NOT DESIGNATED FOR PUBLICATION
No. 123,907
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
MICHAEL C. ROSS,
Appellant,
v.
STATE OF KANSAS,
Appellee.
MEMORANDUM OPINION
Appeal from Sedgwick District Court; JEFFREY SYRIOS, judge. Opinion filed December 9, 2022.
Affirmed.
Mark Sevart, of Derby, for appellant.
Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.
Before ATCHESON, P.J., HILL and GARDNER, JJ.
ATCHESON, J.: Defendant Michael C. Ross appeals the Sedgwick County District
Court's summary denial of this habeas corpus challenge to his convictions for felony
murder and the underlying crime of felony child abuse and intentional second-degree
murder in a jury trial. Given the perfunctory briefing of this appeal on Ross' behalf, we
have examined the grounds for relief he alleged in his habeas corpus motion filed in the
district court under K.S.A. 60-1507. Ross has failed to show that his legal representation
leading up to and during the jury trial was constitutionally inadequate. We, therefore,
affirm the ruling of the district court denying him relief.
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FACTUAL AND PROCEDURAL HISTORY
In the underlying criminal case, the State charged Ross with felony murder, felony
child abuse, and, in the alternative, premeditated first-degree murder resulting from the
death of his girlfriend's 17-month-old daughter in November 2015 while the child was in
Ross' care. Ross gave authorities varying accounts of how the child was injured. Medical
evidence and expert opinion testimony the State presented at trial showed the child
suffered physical abuse consistent with recent, acute injuries causing brain death. In a
week-long trial beginning in February 2017, the jury convicted Ross of felony murder
and the underlying child abuse felony and second-degree murder on the alternative
charge. The district court sentenced Ross to life in prison with parole eligibility after
serving 25 years on the felony-murder conviction and a consecutive sentence of 55
months on the child abuse conviction. The district court imposed no sentence on the
second-degree murder conviction, since it was an alternative charge to the felony-murder
charge.
Ross filed an appeal in the underlying criminal case, and the Kansas Supreme
Court affirmed the convictions and sentences. State v. Ross, 310 Kan. 216, 445 P.3d 726
(2019). The court's opinion includes a detailed procedural history of the criminal case and
the trial evidence that need not be repeated here. 310 Kan. at 216-20.
After the appeal in the criminal case concluded, Ross timely filed a motion he
drafted without the help of a lawyer for relief under K.S.A. 60-1507. The district court
summarily denied the motion without appointing a lawyer for Ross or holding a hearing.
In doing so, the district court largely cribbed the State's response to the motion, including
errors in the procedural history of the criminal case. A lawyer was then appointed to
represent Ross in this appeal. The appellate brief consists of a single page of factual
history and less than three pages of legal argument to the effect we should remand to the
district court because its findings and conclusions were insufficient for review. The
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district court's findings, though terse and less than original, furnished an adequate basis
for us to review the denial of Ross' 60-1507 motion. Moreover, the remedy for
inadequate findings and conclusions would be a remand for further findings and
conclusions—not a hearing on the grounds asserted in the motion.
LEGAL ANALYSIS
When the district court summarily denies a 60-1507 motion, we review the
decision without deference because we can examine the motion, the State's response, and
the record in the underlying criminal case with the same facility as the district court. The
exercise involves neither credibility determinations nor the resolution of other conflicts in
newly presented evidence. Bellamy v. State, 285 Kan. 346, 354, 172 P.3d 10 (2007).
Denial of the motion is proper if the 60-1507 motion and the record in the underlying
criminal case conclusively show the movant is entitled to no relief. The Kansas Supreme
Court has suggested that in a 60-1507 proceeding summarily denied in the district court,
we should augment perfunctory appellate briefing with an independent examination of
the grounds asserted in the 60-1507 motion itself. See White v. State, 308 Kan. 491, 510-
11, 421 P.3d 718 (2018). We undertake that task here. But before doing so, we outline
key legal principles governing 60-1507 motions.
Governing Legal Principles
To prevail on a 60-1507 motion premised on ineffective legal assistance, a
convicted defendant must show both that his or her legal representation "fell below an
objective standard of reasonableness" guaranteed by the right to counsel in the Sixth
Amendment to the United States Constitution and that absent the substandard lawyering
there is "a reasonable probability" the outcome in the criminal case would have been
different. Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S. Ct. 2052, 80 L.
