Opinion
No. 111,496.
2015-02-13
Michael Lee BERRY, Appellant, v. STATE of Kansas, Appellee.
Appeal from Wyandotte District Court; J. Dexter Burdette, Judge.David J. Berkowitz, of Berkowitz Law Office, of Lawrence, for appellant.Jennifer S. Tatum, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Wyandotte District Court; J. Dexter Burdette, Judge.
David J. Berkowitz, of Berkowitz Law Office, of Lawrence, for appellant. Jennifer S. Tatum, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., BRUNS, J., and RICHARD B. WALKER, District Judge, assigned.
MEMORANDUM OPINION
PER CURIAM.
Michael Berry appeals the summary dismissal of his K.S.A. 60–1507 habeas corpus motion by the district court. He contends the judge's dismissal was erroneous because the petition showed that at his original trial, Berry's speedy trial rights were violated. He argues that his case was tried 192 days after his arraignment, which is outside the time allowed under the speedy trial statute. Berry also contends that both his trial and appellate counsel were ineffective by failing to raise the speedy trial issue before the trial and appellate courts. But since our careful examination of the history of this case reveals no speedy trial violations, we affirm the trial court's dismissal of this K.S.A. 60–1507 action.
Facts
On August 21, 2010, police in Wyandotte County attempted to stop Berry for driving approximately 40 miles per hour in a 30 mile-per-hour zone. When officers turned on their lights and sirens to pull Berry over, he increased his speed to 60 and attempted to flee from being stopped. Police pursued him and watched as he committed multiple moving violations before he hit a curb and eventually stopped.
After stopping Berry's vehicle, police approached the car and asked him to show his hand. When he refused, an officer broke his window with a baton and reached into the car to move the gearshift into park. While the officer's arms were inside the car, Berry placed the car into reverse and backed it into a police vehicle, pinning the officer who had reached inside the window between Berry's car and the police vehicle. Another officer then broke into the passenger window and attempted once again to put the vehicle in park or remove the keys from the ignition. In spite of these police efforts, Berry continued to drive until the second officer was able to steer the car to a stop.
As three more backup officers arrived, two officers approached Berry's vehicle. One officer reached into the car and tried to restrain Berry, who was thrashing around and screaming inside. During this attempt to subdue him, Berry bit the officer, drawing blood. Berry was quickly tased twice to bring him under control, then removed from his car, handcuffed, and arrested. This factual summary closely follows our previous findings in Berry's direct appeal. See State v. Berry, No. 106,729, 2012 WL 5392125, at *l–2 (Kan.App.2012) (unpublished opinion), rev. denied 297 Kan. 1248 (2013).
Berry was ultimately charged with aggravated battery of a law enforcement officer, battery of a law enforcement officer, eluding a police officer, and criminal damage to property. After being bound over at a preliminary hearing held on October 14, 2010, Berry pled not guilty at arraignment and requested a jury trial.
The court's docket entry for October 22, 2010, states that the defendant continued the case until November 12, 2010. On November 12, 2010, the case was set for trial on January 18, 2011, and the docket sheet stated that there was “[n]o speedy trial issue in this case [as] defendant [is] in custody on other matters as well.” The court's notes do not specify the nature of these other matters on which Berry was being held. A later presentence report mentions that Berry was under supervision on a misdemeanor bond in Johnson County at the time of committing these offenses in Wyandotte County.
On January 18, 2011, Berry's attorney told the trial court he was “unable to proceed in this case,” and the court granted another continuance until March 14, 2011. Docket notes indicate that on February 28, 2011, the defendant took a further continuance of the trial until April 25, 2011. A 3–day jury trial then commenced on April 25, 2011, which was, as Berry contends, 192 days after the October 14, 2010, date of arraignment.
The jury returned guilty verdicts against Berry on all four charges. On May 27, 2011, Berry was sentenced to 107 months in prison for aggravated battery of a law enforcement officer, 13 months' imprisonment for battery on a law enforcement officer, 7 months' imprisonment for eluding a police officer, and 6 months in jail for criminal damage to property.
Berry appealed his convictions, and on November 2, 2012, this court affirmed them. Berry's petition for review by the Kansas Supreme Court was denied on September 4, 2013. Notably, Berry did not raise any contention that his speedy trial rights were violated either in the district court or in his direct appeal.
