NOT DESIGNATED FOR PUBLICATION
No. 125,757
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
TONY T. LEWIS,
Appellant,
v.
STATE OF KANSAS,
Appellee.
MEMORANDUM OPINION
Appeal from Riley District Court; JOHN F. BOSCH, judge. Submitted without oral argument.
Opinion filed February 2, 2024. Affirmed.
Jonathan B. Phelps, of Phelps-Chartered, of Topeka, for appellant.
David Lowden, deputy county attorney, Barry R. Wilkerson, county attorney, and Kris W.
Kobach, attorney general, for appellee.
Before HILL, P.J., MALONE and ISHERWOOD, JJ.
PER CURIAM: Claiming that his trial lawyer denied him the right to testify in his
own defense, Tony Tremayne Lewis appeals the district court's denial of his K.S.A. 60-
1507 motion. He is incorrect. Because the district court's decision was supported by
substantial competent evidence and Lewis admits that his failure to testify would have
made no difference in the jury's verdict, we affirm the dismissal of his K.S.A. 60-1507
motion.
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Lewis is found guilty of several serious sex crimes.
A jury convicted Lewis, a soldier stationed at the Fort Riley Military Reservation,
of two counts of rape; three counts of aggravated criminal sodomy; and additional counts
of aggravated robbery, burglary, aggravated kidnapping, and aggravated assault. See
State v. Lewis, 299 Kan. 828, 326 P.3d 387 (2014); Lewis v. State, No. 117,985, 2018 WL
4038981 (Kan. App. 2018) (unpublished opinion).
Lewis ultimately was sentenced to 928 months in prison with lifetime postrelease
supervision, to be served consecutively to another sentence on similar charges from a
different district court.
Lewis makes a collateral attack on his convictions.
After exhausting his direct appeal, Lewis filed a K.S.A. 60-1507 motion seeking a
new trial based on allegations of ineffective assistance of trial counsel. In his motion,
Lewis claimed (1) the district court violated his constitutional right by giving improper
jury instructions; (2) his lawyer violated his constitutional right by refusing to allow him
to take the stand at trial; and (3) the prosecutor committed misconduct by withholding
exculpatory evidence and knowingly presenting fabricated evidence.
After appointing counsel to help Lewis present his motion, the district court held a
nonevidentiary preliminary hearing to determine whether Lewis' motion raised a
substantial issue of law or fact. Lewis was not present for the hearing, but his counsel
spoke on his behalf, arguing that there were questions of fact requiring an evidentiary
hearing on the right to testify issue and his trial counsel's failure to prevent K.S.A. 60-455
evidence from introduction into evidence at trial. The district court dismissed the motion
finding Lewis failed to allege any substantial issue of fact or law that would require
resolution through a full evidentiary hearing.
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A panel of our court remands for an evidentiary hearing.
A panel of our court reversed the district court's dismissal of Lewis' motion and
remanded to conduct an evidentiary hearing on Lewis' claim that he was not afforded the
right to testify in his own defense. Lewis, 2018 WL 4038981, at *7.
Upon remand, the evidentiary hearing produced evidence from Lewis and his lawyer.
The district court heard evidence from Lewis and his lawyer, Jillian Waesche.
Lewis testified that Waesche advised him that it was not in his best interest to take the
stand. Taking her advice at face value while claiming not to have known about his
fundamental right to testify, Lewis decided not to testify. Had he taken the stand, Lewis
claimed that he would have told the jury that he "didn't rape those women." Lewis
admitted that his testimony likely would not have made a difference at trial given the
compelling DNA evidence. But Lewis maintained that he just wanted the jury to hear his
voice—that things were "looking bad" and he "felt like [he] had to get up there and say
something." On cross-examination, Lewis testified that Waesche never told him that he
could not testify, only that it would not be in his best interest.
Waesche testified that she had discussed the possibility of Lewis taking the stand
before trial and told Lewis of his right to do so. They delayed any decision on whether he
would testify at trial until the State rested their case. Once the State rested, Waesche
advised Lewis that it would not be in his best interest to testify, and both agreed that the
State's evidence against Lewis was very damaging. On cross-examination, Waesche
testified that she remembered Lewis asking her what she thought about Lewis testifying.
Waesche reiterated the fact that she never told Lewis that he could not testify, only that it
would not be in his best interest.
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The district court dismissed Lewis' motion after an evidentiary hearing.
The district court found Waesche's testimony more credible and found no violation
of Lewis' right to testify in his own defense. The district court also made several factual
findings supporting its denial of Lewis' motion:
• Waesche and Lewis had a pretrial discussion about his right to testify and that it
was his right to exercise;
• At the close of the State's evidence, Waesche and Lewis discussed his right to
testify again;
• Waesche recommended that Lewis not testify because it would not be in his best
interest;
• Lewis followed the advice and decided not to testify; and
• Waesche never told Lewis that he could not testify.
