1 NOT DESIGNATED FOR PUBLICATION

No. 12 1,958

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

B RANDON J. H ARDYWAY , Appell ant ,

v.

S TATE OF K ANSAS , Appell ee

.

MEMORANDUM OPINION

Appeal from Sedgwick District Court; D EBORAH H ERNANDE Z M ITCHELL , judge. Opinion filed
December 18 , 2020

. Affirmed

.

Wendie C. Miller , of Kenneth B. Miller, Att orne y at Law, of Wichita, for appellant.

Matt J. Maloney , assistant district attorney, Marc Bennett , district attorney, and Derek Schmidt , att orney general, for appellee.

Before H ILL , P.J., B RUNS and S CHROEDER , JJ.

P ER C URIAM : Brandon J. Hardyway appeals the summary dismissal of his K.S.A. 2019 Supp. 60

- 1507 motion , argu ing the district court erred in finding his appellate
counsel was n ot in effective when appealing the denial of his plea withdrawal motion. Finding no error by the district court, we affirm.2 F ACTS

Hardyway was originally charged with first

- degree murder and criminal possession of a firearm. As a result of plea negotiati on s w ith the State, Hardyway pled guilty to second

- degree murder, criminal discharge of a firearm, and aggravated assault

. I n exchange for his pleas to the amended charges, the State agreed to recommend Hardyway be sentenced to the high number in the appro pr iat e sentencing grid box for each charge, the sentences run consecutive, and the presumptive sentence

— imprisonment

— be imposed. However, Hardyway was free to argue for a departure. Prior to entering his pleas, Hardyway signed a document entitled "Defen dan t ' s Acknowledgment of Rights and Entry of Plea," indicating his attorney had advised him of the terms of the plea agreement and he understood the consequences of entering his pleas.

At the plea hearing, the district court informed Hardyway of the righ ts he was waiving by entering a plea instead of going to trial and asked Hardyway whether he understood the plea agreement. Hardyway indicated he did. The district court further advised Hardyway of the potential penalties for the charges he intended to ple ad to and informed him the court was not bound by the parties ' sentencing recommendations. Hardyway indicated he understood this as well. Hardyway further assured the district court his plea had not been induced by any threats or promises and he was satisf ied w ith the assistance of his attorney. The district court found Hardyway ' s plea s w ere knowingly, voluntarily, and intelligently made ; accepted his pleas ; and found him guilty based on the
fa ctual basis p rovided.

Prior to sentencing, Hardyway filed a mo tio n for downward durational departure. At sentencing, Hardyway expressed some concerns about the plea agreement, his attorney ' s performance , and what his attorney may have told him, stating:3 "[T]hat downward departure was put in my plea as I was going to ge t it. That ' s what I was
told. I was

— I was going to get that downward departure. . . . I was told I was going to get a downward departure, until [ a ] couple of days ago, and my lawyer said, well, now, we

can ' t get it, you know, and I mean, I ' m not sa yin g th at to say, well, I shouldn ' t [have taken] the plea. I admitted to what I did, you know what I mean, I just want

— I just want
the Court to know that that wasn ' t the allegations of

— of the plea. And

— and I feel like, you know what I mean, I was misused b y m y at torney. He

— he mis

— misdirected me, as far as that plea agreement went. I

— I already

— I ' m guilty. I pled guilty. I ' m willing to go do whatever time I got to do, ' cause I did that

. "But considering the fact of how I was represented and

— and

— and the val ue of

m y

— my lawyer ' s help, it wasn ' t good as far as that plea."

The district court did not inquire whether Hardyway wanted to withdraw his plea s but stated:

" I just simply want to respond for purposes of the record, there is no language in the plea

ag ree ment guaranteeing a ny durational departure

. "Also, for purposes of the record, this Court was the Court that took the plea. And as is my custom, habit, and I legally have to do it, I informed Mr. Hardyway that the Court was not bound by the plea. Th e C ourt would sentence Mr. Hardyway to a sentence that the Court believed to be legally appropriate under the circumstances."

The district court denied Hardyway ' s departure motion and sentenced him to 293 months ' imprisonment

. Hardyway ' s sentences were af fir med by another panel of this court on direct appeal. State v. Hardyway , No. 102,915, 2010 WL 4103493, at *1 (Kan. App. 2010) (unpublished opinion).

Hardyway subsequently filed a motion to withdraw his plea s , claiming there was
not a sufficient factual ba sis. The district court initially dismissed his motion as untimely filed. However, based on Hardyway ' s motion to reconsider, claiming his direct appeal counsel had not informed him his petition for review was denied, the district court set the4 matter fo r a n ev identiary hearing. Prior to the evidentiary hearing, Hardyway filed an amended motion, alleging his plea counsel was ineffective for failing to adequately explain the plea agreement , investigate defense s or explore trial strategies , explain the
dist ric t co urt was not required to grant the departure motion , and investigate mitigating factors supporting a departure. The district court conducted a three

- day evidentiary hearing at which Hardyway, his plea counsel, his wife, and his mother testified.

