Reed v. State

NOT DESIGNATED FOR PUBLICATION
No. 119,484
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
WILLIE E. REED JR.,
Appellant,
v.
STATE OF KANSAS,
Appellee.
MEMORANDUM OPINION
Appeal from Wyandotte District Court; BILL KLAPPER, judge. Opinion filed March 6, 2020.
Affirmed.
Christina M. Kerls, of Kansas Appellate Defender Office, for appellant.
Kayla Roehler, assistant district attorney, Mark A. Dupree Sr., district attorney, and Derek
Schmidt, attorney general, for appellee.
Before ARNOLD-BURGER, C.J., HILL and GARDNER, JJ.
PER CURIAM: Willie E. Reed Jr. appeals the denial of his K.S.A. 60-1507 motion.
He argues that he received ineffective assistance of counsel at trial, on appeal, and in his
K.S.A. 60-1507 proceeding. Finding no reversible error, we affirm.
Factual and Procedural Background
In January 2009, Reed was charged with two counts of indecent liberties with a
child for sexually assaulting two young girls—A.R. and C.T. These charges were brought
after both girls participated in interviews at Sunflower House—a children's advocacy
1
center. The State presented videos of these interviews at Reed's trial. In both interviews,
the girls stated that they had been assaulted by Reed while they and Reed were clothed.
Reed was represented at trial by James Spies. Spies objected to the admission of
the videos as hearsay, but the district court overruled that objection. The videos were
admitted and published to the jury before the girls testified.
C.T. described the events that occurred sometime around August 2006 when Reed
was invited to her family's home to watch a football game. At some point that day, Reed
came into her bedroom while she was reading and began humping her over her clothing.
He then went to the bathroom. He then returned to her room, told her to get on the ground
so he could see what she was reading, and then humped her again. C.T. waited a couple
of weeks after the incident to tell her parents. She then wrote the incident down in her
mother's notebook. This note was admitted into evidence.
Similarly, A.R. testified regarding an incident in September 2008, when Reed was
invited to her aunt's home to attend a barbeque. While A.R. was in the backyard, Reed
put his hand on her shoulder and touched her butt. Reed then pulled her near a vent and
touched the front of his pants to her butt. She told Reed to stop and ran away from him.
She ran inside and told her aunt what had happened, then went outside and told her
brother, and then eventually told her mother. Her mother had her write down what had
happened, and this note was also admitted into evidence.
Reed testified, denying the acts that C.T. and A.R. described. His theory was, in
part, that the victims and their mothers had colluded to fabricate the charges against him.
The jury convicted Reed of both counts of aggravated indecent liberties with a
child.
2
Before sentencing, Reed filed a motion to declare Jessica's Law unconstitutional
under both the Kansas and the United States Constitutions. Reed argued that his hard 40
sentence was unconstitutionally disproportionate under the facts of his case. See State v.
Gomez, 290 Kan. 858, Syl. ¶ 9, 235 P.3d 1203 (2010). At sentencing, Reed's attorney did
not present any evidence regarding the constitutionality of Jessica's Law. After
arguments, the district court stated it was uncertain whether it should address the
constitutionality of the statute, found the issue should be decided by a higher court, and
denied Reed's motion. It made no findings specific to the facts of Reed's case, and trial
counsel requested none.
Reed had prior convictions for sexual exploitation of a child and indecent liberties
with a child. Because of that, the district court sentenced him to life in prison without
parole for 40 years under a sentencing law known as Jessica's Law.
Ronald Jurgeson represented Reed on appeal. Jurgeson argued:
• Reed's convictions were not supported by sufficient evidence;
• the trial court erred by admitting the victims' recorded statements and
handwritten notes;
• the trial court erred in allowing the prosecutor to ask questions which
pointed to Reed's postarrest silence;
• cumulative error warranted reversal; and
• Jessica's Law as applied to Reed constituted cruel and unusual punishment
under the Kansas and United States Constitutions.
Our Supreme Court found that Reed's arguments regarding the recorded
statements and the constitutionality of Jessica's Law were not preserved for appeal. State
v. Reed, 300 Kan. 494, 506-08, 513-14, 332 P.3d 172 (2014). The court did, however,
address issues regarding sufficiency of the evidence, admissibility of C.T.'s written notes,
3
commission of a Doyle violation, and cumulative error. Yet it still could not reach the
merits of Reed's argument that his sentence was unconstitutional. Even though Spies had
raised that issue at Reed's sentencing hearing, no one had ensured that the district court
made proper factual findings and conclusions of law:
"Reed ignores the fact that he neither objected to the judge's insufficient findings at the
hearing, nor subsequently filed a motion under Supreme Court Rule 165 (2013 Kan. Ct.
