Warren v. State ( 2022 )

NOT DESIGNATED FOR PUBLICATION
No. 123,547
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
EDWARD A. WARREN JR.,
Appellant,
v.
STATE OF KANSAS,
Appellee.
MEMORANDUM OPINION
Appeal from Sedgwick District Court; SETH L. RUNDLE, judge. Opinion filed March 18, 2022.
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 ATCHESON, P.J., HILL and GARDNER, JJ.
PER CURIAM: Edward A. Warren Jr. has appealed the Sedgwick County District
Court's summary denial of his habeas corpus motion challenging jury verdicts convicting
him of 21 counts of violating a protective order for repeatedly placing telephone calls
from jail to a woman he had twice been charged with beating. On appeal, Warren
contends he is entitled to relief because the lawyer handling his direct appeal failed to
argue his speedy trial rights had been violated and inadequately argued he had a statutory
privilege to call the woman. We disagree and affirm the district court's denial of his
motion for relief under K.S.A. 60-1507.
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The factual background to Warren's convictions in this case takes some twists and
turns. Warren was charged in another case with domestic battery for hitting A.H. The
district court entered a protective order in that case directing that Warren have no contact
with A.H. Warren was later charged in a second case for another domestic battery of
A.H. He was then held in the Sedgwick County Jail as a pretrial detainee in those cases.
The district court appointed a lawyer to represent Warren in both cases. Warren filed
motions in those cases to represent himself. For reasons not readily apparent in our
record, there was a significant delay between when Warren filed the motions for self-
representation and when the district court granted them.
In between the filing and granting of his self-representation motions, Warren
called A.H. from the jail at least 22 times from July 17 to August 13, 2018. Based on
those telephone calls, the State charged Warren with 22 counts of violating a protective
order, a class A misdemeanor under K.S.A. 2018 Supp. 21-5924(a)(4). The district court
granted Warren's request to represent himself on those charges. The State dismissed one
count before trial. The jury convicted Warren of the remaining 21 counts. The district
court later imposed a sentence of 105 days in jail on each count to be served
consecutively.
Warren appealed those convictions. A court-appointed lawyer handled the appeal
for Warren. We affirmed the convictions and sentences. State v. Warren, No. 121,209,
2020 WL 4035062, at *5 (Kan. App. 2020) (unpublished opinion). Warren then drafted
and filed a habeas corpus motion alleging the lawyer handling the direct appeal was
constitutionally inadequate. After reviewing the motion and the record in the criminal
case, the district court summarily denied the motion. Warren has appealed that ruling and
is now represented by another court-appointed lawyer in this appeal.
When the district court summarily denies a 60-1507 motion, we exercise unlimited
review. We can examine the motion and the case file just as well as the district court, and
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the district court's determination requires no weighing of conflicting testimony or other
evidence to which we would owe deference. Bellamy v. State, 285 Kan. 346, 354, 172
P.3d 10 (2007). Well established principles govern 60-1507 motions alleging a criminal
defendant has received constitutionally inadequate representation from a lawyer either
leading up to and during trial or on direct appeal.
Here, Warren cannot complain about the quality of his legal representation during
trial precisely because he represented himself. See Faretta v. California, 422 U.S. 806,
834 n.46, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975) ("[A] defendant who elects to represent
himself cannot thereafter complain that the quality of his own defense amounted to a
denial of 'effective assistance of counsel.'"); see also State v. Torrence, No. 120,077,
2020 WL 6930802, at *3 (Kan. App. 2020) (unpublished opinion) (recognizing
applicability of Faretta rule to 60-1507 motions brought by defendants representing
themselves at trial). But he can challenge the work of the lawyer representing him in his
direct appeal. See Miller v. State, 298 Kan. 921, 929-30, 318 P.3d 155 (2014).
