McIntyre v. State, 111580

McIntyre was convicted in 2000 and sentenced to lengthy prison terms; convictions were affirmed on direct appeal.
He filed a K.S.A. 60-1507 motion alleging ineffective assistance of trial and appellate counsel; the district court held a four-day evidentiary hearing and denied relief; McIntyre appealed and retained appellate counsel John Fay.
The Court of Appeals affirmed the denial of the first 60-1507 motion; McIntyre later pursued federal habeas relief, which was denied through the Supreme Court.
Over ten years after the Supreme Court denied review, McIntyre filed a second 60-1507 motion asserting Fay (retained appellate counsel) provided ineffective assistance on the appeal of the first 60-1507 proceeding.
The district court summarily denied the second motion, ruling McIntyre had no constitutional or statutory right to effective assistance of retained counsel in a 60-1507 appeal; the Court of Appeals initially affirmed on timeliness grounds but the Kansas Supreme Court reversed and remanded to address the statutory-right issue.
On remand the Court of Appeals held that K.S.A. 22-4506(b) and (c) give movants a statutory right to effective assistance of counsel (appointed or retained) in 60-1507 proceedings and on appeal regardless of indigency, reversed the summary denial, and remanded for factual consideration of Fay’s alleged ineffectiveness.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a 60-1507 movant represented by retained counsel has a statutory right to effective assistance of counsel under K.S.A. 22-4506(b)	McIntyre: Yes — once court finds substantial questions or a notice of appeal is filed, the right to effective counsel attaches regardless of indigency	State: Did not defend district court’s legal conclusion; argued claims meritless and urged harmless-error treatment	Held: Yes — both 22-4506(b) (when court finds substantial questions/triable issues) and 22-4506(c) (on appeal) confer a statutory right to effective assistance regardless of indigency; reversal and remand for factual review of ineffectiveness allegations
Whether the district court’s error was harmless (i.e., the claims were meritless)	McIntyre: N/A (asks merits be considered)	State: Any error is harmless because counsel’s performance claims are meritless	Held: Court declines harmless-error finding because factual issues remain and the record is insufficient for de novo appellate resolution; remand required

Albright v. State, 292 Kan. 193 (statutory right to counsel in 60-1507 proceedings and right to effective assistance)
Brown v. State, 278 Kan. 481 (statutory right to counsel must include some competence)
Guillory v. State, 285 Kan. 223 (right to appointed counsel on appeal if indigent)
Sola-Morales v. State, 300 Kan. 875 (procedural options for 60-1507 motions: summary denial, preliminary hearing, full hearing)
Robertson v. State, 288 Kan. 217 (no constitutional right to counsel in 60-1507 civil proceedings)
Witt v. State, 292 Kan. 796 (noted for limits on appellate factfinding where factual issues unresolved)
Cuyler v. Sullivan, 446 U.S. 335 (retained counsel can perform inadequately; no principled distinction between appointed and retained counsel)
Pennsylvania v. Finley, 481 U.S. 551 (no constitutional right to counsel in postconviction proceedings)
McIntyre v. State, 305 Kan. 616 (Kansas Supreme Court decision remanding to Court of Appeals to address statutory-right issue)