Macomber v. State

NOT DESIGNATED FOR PUBLICATION

Nos. 124,000
124,006
124,007

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STEPHEN ALAN MACOMBER,
Appellant,

v.

STATE OF KANSAS,
Appellee.

MEMORANDUM OPINION

Appeal from Marshall District Court; RICHARD M. SMITH and MERYL D. WILSON, judges.
Opinion filed June 10, 2022. Affirmed.

Chris Biggs, of Knopp and Biggs PA, of Manhattan, for appellant.

Kristafer R. Ailslieger, deputy solicitor general, and Derek Schmidt, attorney general, for
appellee.

Before SCHROEDER, P.J., GREEN and GARDNER, JJ.

PER CURIAM: Stephen Alan Macomber alleges that the trial court erred in denying
his K.S.A. 60-1507 motion. His K.S.A. 60-1507 motion claims trial and sentencing
errors. He argues that his sentence was not valid because sentencing occurred in the
wrong county. He asserts that the State violated his right to counsel because the
prosecutor had recordings of phone calls he made from jail to his attorney. He claims that
his previous counsel was ineffective for failing to raise the issue of prosecution access to
attorney-client phone calls. He contends that the trial court abused its discretion by

1
denying his motions to present additional evidence, to amend the judgment, and to hold a
new trial. Macomber argues that the trial court erred by not providing funding for an
expert witness. And Macomber argues that the trial judge's bias denied him a fair trial.
For the reasons set forth below, we reject these contentions. As a result, we affirm the
trial court's denial of his K.S.A. 60-1507 motion.

FACTS

This court previously presented the facts of Macomber's underlying convictions in
State v. Macomber, No. 107,205, 2013 WL 3455776 (Kan. App. 2013) (unpublished
opinion) (Macomber I) and State v. Macomber, No. 107,206, 2013 WL 3455777 (Kan.
App. 2013) (unpublished opinion) (Macomber II).

Briefly, Macomber shot and killed Ryan Lofton in Lofton's driveway and drove
away from the scene. Macomber raises no issues here related to the Shawnee County case
resulting from killing Lofton. As Macomber drove away from the incident, Marshall
County Sheriff's Deputy Fernando Salcedo pulled him over for driving 77 mph in a 55-
mph zone. After a scuffle in which Macomber shot Salcedo twice, Macomber took
Salcedo's patrol vehicle. He then happened upon 67-year-old Hedy Saville outside her
home. At gunpoint, Macomber instructed Saville to help him hide Salcedo's patrol car in
her garage and then held her hostage in her basement. Police arrived at Saville's house
and negotiated her successful release. Hours after Saville's release, police used tear gas to
force Macomber out of Saville's house and arrested him. Police recovered video from a
camera in Salcedo's patrol car which showed Macomber's encounters first with Salcedo
and later with Saville. See Macomber I, 2013 WL 3455776; Macomber II, 2013 WL
3455777; State v. Macomber, No. 108,301, 2014 WL 4723685 (Kan. App. 2014)
(unpublished opinion).

2
 In 10-CR-59, regarding the incident with Officer Salcedo, a jury convicted
Macomber of attempted first degree murder, aggravated battery on a law enforcement
officer, aggravated robbery, aggravated assault on a law enforcement officer, and
criminal possession of a firearm. Macomber's total sentence was 738 months in prison.
Macomber I, 2013 WL 3455776, at *4-5.

In 10-CR-60, regarding the incident with Saville, another jury convicted
Macomber of kidnapping, aggravated burglary, aggravated assault, criminal possession of
a firearm, and criminal threat. His aggregate sentence was 265 months in prison.
Macomber II, 2013 WL 3455777, at *15.

In July 2011, the trial judge, the Honorable John L. Weingart, handed down
sentences of 738-months and 265-months, respectively, for case 10-CR-59 and for case
10-CR-60. Judge Weingart held the sentencing hearing in the Brown County Courthouse
for the following reasons: "[T]he defendant was being incarcerated in Shawnee County.
Part of the prosecution team was from Shawnee County. And the, the date available for—
that was compatible with the counsel's schedule was today, and I was scheduled in Brown
County." Macomber did not object as the trial court was scheduling the hearing, nor did
Macomber object during the sentencing hearing in Brown County.

At sentencing, Judge Weingart first addressed Macomber's motion to dismiss,
motion for a new trial, and motion for testimony. Macomber's motion for a new trial
alleged that the prosecution listened to recordings of phone calls that Macomber made
from jail to his defense counsel. This motion was Macomber's second such allegation, as
he had raised the issue in a motion to suppress any recordings of attorney-client phone
calls. At arraignment, Judge Weingart suggested that defense counsel travel to the
Shawnee County Jail for in-person visits to avoid telephone calls being recorded.

3
 At the sentencing hearing, Captain Timothy Phelps of the Shawnee County Jail
testified that the prosecution subpoenaed "all available telephone calls for Stephen
Macomber." Phelps testified that the jail gave all recorded phone calls, including
attorney-client calls, to the prosecutor's office. Special Prosecutor Jacqueline J. Spradling
testified about the phone calls as follows:

"At approximately October of 2010, the—I have come to learn that the Shawnee
County Jail changed their policies when Captain Phelps took over, and instead of issuing
all of—all of the phone calls except the defendant's calls to the attorney, when Captain
Phelps took over in October of 2010, he now complies with the subpoena so that all of
the calls are given to the prosecution. That change in policy was not communicated to me
or the district attorney's office.
"And so when we issued our subpoena on March 4, 2011, we believed that we
would receive the same type of phone calls as we always have. However, according to
the March 4, 2011, subpoena, the new calls included calls from and between an inmate
and their attorney. Once I heard the defendant asking for Bill, I stopped listening."

Judge Weingart denied Macomber's motion for a new trial and moved on to
sentencing.

On direct appeal, Macomber's pro se brief raised the issue of Spradling listening to
attorney-client phone calls. But this court held that Macomber raised the point
incidentally, thereby waiving it on appeal. Macomber I, 2013 WL 3455776, at *13.

After Macomber's direct appeal, he petitioned for writ of habeas corpus alleging
ineffective assistance of trial and appellate counsel, violation of his speedy trial, fair trial,
and due process rights, and cumulative error. Macomber also moved pro se to hire a legal
expert to testify to legal professional norms and prevailing standards on his ineffective
assistance of counsel claims. The trial court then appointed counsel to represent
Macomber on his K.S.A. 60-1507 claims.