R. Annot. 265) or otherwise asked the sentencing judge to make factual findings.
"In State v. Seward, 289 Kan. 715, 721, 217 P.3d 443 (2009), this court made it
clear that 'a defendant who wishes to appeal on the basis of a constitutional challenge to a
sentencing statute must ensure the findings and conclusions by the district judge are
sufficient to support appellate argument, by filing of a motion invoking the judge's duty
under Rule 165, if necessary.' See Supreme Court Rule 165. Reed's sentencing took place
on October 8, 2010, and his journal entry was filed on October 12, 2010. The Seward
opinion was filed on October 2, 2009, a full year before Reed's sentencing. A remand for
factual findings is not appropriate in this case." 300 Kan. at 514.
After addressing Reed's preserved claims, the Supreme Court affirmed Reed's convictions
and sentence. 300 Kan. at 514.
Reed then filed a K.S.A. 60-1507 motion, arguing that both his trial and appellate
counsel were ineffective. John Bryant represented Reed in this proceeding. In this
motion, Reed argued that his previous attorneys were ineffective for failing to:
• make appropriate objections and requests for redactions to the Sunflower House
interviews;
• raise the issue of prosecutorial error in closing arguments; and
• request the findings of fact and conclusions of law necessary to preserve for
appellate review his constitutional challenge to his sentence.
4
The district court conducted a hearing and considered these arguments. Although
Bryant argued on Reed's behalf, he did not present any testimony or evidence to support
his claims. Bryant stated that he felt it was unnecessary to present additional evidence
because "Reed . . . put a lot of work into his pro se motion."
The State called Spies to testify at the K.S.A. 60-1507 hearing. Spies explained
that he had not asked to redact the parts of the Sunflower House videos where the victims
and their mothers spoke together about the allegations because it was part of his defense
strategy—he wanted to show that they had colluded to make false accusations against
Reed. On cross-examination, however, Spies agreed that a statement like "there's no
telling how many other girls this has happened to" would be damaging.
When asked why he had not objected to the State's closing arguments relating to
the victims' credibility, Spies said he did not need to, and that not objecting during
closing arguments is usually a strategic decision for him. When asked why he had not
asked the district court for more specific findings of fact and conclusions of law
regarding Reed's constitutional challenge to his Jessica's Law sentence, Spies testified
that he thought he had made sufficient arguments and the district court had made
sufficient findings, although our Supreme Court held otherwise.
The district court denied Reed's K.S.A. 60-1507 motion, rejecting all of Reed's
claims. First, the district court found that the victim's statements in the videos regarding
"other girls" did not rise to the level of K.S.A. 60-455 evidence of other crimes or civil
wrongs; thus, Spies could not have been ineffective for failing to object to the videos on
that ground. The district court found Spies was not ineffective for not raising a Doyle
violation. (A Doyle violation occurs when the State tries to impeach a defendant's
credibility at trial by arguing that defendant did not avail himself of the first opportunity
to clear his name when confronted by police officers but instead invoked his
constitutional right to remain silent. State v. Marshall, 50 Kan. App. 2d 838, 846, 334
5
P.3d 866 [2014].) The district court found Spies was not deficient in failing to object to
closing argument—it found that the State's closing argument never "specifically refer[ed]
to the credibility of the child witnesses and therefore trial counsel had no opportunity or
reason to make any objections regarding the witness' credibility." Finally, the district
court found that it had already upheld the version of Jessica's Law in effect at the time of
Reed's sentencing as constitutional, so Jurgeson could not have been ineffective for
failing to argue it was unconstitutional.
Bryant moved the court for additional findings of fact regarding the victim's age in
Reed's prior convictions that triggered the hard 40 sentence. Bryant also sought a ruling
on the sufficiency of evidence regarding the contact in this case, as raised in Reed's initial
petition. The district court denied that motion, and Reed timely appealed it.
Reed then moved to reconsider the district court's decision not to make factual
findings regarding the age of the complaining witness in Reed's prior convictions. Reed
also moved for leave to amend his motion, arguing that as a part of his ineffective
assistance of counsel claims, he had claimed insufficient evidence in relation to the
findings of fact and conclusions of law about the lack of skin-to-skin touching. The
district court denied these motions, finding they should have been raised earlier.
Reed timely appeals.
Did the District Court Err in Denying Reed's K.S.A. 60-1507 Motion?
Reed argues that he received ineffective assistance of trial, appellate, and K.S.A.
60-1507 counsel. He alleges deficient performance of counsel in handling the Sunflower
House interviews, the State's closing arguments, and his claim that Jessica's Law is
unconstitutional. Reed asks this court to reverse his convictions and remand for a new
trial. Alternatively, Reed asks this court to vacate his sentence and remand to the district
6
court for a full hearing to consider his constitutional challenge to his sentence and to
make the necessary findings of fact and conclusions of law.
Standard of Review
Our standard of review of a K.S.A. 60-1507 decision varies, depending on whether
the district court made its decision based only on the record or instead held a hearing.
