State v. Alvis ( 2021 )

NOT DESIGNATED FOR PUBLICATION
No. 122,269
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
STATE OF KANSAS,
Appellee,
v.
MATTHEW JON ALVIS,
Appellant.
MEMORANDUM OPINION
Appeal from Ellis District Court; GLENN R. BRAUN, judge. Opinion filed October 8, 2021.
Affirmed.
Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant.
Natalie Chalmers, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.
Before GARDNER, P.J., HILL and HURST, JJ.
PER CURIAM: After a bench trial, the judge found Matthew Jon Alvis guilty of
several crimes. When he asked for a new trial, Alvis claimed that his counsel had failed
to adequately investigate his alibi and then present that alibi defense to the court. The
court heard the alibi defense evidence during the hearing on the motion for a new trial
and found the witnesses were not believable and denied his motion for a new trial. Those
facts raise one issue in this appeal. Does the judge's lack of credibility findings mean that
Alvis cannot show reversible error—that is to say, the results of his trial would have been
different if counsel had properly investigated and presented his alibi at trial?
1
A former girlfriend reports Alvis to the police. A chase follows.
In the summer of 2018, Alvis dated Savannah Weilert for a few weeks. While they
were dating, she sold Alvis a white Pontiac car with damaged passenger side doors.
When Alvis broke up with Weilert on August 16, 2018, it was a bumpy split.
Two days after breaking up, Weilert called 911 and reported that Alvis had some
marijuana and was driving his white Pontiac G6 with damaged passenger side doors and
a license plate registered to another vehicle. She gave the 911 dispatcher the license plate
number of that vehicle. She reported that Alvis had just left her house and was on the way
back to his house.
After her 911 call, police spotted the vehicle turning into a Wendy's parking lot.
Corporal Vilaysing followed the car into the parking lot. The dispatcher confirmed the
tag on the vehicle was registered to a Chevy pickup truck and not the Pontiac. Vilaysing
pulled up alongside the vehicle, about 40 feet to the east of it as the vehicle went through
the Wendy's drive-through. The driver of the Pontiac looked right at him, and they made
eye contact. At that moment, Vilaysing identified Alvis as the driver.
As the Pontiac left the drive-through, Corporal Vilaysing turned on his emergency
lights to stop the Pontiac, but the car did not stop. It turned into a Dillons parking lot and
quickly began to accelerate. Vilaysing activated his sirens and gave chase. The driver
committed several moving violations including excessive speeding, driving in the center
lane, and failing to stop at stop signs. En route, the driver tossed a baggie of marijuana
out of the window, which was later recovered by the police.
Vilaysing pursued the Pontiac through Hays until he lost sight of the vehicle on a
dirt road. A few minutes later, another officer located the Pontiac parked at a residence in
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rural Ellis County. Alvis was not in the vehicle. Officers canvassed the area but did not
locate Alvis.
Alvis is charged, tried to the court, and convicted.
The State charged Alvis with possession of marijuana, fleeing or attempting to
elude a police officer, interference with law enforcement, and possession of drug
paraphernalia. Alvis chose a bench trial.
At trial, Weilert testified that on August 18, 2018, she went to Alvis' house, and
they smoked marijuana together. Alvis drove her home. Afterward, she made the 911
call. On cross-examination, defense counsel asked Weilert if she was angry and wanted
to get Alvis into trouble. Weilert testified she was angry with Alvis.
Corporal Vilaysing testified he was "[a] hundred percent" confident Alvis was the
driver of the Pontiac. Vilaysing knew Alvis as soon as he saw him. Vilaysing had two
encounters with Alvis eight years earlier. After the traffic chase, he pulled Alvis'
mugshots to confirm that Alvis was the one driving the Pontiac.
Alvis testified he last saw Weilert on August 16, 2018—the day they broke up. He
testified he did not drive the Pontiac on August 18, 2018. He testified, "I believe I was in
Dighton, Kansas, working with my cousin . . . doing a tree service."
In closing, trial counsel argued that Weilert was not credible because she was
evasive and obviously wanted to get Alvis into trouble. Trial counsel questioned Corporal
Vilaysing' s identification of Alvis because Vilaysing had not seen Alvis for eight years.
Trial counsel argued that Vilaysing saw who he wanted to see in the driver's seat based
on the information from dispatch. Trial counsel pointed out that the State presented no
fingerprint, DNA evidence, or any video footage that showed Alvis as the driver.
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The court found Alvis guilty as charged. The court believed Weilert' s report
because it was verified by the officers within moments of her 911 call. Alvis was
observed driving the Pontiac and did have marijuana as she described. The court also
found Corporal Vilaysing's testimony credible and reliable.