4
 Judge Weingart recused himself from the K.S.A. 60-1507 proceedings after
calling Macomber "evil" in ex parte communication with the State. Judge Weingart held
a status conference on Macomber's motion with some parties appearing in person and
some appearing by phone. After the conference, Macomber's counsel hung up, but
Macomber was still connected. Judge Weingart had an ex parte conversation with those
physically present in the room: the county attorney, county attorney staff and/or a clerk
who helped set up the phone, and the court reporter. Judge Weingart later testified about
that conversation as follows:

"And essentially my recollection of the conversation was I said something I
thanked the clerks or whoever was involved in helping getting the call set up because it
was kind of a problem, and then I said that I think I commented about you and said Mr.
Desch is a nice man to work with, nice lawyer to work with, something like that, and then
I think by and large I think the recollections of Mr. Macomber are correct in terms of the
conversation. Something about what is the sum and substance of the 1507, and there was
a comment made that competency of Mr. Macomber, and then I think I drew a
comparison I said well Mr. Macomber, something about his pleadings are outstanding for
pro se pleadings, and Mr. Macomber is very smart, and then I said that Mr. Macomber's
problem is he's evil, and I think that was the sum and substance of it. I think, by and large
I think Mr. Macomber's recollection is not that far off, except his testimony as to when I
developed my opinion if he was evil."

Judge Weingart recused himself from further proceedings concerning Macomber's
K.S.A. 60-1507 motion.

At an evidentiary deposition on Macomber's K.S.A. 60-1507 motion, Spradling
testified that the Shawnee County Jail "didn't turn over attorney-client phone calls" and
that the "phone calls that were turned over were always screened by the legal assistant . . .
who checked the phone numbers to make sure that there were not attorney calls on there."
Spradling testified that because of this process she did not "even get the phone calls that

5
are between attorney and client." She also testified that she offered Macomber's jail
phone calls for admission into evidence in a separate Shawnee County case.

The Honorable Richard Smith denied Macomber's petition. Judge Smith rejected
Macomber's argument about attorney-client privileged phone calls in part because "the
vast majority of jurisdictions throughout the United States temper that privilege with a
rule that when a correctional facility posts notices that conversations will be recorded
attorney-client privilege is in fact waived."

Judge Smith also dismissed Macomber's complaint that his counsel did not brief
the jail phone call issue as a "bald assertion" that counsel was ineffective. Judge Smith
saw no basis for Macomber's false assumption that "'[h]ad [counsel] properly briefed this
issue Macomber's convictions would have been reversed and his charges dismissed.'"
Judge Smith denied Macomber's motion.

Judge Smith also made findings related to Macomber's claim of judicial bias as
follows:

"At the evidentiary hearing held by this court Judge Weingart appeared truly regretful for
having made any remark of the kind. The judge explained the context of the remark was
. . . intended as an initial compl[i]ment regarding Mr. Macomber's obvious intellect and
presumed abilities and that it was sad that he had committed such evil acts. While this
might seem, on its face, a retrospective attempt to moderate an offensive comment it was
blatantly obvious to the court Weingart was sincere, honest, open and contrite in this
explanation. His described motivation for making the remark is corroborated by this
court's observation of Mr. Macomber which quite frankly is quite oxymoronic. Mr.
Macomber presents as an extraordinarily intelligent individual who, except for the
tendency, on occasion, to interrupt his own counsel and speak in violation of court
decorum, is best described as respectful, friendly, and intellectually intense. It would be
very reasonable and believable that the true tenor of Judge Weingart's demeanor was

6
 intended to sound of the motto recited in the old television commercial aired attempting
[to] encourage the disadvantaged, 'a mind is a terrible thing to waste.'
"Judge Weingart was asked the specific question as to whether or not he felt as
though any personal feelings or animosity[,] prejudice or personal judgments regarding
Mr. Macomber's character . . . affected any ruling he had made in the proceedings. In a
moment which struck this court as particularly moving Judge Weingart stated that he had
spent a great deal of time and introspection evaluating both trials and every ruling he
made and was absolutely certain no ruling was made for an inappropriate reason. The
fashion and demeanor of [J]udge Weingart as he answered that question spoke of nothing
but pure honesty and remorse for not only making a remark which was at best [i]nartful
but could be easily misconstrued as suggesting bias or prejudice."

Judge Smith then addressed the adverse rulings that Macomber alleged showed
prejudice. Macomber numbered the rulings one through eight. Although Judge Smith did
not number his findings or seem to address each ruling individually, he clearly referenced
the content of Macomber's complaints. For example, Macomber complained of Judge
Weingart admonishing him for speaking while his attorney was speaking. Judge Smith
explained that judges regularly exercise control for the benefit of a court reporter who
cannot accurately record two people talking simultaneously. Judge Smith then described
from transcripts how Judge Weingart increasingly made space for Macomber to speak.

Macomber filed a notice of appeal, but then followed up with a motion to alter or
amend and a motion for new trial. Macomber also moved for the court to consider expert
testimony on effectiveness of counsel, which presumably would be testimony presented if
the trial court conducted more evidentiary hearings. In Macomber's supplemental brief in
support of his motions, he summarized his recorded phone calls. Macomber noted that in
one phone call he told his attorney that the content of a State's discovery motion showed
that Spradling was apparently listening to their phone calls. He then told his attorney
more than once that he did not want to discuss some topics over the phone because he
believed that Spradling was listening. Macomber argued that his defense was impeded

7
because his calls to his attorney were recorded, and he believed the prosecution was
listening.

The trial court denied these new motions.

Macomber timely appeals.

ANALYSIS

Did the trial court err by holding Macomber's sentencing hearing in a different county
from his trial?

Macomber argues that the trial court lacked jurisdiction to impose his sentence
because the sentencing hearing took place in Brown County. The State contends that the
jurisdictional requirement was met when Macomber was tried in Marshall County to a
jury pulled from Marshall County. The State asserts that holding the sentencing hearing
in a different county of the same judicial district was an issue of venue, which Macomber
waived by not objecting.

A trial court has three options when handling a K.S.A. 60-1507 motion:

"'(1) The court may determine that the motion, files, and case records conclusively show
the prisoner is entitled to no relief and deny the motion summarily; (2) the court may
determine from the motion, files, and records that a potentially substantial issue exists, in
which case a preliminary hearing may be held. If the court then determines there is no
substantial issue, the court may deny the motion; or (3) the court may determine from the
motion, files, records, or preliminary hearing that a substantial issue is presented
requiring a full hearing.'" State v. Adams, 311 Kan. 569, 578, 465 P.3d 176 (2020).

The standard of review depends on which of these options a trial court used. 311 Kan. at
578.

