Robinson v. State

NOT DESIGNATED FOR PUBLICATION

No. 122,742

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

TROY A. ROBINSON,
Appellant,

v.

STATE OF KANSAS,
Appellee.

MEMORANDUM OPINION

Appeal from Shawnee District Court; NANCY E. PARRISH, judge. Opinion filed December 17,
2021. Affirmed.

Jonathan B. Phelps, of Phelps-Chartered, of Topeka, for appellant.

Natalie Chalmers, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.

Before BRUNS, P.J., GREEN and ISHERWOOD, JJ.

PER CURIAM: Troy A. Robinson appeals from the district court's denial of his
K.S.A. 60-1507 motion. On appeal, Robinson claims the district court erred in denying
the motion without conducting an evidentiary hearing. Robinson asserts his trial counsel
was ineffective for: (1) failing to request a second competency evaluation; and (2) failing
to present a mental disease or defect defense. The sole issue before us is whether the
district court erred in not granting Robinson's request for an evidentiary hearing. For the
reasons set forth in this opinion, we find that the district court appropriately resolved
Robinson's K.S.A. 60-1507 motion without an evidentiary hearing. Thus, we affirm the
district court.

1
 FACTS

On December 20, 2012, Robinson was arrested for premeditated first-degree
murder. Robinson's arrest occurred after he told his mother that he had stabbed the victim
in the neck, and his mother called the police. After a trial on June 24-30, 2014, a jury
convicted Robinson of premeditated first-degree murder, aggravated burglary, and
misdemeanor theft. The facts leading to the charges and convictions are set out in State v.
Robinson, 306 Kan. 431, 432-35, 394 P.3d 868 (2017).

After the district court denied several posttrial motions filed by Robinson, the jury
recommended that he serve a sentence of life imprisonment with parole eligibility after
50 years. The district court then sentenced Robinson to a hard 50 life sentence for first-
degree murder and imposed consecutive sentences of 34 months for aggravated burglary
and 12 months for theft. Robinson's convictions and sentence were subsequently affirmed
by the Kansas Supreme Court on direct appeal and a mandate was issued on June 27,
2017. 306 Kan. at 450.

On February 5, 2018, Robinson filed a pro se K.S.A. 60-1507 motion, which is the
subject of this appeal. In the motion, Robinson asserted numerous allegations of error. In
doing so, he focused on alleged instances of ineffective assistance of counsel. Robinson
attached a letter dated January 4, 2018, to the K.S.A. 60-1507 motion. In the letter, his
trial attorney, Julia Spainhour, gave him advice regarding issues that he could raise in his
K.S.A. 60-1507 motion. The letter appears to have been written by Spainhour in response
to questions posed to her by Robinson.

On March 7, 2018, the district court appointed another attorney to represent
Robinson in the proceedings on the K.S.A. 60-1507 motion. Several months later,
Robinson's new attorney filed an addendum to the K.S.A. 60-1507 motion after
interviewing Spainhour. On February 26, 2019, the State asked the district court to

2
summarily deny Robinson's K.S.A. 60-1507 motion. Robinson filed a reply to the State's
request to deny the motion on January 31, 2020.

On March 27, 2020, after some delays unrelated to this appeal, the district court
judge—who also presided over Robinson's jury trial—summarily denied Robinson's
K.S.A. 60-1507 motion in a comprehensive 17-page memorandum decision and order.
The district court found that nine of Robinson's allegations were addressed in his direct
appeal or had been waived because they should have been raised in the appeal to the
Kansas Supreme Court. In ruling on the issues, the district court specifically addressed
Spainhour's letter in which she suggested that her representation of Robinson was
ineffective.

Specifically, the district court found that the letter contained mere conclusory
allegations without any factual support:

"[T]rial counsel's letter does not provide factual details to support her statements. For
example, the letter states, 'trial counsel was ineffective in failing to negotiate a plea
bargain in the case,' but provides no further explanation. Trial counsel may genuinely
believe she was ineffective, however, her admissions via a letter to Robinson are not
dispositive."

