Dawson v. State

NOT DESIGNATED FOR PUBLICATION No. 128,934 IN THE COURT OF APPEALS OF THE STATE OF KANSAS ALCENA M. DAWSON, Appellant, v. STATE OF KANSAS, Appellee. MEMORANDUM OPINION Appeal from Sedgwick District Court; CHRISTOPHER MAGANA, judge. Submitted without oral argument. Opinion filed October 30, 2026. Affirmed. Gerald E. Wells, of Jerry Wells Attorney-at-Law, of Lawrence, for appellant. Chelsea Anderson, assistant district attorney, Marc Bennett, district attorney, and Kris W. Kobach, attorney general, for appellee. Before SCHROEDER, P.J., PICKERING and BOLTON FLEMING, JJ. SCHROEDER, J.: Alcena M. Dawson timely appeals the district court's summary denial of his latest K.S.A. 60-1507 motion in which he claimed ineffective assistance of appellate counsel. Finding no error, we affirm. FACTUAL AND PROCEDURAL BACKGROUND The facts and procedural history underlying Dawson's conviction were fully set out in his direct appeal and need not be repeated here. State v. Dawson, No. 79,652, 1999 1 WL 35814328, at *1-3 (Kan. App. 1999) (unpublished opinion). Relevant to this appeal, in February 1997, the State charged Dawson with one count of rape of a child under 14 years of age, a severity level 1 person felony. A jury convicted Dawson. On direct appeal, Dawson challenged (1) the qualification of experts, (2) the sufficiency of the evidence, and (3) his criminal history score. Another panel of our court found Dawson's trial counsel failed to object to certain trial testimony, thus failing to preserve the issue for appeal. 1999 WL 35814328, at *1. But the panel found, even if it considered the issue on the merits, the district court did not abuse its discretion when admitting the testimony, and there was sufficient evidence to support Dawson's conviction. 1999 WL 35814328, at *1, 2. As for Dawson's challenge to his criminal history score, the panel found Dawson had not raised the issues in district court, so the panel would not address them on appeal. 1999 WL 35814328, at *2-3. Dawson filed several postconviction motions. He appealed the disposition of some, though not all. The following is a list of those motions and how they were decided, taken from documents included in the record on appeal in this case and State v. Dawson, 43 Kan. App. 2d 800, 231 P.3d 582 (2010), which describes some of Dawson's appeals: • 2001—The district court summarily denied a K.S.A. 60-1507; Dawson never appealed. 43 Kan. App. 2d at 801. • 2002—The district court denied another K.S.A. 60-1507 motion after a preliminary hearing; Dawson appealed. Another panel of our court found this to be a trial issue that should have been raised on direct appeal. The panel also found Dawson failed to show any exceptional circumstance. 43 Kan. App. 2d at 801-02. • 2008—The district court summarily denied a motion to correct, set aside or vacate an illegal sentence; Dawson appealed. The panel found K.S.A. 22- 3504 does not automatically entitle Dawson to "a hearing, presence at a 2  hearing, or appointment of counsel" and that Dawson did not argue the merits. 43 Kan. App. 2d at 803. • 2014—The district court denied a motion for forensic D.N.A. testing after a hearing; Dawson appealed. Appellate counsel was appointed to represent Dawson and filed a motion for summary disposition with our court. Another panel of this court affirmed the district court's ruling. State v. Dawson, No. 120,701, summarily affirmed by order filed July 30, 2019. • 2015—The district court denied a motion to correct illegal sentence; Dawson appealed. Another panel of our court affirmed the district court, and the Kansas Supreme Court affirmed our court's decision. State v. Dawson, 55 Kan. App. 2d 109, 119, 408 P.3d 995 (2017), aff'd 310 Kan. 112, 118, 444 P.3d 914 (2019). • 2019—The district court denied a motion to vacate conviction and set aside sentence; Dawson appealed. The district court appointed appellate counsel to represent Dawson, and appellate counsel filed a motion for summary disposition with this court. Another panel of this court affirmed the district court's ruling. State v. Dawson, No. 122,904, summarily affirmed by order filed October 19, 2020. In May 2022, Dawson filed the present pro se K.S.A. 60-1507 motion, alleging appellate counsel, who was the same attorney as in two of his prior appeals, provided ineffective assistance of counsel on Dawson's 2014 appeal and the 2019 appeal. Dawson claimed three errors: (1) failure to investigate the issue on appeal, (2) conflict of interest, and (3) citing caselaw that conflicted with Dawson's position. In his motion, Dawson noted there was a conflict of interest between appellate counsel and himself when appellate counsel represented him in his two earlier appeals. In December 2022, the district court found Dawson failed to meet his burden alleging facts sufficient to warrant an evidentiary hearing. The district court found 3 Dawson failed to establish appellate counsel's performance fell below an objective