Ed. 2d 674 (1984); State v. Phillips, 312 Kan. 643, 676, 479 P.3d 176 (2021); Sola-
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Morales v. State, 300 Kan. 875, 882, 335 P.3d 1162 (2014); see Chamberlain v. State,
236 Kan. 650, Syl. ¶¶ 3, 4, 694 P.2d 468 (1985) (adopting and stating Strickland test for
ineffective assistance). Reasonable representation requires that degree of "skill and
knowledge as will render the trial a reliable adversarial testing process." Strickland, 466
U.S. at 688. A reasonable probability of a different outcome "undermine[s] confidence"
in the result and marks the criminal proceeding as fundamentally unfair. Strickland, 466
U.S. at 694. The movant, then, must prove both constitutionally inadequate representation
and sufficient prejudice attributable to that representation to materially question the
resulting convictions.
As the United States Supreme Court and the Kansas Supreme Court have stressed,
review of the representation should be deferential and hindsight criticism tempered lest
the evaluation of a lawyer's performance be unduly colored by lack of success
notwithstanding demonstrable competence. See Strickland, 466 U.S. at 689-90; Holmes
v. State, 292 Kan. 271, 275, 252 P.3d 573 (2011). Rarely should a lawyer's representation
be considered substandard when he or she investigates the client's circumstances and then
makes a deliberate strategic choice among arguably suitable options. Strickland, 466 U.S.
at 690-91. Whether a lawyer had made reasoned strategic decisions bears on the
competence component of the Strickland test.
Regardless of the inadequacy of legal representation, a 60-1507 motion fails if the
movant cannot establish substantial prejudice. And the district court properly may deny a
motion that falters on the prejudice component of the Strickland test without assessing
the sufficiency of the representation. Strickland, 466 U.S. at 697 ("If it is easier to dispose
of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect
will often be so, that course should be followed."); see Edgar v. State, 294 Kan. 828, 843-
44, 283 P.3d 152 (2012); Oliver v. State, No. 106,532, 2013 WL 2395273, at *5 (Kan.
App. 2013) (unpublished opinion). In other words, even assuming a criminal defendant's
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legal representation fell below the Sixth Amendment standard, he or she is not entitled to
habeas corpus relief if the result would have been no different with competent counsel.
In general, the courts look at a lawyer's overall performance in representing a
criminal defendant in determining whether the Sixth Amendment right to counsel has
been satisfied, meaning that a minor mistake or even a number of minor mistakes do not
breach that duty. See Harrington v. Richter, 562 U.S. 86, 111, 131 S. Ct. 770, 178 L. Ed.
2d 624 (2011); Kimmelman v. Morrison, 477 U.S. 365, 386, 106 S. Ct. 2574, 91 L. Ed. 2d
305 (1986); Bland v. Hardy, 672 F.3d 445, 450 (7th Cir. 2012) ("[T]he question under
Strickland is not whether the lawyer made a mistake, even a serious one; it is whether the
lawyer's overall performance was professionally competent."). But a single error causing
sufficiently substantial legal harm to the defendant to call into question an adverse
outcome at trial or on appeal will suffice. See Miller, 298 Kan. at 938-39.
Legal Principles Applied to Ross' Claims
Because the district court denied Ross' motion without a hearing, we have no
evidence as to what strategic considerations his trial lawyer made in shaping the defense.
Nonetheless, as we have indicated, Ross is entitled to no relief if his claims of ineffective
representation did not result in prejudice calling into question the reliability of the
verdicts. Against that legal backdrop, we look at the nine points Ross asserted in his 60-
1507 motion.
• Ross argued that the guilty verdict on second-degree murder as a lesser included
offense of premeditated first-degree murder amounted to an acquittal on the first-degree
felony-murder charge. That is legally incorrect under the rule in State v. Wise, 237 Kan.
