Wilmer v. State

NOT DESIGNATED FOR PUBLICATION
No. 124,838
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
CLAYTON DEION WILMER,
Appellant,
v.
STATE OF KANSAS,
Appellee.
MEMORANDUM OPINION
Appeal from Leavenworth District Court; GERALD R. KUCKELMAN, judge. Opinion filed
November 4, 2022. Affirmed.
Joseph A. Desch, of Law Office of Joseph A. Desch, of Topeka, for appellant.
Christopher Lyon, assistant county attorney, Todd Thompson, county attorney, and Derek
Schmidt, attorney general, for appellee.
Before CLINE, P.J., ATCHESON and COBLE, JJ.
CLINE, J.: Clayton Deion Wilmer appeals the district court's denial of his K.S.A.
60-1507 motion because he claims the court erred by not appointing substitute counsel
before trial. Although this issue ordinarily cannot be raised in a K.S.A. 60-1507 motion,
Wilmer asserts that his counsel on direct appeal was ineffective for failing to mention it,
constituting an exceptional circumstance which allows our consideration of the issue.
We find the district court correctly denied Wilmer's motion because he failed to
establish his dissatisfaction with trial counsel was justified. And since he has not shown
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appellate counsel was ineffective or that he was prejudiced by counsel's failure to raise
this issue on direct appeal, he is not entitled to relief under K.S.A. 60-1507.
FACTS
Wilmer shot a passenger in a vehicle driven by the mother of Wilmer's child,
while that child, who was only a few months old, was in the backseat. State v. Wilmer,
No. 117,080, 2018 WL 1127679, at *1 (Kan. App. 2018) (unpublished opinion). A jury
convicted Wilmer of aggravated assault, criminal discharge of a firearm at an occupied
vehicle, criminal possession of a firearm, and aggravated endangering of a child.
Motion to withdraw
About six months before trial, Wilmer was sentenced in an unrelated matter by the
same judge who later presided over Wilmer's jury trial. The attorney appointed to
represent Wilmer in the criminal case underlying this appeal, Debra Snider, was also
appointed to represent him in that matter. At the sentencing hearing, the district court
took up a motion to withdraw from Snider after she said Wilmer had requested new
counsel the day before. Snider told the court that her communications with Wilmer had
broken down to the point where neither of them believed it was in Wilmer's best interests
for her to continue to represent him. She did not know whether he wanted new counsel
for the unrelated matter, but he had requested new counsel in the case underlying this
appeal.
When the district court asked Wilmer if he wanted Snider to withdraw in the
unrelated matter, Wilmer said Snider could continue representing him in that matter if she
was willing. So the court proceeded with sentencing in the unrelated matter, taking up
arguments from Snider and the prosecutor about defense objections to Wilmer's criminal
history, Snider's departure motion, and Wilmer's sentencing requests.
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After the district court pronounced Wilmer's sentence, it took up Snider's motion
to withdraw. Snider explained that she had relayed a plea offer to Wilmer the day before
at which point their communications had broken down. She repeated that Wilmer had
then asked to be assigned new counsel and said she joined in that request.
The district court denied the motion, noting Wilmer had been dissatisfied with
each of his three appointed trial attorneys, even filing his own motions despite being
represented by counsel. The court did not believe Wilmer would ever find an attorney
that would satisfy him. It then explained:
"Miss Snider is a very experienced attorney. She has been involved in a number
of trials with this Court and other jurisdictions, handling very serious cases similar to this
case here. I can't appoint lawyers to hold your hand, Mr. Wilmer, and just be there all the
time to talk with you and get you through this process. I can only provide an attorney
that's qualified and experienced in the nature–—to rise to the level of the nature of the
offense that you're charged with.
"I think Miss Snider has worked very hard on your case. I think the fact that you
may disagree with some things, if the–—but I don't know of any reasons she could not
perform well even if your relationship is strained, because I think it's going to be strained
with any lawyer that you have. So at this point, the motion to withdraw is denied."
Snider responded, "Judge, may I please note for the record that we are literally
unable to effectively communicate at this point?" The district judge responded that they
could use pen and paper to communicate suggestions and questions. Additionally, the
judge stated, "If I just keep appointing lawyers, we'll just keep dragging this out, which
does no one any good."
At that point, Wilmer complained about his lack of communication with Snider.