Three weeks after his direct appeal became final, on September 25, 2013, Berry filed this K.S.A. 60–1507 habeas corpus action, arguing that his speedy trial rights had been violated, that the district court had failed to instruct the jury on lesser-included offenses, and that both his trial and appellate counsel had been ineffective for failing to raise the speedy trial issue previously.
The trial court summarily dismissed Berry's motion, ruling that he could not use his habeas corpus motion as a substitute for a direct appeal. The district judge also found that Berry had failed to allege “exceptional circumstances” for not raising the trial errors at trial or during his direct appeal.
Berry timely appealed from his motion's dismissal by the district court. Only two of the issues presented to the trial judge are argued before us: (1) that his speedy trial rights were violated; and (2) that his trial and appellate counsel were ineffective for failing to raise the speedy trial issue.
Analysis
Berry first argues that the district court erred by summarily dismissing his K.S.A. 60–1507 motion because it failed to properly consider the argument that his speedy trial rights were violated. Berry likewise contends that both his trial and appellate counsel were ineffective for failing to timely object or raise the speedy trial issue. Conversely, the State asks this court to affirm the district court's dismissal of Berry's motion because the record shows his speedy trial rights were not violated. In light of this, the State contends his attorneys could not have been ineffective for failing to raise the issue.
This court engages in an unlimited review of a district court's summary dismissal of a K.S.A. 60–1507 motion. Trotter v. State, 288 Kan. 112, Syl. ¶ 14, 200 P.3d 1236 (2009). To affirm the district court, it must find that the motion, files, and records of the case conclusively show that the movant is not entitled to any relief. 288 Kan. 112, Syl. ¶ 14, 200 P.3d 1236.
In conducting our review, we must first consider whether it is proper for this court to take up and consider Berry's claim of a speedy trial violation at all.
Berry argues that it was a violation of his speedy trial rights under K.S.A. 22–3402 to begin his trial more than 90 days after he was arraigned. The district court held—and the State contends on appeal—that Berry cannot complain in his habeas corpus motion that his speedy trial rights were violated because he should have raised the issue at trial and on direct appeal.
There are limits to the types of claims that a movant can raise in a K.S.A. 60–1507 motion. Specifically, such a motion cannot be used as a substitute for a direct appeal or as a second appeal. Generally speaking, a movant cannot raise issues through a K.S.A. 60–1507 motion that were raised or should have been raised on direct appeal. Supreme Court Rule 183(c) (2014 Kan. Ct. R. Armot. 285); Hobby v. State, No. 105,138, 2012 WL 4794452, at *3 (Kan.App.2012) (unpublished opinion), rev. denied 297 Kan. 1245 (2013). Because defendants usually know how much time has passed between their arraignment and trial at the time the trial is held, speedy trial issues constitute “trial errors” that generally should not be raised for the first time in habeas corpus motions. Bradley v. State, No. 101,511, 2010 WL 919906, at *3 (Kan.App.) (unpublished opinion), rev. denied 290 Kan. 1092 (2010).
But a trial error may be raised for the first time in a K.S.A. 60–1507 motion—even if it could have been raised at trial or on direct appeal—if exceptional circumstances excused the movant's failure to raise it earlier. Supreme Court Rule 183(c) (2014 Kan. Ct. R. Annot. 285); see also Trotter, 288 Kan. at 125, 200 P.3d 1236. To be raised for the first time in a habeas motion, the alleged trial error must implicate the movant's constitutional rights. 288 Kan. 112, Syl. ¶ 8, 200 P.3d 1236.
Here, Berry argues his speedy trial rights under K.S.A. 22–3402 were violated; thus, he points to the violation of a statutory right. But even a statutory speedy trial violation implicates a defendant's constitutional rights because the Kansas Legislature adopted K.S.A. 22–3402, the speedy trial statute, to define and implement the constitutional speedy trial guarantees. State v. Davis, 277 Kan. 309, 334, 85 P.3d 1164 (2004); Bradley, 2010 WL 919906, at *3 (implying that if Bradley had explained that exceptional circumstances had prevented him from raising speedy trial issues on direct appeal, he could potentially have raised them for the first time in his K.S.A. 60–1507 motion).
