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NOT DESIGNATED FOR PUBLICATION

No. 124,234

 

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

DEREK BRICE,

Appellant,

v.

STATE OF KANSAS,

Appellee.

MEMORANDUM OPINION

Appeal from Labette District Court; ROBERT J. FLEMING, judge. Opinion filed July 22, 2022. 

Affirmed.

Kristen B. Patty, of Wichita, for appellant. 

Michael R. Serra, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.

Before HURST, P.J., BRUNS and GARDNER, JJ.

PER CURIAM: Derek Brice appeals the district court's denial of his K.S.A. 60-1507 

motion. That motion alleged, among other matters, that Brice's appellate counsel was 

constitutionally ineffective for not raising on direct appeal trial counsel's failure to 

request at trial a lesser included offense instruction on aggravated battery. Finding no 

error, we affirm.
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Factual and Procedural Background

For crimes committed in June 2007, a jury convicted Brice of two counts of 

attempted, premeditated first-degree murder and one count of aggravated assault. Another 

panel of this court affirmed Brice's convictions. State v. Brice, No. 100,513, 2009 WL 

2501082 (Kan. App. 2009) (unpublished opinion). Brice then timely filed a K.S.A. 60-

1507 motion, arguing his convictions should be overturned because both his trial and 

appellate counsel were constitutionally ineffective.

The district court appointed counsel for Brice and held an evidentiary hearing on 

the motion. Brice, the only witness, testified that his trial counsel had not requested an 

aggravated battery instruction at trial as he should have. He argued that his trial and 

appellate counsel were ineffective for failing to request the instruction or raise it on 

appeal, respectively. The district court denied Brice's motion, finding aggravated battery 

was not a lesser included offense of attempted, premeditated first-degree murder, and that 

the court would not have given the instruction had Brice's trial counsel requested it. 

Brice timely appeals. 

Was Appellate Counsel Constitutionally Ineffective?

The sole issue briefed on appeal is whether Brice's appellate counsel, Ryan 

Eddinger, was ineffective for not raising on direct appeal the omission at trial of a lesser 

included offense instruction on aggravated battery.

When, as here, a district court conducts a full evidentiary hearing on claims raised 

under K.S.A. 60-1507, we review the district court's factual findings for substantial 

competent evidence, and the district court's legal conclusions de novo. Khalil-Alsalaami 

v. State, 313 Kan. 472, 486, 486 P.3d 1216 (2021). "'Substantial competent evidence is 
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that which possesses both relevance and substance and which furnishes a substantial basis 

in fact from which the issues can reasonably be resolved.'" State v. Sanders, 310 Kan. 

279, 294, 445 P.3d 1144 (2019). We do not reweigh evidence, pass on the credibility of 

witnesses, or resolve evidentiary conflicts. Khalil-Alsalaami, 313 Kan. at 486-87.

General Legal Principles

The Sixth Amendment to the United States Constitution guarantees in "all criminal 

prosecutions" that "the accused shall enjoy the right . . . to have the Assistance of 

Counsel for his defence." This right to counsel is the right to reasonably effective 

assistance of counsel. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 

L. Ed. 2d 674 (1984); see Miller v. State, 298 Kan. 921, 929, 318 P.3d 155 (2014) ("The 

Sixth Amendment right to counsel is made applicable to state proceedings by the 

Fourteenth Amendment to the United States Constitution.").

To establish ineffective assistance of counsel on appeal, Brice must show that 

(1) counsel's performance, based on the totality of the circumstances, was deficient, 

meaning it fell below an objective standard of reasonableness, and (2) counsel's 

performance prejudiced him, meaning there is a reasonable probability that, but for 

counsel's deficient performance, his appeal would have been successful. See KhalilAlsalaami, 313 Kan. at 526. Deficient performance means "counsel made errors so 

serious that counsel was not functioning as the 'counsel' guaranteed . . . by the Sixth 

Amendment." Strickland, 466 U.S. at 687. To determine whether appellate counsel's 

performance was objectively reasonable, the reviewing court "'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).
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We employ a strong presumption that counsel's conduct was reasonable. State v. 

Cheatham, 296 Kan. 417, 432, 292 P.3d 318 (2013). The failure of appellate counsel to 

raise an issue on appeal is not, per se, ineffective assistance of counsel. Miller, 298 Kan. 

at 932. And "appellate attorneys are not required to raise issues that are weak, meritless, 

or would result in only harmless error." Khalil-Alsalaami, 313 Kan. at 527. "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, 

243 Kan. at 10.

Analysis

Brice argues that Eddinger was constitutionally ineffective because he failed to 

argue on Brice's direct appeal that the district court should have instructed the jury on the 

lesser included offense of aggravated battery. Brice claims the aggravated battery

instruction was appropriate because some evidence showed that the victims, who had 

pulled a gun on him earlier on the day he shot them, survived the shooting. But even if 

that summary of the evidence is accurate, it speaks only to the facts.

Instructions also need to be legally appropriate. Yet Brice fails to point to a 

specific error in the district court's factual or legal findings. Brice relies solely on State v. 

Smith, 245 Kan. 381, 391-92, 781 P.2d 666 (1989); State v. Riley, 26 Kan. App. 2d 533, 

534, 989 P.2d 792 (1999), and State v. Morfitt, 25 Kan. App. 2d 8, 16, 956 P.2d 719 

(1998), to support his argument that because the victims survived, the lesser included 

offense instruction on aggravated battery should have been given. Yet he fails to explain 

how these cases support that result. And he recognizes that State v. Schoonover, 281 Kan. 

