Statutory right to effective retained habeas counsel

Janine Cox and I won in McIntyre v. State, No. 111,580 (Kan. App. Sept. 1, 2017), obtaining a new hearing pursuant to K.S.A. 60-1507 in Douglas County. In 2012, Mr. McIntyre filed a second motion pursuant to K.S.A. 60-1507 after his convictions for aggravated kidnapping and other charges were affirmed in 2002 and after an unsuccessful first motion pursuant to K.S.A. 60-1507 and federal habeas petition. The second motion included a claim that Mr. McIntyre's received ineffective assistance from his retained counsel who attempted to appeal the denial of his first motion pursuant to K.S.A. 60-1507. The district court dismissed the second motion holding that a person is not entitled to effective assistance of retained counsel under K.S.A. 60-1507. The COA held that the statutory right to effective assistance of counsel reached to retained counsel as well as appointed counsel:

In our view, the statutory right to counsel established by K.S.A. 22–4506(b) is predicated upon the apparent merits of the K.S.A. 60–1507 motion, rather than the financial means of the movant. Once a district court determines the motion presents substantial questions of law or triable issues of fact, the statutory right to counsel attaches, regardless of the movant's indigency. And once the statutory right to counsel attaches, the movant is entitled to effective representation by counsel, whether appointed or retained. As our Supreme Court has stated, “[K.S.A.] 60–1507 movants who have counsel are entitled to effective assistance of that counsel.”

This interpretation not only makes good sense, more importantly, it also serves the obvious legislative purpose of K.S.A. 22–4506(b). As our Supreme Court has observed, to establish a statutory right to counsel “ ‘but then refuse to require some modicum of competence by such counsel, seems repugnant to the obvious legislative intent.’”  By its plain words, K.S.A. 22–4506(b) implements the legislature's intent to safeguard a movant's right to be represented by counsel who will provide effective legal assistance.

As a result, the COA remanded for a determination of whether Mr. McIntyre received effective assistance of counsel from the appeal of his first motion.

[Update: the state did not file a PR and the mandate issued on October 10, 2017.]

October 2017 KSC Docket

Here are the criminal cases on the KSC docket for October 23-27, 2017. These summaries are based on the issues listed in the briefs filed and may not very accurately or fully describe the actual issues in the cases. I recommend you review the briefs yourself if you would like more details. Don't forget, arguments are streamed live at the appellate court website and archived (here) if you would like to watch any of these arguments.

October 23--Monday--a.m.

State v. Lindsey Blansett, No. 115,634 (Sumner)
Direct appeal; First-degree premeditated murder
Michelle A. Davis
[Affirmed; Stegall; March 8. 2019]

• Improper instruction re: culpable mental states
• Prosecutorial error in closing argument

State v. William Outhet, No. 112, 010 (Johnson)

Direct appeal (petition for review); attempted first-degree premeditated murder

Michelle A. Davis

[Dismissed as improvidently granted November 17, 2017]

• Improperly broad jury instruction
• Prosecutorial error in closing argument

October 24--Tuesday--a.m.

State v. Sherrick Sims, No. 115,038 (Wyandotte)

Direct appeal; First-degree premeditated murder

Randall L. Hodgkinson

[Affirmed; Stegall; November 30, 2018]

• Failure to grant mistrial after violation of in limine order
• Failure to instruct jury to consider lesser contemporaneously
• Failure to give limiting instruction re: prior crime

State v. Cedrick Warren, No. 115,972 (Wyandotte)

Sentencing appeal after remand

Patrick H. Dunn

[Vacated and remanded; Nuss; March 9, 2018]

• Improper modification of sentences not included in previous remand

State v. Henry Sullivan, No. 112,638 (Wyandotte)

Direct appeal (petition for review); Rape

Patrick H. Dunn

[Affirmed; Johnson; April 6, 2018]

• Public trial violation re: providing exhibit to jury in deliberation

October 25--Wednesday--a.m.

State v. Taylor Arnett, No. 112,572 (Wyandotte)

Sentencing appeal (petition for review)

Samuel D. Schirer

[Reversed and remanded; Rosen; March 23, 2018]

• Insufficient causal link between crime and restitution award

State v. Patrick Meeks, No. 113,593 (Shawnee)

Sentencing appeal (petition for review)

Caroline M. Zuschek

[Affirmed; Rosen; April 13, 2018]

• Unworkable restitution payment plan

State v. Donald Haygood, No. 115,591 (Wyandotte)

Direct appeal; First-degree premeditated murder

Corrine E. Gunning

[Affirmed; Johnson; November 21, 2018]

• Improper admission of prior bad act evidence
• Prosecutorial error in closing argument
• Failure to instruct on self-defense
• Failure to give imperfect self defense instruction

October 26--Thursday--a..m.

State v. Andrew Redick, No. 113,300 (Shawnee)

Direct appeal; First-degree premeditated murder

Korey A. Kaul

[Affirmed; Beier; April 13, 2018]

• Insufficient jury trial waiver
• Improper exclusion of defense evidence re: sequestration
• Improper criminal history calculation

State v. Glenn Gross, No. 113,275 (Saline)

Direct appeal (petition for review); Criminal threat/battery on a corrections officer

Korey A. Kaul

[Affirmed; Luckert; May 25, 2018]

• Denial of right to be present during chambers conference re: competency

State v. Vincent Jarmon, No. 111,608 (Sedgwick)

Direct appeal (petition for review); Burglary

Heather Cessna

[Affirmed; Rosen; June 15, 2018]

• Failure to give elements of theft as predicate for burglary
• Irreparable conflict required appointment of new counsel

October 27--Friday--a.m.

State v. Justin Thurber, No. 102,605 (Cowley)

Direct appeal; Capital murder

Reid T. Nelson