To prevail on a 60-1507 motion, a convicted defendant must show both that his or
her legal representation "fell below an objective standard of reasonableness" guaranteed
by the right to counsel in the Sixth Amendment to the United States Constitution and that
absent the substandard lawyering there is "a reasonable probability" the outcome in the
criminal case would have been different. Strickland v. Washington, 466 U.S. 668, 687-88,
694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Phillips, 312 Kan. 643, 676, 479
P.3d 176 (2021); Sola-Morales v. State, 300 Kan. 875, 882, 335 P.3d 1162 (2014); see
Chamberlain v. State, 236 Kan. 650, Syl. ¶¶ 3, 4, 694 P.2d 468 (1985) (adopting and
stating Strickland test for ineffective assistance). Reasonable representation demands that
degree of "skill and knowledge as will render the trial a reliable adversarial testing
process." Strickland, 466 U.S. at 688. A reasonable probability of a different outcome
"undermine[s] confidence" in the result and marks the criminal proceeding as
fundamentally unfair. Strickland, 466 U.S. at 694. The movant, then, must prove both
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constitutionally inadequate representation and sufficient prejudice attributable to that
representation to materially question the resulting convictions.
As the United States Supreme Court and the Kansas Supreme Court have stressed,
review of the representation should be deferential and hindsight criticism tempered lest
the evaluation of a lawyer's performance be unduly colored by lack of success
notwithstanding demonstrable competence. See Strickland, 466 U.S. at 689-90; Holmes
v. State, 292 Kan. 271, 275, 252 P.3d 573 (2011). Rarely should a lawyer's representation
be considered substandard when he or she investigates the client's circumstances and then
makes a deliberate strategic choice among arguably suitable options. Strickland, 466 U.S.
at 690-91. Whether a lawyer had made reasoned strategic decisions bears on the
competence component of the Strickland test.
Regardless of the inadequacy of legal representation, a 60-1507 motion fails if the
movant cannot establish substantial prejudice. And a reviewing court properly may deny
a motion that falters on the prejudice component of the Strickland test without assessing
the constitutional adequacy of the representation. Strickland, 466 U.S. at 697 ("If it is
easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice,
which we expect will often be so, that course should be followed."); see Edgar v. State,
294 Kan. 828, 843-44, 283 P.3d 152 (2012); McConnell v. State, No. 123,246, 2021 WL
4496479, at *4 (Kan. App. 2020) (unpublished opinion), petition for rev. filed October
12, 2021. In other words, even assuming a criminal defendant's legal representation fell
below the Sixth Amendment standard, he or she is not entitled to habeas corpus relief if
the result would have been no different with competent counsel.
On appeal, Warren contends the lawyer representing him in his direct criminal
appeal was constitutionally deficient in the two ways, as we have indicated. Because the
district court did not hold an evidentiary hearing on Warren's 60-1507 motion, we have
no way of knowing what strategic determinations the lawyer may have made in sorting
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through potential issues to raise on direct appeal. We may, nonetheless, consider whether
the asserted deficiencies resulted in legal prejudice to Warren.
First, Warren contends his appellate lawyer should have argued the State violated
his statutory right to a speedy trial, protected in K.S.A. 2020 Supp. 22-3402. A violation
of K.S.A. 2020 Supp. 22-3402 requires the dismissal of the charges and any resulting
convictions with prejudice. See State v. Queen, 313 Kan. 12, 29-30, 482 P.3d 117 (2021).
Warren asserted and lost a speedy trial challenge in the district court before trial, so the
issue was preserved for appellate review. The lawyer handling the appeal did not brief a
speedy trial claim.
But the statutory speedy trial argument has no merit. Warren had been charged in
and detained on more than one criminal case. When a defendant is held in multiple cases,
the speedy trial right in K.S.A. 2020 Supp. 22-3402 does not apply. See State v.
Mathenia, 262 Kan. 890, 900, 942 P.2d 624 (1997) ("[W]e interpret K.S.A. 22-3402 as
not applicable when a defendant is held in jail for any reason other than the subject
criminal charge."); State v. Goss, 245 Kan. 189, 191, 777 P.2d 781 (1989) ("[D]efendant,
who was in jail on the charges herein, was served with a second criminal warrant
involving unrelated burglary and theft charges . . . . Thus, defendant was held in jail
solely on the case before us approximately one week between his arraignment and trial.
Accordingly, he does not meet the requirement of K.S.A. 22-3402[1] of being 'held in jail
solely by reason thereof.'"); State v. Montes-Mata, 41 Kan. App. 2d 1078, 1081, 208 P.3d
770 (2009), aff'd 292 Kan. 367, 253 P.3d 354 (2011). In short, the district court correctly
denied Warren's pretrial motion for discharge asserting a statutory speedy trial violation.