The district court also examined the record regarding Robinson's allegations
regarding his competency and his capability to form the specific intent required for first-
degree murder. In addition, the district court reviewed the record regarding his allegations
regarding plea negotiations. Regarding Robinson's claim that trial counsel was ineffective
in failing to raise Robinson's competency as an issue, the district court found that
Robinson failed to include any evidence that he was incompetent or unable to
understanding the proceedings. In addition, the district court ruled that the evidence in the
record supported Robinson's competence. As such, the district court concluded that his
claims "[did] not meet the first prong of the test regarding ineffectiveness of counsel."

3
 Next, the district court found that trial counsel was not ineffective for failing to
pursue a defense of lack of mental state to commit first-degree murder. In examining this
issue, the district court pointed to evidence in the record that showed that trial counsel
investigated the possibility of a lack of mental state defense, but she concluded that there
was no evidence that such a defense would have been appropriate in this case. In his
K.S.A. 60-1507 motion, Robinson did not provide any evidence to the contrary outside of
his conclusory allegation that trial counsel should have pursued this defense strategy.
Accordingly, the district court found that Robinson's claims did not meet the first prong
of the test regarding ineffective assistance of counsel.

Finally, the district court ruled that trial counsel was not ineffective for failing to
negotiate a plea or for failing to inform Robinson of the potential plea offers or the
maximum penalties for the charges against him. Once again, the district court pointed to
specific evidence in the record showing that Robinson was involved in plea negotiations
and that he was aware of the maximum penalty that he was facing. Finding direct
evidence contradicting Robinson's claims, the district court found that Robinson failed to
allege facts to support a finding that trial counsel was ineffective in her role during plea
negotiations.

Thereafter, Robinson filed a timely notice of appeal.

ANALYSIS

The only issue Robinson raises on appeal is whether the district court erred in
summarily denying his K.S.A. 60-1507 motion without first conducting an evidentiary
hearing. When considering a movant's K.S.A. 60-1507 motion, a district court has three
available options. Here, the district court exercised the first option and summarily
dismissed Robinson's motion. As a result, we conduct a de novo review to determine

4
whether the motion, files, and records of the case conclusively establish that the movant
has no right to relief. Breedlove v. State, 310 Kan. 56, 59, 445 P.3d 1101 (2019).

To be entitled to relief under K.S.A. 60-1507, the movant—in this case
Robinson—must establish by a preponderance of the evidence either: (1) "the judgment
was rendered without jurisdiction"; (2) "the sentence imposed was not authorized by law
or is otherwise open to collateral attack"; or (3) "there has been such a denial or
infringement of the constitutional rights of the prisoner as to render the judgment
vulnerable to collateral attack . . . ." K.S.A. 2020 Supp. 60-1507(b) (grounds for relief);
Supreme Court Rule 183(g) (2021 Kan. S. Ct. R. 239) (preponderance burden).

Robinson filed his K.S.A. 60-1507 motion pro se and it was later supplemented by
the attorney appointed by the district court to represent him in presenting his motion.
Generally, pro se pleadings are to be liberally construed. Mundy v. State, 307 Kan. 280,
304, 408 P.3d 965 (2018).

"Nevertheless, a pro se movant still bears the burden to allege facts sufficient to warrant a
hearing on the motion, and 'mere conclusions of the defendant or movant are not
sufficient to raise a substantial issue of fact when no factual basis is alleged or appears
from the record.' State v. Jackson, 255 Kan. 455, 463, 874 P.2d 1138 (1994)." Mundy,
307 Kan. at 304.

When a pro se movant offers only conclusory statements and incomplete facts, the
movant presents no evidentiary basis to support the claims. 307 Kan. at 304.

A movant bears the burden to prove his or her K.S.A. 60-1507 motion warrants an
evidentiary hearing. Specifically, the movant must make more than conclusory
allegations and must state an evidentiary basis in support of the claims or such a basis
must appear in the record. Once this burden is satisfied, the district court must grant an

5
evidentiary hearing unless the motion is successive or seeks similar relief to that
previously sought. Sola-Morales v. State, 300 Kan. 875, 881, 335 P.3d 1162 (2014).