A statutory speedy trial claim—though not technically constitutional—may therefore be raised for the first time in a K.S.A. 60–1507 motion if the movant can point to exceptional circumstances which would permit this court to review it. See Fonseca v. State, No. 101,223, 2010 WL 744797, at *1 (Kan.App.2010) (unpublished opinion). Ineffective assistance of counsel may constitute an “exceptional circumstance” that permits review of a trial error for the first time in a K.S.A. 60–1507 motion. Rowland v. State, 289 Kan. 1076, Syl. ¶ 6, 219 P.3d 1212 (2009).
Because Berry claims the reason he failed to raise the speedy trial issue at trial or on direct appeal was because his attorneys were ineffective, and because ineffective assistance of counsel constitutes an “exceptional circumstance” that permits this court to review an otherwise unreviewable claim, this court may determine whether Berry's speedy trial rights were violated and whether his counsel's failure to raise this issue constituted ineffective assistance of counsel.
Having determined we may consider the matter, we now turn to the ultimate question: does the record demonstrate that Berry's speedy trial rights were actually violated?
Berry alleges that the State violated his speedy trial rights under K.S.A. 22–3402. By summarily dismissing his K.S.A. 60–1507 motion, the district court decision effectively held that those rights were not violated. This court exercises unlimited review over that conclusion. State v. Vaughn, 288 Kan. 140, Syl. ¶ 1, 200 P.3d 446 (2009). Further, to the extent that Berry's claim requires this court to interpret the speedy trial statute, this court also engages in an unlimited review. See State v. White, 275 Kan. 580, 598, 67 P.3d 138 (2003).
If the assessment of time under the speedy trial statute turns on a factual determination made by the district court, this court must determine whether substantial evidence supports the district court's factual findings. Vaughn, 288 Kan. 140, Syl. ¶ 1, 200 P.3d 446. In reviewing the evidence, this court does not reweigh it or assess the credibility of witness. 288 Kan. at 143, 200 P.3d 446. This court presumes that the district court found the facts it needed to support its decision. Dragon v. Vanguard Industries, 282 Kan. 349, Syl. ¶ 5, 144 P.3d 1279 (2006). If the record on appeal does not support this presumption, this court must remand this case for additional findings and conclusions.
K.S.A. 22–3402 outlines the time the State has to bring a defendant to trial before the defendant is no longer liable for a crime. The statute explains that delays attributable to a defendant do not count against the State for speedy trial purposes:
“(1) If any person charged with a crime and held in jail solely by reason thereof shall not be brought to trial within 90 days after such person's arraignment on the charge, such person shall be entitled to be discharged from further liability to be tried for the crime charged, unless the delay shall happen as a result of the application or fault of the defendant, or a continuance shall be ordered by the court under subsection (5).
“(2) If any person charged with a crime and held to answer on an appearance bond shall not be brought to trial within 180 days after arraignment on the charge, such person shall be entitled to be discharged from further liability to be tried for the crime charged, unless the delay shall happen as a result of the application or fault of the defendant, or a continuance shall be ordered by the court under subsection (5).
“(3) If any trial scheduled within the time limitation prescribed by subsection (1) or (2) is delayed by the application of or at the request of the defendant, the trial shall be rescheduled within 90 days of the original trial deadline.” K.S.A. 22–3402.
Berry contends that because he was arraigned on October 14, 2010, and his trial began on April 25, 2011—192 days later—his rights under this statute were violated.
But strict application of these time limits does not apply in every case. Our Supreme Court has frequently held that the statute is inapplicable when a defendant is being held on unrelated charges during the period between arraignment and trial. State v. Mann, 274 Kan. 670, 699–700, 56 P.3d 212 (2002).
Further, even when the statute does apply, certain delays in bringing a defendant to trial cannot be attributed to the State. For example, a defendant may waive the statutory right to a speedy trial be requesting or agreeing to a continuance. State v. Bloom, 273 Kan. 291, 310, 44 P.3d 305 (2002). Moreover, defense counsel's actions are attributed to the defendant when calculating speedy trial violations. 273 Kan. at 310, 44 P.3d 305. If a defendant's attorney requests a continuance, the delay caused by the continuance is therefore attributable to the defendant for speedy trial purposes, even in the absence of proof that the defendant affirmatively consented to the delay. 273 Kan. at 310, 44 P.3d 305. Moreover, even when a defendant claims that he or she did not consent to a continuance requested by defense counsel, the continuance is still attributable to the defendant. State v. Bafford, 255 Kan. 888, 892–95, 879 P.2d 613 (1994).
