Nelson v. State ( 2020 )

NOT DESIGNATED FOR PUBLICATION
No. 121,372
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
ANTWAIN L. NELSON,
Appellant,
v.
STATE OF KANSAS,
Appellee.
MEMORANDUM OPINION
Appeal from Sedgwick District Court; SETH L. RUNDLE, judge. Opinion filed September 11,
2020. Affirmed.
Joshua S. Andrews, of Cami R. Baker & Associates, P.A., of Augusta, for appellant.
Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.
Before SCHROEDER, P.J., GREEN and BUSER, JJ.
PER CURIAM: Antwain Nelson appeals the trial court's denial of his motion
attacking his sentence under K.S.A. 60-1507. Nelson argues that his previous appellate
counsel was ineffective because his counsel failed to include critical documents in the
record on appeal. Because Nelson fails to show that he was prejudiced by his counsel's
deficient performance, we affirm the trial court.
In May 2009, Nelson pleaded guilty to aggravated robbery, in violation of K.S.A.
21-3427 (now K.S.A. 2019 Supp. 21-5420). A presentence investigation (PSI) report
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filed in June 2009 showed that Nelson had a criminal history score of B. The PSI report
showed that Nelson had three separate person misdemeanor convictions and they were
aggregated together to make a one-person felony. This aggregation of the misdemeanor
convictions had increased his criminal history score.
At sentencing, Nelson's counsel did not object to the criminal history score.
Nelson contends that he attempted to object to his criminal history, but his counsel
quieted him. The trial court granted a downward dispositional departure to probation,
while imposing an underlying 228-month prison sentence followed by postrelease
supervision for 36 months. The court revoked Nelson's probation in November 2009,
ordering Nelson to serve a modified prison term of 216 months.
The following month Nelson moved pro se to correct an illegal sentence. He
alleged that his sentence was illegal because he was sentenced to 228 months in prison
rather than the 110-month sentence in the plea agreement. The trial court summarily
denied his motion.
In 2010, Nelson moved to withdraw his plea. State v. Nelson, No. 105,250, 2012
WL 402005 (Kan. App. 2012) (unpublished opinion), rev. denied 296 Kan. 1134 (2013)
(Nelson I). The motion asserted that Nelson's defense counsel had incorrectly told him
that his criminal history score would be C, but the final criminal history score was
determined to be B. Nelson maintained that because his counsel did not object to the
criminal history score at sentencing, this amounted to ineffective assistance of counsel. In
Nelson I, this court affirmed the trial court's summary denial of Nelson's motion to
withdraw his plea because Nelson failed to show ineffective assistance of counsel. This
court held that even if Nelson could show inadequate performance of counsel, he could
not show prejudice. 2012 WL 402005, at *2-4.
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In April 2013, Nelson moved pro se a second time to correct an illegal sentence.
State v. Nelson, No. 111,247, 2015 WL 8586019 (Kan. App. 2015) (unpublished opinion)
(Nelson II). This motion primarily contended that Nelson's misdemeanor convictions
were uncounseled, so they were improperly included in his criminal history. And thus,
Nelson's trial counsel was ineffective for failing to properly advise him about the
aggregated scoring of his three separate person misdemeanor convictions and for failing
to object to his criminal history. Nelson concluded his argument by asking the trial court
to correct his illegal sentence "or in the alternative, prove that all three of the person
misdemeanors had the guiding hand of counsel. . . ." 2015 WL 8586019, at *2.
At an evidentiary hearing on the motion, Nelson testified about a 2003
misdemeanor conviction for battery in Wichita Municipal Court. He testified that he
intended to retain David Leon but never paid him his fee, resulting in Leon not appearing
to represent him at the plea and sentencing hearing. Nelson testified that he entered his
2003 plea without counsel. Nelson also testified that his court-appointed attorney was not
present when he pleaded no contest in a 2006 misdemeanor conviction for battery in
Wichita Municipal Court. Nelson conceded that he was represented by counsel in a 2008
misdemeanor conviction.
