Novotny v. State

NOT DESIGNATED FOR PUBLICATION

No. 125,640

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STEVEN NOVOTNY,
Appellant,

v.

STATE OF KANSAS,
Appellee.

MEMORANDUM OPINION

Appeal from Sedgwick District Court; DEBORAH HERNANDEZ MITCHELL, judge. Submitted
without oral argument. Opinion filed February 23, 2024. Affirmed.

Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellant.

Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Kris W. Kobach,
attorney general, for appellee.

Before BRUNS, P.J., COBLE and PICKERING, JJ.

PER CURIAM: In 2008, Steven Novotny was convicted by a jury of first-degree
felony murder and aggravated battery after a jury trial. The Supreme Court affirmed his
convictions on direct appeal. Novotny then filed a K.S.A. 60-1507 motion that was
summarily denied and he did not appeal from that decision. He then filed a second K.S.A.
60-1507 motion—which is the subject of this appeal—asserting that trial counsel was
ineffective. Although the district court also summarily denied this motion, a panel of this
court subsequently remanded the matter to the district court for an evidentiary hearing on
five of his claims.

1
 On remand, after hearing the testimony of witnesses and considering the evidence
presented at the hearing, the district court issued a written decision in which it concluded
that Novotny's trial counsel was not ineffective and that Novotny had failed to establish
prejudice. In this appeal, Novotny asserts a number of arguments, including several that
were not asserted below. For the reasons set forth in this opinion, we find that the district
court did not commit reversible error in denying Novotny's second K.S.A. 60-1507
motion following the evidentiary hearing. Thus, we affirm.

FACTS

In affirming Novotny's convictions for first-degree felony murder and aggravated
battery on direct appeal, the Kansas Supreme Court detailed the underlying facts in State
v. Novotny, 297 Kan. 1174, 1175-79, 307 P.3d 1278 (2013). As such, they will not be
repeated in this opinion. Rather, in this section of the opinion, we will discuss the facts
material to the issue presented on appeal. Moreover, we will address additional facts as
necessary in the Analysis portion of our opinion.

On December 5, 2013, Novotny filed a pro se K.S.A. 60-1507 motion. In the
motion, he made 54 claims against his trial counsel and others involved in his trial. On
June 30, 2014, the same district judge who had conducted Novotny's criminal trial
summarily denied the motion. In doing so, the district court found:

"In the Court's opinion, the defendant does not raise any substantial questions of
Law or issues of fact. The Motion, files and record in the case conclusively show that Mr.
Novotny is entitled to no relief. Therefore, there is no need to appoint counsel or have
Mr. Novotny present. For all these reasons, the defendant's Motion is denied."

2
 Novotny did not appeal from this summary denial of his K.S.A. 60-1507 motion
and it became the final judgment of the court.

On July 16, 2014, Novotny filed a second K.S.A. 60-1507 motion, which is the
subject of this appeal. In his second K.S.A. 60-1507 motion, Novotny asserted six claims
of ineffectiveness against his trial counsel. The district court summarily denied Novotny's
motion, finding it untimely, successive, and without merit. Thereafter, Novotny appealed
and a panel of this court remanded the second K.S.A. 60-1507 motion to the district court
for an evidentiary hearing on five issues raised in Novotny's motion. Novotny v. State,
No. 113,546, 2016 WL 2609631, at *2 (Kan. App. 2016) (unpublished opinion).

The claims of ineffective assistance by trial counsel remanded for an evidentiary
hearing were:

1. Failure to object to K.S.A. 60–455 evidence;

2. Pressuring Novotny not to testify at trial;

3. Failure to request a mental competency evaluation prior to trial;

4. Failure to object to the prosecution's references to Novotny's nickname of
"Loco" at trial; and

5. Failure to adequately investigate the case and consult with Novotny regarding
the defense strategy.

On remand, the district court followed the mandate of this court and held an
evidentiary hearing on the issues identified. The district court held the evidentiary
hearing over two nonconsecutive days. The transcript of the first day of the hearing is 133

3
pages. Likewise, the transcript of the second day of the hearing is an additional 34 pages.
At the hearing, Novotny testified on his own behalf. In addition, three other witnesses
testified: Steve Osburn, Novotny's sentencing counsel; Vikki Novotny, Novotny's sister;
and Richard Ney, Novotny's trial counsel.