White v. State, 308 Kan. 491, 504, 421 P.3d 718 (2018). Where, as here, the district court
held an evidentiary hearing, we review the district court's findings of fact to determine
whether they are supported by substantial competent evidence and are sufficient to
support the court's conclusions of law. But we review the district court's ultimate
conclusions of law de novo. Fuller v. State, 303 Kan. 478, 485, 363 P.3d 373 (2015).
After a preliminary or full evidentiary hearing on a K.S.A. 60-1507 motion, the district
court must issue findings of fact and conclusions of law on all issues presented. Supreme
Court Rule 183(j) (2019 Kan. S. Ct. R. 228). Whether the district court's findings of fact
and conclusions of law comply with Rule 183(j) is a question of law we review de novo.
Robertson v. State, 288 Kan. 217, 232, 201 P.3d 691 (2009).
I. Claims against trial counsel
We first address Reed's individual claims against each of his three attorneys. We
then address Reed's claims relating to the constitutionality of Reed's hard 40 sentence,
which Reed asserts against all three counsel.
"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
7
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).
"The test has nothing to do with what the best lawyers or what most good
lawyers would have done. We ask only whether some reasonable lawyer at the trial could
have acted, in the circumstances, as defense counsel acted. The issue is not what is
possible or 'what is prudent or appropriate, but only what is constitutionally compelled.'
United States v. Cronic, 466 U.S. 648, 665 n.38, 104 S. Ct. 2039, 80 L. Ed. 2d 657
(1984). So we are not interested in grading lawyers' performances—we are interested in
whether the adversarial process at trial worked adequately." Stotts v. State, No. 117,289,
2018 WL 6071891, at *3 (Kan. App. 2018) (unpublished opinion).
Judicial scrutiny of counsel's performance in a claim of ineffective assistance of
counsel is highly deferential and requires consideration of all the evidence before the
judge or jury. 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, 969-70, 318 P.3d 987 (2014).
A. Reed shows no error from Spies' failure to object to the videos as cumulative.
We first address Reed's claim that his trial counsel was ineffective for failing to
properly object to or redact portions of the videos of the victims' Sunflower House
interviews. Reed argues that Spies should have objected to the Sunflower House
Interviews as cumulative and prejudicial and that Spies should have requested redaction
of A.R's statement, "No telling there's no other girls, she didn't even know there was me."
In contending that Spies was ineffective for not objecting to the Sunflower House
videos as cumulative, Reed relies solely on Spies' testimony. Spies testified that he
generally believed all Sunflower House videos were "overly cumulative and overly
prejudicial to the defendants because it just overly bolsters the child victim." This shows
8
Spies' subjective belief, yet does not show his decision was objectively unreasonable. A
court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's
challenged conduct on the facts of the particular case, viewed as of the time of counsel's
conduct. Baker v. State, 243 Kan. 1, 7, 755 P.2d 493 (1988) (quoting Strickland, 466 U.S.
at 690). Spies testified that, in Reed's case, he wanted the videos to be admitted because
they supported his collusion theory, which was part of his trial strategy. Strategic
decisions made after a thorough investigation of law and facts relevant to realistically
available options are virtually unchallengeable. State v. Cheatham, 296 Kan. 417, 437,
292 P.3d 318 (2013).
But even if we assume, without finding, that Spies erred in not voicing this
objection at trial, Reed fails to show any prejudice. Instead, he merely argues that "there
is a reasonable probability that had Mr. Spies made the appropriate objections and
requests for redactions in the district court, the Supreme Court would have addressed the
merits of his appellate issue." But Reed's burden is to show a reasonable probability the
jury would have reached a different result absent the error. To meet that burden, Reed
must show that the district court would likely have sustained a cumulative or prejudicial
objection and then show the determinative effect the absence of that evidence would have
had on the jury's verdict. See Sola-Morales, 300 Kan. at 882.
Reed fails to show that the district court would likely have sustained a cumulative
or prejudicial objection. Instead, the State shows that it likely would not have done so,
citing State v. Kackley, 32 Kan. App. 2d 927, 935, 92 P.3d 1128 (2004). Kackley found
that repetitious testimony regarding sex victim's statements "is characteristic in the
prosecution of child sex crimes and generally draws no objection." 32 Kan. App. 2d at
935. It held that the rape exception to the general rule against the admission of prior
consistent statements "could logically extend to prosecutions for sexual abuse of children,
including indecent liberties cases." 32 Kan. App. 2d at 935. Reed fails to address this law
or provide any other authority for his position. Applying Kackley, the district court likely
9
would have overruled an objection that the Sunflower House videos were cumulative.
Thus, we find no reasonable probability that the jury would have reached a different
result had Spies objected to the videos as cumulative or unfairly prejudicial.
B. Not requesting redactions was part of Spies' trial strategy.
Reed next argues that Spies should have requested redaction of A.R.'s statement,
"No telling there's no other girls, she didn't even know there was me," from the video of
her Sunflower House interview. The State counters that Spies' choice not to have the
video redacted was a part of his trial strategy and is thus, virtually unchallengeable.
