1

NOT DESIGNATED FOR PUBLICATION

No. 121,037

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

JOSEPH T. MCGILL,

Appellant,

v.

STATE OF KANSAS,

Appellee.

MEMORANDUM OPINION

Appeal from Sedgwick District Court; JEFFREY SYRIOS, judge. Opinion filed August 14, 2020.

Affirmed.

Gerald E. Wells, of Jerry Wells Attorney-at-Law, of Lawrence, for appellant.

Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek 

Schmidt, attorney general, for appellee.

Before ARNOLD-BURGER, C.J., BRUNS and SCHROEDER, JJ.

PER CURIAM: Joseph T. McGill appeals from the district court's denial of his 

K.S.A. 60-1507 motion, which stemmed from a claim of trial error and multiple 

ineffective assistance claims. McGill now raises two of those ineffective assistance 

claims on appeal, specifically those related to his counsel's failure to: (1) engage in plea 

negotiations on his behalf; and (2) seek suppression of McGill's statements on a written 

polygraph questionnaire and to his therapist that he had sexually abused his infant 

daughters. After a thorough review of the motion, files, and records of the case, we find 

no error in the court's decision and affirm.
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FACTUAL AND PROCEDURAL HISTORY

In 2012, the State charged McGill with two counts of aggravated indecent liberties 

with a child, alleging that McGill had engaged in lewd fondling or touching of his 

daughter in 2005 when she was three months old and his other daughter in 2011 when she 

was one year old. The charges stemmed from a series of three confessions made by 

McGill, first by disclosing the encounters on paperwork before a polygraph examination, 

then to his therapist during a court-ordered sex offender treatment session, and finally to 

his wife. McGill hired Mark T. Schoenhofer to represent him throughout the case.

Before trial, McGill moved to dismiss or, in the alternative, to exclude the 

evidence of his confessions through a motion in limine. McGill asked the district court to 

dismiss the charges pursuant to the common-law corpus delicti rule that prevented him 

from being convicted of the charges based solely on his uncorroborated confessions. In 

the alternative, the motion sought an order excluding the evidence of his confessions. The 

district court later denied McGill's motion after a pretrial motions hearing, stating:

"I don't believe a court-ordered dismissal is an appropriate remedy for what the defendant 

is requesting in this case.

"The question and issues raised by the defense I think essentially are a 

sufficiency of evidence issue. And I just don't think that a motion or an order dismissing 

the case is an appropriate remedy here.

"As for the motion in limine in which the defendant asks for an order to suppress 

or to find inadmissible the defendant's three confessions, the defendant's motion is 

denied. The defendant's three confessions are admissible in evidence."

McGill later agreed to proceed to a bench trial on stipulated facts. The district 

court ultimately found him guilty of both charges and sentenced him to life in prison 
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without the possibility of parole for 25 years on one count and 122 months on the other.

The terms were to be served concurrently.

McGill directly appealed his convictions, challenging only the district court's 

denial of his pretrial motion to dismiss based on the corpus delicti issue. State v. McGill, 

50 Kan. App. 2d 208, 209-12, 328 P.3d 554 (2014). Schoenhofer continued representing 

McGill for the appeal. A divided panel affirmed his convictions in May 2014, 

determining that his wife's testimony at the preliminary hearing sufficiently corroborated 

the confessions. 50 Kan. App. 2d at 224. McGill petitioned for review of that decision, 

but the Kansas Supreme Court denied the petition in January 2016. This court issued a 

mandate the next month.

Just under a year later, McGill filed a K.S.A. 60-1507 motion, asserting both trial 

errors and accompanying claims of ineffective assistance of counsel. As for the 

ineffective assistance claims, McGill argued that Schoenhofer failed to provide effective 

assistance by mainly focusing on the corpus delicti issue and not trying to challenge the 

admission of the confessions based on the Fifth Amendment to the United States 

Constitution nor engaging in plea negotiations on McGill's behalf. In response, the State 

agreed that Schoenhofer's alleged failure to engage in plea negotiations warranted an 

evidentiary hearing, but the State argued McGill's remaining claims could be summarily 

denied based on the record.

The district court held a nonevidentiary hearing in August 2017, at which the 

parties discussed whether a full evidentiary hearing should be held on all of McGill's 

claims. The court concluded that only McGill's ineffective assistance claim related to plea 

negotiations warranted an evidentiary hearing. The court generally found McGill failed to 

show that any suppression motion would have been granted or that his statements were 

otherwise inadmissible, thus Schoenhofer did not provide ineffective assistance by failing 

to pursue those arguments.
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The district court held an evidentiary hearing in July 2018, at which Schoenhofer, 

McGill, and McGill's father testified.