8
 After a full evidentiary hearing on a K.S.A. 60-1507 motion, the trial court must
issue findings of fact and conclusions of law on all issues presented. Supreme Court Rule
183(j) (2022 Kan. S. Ct. R. at 242). An appellate court reviews the court's findings of fact
to determine whether they are supported by substantial competent evidence and can
support the court's conclusions of law. Appellate review of the trial court's ultimate
conclusions of law is de novo. Balbirnie v. State, 311 Kan. 893, 897-98, 468 P.3d 334
(2020).

To be entitled to relief under K.S.A. 2021 Supp. 60-1507(b), the movant 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." See Supreme Court Rule 183(g) (preponderance burden).

Whether jurisdiction exists is a question of law over which this court's scope of
review is unlimited. State v. Lundberg, 310 Kan. 165, 170, 445 P.3d 1113 (2019).

Subject matter jurisdiction may be raised at any time, whether for the first time on
appeal or even on the appellate court's own motion. State v. Castillo, 54 Kan. App. 2d
217, 219, 397 P.3d 1248 (2017).

Parties cannot confer subject matter jurisdiction by consent, waiver, or estoppel; a
failure to object to the court's jurisdiction does not invest the court with the requisite
subject matter jurisdiction. State v. Hoffman, 45 Kan. App. 2d 272, 275, 246 P.3d 992
(2011).

Macomber claims that his sentencing violated both constitutional and statutory
jurisdictional requirements. Section 10 of the Kansas Constitution Bill of Rights

9
guarantees the accused "a speedy public trial by an impartial jury of the county or district
in which the offense is alleged to have been committed." Macomber notes the undisputed
facts that the crime occurred in Marshall County, the trial was in Marshall County, and
the sentencing hearing was in Brown County. Macomber does not argue that he did not
have a speedy public trial by an impartial jury of Marshall County as required by Kansas
Constitution Bill of Rights, section 10. Instead, Macomber repeatedly asserts that
sentencing is "incident" to trial without explaining why the term is significant for his
argument. He fails to develop this contention into an argument that his constitutional
rights under section 10 were violated, and he provides no citations to that effect. A point
raised incidentally in a brief and not argued therein is deemed waived or abandoned.
State v. Meggerson, 312 Kan. 238, 246, 474 P.3d 761 (2020). To the extent that
Macomber claims constitutional error, we decline to address his argument because he
does not present one.

But Macomber correctly argues that the trial court did not comply with the
statutory requirement of K.S.A. 22-2602. The Kansas Code of Criminal Procedure
specifies the location of criminal proceedings under Article 26, Jurisdiction and Venue.
K.S.A. 22-2602, Place of trial, states the following: "Except as otherwise provided by
law, the prosecution shall be in the county where the crime was committed."

The State incorrectly asserts that the term "prosecution" in K.S.A. 22-2602 is
undefined, contending that the term includes trial but does not include sentencing. K.S.A.
2021 Supp. 21-5111(x) defines prosecution as "all legal proceedings by which a person's
liability for a crime is determined." This definition from the criminal code also applies to
the code of criminal procedure. "Words or phrases not defined in this code but which are
defined in the Kansas criminal code shall have the meanings given therein except when a
particular context clearly requires different meanings." K.S.A. 22-2201(2).

10
 Kansas courts have long held that the definition of prosecution includes sentencing
within its meaning. "The State's 'prosecution' of a defendant found guilty either by a
judge or a jury generally ends with pronouncement of sentence." State v. Barlow, 303
Kan. 804, 816, 368 P.3d 331 (2016). "The sentencing phase of a criminal proceeding
clearly constitutes a proceeding in the 'prosecution' of a criminal case." State v. Arculeo,
29 Kan. App. 2d 962, 972, 36 P.3d 305 (2001). "A judgment regularly rendered on one of
the offenses included in the verdict, which has been executed in part by the imprisonment
of the defendant, is the end of the prosecution, and exhausts the power of the court in the
case." In re Beck, 63 Kan. 57, Syl. ¶ 2, 64 P. 971 (1901). The Kansas Court of Appeals is
duty-bound to follow Kansas Supreme Court precedent unless there is some indication
that the Supreme Court is departing from its previous position. State v. Rodriguez, 305
Kan. 1139, 1144, 390 P.3d 903 (2017). And our Supreme Court in these cases defines
"prosecution" to include sentencing.

The trial court erred because K.S.A. 22-2602 required the prosecution to be in
Marshall County. But the sentencing hearing, which is part of the prosecution, occurred
outside Marshall County. The remaining question is whether the error leads to loss of
jurisdiction or leads to improper venue or both.

"Subject matter jurisdiction is the power of the court to hear and decide a
particular type of action." State v. Matzke, 236 Kan. 833, 835, 696 P.2d 396 (1985). "The
existence of subject matter jurisdiction cannot be waived, and its nonexistence may be
challenged at any time." State v. Dunn, 304 Kan. 773, 784, 375 P.3d 332 (2016) (citing
Trotter v. State, 288 Kan. 112, Syl. ¶ 4, 200 P.3d 1236 [2009]). In Kansas, trial courts
"have general original jurisdiction of all matters, both civil and criminal, unless otherwise
provided by law." K.S.A. 20-301. Trial courts have "exclusive jurisdiction to try all cases
of felony and other criminal cases arising under the statutes of the state of Kansas."
K.S.A. 22-2601.

11
 "Subject matter jurisdiction lies in the district court and follows the defendant
through the process of the issuing of the complaint, arrest pursuant to a warrant, initial
appearance, the setting or denial of bond at the bond hearing, and the preliminary
hearing, arraignment, and trial." State v. Hall, 246 Kan. 728, 757, 793 P.2d 737 (1990),
overruled on other grounds by Dunn, 304 Kan. 773.

The trial court retains jurisdiction over a case until its order becomes final. See
Sanders v. City of Kansas City, 18 Kan. App. 2d 688, 692, 858 P.2d 833 (1993) ("In
Kansas, the district court retains jurisdiction until an appeal is docketed with the appellate
court."). A judgment becomes final in a criminal case once the defendant is convicted and
sentenced. State v. Howard, 44 Kan. App. 2d 508, 511, 238 P.3d 752 (2010).

Macomber argues unpersuasively that the error was a jurisdictional one. He cites
several cases which state that venue equals jurisdiction in criminal cases. But all the cases
Macomber cites deal with the court's power to try the defendant. See, e.g., Dunn, 304
Kan. 773. Macomber is correct that, from the commission of the crime through the jury's
verdict, venue is jurisdictional and implicates the trial court's subject matter jurisdiction.
State v. Kendall, 300 Kan. 515, 530, 331 P.3d 763 (2014). "Venue must be proved to
establish the jurisdiction of the court; it is a question of fact to be determined by the
jury." State v. Hunt, 285 Kan. 855, 859, 176 P.3d 183 (2008). But the State here proved
venue to the jury, establishing the trial court's jurisdiction over Macomber's case.