In deciding whether an evidentiary hearing must be held, the district court
generally must accept the movant's factual allegations as set forth in the motion as true,
but the factual allegations must be specific and not mere conclusions. Skaggs v. State, 59
Kan. App. 2d 121, 130-31, 479 P.3d 499 (2020), rev. denied 313 Kan. 1042 (2021); see
Mundy, 307 Kan. at 304. It is error to deny a K.S.A. 60-1507 motion without a hearing
where the motion alleges facts that do not appear in the original record that, if true, would
entitle the movant to relief and the motion identifies readily available witnesses whose
testimony would support such facts or other sources of evidence. Beauclair v. State, 308
Kan. 284, 296, 419 P.3d 1180 (2018); Swenson v. State, 284 Kan. 931, 939, 169 P.3d 298
(2007).

We first consider Robinson's claim that his trial counsel provided ineffective
assistance of counsel by failing to sufficiently investigate and pursue a motion to
determine Robinson's competency to stand trial and assist in his defense. A district court
must set aside a movant's conviction if "there has been such a denial or infringement of
the constitutional rights of the prisoner as to render the judgment vulnerable to collateral
attack . . . ." K.S.A. 2020 Supp. 60-1507(b). The right to effective counsel is embodied in
the Sixth Amendment to the United States Constitution and "plays a crucial role in the
adversarial system . . . ." Strickland v. Washington, 466 U.S. 668, 685, 104 S. Ct. 2052,
80 L. Ed. 2d 674, reh. denied 467 U.S. 1267 [1984]); see Chamberlain v. State, 236 Kan.
650, 657, 694 P.2d 468 (1985) (adopting Strickland).

Ineffective assistance of counsel can be categorized into three subgroups, one of
which is a claim that defense counsel's "performance was so deficient that the defendant
was denied a fair trial." Sola-Morales, 300 Kan. at 882. That is, "counsel's conduct so
undermined the proper functioning of the adversarial process that the trial cannot be

6
relied on as having produced a just result." Strickland, 466 U.S. at 686. To meet his
burden of establishing ineffective assistance of counsel, Robinson must establish that
Spainhour's performance was both deficient and prejudicial. State v. Adams, 311 Kan.
569, 578, 465 P.3d 176 (2020).

Before trial counsel's assistance is determined to be so defective as to require
reversal of a conviction, the movant must establish the well-known two-pronged test.
First, the movant must establish that counsel's performance was constitutionally deficient.
This requires a showing that counsel made errors so serious that his or her performance
was less than that guaranteed to the defendant by the Sixth Amendment to the United
States Constitution. Second, the movant must establish that counsel's deficient
performance prejudiced the defense, thus depriving the defendant of a fair trial.
Strickland, 466 U.S. at 687; State v. Salary, 309 Kan. 479, 483, 437 P.3d 953 (2019). To
establish prejudice, the defendant must show a reasonable probability that, but for
counsel's deficient performance, the outcome of the proceeding would have been
different. Adams, 311 Kan. at 578.

The benchmark for judging an ineffective assistance of counsel claim is whether
counsel's conduct "so undermined the proper functioning of the adversarial process that
the trial cannot be relied upon as having produced a just result." Miller v. State, 298 Kan.
921, Syl. ¶ 2, 318 P.3d 155 (2014). Judicial scrutiny of counsel's performance in a claim
of ineffective assistance of counsel is highly deferential and requires consideration of all
the evidence before the judge or jury. The reviewing court must strongly presume that
counsel's conduct fell within the broad range of reasonable professional assistance. State
v. Kelly, 298 Kan. 965, 970, 318 P.3d 987 (2014).

Here, Robinson asserts his trial counsel was ineffective for failing to file a motion
to determine his competency. The criminal trial of one who is incompetent violates due
process. Medina v. California, 505 U.S. 437, 453, 112 S. Ct. 2572, 120 L. Ed. 2d 353

7
(1992). In Kansas, a defendant is incompetent to stand trial when he or she is charged
with a crime and, due to mental illness, is: (1) unable to understand the nature and
purpose of the proceedings, or (2) cannot make or assist in making his or her defense.
K.S.A. 22-3301(1)(a) and (b). See State v. Stewart, 306 Kan. 237, 251, 393 P.3d 1031
(2017).