Schoenhofer testified he discussed McGill's options with him early in the case, 

including entering a plea, but advised that any initial offer would be to plead as charged 

to life in prison. Schoenhofer based his opinion on his own experience in defending 

Jessica's Law cases. Schoenhofer also testified he would have pursued a plea offer if 

McGill had directed him to, but that McGill never did so. Instead, Schoenhofer believed 

pursuing the corpus delicti issue would lead to dismissal of the charges.

After the district court denied the motion to dismiss, Schoenhofer testified he 

advised McGill of three options: a plea bargain, a bench trial on stipulated facts, or a jury 

trial. Schoenhofer advised a jury trial would be "a painful experience" because the jury 

would get to hear McGill's confessions and the facts were "devastating," so he preferred a 

bench trial on stipulated facts because that would preserve the corpus delicti issue for 

appeal. Schoenhofer again advised McGill "out of experience with the DA's office on 

Jessica's Law cases," that any plea offer would be for life in prison "unless it was a weak 

case." Schoenhofer denied telling McGill that he would refuse to bring any plea offers 

from the State, instead testifying that he may have advised McGill any potential plea 

offers early in the case would not have been favorable and reiterated his belief that the 

State would not offer anything less than life in prison. Schoenhofer ultimately asked 

McGill "not to make a hasty choice" and talk it over with his parents.

McGill and his father both testified that Schoenhofer strongly believed in the 

chances of winning the corpus delicti motion, but that Schoenhofer did not promise or 

guarantee he would win the case. Unlike Schoenhofer's testimony, McGill stated he 

asked Schoenhofer to seek a plea agreement "early on in one of our conversations prior to 

many of the motions," but that Schoenhofer "didn't believe that a plea bargain would be 

necessary [because] we would win through corpus delicti." McGill and his father both 
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recalled conversations during which Schoenhofer said he would not bring a plea offer 

from the State to McGill.

McGill said he agreed that Schoenhofer advised him of three options after the 

district court denied the motion to dismiss, adding that Schoenhofer told him he believed 

they had a better chance of winning on the corpus delicti issue on appeal. So "a stipulated 

fact trial would be the quickest way for [McGill's case] to get started in the appellate 

process." McGill was open to negotiations up until the point the district court denied the 

motion to dismiss. McGill acknowledged that he never asked Schoenhofer to seek a plea 

bargain after the initial request "because [he knew] that [Schoenhofer] didn't like 

repeating himself." McGill discussed his decision to proceed to a bench trial with his 

family, noting financial concerns pushed him toward that decision. He also "didn't think 

there would be any real chance of getting a plea bargain" because his confessions would 

be admitted into evidence.

Ultimately, the district court issued a memorandum order denying McGill's K.S.A. 

60-1507 motion. The court made the following factual findings based on the testimony 

elicited at the hearing:

"11. Mr. Schoenhofer has been a practicing attorney for the last 25 years, and is 

experienced in the areas of civil, criminal and appellate law.

"12. Mr. Schoenhofer's general practice ('habit') is that with plea negotiations, it 

begins with the client and the client's desire and interest in pursuing a resolution 

through plea negotiations. Mr. Schoenhofer addresses it at the beginning of his 

involvement in a case. In general, if a client desires a plea deal, Mr. Schoenhofer 

contacts the district attorney's office and pursues negotiations. In the present 

case, Christopher McGill confirmed everyone discussed the option of pleading or 

plea negotiation. Mr. McGill also confirmed discussing the options, including a 

plea agreement. Based upon Mr. Schoenhofer's experience, any plea offer at the 

outset of Mr. McGill's case would be a plea as charged for life in prison. 
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"13. The initial focus and direction of Mr. McGill's case (even before Mr. 

Schoenhofer got involved) was pursuing the issue of the confession and corpus 

delicti. Mr. McGill confirmed he was previously aware of the concept as a 

former police officer.

"14. Mr. Schoenhofer recalls Mr. McGill did not want a plea deal. If he had requested 

a plea offer, Mr. Schoenhofer would have gotten an offer from the State. Mr. 

McGill did not tell Mr. Schoenhofer he wanted a plea offer and did not direct him 

to obtain one. Conversely, Mr. McGill states he asked Mr. Schoenhofer to seek a 

plea offer and was always open to negotiations. Mr. Schoenhofer has never 

disregarded a client's request for a plea offer nor has he ever received a plea offer 

and failed to transmit it to a client. Mr. Schoenhofer did not withhold a plea offer 

made by the State. Mr. Schoenhofer never told Mr. McGill that even if he had 

received a plea offer from the State, he would not have informed him. Mr. 