Undisputedly, Judge Weingart had the authority to pronounce sentence. He
presided over the trial and the case remained assigned to him. Thus, the essence of
Macomber's contention is that Judge Weingart could not pronounce sentence in the
Brown County Courthouse but was instead limited to the Marshall County Courthouse.
But K.S.A. 20-301a provides that "[t]he judicial power and authority of a judge of the
district court in each judicial district may be exercised anywhere within such judicial
district." If Judge Weingart had the power to sentence Macomber, which is undisputed,

12
then Judge Weingart had that power anywhere within that judicial district. Thus, the error
is not a jurisdictional one.

But, as Macomber correctly argues, the power of the judge under K.S.A. 20-301a
to act within a jurisdictional district does not dispense with the K.S.A. 22-2602
requirement that the prosecution occur in the county where the crime occurred. Thus, an
error did occur. Although the trial court retained jurisdiction, it exercised its jurisdiction
in an improper venue.

The State contends that Macomber waived improper venue because he did not
object. Macomber replies that the hearing occurred in Brown County to accommodate the
prosecutors and the State does not provide a standard for what constitutes waiver. But our
difficulty with Macomber's claim is that he raises it for the first time in a K.S.A. 60-1507
motion.

Supreme Court Rule 183(c)(3) (2022 Kan. S. Ct. R. at 243) provides:

"A proceeding under K.S.A. 60-1507 ordinarily may not be used as a substitute
for direct appeal involving mere trial errors or as a substitute for a second appeal. Mere
trial errors must be corrected by direct appeal, but trial errors affecting constitutional
rights may be raised even though the error could have been raised on appeal, provided
exceptional circumstances excuse the failure to appeal."

See also State v. Neal, 292 Kan. 625, 630, 258 P.3d 365 (2011) (acknowledging general
rule that defendant must raise all available issues on direct appeal); Rowland v. State, 289
Kan. 1076, 1087, 219 P.3d 1212 (2009) (stating K.S.A. 60-1507 motion cannot serve as
vehicle to raise issue that should have been raised on direct appeal unless movant shows
exceptional circumstances excusing failure to raise it earlier).

13
 Trial errors affecting constitutional rights under Rule 183(c)(3) would include
Macomber's right to trial by a Marshall County jury under section 10 of the Kansas
Constitution Bill of Rights. And even if that were the issue that Macomber was raising in
his K.S.A. 60-1507 motion, he would need to show exceptional circumstances to raise the
issue. But Macomber's sentencing is covered by the word "prosecution" in K.S.A. 22-
2602, not the phrase "a speedy public trial by an impartial jury" in section 10. Thus,
Macomber raises merely a statutory issue, not a constitutional one. Even if we were to
assume that Macomber's claim involved a trial error affecting his constitutional right, he
has failed to show exceptional circumstances excusing his failure to raise the issue on
direct appeal. Macomber's claim is neither jurisdictional nor constitutional. Because he
raises a statutory venue error for the first time in his K.S.A. 60-1507 motion and because
the trial court's venue error did not lead to loss of jurisdiction, we affirm.

Did the State violate Macomber's right to counsel because it had access to jail phone
calls, including attorney-client calls?

Macomber argues that he was deprived of his right to counsel because the State
had access to phone calls that he made from jail to his defense counsel. The State
incorrectly asserts that Macomber is barred from raising this issue because it is res
judicata. Because Macomber is precluded from raising this trial error in a K.S.A. 60-1507
motion, we decline to address the issue directly, but instead we will focus on Macomber's
claim that counsel was ineffective for failing to raise this issue.

Macomber argues that the State violated his right to counsel under the Sixth
Amendment to the United States Constitution. He asserts that the State violated this right
by accessing recordings of his phone calls to his attorney from jail. Macomber recites
facts from the record related to the phone calls and facts outside the record related to the
prosecutor. Spradling testified that she did not listen to the phone calls at the 2011
hearing where Judge Weingart considered and denied Macomber's motion for a new trial

14
and then moved on to sentencing. In 2011, Spradling testified that if she heard Macomber
ask for his attorney, she would stop listening. But in 2017, at an evidentiary deposition
for this K.S.A. 60-1507 motion, Spradling testified that a legal assistant pre-screened the
calls so that Spradling did not receive the audio files of Macomber's attorney-client calls.
Macomber contends that Spradling's inconsistent testimony undermines her credibility.

Macomber also argues that Spradling's testimony was not credible because of
Spradling's pattern of prosecutorial misconduct. Macomber lists six criminal cases in
which appellate courts reversed because of Spradling's misconduct, including two of his
own cases. He also notes that the Kansas Board for Discipline of Attorneys recommended
to our Supreme Court that Spradling be disbarred. On May 20, 2022, our Supreme Court
officially disbarred Spradling. He rests his claim on the factual contentions that the State
had access to his attorney-client calls and that Spradling's testimony of not listening to
the calls was not credible.

For legal support, Macomber leans heavily on United States v. Carter, 429 F.
Supp. 3d 788 (D. Kan. 2019), vacated in part on other grounds No. 16-20032-02-JAR,
2020 WL 430739 (D. Kan. 2020) (unpublished opinion) (vacating the sanction of
attorney fees against the noncooperative government entity because of sovereign
immunity). In Carter, federal prosecutors possessed and distributed audio recordings of
telephone calls between various attorneys and several detainees at a large, private
detention facility in Leavenworth, Kansas. The United States District Court for the
District of Kansas noted the likelihood of habeas litigation which would result from the
United States Attorney's Office (USAO) possessing recordings of attorney-client calls.
429 F. Supp. 3d at 899. The Federal Public Defender's Office (FPD) sought global relief
for any defendant whose attorney-client communications were obtained by the USAO.
The FPD sought dismissal of pending cases and a 50% reduction of sentences for all
affected clients remaining in custody. 429 F. Supp. 3d at 880. Instead, the Carter court

15
laid out its roadmap for case-by-case individualized relief for the 110 habeas corpus
petitions filed to date. 429 F. Supp. 3d at 901-04.

The State responds that, notwithstanding Carter, Macomber is barred from raising
this issue. The State inaccurately claims that the issue is res judicata because Macomber
raised the issue incidentally on direct appeal, and this court declined to review it.
Macomber I, 2013 WL 3455776, at *13. But the issue is waived, not res judicata, because
this court did not adjudicate the issue, finding instead that Macomber failed to properly
brief it. Drach v. Bruce, 281 Kan. 1058, Syl. ¶ 12, 136 P.3d 390 (2006) ("Under Kansas
law, where an appeal is taken from the sentence imposed and/or a conviction, the
judgment of the reviewing court is res judicata as to all issues actually raised; those issues
that could have been presented, but were not presented, are deemed waived.").

