NOT DESIGNATED FOR PUBLICATION
No. 123,049
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
ROBERT P. WASHINGTON,
Appellant,
v.
STATE OF KANSAS,
Appellee.
MEMORANDUM OPINION
Appeal from Leavenworth District Court; MICHAEL D. GIBBENS, judge. Opinion filed July 16,
2021. Affirmed.
Joseph A. Desch, of Law Office of Joseph A. Desch, of Topeka, for appellant.
Todd G. Thompson, county attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, P.J., WARNER and HURST, JJ.
PER CURIAM: Robert P. Washington appeals the district court's denial of his
K.S.A. 60-1507 motion. In 2014, a jury convicted Washington of traffic in contraband in
a correctional institution. Washington filed a K.S.A. 60-1507 motion alleging that his
trial counsel was ineffective for many reasons, and the district court denied the motion
after holding an evidentiary hearing. Washington's only claim on appeal is that his trial
counsel was ineffective for failing to investigate and pursue Washington's claim of
selective prosecution. After thoroughly reviewing the record and the arguments made by
the parties, we affirm the district court's judgment.
1
FACTUAL AND PROCEDURAL BACKGROUND
The facts of Washington's criminal case are set forth in State v. Washington, No.
115,225, 2017 WL 2304451, at *1 (Kan. App. 2017) (unpublished opinion):
"Cell phones are contraband in prison. An informant told Tomas Zamora, a
special agent investigator at Lansing Correctional Facility, about a possible cell phone in
one of the inmates' cells. Zamora ordered Anthony McCurrie and Bryan Gill, two
members of a special security unit known as Shakedown, to search Washington's cell.
McCurrie and Gill did not know what they were looking for or why the cell was targeted.
"When the officers reached Washington's pod, which is a central area surrounded
by inmates' cells, McCurrie observed Washington exiting his cell. The cell has a bunk
bed, and each bunk has a flat, desk-style attachment where inmates put things. McCurrie
began his search by looking around the top bunk. On the desk attached to the top bunk,
McCurrie found a television, mail, and a stack of books. Underneath the pile of books
McCurrie found a cell phone. The mail had Washington's name and inmate number on it,
so McCurrie identified the bunk as Washington's. Washington's name was on the top of
the nameplate outside of the cell, which also indicated that the top bunk was his.
McCurrie bagged the cell phone and took it to the prison's investigation team.
"In August 2014, the State charged Washington with traffic in contraband in a
correctional institution, a severity level 6 nonperson felony. At trial, Washington denied
that the bunk, television, books, mail, and cell phone were his. Washington and his
cellmate testified that they would switch bunks occasionally, even though switching
violated prison rules. Evidence showed that the television was not owned by Washington
or his cellmate. Washington also presented evidence that, a little over a year before the
search, all but three of his books had been confiscated. He argued that the books covering
the cell phone could not have been his. Washington denied leaving his mail out on the
desk because 'it often happens that people steal people's letters and they write your family
members or people you know, and that creates problems.' The officers did not photograph
the cell or check the books to verify they were Washington's.
"The jury found Washington guilty of traffic in contraband in a correctional
institution. Due to his criminal history score of B, the district court sentenced Washington
to serve an additional 39 months in prison."
2
Washington's direct appeal challenged the sufficiency of the evidence to support
his conviction. After reviewing the record, this court affirmed the district court's
judgment. 2017 WL 2304451, at *3. Our Supreme Court denied Washington's petition for
review, and a mandate was issued on November 7, 2017.
On January 29, 2018, Washington filed a pro se K.S.A. 60-1507 motion alleging
four ineffective assistance of counsel claims against his trial counsel, James Colgan. Of
relevance to this appeal, Washington argued Colgan was ineffective for failing to raise an
equal protection claim alleging Washington was selectively prosecuted. The district court
appointed counsel to represent Washington in the K.S.A. 60-1507 proceedings, and
counsel filed a supplemental memorandum specifically alleging Colgan was ineffective
for failing to assert the selective prosecution claim in his motion for a downward
durational sentencing departure.
The district court held an evidentiary hearing on August 28, 2018. Washington
testified he believed he had been selectively prosecuted because "several inmates that
[he] knew" were not prosecuted for possessing cell phones and he was prosecuted
because he "had less than five to eight years left" on his sentence. Although Washington
testified inmates are not regularly prosecuted for possessing cell phones, he conceded
there have been "plenty" of others who were prosecuted.
