McCarty v. StateMcCarty v. State
- Reporters:
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- Before:
- Greene
Lead Opinion
Movant Edrick McCarty was originally convicted of attempted aggravated robbery and first-degree murder in April 1999. He was sentenced to life imprisonment on the murder charge and 136 months’ imprisonment on the attempted aggravated robbery charge. He aрpealed his convictions, and they were affirmed in State v. McCarty, 271 Kan. 510, 23 P.3d 829 (2001).
Movant next filed this action, seeking relief under
The trial court did hold a nonevidentiary hearing and held there was no unprofessional conduct by trial counsel, and the motion was supported by conclusory allegations only, and the trial court summarily dismissed it. This appeal followed.
On this appeal, the only issue is whether movant received ineffective assistance of counsel during his nonevidentiary hearing on his 60-1507 motion. We hоld that movant may not raise this issue under the circumstances and affirm the trial court’s decision on the basis that movant has no right to make a claim of ineffective assistance of counsel under the circumstances of this case.
The law of Kansas is rather clear on this issue. In Holt v. Saiya, 28 Kan. App. 2d 356, 362, 17 P.3d 368 (2000), we said: “Kansas law is clear that in collateral post-conviction proceedings, an inmate does not have a constitutional right to counsel and without a constitutional right, there can be no claim of ineffective assistance of counsel.” (Emphasis added.) See also Foy v. State, 17 Kan. App. 2d 775, 844 P.2d 744, rev. denied 252 Kan. 1091 (1993) (holding
Movant acknowledges the cases citеd above and the Kansas precedent. However, he asserts those decisions should not control because Kansas has implicated the provisions of the due process clause by voluntarily estabhshing a procedure for post-cоnviction relief. He relies on Evitts v. Lucey, 469 U.S. 387, 83 L. Ed. 2d 821, 105 S. Ct. 830 (1985), for support of his argument. In Evitts, the court held the dismissal of a defendant’s appeal violates his or her due process rights when the dismissal was the result of ineffective assistance of counsel. However, in Evitts, the right to counsel was limited to “the first appeal as of right.” 469 U.S. at 394.
In Pennsylvania v. Finley, 481 U.S. 551, 555, 95 L. Ed. 2d 539, 107 S. Ct. 1990 (1987), the Court determined that an indigent defendant did not have the right to counsel in a collateral postconviction proceeding. The Court further held that because an indigent does not have the right to counsel in these circumstancеs, he or she is not entitled to the protections provided for in the procedure for withdrawal as counsel for an indigent defendant set forth in Anders v. California, 386 U.S. 738, 18 L. Ed. 2d 493, 87 S. Ct. 1396 (1967). Additionally, the Court rejected an argument that Evitts required the State to ensure an inmate receives the same level of protection by his or her counsel during a collateral postconviction proceeding as he or she would have had on direct appeal. 481 U.S. at 557-58. Furthermore, the Court determined that the State was not required to make the choice of providing no counsel or abiding by the strict procedures set forth in Anders. 481 U.S. at 559.
This court has already analyzed the effect of Evitts and Finley in Robinson v. State, 13 Kan. App. 2d 244, 248-49, 767 P.2d 851, rev. denied 244 Kan. 738 (1989). In its analysis, the Robinson court analogized its case to Wainwright v. Torna, 455 U.S. 586, 587-88, 71 L. Ed. 2d 475, 102 S. Ct. 1300 (1982). In discussing Wainwright, the court in Robinson stated:
“There, the Florida Supreme Court dismissed an application for writ of certiorari because it was not timely filed. Respondent claimed he had been denied effective assistance of counsel by failure of retained counsel to timely file the application for certiorari. The United States Supreme Court held that, because a criminal defendant has no constitutional right to counsel in a discretionaiy appeal, he could not be deprivеd of the effective assistance of counsel by his retained counsel’s failure to timely file the application. [Citation omitted.]” 13 Kan. App. 2d at 250.