More to the point, Macomber cannot raise the issue in a K.S.A. 60-1507 motion
because Macomber's claim is mere trial error. He raised the issue as early as arraignment.
After the jury verdict, Macomber filed a motion for new trial and called Spradling to
testify about listening to phone calls at a hearing on that motion. Macomber's argument is
essentially that the trial court erred in denying his motion for a new trial. Such a claim
must be raised on direct appeal and a K.S.A. 60-1507 motion is not the appropriate
avenue for seeking relief. See Supreme Court Rule 183(c)(3).

Macomber's brief segues quickly into his actual claim: "Mr. Macomber's position
in this matter is simple: This was a great issue to appeal, and his appeal attorney missed
it." "It was ineffective for K.S.A. 60-1507 and appellate counsels to not brief, and not
ferret out facts or raise 6th Amendment and due process claims for this violation." In a
sense, Macomber raises the issue of attorney-client calls only to tee up his next issue—
that previous counsel was ineffective for failing to raise the attorney-client phone call
issue. So Macomber seems aware that he cannot directly raise this issue here because he
waived it on direct appeal. As a result, we decline to directly address the issue of

16
attorney-client calls and move on, as Macomber suggests, to his claim that previous
counsels were ineffective for failing to raise the issue.

Were previous counsels ineffective for failing to raise the issue of attorney-client phone
calls?

Macomber's K.S.A. 60-1507 counsel argued to the trial court that Macomber's trial
and appellate counsel were ineffective because of their failure to reasonably advocate the
issue of State access to attorney-client phone calls. The trial court denied Macomber's
K.S.A. 60-1507 claim. On appeal, Macomber now argues that his K.S.A. 60-1507
counsel was ineffective, and he reiterates his claims that trial and appellate counsel also
were ineffective.

Trial counsel

Macomber's triplicate claim of ineffective assistance of counsel is best understood
in chronological order. We first review his claim related to his representation at trial,
although his focus is more on appellate counsel's failure to brief the issue. Then he
alleges that his K.S.A. 60-1507 counsel should have persuaded the trial court that
appellate counsel was ineffective.

When the trial court conducts an evidentiary hearing on claims of ineffective
assistance of counsel, the appellate courts review the trial court's factual findings using a
substantial competent evidence standard. Appellate courts review the trial court's legal
conclusions based on those facts applying a de novo standard of review. See Khalil-
Alsalaami v. State, 313 Kan. 472, 486, 486 P.3d 1216 (2021).

Claims of ineffective assistance of trial counsel are analyzed under the two-prong
test articulated in Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 80 L. Ed.
2d 674 (1984) and adopted by the Kansas Supreme Court in Chamberlain v. State, 236

17
Kan. 650, 656-57, 694 P.2d 468 (1985). Under the first prong, the defendant must show
that defense counsel's performance was deficient. If successful, the court moves to the
second prong and determines whether there is a reasonable probability that, absent
defense counsel's unprofessional errors, the result would have been different. Khalil-
Alsalaami, 313 Kan. at 485.

To establish deficient performance under the first prong, the defendant must show
that defense counsel's representation fell below an objective standard of reasonableness.
Judicial scrutiny of counsel's performance in a claim of ineffective assistance of counsel
must be highly deferential. 313 Kan. at 485. A fair assessment of counsel's performance
requires that every effort be made to eliminate the distorting effects of hindsight,
reconstruct the circumstances surrounding the challenged conduct, and evaluate the
conduct from counsel's perspective at the time. 313 Kan. at 486. A court considering a
claim of ineffective assistance of counsel must strongly presume that defense counsel's
conduct fell within the wide range of reasonable professional assistance; that is, the
defendant must overcome the strong presumption that, under the circumstances, counsel's
action might be considered sound trial strategy. 313 Kan. at 486.

Under the second prong, the defendant must show that defense counsel's deficient
performance was prejudicial. To establish prejudice, the defendant must show with
reasonable probability that the deficient performance affected the outcome of the
proceedings, based on the totality of the evidence. A reasonable probability is a
probability sufficient to undermine confidence in the outcome. A court hearing a claim of
ineffective assistance of counsel must consider the totality of the evidence before the
judge or jury. 313 Kan. at 486.

Macomber fails to establish that his trial counsel was ineffective. Trial counsel
moved to suppress phone call recordings and, more importantly, moved for a new trial
after the jury's verdict. Macomber does not state anything more that his trial counsel

18
could have done. He raises the issue only incidentally. Meggerson, 312 Kan. at 246
(holding that a point raised incidentally in a brief and not argued therein is deemed
waived or abandoned). Macomber fails to argue, much less show, that trial counsel's
representation fell below an objective standard of reasonableness. It is Macomber's duty
to provide facts to support his claims, not merely conclusory allegations. See Thuko v.
State, 310 Kan. 74, 80, 444 P.3d 927 (2019). Macomber's failure to supply any factual
allegations to support his claim, coupled with the lack of any explanation as to why such
acts contributed to his trial counsel's ineffectiveness, is fatal to his claim.

Because Macomber's complaint about his trial counsel fails the first prong of
deficient performance, we need not address the second prong of prejudice.

Appellate counsel

Macomber also argues that his appellate counsel was ineffective. To establish
ineffective assistance of counsel on appeal, defendant must show (1) counsel's
performance, based on the totality of the circumstances, was deficient in that it fell below
an objective standard of reasonableness, and (2) the defendant was prejudiced to the
extent that there is a reasonable probability that, but for counsel's deficient performance,
the appeal would have succeeded. Khalil-Alsalaami, 313 Kan. at 526.

The failure of appellate counsel to raise an issue on appeal is not, per se,
ineffective assistance of counsel. Miller v. State, 298 Kan. 921, 932, 318 P.3d 155 (2014).
For example the failure of direct appeal counsel "'to foresee a change in the law may lead
to [K.S.A.] 60-1507 relief if the failure was not objectively reasonable,'" with the caveat
that the "'Sixth Amendment requires competence, not omniscience.'" Stewart v. State, 310
Kan. 39, 53-54, 444 P.3d 955 (2019) (quoting Laymon v. State, 280 Kan. 430, 439-40,
122 P.3d 326 (2005). But see Barr v. State, 287 Kan. 190, 197, 196 P.3d 357 (2008)

19
(ability of counsel from the Appellate Defender's Office to anticipate the shift in law does
not apply to trial counsel from a local public defender's office).