Schoenhofer does not act without talking to his client first, including approaching 

the State to seek a plea offer. 

"15. This initial position did not change during the pendency of the motion to dismiss.

"16. Mr. Schoenhofer recalls ADA Mandee Schauf feeling as strong about her case as

Mr. Schoenhofer felt about his, and that the case would have to be decided by 

motion. There was no indication the State would take anything less than a plea as 

charged. 

"17. While Mr. Schoenhofer felt strongly about the corpus delicti defense, he never

promised or guaranteed a win. 

"18. After the Court denied Mr. Schoenhofer's motion to dismiss regarding corpus

delicti, he consulted with Mr. McGill about the three available options: First, 

enter a plea bargain and plea pursuant to that agreement. Second, proceed to a 

bench trial on stipulated facts. Third, have a jury trial. Mr. Schoenhofer discussed 

with Mr. McGill the option of negotiating a plea. Mr. Schoenhofer told Mr. 

McGill that if he desired a plea deal, he would approach the State, but he 

suggested they proceed on a stipulated facts trial and appeal. Mr. Schoenhofer 
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asked Mr. McGill to think it over, get counsel from his parents, and not make a 

hasty decision. Mr. McGill decided to proceed with a stipulated facts bench trial 

and appeal. Mr. McGill did so without instructing Mr. Schoenhofer to engage in 

plea negotiations. 

"19. Mr. Schoenhofer did not state that he would handle the direct appeal for free. 

Since Mr. McGill decided to forgo a jury trial and instead try the case to the 

Court on stipulated facts, Mr. Schoenhofer would handle the appeal for no 

additional cost, in that the $20,000.00 retainer covered the cost of the appeal. An 

additional $5,000.00 was paid to Mr. Schoenhofer to pursue a petition for review 

in front of the Supreme Court."

Based on these facts, the district court denied the petition. The court found "there 

is an insufficient basis to establish the [deficient performance] prong of the test for 

ineffective assistance of counsel" because even though the evidence showed some 

discussion of McGill's options, "the clear direction of the case from the very beginning 

was to fully pursue a motion to dismiss based upon corpus delicti [and] [t]here was no 

directive [by McGill] for Mr. Schoenhofer to pursue a plea offer." Similarly, the court 

found "there is an insufficient basis to establish the second prong [because] there is no 

evidence of prejudice to Mr. McGill. [Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 

2052, 80 L. Ed. 2d 674 (1984)]. Mr. McGill fails under either the Strickland or Cronic

standard."

McGill timely appealed.
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ANALYSIS

The district court did not err in denying McGill's ineffective assistance of counsel claim 

based on failure to engage in plea negotiations.

McGill argues first that the district court erred in denying his claim that his 

counsel was ineffective for failing to engage in plea negotiations on his behalf. McGill 

contends the court erroneously concluded he had failed to meet the burden to establish 

ineffective assistance under the first prong of the Strickland standard. McGill also asserts 

that if the panel agrees with his analysis, the court's failure to address the prejudice prong 

of Strickland in its ruling requires a remand to address that issue.

In response, the State contends the district court's conclusions about McGill's 

counsel's effectiveness are supported by substantial competent evidence. The State asserts 

the testimony elicited at the hearing established that McGill and his counsel made a joint 

decision about how to proceed based on the apparent lack of physical evidence to 

corroborate McGill's confessions, even agreeing to proceed with a bench trial on 

stipulated facts to preserve the corpus delicti issue for appeal. Likewise, the State asserts 

the testimony showed McGill never conveyed an express desire to enter plea negotiations 

because he supported and believed his counsel's strategy would succeed.

When presented with a K.S.A. 60-1507 motion, a district court 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 
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requiring a full hearing.' [Citations omitted.]" White v. State, 308 Kan. 491, 504, 421 P.3d 

718 (2018).

When a district court denies a K.S.A. 60-1507 claim after holding an evidentiary 

hearing—as the court did here on McGill's ineffective assistance claim based on the lack 

of plea negotiations—the court must issue findings of fact and conclusions of law on all 

issues presented at the evidentiary hearing. K.S.A. 2019 Supp. 60-1507(b); Supreme 

Court Rule 183(f) and (j) (2020 Kan. S. Ct. R. 223).

This court reviews 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. Fuller v. State, 303 Kan. 478, 485, 363 P.3d 373 (2015). Substantial 

evidence is legal and relevant evidence that a reasonable person could accept as adequate 

to support a conclusion. State v. Doelz, 309 Kan. 133, 138, 432 P.3d 669 (2019). This 

court does not reweigh the evidence or reassess the credibility of witnesses. State v. 