At a posttrial hearing, the court appoints Alvis a new lawyer and takes testimony on his
alibi defense.
Before sentencing, Alvis moved for a new trial, alleging his trial attorney was
ineffective in failing to present his alibi defense. The court appointed Alvis new counsel
and held an evidentiary hearing on the motion.
Alvis testified he told trial counsel that his mother knew he was working with his
cousin, Jason Johnson, on August 18, 2018, in Dighton, Kansas. Alvis told his counsel
that Johnson would have more information about the job they worked that day. Alvis
gave trial counsel his mother's contact information and his cousin's name. He asked trial
counsel to get his cousin's phone number from his mother. He recalled his trial counsel
later telling him that his mother did not know where he was on that day. Trial counsel
told him that she had called Johnson and left him a voicemail, but Johnson never called
her back. Trial counsel told him she was not confident in his alibi and wanted to try a
different defense. Alvis testified he insisted on the alibi defense. Alvis tried calling
Johnson before trial but could not get ahold of him.
Alvis' mother, Angela Alvis, testified that she spoke with trial counsel on the
phone for a while. Angela testified she told trial counsel that Alvis had been working
with his cousin, Johnson. But she did not know for sure he was working that day because
she was not with him. She gave trial counsel Johnson's phone number. Angela told trial
counsel she was not sure if Johnson would come to court.
4
Johnson testified he did not talk to Alvis' trial counsel. He testified he worked with
Alvis and another man, Theodore Evans, in Dighton on August 18, 2018. He brought a
work order dated August 18, 2018, which listed "Matt" and "Ted" as sales
representatives. They worked from 11 a.m. to 7 p.m. that day. Johnson testified he was
100 percent positive that Alvis worked with him in Dighton the entire day on August 18,
2018.
Trial counsel testified that she always knew Alvis was alleging a possible alibi
defense. Alvis gave her his cousin's name. Alvis' mother told her she did not know where
Alvis was on August 18, 2018. Trial counsel thus eliminated the mother as an alibi
witness. Trial counsel testified Alvis told her that Johnson would only give her a signed
affidavit or document, and would refuse to come to court. Alvis' mother also confirmed
that Johnson would not testify. Trial counsel was not sure if she had tried to contact
Johnson. She did not think she ever had his phone number, but remembered he lived in
Dighton. She did not try to locate Johnson or do any other investigation of the alibi. She
decided to pursue a different defense.
In closing, Alvis' attorney for the motion hearing told the court she found Johnson
with "pretty minimal effort."
The district court denied the motion for a new trial, finding it "a bit unbelievable
quite frankly" that Johnson did not come forward earlier and found the work order
"suspicious." And the court found trial counsel had made a strategic decision not to
pursue an alibi defense and that the evidence against Alvis was "overwhelming."
The court sentenced Alvis to a 30-month prison sentence and 12 months'
postrelease supervision.
5
In this appeal, Alvis raises three issues. First, did the court err when it denied his
motion for a new trial because of the ineffective assistance of his trial counsel? Second, is
there sufficient evidence in this record to show that his prior conviction for fleeing or
eluding was a felony conviction? Third, did the court violate his right to a jury trial under
the Kansas Constitution by using his prior convictions without requiring proof of them
beyond a reasonable doubt? We will address the issues in that order.
We conclude that Alvis' trial counsel was deficient by failing to investigate his alibi
defense.
A person cannot be in two places at the same time. The alibi defense has been with
us virtually from the beginning of defenses. It is classic. Alvis could not have been
driving a Pontiac in Hays if he was in Dighton trimming trees. Several cases offer us
guidance on this point. When it comes to an alibi defense, counsel must act. Failing to
verify an alibi is deficient performance.
When a defendant claims to have an alibi, the defense counsel's failure to
investigate, contact witnesses, or provide notice of alibi witnesses constitutes deficient
performance. Counsel cannot disregard pursuing this line of investigation and call it trial
strategy. But where defense counsel conducts a thorough investigation and concludes, as
a matter of strategy, not to call alibi witnesses, counsel's representation is presumed
reasonable. Shumway v. State, 48 Kan. App. 2d 490, 497-500, 293 P.3d 772 (2013)
(failure to call alibi witnesses to testify); State v. James, 31 Kan. App. 2d 548, 552-54, 67
P.3d 857 (2003) (failure to subpoena alibi witness); State v. Thomas, 26 Kan. App. 2d
728, 731-32, 993 P.2d 1249 (1999) (failure to file a notice of alibi); State v. Sanford, 24
Kan. App. 2d 518, 948 P.2d 1135 (1997) (failure to contact alibi witnesses).