He said that he only saw Snider the day before or the day of a court appearance. He
claimed other inmates got letters twice a week from their attorneys, but none of his
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appointed attorneys had done that. Then Snider expressed concern for her professional
reputation and potential issues involving her liability insurance if she continued to
represent Wilmer. Even so, Snider's motion to withdraw was denied.
Wilmer's direct appeal
After Wilmer was convicted, he appealed his sentence through different counsel.
A panel of this court vacated the aggravated assault conviction due to a jury instruction
error but affirmed the rest of the convictions. Wilmer, 2018 WL 1127679, at *1.
Wilmer's K.S.A. 60-1507 motion
Wilmer then filed a timely pro se motion for habeas corpus relief under K.S.A. 60-
1507. In his motion, Wilmer asserted several reasons why both his trial and appellate
counsel had provided ineffective representation. The district court appointed counsel for
Wilmer and granted Wilmer an evidentiary hearing. Before the hearing, Wilmer filed a
pro se supplement to his motion, alleging additional defects in trial counsel's
representation. And his appointed attorney filed a supplement as well, articulating even
more defects in representation, including the court's failure to adequately inquire into a
potential conflict of interest between Snider and Wilmer when Snider moved to
withdraw. This last issue is the only one Wilmer raises on appeal.
Both Snider and Wilmer testified at the evidentiary hearing on the various
complaints. As for her request to withdraw, Snider testified she made the request because
Wilmer sent a letter to the district court asking to have her removed and alleging she was
ineffective as counsel. She did not agree she was ineffective but asked to withdraw
because that is what Wilmer wanted. She noted, "[W]hen a client puts it in writing and
asks to have you removed, then I think it needs to be brought forward to the judge. . . .
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And in order to try to give my client the best opportunity to have the—the representation
that he wanted, I asked to be allowed to withdraw."
Snider denied having problems communicating with Wilmer but acknowledged
they had differences of opinion on strategy. She testified she had adequate time to
communicate with him before trial, and probably met with him more often than she
normally met with clients in custody. Since she and Wilmer had frequent disagreements
on strategy, she said it took "more than an average amount of meeting and discussing to
try to come to a mutually agreeable strategy and direction going forward in the case."
After her motion to withdraw was denied, she could not recall Wilmer requesting her to
be removed again.
Snider felt she effectively represented Wilmer despite their communication issues.
She pointed out her successful trial results, including the district court's dismissal of the
aggravated assault charge against the child's mother after the close of evidence. And
despite aggravated assault not being a lesser included offense of attempted first-degree
murder, the jury was instructed on attempted voluntary manslaughter and aggravated
assault as lesser included offenses of attempted first-degree murder and convicted
Wilmer of the lesser offense of aggravated assault. Wilmer, 2018 WL 1127679, at *1.
Wilmer testified there was a lack of communication between Snider and him,
claiming they spoke only 5 or 10 minutes before any court hearing. Wilmer was not
satisfied with Snider's representation and believed their relationship was contentious. But
he admitted he was successful at trial, beating the attempted murder charge and having
another charge dismissed.
The district court denied Wilmer's motion, noting it was within the court's
discretion to determine whether Wilmer's dissatisfaction with his court appointed counsel
warranted the discharge of Snider's services and appointment of new counsel, and
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Wilmer did not establish justifiable dissatisfaction. The court also determined Wilmer did
not establish trial and appellate counsel's representation was defective or that he had
suffered prejudice from that representation.
Wilmer appeals the district court's denial of his K.S.A. 60-1507 motion. But the
only issue he raises on appeal is the court's denial of Snider's motion to withdraw.
ANALYSIS
Generally, a habeas corpus proceeding may not replace a direct appeal to correct
mere trial errors. An exception exists, however, when constitutional rights are implicated,
and exceptional circumstances excuse the failure to raise the issue on direct appeal.
Supreme Court Rule 183(c)(3) (2022 Kan. S. Ct. R. at 243); State v. Barnes, 37 Kan.
App. 2d 136, Syl. ¶ 9, 149 P.3d 543 (2007).
Wilmer claims his appellate counsel was ineffective in failing to raise the district
court's refusal to appoint substitute counsel in his direct appeal. We have found such
ineffectiveness can rise to the level of exceptional circumstances, justifying consideration
of the issue under K.S.A. 60-1507. Cosby v. State, No. 109,880, 2014 WL 4435848, at *4
(Kan. App. 2014) (unpublished opinion).