After considering the evidence presented and the arguments of counsel, the district
court took the matter under advisement. Subsequently, it entered a written decision on
August 4, 2022, in which it denied Novotny's second K.S.A. 60-1507 motion. Then, on
September 14, 2022, the district court issued an amended decision after identifying an
error in its factual recitation in the first decision. In its amended decision, the district
court discussed each of the five claims of ineffectiveness by trial counsel and found that
Ney had acted reasonably as part of his trial strategy. Ultimately, the district court
determined that Novotny "has failed to meet his burden to sustain the [second] K.S.A. 60-
1507 against his trial counsel, Richard Ney."

Thereafter, Novotny timely appealed.

ANALYSIS

The sole issue presented on appeal is whether the district court erred in denying
Novotny's second K.S.A. 60-1507 motion following an evidentiary hearing. In cases in
which a district court has held an evidentiary hearing on a K.S.A. 60-1507 motion, we are
to review a district court's factual findings under a substantial competent evidence
standard. Substantial competent evidence is evidence that a reasonable person could
accept as adequate to support a conclusion. State v. Smith, 312 Kan. 876, 887, 482 P.3d
586 (2021).

4
 In performing our review, we "do not 'reweigh evidence, pass on the credibility of
witnesses, or resolve conflicts in the evidence.'" Khalil-Alsalaami v. State, 313 Kan. 472,
486-87, 486 P.3d 1216 (2021). However, our review of a district court's legal conclusions
is unlimited. 313 Kan. at 486. At an evidentiary hearing, a K.S.A. 60-1507 movant—in
this case Novotny—has the burden to prove by a preponderance of the evidence: (1) that
the underlying judgment was rendered by the district court without jurisdiction; (2) that
the sentence imposed by the district court was not authorized by law or is otherwise
subject to collateral attack; or (3) that there has been a denial or infringement of his or her
constitutional rights as to render the district court's judgment vulnerable. See K.S.A. 2022
Supp. 60-1507(b) (grounds for relief); Supreme Court Rule 183(g) (2023 Kan. S. Ct. R.
at 244) (preponderance burden).

Where a K.S.A. 60-1507 motion alleges ineffective assistance of counsel, we
apply the two-pronged test outlined in Strickland v. Washington, 466 U.S. 668, 694, 104
S. Ct. 2052, 80 L. Ed. 2d 674 (1984). This test was also adopted by our Supreme Court in
Chamberlain v. State, 236 Kan. 650, 656-57, 694 P.2d 468 (1985). Under the first prong,
the movant must show that counsel's performance was deficient. Under the second prong,
the movant must show that there was a reasonable probability that the result would have
been different but for the alleged ineffectiveness of counsel. State v. Evans, 315 Kan.
211, 217-18, 506 P.3d 260 (2022).

To show deficiency of counsel under the first Strickland prong, the movant must
prove that the attorney's representation fell below an objective standard of
reasonableness. As our Supreme Court has explained:

"Judicial scrutiny of counsel's performance must be highly deferential, and a fair
assessment of attorney performance requires that every effort be made to eliminate the
distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged
conduct, and to evaluate the conduct from counsel's perspective at the time. A court must
indulge a strong presumption that counsel's conduct falls within the wide range of

5
 reasonable professional assistance." Chamberlain v. State, 236 Kan. 650, 656-57, 694
P.2d 468 (1985).

See State v. Evans, 315 Kan. 211, 218, 506 P.3d 260 (2022); Holmes v. State, 292 Kan.
271, 275, 252 P.3d 573 (2011).

Furthermore, to establish prejudice under the second Strickland prong, the movant
must prove that there was a reasonable probability that the alleged ineffectiveness of
counsel's performance affected the outcome of the proceedings based on the totality of
the evidence. If the movant cannot show prejudice as a result of counsel's alleged
deficiencies, "a court need not determine whether counsel's performance was deficient."
Strickland, 466 U.S. at 697. As the United States Supreme Court has held, an ineffective
assistance of counsel claim can be denied "solely on that ground if the defendant failed to
establish that he or she suffered prejudice." Edgar v. State, 294 Kan. 828, 843, 283 P.3d
152 (2012) (citing Strickland, 466 U.S. at 697).