At the K.S.A. 60-1507 motion hearing, Spies testified that he did not object to the
Sunflower House videos because that was his trial strategy. He believed the videos
showed that the victims and their mothers had colluded to set Reed up. Spies testified that
he made a strategic decision not to ask for redactions "because it was definitely our trial
strategy to convince the jury that there was—again, collusion between the two victims to
kind of get their story straight or to make these allegations against Mr. Reed." Spies' trial
strategy was a general denial coupled with collusion. The fact he did not try to redact
A.R.'s statement is consistent with that strategy.
Reed counters that Spies admitted on cross-examination at the K.S.A. 60-1507
hearing that his lack of objection to A.R.'s statement did not align with his trial strategy.
We disagree. At that hearing, Spies was not asked about the statement A.R. made in the
video. Instead, Reed's attorney asked Spies whether the statement, "[T]here's no telling
how many other girls this has happened to," would be damaging testimony—Spies agreed
that it would. But we find the attorney's hypothetical and clear statement quite dissimilar
to the confusing and vague statement A.R. actually made—"[n]o telling there's no other
girls, she didn't even know there was me." Reed fails to show that Spies erred in not
seeking to redact this statement.
10
C. Reed shows no error in Spies not objecting to the videos as K.S.A. 60-455
evidence.
Reed also contends that A.R.'s statement in the video—"[n]o telling there's no
other girls, she didn't even know there was me"—suggested to the jury that Reed had
victims other than A.R. and C.T. He then argues that this statement was inadmissible
under K.S.A. 60-455 and that Spies erred in failing to object to it on that basis.
The district court found this statement failed to show that Reed committed another
crime or civil wrong. We agree. The meaning of this statement is unclear—it could
reasonably be interpreted, as the State alleges, as merely a quizzical expression of one
victim's disbelief that another victim existed. But even if the statement somehow implies
that other victims exist, the statement is too general to fall within K.S.A. 60-455's
prohibition of "evidence that a person committed a crime or civil wrong on a specific
occasion." (Emphasis added.) Reed does not argue that this statement, under any
interpretation, asserts that Reed did anything on a specific occasion.
Reed mentions that this same statement was inadmissible speculation, but he fails
to brief that argument. We deem it abandoned. See State v. Boleyn, 297 Kan. 610, 633,
303 P.3d 680 (2013).
II. Claims against appellate counsel
Reed argues that Jurgeson's failure to raise the issue of prosecutorial error on
appeal deprived him of his constitutional right to effective assistance of counsel and to a
fair trial. Reed contends that Jurgeson should have argued that the State improperly
commented on the credibility of its witnesses during its closing argument. Yet Reed
concedes that trial counsel, Spies, was not ineffective for failing to object to the
11
prosecutor's closing argument during trial because it was his strategic decision not to do
so. See Cheatham, 296 Kan. at 437.
A. Preservation
Reed notes that prosecutorial error may be properly raised on direct appeal,
despite lack of a contemporaneous objection at trial. We agree. See Bledsoe v. State, 283
Kan. 81, 88, 150 P.3d 868 (2007). So Jurgeson may raise this issue on appeal even
though Spies did not object to the prosecutor's statements during closing argument.
Appellate courts will review a prosecutorial error claim based on a prosecutor's
comments made during closing argument even without a timely objection, but the court
may figure the presence or absence of an objection into its analysis of the alleged error.
State v. Butler, 307 Kan. 831, 864, 416 P.3d 116 (2018); see State v. McBride, 307 Kan.
60, 64-65, 405 P.3d 1196 (2017).
But this is not a direct appeal—it is a collateral proceeding. Our Supreme Court
has held that prosecutorial error "is not properly raised in a collateral proceeding under
K.S.A. 60-1507 unless it affected a constitutional right and there is a showing of
exceptional circumstances excusing the failure to appeal on that issue." Bledsoe, 283
Kan. at 88. Reed can overcome this procedural barrier by persuading this court there was
"ineffective assistance of direct appeal counsel in failing to raise the issue." 283 Kan. at
88-89. So Reed must show that Jurgeson's failure to raise the issue of prosecutorial error
on direct appeal constituted deficient performance that prejudiced his appeal to the extent
that there is a reasonable probability that, but for the deficient performance, the appeal
would have been successful. See Miller v. State, 298 Kan. 921, 934, 318 P.3d 155 (2014).
12
B. Which statements do we consider?
Before we reach the merits of this issue, we must determine which of the
prosecutor's statements we review—only one, as the State urges, or all six of the
statements Reed briefs on appeal. The State argues that Reed preserved only one
statement for appellate review—"You have an abundance of evidence that indicates that
both [C.T. and A.R.] were entirely credible about what they said happened." Reed
counters that the court should consider these additional statements by the prosecutor in
closing argument:
• "So I want to talk to you about each girl and the evidence you've heard that
leads you to believe that it absolutely happened the way they said it did."