The State contends that Berry's statutory speedy trial rights were not violated for two reasons: (1) the statute does not apply to him because he was being held on other matters; (2) all of the delays were attributable to Berry for purposes of speedy trial calculation.
The State's first argument is not adequately supported by the record. In a docket entry the trial judge did note that Berry was being held on other charges but failed to record on what other matter he was being held. The State speculates in its brief that it could be the misdemeanor bond out of Johnson County, but there is no evidence in the record to support this theory. If the only basis this court had for concluding that Berry's speedy trial rights were not violated was the State's unsupported assertion that the statute did not apply to Berry, the record would not be sufficient to support its argument, and this court would be required to remand this case to the district court for an evidentiary hearing on whether Berry was being held on other charges. See State v. Vaughn, 288 Kan. 140, Syl. ¶ 1, 200 P.3d 446.
But the State's second contention—that the delays causing the trial to be held outside the 90–day time frame can be attributed to the defendant—is supported by the record. In this case, the annotations on the record provide sufficient support for the conclusion that Berry's speedy trial rights were not violated. Every time a continuance was granted, the record shows who requested the delay. Every continuance was attributed to Berry. For instance, on October 22, 2010, the docket notes state that the defendant continued the case until November 12, 2010. On January 18, 2011, when the case was originally set for trial, Berry's attorney said he was “unable to proceed in the case,” and the court granted another continuance until March 14, 2011. On February 28, 2011, the docket notes once again recite that the defendant continued the trial until April 25, 2011.
Berry's trial was initially set for 96 days after his arraignment, which reflects the period between his arraignment on October 14, 2010, and the day his trial was scheduled to have started on January 18, 2011. But Berry was responsible for part of this time because the first continuance attributable to him was requested on October 22, 2010, and lasted until November 12, 2010—a period of 21 days. The total time chargeable to the State between Berry's arraignment and his initial trial date is therefore 75 days—well within the time allotted under K.S.A. 22–3402(1) for the State to bring an incarcerated defendant to trial.
Moreover, every delay after the original trial date can be attributed to Berry. Continuances were granted to the defense on January 18, 2011, and February 28, 2011, with the trial finally beginning on April 25, 2011—after a total of 97 additional days of delay attributable to Berry. Combined with the 21 days of delay from before his original trial date, Berry was responsible for a total of 118 days of delay. The State therefore did not allow more than 90 days attributable to it to lapse between Berry's arraignment and his jury trial. In short, Berry's speedy trial rights under K.S .A. 22–3402 were not violated.
Berry argues that this result is incorrect because the record did not show that he asked for any continuances or that he was present when any continuances were granted, and he contends that the State needs to show both of these things to attribute the delays to him. In Berry's brief to this court his counsel baldly asserts that “[t]he record does not show that the Defendant asked for any continuances, or even was present when any of the continuances were granted.” He contends this was a fatal defect for the State in the speedy trial record because “[d]efendant should have been present and apparently was not when the motions for continuance were granted,” citing State v. Hines, 269 Kan. 698, 7 P.3d 1237 (2000).
As noted above, we read the record differently than Berry does. We find sufficient findings by the trial court in the record to document defense requests for continuance so that the 90–day speedy trial limitation was not transgressed. And we also disagree with appellant counsel's interpretation of the Hines decision.
In Hines, the defendant was likewise held in custody exclusively because of the pending charges before the court. During the pretrial period the State sought and received a continuance of the trial date pursuant to K.S.A. 22–3402(3)(c) (Furse 1995) because of the unavailability of material evidence. This time was excluded from speedy trial calculations under the statute. Three days before the scheduled trial date, defendant's counsel requested a continuance because his grandmother had died the day before and funeral services were scheduled during the time set for trial. The defendant himself vigorously objected to the continuance, indicating he wanted the trial to go forward as scheduled, and stating that he would defend himself if he had to. Over the defendant's objection, the court granted the continuance and reset the trial for 21 days later. Although 18 days were left within the statutory 90 day speedy trial period, this was not discussed at the hearing or brought to the court's attention. The district court made no findings as to its ability to commence the trial within the 18 days and did not take a “crowded docket” continuance under K.S.A. 22–3402(3)(d) (Furse 1995). Prior to the new trial date, but after the 18 days had elapsed, the defendant moved for dismissal based upon violation of his speedy trial rights. The motion was granted, and the case against Hines was dismissed.
