McIntyre v. State

No. 111,580

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

TERRY D. MCINTYRE,
Appellant,

v.

STATE OF KANSAS,
Appellee.

SYLLABUS BY THE COURT

1.
Under K.S.A. 22-4506(b), if the district court finds that a K.S.A. 60-1507 motion
presents substantial questions of law or triable issues of fact the movant has a statutory
right to the effective assistance of counsel regardless of indigency.

2.
Under K.S.A. 22-4506(c), if an appeal is taken in a K.S.A. 60-1507 cause of
action the movant has a statutory right to the effective assistance of counsel regardless of
indigency.

Appeal from Douglas District Court; SALLY D. POKORNY, judge. Opinion on remand filed
September 1, 2017. Reversed and remanded with directions.

Randall L. Hodgkinson and Janine Cox, of Kansas Appellate Defender Office, for appellant.

Natalie Yoza and Patrick J. Hurley, assistant district attorneys, Charles E. Branson, district
attorney, and Derek Schmidt, attorney general, for appellee.

Before MALONE, P.J., HILL and BUSER, JJ.

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 BUSER, J.: This case returns to our court on remand from the Supreme Court with
directions to resolve the legal issue previously presented to us: Did Terry D. McIntyre
have a statutory right to the effective assistance of retained counsel in his appeal of an
adverse K.S.A. 60-1507 judgment?

Upon our review, we make two legal conclusions: First, under K.S.A. 22-4506(b),
if the district court finds that a K.S.A. 60-1507 motion presents substantial questions of
law or triable issues of fact the movant has a statutory right to the effective assistance of
counsel regardless of indigency. Second, under K.S.A. 22-4506(c), if an appeal is taken
in a K.S.A. 60-1507 cause of action the movant has a statutory right to the effective
assistance of counsel regardless of indigency.

Applying these two legal conclusions to the unique facts of this case, we reverse
the district court's summary denial of McIntyre's second K.S.A. 60-1507 motion and
remand with directions to consider whether McIntyre's retained counsel provided
ineffective assistance in the appeal of the denial of McIntyre's first K.S.A. 60-1507
motion.

FACTUAL AND PROCEDURAL BACKGROUND

This case has a long and involved procedural history which is summarized below.
On December 8, 2000, McIntyre was convicted of aggravated kidnapping, kidnapping,
aggravated robbery, aggravated criminal sodomy, and rape. He was sentenced to 645
months' imprisonment. Our court affirmed the convictions in State v. McIntyre, No.
86,715 (Kan. App.) (unpublished opinion), rev. denied 274 Kan. 1116 (2002). During the
direct appeal, McIntyre was represented by Autumn L. Fox.

On April 24, 2002, McIntyre brought a pro se legal malpractice lawsuit against his
trial counsel, James Rumsey. The district court granted summary judgment to Rumsey,

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and our court affirmed. McIntyre v. Rumsey, No. 90,200, 2003 WL 22990205, at *4 (Kan.
App. 2003) (unpublished opinion).

On September 23, 2002, McIntyre filed a pro se K.S.A. 60-1507 motion, asserting
that Rumsey provided ineffective assistance at trial and Fox provided ineffective
assistance on direct appeal. McIntyre appeared pro se during the four-day evidentiary
hearing on his motion. On May 3, 2005, the district court denied the K.S.A. 60-1507
motion and filed a memorandum opinion finding that McIntyre's ineffectiveness claims
were "without any merit whatsoever."

McIntyre filed an appeal of this adverse decision and retained John W. Fay as
appellate counsel. As part of his duties and responsibilities as appellate counsel, Fay
prepared and filed the appellant's brief. On May 4, 2007, our court affirmed the district
court's judgment denying McIntyre's K.S.A. 60-1507 motion, and the Supreme Court
denied review on October 1, 2007. McIntyre v. State, No. 94,786, 2007 WL 1309576
(Kan. App. 2007) (unpublished opinion).

McIntyre sought federal habeas corpus relief in March 2008. But his writ was
denied by the United States District Court for the District of Kansas in February 2011, the
Tenth Circuit Court of Appeals denied his appeal on May 9, 2012, and the United States
Supreme Court denied certiorari on November 26, 2012.