The State entered as exhibits certified records from the municipal court of the City
of Wichita pertaining to the 2003 and 2006 charges, showing appearances of counsel. In
the 2003 case, the docket sheet shows that a "D. Leon" entered his appearance on
"18Jun03." A screenshot of court records shows that "ATTY LEON, DAVID" was
present at both an attorney walk-in docket on June 18, 2003, and a disposition on July 8,
2003. The docket sheet shows that Nelson entered a plea of no contest at a final
disposition on July 8, 2003.
In the 2006 case, the docket sheet shows a plea of "Nolo" and a finding of guilt on
December 8, 2006. A screenshot shows that the court appointed a public defender on
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November 2, 2006. The docket sheet shows a city public defender, "Lautz," but no date
entered. Another screenshot shows "ATTY LAUTZ, SHAWN CPD PRESENT" for a
bench trial held on December 8, 2006.
Based on its review of the journal entries and the municipal court records, the trial
court found that Nelson had been represented by an attorney or had waived an appearance
of an attorney at all requisite times. After a nonevidentiary hearing, the trial court ruled
that Nelson's prior misdemeanor convictions had been properly admitted. So the trial
court denied Nelson's motion to correct an illegal sentence and ruled that any K.S.A. 60-
1507 claim to be time barred.
The current case stems from an ineffective assistance of counsel claim in the
appeal on Nelson II. On appeal, Nelson's counsel neglected to include the municipal court
records in the record on appeal. This court held that Nelson failed to meet his burden of
designating a record that affirmatively shows prejudicial error. Nelson II, 2015 WL
8586019, at *4. This court also stated―that the trial court found that Nelson was
represented by counsel or had waived counsel―that "without a record to review we must
presume this finding was proper." 2015 WL 8586019, at *4. Nelson failed to overcome
this presumption.
In August 2017, Nelson filed a petition for writ of habeas corpus alleging that his
appellate counsel in Nelson II was ineffective. Nelson attached to the motion a letter in
which appellate counsel for Nelson II accepted responsibility for failing to include the
documents in the record. Nelson's attorney surmised that the omission of the municipal
court records "may have precluded the opportunity for meaningful appellate review."
At a hearing on the motion, the State conceded that previous appellate counsel's
performance was deficient because of failing to include the documents in the appellate
record. Nevertheless, the State argued that the documents did not support Nelson's claim
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that he was not represented by counsel at the two municipal misdemeanor plea hearings.
And so the State argued that Nelson could not establish the prejudice prong of the
ineffective assistance of counsel test.
At the end of the hearing, the trial court ruled that Nelson's motion was untimely
because it was filed more than one year after Nelson's direct appeal ended. Alternatively,
the court ruled that while appellate counsel rendered deficient performance, Nelson had
not shown a reasonable probability that the result of the appeal would have been different
had the documents been included in the record. Finally, the court made another
alternative ruling that Nelson was represented by counsel for the 2003 and 2006
misdemeanor convictions. So the court ruled that those convictions were properly scored
as part of Nelson's criminal history.
Nelson timely appeals.
While the appeal was pending, Nelson filed a request for additions to the appellate
record, citing Supreme Court Rule 3.02 (2020 Kan. S. Ct. R. 19). Nelson's misdemeanor
conviction records from the Municipal Court of the City of Wichita were added to the
record on appeal. These records are now before this court for the first time.
ANALYSIS
Did the Trial Court Err in Denying Nelson's Ineffective Assistance of Counsel Claim?
On appeal, Nelson argues that his K.S.A. 60-1507 motion was timely and that
manifest injustice would result if the motion were time barred. The State concedes. The
State expressly does not argue that the motion should be dismissed as untimely. Thus,
timeliness is not at issue on appeal.
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Nelson also argues that his previous appellate counsel was ineffective. Nelson
asserts that if his counsel had included the Wichita Municipal Court records in the record
on appeal in Nelson II, then his appeal would have been successful. The State concedes
that Nelson's counsel was ineffective by not including the municipal court records in the
record on appeal. But the State asserts that Nelson cannot show that he was prejudiced by
the deficiency because the result would have been the same.
