IAC stemming from failure to file timely notice of alibi was shown even without trial attorney's testimony

Jacob Nowak won in Rucker v. State, No. 122,643 (Kan. App. October 1, 2021) (unpublished), obtaining a new trial in a Wyandotte County criminal threat and criminal discharge at an occupied building prosecution. Mr. Rucker filed a motion pursuant to K.S.A. 60-1507 alleging ineffective assistance of counsel for among other reasons, failing to file a timely notice of alibi. After the district court initially denied Mr. Rucker’s motion, the COA remanded for evidentiary hearing on several claims, including failure to file a timely notice of alibi. On remand, the district court found that Mr. Rucker had not shown either deficient performance nor prejudice. 

In particular, the district court had faulted Mr. Rucker for failing to call trial counsel at the evidentiary hearing. The COA acknowledged that it was unusual, but not fatal to the deficient performance claim:

Rucker's decision not to call [trial counsel] is unusual given that the prior panel remanded the matter for an evidentiary hearing on claims of ineffective assistance of counsel.

. . . .

That said, at times it is clear from the record and circumstances that trial counsel's actions were not strategic even without testimony from trial counsel. Because Rucker did not call [trial counsel] as a witness at the evidentiary hearing, the only explanation in the record for why [trial counsel] did not timely file the alibi notice comes from the October 23, 2012, pretrial hearing. There, [trial counsel] admitted that he had the list of the names of Rucker's alibi witnesses before the deadline to file the notice but claimed the information was "incomplete . . . to comply with the statute." [Trial counsel] did not elaborate on the information he needed to file the notice promptly, and the district court did not ask about the matter.

The COA also held that the deficient performance met the prejudice test for ineffective assistance of counsel:

Considering the totality of the evidence in the record, we find the confidence in the outcome of Rucker’s case is sufficiently undermined by the fact that at least four witnesses were not allowed to testify at trial that Rucker was with them at or near the time of the shooting. . . Rucker did not receive a fair trial because his counsel failed to timely file the alibi notice for no apparent reason.

As a result, the COA ordered a new trial.

[Update: the state did not file a PR and the mandate issued on November 9, 2021.]