Chandler, 307 Kan. 657, 668, 414 P.3d 713 (2018). This court accepts as true the 

inferences supporting the district court's findings. State v. Morton, 286 Kan. 632, 641, 

186 P.3d 785 (2008). This court, however, exercises unlimited review over the district 

court's conclusions of law and its decision to grant or deny the K.S.A. 60-1507 motion. 

White, 308 Kan. at 504.

As McGill notes, Kansas courts ordinarily consider ineffective assistance claims 

under the two-prong analysis established in Strickland, 466 U.S. at 687. So to prevail on 

this claim, McGill needed to show "(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." State v. Salary, 309 Kan. 479, 483, 437 P.3d 953 (2019).
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On this point, McGill also references State v. Davis, 277 Kan. 309, 314, 85 P.3d 

1164 (2004), asserting that "[t]o prove deficiency of counsel, the movant must show that 

trial counsel made errors so serious that counsel's performance deprived the movant of a 

fair trial guaranteed by the Sixth Amendment to the U.S. Constitution." We find that 

McGill has not established ineffective assistance of trial counsel under either prong of the 

Strickland analysis.

McGill fails to show Schoenhofer rendered deficient performance.

McGill asserts the district court erroneously concluded that he did not meet the 

deficient performance prong from Strickland because there is not substantial competent 

evidence to support the court's factual findings and the resulting conclusion that he failed 

to sustain his burden as the movant. The State responds that the evidence adduced at the 

hearing showed that McGill agreed to the direction taken by Schoenhofer—which was to 

pursue the corpus delicti issue at the center of his direct appeal—and that McGill never 

directed Schoenhofer to pursue a plea agreement.

As explained, a defendant must establish deficient performance by showing that 

counsel's performance was objectively unreasonable under the totality of the 

circumstances, but there is a "strong presumption" that counsel provided "'adequate 

assistance and made all significant decisions in the exercise of reasonable professional 

judgment.'" State v. Kelly, 298 Kan. 965, 970, 318 P.3d 987 (2014) (quoting Chamberlain 

v. State, 236 Kan. 650, 655, 694 P.2d 468 [1985]). A defendant must identify specific 

acts or omissions by counsel that they allege did not result from exercising reasonably 

professional judgment, and then the reviewing court must then determine whether those 

acts or omissions fell outside the scope of professionally competent assistance. 

Strickland, 466 U.S. at 690.
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A defendant's Sixth Amendment right to counsel extends to the plea bargaining 

process. Lafler v. Cooper, 566 U.S. 156, 162, 132 S. Ct. 1376, 182 L. Ed. 2d 398 (2012). 

During plea negotiations, a defendant is entitled to the effective assistance of competent 

counsel. 566 U.S. at 162. A criminal defendant has the sole authority to determine what 

plea to enter as a right specifically exempted from attorney strategy decisions. Flynn v. 

State, 281 Kan. 1154, 1163, 136 P.3d 909 (2006).

The specific acts or omissions here were Schoenhofer's alleged failure to engage in 

plea negotiations early in the case at McGill's request, and purportedly his failure to do 

the same after the court denied the motion to dismiss. McGill's argument essentially 

comes down to his assertion that "any reasonable analysis of the testimony" must 

conclude that Schoenhofer was "absolutely convinced that he would win [McGill's] case 

based solely on the corpus delicti issue," and ultimately that his singular focus on this 

issue "was a clear and undeniable ineffective performance." Adopting this position would 

require reweighing the evidence, which this court will not do. Chandler, 307 Kan. at 668.

McGill's emphasis on the testimony about the lack of any plea offers in the record 

or that Schoenhofer's case file contained nothing saying McGill did not want a plea 

bargain is a misapplication of this court's standard of review. We must review the district 

court's factual findings for substantial competent evidence, so pointing out some contrary 

evidence in the record does not preclude the possibility that other evidence supports the 

court's ultimate legal conclusion that his counsel rendered adequate performance.

In addition, McGill's assertions ignore Schoenhofer's testimony that his confidence 

in the success of the corpus delicti motion reflected the Kansas caselaw on the issue at 

the time. But while McGill's petition for review was pending, the Kansas Supreme Court 

issued State v. Dern, 303 Kan. 384, 411-12, 362 P.3d 566 (2015), which changed the 

analysis of corpus delecti in Kansas to an inquiry regarding the trustworthiness of the 

confession—an approach that substantially weakened McGill's argument. Pursuing that 
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legal strategy so strongly did not lead to the outcome he expected, but that pursuit does 

not constitute deficient performance just because the appeal did not succeed and the law 

changed midstream. Here, the key fact comes down to whether McGill ever directed

Schoenhofer to pursue a plea bargain, and similarly, whether Schoenhofer unreasonably 

ignored any such request. More specifically, the question is whether McGill has shown 

the district court's factual findings on this point are supported by substantial competent 

evidence. Based on a review of the testimony at the hearing, there is substantial evidence 

to support the court's decision.