• "[Y]ou saw [C.T.] on the stand and she cried. That's not a manufactured
emotion. That's a little girl experiencing something, telling someone about
it that affected her."
• "And again, [A.R.] came and testified here in court. You judged her
demeanor. She's a cute kid. They both are, and I'm not asking you to have
sympathy for them because they're kids, but I am asking you to understand
that children came in to tell you what happened and spoke before 13
strangers. That's got to count for something."
• "If you know the interviews, even if they weren't perfect, they sure as heck
weren't bad."
• "Mr. Spies would love for you to believe otherwise, and he's doing his job.
You know he's doing what he's supposed to do. But he doesn't have a whole
lot to work with. And why?
"Because there are two girls, two years apart, two crimes of almost
identical character and one suspect between the two of them. That's not
coincidence. That's not happenstance. That's not guess work. That is truth."
13
We cannot tell which statements the district court reviewed in finding no error, as its
decision does not specify any particular statements by the prosecutor.
So we look to see which statements Reed argued in his K.S.A. 60-1507 motion.
We find that Reed's motion addressed only the one statement, not all six. A K.S.A. 60-
1507 movant is presumed to have listed all grounds for relief. State v. Trotter, 296 Kan.
898, 904, 295 P.3d 1039 (2013). K.S.A. 60-1507 directs movants to "[s]tate concisely all
the grounds on which you base your allegation that you are being held in custody
unlawfully." (Emphasis added.) And Reed's counsel did not argue any other instances of
prosecutorial misconduct at the K.S.A. 60-1507 hearing. Issues not raised before the
district court, including constitutional issues, cannot be raised for the first time on appeal.
See State v. Daniel, 307 Kan. 428, 430, 410 P.3d 877 (2018). Although there are
exceptions to that general rule, State v. Phillips, 299 Kan. 479, 493, 325 P.3d 1095
(2014), Reed does not assert an exception or explain why it applies. See Supreme Court
Rule 6.02(a)(5) (2019 Kan. S. Ct. R. 34); State v. Williams, 298 Kan. 1075, 1085-86, 319
P.3d 528 (2014). We thus confine our review to this one statement Reed preserved: "So
you have an abundance of evidence that indicates that both [C.T. and A.R.] were entirely
credible about what they said happened."
C. Standard of Review
In State v. Sherman, 305 Kan. 88, 378 P.3d 1060 (2016), our Supreme Court
revamped the concept of prosecutorial error. Under Sherman's framework, we apply a
two-step process: error and prejudice. Sherman, 305 Kan. at 109.
"To determine whether prosecutorial error has occurred, the appellate court must decide
whether the prosecutorial acts complained of fall outside the wide latitude afforded
prosecutors to conduct the State's case and attempt to obtain a conviction in a manner that
does not offend the defendant's constitutional right to a fair trial. If error is found, the
14
appellate court must next determine whether the error prejudiced the defendant's due
process rights to a fair trial. In evaluating prejudice, we simply adopt the traditional
constitutional harmlessness inquiry demanded by Chapman [v. California, 386 U.S. 18,
87 S. Ct. 824, 17 L. Ed. 2d 705 (1967)]. In other words, prosecutorial error is harmless if
the State can demonstrate 'beyond a reasonable doubt that the error complained of will
not or did not affect the outcome of the trial in light of the entire record, i.e., where there
is no reasonable possibility that the error contributed to the verdict.' [Citation omitted.]"
Sherman, 305 Kan. at 109.
See State v. Blansett, 309 Kan. 401, 412, 435 P.3d 1136 (2019).
D. Analysis
Reed alleges his appellate attorney, Jurgeson, was constitutionally ineffective for
not arguing on appeal that the State had reversibly erred by commenting on witnesses'
credibility during closing arguments.
Our Supreme Court has consistently stated that it is "improper for a prosecutor to
attempt to bolster the credibility of the State's witnesses." State v. Sprague, 303 Kan. 418,
428, 362 P.3d 828 (2015). But a prosecutor may explain what juries should look for in
determining credibility: "The latitude given to the State includes 'explaining to
juries what they should look for in assessing witness credibility, especially when the
defense has attacked the credibility of the State's witnesses.' McReynolds, 288 Kan. at
325." 303 Kan. at 428-29.
The State's case against Reed hinged on the credibility of the two victims.
Similarly, Reed's defense was based on his credibility—he denied the acts the victims
testified to. The prosecutor began its discussion about the victims' credibility by speaking
directly to the jury about this issue: "What you have to decide, then, is do you believe it
happened as the girls told you?"
15
"When a case develops that turns on which of two conflicting stories is true, it
may be reasonable to argue, based on evidence, that certain testimony is not believable.
However, the ultimate conclusion as to any witness' veracity rests solely with the jury."
