445 P.3d 1101
Kan.2019Background
- Breedlove, tried as an adult for a 1995 homicide, was convicted at retrial in 2009 and sentenced to life; direct appeals were unsuccessful. He later filed a pro se K.S.A. 60-1507 motion in 2013 attacking counsel effectiveness and other matters.
- After procedural history including an earlier successful challenge to jurisdiction (Breedlove II), Breedlove filed indigency paperwork and later an amended 60-1507 motion; the motion sat unacted for ~2 years.
- In 2015 the district court requested a response from the State; the State filed a written response and two business days later the district court summarily denied Breedlove’s 60-1507 motion, adopting the State’s response as its findings and conclusions.
- Breedlove argued the court: (1) abdicated judicial function by adopting the State’s brief; (2) violated due process by failing to appoint counsel after requesting the State’s response; (3) erred in summarily denying ineffective-assistance claims; and (4) improperly required a $195 dispositive-motion fee despite his prior poverty affidavit.
- The Court of Appeals affirmed; the Kansas Supreme Court affirmed the denial of postconviction relief but reversed the fee assessment and remanded for refund of the $195.
Issues
| Issue | Plaintiff's Argument (Breedlove) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether district court erred by adopting State’s response as its findings | Adoption amounted to judicial abdication and denied due process | Adoption is permissible; court may adopt party submissions if it independently reviews record | No reversible error; appellate record permitted meaningful review and no inference court failed to review record |
| Whether requesting and considering State’s response triggered right to appointed counsel | Requesting State response equals conducting the Lujan “third option,” so counsel must be appointed and a hearing held | Right to appointed counsel arises only if court finds substantial questions or holds a preliminary hearing with State present; mere review of response does not trigger right | No error: court did not find substantial issues nor hold a hearing; appointment not required |
| Whether Breedlove raised substantial ineffective-assistance claims requiring an evidentiary hearing | Multiple claims against juvenile and trial counsel (failure to seek release, failure to notify parents, failure to investigate/alibi/impeach) merited a hearing | Claims are conclusory, lack factual support/record evidence, and fail Strickland prejudice and deficiency prongs | Denial affirmed: counsel’s performance not shown deficient nor prejudicial; claims lacked evidentiary support |
| Whether district court erred by charging $195 dispositive-motion fee despite prior poverty affidavit | Prior filed poverty affidavit should have permitted filing without new $195 fee; refusing to accept filing was error | Fee statute required $195 for dispositive motions; plaintiff failed to file a new poverty affidavit with that motion | Fee imposition reversed: prior poverty affidavit covered the proceeding; court must refund fee |
Key Cases Cited
- Lujan v. State, 270 Kan. 163 (1999) (describes district court options on 60-1507 motions, incl. preliminary hearing with counsel)
- Stewart v. State, 309 Kan. 1 (2019) (clarifies when appointment of counsel is required for indigent 60-1507 movant)
- Sola-Morales v. State, 300 Kan. 875 (2015) (standard for de novo review of summary denial under K.S.A. 60-1507)
- Moncla v. State, 269 Kan. 61 (2000) (need for findings of fact and conclusions to permit meaningful appellate review)
- Stone v. City of Kiowa, 263 Kan. 502 (1997) (adopting party’s findings is discouraged but not automatic error)
- Strickland v. Washington, 466 U.S. 668 (1984) (two-pronged ineffective assistance test: deficiency and prejudice)
- Cheatham v. State, 296 Kan. 417 (2013) (courts do not second-guess reasonable strategic choices by counsel)
- Edgar v. State, 294 Kan. 828 (2012) (60-1507 claims must contain more than conclusory allegations; evidentiary basis required)
- Wilkins v. State, 286 Kan. 971 (2008) (failure to impeach or cross-examine must satisfy Strickland to be ineffective)
- Burcham v. Unison Bancorp, Inc., 276 Kan. 393 (2003) (de novo review supports appellate review even when trial findings are sparse)