More than 10 years after our Supreme Court denied McIntyre's petition for review
of our court's affirmance on direct appeal on December 17, 2012, McIntyre filed a second
K.S.A. 60-1507 motion. This second motion is the subject of this appeal. In the motion,
McIntyre claimed that his retained counsel, Fay, had provided ineffective assistance of
counsel in the appeal of the denial of McIntyre's first K.S.A. 60-1507 motion. In
particular, McIntyre asserted that Fay had not included issues and arguments in the

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appellant's brief which McIntyre believed should have been raised before our court on
appeal.

On April 12, 2013, the district court filed a written opinion summarily denying
McIntyre's second K.S.A. 60-1507 motion. In denying the motion, the district court did
not address whether it had been filed in a timely manner. See K.S.A. 60-1507(f)(2). The
district court also did not address the merits of whether Fay was ineffective in preparing
the appellant's brief in the first K.S.A. 60-1507 proceeding.

Instead, the district court held:

"Petitioner had no right to counsel pursuant to the Sixth Amendment or his
appeal of the denial of his Writ. Additionally, he was not indigent as he was able to retain
John Fay. There is no rule that says retained counsel in a civil collateral attack of a
criminal conviction must be effective."

In short, the district court concluded that McIntyre did not have a constitutional or
statutory right to the effective assistance of retained counsel in the appeal of the denial of
his first K.S.A. 60-1507 motion.

On April 22, 2013, McIntyre filed a pro se motion asking the district court to
amend its order of denial. That motion was denied on November 12, 2013. In denying the
motion to reconsider or amend, the district court noted that McIntyre's motion did not
address or provide legal support to challenge the basis for the district court's ruling—that
McIntyre did not have a right to the effective assistance of retained counsel in the appeal
of the denial of his first K.S.A. 60-1507 motion. The district court concluded:

"Mr. McIntyre does not meet the requirements under K.S.A. 22-4506. . . . On appeal of
the denial of the [K.S.A.] 60-1507 motion, Mr. McIntyre retained John Fay to handle his
case. By retaining Mr. Fay to handle his appeal, Mr. McIntyre demonstrated that he was

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 not indigent, and thus had no right to the appointment of effective counsel in accordance
with K.S.A. 22-4506(b). Because of this, Mr. McIntyre does not have a claim for
ineffective assistance of counsel under the statute."

McIntyre filed a timely notice of appeal to our court on November 19, 2013. In the
appeal, McIntyre contended the district court committed reversible error when it
summarily denied his second K.S.A. 60-1507 motion on the basis that he had no right to
the reasonable assistance of retained counsel in the appeal of the denial of his first K.S.A.
60-1507 motion. In response, the State presented several alternative arguments, including
that McIntyre's second K.S.A. 60-1507 motion was not timely filed and that the claims of
his appellate attorney's ineffectiveness were meritless, hence the district court was correct
in ruling that McIntyre did not have a constitutional or statutory right to effective
assistance of retained appellate counsel.

On June 19, 2015, our court filed an unpublished opinion affirming the district
court's summary denial of McIntyre's second K.S.A. 60-1507 motion. McIntyre v. State,
No. 111,580, 2015 WL 4094258, at *3 (Kan. App. 2015) (unpublished opinion). We
concluded that McIntyre's motion was not timely filed within the one-year time limitation
as required by K.S.A. 60-1507(f) and that he had not claimed or briefed any exception for
manifest injustice as permitted under K.S.A. 60-1507(f)(2). 2015 WL 4094258, at *3.
Because we held that McIntyre's second K.S.A. 60-1507 motion was procedurally barred,
we declined to review the reason for the district court's summary denial ruling. We
concluded, however, that the district court reached the correct result for a different reason
and, accordingly, affirmed the summary denial. 2015 WL 4094258, at *3; see Gannon v.
State, 302 Kan. 739, 744, 357 P.3d 873 (2015).