The district court concluded that Lewis was "adequately advised of [his] right, that
[he] made a knowing and intelligent decision not to testify" and denied Lewis' motion for
relief.
We review the district court's findings and ruling.
To us, Lewis claims that the advice from his lawyer that his testimony would not
be in his best interest "is tantamount to denying Lewis the decision whether to testify on
his own behalf." Thus, in his view, his lawyer prevented him from testifying in his own
defense and that act denied him effective assistance of counsel.
We will examine two aspects of the district court's dismissal: the facts and the law.
We evaluate the district court's factual findings to determine whether they are supported
by substantial competent evidence. Such evidence is "'that which possesses both
relevance and substance and which furnishes a substantial basis in fact from which the
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issues can reasonably be resolved.'" State v. Sanders, 310 Kan. 279, 294, 445 P.3d 1144
(2019); see Hodges v. Johnson, 288 Kan. 56, 65, 199 P.3d 1251 (2009) (substantial
competent evidence is such legal and relevant evidence as a reasonable person might
regard as sufficient to support a conclusion). We must not reweigh this evidence but
instead decide whether the record justifies the district court's findings.
We then review de novo the district court's conclusions of law. State v. Dooley,
313 Kan. 815, 819, 491 P.3d 1250 (2021). Without any objection to those factual findings
or conclusions of law on the basis of inadequacy, we presume that the district court found
all facts necessary to support its judgment. State v. Jones, 306 Kan. 948, 959, 398 P.3d
856 (2017). If we find the decision lacks specific factual findings, then meaningful
review is impossible and remand may be necessary. State v. Thurber, 308 Kan. 140, 232,
420 P.3d 389 (2018).
Ineffective assistance of counsel claims are examined for efficient performance by
counsel and prejudice to the accused.
The Sixth Amendment to the United States Constitution guarantees that "[i]n all
criminal prosecutions, the accused shall enjoy the right…to have the Assistance of
Counsel for his defence." To be meaningful, "the right to counsel necessitates more than
a lawyer's mere presence at a proceeding." Miller v. State, 298 Kan. 921, 929, 318 P.3d
155 (2014) (citing State v. Galaviz, 296 Kan. 168, 174, 291 P.3d 62 [2012]). Even so,
appellate courts "employ a strong presumption that counsel's conduct was reasonable."
Miller, 298 Kan. at 931.
An ineffective assistance of counsel claim is analyzed using a two-part test
pronounced in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984), which was adopted by our courts in Chamberlain v. State, 232 Kan. 650, 656-57,
694 P.2d 468 (1985). Under that test, the defendant must first show their lawyer's
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representation fell below an objective standard of reasonableness. Khalil-Alsalaami v.
State, 313 Kan. 472, 485, 486 P.3d 1216 (2021). Judicial scrutiny of a lawyer's
representation must be highly deferential, and any fair assessment of that representation
requires that every effort be made to eliminate the distorting effects of hindsight,
reconstruct the circumstances of the challenged conduct, and evaluate from counsel's
perspective at the time. 313 Kan. at 486.
If we find deficient representation, the defendant must then show prejudice by
showing with reasonable probability that the deficient performance affected the outcome
of the proceedings. Reasonable probability means a probability sufficient to undermine
confidence in the outcome. We must consider the evidence before the fact-finder. Khalil-
Alsalaami, 313 Kan. at 485.
Here, the district court heard testimony from Lewis and Waesche at the
evidentiary hearing and concluded Lewis was not denied the right to testify on his own
defense. On appeal, Lewis claims the district court erred in its findings. The State
responds that the "inescapable conclusion" is that substantial competent evidence
supports the district court's findings of fact and those findings support the district court's
conclusions of law. The record supports the State's argument, and Lewis' own words
undercut his position.
Lewis expressed doubt about whether his testimony would affect the jury.
At the evidentiary hearing, Lewis admitted that if he had taken the stand and
testified at trial, it likely would not have made any difference in the jury's deliberation
and verdict. Lewis argued that "he just had something to say" and doubted that it would
have affected the outcome of his trial.
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"Q: And do you believe that your testimony to the jury, in your opinion based upon your
knowledge of the facts of the case, would have made a difference to how they deliberated
and ultimately decided your guilt or innocence?
"A: Honestly no.
"Q: I'm sorry?
"A: No.
"Q: You don't think there would have been a difference?
"A: No.
