Turner v. State

NOT DESIGNATED FOR PUBLICATION No. 129,097 IN THE COURT OF APPEALS OF THE STATE OF KANSAS CARDELL TURNER, Appellant, v. STATE OF KANSAS, Appellee. MEMORANDUM OPINION Appeal from Sedgwick District Court; TYLER ROUSH, judge. Submitted without oral argument. Opinion filed November 13, 2026. Affirmed. Kristen B. Patty, of Wichita, and Cardell Turner, pro se, 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. PER CURIAM: Cardell Turner filed a K.S.A. 60-1507 motion in Sedgwick County District Court, asserting several grounds for relief. The district court summarily denied his motion and Turner appeals. After a thorough review of the record, we find the district court did not err. Accordingly, we affirm. 1  FACTUAL AND PROCEDURAL BACKGROUND In 2019, Turner was convicted by a jury of attempted first-degree murder, attempted second-degree murder, and conspiracy to commit first-degree murder. Posttrial Motions Shortly following his trial, Turner filed several motions. First, through his trial counsel, Turner filed a motion for a new trial and judgment of acquittal. The same day, Turner's trial counsel filed a motion to withdraw, citing a conflict of interest. Several days later, Turner filed a pro se motion for substitute counsel and for a new trial based on ineffective assistance of counsel. The district court granted Turner's motion for substitute counsel and trial counsel's motion to withdraw. The district court appointed a new posttrial attorney to represent Turner. The district court held a hearing on Turner's motions for a new trial, which included claims of ineffective assistance of counsel against his trial counsel. Turner testified at the hearing regarding his allegations against his trial counsel. Trial counsel also testified and explained his trial strategy. At the conclusion of evidence, the district court determined that trial counsel's representation of Turner was not deficient. The district court also found that Turner could not prove he was prejudiced by his trial counsel's representation because there was no reasonable probability that the jury would have reached a different result. The district court also determined that sufficient evidence supported the convictions and that no evidence was admitted in error. The district court denied both motions for a new trial. 2 Direct Appeal Turner appealed his convictions, and he was represented in his direct appeal by an appellate attorney. See State v. Turner, No. 123,097, 2022 WL 15527878 (Kan. App. 2022) (unpublished opinion). Turner argued that the district court erred by admitting recorded telephone calls, denying his motion for substitute counsel and judicial recusal, and failing to provide a self-defense instruction. He also challenged the effectiveness of his trial counsel, and the classification of his prior convictions used to calculate his criminal history. 2022 WL 15527878, at *2-19. A panel of our court affirmed Turner's convictions but vacated his sentence and remanded for resentencing because two of Turner's prior California convictions had been improperly classified as person felonies. 2022 WL 15527878, at *15-19. The Kansas Supreme Court granted review and affirmed Turner's convictions. State v. Turner, 318 Kan. 162, 542 P.3d 304 (2024). Relevant here, the court found that while trial counsel's performance was deficient due to his failure to request a self-defense jury instruction, Turner was not prejudiced. The court also found that Turner was not entitled to appointment of new counsel because he could not demonstrate justifiable dissatisfaction. K.S.A. 60-1507 Motion Turner next filed a timely habeas motion under K.S.A. 60-1507, raising multiple issues including ineffective assistance of counsel against trial counsel, posttrial/sentencing counsel, and appellate counsel; prosecutorial misconduct; and trial error. On appeal, Turner only pursues two categories of these issues—ineffective assistance of counsel claims against his posttrial and appellate attorneys. 3  Turner alleged in his motion that his posttrial attorney was ineffective in his representation of Turner related to his motion for a new trial. Turner alleged that posttrial counsel was ineffective because he failed to subpoena the prosecution's witnesses to testify about "the information in the complaint and the Wichita [P]olice [D]epartment affidavits." Turner alleged that appellate counsel was ineffective for failing to brief any issues on lesser included offenses. As part of this argument, Turner alleged that appellate counsel failed to argue in the direct appeal that trial counsel was ineffective for failing to request jury instructions for lesser included offenses. Turner also argued that appellate counsel was ineffective for failing to make a sufficiency of the evidence argument in his direct appeal relating to each of his convictions. Finally, Turner alleged that appellate counsel was ineffective "for failing to bring up any issues in petitioner's brief about trial counsel's fraud[u]lent statements and/or inconsistent testimony" he alleged his trial counsel gave during the hearing on Turner's posttrial motion. The district court summarily denied Turner's K.S.A. 60-1507 motion. ANALYSIS DID THE DISTRICT COURT ERR IN SUMMARILY DENYING TURNER'S K.S.A. 60-1507 MOTION? Turner argues that the district court erred by summarily dismissing his K.S.A. 60- 1507 motion without granting an evidentiary hearing. 