Testimony of Lori Worley

At the outset, we note that the first claim of ineffective assistance of counsel
remanded by this court to the district court for consideration was Ney's failure to object to
K.S.A. 60-455 evidence admitted at trial. While this issue was presented by Novotny at
the evidentiary hearing and addressed by the district court, it appears that the claim has
morphed into a different claim on appeal. At the district court, Novotny argued Ney was
ineffective for failing to object to Worley's testimony and not requesting a limiting
instruction under K.S.A. 60-455. Whereas on appeal, Novotny now claims that Ney was
ineffective for eliciting Worley's testimony. Significantly, Novotny no longer argues that
Ney should have requested a K.S.A. 60-455 instruction.

6
 As a general rule, claims for relief not raised before the district court cannot be
raised on appeal. State v. Green, 315 Kan. 178, 182, 505 P.3d 377 (2022). Of course,
there are exceptions to this general rule, including: (1) that the newly asserted claim
involves a pure question of law arising on proved or admitted facts and is determinative
of the case; (2) that consideration of the newly asserted claim is necessary to serve the
ends of justice or to prevent a denial of fundamental rights; and (3) that the district court
was right for the wrong reason. State v. Allen, 314 Kan. 280, 283, 497 P.3d 566 (2021).
Here, Novotny asserts that we should consider his newly asserted claim under the second
exception.

We find it significant that this was not a claim that was remanded to the district
court to consider at the evidentiary hearing. Likewise, as the State points out, Novotny's
K.S.A. 60-1507 counsel had an opportunity to assert this new claim either at the
evidentiary hearing or in the subsequent motion to reconsider the district court's initial
written decision. But neither was done. Consequently, we do not find that the resolution
of this newly asserted claim is necessary to serve the ends of justice because the district
court addressed the issue remanded to it, and Novotny no longer argues that trial counsel
should have requested a K.S.A. 60-455 instruction.

Alleged Pressure on Novotny Not to Testify

In his second K.S.A. 60-1507 motion, Novotny claimed "that trial counsel was
ineffective for pressuring [him] not to testify at his trial, despite his wishes to do so[.]"
Likewise, the claim that Ney pressured Novotny not to testify at trial is one of the claims
remanded to the district court for evidentiary hearing. So, we must determine whether the
district court erred in denying this claim of ineffectiveness of trial counsel.

It is undisputed that criminal defendants have a constitutional right to testify at
trial. State v. Anderson, 294 Kan. 450, 465, 276 P.3d 200 (2012). Similarly, criminal

7
defendants have a constitutional right not to testify at trial. State v. George, 311 Kan. 693,
708, 466 P.3d 469 (2020). Unless a defendant is not represented by counsel, the decision
of whether or not to testify at trial should be made after consultation with his or her
attorney. See Flynn v. State, 281 Kan. 1154, 1163, 136 P.3d 909 (2006). Additionally, a
knowing and intelligent waiver of the right to testify can be inferred from a defendant's
conduct. State v. Breeden, 297 Kan. 567, 586, 304 P.3d 660 (2013).

According to Novotny, had he been called as a witness he would have testified
that he remembered walking with someone near Xavier Worley's apartment. He evidently
does not recall who that other person was but he does recall that the other person pulled
out a gun and started shooting. Novotny alleges that he would have further testified that
he yelled "stop," threw his hand out to stop the shooter, and then ran away. Novotny also
alleges that he later received a letter from a Donovan Thompson in which he thanked him
"for not snitching" about the shooting.

A review of the record on appeal reveals that at the K.S.A. 60-1507 hearing,
Novotny testified that he twice asked Ney if he could testify. Novotny claimed that Ney
did not discuss trial strategy with him and that he had expected to testify at trial.
According to Novotny, he felt like Ney tried to bully him. In contrast, Ney testified that
he advised Novotny not to testify because he did not think he would be a good witness.
Ney explained that his trial strategy was to show that Novotny was innocent.