Macomber filed a pro se brief in Macomber I arguing prosecutorial misconduct
based on Spradling listening to attorney-client calls. 2013 WL 3455776, at *13. His
appellate counsel did not brief the issue to argue a violation of the Sixth Amendment
right to counsel. And Macomber II never mentions Macomber's calls from the jail being
recorded. See 2013 WL 3455777. Macomber's K.S.A. 60-1507 motion asserts that
appellate counsel was ineffective for missing this issue.

The questions of whether appellate counsel's performance was deficient and
whether Macomber was prejudiced contain factual components. Macomber cites Carter,
429 F. Supp. 3d 788, but the Carter court distinguished the facts before it from United
States v. Zajac, No. 2:06CR811DAK, 2008 WL 1808701 (D. Utah 2008) (unpublished
opinion). In Zajac, the jail did not and could not separate telephone calls recorded by its
automated system. Law enforcement and prosecutors on the case "purposefully did not
review or listen to the telephone calls made to attorneys because they could have
contained attorney-client communications." 2008 WL 1808701, at *4.

The Zajac court did not provide the defendant with relief: "When the jail was
unable to separate which calls were to attorneys, the government then employed means
for identifying which telephone numbers belonged to Defendant's counsel and protecting
any of the telephone calls that were made to those attorneys." 2008 WL 1808701, at *5.
The Zajac court determined that the defendant failed to provide any specific
communication, transcript, or documentation that showed that the government obtained
any evidence or content from these conversations or listened to the conversations. In
short, the defendant provided "conclusory and speculative accusations that the
government engaged in egregious and outrageous illegal conduct" and the Zajac court
held that there was no basis for presuming prejudice. 2008 WL 1808701, at *5.

20
 But the Carter court, by contrast, determined that the record was "replete with
evidence of the USAO's systematic practice of purposeful collection, retention, and
exploitation of calls from . . . detainees to their attorneys." 429 F. Supp. 3d at 900. The
Carter court found that Special Assistant United States Attorney Erin Tomasic had
knowingly and intentionally listened to attorney-client phone calls. 429 F. Supp. 3d at
824, 852. The Carter court found that Tomasic did not respond with candor to certain
questions from the court at an evidentiary hearing and sent an intentionally misleading e-
mail to the court and opposing counsel. 429 F. Supp. 3d at 836-37. Ultimately, the Carter
court, as a fact-finder, concluded the following: "The USAO's surreptitious practice of
collecting and saving, but not disclosing, attorney-client calls allowed the practice to
perpetuate for years. It was only when the inexperienced and unsupervised Tomasic
disseminated a voluminous batch of phone calls in discovery in the [United States v.]
Black [No. 16-20032-JAR] case that the USAO's practices come to light." 429 F. Supp.
3d at 858.

The factual differences between Zajac and Carter show what Macomber would
need to demonstrate in order to show that appellate counsel's failure to brief the jail call
issue prejudiced him. Judge Smith held an evidentiary hearing on Macomber's K.S.A. 60-
1507 motion before deciding that Macomber failed to show that his appellate counsel was
ineffective. For instance, the Zajac court denied relief to a defendant who presented only
"conclusory and speculative accusations" and Macomber would likely be entitled to the
same outcome based on him putting forth similar contentions. But Macomber contends
that he could have persuaded the trial court to grant his K.S.A. 60-1507 motion if his
counsel had presented better evidence.

On appeal, Macomber argues that the evidence in his case is more like the
evidence in Carter. But Macomber's difficulty is that Carter and Zajac were cases in
which federal district courts, fact-finders, examined the evidence before them.
"Generally, Kansas appellate courts do not make factual findings. This task is reserved

21
for district courts, where evidence is offered and tested." State v. Yazell, 311 Kan. 625,
627, 465 P.3d 1147 (2020). When the trial court denied Macomber's K.S.A. 60-1507
motion in early 2019, it could not have cited Carter because Carter had not been decided
yet. And the trial court did not cite Zajac, either. Nevertheless, the facts found by the trial
court align more closely with Zajac than with Carter. The trial court found that
Spradling's access to attorney-client calls was unintentional, and she did not listen to
them.

The trial court reviewed Macomber's claim of ineffective appellate counsel,
holding as follows: "Macomber simply fails to establish that [appellate counsel] fell
below an objective standard or that he suffered prejudice." "'An appellate court does not
reweigh evidence, resolve conflicts in the evidence, or pass on the credibility of
witnesses.'" State v. Aguirre, 313 Kan. 189, 209, 485 P.3d 576 (2021). Thus, in arguing
his K.S.A. 60-1507 motion, Macomber fails to show that his direct appeal counsel was
deficient for failing to brief a real issue and that he was prejudiced by this deficiency. For
this reason, Macomber spends the bulk of his brief arguing that his K.S.A. 60-1507
counsel was ineffective.

If we were to reverse and remand on the ineffective appellate counsel issue, it
would be based on pure speculation. Here, Macomber argues that he is entitled to the
same result that was obtained in Carter. Nevertheless, he fails to spell out factually why
we should accept his argument. Thuko, 310 Kan. at 80. Thus, his argument offers no
reasons in support of his conclusion. Because Macomber fails to show that his appellate
counsel was ineffective, we affirm the trial court's denial of relief on this issue.

Habeas counsel

Macomber asserts two claims in which his K.S.A. 60-1507 counsel fell short in
presenting evidence. First, he complains of counsel's examination of Spradling, stating

22
that counsel "never took gloves off" when questioning her. "His cross examination of
Spradling left much to be desired." "The record was incomplete factually, and K.S.A. 60-
1507 counsel repeatedly apologized for having to put Spradling through questions." His
second complaint is that K.S.A. 60-1507 counsel failed to subpoena the legal assistant
that Spradling said filtered out attorney-client calls.

The extent of a movant's statutory right to be provided with effective assistance of
counsel in a K.S.A. 60-1507 proceeding is a legal question to be reviewed de novo.
Mundy v. State, 307 Kan. 280, 294, 408 P.3d 965 (2018).

Although movants do not have a constitutional right to effective assistance of legal
counsel on collateral attacks because they are civil, not criminal actions, Kansas provides
a statutory right to counsel on collateral attacks under some circumstances. Stewart, 310
Kan. at 45; see K.S.A. 22-4506. Once counsel has been appointed in a postconviction
matter, the appointment should not be a useless formality, so the appointed counsel has a
duty to provide effective representation. Mundy, 307 Kan. at 295. But see In re Care &
Treatment of Ontiberos, 295 Kan. 10, 28, 287 P.3d 855 (2012) (stating the right to
counsel in sexually violent predator proceeding calls for applying Strickland test because
the right to counsel arises from constitutional right similar to the right provided in
criminal trial).