McGill and Schoenhofer both testified they discussed the possibility of a plea 

early in the case, but they disagreed about whether McGill specifically told Schoenhofer 

to obtain a plea offer from the State. Based on his experience, Schoenhofer believed any 

plea offer extended by the State early in the case would be to plead as charged, meaning 

Schoenhofer would be subject to the same life sentence as he ultimately received. 

Likewise, both of their testimonies established that McGill believed in and agreed to 

Schoenhofer's strategy to fully litigate the corpus delicti motion, even after the court 

denied relief on that issue. McGill also noted that after they lost the corpus delecti 

argument before the district court he realized that the chances of a plea bargain were 

gone. Simply put, McGill fails to show that the evidence available in the record cannot 

support the court's factual findings.

Moving on to the district court's ultimate legal conclusion that McGill failed to 

show deficient performance, his arguments are similarly unpersuasive. McGill's brief 

goes to great lengths to evaluate the evidence that discredits the court's factual findings 

but falls short when discussing the legal conclusions. A point raised incidentally in a brief 

and not argued in it is deemed abandoned. State v. Lowery, 308 Kan. 1183, 1231, 427 

P.3d 865 (2018). More importantly, McGill fails to overcome the "strong presumption"

courts exercise when evaluating trial counsel's strategic decisions. See Kelly, 298 Kan. at 

970.
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The closest McGill comes to establishing deficient performance is an assertion 

that "[n]o experienced lawyer believes that an appellate court won't change its mind, and 

overturn precedent," accompanied by a reference to a Kansas Supreme Court case from 

2015 about evaluating criminal history at sentencing which overturned a decision from 

the year before. Not only are those cases irrelevant to this issue, as the State succinctly 

explains, McGill "essentially faults [Schoenhofer] for failing to read the tea leaves and 

divine that his chosen strategy would ultimately prove unsuccessful." In short, the district 

court correctly concluded based on the evidence that Schoenhofer's performance was not 

deficient.

Even assuming Schoenhofer rendered deficient performance, McGill nonetheless 

fails to show prejudice.

McGill also contends the district court failed to address the prejudice prong, 

asserting that a remand is necessary if this court determines Schoenhofer rendered 

deficient performance. He asserts that he established prejudice, because "but for 

[Schoenhofer's] ineffectiveness the outcome would have been different, i.e., that 

[Schoenhofer's] ineffectiveness leads to a lack of confidence in the result of Mr. McGill's 

trial. Bledsoe v. State, 283 Kan. 81, 150 P.3d 868 (2007)." His argument is not 

persuasive.

To start, contrary to McGill's assertion, the district court's order denying the 

K.S.A. 60-1507 motion does address the prejudice prong. The court made factual 

findings that:

- McGill and Schoenhofer discussed plea negotiations at the start of the case.

- Schoenhofer believed and continually advised McGill that any plea offer 

would be a plea as charged for life in prison. Schoenhofer recalled the State 
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feeling strongly about the case and there was no indication the State would 

accept anything less than a plea as charged.

- Schoenhofer did not recall McGill directing him to seek a plea offer and would 

have done so if requested. Nor did Schoenhofer withhold any plea offers from

the State and he denied telling McGill that he would not have informed him of 

any plea offers.

- McGill stated he asked Schoenhofer to seek a plea offer and was always open 

to negotiations up until the court denied the motion to dismiss.

- After the court denied the motion to dismiss, Schoenhofer discussed three 

options with McGill, including plea negotiations, but advised they should 

proceed with a stipulated facts trial and appeal on the corpus delicti issue. 

McGill agreed to this approach without asking Schoenhofer to engage in plea 

negotiations.

Based on these facts, the district court concluded "there is an insufficient basis to 

establish the second prong—there is no evidence of prejudice to Mr. McGill."

Admittedly, the court's conclusions of law focus more on explaining that McGill failed to 

show deficient performance, but the court specifically concluded the evidence failed to 

establish prejudice under Strickland as well. For these reasons, this court is not required 

to remand for more consideration of the prejudice prong as McGill requests because the 

district court's factual findings and conclusions of law are sufficient for appellate review. 