Although Ney did not recall all the details after so many years, he testified as
follows:

"[STATE] Q. And so in the course of your conversations about whether he would testify,
did he understand or at least did you tell him that ultimately it was his decision whether
to testify?

8
 "[TRIAL COUNSEL] A. I don't want to get into what he understood, but I certainly told
him that it was something that we had to decide.

"Q. That you would give him your counsel, your recommendation, which you have
already shared but, ultimately, it was going to be his decision whether to testify or not?
"A. I don't know if I would put it into those words, but we talked about the negative
aspects of his testimony."

Ney further recalled that Novotny never told him that he wanted to testify before
he had rested the defense's case or during the instructions conference. Ney added that if
Novotny was to testify at trial, they would have spent considerable time to prepare his
testimony.

We note that the trial transcript confirms that Novotny never advised the district
court that he wanted to testify. The transcript reflects that during the instructions
conference, the district court expressly discussed an instruction regarding Novotny's right
not to testify. Throughout this discussion, Novotny remained silent. At the sentencing
hearing, Novotny addressed the district court directly. In doing so, he presented his
version of the facts surrounding the shooting. He finished by stating, "I tried to tell the
truth, but Ney . . . didn't want it to be known." After Novotny gave his statement, the
State presented victim impact statements, and the district court announced its sentence.

In ruling on the 60-1507 motion, the district court explained that Novotny "would
have had nothing of substance to testify to and would have opened himself up needlessly
to cross-examination by the State." The district court found that Novotny's testimony
would have also contradicted his claims about his lack of knowledge regarding the crime.
The district court concluded that Ney's actions were reasonable and that no evidence
showed that the jury would have acquitted if Novotny had testified.

9
 In Taylor v. State, 252 Kan. 98, 843 P.2d 682 (1992), the Kansas Supreme Court
considered a K.S.A. 60-1507 movant's claim that he was prevented from testifying by his
trial counsel. At his K.S.A. 60-1507 hearing, the defendant presented the testimony of
several friends and family members who claimed he told his attorney that he wanted to
testify. On the other hand, trial counsel testified that he had advised his client of his
rights, and it was the defendant who ultimately decided to follow his attorney's advice not
to testify. On appeal, our Supreme Court found that there was substantial competent
evidence in the record to support the district court's finding that trial counsel was not
ineffective. 252 Kan. at 104. Similarly, several panels of our court have also considered
claims of ineffective assistance of trial counsel for allegedly preventing defendants from
testifying.

Several years later, in Jamison v. State, No. 95,371, 2007 WL 4105248 (Kan. App.
2007) (unpublished opinion), a criminal defendant filed a K.S.A. 60-1507 motion
claiming that trial counsel refused to let him testify. However, Jamison did not speak up
during trial about his alleged desire to testify. At the K.S.A. 60-1507 hearing, trial
counsel testified that she always reviewed a client's rights during their first meeting.
Ultimately, the district court found trial counsel's testimony to be credible and denied the
K.S.A. 60-1507 motion. On appeal, a panel of our court found that there was substantial
competent evidence in the record to support the district court's finding that trial counsel
did not deprive the defendant of his right to testify at trial. 2007 WL 4105248, at *2.

More recently, in Talbert v. State, No. 105,469, 2011 WL 4717368 (Kan. App.
2011) (unpublished opinion), a criminal defendant alleged that his trial counsel was
ineffective for not advising him that the decision whether to testify at trial was his and not
his attorney's decision. At his K.S.A. 60-1507 hearing, trial counsel testified that he
always told his clients that whether to testify at trial is their decision and that he had told
Talbert the same thing. As a result, the district court denied the K.S.A. 60-1507 motion.

10
On appeal, a panel of this court found that that there was substantial competent evidence
to support the district court's findings and conclusions. 2011 WL 4717368, at *4.

In this case, we also find substantial competent evidence in the record that—if
believed—supports the district court's decision that Ney did not force or unduly pressure
Novotny not to testify at trial. At the K.S.A. 60-1507 hearing, Ney testified regarding his
trial strategy to show that someone other than Novotny had committed the crimes.
Likewise, he testified that he discussed with Novotny whether he should testify and
advised him that it was his opinion that he should not testify.