McIntyre filed a petition for review which was granted by our Supreme Court on
March 31, 2016. Upon its review, the Supreme Court reversed our decision in a published
opinion filed on December 23, 2016. It concluded: "Implicit in the [Court of Appeals']

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opinion was the premise that the statutory time limitation is not a defense that the State
may waive by failing to raise the argument to the district court. McIntyre v. State, 305
Kan. 616, 617, 385 P.3d 930 (2016). Moreover, the Supreme Court determined that "[i]n
order for the district court to consider the merits of McIntyre's motion, it therefore had to
reach the threshold conclusion that it was extending the filing time to prevent manifest
injustice." 305 Kan. at 617-18. Accordingly, the Supreme Court reversed our affirmance
of the district court based on the procedural bar of K.S.A. 60-1507(f) and remanded the
case to our court with directions to resolve the issue McIntyre raised in his brief on
appeal. 305 Kan. at 618.

STATUTORY RIGHT TO EFFECTIVE ASSISTANCE OF RETAINED
COUNSEL IN K.S.A. 60-1507 APPEALS

On appeal, McIntyre contends the district court erred in its legal conclusion that
K.S.A. 60-1507 movants who are represented by retained appellate counsel do not have a
statutory right to the effective assistance of counsel. As McIntyre frames the issue:

"In every instance, except the direct appeal from the denial of his [first K.S.A.
60-]1507 petition, Mr. McIntyre has been found indigent and has been afforded the
assistance of counsel. In each of those instances counsel have been obligated to meet
either the constitutional or statutory requirement of providing effective assistance of
counsel. It is only in the single instance when Mr. McIntyre was somehow able to secure
funds to retain counsel that he had no protection from ineffective representation."

In response, the State does not rebut McIntyre's claim that he had a right to
effective assistance of retained appellate counsel or defend the district court's legal
conclusion that McIntyre did not have that statutory right. Instead, the State argues that
regardless of whether appellate counsel was retained or appointed, McIntyre's numerous
individual claims of ineffectiveness were meritless such that he was not entitled to relief
and this fact was "inherently built into the district court's finding there is no base line

6
right to counsel when you waive your right to counsel and subsequently retain appellate
counsel in a civil matter." The State then concludes: "If the Court [of Appeals] believes
[the] district court's decision was error, it was harmless because the record, motion and
files demonstrated McIntyre was not entitled to any relief."

Preliminarily, McIntyre acknowledges there is no constitutional right to effective
assistance of counsel in K.S.A. 60-1507 proceedings because these causes of action are
civil, rather than criminal, in nature. See Robertson v. State, 288 Kan. 217, 228, 201 P.3d
691 (2009); Brown v. State, 278 Kan. 481, 483, 101 P.3d 1201 (2004) (citing
Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S. Ct. 1990, 95 L. Ed. 2d 539 [1987]).
Moreover, both parties agree that indigent movants have a conditional statutory right to
the effective assistance of appointed counsel in K.S.A. 60-1507 proceedings. What makes
this case unique is that we are presented with the question of whether K.S.A. 22-4506
provided McIntyre with a statutory right to the effective assistance of retained counsel in
his appeal of the denial of his first K.S.A. 60-1507 motion.

The focus of this appeal, therefore, is on the meaning of K.S.A. 22-4506. Our
standard of review provides that the interpretation of a statute is a question of law over
which appellate courts have unlimited review. Neighbor v. Weststar Energy, Inc., 301
Kan. 916, 918, 349 P.3d 469 (2015). In considering the meaning of K.S.A. 22-4506 we
start with the most fundamental rule of statutory construction which is that the intent of
the legislature governs if that intent can be ascertained. State ex rel. Schmidt v. City of
Wichita, 303 Kan. 650, 659, 367 P.3d 282 (2016). As an appellate court, we first attempt
to ascertain legislative intent through the statutory language enacted, giving common
words their ordinary meanings. Ullery v. Othick, 304 Kan. 405, 409, 372 P.3d 1135
(2016).

At the outset, in denying McIntyre's second K.S.A. 60-1507 motion, the district
court relied on K.S.A. 22-4506(b). On appeal, McIntyre also addresses this issue in the

7
context of K.S.A. 22-4506(b). We conclude, however, that subsections (b) and (c) of
K.S.A. 22-4506 are relevant to the analysis. As a result, we will apply these two
subsections separately.