Counsel must investigate. "Part of the duty to make reasonable investigations
includes the duty to investigate completely the details of a defendant's alibi." LaPointe v.
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State, 42 Kan. App. 2d 522, 542, 214 P.3d 684 (2009). Such investigation means
answering questions such as: Where was the defendant when the alleged crime was
committed? Were they there by previous appointment? Who can verify their story? What
are their full names and addresses? Are the alibi witnesses friends or family? Is there any
documentary corroboration? Does the alibi cover the entire time in question? 42 Kan.
App. 2d at 542.
In Sanford, this court found ineffective assistance of counsel when the defendant
provided defense counsel with the names of several potential alibi witnesses, but counsel
ceased attempts to contact them after speaking with one witness who said none of the
other witnesses would help the defendant. Counsel did not question those other witnesses
to determine whether they could provide an alibi. This court held that the failure by
defense counsel "to make more than perfunctory attempts to contact alibi witnesses and
to investigate further . . . was not reasonable under the facts presented." 24 Kan. App. 2d
518, Syl. ¶ 5.
In James, the defendant told his attorney that his neighbor could provide him with
an alibi and asked the attorney to speak with the neighbor and subpoena him. The
attorney did not subpoena the neighbor. The attorney explained that the neighbor did not
want to testify. But at a posttrial hearing, the attorney did not testify or infer that the
neighbor would have been unable to provide the alibi evidence claimed by the defendant.
Thus, this court held the failure to call the neighbor was "serious error which prejudiced
appellant." 31 Kan. App. 2d at 553-54.
In Shumway, the defense attorney investigated the defendant's potential alibi
defense but decided not to call either alibi witness to testify. The defense attorney
explained that he had concerns with the witnesses' testimony for many reasons. But
despite these concerns, the witnesses could provide an alibi for the defendant. This court
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held the attorney was ineffective for failing to call either witness because he had no other
witnesses who could establish the defendant's innocence. 48 Kan. App. 2d at 498-502.
But this does not mean the counsel has to present the defense if counsel, after
investigating, finds it unwarranted. The cases suggest that counsel are not ineffective
when they thoroughly investigate the alleged alibi and make a strategic decision that the
purported testimony would harm the defense. In Allen v. State, No. 110,370, 2014 WL
4081967, at *2-3 (Kan. App. 2014) (unpublished opinion), the defendant claimed he was
working with his uncle in Texas on the day of the crimes. The defendant gave his defense
attorney his uncle's phone number. The defendant also alleged the uncle could provide
the contact information for several other individuals that worked with him that day. And
the defendant alleged his cell phone records would confirm his location at the time of the
crimes. The defense attorney testified:
"'I immediately got on the phone and started making phone calls and tracking down alibi
witnesses, obtained funding to have alibi witnesses travel up from Texas. I got our
investigator—we had an investigator in the Liberal—or Garden City office. I got him to
work in calling witnesses and looking into the alibis. I issued the subpoena for the phone
records, had my investigator go serve that and get Mr. Allen's phone records as he
requested.'" 2014 WL 4081967, at *7.
But in Allen, the defense attorney testified that when she spoke to the defendant's
uncle and aunt, they both told her that the defendant's alibi was a lie. The defendant's
phone records confirmed it was a lie. The attorney determined this evidence would harm
the defense. The attorney asked her investigator and the defendant's uncle to assist
contacting the other possible witnesses but was unable to contact them. The defendant
presented no alibi witnesses at the evidentiary hearing on his posttrial motion. A panel of
this court concluded that the defense attorney's decision not to present an alibi defense
was a reasonable trial strategy developed after a thorough investigation. 2014 WL
4081967, at *7-8. See also Briseno v. State, No. 117,778, 2018 WL 6005418, at *4-7
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(Kan. App. 2018) (unpublished opinion) (attorney not ineffective when she investigated
but did not pursue alibi defense due to concern that the testimony had credibility
problems and where defendant did not ask attorney to pursue alibi defense); Dreiling v.
State, No. 97,201, 2007 WL 3275910, at *7-9 (Kan. App. 2007) (unpublished opinion)
(defense counsel not ineffective where counsel made strategic decision after meeting with
alleged alibi witness and defendant had approached other people about providing a false
alibi).