Ha rdy way testified his attorney, Daniel Phillips, met with him only three or four times in jail over the course of a year and did not review police reports with him because he did not have time. Hardyway indicated he wanted to go to trial on the original cha rge s of first

- degree murder and criminal possession of a firearm. Hardyway claimed he gave Phillips a list of witnesses to investigate , but Phillips never told him it had been done. He further claimed Phillips did not discuss trial preparation with him or eve n te ll him what the State was required to prove at trial. Hardyway also testified Phillips told him there was a ballistics report indicating the weapon Hardyway had been seen throwing from a vehicle was the murder weapon, and , based on the ballistics re por t, H ardyway had no chance at trial and it was in his best interests to take a plea deal.

Hardyway testified Phillips subsequently presented him a plea offer from the State amending the charges to second

- degree murder, criminal discharge of a firearm, and

agg ravated assault , with the State agreeing he could seek a downward departure. He claimed Phillips did not explain what a departure was or tell him the sentencing judge did not have to grant a departure. Based on what Hardyway claimed he had (or had n ot) bee n told, he asserted he believed he would receive a downward departure sentence under the plea agreement. Hardyway acknowledged the district court informed him at the plea hearing it would not be bound by the plea agreement at sentencing but maintain ed he d id not understand he was not guaranteed a departure sentence. He alleged it was only before the sentencing hearing he found out he was not guaranteed a departure. Hardyway5 asserted he did not freely enter his plea because he only pled to obtain a de par ture sentence and he did not believe Phillips was prepared to defend him at trial.

Hardyway ' s wife and mother both testified Phillips told them the State made a plea offer, asked them to discuss it with Hardyway, and told them if Hardyway did not acce pt the plea offer, then the State would amend the charge s to capital murder and Hardyway would be given a life sentence. They both testified they told Hardyway to accept the plea
offer.

Phillips testified he visited Hardyway numerous times to determine w hat def enses could be raised and how they could be presented at trial. Phillips testified he read the police reports with Hardyway and reviewed the ballistics report he received two weeks
before trial. Phillips indicated it was an eyewitness case and multi ple wit nesses identified Hardyway as the shooter. After receiving the ballistics report indicating the weapon Hardyway was seen throwing to the ground after the shooting was the murder weapon, Phillips told Hardyway it was "one more convincing nail in the cof fin" and it was likely he would be found guilty at trial.

Phillips testified he spent "an extra amount of time working with [Hardyway]" due to the nature of the charges and Hardyway ' s initial desire to take the case to trial. Phillips
testified when H ard yway learned of the results of the ballistics test, "then [Phillips] would have to say in [Hardyway ' s] mind the last wall came tumbling down." Based on Hardyway ' s reaction to the results of the ballistics test and his discussions with Hardyway
at that t ime , Ph illips sought a plea offer from the State. Phillips wanted to obtain a plea offer that would give Hardyway a chance to eventually get out of prison. Phillips explained the State ' s plea offer to Hardyway and told him he would file a departure
motion. Ha rdyw ay wanted Phillips to argue for probation but Phillips told Hardyway there was no chance he would receive probation. Phillips also told Hardyway the chance6 of receiving a departure sentence was "remote." Phillips further testified he explained to
Ha rdy way the district court was not bound by the plea agreement.

Phillips believed even if the district court gave Hardyway the maximum possible sentence, the plea agreement was advantageous because Hardyway would not be on lifetime parole and could be rel eas ed f rom prison by his mid

- 40s. Phillips testified he never told Hardyway he would receive a durational departure to 180 months ' imprisonment. Phillips further testified he never told Hardyway ' s mother the State would increase the charges if Hardyway did no t ac cept the plea. He said he never would have conveyed a message like that to Hardyway. Phillips stated the notion he would do so was
"ridiculous."

The district court determined Hardyway did not request his pleas be set aside before sentencing; there for e, H ardyway was required to show manifest injustice in order to withdraw his pleas. See K.S.A. 2019 Supp. 22

- 3210(d)(2) . The district court denied Hardyway ' s motion, finding Phillips provided reasonable professional assistance; Phillips did not promise Har dywa y he would receive a departure sentence; and Hardyway knowingly, voluntarily, and intelligently entered his pleas. Hardyway appealed the denial
of his motion , and another panel of this court affirmed. State v. Hardyway , No. 109,777, 2014 WL 1887647, at *1 (Kan. App. 2014) (unpublished opinion).