4 Standard of Review and Legal Principles A district court facing a K.S.A. 60-1507 motion has three options: "'"(1) The court may determine that the motion, files, and case records conclusively show the prisoner is entitled to no relief and deny the motion summarily; (2) the court may determine from the motion, files, and records that a potentially substantial issue exists, in which case a preliminary hearing may be held. If the court then determines there is no substantial issue, the court may deny the motion; or (3) the court may determine from the motion, files, records, or preliminary hearing that a substantial issue is presented requiring a full hearing."' [Citations omitted.]" State v. Adams, 311 Kan. 569, 578, 465 P.3d 176 (2020). When the district court summarily denies a K.S.A. 60-1507 motion, an appellate court conducts a de novo review to determine whether the motion, files, and records of the case conclusively establish that the movant is not entitled to relief. Beauclair v. State, 308 Kan. 284, 293, 419 P.3d 1180 (2018). This court owes no deference to the district court's decision. Bellamy v. State, 285 Kan. 346, 354, 172 P.3d 10 (2007). The movant bears the burden of establishing entitlement to an evidentiary hearing. To meet this burden, a movant's contentions must be more than conclusory, and either the movant must set forth an evidentiary basis to support those contentions or the basis must be evident from the record. Thuko v. State, 310 Kan. 74, 80, 444 P.3d 927 (2019). Discussion To prevail on a claim of ineffective assistance of counsel, a criminal defendant must establish: (1) that the performance of defense counsel was deficient under the totality of the circumstances, and (2) that the deficient performance prejudiced the defendant. Sola-Morales v. State, 300 Kan. 875, 882, 335 P.3d 1162 (2014) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 [1984]). 5  To demonstrate deficient performance under the first prong, "'the defendant must show that counsel's representation fell below an objective standard of reasonableness.'" Khalil-Alsalaami v. State, 313 Kan. 472, 485, 486 P.3d 1216 (2021) (quoting Strickland, 466 U.S. at 688). A court considering a claim of ineffective assistance of counsel must strongly presume that defense counsel's conduct fell within the wide range of reasonable professional assistance. Khalil-Alsalaami, 313 Kan. at 486. The second prong of the Strickland analysis requires the defendant to establish that defense counsel's deficient performance was prejudicial. "'To show prejudice, the defendant must show a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.'" Haddock v. State, 282 Kan. 475, 512-13, 146 P.3d 187 (2006). Applying these standards, we address each of Turner's ineffective assistance of counsel claims in turn. Claims Against Posttrial Counsel Shortly after his jury trial, Turner filed a motion claiming that his trial counsel was ineffective. A posttrial attorney was appointed to represent Turner, and at a hearing on the motion, both Turner and trial counsel testified. At the conclusion of the hearing, the district court denied the motion. In his K.S.A. 60-1507 motion, Turner alleged posttrial counsel was deficient in his representation because he failed to subpoena the State's witnesses to testify during the hearing on Turner's motion. On appeal, Turner claims that the district court erred in summarily denying his motion because he has alleged facts which if true would support a 6 claim for relief. Yet neither Turner's original motion nor his brief on appeal names any witness or states what the expected testimony of any witness would be. We agree with the State that Turner's claims against posttrial counsel are conclusory. As the State points out, Turner failed to set forth any specific facts in support of his claim. Turner bears the burden of alleging "facts sufficient to warrant a hearing. If no substantial issues of fact are presented by the motion, the district court is not required to conduct an evidentiary hearing." Moncla v. State, 285 Kan. 826, Syl. ¶ 1, 176 P.3d 954 (2008). Turner was required to "make more than conclusory contentions and must state an evidentiary basis in support of the claims or an evidentiary basis must appear in the record." Swenson v. State, 284 Kan. 931, 938, 169 P.3d 298 (2007). Here, Turner merely stated in his motion that posttrial counsel was deficient because he failed to subpoena the prosecution's witnesses to testify about "the information in the complaint and the Wichita [P]olice [D]epartment affidavits." But Turner fails to name any witness, state the nature of their expected testimony, or explain why that testimony would have made a difference in his case. Turner's allegations fail to present any substantial issues of fact, and therefore, the district court did not err in denying Turner an evidentiary hearing on his claims against posttrial counsel. Moncla, 285 Kan. 826, Syl. ¶ 1. Claims Against Appellate Counsel In his memorandum supporting his K.S.A. 60-1507 motion, Turner argued that appellate counsel provided ineffective assistance during his direct appeal by (1) failing to brief issues related to lesser included offenses; (2) failing to brief insufficiency of the evidence; and (3) failing to address Turner's assertion that trial counsel made fraudulent statements and/or gave inconsistent testimony during the hearing on Turner's motion for new trial. 