In considering the State's appeal of the dismissal, our Supreme Court in Hines sympathized with the dilemma of the trial judge and acknowledged the unique set of facts in the case. But the high court felt compelled to affirm the dismissal since the defendant had personally objected to the continuance and no account had been taken on the record of the status of speedy trial calculations in the case. Additionally, there was a complete failure to make appropriate findings which might have extended the life of the case under the exceptions to the 90–day speedy trial requirement. 269 Kan. at 704, 7 P.3d 1237.
In contrast to Hines, there is absolutely nothing in this case to show that Berry ever objected to any delay or continuance sought or obtained by his defense counsel While it is possible to read the Hines decision as tightening the general principles of deference to defense counsel in the Bafford decision, that earlier decision is not mentioned by the Supreme Court in Hines, and there is no intimation that the court intended to modify or overrule its previous decision. Likewise there is no language in Hines which compels us to conclude that Berry was required to be present any time a continuance was taken up by the trial court. This argument in his brief is simply without merit.
Other cases buttress our conclusion that while an accused has the right to be present at critical phases of a jury trial, this right does not extend to all motion rulings and a trial court's decisions on motions to continue that are made off the record, which do not impact the ultimate verdict. See, e.g., State v. Mortis, 277 Kan. 267, 297, 83 P.3d 1216 (2004) (finding defendant's Sixth Amendment rights were not violated where the defendant was not present when the court excused 15 potential jurors for financial hardship); State v. Minski, 252 Kan. 806, 815, 850 P.2d 809 (1993) (accused has no right to be present when the court decides issues related to matters of law); State v. Brockenshire, 26 Kan.App.2d 902, 910, 995 P.2d 905 (holding that accused's confrontation-clause rights were not violated when he was not present for a hearing to determine whether he needed a competency evaluation), rev. denied 269 Kan. 935 (2000).
We hold that substantial evidence supports the district court's implicit conclusion that Berry's speedy trial rights were not violated.
Berry's final claim is that both his trial and appellate counsel provided constitutionally ineffective assistance, and it was these claims that allowed Berry to raise the speedy trial issue in his K.S .A. 60–1507 motion. To establish ineffective assistance of trial counsel, Berry has to prove both prongs of the two-prong test established by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) reh. denied 466 U.S. 1267, which was adopted by the Kansas Supreme Court in Chamberlain v. State, 236 Kan. 650, 656–57, 694 P.2d 468 (1985). Under the first prong, Berry needed to have proved that his trial attorney was deficient. State v. Sharkey, 299 Kan. 87, 100, 322 P.3d 325 (2014). Under the second prong, Berry needed to show that he was prejudiced by his trial attorney's deficient performance to the extent that he was deprived of a fair trial because of his attorney's errors. 299 Kan. at 100, 322 P.3d 325.
The test for ineffective assistance of appellate counsel is almost identical. Under its first prong, Berry needed to have shown that his appellate counsel's performance, under the totality of the circumstances, fell below an objective standard of reasonableness. State v. Smith, 278 Kan. 45, 51–52, 92 P.3d 1096 (2004). Under its second prong, Berry needed to have shown that there was a reasonable probability that, but for his appellate attorney's deficient performance, his appeal would have been successful. Smith, 278 Kan. at 52, 92 P.3d 1096.
Here, Berry argues that his attorneys were ineffective only for failing to raise the speedy trial issue at trial and on his direct appeal. But since we have found adequate support in the record to hold that his speedy trial rights were not violated, it was not unreasonable or constitutionally deficient for either attorney to fail to challenge his convictions on this basis. See Stewart v. State, No. 99,929, 2009 WL 1140277, at *4 (Kan.App.) (unpublished opinion), rev. denied 289 Kan. 1286 (2009). Berry therefore cannot establish that his counsel was ineffective, and no remand for an evidentiary hearing is needed.
In summary, the district court did not err by summarily dismissing Berry's motion under K.S.A. 60–1507, because Berry alleges no proper grounds for relief.
Affirmed.