117, 121-22, 697 P.2d 1295 (1985), that a jury acquittal on premeditated first-degree
murder is not inconsistent with conviction for felony murder arising from the same facts
and charged alternatively. Although the specific elements of premeditated first-degree
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murder have changed since Wise, the principle remains valid. Ross raised this issue in a
supplemental brief he personally drafted and filed in the direct criminal appeal. The court
declined to consider the issue because it had not been presented to the district court
during the trial. Ross, 310 Kan. at 226-27.
In his 60-1507 motion, Ross alleged exceptional circumstances in that the lawyer
handling the direct appeal ostensibly provided constitutionally inadequate representation
by failing to raise the claim. Ross is wrong. Given Wise, the point would have been
meritless on appeal, and a lawyer is not constitutionally inadequate for failing to raise a
meritless claim. Littlejohn v. State, 29 Kan. App. 2d 506, 507-08, 28 P.3d 448 (2001);
Warren v. State, No. 123,547, 2022 WL 816313, at *3 (Kan. App. 2022) (unpublished
opinion). By the same token, Ross' trial lawyer had no obligation to make the argument
in the district court. Ross can show no prejudice under Strickland, and the point fails for
that reason.
• Ross argued K.S.A. 2015 Supp. 21-5402(a)(2), criminalizing felony murder, is
unconstitutional because the Legislature has precluded any lesser included offenses for
that crime. Ross again has constitutionalized the issue for habeas corpus review by
alleging his lawyers in the direct criminal case inadequately represented him by failing to
assert the point. The argument, however, is foreclosed by State v. Love, 305 Kan. 716,
733-34, 387 P.3d 820 (2017) (no constitutional defect in statutorily eliminating lesser
included offenses for a felony-murder charge). Ross, therefore, suffered no legal
prejudice.
• Ross argued the district court erred in not instructing the jury on involuntary
manslaughter as a lesser included offense of premeditated first-degree murder. Ross has
constitutionalized this as inadequate trial and appellate representation in the direct
criminal case. Even assuming the validity of the legal argument (and that's a broad
assumption), Ross has shown no actual prejudice because he was never sentenced on the
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alternative charge based on premeditated first-degree murder, and the second-degree
murder conviction does not appear in the journal entry of judgment. So this point fails.
• Ross has questioned the State's use of peremptory challenges to strike two
potential jurors. One was the only Black individual in the pool. Ross' trial lawyer lodged
a Batson objection to the strike. See Batson v. Kentucky, 476 U.S. 79, 85-87, 106 S. Ct.
1712, 90 L. Ed. 2d 69 (1986). In response, the State offered results of a public records
search showing the juror had numerous arrests including multiple domestic violence
incidents and was a defendant in several civil suits. Prosecutors also pointed out they
used their first peremptory strike to remove a white prospective juror because he had a
2000 conviction for aggravated battery involving a child and there was a coordinate civil
proceeding in which his parental rights were terminated. During the jury selection
process, the district court found both an articulated race-neutral reason for removing the
Black prospective juror and that the reason was not a pretext for impermissible racial
discrimination. In his 60-1507 motion, Ross also complained the white prospective juror
was improperly stricken because the felony conviction did not preclude him from jury
service. But the State exercised a peremptory challenge to remove the potential juror
because of possible bias or prejudice based on his past criminal involvement. There was
nothing improper in the use of a peremptory strike in that manner. We find Ross'
complaints about jury selection to be without merit based on a review of the trial record
and the district court's ruling on the Batson objection in the criminal case.
• Ross made a general complaint about the two lawyers who represented him
during the trial but offered no specifics other than the lead lawyer told Ross to stop
talking to him incessantly during the trial because it was distracting. Ross further argued
the lawyers didn't do what he was asking them to; but he has described no particular
failures. Strategic decisions are entrusted to the lawyers. Absent some focused
description of the lawyers' failure, Ross has not shown any sort of prejudice in this
respect. See Mundy v. State, 307 Kan. 280, 304, 408 P.3d 965 (2018). And he has
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similarly failed to show how his appellate lawyer erred in not raising such an amorphous
claim.
• Ross argued the district court erred in instructing the jury on the intent or mental
state necessary to convict on premeditated first-degree murder and the lesser included
charge of intentional second-degree murder. He characterizes this as deficient
representation by his trial lawyers and says the error requires a reversal and retrial on the
second-degree murder conviction. But Ross can show no actual prejudice since he was
not sentenced on that conviction and the conviction does not appear in the journal entry
of judgment. The point is, therefore, without merit in a 60-1507 proceeding.