Using those cases as a measure of what counsel should do, we see that trial
counsel here was perfunctory, at best. At the motion hearing, trial counsel acknowledged
Alvis always claimed he had an alibi. Trial counsel had at least six weeks to prepare for
trial. Alvis was incarcerated before trial. Alvis gave trial counsel Johnson's name. Trial
counsel decided against pursuing an alibi defense after only speaking with Alvis' mother.
But trial counsel could not have known that Alvis' alibi was illegitimate from
speaking with his mother. Alvis' mother did not tell trial counsel Alvis' alibi was a lie like
the witness did in Allen; the mother said she could not be certain about where Alvis was
on August 18, 2018. Alvis did not allege he was with his mother at the time of the crimes;
he alleged he was with Johnson. Trial counsel could not remember if she had tried to
contact Johnson. She did not think she ever had his phone number, but remembered he
lived in Dighton. She testified she did not perform searches to locate Johnson or do any
other investigation of the alibi. Rather, she decided to pursue a different defense. But she
did not specify what that defense was.
Alvis testified at the motion hearing that trial counsel told him that she had called
Johnson and left him a voicemail, but he never called back. To explain her lack of further
effort to contact Johnson, trial counsel explained that Alvis and Alvis' mother told her
Johnson would only give her a signed affidavit or document but would refuse to come to
court. She did not speak with Johnson to determine whether the alibi was legitimate so
9
that she could subpoena him. She did not determine whether Johnson would have been a
credible witness. She did not try to get the document he allegedly had to see if it verified
the alibi or would lead to other witnesses. She explained that she did not pursue the alibi
further because "there were videos and things with the case that—it was my decision to
pursue a different kind of defense than an alibi defense." But there was no video footage
that identified Alvis as the driver of the white Pontiac.
Alvis' attorney for the motion hearing told the court she found Johnson with
"pretty minimal effort." Johnson testified he was 100 percent positive that Alvis was
working with him in Dighton on August 18, 2018, and that Alvis was there from 11 a.m.
to 7 p.m. The work order had the name of the homeowner and another worker.
Like the deficient performance depicted in Sanford, trial counsel here only made a
"perfunctory attempt" to contact Johnson after being told by Alvis' mother that he may
not want to testify. This does not equate to a full investigation into Alvis' alleged alibi.
Trial counsel's performance was deficient. But that does not mean we will reverse just for
this reason.
Has Alvis shown that the trial outcome would have been different if he had presented
additional evidence of his alibi to the court?
Alvis must show us two things. Deficient performance by his counsel and
prejudice to his case. To prevail on a claim of ineffective assistance of trial counsel, a
criminal defendant must establish both
• that the performance of defense counsel was deficient under all of the
circumstances; and
• prejudice—that there is a reasonable probability the result of the trial would
have been different without the deficient performance.
10
State v. Salary, 309 Kan. 479, 483, 437 P.3d 953 (2019) (citing Strickland v. Washington,
466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674, reh. denied 467 U.S. 1267 [1984]);
Harris v. State, 288 Kan. 414, 416, 204 P.3d 557 (2009).
Alvis has shown deficient performance. We turn now to prejudice.
The district court has made two credibility judgments that we will not touch. The
court found Alvis' alibi evidence "unbelievable." In contrast, the court found Corporal
Vilaysing' s testimony "very compelling . . . specific. It's not often an officer testifies with
100 percent certainty and he never deviated from that, even after cross-exam."
The court found that Vilaysing and Weilert corroborated each other's testimony.
The court considered the evidence against Alvis "overwhelming." Thus, while Weilert
may have had a motive to lie because she was angry at Alvis, as the judge noted at trial
she "would have better odds of winning the Powerball" than correctly guessing someone
closely resembling Alvis would be driving his car with marijuana inside, near the location
where she said Alvis would be, at the right time. Although Vilaysing's identification of
Alvis stemmed from two brief encounters eight years earlier, Vilaysing confirmed his
identification by looking at Alvis' mug shots soon after. Nobody disputed that the white
Pontiac belonged to Alvis (though technically in his mother's name).
This court cannot reweigh the evidence or make our own credibility
determinations. State v. Butler, 307 Kan. 831, 855, 416 P.3d 116 (2018). Thus, Johnson
has not shown the result of the trial would have been different. The trial judge believed
Vilaysing' s identification of Alvis and disbelieved the alibi testimony.
We will not reverse Alvis' conviction on this issue. We turn now to the issue about
the evidence concerning his prior convictions.
11
Raised for the first time in this appeal, we must address a concern about Alvis' criminal
history. We find the issue moot.