K.S.A. 22-4506(b)

K.S.A. 22-4506(b) provides in relevant part: "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 . . . , the court
shall appoint counsel . . . to assist such person." (Emphasis added.) See Albright v. State,
292 Kan. 193, 199, 251 P.3d 52 (2011). Kansas Supreme Court Rule 183(i) (2017 Kan. S.
Ct. R. 224) mirrors the statutory scheme of K.S.A. 22-4506(b) when it states: "Right to
Counsel. If a motion to vacate, set aside, or correct a sentence presents a substantial
question of law or triable issue of fact, the court must appoint counsel to represent an
indigent movant."

K.S.A. 22-4506 is part of the Indigents' Defense Services Act. See K.S.A. 22-4501
et seq. Within the provisions of this Act, however, the legislature has provided K.S.A. 60-
1507 movants a statutory right to counsel whenever their "petition or motion presents
substantial questions of law or triable issues of fact." K.S.A. 22-4506(b). Once the district
court determines that legal standard is met, the statutory right to counsel attaches.
Moreover, to insure this important right is afforded to movants who do not have
sufficient funds to retain counsel, the statute also provides that indigent movants will
have the benefit of appointed counsel to assist them.

In our view, the statutory right to counsel established by K.S.A. 22-4506(b) is
predicated upon the apparent merits of the K.S.A. 60-1507 motion, rather than the
financial means of the movant. Once a district court determines the motion presents
substantial questions of law or triable issues of fact, the statutory right to counsel

8
attaches, regardless of the movant's indigency. And once the statutory right to counsel
attaches, the movant is entitled to effective representation by counsel, whether appointed
or retained. As our Supreme Court has stated, "[K.S.A.] 60-1507 movants who have
counsel are entitled to effective assistance of that counsel." Albright, 292 Kan. at 207.

This interpretation not only makes good sense, more importantly, it also serves the
obvious legislative purpose of K.S.A. 22-4506(b). As our Supreme Court has observed,
to establish a statutory right to counsel "but then refuse to require some modicum of
competence by such counsel, seems repugnant to the obvious legislative intent.' [Citation
omitted.]" Brown, 278 Kan. at 484; see Albright, 292 Kan. at 207 ("regardless of the
source of the right, a right to counsel, to be meaningful, necessarily includes the right to
effective assistance of counsel"). By its plain words, K.S.A. 22-4506(b) implements the
legislature's intent to safeguard a movant's right to be represented by counsel who will
provide effective legal assistance.

Returning to the facts of McIntyre's case, the district court had three options when
it reviewed his first K.S.A. 60-1507 motion. The district court could have (1) summarily
denied the motion if it determined that the motion, files, and case records conclusively
showed McIntyre was entitled to no relief, (2) held a preliminary hearing if it determined
from the motion, files, and records that a potentially substantial issue existed, or (3)
conducted a full hearing if it determined from the motion, files, records, or preliminary
hearing that a substantial issue was presented. See Sola-Morales v. State, 300 Kan. 875,
881, 335 P.3d 1162 (2014).

In McIntyre's case, the district court conducted a four-day evidentiary hearing on
his first K.S.A. 60-1507 motion. By holding this hearing, the district court employed the
third option available to it under the Sola-Morales rubric. As a result, it is apparent the
district court concluded that McIntyre's motion presented one or more "substantial
questions of law or triable issues of fact," K.S.A. 22-4506(b). This finding also meant

9
that, with regard to McIntyre's first K.S.A. 60-1507 motion, his statutory right to
effective assistance of counsel had attached at the time of the evidentiary hearing.

Of note, despite K.S.A. 22-4506(b) affording McIntyre the statutory right to
effective assistance of counsel under the circumstances, McIntyre appeared pro se at the
evidentiary hearing. On appeal, McIntyre does not complain about not having the
assistance of counsel at the evidentiary hearing. Rather, his second K.S.A. 60-1507
motion specifically challenges the legal assistance he received from appellate counsel he
retained after he filed his notice of appeal of the denial of his first K.S.A. 60-1507
motion.