See Robertson v. State, 288 Kan. 217, 232, 201 P.3d 691 (2009); Supreme Court Rule 

183(j).

As McGill notes, to meet the prejudice prong a K.S.A. 60-1507 movant must show 

a reasonable probability that, but for counsel's deficient performance, the outcome of the 

proceeding would have been different. A reasonable probability means "'a probability 

sufficient to undermine confidence in the outcome.'" Kelly, 298 Kan. at 970. So in other 

words, McGill needed to show that engaging in plea negotiations would have led to a 
15

different outcome than the conviction and controlling sentence he received of a life

sentence without the possibility of parole for 25 years. Simply put, McGill has not shown 

he is entitled to relief on this point.

First, McGill's brief minimally addresses the prejudice prong, seemingly because 

he believed the district court had failed to address prejudice in its ruling on this claim. 

His entire argument consists of two references to Bledsoe, 283 Kan. 81, both without a 

meaningful application to the facts of his case. As a result, we deem this claim abandoned 

for inadequate briefing. See Salary, 309 Kan. at 481 (issues not adequately briefed 

deemed waived or abandoned); Lowery, 308 Kan. at 1231 (points raised incidentally and 

not argued in a brief are also deemed abandoned).

Second, based on the testimony elicited at the hearing, there was no reasonable 

probability that merely entering plea negotiations would have led to a lesser sentence. 

Schoenhofer repeatedly testified that he believed the State would not offer anything less 

than for McGill to plead as charged to life in prison. As the United States Supreme Court 

has recognized, "[p]lea bargains are the result of complex negotiations suffused with 

uncertainty, and defense attorneys must make careful strategic choices in balancing 

opportunities and risks." Premo v. Moore, 562 U.S. 115, 124, 131 S. Ct. 733, 178 L. Ed. 

2d 649 (2011).

The facts in Premo are not directly analogous to the facts here because the 

defendant in that case argued his counsel was ineffective for advising him to enter a 

guilty plea rather than pursue a motion to suppress. Still, the Court's analysis provides 

helpful guidance when considering potential prejudice from a trial counsel's strategic 

decision about plea negotiations rather than another strategy. As the Court explained, 

"The stakes for defendants are high, and many elect to limit risk by forgoing the right to 

assert their innocence. A defendant who accepts a plea bargain on counsel's advice does 
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not necessarily suffer prejudice when his counsel fails to seek suppression of evidence, 

even if it would be reversible error for the court to admit that evidence." 562 U.S. at 129.

Surely the same would be true for a defendant who agrees not to entertain plea 

negotiations on his counsel's advice. In short, McGill's willingness in hindsight to accept 

a lower sentence has little bearing on whether he was prejudiced by his counsel's actions 

for this claim.

Third, and alternatively, the United States Supreme Court has also recognized an 

exception when an ineffective assistance of counsel claim turns on a complete denial of 

assistance at a critical stage of a criminal proceeding. See United States v. Cronic, 466

U.S. 648, 658-59, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984). Plea negotiations constitute a 

critical stage of a defendant's criminal proceedings. See Lafler, 566 U.S. at 162 

("Defendants have a Sixth Amendment right to counsel, a right that extends to the pleabargaining process."). Under the so-called Cronic exception, a court presumes prejudice 

and a movant "is 'spared . . . the need of showing probable effect upon the outcome.'"

Fuller, 303 Kan. at 487. This makes sense, given the uncertainty discussed surrounding 

plea negotiations discussed in Premo.

But even under the Cronic exception, McGill must show that his counsel rendered 

deficient performance. Because substantial competent evidence supports the district 

court's findings on the first prong of Strickland and McGill has not proved otherwise, a 

presumption of prejudice does not entitle him to relief on this claim.

For these reasons, we affirm the district court's decision concluding Schoenhofer 

did not render ineffective assistance for failing to engage in plea negotiations on McGill's 

behalf.
17

The district court did not err in summarily denying McGill's ineffective assistance of 

counsel claim based on counsel's failure to pursue suppression of his confessions.

McGill also argues the district court erred by summarily denying his ineffective 

assistance claim that stemmed from his counsel's alleged failure to seek suppression of 

his confessions. He asserts that Schoenhofer deliberately chose not to seek suppression, 

despite a purportedly viable argument based on McGill's Fifth Amendment rights.

In response, the State argues the district court correctly determined McGill had 

failed to establish ineffective assistance of counsel. The State asserts that McGill never 

affirmatively invoked his Fifth Amendment rights against self-incrimination, nor did he 

show any relevant exceptions applied. Thus, as the court ultimately concluded, any 

suppression motion would have likely failed, so Schoenhofer did not provide ineffective 

assistance by not filing a suppression motion.