Further, we find nothing in the record to show that Novotny brought his purported
desire to testify to the attention of the district court at any point prior to the defense
resting, at the instruction conference at which the issue of him not testifying was
discussed, or at any other point prior to the rendering of the verdict. Rather, the record
reveals that Novotny did not assert this claim until after he was convicted.

Under these circumstances, we conclude that the district court did not err in
finding that Ney's representation of Novotny was not deficient. The district court found
Ney's testimony to be credible and concluded that he never pressured his client not to
testify. Instead, he convinced him not to testify as part of the trial strategy to argue that
someone else committed the crimes. Moreover, the district court found Ney to be credible
in testifying about his concern that Novotny would not be a good witness and that by
testifying, he would have needlessly opened himself up to cross-examination by the State.

We also find that the district court did not err in determining that Novotny failed
to show prejudice even if there had been a deficiency in Ney's representation. The jury
was well aware of the fact that Novotny claimed someone else was the shooter and his
testimony would have added little—if anything—to his defense. In addition, there was
other evidence in the record that potentially pointed to other shooters.

11
 In particular, Shannon Williams suggested in her testimony that Novotny was not
the shooter and that she had told police that a man named Thomas Wilson had robbed her
at gun point using the same caliber gun as the one used in the commission of these
crimes. She suggested in her testimony that the gun may have possibly belonged to
another man named Phillip Caldwell.

Additionally, Brandi Williams testified that Caldwell at least fit the physical
description of the shooter. She also identified Caldwell as being among the group of men
at her house on the day of the shooting. Also, Shannon Williams testified that right after
the shooting, Caldwell hid a gun under Brandi Williams' clothes in Brandi's closet.

Furthermore, Ney pointed to the evidence of other possible shooters during his
closing argument. Likewise, he also pointed to evidence regarding the reluctance of the
victim who survived to identify Novotny in the days following the shooting. Ney also
suggested that Novotny was elsewhere at the time the crime was committed. In particular,
he referred to the testimony of Shamako Dean indicating that Novotny was home by 9:55
p.m. As a result, Ney argued that it would "almost be an impossibility" for Novotny to be
at the scene of the shooting, which occurred around 9:40 p.m.

Hence, we find substantial competent evidence in the record upon which the
district court could reasonably conclude that Ney did not unduly pressure Novotny not to
testify but instead made a wise strategic decision to recommend that to his client that he
not testify. Likewise, we find substantial competent evidence in the record upon which
the district court could reasonably conclude that Novotny was not prejudiced by the
decision not to testify under these circumstances. As such, we do not find that the district
court erred in finding that Novotny's claim fails under both prongs of the Strickland test.

12
Failure to Request a Competency Evaluation

The next claim asserted by Novotny is that his trial counsel was ineffective for
failing to request a competency evaluation. Although this is another claim that appears to
have morphed from the time Novotny filed his second K.S.A. 60-1507 motion until now,
the record reflects that Novotny claimed in his motion that trial counsel was ineffective
for failing to move for a competency evaluation prior to trial. We also note that the issue
of trial counsel's failure to request a mental competency evaluation prior to trial was one
of the claims remanded to the district court for an evidentiary hearing.

In Kansas, a person is "'incompetent to stand trial'" when, because of mental
illness or defect, the person is unable: "(1) To understand the nature and purpose of the
proceedings against such person; or (2) to make or assist in making such person's
defense." K.S.A. 2022 Supp. 22-3301(a). The district court measures the evidence on
competency by a preponderance of the evidence. Defendants are presumed competent.
State v. Mitchell, 317 Kan. 792, 794, 539 P.3d 218 (2023). However, a competency
evaluation may be requested at any point after charges are filed and before the
pronouncement of the sentence. K.S.A. 2022 Supp. 22-3302(1).

In its amended written decision, the district court found that "[t]he correct
procedure for evaluating [Novotny's] mental capacity was followed by each [defense]
attorney, therefore there has been no evidence that their representation fell below the
standard of reasonableness." As a result, the district court found that Novotny had failed
to establish the first prong of the Strickland test. The district court also found that "there
is no evidence the trial would have resulted in a different outcome." Consequently, the
district court concluded that "neither prong of the two-part test has been met and
[Novotny's] claim is denied on this issue."