A defendant is presumed competent to stand trial. State v. Woods, 301 Kan. 852,
860, 348 P.3d 583 (2015). However, the defense, trial counsel, the prosecutor, or the
judge may raise the issue of a defendant's competency at any time between the filing of
the charging document and before pronouncement of the sentence. If the district court
judge has reason to believe that the defendant is incompetent to stand trial, the
proceedings should be suspended, and a competency hearing must be held. K.S.A. 2020
Supp. 22-3302(1).

In this case, the district court ordered a competency evaluation at the request of
Spainhour, which was performed by Dr. David Blakely on January 31, 2013. Dr. Blakely
noted that Robinson had a long history of psychiatric difficulties, including multiple
hospitalizations, cutting himself, and "suicidal acting out." He noted that Robinson's
diagnoses include Attention Deficit and Hyperactivity Disorder (ADHD), Bipolar
Disorder, and Borderline Personality Disorder. Dr. Blakely asked Robinson numerous
questions about his understanding of the criminal proceedings, and he noted that
Robinson had a "broad understanding of what the roles of the Court Officers are, and he
knows what he is charged with."

Although Dr. Blakely acknowledged that Robinson struggled with significant
mental illness, he concluded that he was competent to stand trial. He stated:

"The first problem is competence. Despite the patient's significant psychiatric
liabilities he is competent. He understands the charges, and he can help in his own

8
 defense. He also has significant psychiatric liabilities. What to call them is a conundrum.
Bipolar is descriptive but probably not entirely the issue here. He has a significantly
disturbed upbringing, a significantly disturbed sense of self. He goes up and down in a
hurry. He is quite labile in his emotions. He probably genuinely is ADHD in terms of
being calmed down by Adderall, and he very likely needs other psychiatric medications
and treatment, so this is a man with significant psychiatric impairment who nonetheless is
competent." (Emphases added).

After this competency evaluation, Spainhour employed Dr. Mitchell Flesher to
conduct a psychological evaluation. In a report dated March 9, 2014, Dr. Flesher
provided a psychological evaluation detailing Robinson's past and current struggles with
mental illness, but nothing in the report suggested that Robinson was not competent to
stand trial or to understand the criminal proceedings.

Robinson argues that the record shows that he should be entitled to an evidentiary
hearing based on Spainhour's failure to obtain a second competency evaluation prior to
trial or sentencing. However, Robinson fails to support his suggestion that Spainhour was
incompetent with any facts showing that his competency was at issue beyond the fact that
he struggled with mental illness. In the K.S.A. 60-1507 motion, Robinson does not state
that he was incompetent or that his competency had changed since Dr. Blakely's
evaluation. Robinson does not suggest that Dr. Blakely's conclusion was wrong. In
addition, Robinson does not point to anything in Dr. Flesher's evaluation—beyond the
fact that he suffered from mental illness—to suggest that he was incompetent. Finally,
Robinson does not point to anything in the record suggesting that he was incompetent.

Robinson points to Spainhour's letter suggesting that he raise the issue of
ineffective assistance of counsel for failing to pursue a second competency evaluation
and to his addendum indicating that Spainhour told his K.S.A. 60-1507 counsel that she
was ineffective for failing to do so. However, neither the letter nor the addendum to the

9
original K.S.A. 60-1507 motion contain any facts supporting his claim that Spainhour
was ineffective for failing to file a motion for a second competency evaluation.

Robinson merely points to his mental illness and the conclusory claims that
Spainhour was ineffective for failing to file a motion seeking a second competency
evaluation. However, mental illness by itself is not enough to show that a person is
incompetent to stand trial. See State v. Harkness, 252 Kan. 510, 516, 847 P.2d 1191
(1993). Rather, the Kansas Legislature defined the phrase "incompetent to stand trial" in
K.S.A. 22-3301(1). As set forth in that statute, a defendant is incompetent to stand trial if
he or she "because of mental illness or defect is unable: (a) To understand the nature and
purpose of the proceedings against him; or (b) to make or assist in making his defense."
K.S.A. 22-3301(1). Kansas caselaw provides further analysis, indicating the test to
determine competency to stand trial is "'whether [the defendant] has sufficient present
ability to consult with his lawyer with a reasonable degree of rational understanding—
and whether he has a rational as well as factual understanding of the proceedings against
him.'" State v. Marshall, 303 Kan. 438, 445, 362 P.3d 587 (2015) (quoting Dusky v.
United States, 362 U.S. 402, 402, 80 S. Ct. 788, 4 L. Ed. 2d 824 [1960]). See Woods, 301
Kan. at 857-58.