To establish a claim of ineffective assistance of counsel, the movant must establish
counsel provided objectively deficient representation and the deficient representation
prejudiced the proponent's legal proceedings—whether those proceedings involved a
criminal trial or an appeal (the so-called "Strickland test"). See Strickland v. Washington,
466 U.S. 668, 688, 693, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Dinkel, 314
Kan. 146, 148, 495 P.3d 402 (2021) (trial counsel); Khalil-Alsalaami v. State, 313 Kan.
472, 526, 486 P.3d 1216 (2021) (appellate counsel). Wilmer bears the burden of
establishing both parts of the Strickland test. See Mundy v. State, 307 Kan. 280, 296, 408
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P.3d 965 (2018). If Wilmer can establish that appellate counsel's failure to raise the issues
on his direct appeal constituted deficient representation and prejudiced his trial or direct
appeal, the merits of his claim are properly before this court, even if the claim should
have been raised in Wilmer's direct criminal proceedings.
"[T]he failure of appellate counsel to raise an issue on appeal is not, per se,
ineffective assistance of counsel." Jenkins v. State, 32 Kan. App. 2d 702, 704, 87 P.3d
983 (2004).
"In an appeal from a criminal conviction, appellate counsel should carefully
consider the issues, and those that are weak or without merit, as well as those which
could result in nothing more than harmless error, should not be included as issues on
appeal. Likewise, the fact that the defendant requests such an issue or issues to be raised
does not require appellate counsel to include them. Conscientious counsel should only
raise issues on appeal which, in the exercise of reasonable professional judgment, have
merit." Baker v. State, 243 Kan. 1, 10, 755 P.2d 493 (1988).
Thus, Wilmer's appellate counsel need only have raised meritorious issues. This
means if the district court did not err, or if the denial caused Wilmer no prejudice, then
the issue lacked merit and Wilmer's appellate counsel's representation was not deficient.
The district court did not err when failing to appoint substitute counsel.
As noted above, the standard of review for the merits of Wilmer's claim is abuse of
discretion. State v. McGee, 280 Kan. 890, 894, 126 P.3d 1110 (2006). And Wilmer bears
the burden of establishing it. State v. Hulett, 293 Kan. 312, 319, 263 P.3d 153 (2011). A
judicial action constitutes an abuse of discretion if (1) it is arbitrary, fanciful, or
unreasonable; (2) stems from an error of law; or (3) stems from an error of fact. State v.
Levy, 313 Kan. 232, 237, 485 P.3d 605 (2021).
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Both the federal and Kansas Constitutions guarantee the right of criminal
defendants to have the assistance of counsel. State v. Brown, 300 Kan. 565, 574, 331 P.3d
797 (2014). Criminal defendants also have the right to effective assistance of counsel.
State v. Galaviz, 296 Kan. 168, 174, 291 P.3d 62 (2012). That is not to say, however, that
defendants have the right to choose which lawyer will be appointed to represent them.
Brown, 300 Kan. at 575.
If a defendant is unhappy with their appointed counsel and is seeking substitute
counsel, then they must show justifiable dissatisfaction:
"[T]o warrant substitute counsel, a defendant must show 'justifiable dissatisfaction' with
appointed counsel. Justifiable dissatisfaction includes a showing of a conflict of interest,
an irreconcilable conflict, or a complete breakdown in communications between counsel
and the defendant. But ultimately, '"[a]s long as the trial court has a reasonable basis for
believing the attorney-client relation has not deteriorated to a point where appointed
counsel can no longer give effective aid in the fair presentation of a defense, the court is
justified in refusing to appoint new counsel."' [Citations omitted.]" State v. Breitenbach,
313 Kan. 73, 90, 483 P.3d 448, cert. denied 142 S. Ct. 255 (2021).
And once a defendant has shown justifiable dissatisfaction, the district court must inquire
into the attorney-client relationship. Brown, 300 Kan. at 575.
Importantly, if "the defendant's dissatisfaction emanates from a complaint that
cannot be remedied or resolved by the appointment of new counsel . . . the defendant has
not shown the requisite justifiable dissatisfaction." Breitenbach, 313 Kan. at 90-91. In
other words, the substitute must not encounter the same problem as the first appointed
counsel. The focus of the justifiable dissatisfaction inquiry is the adequacy of counsel in
the adversarial process, not the accused's relationship with his or her attorney. State v.