State v. Pabst, 268 Kan. 501, 507, 996 P.2d 321 (2000). A prosecutor is not to state a
personal opinion about a witness' credibility. 268 Kan. at 506 (quoting Kansas Rule of
Professional Conduct 3.4 [1999 Kan. Ct. R. Annot. 369-70]). Thus, in Pabst, the
Supreme Court found reversible error when the prosecutor repeatedly told the jury the
defendant "was lying." 268 Kan. at 511. But "[a] prosecutor may comment on the
credibility of a witness, provided that the comment is not based upon the prosecutor's
personal opinion." Duran v. State, No. 96,178, 2008 WL 2571788, at *9 (Kan. App.
2008) (unpublished opinion).
The prosecutor's statement here, "So you have an abundance of evidence that
indicates that both [C.T. and A.R.] were entirely credible about what they said
happened," followed the prosecutor's summary of testimony about the location of Reed's
offense against A.R. and specific details of that offense. Viewed in context, the comment
was not based on the prosecutor's personal opinion but asked the jury to determine that
the evidence showed the victims' credibility. This is permissible. "In criminal trials, the
prosecution is given wide latitude in language and in manner or presentation of closing
argument as long as the argument is consistent with the evidence." Pabst, 268 Kan. at
505.
Reed also briefly argues that the statement improperly bolstered the victims'
credibility. We find this comment did not cross that line. Compare State v. Mosley, 25
Kan. App. 2d 519, 524-25, 965 P.2d 848 (1998) (finding improper bolstering of the
State's witnesses when the prosecutor claimed, "'[M]y witnesses were telling the truth.'").
16
III. Claims against all three counsel
We finally reach Reed's claim that all three of his attorneys were ineffective in
handling his claim that his sentence was unconstitutional.
In his K.S.A. 60-1507 motion, Reed argued that Spies and Jurgeson were
ineffective in handling his constitutional challenge to his sentence because neither
requested the necessary findings of fact and conclusions of law from the district court.
Reed also claimed that because his crimes did not involve skin-to-skin contact or
aggressive behavior, his sentence was unconstitutionally cruel or unusual. Reed also
asserted that his prior conviction was not one that should have triggered a life sentence
without possibility of parole for 40 years. In his supplemental K.S.A. 60-1507 motion,
Bryant asked for an evidentiary hearing before the sentencing judge so it could enter the
appropriate findings of fact and conclusions of law. And Spies had also requested leave
to amend Reed's original motion to address the no skin-to-skin contact issue. Now, on
appeal from the district court's denial of his K.S.A. 60-1507 motion, Reed argues that he
received ineffective assistance of trial, appellate, and K.S.A. 60-1507 counsel with regard
to his claim that his sentence was unconstitutional.
When a prisoner requests relief under K.S.A. 60-1507 on the basis of ineffective
assistance of appellate counsel, the movant bears the burden of proving: (1) that
appellate counsel's performance fell below an objective standard of reasonableness, and
(2) "'the appellant was prejudiced to the extent that there is a reasonable probability that,
but for counsel's deficient performance, the appeal would have been successful.'" Laymon
v. State, 280 Kan. 430, 437, 122 P.3d 326 (2005). As applied here, Reed must show not
only deficient performance, but also a reasonable probability that, but for that deficient
performance, his claim that his sentence was unconstitutional would have succeeded.
17
The governing law
Before Reed's sentencing hearing, Spies filed a motion to declare the version of
Jessica's law in effect at the time—K.S.A. 21-4643—unconstitutional. He argued that the
imposition of life sentences without the possibility of parole for 40 years, under the
circumstances of his case, was cruel and/or unusual punishment under § 9 of the Kansas
Constitution Bill of Rights and the Eighth Amendment to the United States Constitution.
He argued that his sentence constituted cruel and unusual punishment because its length
was disproportionate to his offense.
To determine whether a sentence's length is unconstitutionally disproportionate to
the crime for which that sentence is imposed, Kansas courts consider three factors
commonly known as the Freeman factors:
"'(1) The nature of the offense and the character of the offender should be
examined with particular regard to the degree of danger present to society; relevant to this
inquiry are the facts of the crime, the violent or nonviolent nature of the offense, the
extent of culpability for the injury resulting, and the penological purposes of the
prescribed punishment;
"'(2) A comparison of the punishment with punishments imposed in this
jurisdiction for more serious offenses, and if among them are found more serious crimes
punished less severely than the offense in question the challenged penalty to that extent is
suspect; and
"'(3) A comparison of the penalty with punishments in other jurisdictions for the
same offense.'" State v. Mossman, 294 Kan. 901, 908, 281 P.3d 153 (2012) (quoting State
v. Freeman, 223 Kan. 362, 367, 574 P.2d 950 [1978]).