The defense, the State, or the judge can raise the question of whether a defendant
lacks competency to stand trial. In this case, no one questioned Robinson's competency
after the initial competency evaluation was complete. There is nothing in the record that
suggests that Robinson was unable to understand the nature and purpose of the
proceedings against him or that he was unable to assist in his defense. To the contrary,
the record shows that he understood the proceedings and that he actively participated in
his defense. There is no evidence in the record of any mental illness that affected
Robinson's ability to understand the proceedings, assist in his defense, or that would have
justified a second competency evaluation.

10
 In contrast, in State v. Zabala, No. 107,408, 2013 WL 1010302 (Kan. App. 2013)
(unpublished opinion), the movant provided the district court with specific factual
allegations supporting his claim that an evidentiary hearing should have been granted
regarding his claim that counsel was ineffective for failing to request a competency
hearing before trial and again before sentencing. In that case, Zabala supported his claim
of ineffective assistance of counsel with a specific assertion that his trial counsel would
testify that he suspected Zabala was incompetent and sought advice from Zabala's mother
regarding her son's mental stability. Zabala specifically alleged that trial counsel's
testimony would show that

"his suspicion was such to cause him to question the Petitioner's mother regarding the
Petitioner's mental stability and that for whatever reason, [trial counsel] chose not to take
additional steps to verify the Petitioner's competency given that Petitioner's mother had
no expertise or experience to properly address [trial counsel's] concerns." 2013 WL
1010302, at *2.

The Court of Appeals panel noted that concerns about Zabala's competency were
supported by the record. 2013 WL 1010302, at *2. The panel held that the district court
erred in failing to hold an evidentiary hearing because Zabala had alleged facts that, if
true, would entitle the movant to relief and that he had properly identified a readily
available witness whose testimony would support such facts. 2013 WL 1010302, at *2.
After remand, the district court held an evidentiary hearing on Zabala's claims and denied
relief, and the denial was affirmed by another panel of this court. See Zabala v. State, No.
116,661, 2017 WL 4558558 (Kan. App. 2017) (unpublished opinion).

In this case, in contrast to Zabala, Robinson did not support his claim of
ineffective assistance of counsel with specific facts as to the need for another competency
evaluation. Robinson identified a witness in Spainhour, but he provided no facts or
expected testimony. There is nothing in the district court's factual findings or in the
record before us that addresses trial counsel's suspicions regarding her client's

11
competency issues. It is error to deny a K.S.A. 60-1507 hearing where the motion alleges
facts that, if true, would entitle the movant to relief where the motion identifies readily
available witnesses whose testimony would support such facts or other sources of
evidence. Swenson, 284 Kan. at 939. But Robinson provides no facts supporting his
claim.

Significantly, Robinson does not allege any facts in his original K.S.A. 60-1507
motion or in the addendum to the motion suggesting that he was incompetent or that
Spainhour was incompetent for failing to pursue a second competency evaluation.
Robinson makes no allegation that his competency status had changed or that his mental
health had declined since the first competency evaluation. He merely claims that trial
counsel was ineffective for failing to seek a second competency evaluation. Conclusory
statements are not sufficient to warrant an evidentiary hearing. Rather, the K.S.A. 60-
1507 motion must include specific factual allegations to support the claim. Skaggs, 59
Kan. App. 2d at 130-31. Without specific facts, there is nothing to support Robinson's
request for an evidentiary hearing based on an allegation that Spainhour was ineffective
for failing to request a competency evaluation.

Next, Robinson argues that the record shows that he should be entitled to an
evidentiary hearing based on trial counsel's failure to identify an expert that could speak
to Robinson's alleged inability to form the requisite intent required for first-degree
murder and to file a notice of the defense of lack of mental state under K.S.A. 22-3219.
K.S.A. 2020 Supp. 21-5209 provides: "It shall be a defense to a prosecution under any
statute that the defendant, as a result of mental disease or defect, lacked the culpable
mental state required as an element of the crime charged. Mental disease or defect is not
otherwise a defense."