• Ross argued the jurors should have been instructed that the two murder charges
were in the alternative and they could convict on only one. Well, no. That's not how
juries are instructed, and a defendant cannot be punished for both. Although the jury
found Ross guilty of both felony murder and intentional second-degree murder, the
journal entry reflects only the conviction for felony murder, and Ross received a single
sentence. So Ross incurred no legal prejudice. He further characterizes this as
constitutionally deficient representation of his trial lawyers because they did not object to
the verdict forms and instructions for that reason. The claim lacks merit here.
• As a separate point in his 60-1507 motion, Ross identified several instances of
what he characterized as his trial lawyers' constitutionally ineffective representation of
him.
Ross faulted the lawyers for failing to retain an independent medical expert. But
Ross has offered no evidence supporting his claim this would have made any difference.
He has not proffered an affidavit, report, or comparable information from a medical
expert who would have provided exculpatory evidence at trial. The bare assertion that
some hypothetical expert might have been called as a defense witness at trial fails in a
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postconviction challenge. See Bailey v. State, No. 124,101, 2022 WL 2188031, at *2
(Kan. App. 2022) (unpublished opinion) (An "entirely abstract and hypothetical assertion
that some unidentified expert in a particular field might have been of help . . . is
insufficient to suggest legal prejudice.").
Ross complained that the trial lawyers argued to the jury he was simply careless
and fell asleep, allowing the child to injure herself (by pulling over a large television).
Ross characterizes this as tantamount to no defense. It is a defense bearing on the
requisite criminal intent necessary to convict. Ross than repeats his complaint about the
failure to seek an instruction on involuntary manslaughter as a lesser included offense of
intentional first-degree murder. As we have already explained, Ross suffered no legal
prejudice based on that charge and the related conviction for second-degree murder. Ross
similarly complained that the lawyers should have requested an instruction on reckless or
unintentional second-degree murder. But the lawyers did request the instruction. The
district court declined to give it. And the issue was litigated unsuccessfully in Ross' direct
criminal appeal. Ross, 310 Kan. at 223-24.
Ross submitted his trial lawyers failed to adequately investigate a jailhouse
informant who testified against him. One of his lawyers extensively cross-examined the
witness, who testified Ross offered multiple accounts of how the child was injured.
According to the witness, Ross admitted in one account to having dropped the large
television on her. One of the State's medical experts discounted the falling TV scenario as
causing the fatal brain hemorrhage and related injuries to the child's head. The expert
testified that the fatal injury required repeated violent shaking of the child from side to
side. 310 Kan. at 218-19. Accordingly, it is not obvious how further impeachment of the
jailhouse informant would have advanced the trial defense. Moreover, Ross gave
inconsistent versions of how the child was injured to law enforcement officials. At a
more granular level, Ross has not identified what specific information the trial lawyers
might have used to further attack the witness' credibility.
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Ross asserted his trial lawyer erred in saying during voir dire that the jurors would
decide what "reasonable doubt" means. Assuming the lawyer made such a comment (and
Ross does not offer a quote from or a citation to the trial record), the statement would not
have created prejudicial error. The courts typically do not ascribe a specific definition to
reasonable doubt, and the jury is not given a definition. It is considered a self-defining
term. See State v. Stevenson, 297 Kan. 49, Syl. ¶ 2, 298 P.3d 303 (2013); State v.
Winston, 214 Kan. 525, Syl. ¶ 4, 520 P.2d 1204 (1974); PIK Crim. 4th 51.140. The brief
remark attributed to the lawyers did not fall below the constitutional standard of adequate
representation and caused no legal prejudice.
• As final points, Ross repeated several of the arguments we have already laid out
and again characterized them as constitutionally inadequate representation by his trial
lawyers and his appellate lawyer in the direct criminal case. We have already explained
why those arguments do not establish legal prejudice and, thus, cannot support a 60-1507
motion. The arguments are no better or stronger in a collective restatement of them.
Having reviewed the contentions Ross raised in his 60-1507 motion, we find no
basis to reverse the district court's ultimate conclusion in denying relief.
Affirmed.
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