved.
The district court, in its proper role as a fact-finder, assessed the credibility of the
witnesses and determined that Ojeda's testimony at the K.S.A. 60-1507 hearing lacked
credibility. The district court determined that trial counsel's testimony was "credible and
not deficient in any way." This court defers to the district court's judgment on the
credibility of witnesses. See Khalil-Alsalaami, 313 Kan. at 486. In evaluating the record
and testimony, the district court determined not only that trial counsel's decisions
regarding his defense strategy were reasonable, but that he had "very good reasons for his
theory of the defense."
Trial counsel testified that his strategic decision not to file a motion to sever the
counts was based on four considerations:
(1) the likelihood of the motion prevailing;
(2) the likelihood of the motion achieving the desired result;
(3) Ojeda's ultimate exposure at sentencing after separate trials; and
(4) the general nature of the defense.
17
Accepting the district court's determination that his testimony was credible, the
strategic decision not to file a motion to sever the counts was not unreasonable or
deficient.
The strategic reasons for not filing a motion to sever were reasonably grounded in
law. First, the State argues it could have sought joinder of the charges into a single trial
pursuant to K.S.A. 22-3202(1) which provides:
"Two or more crimes may be charged against a defendant in the same complaint,
information or indictment in a separate count for each crime if the crimes charged,
whether felonies or misdemeanors or both, are of the same or similar character or are
based on the same act or transaction or on two or more acts or transactions connected
together or constituting parts of a common scheme or plan."
Ojeda's attacks on H.T. and C.H. were strikingly similar, and the likelihood of the State
successfully seeking joinder was high. Second, even if a motion to sever counts four and
five had been granted, the State still could have sought to introduce evidence of Ojeda's
attack on H.T. in the trial for counts four and five (the counts relating to the attack on
C.H.) pursuant to K.S.A. 2009 Supp. 60-455(d). Accordingly, even a granted motion to
sever the counts might not have achieved the purpose for which it was filed in the first
place. Finally, severing the counts could have increased Ojeda's ultimate exposure at
sentencing in separate trials. Ojeda faced greater incarceration if tried and convicted of all
the counts in separate trials. Therefore, the strategic decision to try all the counts arising
from both attacks in a single trial likely limited Ojeda's ultimate sentence for the five
counts.
Trial counsel's credible testimony demonstrates a well-informed and reasonable
strategic decision based upon diligent legal research. This strategic decision is virtually
unchallengeable. See Butler, 307 Kan. at 854. Accordingly, the district court did not err
in finding that Ojeda failed to demonstrate that his trial counsel provided deficient
18
performance by failing to seek severance of counts four and five from the first three
counts.
The district court did not err in denying Ojeda's claim that his trial attorney provided
ineffective assistance of counsel by advising Ojeda to testify.
Ojeda claims that his trial attorney provided ineffective assistance because he told
Ojeda that Ojeda had to take the stand and testify at trial. Trial counsel testified that he
advised Ojeda to testify but ultimately let Ojeda make the decision. The district court
resolved this conflicting evidence and determined that Ojeda's testimony was unreliable.
This court does not reweigh the district court's witness credibility determination or
resolve conflicts in the evidence, and accepts the district court's determination that trial
counsel provided credible testimony that contradicted Ojeda's unreliable testimony. See
Khalil-Alsalaami, 313 Kan. at 486-87.
Ojeda further argues that trial counsel's decision to advise Ojeda to testify
constituted ineffective assistance of counsel because Ojeda's trial testimony ultimately
alienated the jury and led it to convict on all counts. Trial counsel testified that he
recommended that Ojeda testify for strategic purposes, prepared Ojeda for the testimony,
and limited the scope of his direct examination to the attack on H.T. for the purpose of
limiting the State's ability to cross-examine Ojeda about the attack on C.H. The record
contains substantial competent evidence to support trial counsel's testimony and the
district court's reliance upon it. Trial counsel carefully limited the scope of his direct
examination of Ojeda and prevailed in an objection when the State sought to question
Ojeda beyond that narrow scope. Moreover, in his closing argument, trial counsel
emphasized that the evidence only supported attempted rape and kidnapping, not
completed rape, which is consistent with his testimony that he advised Ojeda to testify for
the strategic purpose of avoiding a severity level one felony conviction for the attack on
H.T.
19
The district court did not err in finding that Ojeda failed to show that his trial
attorney provided ineffective assistance of counsel by advising and preparing Ojeda to
testify regarding his attack of H.T.
The district court did not err in denying Ojeda's cumulative-error claim.
Both of Ojeda's claims of ineffective assistance of counsel were properly denied
by the district court. Accordingly, there was no error, and "[t]he cumulative error rule
does not apply if there are no errors or only a single error." State v. Gallegos, 313 Kan.
262, 277, 485 P.3d 622 (2021). As Ojeda has failed to establish any error, the district
court properly denied Ojeda's cumulative-error claim.
CONCLUSION
The district court properly denied Ojeda's K.S.A. 60-1507 motion for ineffective
assistance of trial counsel after conducting a hearing and making factual findings that are
supported by substantial competent evidence. Ojeda's trial counsel investigated,
researched, and made strategic decisions that this court will not second-guess.
Accordingly, the judgment of the district court is affirmed.
20