7 Lesser Included Offenses In his K.S.A. 60-1507 motion, Turner argued that appellate counsel was ineffective because he "did not brief any issues on all lesser included offenses" even though there "was evidence to establish all lesser included offenses." Turner also stated that appellate counsel was obligated to raise an ineffective assistance of counsel claim against trial counsel "for not filing any jury instructions on all lesser included offenses." Turner claimed that appellate counsel's failures "violated petitioners constitutional right to due process and that prejudiced and deprived him the right to a fair trial." Notably, Turner did not state what lesser included offenses appellate counsel should have discussed in his appellate brief, or what lesser included offenses the jury should have been instructed on at trial. Turner's claims in this category fail because they are again conclusory. A panel of our court considered a similar situation in Kelley v. State, No. 118,132, 2018 WL 6253053, at *2 (Kan. App. 2018) (unpublished opinion). Like here, Kelley appealed from the summary dismissal of his K.S.A. 60-1507 motion. Kelley's motion alleged ineffective assistance of his trial counsel for "'failing to request lesser included offense.'" 2018 WL 6253053, at *1. The panel noted that Kelley had failed to offer any specific information in support of his claim. "However, Kelley did not offer any facts in his motion to support this allegation. Likewise, he failed to identify the lesser included offense to which he was referring." 2018 WL 6253053, at *1. The panel affirmed the district court's summary denial of Kelley's motion, finding: "Here, a review of the K.S.A. 60-1507 motion filed by Kelley reveals that it only included vague conclusory allegations without factual support. As indicated above, although Kelley claimed in his motion that his trial counsel failed to request a lesser included offense instruction, he did not identify the lesser included offense to which he was referring." 2018 WL 6253053, at *2. 8  The panel concluded "that Kelley failed to set forth an evidentiary basis to support the conclusory allegations contained in his K.S.A. 60-1507 motion." 2018 WL 6253053, at *2. Similarly, Turner has only vaguely argued that appellate counsel should have pursued the issue of lesser included offenses within his appeal. But Turner did not state in his motion what lesser included offenses applied under the facts of his case, and why instructions on those offenses would have been both legally and factually appropriate. See State v. Plummer, 295 Kan. 156, Syl. ¶ 1, 283 P.3d 202 (2012) (reviewing instructional error requires consideration of whether the instruction was both legally and factually appropriate). Moreover, an instruction on a lesser included offense is not required in every case. The instruction is required if there is "substantial evidence upon which the defendant might reasonably have been convicted of the lesser offense." State v. Cheeks, 258 Kan. 581, 589-90, 908 P.2d 175 (1995). Turner has failed to point out any evidence in his underlying case that would have supported a lesser included offense instruction. And while Turner's K.S.A. 60-1507 motion broadly alleged prejudice by stating appellate counsel's ineffective assistance "violated petitioners constitutional right to due process and that prejudiced and deprived him the right to a fair trial," Turner did not explain why. Turner's appellate brief in this matter similarly fails to allege what lesser included offenses should have been submitted to the jury, and it does not allege that Turner was prejudiced by such a failure. "Issues not briefed are deemed waived or abandoned." State v. Davis, 313 Kan. 244, 248, 485 P.3d 174 (2021). Turner's brief simply argues that he was entitled to an evidentiary hearing, but an evidentiary hearing was not required here because Turner failed to allege any substantial issues of fact. Moncla, 285 Kan. 826, Syl. ¶ 1. The district court did not err in summarily denying Turner's claim that appellate counsel was deficient based on his failure to address lesser included offenses within Turner's appeal. 9 Sufficiency Turner next argues that appellate counsel was ineffective because he failed to argue in Turner's direct appeal that the evidence was insufficient to support each of Turner's convictions. Turner reasons that "had it not been for appellate counsel failure to raise a significant and obvious issue, the failure could be viewed as deficient performance, if an issue which was not raised may have resulted in a reversal of the conviction, or an order for a new trial, the failure was prejudice." We begin our evaluation of Turner's claim by determining whether appellate counsel's "'representation fell below an objective standard of reasonableness.'" Khalil- Alsalaami, 313 Kan. at 485. First, we note that in his K.S.A. 60-1507 motion, Turner failed to explain why the evidence was insufficient to support each of his convictions. Turner has the burden of proof to allege substantial facts