Staten, 304 Kan. 957, 972, 377 P.3d 427 (2016).
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In Wilmer's case, Snider was Wilmer's third appointed trial counsel before his
criminal trial. And he expressed discontent with each of them. This persistent disapproval
suggests Wilmer's complaint would not be remedied by appointment of a new attorney.
"[U]ltimately, as long as the trial court has a reasonable basis for believing the attorney-
client relation has not deteriorated to a point where appointed counsel can no longer give
effective aid in the fair presentation of a defense, the court is justified in refusing to
appoint new counsel." State v. Bryant, 285 Kan. 970, Syl. ¶ 14, 179 P.3d 1122 (2008).
Wilmer has alleged no trial error caused by his alleged communication issues with
Snider. In fact, he admits she was successful in her representation of him. As noted
above, Snider successfully moved for acquittal of the charge of aggravated assault against
the child's mother and the State withdrew the charge of aggravated battery of the
passenger as an alternative to attempted first-degree murder. The jury also convicted
Wilmer of a level 7 person felony instead of a level 1 person felony when it convicted
him of aggravated assault of the passenger instead of attempted first-degree murder.
Wilmer, 2018 WL 1127679, at *1; see K.S.A. 2021 Supp. 21-5412(e)(2); K.S.A. 2021
Supp. 21-5301(c)(1); K.S.A. 2021 Supp. 21-5402(a)(1), (b).
These successful outcomes evidence that Snider was able to effectively represent
Wilmer despite any claimed communication issues and that Wilmer suffered no prejudice
from her continued representation. Further, in the six months between Snider's motion
and trial, the record reveals no additional complaints from Wilmer about Snider's
representation. Nor could Snider remember Wilmer requesting her removal again.
As in Cosby, the district court found no merit in the complaint of a breakdown in
communication and believed instead that Snider could and was effectively representing
Wilmer despite their strained relationship. See 2014 WL 4435848, at *7. The district
court's finding that Wilmer was not justifiably dissatisfied with Snider was not arbitrary,
fanciful, or unreasonable, nor did it stem from a legal or factual error. As a result,
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appellate counsel's failure to raise this issue on direct appeal was not defective
representation. The district court did not err in denying Wilmer's habeas corpus motion
on this issue.
Affirmed.
***
ATCHESON, J., concurring: I concur in the outcome we reach today affirming the
Leavenworth County District Court's denial of Defendant Clayton Deion Wilmer's habeas
corpus challenge to the jury verdicts finding him guilty of discharging a firearm into an
occupied vehicle and other crimes. Wilmer's quest for relief from the convictions under
K.S.A. 60-1507 fails not because the district court properly handled his pretrial motion
for appointment of a new lawyer—it didn't—but because he cannot show the result
ultimately compromised his defense at trial. Wilmer, therefore, is entitled to no relief in
this collateral attack on the convictions. In short, fortuity overtook the district court's
fumbling of the pretrial motion. And at this juncture, no harm equates to no foul.
Wilmer personally drafted the pretrial motion to replace Debra Snider as his court-
appointed lawyer. She was the third lawyer to represent him in this case and had been
appointed to represent him in another case in Leavenworth County that was then set for
sentencing. When a criminal defendant formally states he or she wants to replace an
appointed lawyer, the district court typically ought to conduct a preliminary inquiry to
determine if the request has a colorable basis. State v. Brown, 300 Kan. 565, 575, 331
P.3d 797 (2014). A defendant should be permitted a replacement lawyer for "'justifiable
dissatisfaction,'" entailing an actual conflict of interest on the part of his or her present
lawyer, an irreconcilable disagreement with the lawyer, or a complete breakdown in
communication. State v. Pfannenstiel, 302 Kan. 747, 759-60, 765, 357 P.3d 877 (2015).
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We review a district court's denial of a motion for a new lawyer for abuse of
judicial discretion. 302 Kan. at 760-61. A district court exceeds that discretion if it rules
in a way no reasonable judicial officer would under the circumstances, if it ignores
controlling facts or relies on unproven factual representations, or if it acts outside the
legal framework appropriate to the issue. See State v. Darrah, 309 Kan. 1222, 1227, 442
P.3d 1049 (2019); State v. Ward, 292 Kan. 541, Syl. ¶ 3, 256 P.3d 801 (2011). The party
asserting an abuse of judicial discretion bears the burden of proving the point. State v.