No one factor is individually controlling and "'consideration should be given to
each prong of the test,'" but one factor may "'weigh so heavily that it directs the final
conclusion.'" 294 Kan. at 908 (quoting State v. Ortega-Cadelan, 287 Kan. 157, 161, 194
P.3d 1195 [2008]). When considering proportionality, "'the factual aspects . . . are a
18
necessary part of the overall analysis.'" 294 Kan. at 908 (quoting Ortega-Cadelan, 287
Kan. at 161). The first Freeman factor is "inherently factual" because it requires
examining "the facts of the crime and the particular characteristics of the defendant."
Ortega-Cadelan, 287 Kan. at 161. The second and third Freeman factors, however, are
"legal determinations." 287 Kan. at 161.
A. Ineffective assistance of trial counsel
Reed contends that Spies was ineffective in handling his constitutional challenge
to his sentence because he failed to request the necessary findings of fact and conclusions
of law from the district court. Reed also argues that Spies was deficient in not presenting
evidence to support the constitutional challenge. But Reed did not raise that issue in his
K.S.A. 60-1507 motion or his supplemental motion, and he fails to cite to the record
where this issue was preserved. See Rule 6.02(a)(4) (2019 Kan. S. Ct. R. 34). We thus
consider only Reed's claim that Spies failed to request the necessary findings of fact and
conclusions of law.
Deficient performance
Before Spies moved to find Jessica's Law unconstitutional and before Reed was
sentenced, our Supreme Court decided State v. Seward, 289 Kan. 715, 217 P.3d 443
(2009), disapproved of on other grounds by State v. Jolly, 301 Kan. 313, 342 P.3d 935
(2015). In Seward, a defendant challenged his sentence as unconstitutional but the district
court did not make any findings regarding the Freeman factors. Our Supreme Court
found that the lack of findings precluded appellate review and remanded to the district
court to make the necessary findings of fact and conclusions of law. 289 Kan. at 721.
But the court warned future litigants not to rely on a remand:
19
"We emphasize that we believe this case to be exceptional. In the future, a
defendant who wishes to appeal on the basis of a constitutional challenge to a sentencing
statute must ensure the findings and conclusions by the district judge are sufficient to
support appellate argument, by filing of a motion invoking the judge's duty under Rule
165, if necessary." Seward, 289 Kan. at 721.
Our Supreme Court applied this rule in Reed's direct appeal—it declined to review
Reed's constitutional challenge because he had failed to ensure the district court made
adequate findings and conclusions of the Freeman factors:
"Reed argues that when '[v]iewed on a continuum of other cases involving the crime of
Aggravated Indecent Liberties with a Child, the acts in this case are far less egregious than the
typical case.' He lists various factors that he believes should minimize his punishment.
Specifically, Reed argues that his actions against C.T. and A.R. were not violent, and his
encounter with each girl was 'short in duration.' Reed recognizes that he was a registered sex
offender at the time of the offenses in this case but attempts to diminish this fact by arguing, with
no citations to the record, that his past convictions 'nvolved consensual sexual contact with a 15-
year-old girl.' In addition, Reed argues that he was a 'hard-working husband and father' and was
'gainfully and steadily employed' at the time of trial; again, he does not provide citations to the
record to support these assertions." Reed, 300 Kan. at 512-13.
Thus, it is incumbent on counsel to assure that the district court's findings and
conclusions are sufficient.
At Reed's K.S.A. 60-1507 hearing, Spies testified that he thought he had made
sufficient arguments at Reed's sentencing hearing about Reed's constitutional challenge to
his sentence and that the district court had made sufficient findings, even though our
Supreme Court held otherwise. See Reed, 300 Kan. at 513. The district court had
generally acknowledged, then summarily rejected Reed's argument of unconstitutionality:
20
"I certainly understand your argument and your contention as to the constitutionality of
this. I don't know that it is appropriate at this level to declare this constitutional or not. I
think it is something that would be—is being addressed at the Appellate Court level,
whether that's the Court of Appeals or the Supreme Court and, you know, I don't know
that it is within this Court's purview to take this stand, so while I recognize your
arguments and think it is something that should be at least determined by a higher court,
at this point I'm denying the motion to declare the—Jessica's Law unconstitutional."
This general ruling was not sufficient to allow appellate review of Reed's claim of
unconstitutionality. And Seward's 2009 warning was well established by the date of
Reed's sentencing hearing in 2010. We thus find deficient performance in Spies' failure to
ensure that the findings and conclusions by the district judge were sufficient to support
appellate argument.
Prejudice
Having found deficient performance, we ask whether this deficient performance
prejudiced Reed. Reed's only argument of prejudice is that the failure to present evidence
and request specific findings of fact and conclusions of law "deprived [him] the process
due on his constitutional challenge to his sentence."
But in a similar case, we have found this kind of showing insufficient for a K.S.A.