453, 484-85, 133 P.2d 48 (2006), disapproved Smith and its line of cases and that State v. 

Gaither, 283 Kan. 671, 691-92, 156 P.3d 602 (2007), held aggravated battery was not a 

lesser included offense of attempted first-degree murder.
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Nor does Brice analyze the issue under the lesser included offense statute in effect 

when he committed his crimes. Because Brice essentially makes no substantive argument 

in this appeal, we could dismiss this appeal. See State v. Gallegos, 313 Kan. 262, 277, 

485 P.3d 622 (2021) (issues inadequately briefed are considered waived and abandoned); 

State v. Meggerson, 312 Kan. 238, 246, 474 P.3d 761 (2020) (issues incidentally raised 

but not argued are considered waived or abandoned).

But in an abundance of caution, we review the merits. Still, Brice's argument fails. 

True, Eddinger did not raise the instructional issue on direct appeal. See Brice, 2009 WL 

2501082. But to determine whether Eddinger was ineffective, we must determine 

whether Eddinger should have raised the jury instruction issue for the first time on direct 

appeal. To do so, Eddinger would have had to overcome the "clearly erroneous" standard 

we apply on appeal when counsel fails to request a jury instruction at trial. See K.S.A. 

2021 Supp. 22-3414(3); State v. Anthony, 282 Kan. 201, 215, 145 P.3d 1 (2006). Under 

this standard, the appellate court must be "firmly convinced there is a real possibility that 

the jury would have rendered a different verdict if the error had not occurred." 282 Kan. 

at 215.

At the time of Brice's crimes, a criminal defendant was generally entitled to an 

instruction on a lesser included offense, so long as the evidence, when viewed in a light 

most favorable to the defendant's theory, would justify a verdict in accord with the 

defendant's theory. State v. Boorigie, 273 Kan. 18, 40, 41 P.3d 764 (2002). But such an 

instruction was improper if, from that evidence, the jury could not reasonably convict the 

defendant of the lesser offense. State v. Robinson, 261 Kan. 865, 883, 934 P.2d 38 

(1997).

The State charged Brice with two counts of attempted, premeditated first-degree 

murder in violation of K.S.A. 2006 Supp. 21-3301 and K.S.A. 21-3401(a). Though he 

does not specify which version of the statute applied, at the time of Brice's crimes the 
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criminal statute described "aggravated battery" at the highest severity level as 

"[i]ntentionally causing great bodily harm to another person or disfigurement of another 

person." K.S.A. 21-3414(a)(1)(A). At that time, a lesser included crime was defined as a 

lesser degree of the same crime, or a crime where all elements of the lesser crime were

identical to some of the elements of the crime charged. K.S.A. 2006 Supp. 21-3107(2). 

Yet Brice meets neither the "lesser degree" nor the "same elements" test.

The Kansas Supreme Court in Gaither held that aggravated battery was not a 

lesser included offense of attempted first-degree murder under the "lesser degree" 

subsection of the statute because each crime is defined by the harm caused rather than by 

the act performed. 283 Kan. at 691-92. So it is inconsequential if the State charged the 

defendant with "attempted" first-degree murder because the attempt statute "does not 

alter the basic definition for the underlying crime." 283 Kan. at 692.

The Gaither court also held that aggravated battery was not a lesser included 

offense of first-degree murder under the "same elements" test, which requires that "all 

elements of [aggravated battery] are identical to some of the elements of the crime 

charged." K.S.A. 2006 Supp. 21-3107(2)(b). This is because premeditated first-degree 

murder requires the intent to kill, while aggravated battery, even at its highest severity 

level, requires the intent to cause great bodily harm. K.S.A. 21-3401(a); K.S.A. 21-

3414(a)(1)(A). Aggravated battery thus has a different element than first-degree murder. 

Although Brice bases his argument, in part, on what the evidence may have shown about 

the day of the shooting, the same elements test is concerned solely with the statutory 

elements of the offenses and has nothing to do with the evidence presented at trial. See 

State v. Gonzalez, 311 Kan. 281, 296, 460 P.3d 348 (2020).

When, as here, we lack testimony from the allegedly ineffective appellate counsel 

as to why he or she did not raise the issue, we presume that appellate counsel's choice of 

issues to raise on appeal resulted from reasonable professional judgment. Pabst v. State, 
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287 Kan. 1, 18, 192 P.3d 630 (2008). This is particularly so here, when appellate counsel 

would have had to argue against the law then in effect. Because Brice did not call 

Eddinger to testify at the hearing, Brice cannot overcome the strong presumption of 

constitutional effectiveness. See Cheatham, 296 Kan. at 432. As a result, Brice fails to

meet his burden to show that Eddinger's performance was inadequate.

Nor does Brice argue the second Strickland prong—that Eddinger's representation 

prejudiced him. This failure to show prejudice independently warrants our affirmance of 

the district court since Brice has the burden to show both error and prejudice when 

asserting ineffective assistance of counsel. See State v. Crosby, 312 Kan. 630, 639, 479 

P.3d 167 (2021).

As a result, Brice's argument fails to show that Eddinger provided constitutionally 

ineffective representation. All other issues are waived and abandoned for lack of briefing. 

See State v. Davis, 313 Kan. 244, 248, 485 P.3d 174 (2021).

Affirmed.