The extent of a movant's statutory right to be provided with effective assistance of
counsel in a K.S.A. 60-1507 proceeding is a legal question to be reviewed de novo.
Mundy v. State, 307 Kan. 280, 294, 408 P.3d 965 (2018).
To establish ineffective assistance of counsel on appeal, defendant must show the
following: (1) that counsel's performance, based upon the totality of the circumstances,
was deficient in that it fell below an objective standard of reasonableness and (2) that the
defendant was prejudiced to the extent that a reasonable probability exists that, but for
counsel's deficient performance, the appeal would have been successful. Miller v. State,
298 Kan. 921, 930-31, 934, 318 P.3d 155 (2014); State v. Butler, 307 Kan. 831, 852-53,
416 P.3d 116 (2018).
The party claiming that an error occurred has the burden of designating a record
that affirmatively shows prejudicial error. Without such a record, an appellate court
presumes the action of the trial court was proper. State v. Simmons, 307 Kan. 38, 43, 405
P.3d 1190 (2017); State v. Miller, 308 Kan. 1119, 1157, 427 P.3d 907 (2018) ("The
burden is on the party making a claim of error to designate facts in the record to support
that claim; without such a record, the claim of error fails.").
When a defendant challenges his or her criminal history score for the first time in
a collateral proceeding, the burden of proof shifts to the offender to prove his or her
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criminal history by a preponderance of the evidence. State v. England, 45 Kan. App. 2d
33, 40, 245 P.3d 1076 (2010).
An uncounseled misdemeanor conviction for which a defendant was sentenced to
prison time, even if prison time was conditioned on probation, is unconstitutional and
cannot be used in a later criminal proceeding for sentence enhancement. State v. Key, 298
Kan. 315, 320, 312 P.3d 355 (2013). If the defendant challenges prior convictions from a
PSI report at his sentencing hearing, the burden of proof remains on the State to prove the
validity of the convictions. State v. Hughes, 290 Kan. 159, 171, 224 P.3d 1149 (2010).
But if the criminal history challenge is raised in a motion to correct illegal sentence or
other collateral proceeding, the burden of proving that the convictions were uncounseled
rests with the defendant. State v. Neal, 292 Kan. 625, 633, 258 P.3d 365 (2011).
Nelson asserts that the docket sheets do not state whether he was represented by
counsel when convicted in the two misdemeanor battery cases. Nelson acknowledges
that, while a journal entry of conviction is the most direct evidence of the conviction, the
State may use other certified documents to show previous convictions. Nelson argues that
the screenshots used as supplemental evidence fail to remedy the deficiencies of the
docket sheets.
Also, Nelson argues that the screenshots are inaccurate because they do not reflect
that he was present at the plea and sentencing hearings. A defendant is "guaranteed the
right to be present at any stage of the criminal proceeding that is critical to its outcome if
the defendant's presence would contribute to the fairness of the procedure." State v.
Calderon, 270 Kan. 241, 245, 13 P.3d 817 (2000) (citing Kentucky v. Stincer, 482 U.S.
730, 745, 107 S. Ct. 2658, 96 L. Ed. 2d 631 [1987]). Nelson correctly argues that he had
an absolute right to be present at his plea hearings and enter the plea himself, rather than
through counsel. Nelson asserts that the failure to specify his presence in the docket sheet
and accompanying screenshots means that either: (1) the Wichita Municipal Court
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conducted a critical stage of Nelson's criminal proceedings without him present or (2) the
screenshots contain incomplete information, at best, and are outright inaccurate, at worst.
Nelson's first argument fails because he testified that he was present in the Wichita
Municipal Court for his plea and sentencing hearings. Further, Nelson does not argue that
the misdemeanor convictions violate his rights under the Sixth Amendment to the United
States Constitution because he was not present. Instead, Nelson argues that counsel was
not present for his misdemeanor convictions and, thus, using those convictions in
determining his criminal history score violated his rights under the Sixth Amendment.