Robinson claims that trial counsel was ineffective for failing to pursue a defense
that due to his mental disease or defect, he was unable to form the intent of premeditation

12
required for first-degree murder. See, e.g., State v. McLinn, 307 Kan. 307, 319-23, 409
P.3d 1 (2018). All capacity defenses in Kansas are valid only regarding the mens rea or
specific intent of the crime. State v. Pennington, 281 Kan. 426, 434, 132 P.3d 902 (2006).
A defendant cannot merely "'introduce evidence as to the existence of a mental disease or
defect to litigate the defendant's mental condition in general.'" 281 Kan. at 434-35.
Although the record supports Robinson's claim that he suffered from mental disease or
defect, he provides no evidence that his mental disease or defect prevented him from
forming the requisite intent to commit the crime. A review of the pleadings and
supporting documentation show that Robinson's allegations are not supported by specific
facts.

In addition, the record contains evidence that refutes Robinson's claim that
Spainhour was ineffective because it shows that Spainhour considered and investigated
the mental defect defense. At a hearing on November 8, 2013, Spainhour informed the
district court that "there is significant documentation of mental health issues that I believe
could result in the defense providing that notice of mental disease, but what I would tell
the Court at this time is our investigative stage, we're still in the investigative stage."
Spainhour indicated that she planned to make a catalog of information and consult with
experts to determine the viability of such a defense. Approximately five weeks later,
Spainhour informed the court that she had "no information at this time that would
support" the defense of lack of mental state. In addition, in a subsequent motion hearing
before trial, Spainhour sought a continuance to assist in preparing Robinson's defense
regarding the sentencing phase. In that hearing, Spainhour confirmed that she had
previously investigated a defense of lack of mental state, but that information regarding
Robinson's mental state as it relates to the sentencing phase was different than her
previous investigation. The record suggests that trial counsel investigated such a defense
and concluded that it did not apply.

13
 Although Dr. Blakely evaluated Robinson for competency and not specifically for
lack of mental state, Dr. Blakely did not conclude that Robinson had a mental disease or
defect that prevented him from forming the requisite intent to commit the crime. In
addition, Spainhour employed Dr. Flesher to conduct a psychological report, and he
provided that report to her on March 9, 2014. In that report, as previously noted, Dr.
Flesher provided a detailed psychological evaluation documenting Robinson's past and
current struggles with mental illness. However, Dr. Flesher did not suggest that Robinson
lacked the mental state to commit the crime. Dr. Flesher concluded that Robinson
impulsively lashed out in anger, and when that impulsive behavior ceased "Robinson was
left with a sense of disbelief at his actions, as well as regret and resignation, with
knowledge of the consequences that he would inevitably face." The report stated that
Robinson acted impulsively, but Dr. Flesher did not suggest that Robinson lacked the
mental state required to commit first-degree murder.

In the penalty phase of the jury trial, Dr. Flesher testified as to Robinson's mental
health and his ability to control his conduct and make decisions in stressful situations.
The following exchange took place:

"Q. Doctor, you're not suggesting that the defendant didn't know what he was doing that
night, are you?
"A. No.
"Q. You're not suggesting that [Robinson] had absolutely no control over his actions, are
you?
"A. No.
"Q. Or his choices, are you?
"A. No, I wouldn't suggest that."

Once again, we turn to the pro se K.S.A. 60-1507 motion, Spainhour's letter, and
the addendum to the original motion. In that motion, Robinson alleges that he was under
"extreme mental and emotional disturbance at the time of the crime" and that Spainhour

14
should have presented a "Mens Rea defense." He then states that he was found to have
"mental disease," so there was enough evidence to pursue the defense. Robinson provides
no facts as to how his mental disease or defect prevented him from forming the requisite
mental intent nor does he provide details as to what Spainhour should have done to
pursue that defense. In Spainhour's letter, she identifies issues for Robinson's appeal,
including that trial counsel was ineffective in failing to "identify and prepare expert
testimony" that Robinson's bipolar disorder prevented him from forming the requisite
intent to commit first-degree murder. She also suggests that Robinson should raise the
issue that trial counsel should have sought a continuance to obtain additional expert
testimony about his mental conditions. However, Spainhour's letter does not include any
facts to support her conclusory claim that trial counsel was ineffective in failing to pursue
that defense. Without a factual basis for his claim, there is nothing to support Robinson's
claim that Spainhour was ineffective.