To start, some clarification of McGill's claim is helpful. McGill argued in his 

K.S.A. 60-1507 motion that Schoenhofer provided ineffective assistance by failing to 

challenge the admission of each of his three confessions as violations of (1) his Fifth 

Amendment right against self-incrimination; and (2) the Kansas statutory codification of 

the right against self-incrimination, as in K.S.A. 2019 Supp. 60-460(f). Yet McGill only 

carries forward some of these arguments on appeal, specifically that his statements on the 

polygraph questionnaire and to his therapist violated his Fifth Amendment rights. As a 

result, McGill has waived or abandoned the issues not raised in his brief. State v. Arnett, 

307 Kan. 648, 650, 413 P.3d 787 (2018) (issues not briefed are deemed 

waived/abandoned). In other words, we need not consider McGill's claim to the extent 

that it depends on K.S.A. 2019 Supp. 60-460(f) or on suppression of his confession to his 

wife.
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When a district court summarily denies a K.S.A. 60-1507 motion based only on 

the motions, files, and records after a preliminary hearing, the appellate court is in just as 

good a position as the district court to consider the merits de novo. Grossman v. State, 

300 Kan. 1058, 1061, 337 P.3d 687 (2014). While McGill acknowledges that the district 

court summarily denied this ineffective assistance claim without holding an evidentiary 

hearing, his brief does not address whether he was entitled to an evidentiary hearing, i.e.,

whether more evidence is needed to establish his claim. Similarly, McGill apparently 

concedes that the district court's factual findings are accurate. According to McGill, the 

only inquiry for this court is to determine whether he has shown ineffective assistance in 

his trial counsel's decision to not seek suppression of the statements made on the 

polygraph questionnaire and to his sex offender treatment counselor.

To prevail on a claim of ineffective assistance, McGill must show that (1) his 

counsel rendered deficient performance under the totality of the circumstances; and 

(2) the outcome would have been different but for the deficient performance. See Salary, 

309 Kan. at 483. Under the deficient performance prong, courts generally will defer to 

counsel's strategic decisions made in the exercise of reasonable professional judgment. 

See Kelly, 298 Kan. at 970. To overcome this strong presumption, a K.S.A. 60-1507 

movant like McGill must identify and allege specific acts or omissions by counsel that 

fall outside the scope of professionally competent assistance. Strickland, 466 U.S. at 690. 

The Fifth Amendment provides that "[n]o person . . . shall be compelled in any 

criminal case to be a witness against himself." U.S. Const. amend. V. This privilege 

against self-incrimination applies to permit a defendant to refuse to testify against himself 

at a criminal trial and also when called on to "'answer official questions put to him in any 

other proceeding, civil or criminal, formal or informal, where the answers might 

incriminate him in future criminal proceedings.'" Minnesota v. Murphy, 465 U.S. 420,

426, 104 S. Ct. 1136, 79 L. Ed. 2d 409 (1984) (quoting Lefkowitz v. Turley, 414 U.S. 70, 

77, 94 S. Ct. 316, 38 L. Ed. 2d 274 [1973]). "To qualify for the Fifth Amendment 
19

privilege, a communication must be testimonial, incriminating, and compelled." Hiibel v. 

Sixth Judicial Dist. Court of Nevada, Humboldt County, 542 U.S. 177, 189, 124 S. Ct. 

2451, 159 L. Ed. 2d 292 (2004) (citing United States v. Hubbell, 530 U.S. 27, 34-38, 120 

S. Ct. 2037, 147 L. Ed. 2d 24 [2000]).

Generally, an individual must affirmatively assert his Fifth Amendment right 

rather than answer to avoid making the incriminating statement. See Murphy, 465 U.S. at 

429. But the United States Supreme Court has recognized some self-executing exceptions 

in which "some identifiable factor 'was held to deny the individual a "free choice to 

admit, to deny, or to refuse to answer."'" 465 U.S. at 429. 

Here, the relevant exception invoked by McGill is the so-called "penalty"

exception, where an individual's assertion "is penalized so as to 'foreclos[e] a free choice 

to remain silent, and . . . compe[l] . . . incriminating testimony.'" 465 U.S. at 434 (quoting 

Garner v. United States, 424 U.S. 648, 661, 96 S. Ct. 1178, 47 L. Ed. 2d. 370 [1976]). In 

Murphy the Court held that where the State "either expressly or by implication, asserts 

that invocation of the privilege would lead to revocation of probation," that assertion 

would lead to the "classic penalty situation [in which] the failure to assert the privilege 

would be excused, and the probationer's answers would be deemed compelled and 

inadmissible in a criminal prosecution." 465 U.S. at 435. But because Murphy's probation 

officer never threatened that refusal would lead to a probation revocation, the Court 

ultimately concluded Murphy's incriminating statements were voluntary. 465 U.S. at 437-

39.