13
 In reaching this decision, the district court found that trial counsel had requested a
"Larned PSI" evaluation of Novotny's mental competency under K.S.A. 22-3429. That
statute allows the district court to, as part of the presentence investigation, order a
"mental examination, evaluation and report" of a defendant at a state security hospital.
K.S.A. 22-3429. As the district court found, "[t]hese evaluations were done immediately
after the family believes [Novotny's] health had declined." Moreover, the district court
pointed out that Novotny was evaluated twice and found that "[b]oth times the medical
professionals determined [he] met the standards for legal competency."

The Larned evaluation report showed that Novotny did not need inpatient
psychiatric care and that standard prison housing was appropriate. After Ney withdrew as
Novotny's attorney, the attorney appointed to represent him during the sentencing phase
requested a full competency evaluation. This evaluation was completed by ComCare and
again Novotny was found to be competent.

At the K.S.A. 60-1507 hearing, there was conflicting evidence presented regarding
Novotny's competence to stand trial. Novotny's sister testified that when she visited her
brother before and during trial, she observed that "mentally he's not here." According to
his sister, Novotny's mental status gradually got worse during the year he was in jail
awaiting trial and that he became more paranoid during trial. She also testified that
Novotny's personality changed because of a brain injury he suffered as a result of a fall as
a child.

Novotny testified that he remembered bits and pieces of the trial, but he felt like he
was in a "fog" the whole time. He claimed that he started hearing voices before trial, had
an inconsistent appetite, walked around in his cell for days and then slept for days, and
would laugh uncontrollably, and get extremely paranoid. He also claimed that he was
taking medication at the time of his trial but had eventually stopped. At the time of the

14
K.S.A. 60-1507 hearing, Novotny testified that he was doing fine because he had been
taking "coping" classes at Larned State Hospital.

The attorney who represented Novotny at sentencing testified that he seemed like
a completely different person between his first visit with him in the spring of 2007 and
his initial appointment with him after being appointed to serve as his sentencing counsel
in December 2008. He testified that Ney had conveyed to him that Novotny's mental
health had declined during and subsequent to trial. This led Ney to seek the Larned
evaluation request to determine appropriate housing.

On the other hand, the Larned evaluation completed following the trial found that
Novotny did not need inpatient care and that standard prison housing was appropriate.
The Larned report further found that Novotny did not believe he had a mental illness at
the time of his evaluation. Similarly, the ComCare competency evaluation performed
prior to sentencing found that Novotny was competent.

At the K.S.A. 60-1507 hearing, Ney testified that he believed that Novotny had
mental health problems and that he often had to repeat things to him that they had
discussed. Ney also indicated that Novotny went off on tangents at times. Nevertheless,
Ney testified that based on his lengthy experience as a criminal defense attorney, he
never believed that Novotny was incompetent to stand trial. He explained that over the
years, he had experience representing dozens of other clients who had been declared
incompetent.

In addition, Ney explained that he still did not believe that Novotny was
incompetent when he requested the Larned evaluation. He explained that it was his belief
that Novotny never reached a point where he could not assist with his own defense or that
he did not understand what was happening around him. Ney testified that Novotny had
the ability to discuss things happening at trial and that he was able to ask questions.

15
 In State v. Davis, 277 Kan. 309, 323, 85 P.3d 1164 (2004), the Kansas Supreme
Court found that trial counsel's failure to seek pretrial evaluation of defendant's
competency to stand trial constituted ineffective assistance. Davis had a long history of
multiple hospitalizations and treatment for severe mental health issues including
psychosis, disorganized/aggressive behavior, schizophrenia, bipolar disorder,
schizophrenia disorder, antisocial personality disorder, and borderline intellectual
functioning. Initially, the district court found that Davis was incompetent to stand trial
and committed him to Larned State Security Hospital. Eventually, Davis was found to be
competent to stand trial, and the district court ordered the proceedings to resume.

In his direct appeal, Davis argued his trial counsel provided ineffective assistance
for failing to request an additional pretrial competency evaluation after he sent his
attorney several incoherent letters that reflected confusion about his defense. Our
Supreme Court agreed and held that trial counsel was ineffective for failing to request a
competency hearing. 277 Kan. at 323. In reaching this conclusion, the court reasoned that
because trial counsel had evidence of Davis' mental incompetence, the attorney was
deficient in failing to seek another competency hearing. 277 Kan. at 323. In fact, Davis'
trial counsel admitted that he should have requested another competency evaluation
before trial.