Finally, K.S.A. 60-1507 counsel interviewed Spainhour on October 29, 2018, and
he filed an addendum to the original K.S.A. 60-1507 motion. However, even though
counsel should have known that his assertions of ineffective assistance of counsel must
be supported by specific facts, he merely makes two conclusory assertions: (1)
"Spainhour admitted that [Robinson] suffered from a serious mental illness, and that she
was ineffective for not filing a notice of the defense of lack of mental state pursuant to
K.S.A. 2020 Supp. 22-5209," and (2) "Spainhour admitted that she was ineffective for
not obtaining a second opinion of the viability of a lack of mental state defense."
Although Robinson places great weight on Spainhour's admissions, there are no facts to
support Spainhour's assertions. Robinson has presented no facts that he actually had a
mental disease or defect that prevented him from forming the requisite mental intent to
commit first-degree murder. Mental illness, by itself, does not meet the definition of
K.S.A. 2020 Supp. 21-5209. In addition, Spainhour provides no facts supporting the
theory that a second opinion would have produced helpful information. Robinson
presents no information that a second expert would have been helpful or testified that he

15
lacked the required mental state to commit the crime. Merely identifying the fact that
Spainhour would be a potential witness to testify that she was ineffective is not enough
without supporting facts as to how she was ineffective. With no facts supporting his
assertions, we conclude that Robinson has failed to show that the district court erred in
denying his request for an evidentiary hearing.

In addition, standing alone, trial counsel's admissions that she was ineffective do
not show ineffective assistance of counsel. Judging whether counsel is ineffective is an
objective standard and largely a matter of law. Harrington v. Richter, 562 U.S. 86, 109-
10, 131 S. Ct. 770, 178 L. Ed. 2d 624 (2011) ("Strickland, however, calls for an inquiry
into the objective reasonableness of counsel's performance, not counsel's subjective state
of mind."). Consequently, Spainhour's claim that she was ineffective, without facts
supporting such a basis, bear little weight in our analysis. See, e.g., Newland v. Hall, 527
F.3d 1162, 1208 (11th Cir. 2008); Chandler v. United States, 218 F.3d 1305, 1315 n.16
(11th Cir. 2000); Marrero v. Horn, 505 Fed. App'x. 174, 181 (3d Cir. 2012) (unpublished
opinion).

The record also provides nothing to show that the defense of lack of mental state
would have any merit. Spainhour cannot be ineffective for failing to pursue a meritless
defense. See Khalil-Alsalaami v. State, 313 Kan. 472, 499, 486 P.3d 1216 (2021)
(showing prejudice requires proving a different result would have occurred). Without
such a showing, we cannot conclude that she was ineffective on this basis.

On appeal, Robinson limited his argument that his K.S.A. 60-1507 motion
warranted an evidentiary hearing to the two issues already addressed: trial counsel's
failure to seek another competency evaluation and trial counsel's failure to pursue a
mental disease or defect defense. Thus, we hold the other issues presented in this K.S.A.
60-1507 motion are deemed waived. See State v. Boysaw, 309 Kan. 526, 537, 439 P.3d
909 (2019) (when a party fails to adequately brief an issue, it is waived.).

16
 We conclude that Robinson's K.S.A. 60-1507 motion did not warrant an
evidentiary hearing. Robinson offers only conclusory allegations and no facts to support
any of his claims, and—where his claims could be viable 60-1507 claims at all—no basis
can be found in the record. A K.S.A. 60-1507 motion must be supported with specific
facts that, if true, would entitle the movant to relief on his or her claims. See Skaggs, 59
Kan. App. 2d at 130-31. Robinson provides no facts to support any of his conclusory
allegations. Even liberally construed, Robinson's motion does not entitle him to an
evidentiary hearing.

Thus, we affirm the district court's summary denial of Robinson's K.S.A. 60-1507
motion.

Affirmed.

17