Thomas, 307 Kan. 733, 739, 415 P.3d 430 (2018); Gannon v. State, 305 Kan. 850, 868,
390 P.3d 461 (2017).
Here, Wilmer sought to oust his third appointed lawyer. As the district court
correctly observed, criminal defendants sometimes make complaints about their
appointed lawyers as a device to delay the trial of their cases and, in so doing, to garner
some perceived tactical advantage. See Pfannenstiel, 302 Kan. at 764. The district court
imputed that sort of motive to Wilmer, especially since he had already gone through two
lawyers and simply asserted a generic complaint that Snider wasn't meeting or otherwise
communicating with him often enough about the upcoming trial. Moreover, Wilmer told
the district court he wanted Snider to continue representing him in the other case,
suggesting something other than a substantial dissatisfaction with Snider prompted his
request.
Nonetheless, at the hearing, Snider informed the district court that in her view her
professional relationship with Wilmer had so "broken down" they could no longer
"communicate effectively." For that reason, she asked the district court to appoint a
substitute lawyer for Wilmer. Without inquiring about the genesis of the collapse or
whether Snider considered the breakdown irreconcilable, the district court hastily denied
the lawyer's request and suggested she and Wilmer could communicate by writing notes
to each other. The response was perfunctory, simplistic, and inadequate.
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The two issues presented to the district court at the hearing were different:
Wilmer asserted he and Snider were not talking often enough about the case; Snider told
the district court that when they did talk, they no longer interacted in a constructive way.
The district court failed to delve into Snider's contention at the hearing on the motion
and, thus, lacked a sufficient factual basis to deny her request out of hand. The district
court, therefore, abused its discretion and committed error. But that doesn't translate into
an error necessarily mandating relief for Wilmer now in a 60-1507 proceeding. The
district court's mistaken denial of a motion to appoint a new lawyer for a criminal
defendant may be excused as harmless, especially when the mistake entails a failure to
sufficiently inquire and the issue revolves around an ostensible breakdown in
communication. See United States v. Senke, 986 F.3d 300, 314-15 (3d Cir. 2021); United
States v. Horton, 693 F.3d 463, 467 (4th Cir. 2012).
In this 60-1507 proceeding, Wilmer argues that the lawyer handling the appeal of
the direct criminal case provided constitutionally inadequate representation by failing to
brief the district court's denial of the pretrial motion for appointment of substitute
counsel. To succeed, Wilmer must show both that his legal representation in the direct
appeal "fell below an objective standard of reasonableness" guaranteed by the right to
counsel in the Sixth Amendment to the United States Constitution and that absent the
substandard lawyering there is "a reasonable probability" the outcome in the criminal
case would have been different. Strickland v. Washington, 466 U.S. 668, 687-88, 694,
104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Phillips, 312 Kan. 643, 676, 479 P.3d
176 (2021).
A lawyer is not constitutionally required to raise every possible issue on direct
appeal in a criminal case and, rather, is expected to focus on those with some reasonable
chance of success, while discarding those with insufficient legal or factual support. See
Baker v. State, 243 Kan. 1, 9-10, 755 P.2d 493 (1988); Warren v. State, No. 123,547,
2022 WL 816313, at *3 (Kan. App. 2022) (unpublished opinion). Here, the record on
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direct appeal would not have supported any substantive relief for Wilmer based on the
denial of the pretrial motion for a new lawyer, since the district court failed to sufficiently
inquire into Snider's stated concerns about the deteriorated communications. At best, the
remedy would have required a remand to the district court to conduct an expanded
hearing to flesh out those concerns. See State v. Moyer, 306 Kan. 342, 383-84, 410 P.3d
71 (2017). That inquiry may have established good grounds for denying Snider's request
to be replaced because of her eroding professional relationship with Wilmer. For
example, Snider ultimately may have attributed the breakdown to Wilmer's deliberate and
obstinate refusal to interact with her—a circumstance the district court could have viewed
as nothing more than an improper second front in Wilmer's own concerted effort to delay
the trial. Or Snider might have agreed that in response to some targeted questioning from
the district court she would have conceded she likely could repair the relationship
sufficiently to represent Wilmer adequately at trial. That sort of testimony would have
shown the district court reached the right result in denying the motion for a new lawyer,
albeit through an impermissibly truncated process.