Here, a review of the record on appeal reveals that the evidence presented at the
K.S.A. 60-1507 hearing was conflicting. There were no medical or mental health records
admitted into evidence suggesting that Novotny was unable to understand the nature and
purpose of the criminal proceedings or that he was unable to assist in his defense. Even
after Novotny was evaluated prior to sentencing by Larned State Hospital and ComCare,
he was not found to be mentally incompetent. Furthermore, Novotny did not present any
expert testimony at the K.S.A. 60-1507 hearing to suggest that he was not mentally
competent to stand trial.

16
 Additionally, Ney testified that he was able to communicate with Novotny
regarding the progress of his case. In doing so, he never felt that his client was unable to
assist in his defense. Although he recognized that Novotny had some mental health
issues, he never felt that he was incompetent or that an evaluation was necessary to
determine whether he was competent to stand trial. As indicated above, Ney was a very
experienced criminal defense attorney and had represented dozens of clients who were
mentally incompetent over the years.

Based on our review of the record, we find substantial competent evidence to
support the district court's decision that Novotny had failed to meet either prong of the
Strickland test regarding this claim. There is evidence in the record that—if believed—
supports Ney's decision not to request a mental competency hearing prior to or during
trial and we are not reweigh evidence. Khalil-Alsalaami, 313 Kan. at 486-87. Likewise,
Novotny has not shown that the outcome of his trial would have been different but for the
alleged deficiency of his trial counsel.

References to Nickname at Trial

In his K.S.A. 60-1507 motion, Novotny claimed that trial counsel was ineffective
for failing to object to the prosecutor referring to him by his nickname—"Loco"—during
the trial. The record reflects that this claim was considered and denied by district court.
On appeal, Novotny modifies his argument and now argues that the district court should
have used a prosecutorial error analysis in determining whether he was prejudiced by the
references to his nickname at trial. As the State points out, Novotny is attempting to
convert this claim from one of ineffective assistance of counsel to one of prosecutorial
error.

It is clear from the record that the claim of prosecutorial error arising out of the
use of Novotny's nickname at trial was not asserted on direct appeal nor was it presented

17
to the district court in his K.S.A. 60-1507 motions. Moreover, Novotny has shown no
exceptional circumstances to justify his failure to previously assert this claim.
Interestingly, Novotny raised an unrelated claim of prosecutorial error in his direct
appeal, and he has failed to show why he could not have also asserted this claim at that
time.

Consequently, we find that this claim has not been adequately preserved. See State
v. Raskie, 293 Kan. 906, 912, 269 P.3d 1268 (2012) (finding additional arguments raised
on appeal for why evidence was inadmissible not preserved).

"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." Supreme Court Rule 183(c)(3)
(2023 Kan. S. Ct. R. at 243).

We recognize that there may be times in which it may be appropriate to review a
claim of prosecutorial error in a K.S.A. 60-1507 proceeding. See Haddock v. State, 282
Kan. 475, 146 P.3d 187 (2006); Hollingsworth v. State, No. 106,357, 2012 WL 718971,
at *3 (Kan. App. 2012) (unpublished opinion). But this is not one of those cases. Here, it
is undisputed that Novotny did not raise this argument previously and has made no
attempt to show exceptional circumstances for not doing so. See Supreme Court Rule
183(c)(3) (2023 Kan. S. Ct. R. at 243). Thus, because this argument should have been
raised previously, we decline to address it in this appeal.

Cumulative Error

Cumulative errors when considered together may require reversal of a conviction
when the totality of the circumstances establish that the defendant was substantially

18
prejudiced by the errors and was denied a fair trial. However, cumulative error is
inapplicable when there are no errors or only a single error. State v. Gallegos, 313 Kan.
262, 277, 485 P.3d 622 (2021). In this case, Novotny has failed to show deficient
performance by trial counsel during trial. Because no errors occurred in this case, there
can be no cumulative error.

Affirmed.

19