Bogguess v. State, 111299

Background

In 2008 Bogguess was charged with multiple felonies, tried by the district court on stipulated facts after he waived a jury, and convicted on all counts.
On the morning of trial Bogguess signed a three-page stipulation and the judge conducted an extensive colloquy confirming his waiver of a jury and that he read and understood the stipulation.
At sentencing Bogguess filed a pro se motion seeking new counsel, alleging a conflict (a witness related to an attorney in defense counsel’s firm) and ineffective assistance for counsel not giving a closing argument; the trial court denied the motion.
On direct appeal this court affirmed the convictions and treated Bogguess’s claims under the standard for substitute counsel (Sappington), not under Strickland; no Van Cleave remand for an evidentiary hearing was ordered. State v. Bogguess, 293 Kan. 743.
Bogguess then filed a K.S.A. 60-1507 motion asserting Sixth Amendment ineffective assistance (claiming counsel deceived him into waiving a jury). The district court denied the motion after a nonevidentiary hearing; the Court of Appeals affirmed on alternative grounds (res judicata and merits).
The Kansas Supreme Court granted review, held that res judicata did not bar the new Strickland-style ineffective-assistance claim (because it was not litigated on direct appeal and no Van Cleave remand occurred), but affirmed the denial of relief on the merits for lack of prejudice.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether res judicata bars Bogguess’s K.S.A. 60-1507 ineffective-assistance claim that counsel deceived him into waiving a jury	Bogguess: direct appeal did not adjudicate a Strickland claim; ineffective-assistance claims are normally collateral and cannot be precluded absent a Van Cleave remand	State: claim was or could have been raised on direct appeal and is barred by res judicata	Court: res judicata does not bar this distinct Strickland claim because it was not litigated on direct appeal and no Van Cleave remand occurred
Whether an evidentiary (Van Cleave) remand was required on direct appeal	Bogguess: the record did not fully develop the alleged deception and an evidentiary hearing is appropriate	State: district court’s colloquy and records showed waiver was knowing; no remand needed	Court: Van Cleave remand was not required on direct appeal here, but failing to remand does not automatically bar a later collateral claim
Whether counsel’s alleged deception/ trickery constitutes deficient performance under Strickland	Bogguess: counsel misled him about the stipulation and ramifications of waiving a jury, amounting to deficient performance	State: trial court’s thorough on-the-record colloquy cured any misinformation; counsel’s conduct did not prejudice outcome	Court: even assuming deception, the district court’s colloquy cured any potential prejudice; Strickland deficient-performance/prerequisite met, but no prejudice shown
Whether prejudice exists under Strickland (reasonable probability of a different outcome)	Bogguess: would not have waived jury; a jury could have reached a different verdict	State: record establishes waiver was knowing and voluntary; no reasonable probability of a different result	Court: no prejudice—colloquy and stipulation on the record defeat a reasonable-probability showing; 60-1507 motion properly denied

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two-part ineffective-assistance test: deficient performance and prejudice)
State v. Bogguess, 293 Kan. 743 (Kan. 2012) (direct appeal affirming convictions; motion for substitute counsel analyzed under Sappington)
Rowland v. State, 289 Kan. 1076 (Kan. 2009) (Van Cleave remand procedure for developing record on ineffectiveness claims)
State v. Van Cleave, 239 Kan. 117 (Kan. 1986) (guidelines for remanding to develop evidentiary record on ineffectiveness claims)
Grossman v. State, 300 Kan. 1058 (Kan. 2014) (distinguishing due process and Strickland claims; collateral ineffective-assistance claim not necessarily barred by res judicata)
State v. Dull, 298 Kan. 832 (Kan. 2014) (ineffective-assistance claims ordinarily not first addressed on direct appeal)
Cain v. Jacox, 302 Kan. 431 (Kan. 2015) (res judicata requires flexible, substance-focused analysis)
Sola-Morales v. State, 300 Kan. 875 (Kan. 2014) (procedural options for district court on K.S.A. 60-1507 motions)