that would require an evidentiary hearing. Moncla, 285 Kan. 826, Syl. ¶ 1. Because Turner failed to provide an evidentiary basis as to why the evidence was not sufficient to support each of his convictions, his claims remain conclusory. Swenson, 284 Kan. at 938. Turner's brief in this appeal also fails to argue why the evidence was insufficient to support his convictions. Instead, Turner continues to argue that because the record does not demonstrate that Turner was not entitled to relief, an evidentiary hearing was required. But that argument ignores the fact that Turner was required to allege "facts sufficient to warrant a hearing." Moncla, 285 Kan. 826, Syl. ¶ 1. Because no substantial issues of fact were presented in Turner's motion, the district court was not required to conduct an evidentiary hearing. 10  Second, our review of the record shows that there was no evidentiary basis to support Turner's claims. Appellate counsel was precluded from pursuing claims that lacked merit. A "failure to raise an issue on direct appeal is not per se ineffective assistance. 'Conscientious counsel should only raise issues on appeal which, in the exercise of reasonable professional judgment, have merit.' [Citation omitted.]" Miller v. State, 298 Kan. 921, 932, 318 P.3d 155 (2014). Turner has not specifically alleged why there was insufficient evidence to support each of his convictions. But in Turner's direct appeal, a panel of our court determined the evidence against Turner was significant. The panel first considered the strength of the evidence against Turner in the context of whether failing to give a self-defense instruction amounted to reversible error. In finding no clear error requiring reversal, the panel found the evidence against Turner was "overwhelming." Turner, 2022 WL 15527878, at *10. Later in the opinion, after finding Turner's trial counsel had been ineffective by failing to request a self-defense instruction, the panel found Turner did not suffer prejudice "given the overwhelming evidence against him." Turner, 2022 WL 15527878, at *13. The Kansas Supreme Court agreed with the characterization of the strength of the evidence. "As the Court of Appeals observed, there was a significant amount of evidence weighing directly against Turner's defense." Turner, 318 Kan. at 173-78. Turner does not point to a particular element of any offense or explain why a sufficiency challenge would have resulted in reversal. Appellate counsel was precluded from pursuing meritless claims. Miller, 298 Kan. at 932. We are required to presume that appellate counsel's conduct fell within the wide range of reasonable professional assistance, and the record supports that conclusion. Khalil- Alsalaami, 313 Kan. at 486. Even if we presume that appellate counsel was somehow ineffective by failing to argue the insufficiency of evidence on direct appeal, Turner failed to allege facts in support of the second prong of the test—prejudice. To prove prejudice, Turner must show a reasonable probability that but for appellate counsel's deficient performance, "the result of the proceeding would have been different." Haddock, 282 Kan. at 513. As to prejudice, 11 Turner has made the vague claim that appellate counsel's failure "could be viewed as deficient performance," which "may have resulted in a reversal of the conviction, or an order for a new trial," and accordingly, "the failure was prejudice." Turner fails to cite any facts in support of this contention. And as we have pointed out, both a panel of this court and our Supreme Court considered the strength of the evidence against Turner within his direct appeal and found that evidence to be significant. Even assuming appellate counsel's assistance was ineffective, Turner cannot demonstrate prejudice. The district court did not err in summarily denying Turner's claim on this issue. Trial Counsel's Statements Turner also alleges that appellate counsel was ineffective "for failing to bring up any issues in petitioner's brief about trial counsel's fraud[u]lent statements and/or inconsistent testimony" Turner says occurred during the evidentiary hearing on his motion for new trial. Other than citing to several pages of the transcript from the hearing in district court, Turner does not specifically point to a particular statement of trial counsel's that he believes was fraudulent or inconsistent. The State maintains that Turner failed to establish ineffective assistance of counsel or facts warranting an evidentiary hearing. Turner's conclusory assertion that appellate counsel should have raised the issue is insufficient to establish deficient performance or prejudice. Without further identifying the specific testimony at issue and explaining how the challenge would have resulted in relief, Turner fails to demonstrate ineffective assistance of counsel. Noyce v. State, 310 Kan. 394, 398, 447 P.3d 355 (2019) (movant has burden to prove that evidentiary hearing is warranted by making more than conclusory contentions and showing that evidentiary basis exists or is available in record). 