The relief Macomber seeks is a remand to conduct another evidentiary hearing on
the effectiveness of his K.S.A. 60-1507 counsel. The State argues that Macomber is
"seeking to nest a failed claim, already nested inside of another failed claim, inside yet
another, new claim." The State correctly argues that remand is unnecessary because the
record shows that K.S.A. 60-1507 counsel was not ineffective.

Macomber claims that his K.S.A. 60-1507 counsel was not aggressive enough
with Spradling, but this claim does not merit a remand. To establish ineffective

23
assistance, "it is insufficient to surmise, with the benefit of hindsight, that another
attorney might have tried the case differently." Harris v. State, 288 Kan. 414, 416, 204
P.3d 557 (2009). Instead, Macomber must show that counsel made errors so serious that
the performance was less than what the Sixth Amendment to the United States
Constitution guarantees. 288 Kan. at 416 (stating the standard for trial counsel); see also
Mundy, 307 Kan. at 296 (holding that the same elements for trial counsel apply to
ineffective assistance of K.S.A. 60-1507 counsel). Macomber's claim that his counsel
could or should have questioned Spradling differently is an attempt to second guess his
attorney in hindsight without showing that the outcome would or could have been
different. Macomber asserts that "[b]asic trial advocacy skills were lacking." But he fails
to outline how Spradling's testimony would differ under more effective cross-
examination. For all Macomber's protestations that Spradling was not credible, the trial
court makes that determination, and the trial court found her testimony credible.
Macomber fails to support his contention that this outcome would have been different if
only his counsel were more effective.

Macomber's other contention about evidence that counsel could have presented is
equally speculative. He identifies a legal assistant who screened recorded calls as a
potential witness on remand but offers no indication of evidence that she might produce.

"'[A] defendant seeking to have a case remanded from the appellate courts should set
forth with some specificity sufficient details of the evidence to be presented to the trial
court . . . so the appellate court may determine in the first instance whether there are valid
grounds to expect that a new trial might be granted by the trial court. The appellate courts
cannot be expected to operate in a vacuum and grant every motion to remand a case
already on appeal absent a showing that the motion . . . has merit and is not frivolous or
an attempt to delay the appellate process.'" State v. Van Cleave, 239 Kan. 117, 120, 716
P.2d 580 (1986).

24
 Macomber essentially asks for another bite at the apple. But he has already had
two attempts to produce evidence for his claim: first, at the sentencing and the motion
for new trial hearing; and second, at the evidentiary hearing on this K.S.A. 60-1507
motion. He claims that his case is like Carter but has not provided us with any indication
that he could produce anywhere near the level of evidence in Carter. He notes the
disciplinary proceedings against Spradling and quotes our Supreme Court's statement
about her conduct in another criminal case: "Taken as a whole, this prosecution
unfortunately illustrates how a desire to win can eclipse the State's responsibility to
safeguard the fundamental constitutional right to a fair trial owed to any defendant facing
criminal prosecution in a Kansas courtroom." State v. Chandler, 307 Kan. 657, 695, 414
P.3d 713 (2018). Macomber points to these as indicators that his claim is credible. But
even credible speculation is still speculation. Macomber's K.S.A. 60-1507 counsel
presented evidence and argued to the trial court that the phone calls presented a viable
issue and appellate counsel was ineffective for missing it. Nothing about K.S.A. 60-1507
counsel's performance was ineffective. There simply was not enough evidence to present.
Macomber's supposition that more evidence could arise on remand is unsupported
speculation.

As a result, Macomber falls short of his burden to justify a remand. Because
Macomber fails to show that his K.S.A. 60-1507 counsel was ineffective, we affirm the
trial court on this issue.

Did the trial court abuse its discretion in denying Macomber's other motions?

After the trial court denied Macomber's K.S.A 60-1507 motion, Macomber filed a
pro se motion to alter or amend the judgment and a motion for new trial. In this case,
Macomber used new "trial" to mean a new evidentiary hearing on his K.S.A. 60-1507
motion. The trial court appointed new counsel, who then filed a brief in support of
Macomber's pro se motion. Counsel cited the newly decided Carter as justification for

25
another hearing on the issue of recorded attorney-client calls. The trial court held that
Macomber raised no new issues or new facts which would require a hearing.

An appellate court reviews the trial court's decision on a motion for new trial for
an abuse of discretion. State v. Breitenbach, 313 Kan. 73, 97, 483 P.3d 448 (2021). A
judicial action constitutes an abuse of discretion if (1) it is arbitrary, fanciful, or
unreasonable; (2) it is based on an error of law; or (3) it is based on an error of fact. State
v. Levy, 313 Kan. 232, 237, 485 P.3d 605 (2021). The party asserting that the trial court
abused its discretion bears the burden of showing such abuse of discretion. State v.
Crosby, 312 Kan. 630, 635, 479 P.3d 167 (2021).

On appeal, Macomber contends that the trial court abused its discretion without
explanation. His pro se supplemental brief airs grievances that he had with his K.S.A. 60-
1507 counsel but does not go beyond simply asserting that the trial court abused its
discretion. Kansas courts have a two-pronged test for reviewing a motion for a new trial:
(1) The evidence must be new, meaning the defendant could not with reasonable
diligence have produced it at trial; and (2) the evidence must be of such materiality that it
would likely produce a different result at the new trial. Skaggs v. State, 59 Kan. App. 2d
121, 141, 479 P.3d 499 (2020). Macomber does not point to any legal or factual error that
the trial court misapplied in its analysis. Also, and perhaps most obviously, Macomber
glosses over the difference between a new trial and a new K.S.A. 60-1507 evidentiary
hearing, failing to show that his motion could obtain his requested relief.

Did the trial court err by not funding expert witness services?

Macomber argues that the trial court erred by not funding the services of a legal
expert to testify about the standard for ineffective assistance of counsel. The State argues
that judges are experts on the law, making a legal expert unnecessary.

26
 An appellate court reviews the admission or exclusion of opinion testimony under
K.S.A. 2021 Supp. 60-456 for an abuse of discretion. See State v. Hubbard, 309 Kan. 22,
43, 430 P.3d 956 (2018). "The authorization of expert services in a criminal trial of an
indigent defendant lies within the discretion of the district court. The decision will not be
disturbed unless the defendant shows abuse of the trial court's discretion which results in
prejudice to his substantial rights. [Citation omitted.]" Breitenbach, 313 Kan. at 83.

The party claiming an error occurred has the burden of designating a record that
affirmatively shows prejudicial error. Without such a record, an appellate court presumes
that the trial court's action was proper. Meggerson, 312 Kan. at 249.