standard of reasonableness for issues one and two. With respect to issue two, the district court also found Dawson did not establish prejudice. The district court found Dawson's third allegation failed on the merits due to counsel's ethical obligation to argue applicable law and refrain from frivolous arguments. The district court concluded Dawson was not entitled to relief or an evidentiary hearing and summarily denied his motion. ANALYSIS Dawson argues the district court erred in summarily denying his ineffective assistance of counsel claims included in his most recent K.S.A. 60-1507 motion. Although Dawson raised three grounds for relief in his motion, he is pursuing only one on appeal and waives the others. See State v. Davis, 313 Kan. 244, 248, 485 P.3d 174 (2021) (issues not briefed deemed waived or abandoned). Dawson's only claim before us is that the district court erred in summarily denying his ineffective assistance of counsel claim based on an alleged conflict of interest between him and his appellate counsel. Specifically, Dawson contends his appellate counsel provided ineffective assistance during his 2019 appeal from the denial of his motion to vacate or set aside his sentence because counsel had a conflict of interest arising from her prior representation of him in 2014. And appellate counsel's prior representation of him in his 2014 appeal concerning DNA findings resulted in an irreparable breakdown of the attorney-client relationship, which created a conflict that precluded her from representing him in future matters. Dawson argues appellate counsel, therefore, should not have accepted the appointment to represent him in his appeal from the denial of his 2019 motion to vacate his sentence or should have declined to accept his case. Dawson relies primarily on his repeated expressions of dissatisfaction with appellate counsel, his communications regarding their prior relationship, and appellate counsel's citation of legal authority adverse to his position in the prior appeal. 4  Under K.S.A. 60-1507(f)(1)(C), an action must be brought within one year of "the decision of the district court denying a prior motion under this section." Subsection (f)(1)(C) applies only to claims of ineffective assistance of counsel. See Gordon v. State, No. 128,365, 2026 WL 787261, at *5 (Kan. App. 2026) (unpublished opinion), rev. denied 322 Kan. ___ (2026). "'When the district court summarily denies a K.S.A. 60-1507 motion, an appellate court conducts de novo review to determine whether the motion, files, and records of the case conclusively establish that the movant is not entitled to any relief.'" State v. Roberts, 310 Kan. 5, 12, 444 P.3d 982 (2019). The burden rests on Dawson to allege facts sufficient to warrant an evidentiary hearing; conclusory allegations are insufficient. See Sola-Morales v. State, 300 Kan. 875, 881, 335 P.3d 1162 (2014). If the alleged facts, even if true, would not provide a legal basis for relief, then no evidentiary hearing is required. See Trotter v. State, 288 Kan. 112, 137, 200 P.3d 1236 (2009). To be entitled to relief under K.S.A. 60-1507, 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." K.S.A. 60-1507(b); see Supreme Court Rule 183(g) (2026 Kan S. Ct. R. at 242). In this case, Dawson claims his constitutional rights were infringed upon under the Sixth Amendment to the United States Constitution. The general standard for evaluating ineffective assistance of counsel is set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); see Baker v. State, 243 Kan. 1, 7, 755 P.2d 493 (1988) (applying Strickland to claims of ineffective assistance of appellate counsel). Under the Strickland two-prong test, a defendant must establish "counsel's performance was deficient" and "the deficient 5 performance prejudiced the defense." 466 U.S. at 687. The right to effective assistance of counsel includes the right to representation free from conflict of interest. State v. Bowen, 299 Kan. 339, 343, 323 P.3d 853 (2014). However, because Dawson characterizes appellate counsel's ineffective assistance as arising from a conflict of interest, the conflict of interest framework must be analyzed before applying Strickland. The Kansas Supreme Court has recognized three categories of conflicts of interest: (1) concurrent representation of codefendants with antagonistic interests where an objection is made but the district court fails to inquire into the alleged conduct; (2) concurrent representation of codefendants where no objection is made; and (3) conflicts arising when counsel's representation is "'rooted in counsel's obligations to former clients'" or in "'counsel's [own] personal or financial interests.'" Sola-Morales, 300 Kan. at 883-84. When a defendant establishes a conflict of interest that adversely affected counsel's performance, the defendant need not make a separate prejudice showing "in the traditional sense, which requires the defendant to prove that counsel's deficient performance