Colgan also testified at the evidentiary hearing. When questioned about whether
he investigated Washington's selective prosecution claim, Colgan testified he did not
"know how you would ever answer that question . . . unless you did a complete audit of
everything they do in the prison." When asked about his understanding of which
contraband cases Lansing chooses to turn over for prosecution, Colgan stated that "I don't
know why certain cases would come up or not come up. I think it's probably their
determination of whether or not the evidence is—is strong or sufficient."
3
On June 28, 2019, the district court issued a memorandum decision denying
Washington's K.S.A. 60-1507 motion. As for the claim about selective prosecution, the
district court found that Washington "failed to prove that selective prosecution occurred
in this case" and that Washington did not show he would have received a lesser sentence
had a selective prosecution claim been included in his departure motion. Washington
appealed the district court's judgment.
DID THE DISTRICT COURT ERR IN DENYING WASHINGTON'S K.S.A. 60-1507 MOTION?
On appeal, Washington claims the district court erred in denying his K.S.A. 60-
1507 motion. More specifically, Washington argues that his "equal protection/selective
prosecution claim was waived by [Colgan's] inaction in pretrial proceedings without
conducting any investigation into its viability, resulting in prejudice." Washington's other
claims about Colgan's alleged ineffective representation that were in his motion and
argued at the evidentiary hearing are not renewed on appeal. An issue not briefed is
deemed waived or abandoned. State v. Arnett, 307 Kan. 648, 650, 413 P.3d 787 (2018).
The State contends the district court properly denied Washington's K.S.A. 60-1507
motion "due to a lack of viability in the selective prosecution claim." The State also
argues that Washington failed to show he was prejudiced by Colgan's alleged inaction.
When the trial court conducts an evidentiary hearing on claims of ineffective
assistance of counsel, an appellate court reviews the trial court's factual findings using a
substantial competent evidence standard. The appellate court reviews the trial court's
legal conclusions based on those facts applying a de novo standard of review. State v.
Butler, 307 Kan. 831, 853, 416 P.3d 116 (2018).
To begin with, we observe that Washington's argument on appeal differs from
what was argued at the evidentiary hearing in district court. Below, Washington claimed
4
Colgan was ineffective for failing to argue selective prosecution at sentencing to support
his motion for a downward departure. On appeal, Washington claims Colgan was
ineffective for failing to argue selective prosecution as a complete defense to the charge.
But we note that Washington's original motion asserted that he "expressed to trial counsel
his desire to get the charges dismissed based upon . . . selective prosecution." Based on
this assertion, we find that Washington sufficiently preserved this issue for appeal.
Washington argues Colgan's performance was ineffective because "selective
prosecution is a valid defense under the Equal Protection Clause" and "abandoning a
viable constitutional defense without any investigation—or thought process eliminating
the need for such an investigation—falls below the standard of reasonableness."
"To prevail on a claim of ineffective assistance of trial counsel, a criminal
defendant must establish (1) that the performance of defense counsel was deficient under
the totality of the circumstances, and (2) prejudice, i.e., that there is a reasonable
probability the jury would have reached a different result absent the deficient
performance. Sola-Morales v. State, 300 Kan. 875, 882, 335 P.3d 1162 (2014) (relying on
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674, reh.
denied 467 U.S. 1267 [1984])." State v. Salary, 309 Kan. 479, 483, 437 P.3d 953 (2019).
Judicial scrutiny of counsel's performance in a claim of ineffective assistance of
counsel is highly deferential and requires consideration of all the evidence. The
reviewing court must strongly presume that counsel's conduct fell within the broad range
of reasonable professional assistance. See State v. Kelly, 298 Kan. 965, 970, 318 P.3d 987
(2014). To establish prejudice, the defendant must show a reasonable probability that, but
for counsel's deficient performance, the outcome of the proceeding would have been
different, with a reasonable probability meaning a probability sufficient to undermine
confidence in the outcome. State v. Sprague, 303 Kan. 418, 426, 362 P.3d 828 (2015).
5
Washington's argument rests on Colgan's testimony from the evidentiary hearing,
where Washington's counsel briefly questioned Colgan about his investigation of the
selective prosecution claim:
"[WASHINGTON'S COUNSEL:] Are—are you—are you aware of any case
law that suggests that the prison selectively prosecuting can be the basis for a downward
departure?