12  Additionally, Turner fails to brief his argument in this appeal and has thus abandoned his claim. See State v. Gallegos, 313 Kan. 262, 277, 485 P.3d 622 (2021). Instead, Turner continues to argue that he "alleged facts not appearing in the original record which, if true, would support a claim for relief" or at least an evidentiary hearing. But because Turner has failed to identify trial counsel's statements he believes were fraudulent or inconsistent, he has failed to allege substantial facts that would warrant an evidentiary hearing. Moncla, 285 Kan. 826, Syl. ¶ 1. Additional Issues We note that in his pro se supplemental brief, Turner argues that the district court lacked subject matter jurisdiction to hear his case. Subject matter jurisdiction challenges may be raised at any time. State v. Dunn, 304 Kan. 773, 784, 375 P.3d 332 (2016). "Our standard of review on the issue is unlimited." State v. Patton, 287 Kan. 200, 205, 195 P.3d 753 (2008). As the party alleging error, Turner bears the burden of designating a record to establish the claimed error. State v. Liles, 313 Kan. 772, 783, 490 P.3d 1206 (2021). In support of his argument that the district court lacked subject matter jurisdiction, Turner asserts violations of K.S.A. 22-2902 and K.S.A. 22-3206. K.S.A. 22-2902 generally requires a preliminary examination to be held within 14 days after the defendant's arrest or first appearance, subject to continuances for good cause. K.S.A. 22- 2902(b). Turner makes no argument that any continuance was improperly granted. The record reflects that Turner's first appearance was on August 17, 2018. The district court initially set the preliminary hearing on August 30, 2018, but it was continued to October 11, 2018, by Turner's original attorney. A change of attorney occurred, and the preliminary hearing was continued to November 20, 2018, after trial counsel was appointed. On November 20, 2018, trial counsel requested the preliminary hearing be 13 continued in order to conduct a full evidentiary hearing, and the matter was set for December 21, 2018. On December 21, 2018, the State requested its first continuance of the preliminary hearing and the district court granted the request. There is no evidence that any continuance of the preliminary hearing was granted without good cause, and in fact, most of the continuances were requested on Turner's behalf. Turner has failed to establish a violation of K.S.A. 22-2902. Turner also relies on K.S.A. 22-3206, which requires an arraignment to occur "not later than the next required day of court after the order of the magistrate binding over the defendant for trial, unless a later time is requested or consented to by the defendant and approved by the court or unless continued by order of the court." K.S.A. 22-3206(1). The record reflects that the preliminary hearing was held on February 15, 2019. The district court found probable cause, bound Turner over for trial, granted the State leave to amend the information, and scheduled arraignment for March 14, 2019. The record does not establish that the short delay in arraignment was without good cause. Even if we were to determine that either or both of the delays cited by Turner constituted a violation of a statutory requirement, Turner has not shown such a violation would deprive the district court of subject matter jurisdiction. Kansas appellate courts have repeatedly explained that the time limits for preliminary examinations and arraignments are directory rather than mandatory. See State v. Fink, 217 Kan. 671, 676, 538 P.2d 1390 (1975); see also State v. Rivera, 277 Kan. 109, 112, 83 P.3d 169 (2004). Thus, the alleged statutory violations do not establish that the district court lacked subject matter jurisdiction. Turner next contends that the district court violated K.S.A. 22-3401 and K.S.A. 22-3402, which govern the time in which a defendant must be brought to trial. Turner argues that the delay between his preliminary examination and arraignment occurred in violation of these statutes. K.S.A. 22-3401 states: "All persons charged with crime shall 14 be tried without unnecessary delay. Continuances may be granted to either party for good cause shown." K.S.A. 22-3402(a) requires a defendant who is held in custody solely on the pending charges to be brought to trial within 150 days after arraignment. Neither of these statutes address the timing of a preliminary examination or arraignment. The record shows that Turner was arraigned on March 14, 2019. His trial was initially scheduled for May 13, 2019, but the district court continued the trial due to court unavailability. The trial was held on August 5, 2019, which was 144 days after Turner's arraignment. Turner's trial was therefore commenced within the 150-day period described in K.S.A. 22-3402(a). Moreover, any delay that occurred prior to arraignment does not fall within the purview of K.S.A. 22-3401 and 22-3402(a) because the time counted toward the statutory speedy trial deadline does not begin to run until after arraignment. Finally, we note that Turner's K.S.A. 60-1507 motion and memorandum in support raised a number of additional claims, but these claims were not included in either Turner's appellate brief or his pro se brief. Issues not adequately briefed are deemed waived or abandoned. Gallegos, 313 Kan. at 277. Based on our de novo review of the motion, files, and court records, we conclude that Turner is not entitled to relief. The district court did not err in summarily denying Turner's K.S.A. 60-1507 motion. Affirmed. 15