affected the outcome of the trial." Boldridge v. State, 289 Kan. 618, 622-23, 215 P.3d 585 (2009). Dawson does not argue that appellate counsel owed a duty to a different former client whose interests were adverse to his own. Nor does he identify any personal or financial interests of appellate counsel that conflicted with her duty to represent him. Instead, the alleged conflict arises from Dawson's dissatisfaction with appellate counsel's prior representation and Dawson's belief the communication between them had broken down. A prior attorney-client relationship, standing alone, does not establish a conflict of interest. In Boldridge, our Supreme Court considered a conflict claim based on counsel's law firm's prior representation of the victim. Even assuming a potential conflict existed, the Boldridge court found no ineffective assistance because the defendant failed to 6 demonstrate the alleged conflict affected the adequacy of counsel's representation. 289 Kan. at 630. Here, Dawson likewise fails to connect appellate counsel's prior representation to any competing interest or deficient performance in the later appeal. The record shows appellate counsel's representation in the earlier appeal ended in September 2019. On May 1, 2020, appellate counsel responded to a voicemail from Dawson and told him her prior representation had concluded and she no longer represented him. At that time, appellate counsel had not yet been appointed to represent Dawson in this appeal. The record reflects she was appointed on May 6, 2020. Therefore, appellate counsel's May 1 statement that she did not represent Dawson and had no further obligation to him was not inconsistent with her subsequent representation of him after her appointment five days later. Dawson argues his prior communications with appellate counsel should have alerted her he did not want her to represent him. The record confirms Dawson expressed dissatisfaction with appellate counsel and, in a June 6, 2020 letter, expressly stated he believed he had a conflict with her representation and no longer wanted her to represent him. Dawson also sent letters to the Attorney General's office expressing similar concerns. However, nothing in the record suggests appellate counsel received those letters sent to the Attorney General's office. Dawson, therefore, cannot rely on those letters to establish appellate counsel was aware of their contents. The record does, however, establish appellate counsel received other communications from Dawson and timely responded to them. More importantly, the correspondence attached to Dawson's motion does not demonstrate an irreparable breakdown in communication. Instead, it reflects substantial communication between Dawson and appellate counsel throughout the representation. Appellate counsel responded to Dawson's voicemail and letters, explained the status of 7 the appeal, addressed his concerns about communication, provided copies of filings and court orders, responded to his questions about the underlying issues, and informed him of the status of the appeal. Dawson likewise continued to communicate with appellate counsel. After expressing his desire for appellate counsel not to represent him, Dawson later apologized to her and stated he wanted her help and provided her with research and arguments he wanted her to consider in presenting his appeal. While his correspondence demonstrates some degree of disagreement and dissatisfaction, it does not establish appellate counsel was unable to communicate with Dawson or that their relationship had deteriorated to such a degree she could not provide effective appellate representation. A client's disagreement with counsel, even when persistent, is not itself an actual conflict of interest. State v. Cook, 45 Kan. App. 2d 468, 480, 249 P.3d 454 (2011). Dawson also relies on appellate counsel's June 15, 2020 letter, in which she cited legal authority explaining her professional obligations as his attorney. Appellate counsel specifically advised Dawson that she must apply and exercise professional judgment in determining which issues to raise and that controlling authority directly adverse to a client's position must be disclosed to the court. Dawson appears to view appellate counsel's citation of adverse authority as evidence she was acting against his interests because of their prior representation. Dawson's argument does not establish a conflict. Appellate counsel has professional obligations independent of the client's preferred litigation strategy. See Baker, 243 Kan. at 10 ("Conscientious counsel should only raise issues on appeal which, in the exercise of reasonable professional judgment, have merit."). Likewise, Kansas Rules of Professional Conduct (KRPC) 3.3(a)(2) imposes a duty of candor toward the tribunal, including disclosure of controlling legal authority known to counsel to be directly adverse to the client's position. 