"[COLGAN:] Well, I think, you know, we've discussed that in the past, I guess,
that there are decisions made in the prison to determine who goes up for prosecution. I
don't know how you would ever answer that question you did—unless you did a
complete audit of everything they do in the prison.
"I know that there was a case here that has caused the county attorney quite a bit
of trouble because inmates found out about it, and, of course, it spreads like wildfire, and
as a case he dismissed against a prisoner who was under a life sentence. It was kind of
a—and I think in the judgment of the county attorney, it was a waste of time to go to trial;
it was a waste of time to spend resources and time when the guy wasn't ever gonna get
out of the jail. And there was a contraband issue on that, but it was dismissed.
"Now that—we know that went around the prison because I had at least two
clients tell me about it, and they wondered why this guy was getting special treatment.
Well, the special treatment, like the determinations made at Lansing, I don't know why
certain cases would come up or not come up. I think it's probably their determination of
whether or not the evidence is—is strong or sufficient, is the way they make that
decision. I'm sure there's some cases where they say, well, you know, we really—we
really don't have much here. Even though a phone might be found, it'd be hard to pin it to
one person or another.
"[WASHINGTON'S COUNSEL:] So you—you're saying that you just didn't
feel it to be proper to investigate that area? Unnecessary?
"[COLGAN:] Well, I'm not sure what your question is. What . . .
"[WASHINGTON'S COUNSEL:] As far as investigating the 500 cases or so
that they said that they have at a time, you just found that to be unnecessary based on
what you had for information?
"[COLGAN:] I don't know how we'd ever physically do it."
6
Washington argues this testimony was a "clear admission [Colgan] didn't even
know how he would proceed on the equal protection claim." He asserts the record
"establishes that Colgan made no efforts to pursue or even investigate the selective
prosecution/equal protection defense."
Kansas courts have recognized selective prosecution as a valid defense to a
criminal prosecution based on the Equal Protection Clause of the Fourteenth Amendment
to the United States Constitution. State ex rel. Murray v. Palmgren, 231 Kan. 524, 528,
646 P.2d 1091 (1982); State v. Robinson, 55 Kan. App. 2d 464, 467, 417 P.3d 1087
(2018). Under K.S.A. 22-3208(3), this defense must be raised by a pretrial motion. 55
Kan. App. 2d at 467.
To succeed on a selective prosecution defense, a defendant must show "that others
who are similarly situated are generally not prosecuted for conduct similar to the conduct
for which the defendant is being prosecuted and that the defendant has been intentionally
and purposefully singled out for prosecution on the basis of arbitrary or invidious
criteria." State v. Gant, 288 Kan. 76, 85, 201 P.3d 673 (2009), abrogated on other
grounds by State v. Sampson, 297 Kan. 288, 301 P.3d 276 (2013). The Gant court noted
that a defendant cannot satisfy his burden of establishing prejudicial error based on
selective prosecution by speculation alone, there must be "evidence in the record
supporting the claim." Gant, 288 Kan. at 85.
In Robinson, this court defined "arbitrary or invidious criteria":
"By invidious, we generally mean that the State has discriminated based on some
improper characteristic, such as race, religion, national origin, or sex. As for arbitrariness,
'a prosecutor's enforcement classification is "arbitrary" only if "people have been
classified according to criteria which are clearly irrelevant to law enforcement purposes."'
[Citations omitted.]" 55 Kan. App. 2d at 469.
7
In his original K.S.A. 60-1507 motion, Washington alleged "[s]everal inmates"
had received disciplinary action for possessing cell phones or "large quantities of drugs"
but were not "charged with a felony or referred to Leavenworth County for prosecution."
The motion listed the names of 12 inmates, which was "a portion of the inmates who
have received [disciplinary] reports based on cell phone and large quantities of drugs."
The K.S.A. 60-1507 motion did not reveal whether the 12 inmates had been
criminally charged or prosecuted. But Washington did allege that "[t]wo inmates . . .
were charged by the county prosecutor and then their cases dismissed at the State's
request. These inmates were caught 'red handed.'" Washington included a "ROA Report"
for the two inmates, and each report showed the State had charged the inmates, but
ultimately requested to dismiss the charges. The reports contain no information about
what crimes the inmates had been charged with, nor why the State requested dismissal.