60-1507 that alleges failure to preserve a disproportionality challenge:
"In the context of the challenge brought here, Cervantes-Puentes must show not only that
absent his counsel's deficient performance the merits of his claim would have been
preserved on direct appeal but also that, but for counsel's error, the result of his direct
appeal would have been different. That means Cervantes-Puentes must show a reasonable
probability that his case-specific challenge to the disproportionality of his sentence would
have succeeded. See Miller v. State, 298 Kan. 921, 934, 318 P.3d 155 (2014). It is not
sufficient, as Cervantes-Puentes claims, merely to show a reasonable probability that his
21
case-specific challenge would have been preserved and thus reviewed on its merits by the
Supreme Court, absent counsel's deficient performance." Cervantes-Puentes v. State, No.
113,358, 2016 WL 463820, at *4 (Kan. App. 2016) (unpublished opinion).
Because this rationale is sound, we apply it here. To show prejudice, Reed must show a
reasonable probability that his case-specific challenge to the disproportionality of his
sentence would have succeeded, but for counsels' errors.
Yet Reed makes no effort to make that showing, having placed all his eggs in the
due process basket. In arguing prejudice, Reed does not make any arguments or cite any
authority in support of his contention that Jessica's Law was unconstitutional at the time
of his sentencing. He does not address the Freeman factors which a court must consider
in determining proportionality. Reed's claims of lack of skin-to-skin contact or the lack of
aggression do not establish a categorical challenge. See State v. Cervantes-Puentes, 297
Kan. 560, 566, 303 P.3d 258 (2013) (declining to consider a purported categorical claim
that, in reality, presents a case-specific proportionality challenge to a term-of-years
sentence, citing cases). Yet Reed does not cite any authority to support his assertion that
the lack of skin-to-skin contact or the lack of aggression makes Jessica's law
unconstitutional as applied to him. Nor does he try to address that the State's cited
authority to the contrary—see Cervantes-Puentes, 297 Kan. at 562, 565-66 (rejecting
claims of disproportionality where defendant committed a sexual offense against a minor
in public when both were fully clothed and the offense does not involve penetration,
force, or coercion). Reed never proffered an affidavit or any other evidence setting forth
whatever facts he believes Spies should have presented to the district court to meet the
factual showing required by the first Freeman factor, relating to the facts of the crime and
the particular characteristics of the defendant. For all these reasons, Reed fails to
establish the prejudice necessary for his ineffective assistance of counsel claim.
22
A. Ineffective Assistance of Appellate Counsel
Next, Reed argues that Jurgeson was ineffective on direct appeal for failing to
move to remand Reed's case to the district court for more specific findings—before filing
his appellate brief—so that his argument on appeal could be supported by a sufficient
record. Reed did not, however, raise this issue to the district court.
But even if we assume that Reed's current claim is preserved and further assume,
without finding, that Jurgeson's acts constituted deficient performance, we find no
prejudice from Jurgeson's failure to move to remand for more specific findings. First, our
Supreme Court addressed Reed's claim on direct appeal as if Jurgeson had sought a
remand order with directions to require the district court make sufficient findings of fact
and conclusions of law. It found: "Reed essentially asks this court to make the necessary
factual findings or to remand the case to the district court for the same." Reed, 300 Kan.
at 513. So even though Jurgeson did not move to remand, the Supreme Court treated
Reed's appeal as though Jurgeson had timely done so.
Second, to show prejudice, Reed must show that Jurgeson's failure to move to
remand for specific findings prejudiced his appeal to the extent that there is a reasonable
probability that, but for that failure, his appeal would have been successful. See Miller,
298 Kan. at 934. Yet Reed has not tried to show what findings could have been made on
remand that would have probably caused the court to find on direct appeal that his
sentence was unconstitutional. Thus, as detailed above for Reed's claims against Spies,
Reed has shown no prejudice from Jurgeson's approach on direct appeal.
B. Ineffective Assistance of K.S.A. 60-1507 Counsel
Reed argues that Bryant provided ineffective assistance as K.S.A. 60-1507 counsel
because "he failed to present evidence to support the argument that [Reed's] sentence was
23
unconstitutional, which was necessary to establish prejudice on the ineffective assistance
of trial and appellate counsel claims, and because he failed to fully understand the nature
of Reed's challenge."
For purposes of expediency, we assume that both of these claims are preserved.
We further assume, without finding, that Bryant's acts alleged above constitute deficient
performance. But again, we find no prejudice. As above, Reed's only claim of prejudice
is that he did not get a hearing on his claim of an unconstitutional sentence. And as
above, Reed makes no attempt to show what evidence Bryant should have presented at
that K.S.A. 60-1507 hearing that might have led the district court to conclude that Reed's
sentence was unconstitutional. Reed had the opportunity to testify at his K.S.A. 60-1507
hearing to enable the district court to make proper factual findings, but he chose not to.
For these reasons, we find no ineffective assistance of K.S.A. 60-1507 counsel.
Because Reed has not shown ineffective assistance of any of his counsel, the
district court properly denied his K.S.A. 60-1507 motion.
Affirmed.
24