In contrast, McGill asserts the Tenth Circuit Court of Appeals decision in Von 

Behren is analogous to the facts here. In that case, the court applied Murphy in the 

context of a defendant required to answer potentially incriminating questions about his 

sexual history on a polygraph questionnaire. United States v. Von Behren, 822 F.3d 1139,

1148 (10th Cir. 2016). Unlike Murphy, the Tenth Circuit held that Von Behren's 
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statements were compelled because the government had expressly asserted it would seek 

his remand to prison if he refused to answer the incriminating questions. Thus, this 

"threat constituted unconstitutional compulsion within the meaning of the Fifth 

Amendment." 822 F.3d at 1150. More recently, in United States v. Richards, 958 F.3d 

961, 967-68 (10th Cir. 2020), the Tenth Circuit reiterated both the Murphy and Von 

Behren holdings. The court concluded that merely requiring a defendant to submit to 

periodic polygraph testing did not violate his Fifth Amendment rights because no 

government actor had threatened to revoke Richards' supervised release for refusing to 

answer a question. 958 F.3d at 967-68. 

Here, McGill concedes he never directly invoked his Fifth Amendment rights, but 

asserts his rights were self-executing under Von Behren because of an "implied threat"

that the State would revoke his probation and send him to prison if he failed to answer 

questions truthfully. McGill asserts the State impermissibly coerced his alleged 

confessions, thus violating his Fifth Amendment rights against self-incrimination. In 

reaching that conclusion, McGill argues the district court erroneously relied on Murphy,

465 U.S. at 426, instead of Von Behren, 822 F.3d at 1147, to conclude a hypothetical 

suppression motion would have been successful.

In response, the State argues the district court correctly relied on Murphy because

McGill never invoked his Fifth Amendment rights when making the statements, nor did 

the State directly threaten him in such a way to render his Fifth Amendment rights selfexecuting. For that reason, the State asserts McGill failed to show how the facts here are 

not analogous to Murphy so that the suppression motion would have succeeded, thus the 

court correctly denied his ineffective assistance claim. We agree with the State.

Unlike Von Behren, McGill was not compelled to answer the questions after first

refusing. He self-reported the sexual encounters on a prepolygraph questionnaire and 

later refused to take the actual polygraph examination. Then he disclosed the same 
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information to his sex offender treatment counselor at a scheduled session, after 

appearing nervous and being told by the therapist that he would receive of copy of 

McGill's polygraph results. McGill fails to show how his situation differs from the 

defendant's in Murphy, in that there was no evidence of a direct or implied threat 

premised on invoking his Fifth Amendment rights before he provided the incriminating 

statements.

Alternatively, the State points out that a suppression motion based only McGill's 

Fifth Amendment rights related to two of his confessions would not automatically lead to 

suppression of the third confession to his wife. Recall that on direct appeal, this court 

affirmed the district court's decision to deny the motion to dismiss and, in doing so, 

concluded that his wife's testimony corroborated the details of his confessions to make 

them admissible as corpus delicti of the charged offenses. McGill, 50 Kan. App. 2d at 

224-25. The panel addressed several aspects of her testimony lending credibility to all 

three confessions, including: (1) his daughter's ages matched the ages he described in 

each confession; (2) his daughter's middle names matched the victims' names as 

described on the polygraph questionnaire; (3) he was alone with his daughters at the 

relevant times; (4) he sometimes showered with one of his daughters, which the panel 

saw as a "significant unique fact contained in McGill's confessions"; (5) the confessions 

were three separate statements made to non-law enforcement persons before an 

investigation formally began; and (6) his demeanor and behavior before each confession. 

50 Kan. App. 2d at 222-24.

Since McGill is now only arguing that his counsel should have moved to suppress 

the statements on the written polygraph questionnaire and made to his therapist, the 

confession to his wife would still be admissible. In other words, even if this court accepts 

McGill's argument that his counsel's failure to file a suppression motion amounted to 

deficient performance, he cannot demonstrate prejudice because the last confession to his 
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wife coupled with her corroborating testimony would still be enough to lead to a 

conviction.

Simply put, McGill fails to demonstrate an express threat akin to the assertions 

made by the government in Von Behren. As a result, the district court correctly concluded 

that a suppression motion was unlikely to have succeeded, and therefore, his counsel was 

not ineffective for failing to file the motion.

Affirmed.