For the first time on appeal, Alvis contends his presentence investigation report
did not provide sufficient evidence to support the classification of his prior fleeing or
eluding conviction in Ellis County case no. 12CR32 as a felony and was thus insufficient
to satisfy the State's burden of proving his criminal history. Alvis contends remand is
required under State v. Obregon, 309 Kan. 1267, 1275-76, 444 P.3d 331 (2019).
Indeed, Alvis' PSI report listed one prior person felony: a 2012 Ellis County
conviction for fleeing or attempting to elude in violation of K.S.A. 8-1568, case no.
12CR32. The PSI report did not show which subsection of K.S.A. 8-1568 Alvis violated.
This could be significant. A conviction under K.S.A. 8-1568(a) can be a nonperson
misdemeanor or a person felony depending on the circumstances. A conviction under
K.S.A. 8-1568(b) is a person felony. See K.S.A. 2020 Supp. 8-1568(c).
The record shows that we should not be concerned about this. At sentencing, the
court asked Alvis whether he had reviewed the PSI report: "It indicates that you have 13
prior convictions, five of those being felonies, one of those being a prior person felony,
which was also for fleeing or eluding a police officer from 2012. Is that an accurate
criminal history?" Alvis confirmed that was accurate. He confirmed again later in the
hearing that he had a prior felony fleeing or eluding conviction.
After sentencing and upon order from the district court, the State added records
from Ellis County case no. 12CR32 to the record on appeal. The amended complaint,
journal entry of plea and conviction, and journal entry of judgment show that Alvis was
charged with and pled no contest to fleeing or eluding under K.S.A. 8-1568(b)(1)(E)—a
person felony.
12
And a change in Alvis' custodial status further suggests we should not be
concerned with this. While this appeal was pending, the State filed a notice of change in
custodial status stating Alvis completed the prison portion of his sentence on July 13,
2021, but remained subject to postrelease supervision. The State attached a "Certification
of Time Served" on Kansas Department of Corrections letterhead. The document
contains a signed certification by Vickie Belanger, Senior Administrative Assistant, that
states:
"I, the undersigned Vickie Belanger, of lawful age being duly sworn, do herby, declare
and certify that I am designated as a Public Service Administrator for the Kansas
Department of Corrections and by virtue of my said office I am the legal keeper of all
official records and files of the Office of the Secretary of Corrections. The foregoing is
true and correct information from the records of: ALVIS, Matthew J."
The last notation on the document of Alvis' custodial status states, "07/13/21 Released,
Parole in state."
The State contends Alvis' sentencing claims are moot because Alvis has completed
the prison portion of his sentence, though he is still on postrelease supervision. The State
attached certified documentation from the Kansas Department of Corrections. Alvis did
not respond to the State's assertion of mootness.
Other panels of this court have held challenges to a defendant's criminal history
moot when the defendant was still on postrelease supervision because the criminal history
score does not affect the mandatory term of postrelease supervision under K.S.A. 2020
Supp. 22-3717(d). The term of postrelease supervision is determined by the severity level
of the crime, not the defendant's criminal history score. The court is thus unable to grant
meaningful relief. See, e.g., State v. Castle, 59 Kan. App. 2d 39, 48, 477 P.3d 266 (2020).
13
The State has met its burden to establish a prima facie showing of mootness. Alvis
has not met his burden to show that dismissal would impair a substantial interest or that
an exception to the mootness doctrine applies. His claim that his criminal history was
scored improperly is moot. We move now to his last issue.
Kansas Supreme Court precedent compels us to hold that Alvis' sentence does not violate
the Kansas Constitution's guarantee of trial by jury.
Alvis contends the use of his prior convictions to determine his sentence violated
his jury trial rights under section 5 of the Kansas Constitution Bill of Rights and the Sixth
Amendment to the United States Constitution.
Our Supreme Court has repeatedly rejected this challenge under the United States
Constitution. See, e.g., State v. Sullivan, 307 Kan. 697, 708, 414 P.3d 737 (2018)
(reaffirming State v. Ivory, 273 Kan. 44, 46-47, 41 P.3d 781 [2002]).
And our Supreme Court also rejected this challenge under the Kansas
Constitution. In State v. Albano, 313 Kan. 638, Syl. ¶ 4, 487 P.3d 750 (2021), the court
held "[s]ection 5 of the Kansas Constitution Bill of Rights does not guarantee defendants
the right to have a jury determine the existence of sentence-enhancing prior convictions
under the revised Kansas Sentencing Guidelines Act."
With no indication our Supreme Court is departing from these positions, we are
duty-bound to follow this precedent. See State v. Rodriguez, 305 Kan. 1139, 1144, 390
P.3d 903 (2017). Alvis' sentence does not violate either Constitution.
Affirmed.
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