Nelson's second argument also fails because the burden rests with Nelson to show
that he did not have the benefit of counsel for his misdemeanor convictions. Screenshots
with incomplete or inaccurate information would be insufficient to show that the
convictions were counseled. Here, the screenshots indicate that Nelson was represented,
particularly when combined with the docket sheets and Nelson's testimony.
Nelson, however, analogizes his case to State v. Rivas, No. 114,947, 2017 WL
3207144 (Kan. App. 2017) (unpublished opinion). Manuel A. Rivas was convicted of
second-degree intentional murder. Before sentencing, Rivas challenged his criminal
history score of B because three separate person misdemeanor convictions were lumped
into the equivalent of one-person felony. Rivas claimed that his criminal history score
should be lower because two of the three misdemeanors were uncounseled and, therefore,
could not be aggregated. This court held that the State had not met its burden by
presenting a screenshot which showed the following: "Bench trial held," "ATTY
SICKMANN, RONALD Present," and "[d]efendant present in courtroom. def placed on
probation." This court held that "[t]he most that can be ascertained from this screenshot is
that Sickmann was present for a sentencing hearing." 2017 WL 3207144, at *13. This
court also rejected the State's reliance on State v. Hooks, No. 107,582, 2013 WL 1876448(Kan. App. 2013) (unpublished opinion) as inapplicable to Rivas' case because Hooks
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involved a motion to correct an illegal sentence and, therefore, the burden was on Hooks.
The burden of proof was on the State in Rivas because it was a direct appeal.
Here, the reverse is true. Nelson's K.S.A. 60-1507 motion puts him on the same
footing as Hooks where he has the burden of proof as the party challenging the previous
convictions. Hooks pleaded no contest to aggravated battery and possession of cocaine.
At sentencing, there was a prolonged discussion about Hooks' lengthy criminal history.
Nevertheless, Hooks failed to object to the aggregation of three previous person
misdemeanor convictions into one-person felony. Hooks later moved to correct an illegal
sentence, claiming his misdemeanors could not aggregate because one of them was
uncounseled. But the journal entry identified the defense attorney as "CPD" with a "Date
Entered" of "6-3-97." 2013 WL 1876448, at *5. This court ultimately held that Hooks did
not meet the burden of proving that the misdemeanor conviction was uncounseled. 2013
WL 1876448, at *5 (citing Neal, 292 Kan. at 634).
Here, Nelson similarly fails to meet his burden to show that his misdemeanor
convictions were uncounseled. Nelson must show a defect in his criminal history score by
a preponderance of the evidence. England, 45 Kan. App. 2d at 40. A "preponderance of
the evidence" means evidence which shows that a fact is more probably true than not
true. Nauheim v. City of Topeka, 309 Kan. 145, 152, 432 P.3d 647 (2019). In the 2003
case, the documents showed that David Leon represented Nelson as of June 18, 2003, and
was present for the plea and sentencing on July 8, 2003. In the 2006 case, the documents
showed that Shawn Lautz represented Nelson when Nelson was convicted. The trial court
ruled that Nelson failed to show by a preponderance of the evidence that he had been
convicted without benefit of counsel.
The trial court did not err in denying Nelson's K.S.A. 60-1507 motion for
ineffective assistance of counsel. The parties agreed and the trial court correctly ruled that
appellate counsel's performance in Nelson II was deficient. So the question before the
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trial court was whether the deficient performance prejudiced Nelson on appeal. In Nelson
II, this court had only Nelson's testimony to review. If the municipal court records had
been included alongside that testimony, would Nelson's appeal have been successful?
The trial court here correctly ruled that Nelson's appeal would not have been successful
and, therefore, he was not prejudiced by his counsel's failure to include the documents in
the Nelson II record on appeal. This court now has access to the municipal court records,
and we agree that the outcome of Nelson II would have been the same if these municipal
court records had been included in that record on appeal.
For the preceding reasons, we affirm the trial court's denial of Nelson's motion.
Affirmed.
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