"Q: So, even though you – you're saying you wanted to take the stand and you're saying
that you would have offered testimony and you would have denied that it happened and
even a potential alibi defense, you don't think that would have been enough to potentially
sway the jury to a different outcome?
"A: Well, you know, we had that questionable D.N.A. that was included as evidence. I
mean, I think that would have – I think that it would have trumped what I had to say.
Like I said, I just felt like I had to say something." (Emphasis added.)
This admission casts great doubt upon Lewis' argument. With such evidence, a
court could hardly conclude that Lewis was prejudiced by his lawyer's performance.
No evidence proves that Waesche prevented Lewis from testifying.
Lewis claims that he presented evidence to the district court that Waesche
thwarted his attempts to testify. In his view, when he wanted to testify, Waesche had a
duty to put him on the stand to testify.
The facts and holding of Flynn v. State, 281 Kan. 1154, 136 P.3d 909 (2006), are
similar to the facts and issues of this case. Lewis and Flynn both testified at their
evidentiary hearings that they were unaware of their right to testify. Yet the district courts
found their testimonies lacked credibility. In Flynn, the district court found that she knew
she had a right to testify and knowingly waived that right after consultation with her trial
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counsel. Based on that finding, the district court concluded that the advice of Flynn's trial
counsel that Flynn not testify was a tactical decision and thus was not ineffective.
We find no support in the record for Lewis' contention. Waesche testified that
Lewis never told her that he wanted to testify; rather, he merely asked what Waesche
thought about him testifying. Thus, no evidence exists demonstrating Waesche prevented
Lewis from testifying.
The Cronic exception does not apply.
Lewis next tries to use the Cronic exception to argue that no further prejudice need
be shown to find Waesche violated his constitutional right to testify in his own defense.
The United States Supreme Court recognized an exception to the second step of the
Strickland test that applies only when a defendant is completely denied the assistance of
counsel or denied counsel at a critical stage of a proceeding. United States v. Cronic, 466
U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984). In those cases, the verdict is so
highly likely to be unreliable that a case-by-case inquiry is not required, and the
defendant does not have to show a probable effect on the outcome. In other words, the
second Strickland step – that the defendant shows prejudice – is unnecessary because the
court can presume prejudice. State v. McDaniel, 306 Kan. 595, 608, 395 P.3d 429 (2017);
Fuller v. State, 303 Kan. 478, 486-87, 363 P.3d 373 (2015).
For us to presume prejudice, Lewis would need to show he was wholly deprived
of the assistance of counsel at a critical stage in his criminal proceedings. Lewis fails to
do so. We find no merit in Lewis' argument.
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Lewis shows no just reason to change the law.
In his final argument, Lewis respectfully suggests that the law should be changed
because the underlying reason for the trial judge to not give that information to the
defendants is no longer valid. He admits that his position runs contrary to caselaw. See
Taylor v. State, 252 Kan. 98, Syl. ¶ 5, 843 P.2d 682 (1992) (trial courts need not inquire
into the defendants' waiver of the right to testify at trial). We decline his invitation.
Basically, Lewis objects that the trial court did not speak to Lewis either before or
during trial to affirmatively inform him of his right to testify. So fundamental to due
process is the right to testify on his own behalf, Lewis contends district court judges
should sua sponte "insure independently on the record that Lewis made an informed
decision to testify or not."
Caselaw cautions against independent inquiry by judges into whether a defendant
is aware of their right to testify as the inquiry "may inadvertently influence a defendant to
waive the equally fundamental right against self-incrimination." Taylor, 252 Kan. at 106.
The right to testify and the right against self-incrimination are mutually exclusive
constitutional rights, since the exercise of one inherently excludes the other—a criminal
defendant cannot both testify in his or her own defense and avoid self-incrimination by
remaining silent (or not testifying). Taylor, 252 Kan. at 106; see also State v. Anderson,
294 Kan. 450, 465-67, 276 P.3d 200 (2012) (endorsing Taylor and State v. McKinney,
221 Kan. 691, Syl., 561 P.2d 432 [1977], by rejecting the defendant's argument that
district court had a duty to advise him about his right to testify and his right against self-
incrimination and then to secure a choice from him on the record).
Lewis fails to provide us with any compelling and just reasons to overturn this
recognized precedent. Accordingly, we find his argument unpersuasive and therefore
deny his invitation to depart from precedent. See State v. Patton, 315 Kan. 1, 16, 503
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P.3d 1022 (2022) (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.).
Substantial competent evidence supported the district court's finding that Waesche
did not prevent Lewis from testifying in his own defense during his trial. Given Lewis'
testimony at the evidentiary hearing that he believed his testimony at trial would not
affect the outcome, we hold the district court reasonably denied Lewis' ineffective
assistance of counsel claim.
Affirmed.
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