K.S.A. 22-4506(c)

This brings us to subsection (c) of K.S.A. 22-4506. K.S.A. 22-4506(c) provides:
"If an appeal is taken in such [K.S.A. 60-1507] action and if the trial court finds that the
petitioner or movant is an indigent person, the trial court shall appoint counsel to conduct
the appeal." See Guillory v. State, 285 Kan. 223, 228-29, 170 P.3d 403 (2007). Similarly,
Kansas Supreme Court Rule 183(m) (2017 Kan. S. Ct. R. 224) states: "If a movant
desires to appeal and contends the movant is without means to employ counsel to perfect
the appeal, the district court must, if satisfied that the movant is indigent, appoint
competent counsel to conduct the appeal." See Albright, 292 Kan. at 199. In short, under
K.S.A. 22-4506(c), the legislature has also extended the statutory right to counsel to
movants who appeal from an adverse K.S.A. 60-1507 judgment.

As is immediately apparent, unlike subsection (b), subsection (c) does not
condition the right to counsel on the presence of substantial questions of law or triable
issues of fact in the K.S.A. 60-1507 motion. By the plain language of K.S.A. 22-4506(c),
even if a K.S.A. 60-1507 movant fails to meet the subsection (b) requirements for

10
appointed counsel at the district court level, once a notice of appeal is filed, the statutory
right to counsel attaches to the movant.

In arriving at this interpretation, we rely on Supreme Court Rule 183(m) and our
Supreme Court's discussion of Guillory in Albright, wherein the Supreme Court
explained that a "pro se [K.S.A.] 60-1507 movant who fails to meet th[e] threshold
[showing of substantial legal issues or triable issues of fact,] does have a right to
appointment of counsel on appeal 'but not until after a notice of appeal has been filed.'
[Citations omitted.]" Albright, 292 Kan. at 203 (quoting Guillory, 285 Kan. at 228-29);
see State v. Lewis, No. 110,110, 2014 WL 2871381, at *2 (Kan. App. 2014) (unpublished
opinion) ("If [K.S.A. 60-1507 movants] do not meet the threshold showing, [i.e., that
they are raising substantial legal issues or triable issues of fact,] they only have a right to
counsel on appeal, after the notice of appeal has been filed."), rev. denied 301 Kan. 1050
(2015); Ludlow, 2011 WL 5833609, at *4.

Does this right to the effective assistance of appellate counsel attach to movants
who retain counsel? We think so. As in the interpretation of K.S.A. 22-4506(b), we
conclude that K.S.A. 22-4506(c) provides a movant who files an appeal in a K.S.A. 60-
1507 proceeding with the right to the effective assistance of counsel regardless of the
movant's financial means.

In arriving at this conclusion, we are persuaded that the following remarks which
the United States Supreme Court made in Cuyler v. Sullivan, 446 U.S. 335, 344-45, 100
S. Ct. 1708, 64 L. Ed. 2d 333 (1980), regarding the Sixth Amendment right to counsel,
apply with equal force in the context of the statutory right to counsel afforded by K.S.A.
22-4506: "We may assume with confidence that most counsel, whether retained or
appointed, will protect the rights of an accused. But experience teaches that, in some
cases, retained counsel will not provide adequate representation." Cuyler, 446 U.S. at
344. Whether the source of the right emanates from the United States Constitution or a

11
Kansas statute, there is simply "no basis for drawing a distinction between retained and
appointed counsel that would deny equal justice to defendants who must choose their
own lawyers." 446 U.S. at 344-45.

Although by holding an evidentiary hearing, the district court had already
determined that the motion had raised substantial questions of law or triable issues of
fact, under K.S.A. 22-4506(b), McIntyre's filing of the notice of appeal also triggered the
right to effective appellate counsel regardless of indigency under K.S.A. 22-4506(c). In
this second K.S.A. 60-1507 motion which is before us, McIntyre claims his retained
appellate counsel was ineffective in preparing the appellant's brief in the first K.S.A. 60-
1507 proceeding. Under a plain reading of K.S.A. 22-4506(c) we hold the district court
erred in concluding as a matter of law that McIntyre did not have a statutory right to the
effective assistance of retained appellate counsel.