2026 Kan. S. Ct. R. at 389. Thus, appellate 8 counsel's citation of adverse authority does not demonstrate she was acting under divided loyalty. Rather, it reflects her professional assessment of the applicable law and obligations to the court. The subsequent correspondence also undermines Dawson's assertion of an irreparable communication breakdown. After Dawson raised concerns about communication, appellate counsel continued to respond to his letters. On July 8, 2020, she responded to other questions and discussed her obligations under KRPC 1.4 (2026 Kan. S. Ct. R. at 331). Dawson then wrote to appellate counsel on July 30, apologized if she had misunderstood him, and said he wanted her help. On August 3, Dawson provided appellate counsel with research and arguments about the "Finding Words" issue. Appellate counsel later informed Dawson she filed a motion for summary disposition, explained the basis for her decision, provided him with a copy of the motion, and continued communicating with him regarding the appeal. The record, therefore, does not support a conclusion that the parties were incapable of communicating. Nor did Dawson seek the appointment of new counsel through the appellate court. This fact is not dispositive of whether a conflict existed, but it is relevant to the alleged breakdown in communication. Dawson also relies on the fact appellate counsel cited State v. Ballou, 310 Kan. 591, 448 P.3d 479 (2019), which was adverse to his position concerning the "Finding Words" methodology. Appellate counsel's motion for summary disposition presented Dawson's argument related to the admissibility of the testimony but explained Ballou and K.S.A. 60-456(b) controlled this issue. Dawson argues appellate counsel's reliance on Ballou demonstrates she was acting against his interest. It does not. Appellate counsel is expected to exercise professional judgment in selecting the issues and arguments to present. See Baker, 243 Kan. at 10. Here, appellate counsel presented Dawson's argument about the "Finding Words" issue and then explained why controlling caselaw foreclosed 9 that argument. Appellate counsel's acknowledgement of adverse case law does not demonstrate a divided loyalty or an actual conflict arising from prior representation. Ultimately, Dawson has not identified a conflict of interest recognized under Kansas caselaw. His claim is not based on concurrent representation, a duty to a former client that was adverse to Dawson, or appellate counsel's personal or financial interests. Rather, the alleged conflict consists of Dawson's dissatisfaction with appellate counsel's prior representation, his preference for different counsel, disagreements over communication and litigation strategy, and appellate counsel's acknowledgment of adverse legal authority. Those circumstances do not establish an actual conflict of interest. Even if we analyzed Dawson's claim under Strickland, he fails to establish ineffective assistance. To establish deficient performance, Dawson must identify conduct falling below an objective standard of reasonableness. See Baker, 243 Kan. at 7. Dawson has not identified a specific act or omission appellate counsel should have undertaken but did not because of an alleged conflict. Dawson's complaint is that appellate counsel should have either withdrawn or pursued his preferred legal arguments rather than acknowledging controlling adverse authority. But an attorney's strategic decisions are not deficient merely because the client disagrees with them. See 243 Kan. at 10. Dawson also does not demonstrate prejudice. To establish prejudice in an ineffective assistance claim involving appellate counsel, Dawson must show a reasonable probability the appeal would have been successful but for counsel's deficient performance. See 243 Kan. at 7. Dawson does not identify any reasonable probability the outcome of his appeal would have been different had appellate counsel withdrawn and another attorney been appointed. The record reflects the appeal was summarily disposed of based on controlling authority, including Ballou, which addressed the legal issue 10 underlying Dawson's claim. Therefore, even assuming Dawson could establish some deficiency in appellate counsel's representation, he has not shown the requisite prejudice. Accordingly, the motion, files, and records conclusively establish Dawson is not entitled to relief. Dawson has not established an actual conflict arising from appellate counsel's prior representation, nor has he shown his alleged breakdown in communication affected the adequacy of her representation. To the contrary, the record reflects extensive communication between Dawson and appellate counsel throughout the appeal. Further, Dawson has failed to identify deficient performance or establish a reasonable probability his appeal would have been successful, absent the alleged deficiency. The district court therefore did not err in summarily denying Dawson's K.S.A. 60-1507 motion without an evidentiary hearing. Affirmed. 11