This case is controlled by our decision in Robinson v. State, 13 Kan. App. 2d at 250, where we said that a movant did not receive ineffective assistance of counsel by his or her counsel’s failure to file a timely appeal of the denial of a 60-1507 motion because the movant did not have the constitutional right to counsel. In addition, the court has already recognized the difference between the statutoiy right to counsel and a cоnstitutional right to counsel. See Holt v. Saiya, 28 Kan. App. 2d at 362. A statutory right to counsel does not create the constitutional right necessaiy for a 60-1507 claim. In order to be able to maintain an action for ineffective assistance of counsel, an inmate must show that his or her сounsel’s actions were so deficient that the inmate was deprived of the counsel guaranteed by the Sixth Amendment to the United States Constitution. If there is no constitutional right to counsel guaranteed, then an inmate cannot maintain an ineffective assistance of counsel claim. In the present case, movant was not guaranteed counsel in his 60-1507 motion by the Sixth Amendment, and his arguments concerning ineffective assistance of counsel are without merit.
We will discuss briefly the statutoiy right to counsel in Kansas.
In Holt v. Saiya, we recognized the statutory right to counsel created by 22-4506(b). We stated in that case: “Kansas lаw is clear that in collateral post-conviction proceedings, an inmate does not
In Kansas, we have provided a statutory right to counsel through 22-4506(b) since 1969. This particular law existed well before the decisions in Robinson, Foy, and Holt. Despite the existence of the Kansas statutory right to counsel, we have consistently held that a person cannot bring an ineffectivе assistance of counsel claim against his or her
For those reasons, movant has no right to bring an ineffectivе assistance of counsel claim, and we affirm the trial court’s decision denying his 60-1507 motion.
Affirmed.
Dissenting Opinion
dissenting: I respectfully dissent from that portion of the majority opinion that concludes that there can be no ineffective assistance of counsel claim аgainst counsel appointed for postconviction proceedings pursuant to
With due respect to the Saiya panel, it appears to me that we may have too quickly applied federal law addressing whether there is a constitutional right to effective assistance of counsel; such decisions are not necessarily instructive and certainly not controlling when addressing the statutory right to counsel in Kansas postconviction proceedings. The reason that there is no basis for a claim of ineffective assistance of counsel in some states аnd in the federal system is that there is no right to counsel in such proceedings. As stated in Saiya, “[i]f there is no right to counsel, there can be no
The proper analysis оf the issue should include a determination of legislative intent in
“If the court finds that the petition or motion presents substantial questions of law or triable issues of fact and if the petitioner or movant has been or is thereafter determined to be an indigent person as provided inK.S.A. 22-4504 and amendments thereto, the court shall appoint counsel from the panel for indigents’ defense services or otherwise in accordance with the applicable system for providing legal defense services for indigent persons prescribed by the state bоard of indigents’ defense services . . . .” (Emphasis added.)
Granted, the statute does not expressly require “competent” or “effective” counsel, but it is difficult if not impossible to argue that the legislature was entirely indifferent to the quality of services provided; mandatory appointment of legal counsel surely presumes some modicum of competence—if not, the legislative mandate would appear rather meaningless if not a mockery of justice. Moreover, the legislative intent for such sеrvices to be reasonably competent is manifested by
For this court to recognize that an indigent has a statutory right to counsel, but then refuse to require some modicum of competence by such counsel, seems repugnant to the obvious legislative intent. I respectfully disagree with the holding and rationale of Saiya, so I must pаrt company from my brethren in the majority, notwithstanding my respect for their reliance upon stare decisis. I would hold that when a district court deems the threshold requirements of
I would remand for an evidentiaiy hearing where the merits of McCarty’s claims of ineffective assistаnce of his postconviction counsel can be presented and considered by the district court.
Concurrence Opinion
concurring: I concur that the district court’s judgment should be affirmed in this case, but not for the reasons stated in the majority opinion.
Initially, I find merit in the argument expressed in the dissenting opinion on the right to effective assistance of counsel in a
Turning to the merits of McCarty’s claim, howevеr, I find absolutely no evidence that his attorney’s representation was ineffective. A review of the sparse record provided in this case renders it clear to me that the district court appointed counsel for McCarty and scheduled a рreliminary, nonevidentiary hearing to determine whether further proceedings were warranted. After hearing from both counsel, the district court determined that McCarty’s claims were conclusory and denied the relief sought in his 1507 motion.
McCarty is not claiming that the district court erred in summarily denying his 1507 motion. Instead, he is trying to blame the outcome in district court on his attorney. There is no evidence to support the single issue McCarty has raised on appeal, and, accordingly, the district court’s judgment should be affirmed.