Washington's motion also alleged that "[a]t the evidentiary hearing records can be
presented to the court to show a vast difference between the inmates who have been
charged and those who have not." A review of the evidentiary hearing shows there were
no records presented to this effect. Washington did testify at the evidentiary hearing that
he asked Colgan to pursue "potential selective prosecution issues" at his arraignment.
When asked if he provided relevant information to Colgan to support this issue,
Washington testified, "Yes. I stated that [the Kansas Department of Corrections] would
sometimes pick and choose who they prosecute." Washington testified he "gave [Colgan]
a few names" that were "[s]imilar to the ones" in his K.S.A. 60-1507 motion.
On cross-examination, the prosecutor questioned Washington about his selective
prosecution allegations:
8
"[PROSECUTOR:] And your selective prosecution argument, were you saying
you—you yourself were being selectively prosecuted, you as a person or you—or—I
don't quite understand.
"[WASHINGTON:] I'mma say me as an individual because I was selected by
the [Enforcement Apprehension and Investigation] from [Kansas Department of
Corrections, Lansing Correctional Facility].
"[PROSECUTOR:] You're aware that other people are prosecuted regularly
from Lansing Correctional Facility; is that correct?
"[WASHINGTON:] Yes. Out of a larger number.
"[PROSECUTOR:] For cell phones, they are regularly; correct?
"[WASHINGTON:] Over the last couple years, that—that has not been true.
There—there's been plenty of people who have not been prosecuted.
"[PROSECUTOR:] But there have been plenty of people that have been, have
they?
"[WASHINGTON:] Right.
"[PROSECUTOR:] Okay. And, in fact, in the testimony that was presented, it
was even said that the EAI present what they find to be the best case to the County
Attorney's Office. Do you recall that?
"[WASHINGTON:] I recall that, but I find it hard to believe.
"[PROSECUTOR:] But that's what you heard; correct?
"[WASHINGTON:] Yes."
We now turn to the merits of Washington's claim. As the United States Supreme
Court stated in Strickland: "In any ineffectiveness case, a particular decision not to
investigate must be directly assessed for reasonableness in all circumstances, applying a
heavy measure of deference to counsel's judgments." Strickland v. United States, 466
U.S. 668, 691, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). To establish ineffectiveness
based on this rule, Washington needed to show that Colgan's decision not to investigate
his selective prosecution claim was unreasonable under the circumstances.
Given the standard for establishing selective prosecution and the limited evidence
provided by Washington to support the claim, we find that Washington has not shown it
9
was unreasonable for Colgan to not investigate selective prosecution as a defense on the
merits. Although Washington offered some evidence to support his claim, the evidence
only showed that Washington knew of some inmates that may have been disciplined for
possessing contraband but were not prosecuted by the State. Washington made no claim
that he had been "intentionally and purposely singled out for prosecution on the basis of
arbitrary and invidious criteria." Gant, 288 Kan. at 85.
The State, on the other hand, presented evidence that it was reasonable for Colgan
to not investigate the selective prosecution claim. Washington testified that he knew that
"plenty of people" had been prosecuted for possessing cell phones. Colgan testified he
thought the decision about who would be prosecuted for contraband depended on whether
the evidence "is strong or sufficient." This evidence shows that Washington and Colgan
were aware of other cell phone cases that had been prosecuted and had at least some idea
of the criteria the State used to decide which cases to prosecute. Giving deference to
Colgan's judgment, it was reasonable for him to not investigate selective prosecution.
To sum up, Washington failed to show that Colgan's performance was deficient
under the circumstances. Although we could end our analysis here, we also observe that
Washington failed to establish the prejudice prong of his ineffective assistance of counsel
claim. In his brief, Washington makes only the conclusory claim that "he was prejudiced
by Colgan's lack of investigation/pursuit of this [selective prosecution] defense because it
is purely a legal defense which would have been dispositive." But in district court, he
presented no evidence to show that his selective prosecution claim would have led to the
dismissal of the charge or even led to a lesser sentence on the departure motion, and he
develops no such argument on appeal. Because Washington fails to show any prejudice,
he cannot prevail on his ineffective assistance of counsel claim. Thus, we conclude the
district court did not err in denying Washington's K.S.A. 60-1507 motion.
Affirmed.
10