As a matter of law, there simply wasn't one. In turn, the issue would have been worthless
on appeal. Warren's appellate lawyer had no duty to raise a meritless point, and Warren
could have suffered no prejudice as a result. See Littlejohn v. State, 29 Kan. App. 2d 506,
507-08, 28 P.3d 448 (2001); Hobby v. State, No. 105,138, 2012 WL 4794452, at *6 (Kan.
App. 2012) (unpublished opinion).
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Second, Warren contends the lawyer handling the direct appeal failed to fully
argue what he says is a privilege that allowed him to call A.H. from the jail without
violating the protective order. Under K.S.A. 2020 Supp. 21-5924(c), a lawyer
representing a defendant or an agent acting for the lawyer may contact a person covered
by a protective order "for a legitimate purpose" consistent with the legal representation.
During the trial, Warren argued he was covered by K.S.A. 2020 Supp. 21-5924(c) on the
notion that a criminal defendant is always functionally the equivalent of a cocounsel with
his or her lawyer. So, as his own cocounsel, Warren says he had a privilege to call A.H.
The premise, however, is quite wrong. See White v. State, 308 Kan. 491, 507-08, 421
P.3d 718 (2018). Absent a specific court order permitting a defendant to represent
himself or herself (with or without standby counsel), the law draws a clear distinction
between criminal defendants and their lawyers and their respective roles in developing
and carrying out trial strategies. Likewise, almost all decision-making is entrusted to the
lawyers exercising their professional judgment. Defendants have the exclusive right to
decide to enter a plea, to testify or not during trial, and whether to appeal—nothing else,
and most certainly not to contact or interview potential witnesses contrary to a protective
order. See State v. Hargrove, 48 Kan. App. 2d 522, 534-35, 293 P.3d 787 (2013).
Warren's appellate lawyer reprised the I'm-my-own-cocounsel argument in the
direct appeal, and our court categorically rejected it. Warren, 2020 WL 4035062, at *3-4.
Warren now offers a variation that he contends his appellate lawyer failed to assert,
rendering the representation constitutionally ineffective. Warren argues that because he
had filed motions for self-representation in the domestic battery cases that had yet to be
ruled on, he was privileged to call A.H. from the jail. Warren's realigned position
ultimately is no more convincing than his initial try.
First, of course, there is no rule that a criminal defendant who has filed a motion
for self-representation gets to act as his or her own lawyer before the district court
decides the motion. Warren cites no authority supporting his proposition. Such an
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interim-relief rule would create knotty problems, especially if a district court were to
deny the motion for self-representation.
Second, even crediting Warren's idea—which we do not—the conduct charged in
this case would not be privileged under K.S.A. 2020 Supp. 21-5924(c). The privilege
expressly applies only to "an attorney" and "any person acting on such attorney's behalf."
K.S.A. 2020 Supp. 21-5924(c). Self-represented defendants may be functioning as their
own lawyers. But they do not become licensed attorneys in that capacity; and, in turn,
they do not act on behalf of a licensed attorney. Assuming without deciding that a self-
represented defendant might be entitled to some form of privilege under K.S.A. 2020
Supp. 21-5924(c), a district court could then carefully regulate any communication. For
example, a district court could require any communication with a person shielded by a
protective order to be conducted through a standby counsel. More generally, a person has
no obligation to speak with a lawyer or investigator acting either for the State or for the
defense, so a district court could appoint a special master to find out if the individual
even wanted to talk at all. Similarly, a special master could monitor an agreed-upon
interview to guard against improper questioning or harassment of the protected person.
Finally, the privilege in K.S.A. 2020 Supp. 21-5924(c) extends only to contacts for
a legitimate purpose and, presumably, undertaken in a legitimate manner. Twenty calls in
less than a month from a lawyer to a person who did not want to talk likely would be
improper even if no protective order were in place. Warren's telephonic barrage of A.H.
exceeded the scope of K.S.A. 2020 Supp. 21-5924(c), assuming it applied. In short,
Warren's argument doesn't measure up. He can't show any legal prejudice on this point.
We find no fault in the district court's decision to summarily deny Warren's 60-
1507 motion.
Affirmed.
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