Macomber complains that the trial court erred in a decision that it never made. He
cites his pro se motion for legal expert testimony. But he does not provide a record
citation to show that the trial court denied it. Instead, he describes how his K.S.A. 60-
1507 counsel told him that he would call an expert to testify, until the last minute when
he admitted that he had not arranged for an expert.

After the evidentiary hearing, Macomber moved for a new hearing and renewed
his request that the trial court approve funds for an expert witness. But the trial court
denied Macomber's request for another hearing, so the issue of funding an expert to
testify at that hearing became irrelevant. The issue of funding an expert was never
actually before the trial court, on this record. Macomber fails to designate a record
showing that the trial court refused to fund an attorney expert. Because Macomber fails
on his burden to designate a record showing error, we decline to address this issue

27
Did the trial court deprive Macomber of a fair trial because of actual bias?

Macomber's pro se brief asserts that he did not receive a fair trial because Judge
Weingart was biased against him. He argues that Judge Smith erred in holding that
Macomber failed to show prejudice.

Appellate courts have unlimited review over judicial misconduct claims and
review them in light of the particular facts and circumstances surrounding the allegation.
State v. Boothby, 310 Kan. 619, 624-25, 448 P.3d 416 (2019). Appellate courts exercise
unlimited review over whether a trial judge's recusal is required. State v. Moyer, 306 Kan.
342, 369-70, 410 P.3d 71 (2017).

The party bearing the burden of proving prejudice depends on whether the failure
below is classified as "judicial misconduct" or "judicial comment error." Boothby, 310
Kan. at 625-26. If the party alleges judicial misconduct, then the party raising the issue
has the burden of establishing that the misconduct occurred and that it prejudiced the
party's substantial rights. State v. Miller, 308 Kan. 1119, 1154, 427 P.3d 907 (2018).

An erroneous ruling, standing alone, does not establish judicial misconduct.
Instead, an appellate court will look for conduct that manifests bias, prejudice, or
partiality, or otherwise significantly undermines the fairness or reliability of the
proceedings. See State v. Kahler, 307 Kan. 374, 384, 410 P.3d 105 (2018); Kansas Code
of Judicial Conduct, Canon 2, Rule 2.2 Comment [3] (2022 Kan. S. Ct. R. at 495) (good-
faith errors of fact or law do not violate Kansas Code of Judicial Conduct); and Canon 2,
Rule 2.3 Comment [1] (2022 Kan. S. Ct. R. at 496) ("A judge who manifests bias or
prejudice in a proceeding impairs the fairness of the proceeding and brings the judiciary
into disrepute."). If a proper and reasonable interpretation will render the judge's remark
unobjectionable, the remark cannot be found to be prejudicial. Miller, 308 Kan. at 1154.
But see State v. Hayden, 281 Kan. 112, 123-26, 130 P.3d 24 (2006) (pervasive judicial

28
misconduct in criminal case impairs defendant's right to a fair trial; judge's bias directed
at both parties does not alter fact that defendant's freedom is at stake).

The trial judge is not only a moderator of the trial. The judge should endeavor to
conduct the trial in an atmosphere of impartiality and, therefore, should refrain from
remarks or conduct that may injure a litigant. The judge should be the exemplar of
dignity and impartiality, should exercise restraint over personal conduct and statements,
should avoid personal predilections, and should control personal emotions. The judge
should not permit any person in the courtroom to embroil him or her in conflict. The
judge should avoid behavior that tends to demean the proceedings or to undermine the
judge's authority. When it becomes necessary during the trial to comment upon the
conduct of witnesses, spectators, counsel, or others, or upon the testimony, those
comments should be made in a firm, dignified, and restrained manner, avoiding a quick
and witty reply. The judge's comments and rulings should be limited to what is
reasonably required for the orderly progress of the trial and should refrain from
unnecessary disparagement of persons or issues. Hayden, 281 Kan. at 125.

Macomber's claim first encounters a factual obstacle. Macomber's testimony and
Judge Weingart's testimony at the K.S.A. 60-1507 evidentiary hearing agreed that Judge
Weingart's use of the word "evil" showed a bias against Macomber. But they disagreed
about when this bias arose. Macomber's first appearance was in 2010. Judge Weingart
presided over Macomber's trial, sentencing him in 2011. This court remanded 10CR60
because the journal entry did not reflect the sentence as pronounced from the bench.
Macomber, 2013 WL 3455777, at *14-15. Judge Weingart entered the nunc pro tunc
judgment in 2013. Macomber filed his K.S.A. 60-1507 motion in 2015. And Judge
Weingart made his comment in 2016. Macomber listed adverse rulings in an attempt to
show that Judge Weingart's bias was present as far back as his trial, but Judge Smith
reviewed those rulings and disagreed.

29
 Typically, an appellate court applies de novo review when it has the same access
to the motion, records, and files as the trial court. The appellate court is not bound by the
trial court's findings from the record. State v. Alford, 308 Kan. 1336, 1338, 429 P.3d 197
(2018) (summarily denying a motion to correct an illegal sentence); State v. Wilson, 308
Kan. 516, 520, 421 P.3d 742 (2018) (summarily denying a postsentence motion to
withdraw a plea).

Although we have the same access to the transcripts as Judge Smith, his reading of
the dynamic between Macomber and Judge Weingart rings true. His summary of the
experience of reading the transcripts is accurate:

"At what appears to be their first encounter in court [J]udge Weingart appropriately and
respectfully reprimands Mr. Macomber for arguing a legal issue and speaking at the same
time as his attorney is speaking. . . . As the case progresses and we have more and more
hearings we see a change in the paradigm. Judge Weingart allows Macomber to speak.
Eventually he invites Macomber to add arguments to what his counsel suggests.
"This court realizes that it is possible for a transcript to conceal anger and
animosity. Nevertheless, the language employed by Judge Weingart which is reflected in
the record if expressed in such a fashion would be simply bizarre. Therefore the language
that appears in the record should be taken at face value and as such connotes nothing but
appropriate respect towards Macomber throughout the proceedings."

Judge Smith noted that some of Judge Weingart's rulings were favorable to
Macomber. Judge Weingart here was contrasting Macomber's outstanding pro se
pleadings and his intellectual ability with the evil acts he had been found guilty of
committing by a jury of his peers. Obviously, Judge Weingart's characterization of
Macomber as "evil" is unacceptable, however, it shows no prejudice or bias, when there
is evidence in the record of Macomber's unprovoked violence towards the lives of his
fellow human beings which would support such a characterization. Thus, we conclude

30
that Macomber fails to show that Judge Weingart's unfortunate remark retrospectively
affected his impartiality during Macomber's trial six years earlier.

Because the trial court properly ruled that Macomber did not show that bias
affected his trial, we affirm.

Affirmed.

31