But even if Snider were to testify that at the time of the hearing on the motion for a
new lawyer, she would have categorically told the district court her professional
relationship with Wilmer had been broken beyond repair, that would not itself warrant
reversing Wilmer's convictions and granting him a new trial. Wilmer would still have to
show that Snider's representation of him at trial was substantially compromised as a result
of the deteriorated lawyer-client relationship. That is, Wilmer would have to establish the
denial of the motion for a new lawyer resulted in a constitutionally inadequate trial.[*]
[*] The analysis would be different if a defendant sought to replace an appointed
lawyer laboring under an active conflict of interest and the district court declined to do
so. Depending on the nature of the conflict, a defendant might not have to show any
actual prejudice in his or her representation at trial or only that he or she might have
received a materially better defense absent the conflict. See State v. Moyer, 309 Kan. 268,
283-84, 434 P.3d 829 (2019); Fuller v. State, 303 Kan. 478, 487, 363 P.3d 373 (2015);
13
Sola-Morales v. State, No. 118,451, 2019 WL 6041443, at *6-7 (Kan. App. 2019)
(unpublished opinion). Here, Snider did not have a conflict of interest.
To that end, the lawyer handling Wilmer's direct appeal could have requested a
remand to the district court for a Van Cleave hearing to explore the breakdown in
communication and whether Snider had been constitutionally ineffective during the trial
as a result. See State v. Hilyard, 316 Kan. 326, 338, 515 P.3d 267 (2022); State v. Van
Cleave, 239 Kan. 117, 120-21, 716 P.2d 580 (1986). But that didn't happen. A successful
request for a Van Cleave hearing would have accelerated the review of Snider's
representation of Wilmer leading up to and during the trial. It would have replicated the
evidentiary hearing the district court did hold as part of Wilmer's 60-1507 proceeding.
See Brown v. State, No. 119,063, 2018 WL 6715411, at *8 n.1 (Kan. App. 2018)
(unpublished opinion) (Atcheson, J., concurring).
At the 60-1507 hearing, Snider testified that she capably defended Wilmer ahead
of and at the jury trial. And implicit in that testimony, Snider necessarily suggested she
was able to communicate sufficiently with Wilmer, although the two apparently
disagreed on certain strategic points. As outlined in the majority opinion, Snider achieved
an objectively beneficial result for Wilmer by securing a not guilty verdict on the
attempted murder charge—the most serious lodged against him—and dismissal of an
aggravated assault charge.
More to the point here, Wilmer offered no evidence that Snider failed to do
something a reasonable lawyer would have done or did something a reasonable lawyer
would not have in conducting the trial. Likewise, he did not show Snider refused to call
witnesses who would have advanced the defense or otherwise ignored particular
exculpatory evidence. In short, Wilmer could not establish that Snider's representation of
him fell below the constitutional standard required under Strickland. Nor could he show
that the ostensible breakdown in communication Snider referred to during the hearing on
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his motion for a new lawyer caused demonstrable prejudice or diminution in the defense
Snider presented at trial—thereby falling well short of establishing the second
requirement for relief under Strickland. On appeal, Wilmer essentially argues that the
district court's error in ruling on the pretrial motion for a new lawyer in and of itself
requires reversal of his convictions, so the lawyer handling the direct appeal was
constitutionally inadequate for not raising the point. But, as I have explained, the premise
underlying the argument is faulty and incorrectly treats the district court's ruling on the
pretrial motion as a structural error requiring reversal without any showing of prejudice
when it is not. See Boldridge v. State, 289 Kan. 618, 627-28, 215 P.3d 585 (2009)
(outlining nature of structural error); State v. Reed, No. 120,613, 2021 WL 1228097, at
*4 (Kan. App. 2021) (unpublished opinion) ("A structural error requires the reversal of
any convictions regardless of demonstrable prejudice because it impermissibly corrupts
the proceedings in a way that defies review for harmlessness.").
In sum, Wilmer has not demonstrated that any purported deterioration in
communications with Snider deprived him of either a constitutionally fair trial or
constitutionally adequate legal representation up to and during the trial. Absent such a
showing, the district court's mistake in failing to inquire sufficiently into Snider's concern
voiced at the pretrial hearing that she and Wilmer had ceased communicating effectively
amounts to a harmless error that does not call into question the outcome of the direct
criminal case. On that basis, I concur in affirming the denial of Wilmer's 60-1507 motion
attacking his convictions.
15