Our court has addressed a similar case in an unpublished opinion and held that
although K.S.A. 22-4506 refers to appointing counsel for indigent movants, the statutory
right to effective assistance of counsel applies regardless of whether the movant's counsel
is appointed or retained. Ludlow, 2011 WL 5833609, at *3.

In Ludlow, after our Supreme Court affirmed his convictions of second-degree
murder, attempted first-degree murder, and theft, Ludlow retained counsel to file a
K.S.A. 60-1507 motion alleging that his trial and appellate counsel were ineffective. 2011
WL 5833609, at *1. After an evidentiary hearing, the district court denied the K.S.A. 60-
1507 motion and our court affirmed the denial. 2011 WL 5833609, at *1. Ludlow asked
his retained appellate counsel to file a petition for review with the Supreme Court, but the
petition was never filed. Sometime later, Ludlow filed an untimely second K.S.A. 60-
1507 motion and other motions asking the district court to find that his retained appellate
counsel had engaged in ineffective assistance by failing to timely file a petition for

12
review of our Court of Appeals' affirmance of the denial of his first K.S.A. 60-1507
motion. These motions were denied by the district court and consolidated for appeal.

On appeal, the State urged our court to find "the statutory right to effective
assistance of counsel only applies to indigents with appointed counsel, and thus Ludlow
ha[d] no colorable claim [of ineffectiveness] because he had retained counsel." 2011 WL
5833609, at *3. Our court disagreed. After finding that the district court should have
considered the merits of Ludlow's ineffective assistance of counsel claim to prevent
manifest injustice, our court determined that the record was sufficient to address, for the
first time on appeal, the merits of Ludlow's claim of ineffective assistance of retained
appellate counsel. 2011 WL 5833609, at *3.

Citing our Supreme Court's decision in Albright, wherein the Supreme Court
determined that a K.S.A. 60-1507 movant was entitled to pursue an untimely appeal
because his appointed counsel performed deficiently in failing to file a notice of appeal,
our court found in Ludlow that the statutory right to counsel set forth in K.S.A. 22-
4506(b) depended upon "the factual and legal issues raised in the [K.S.A.] 60-1507
motion, and not on the movant's indigent status. [Albright,] 292 Kan. at 199." Ludlow,
2011 WL 5833609, at *3. Our court explained, "To hold . . . that appointed counsel for an
indigent must be effective whereas retained counsel for a nonindigent does not have to be
effective, is illogical. Appointed and retained counsel must be effective when there are
'substantial questions of law or triable issues of fact.' [Citation omitted.] Ludlow had a
right to effective assistance of counsel." 2011 WL 5833609, at *3; see State v. Maddox,
No. 113,621, 2016 WL 7031839, at *3 (Kan. App. 2016) (unpublished opinion), petition
for rev. filed January 3, 2017.

Similarly, our court in Ludlow also found K.S.A. 22-4506(c) to be applicable in
providing the K.S.A. 60-1507 movant with the right to effective assistance of appellate
counsel. Our court observed that the alleged ineffectiveness occurred after the notice of

13
appeal was filed and that "even if the statutory right to effective assistance of counsel did
not attach at the district court level, the right had attached at the time of [retained
counsel's] alleged failure to file a petition for review with the Kansas Supreme Court."
2011 WL 5833609, at *4.

Based on our reading of the plain language of K.S.A. 22-4506(b) and (c) we hold
that McIntyre had a statutory right to receive effective assistance from his retained
counsel on appeal of the district court's denial of his first K.S.A. 60-1507 motion.

We decline the State's invitation to find the district court's erroneous legal
conclusion to be harmless error because such a finding would require us, as an appellate
court, to resolve factual matters related to the claimed ineffectiveness of retained
appellate counsel and the record on appeal is insufficient for de novo review. See
Wimbley v. State, 292 Kan. 796, 807, 275 P.3d 35 (2011).

We reverse the district court's denial of McIntyre's second K.S.A. 60-1507 motion.
We remand with directions to consider whether McIntyre's retained appellate counsel
provided ineffective assistance on appeal of the denial of McIntyre's first K.S.A. 60-1507
motion.

Reversed and remanded with directions.

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