In affirming the district court ' s decision, the panel noted Hardyway waived or abandoned his argument Phillips was ineffective because Hardyway failed to brief the point. Still, the panel indicated Phillips ' te stim ony

— if believed

— showed Hardyway
received constitutionally effective assistance of counsel. The panel further held the district court properly determined Hardyway was not misled into entering his pleas and did so knowingly, intelligently, and volunta ril y. 2 014 WL 1887647, at *3

- 4

.7 Hardyway subsequently filed a K.S.A. 60

- 1507 motion from which this appeal arises. In his motion, Hardyway argued his appellate counsel was ineffective for failing to
raise various claims of ineffective assistance of couns el by P hillips and failing to argue the district court appl ied an incorrect legal standard to his plea withdrawal motion. Specifically, Hardyway argued his appellate counsel was ineffective for: (1) failing to

argue Phillips was ineffective for not making su re H ardyway understood the plea agreement; (2) failing to argue Phillips was ineffective for not spending enough time to properly explain the plea agreement; (3) failing to argue Phillips was ineffective for not investigating and discussing with Hardywa y p oten tial defenses, trial strategy, or pretrial motions; (4) failing to argue Phillips was ineffective for not adequately investigating and presenting mitigating evidence to support a departure; and (5) failing to argue the district court should have app lie d th e presentence good cause standard to Hardyway ' s plea
withdrawal motion. See K.S.A. 2019 Supp. 22

- 3210(d)(1)

.

The district court summarily denied relief, stating it already found Hardyway ' s plea counsel provided effective representation and it woul d n ot a llow Hardyway to relitigate his underlying ineffective assistance of counsel claims. Additional facts are set forth as necessary herein.

A NALYSIS

Hardyway ' s arguments require us to apply multiple standards of review. Put simply, he asserts a thre e
- l ayer ed claim of error. First, his plea counsel was ineffective
and Hardyway should have been allowed to withdraw his pleas as a result. Second, his appellate counsel was ineffective in appealing the denial of his motion to withdraw his plea. Third, the dis tric t court erred in summarily d ismissing his K.S.A. 60

- 1507 motion wherein he asserted his appellate counsel was ineffective. Given the procedural posture of this case, we will discuss each of the applicable standards of review in reverse order.8 Stand ard of Review

A district court has three options when handling a K.S.A. 60

- 1507 motion:

" ' (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 co urt 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 cou rt may determine from the motion, files, records, or preliminary hearing that a substantial issue is presented requiring a full hearing. ' [Citations omitted.]" White v. State , 308 Kan. 491, 504, 421 P.3d 718 (2018)

.

H ere, the district court summarily dism iss e d H ardyway ' s K.S.A. 60

- 1507 motion ; thus ,

we conduct a d e novo review to determine whether the motion, files, and records of the case conclusively establish that the movant is not entitled to relief. Beauclair v. State , 308 Kan. 284, 293, 419 P.3d 1180 (2 018)

.

To establish ineffective assistance of counsel on appeal, a criminal defendant must show that (1) counsel ' s performance, based upon the totality of the circumstances, was deficient in that it fell below an objective standard of reasonableness an d ( 2) t he defendant was prejudiced to the extent that there is a reasonable probability that, but for
counsel ' s deficient performance, the appeal would have been successful. Miller v. State , 298 Kan. 921, 930

- 31, 934, 318 P.3d 155 (2014) . The failure of ap pel late counsel to raise an issue on appeal is not, per se, ineffective assistance of counsel. 298 Kan. at 932.

"To correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw the plea ." K.S. A. 2019 Supp. 22

- 3210(d)(2) . Generally, an appellate court will not disturb a district court ' s denial of a postsentence motion to withdraw plea absent an abuse of discretion. State v. Johnson , 3079 Kan. 436, 443, 410 P.3d 913 (2018) . A judicial actio n c onst itutes an abuse of discretion if (1) it is arbitrary, fanciful, or unreasonable; (2) it is based on an error of law; or (3) it is
based on an error of fact. State v. Ingham , 308 Kan. 1466, 1469, 430 P.3d 931 (2018)

.

A defendant upon filing a posts ent ence motion to withdraw a plea alleging
ineffective assistance of counsel can establish manifest injustice b y meeting the constitutional test for ineffective assistance. The constitutional test asks: (1) whether the attorney ' s representation fell below an obj ective standard of reasonableness and (2) whether absent the attorney ' s errors, there is a reasonable probability that the result of the proceeding would have been different. Prejudice is shown if there is a reasonable probability that, but for the def icie nt performance, the defendant would have insisted on going to trial instead of entering the plea. A reasonable probability is a probability that is sufficient to undermine confidence in the outcome. However, there is a strong presumption that counse l p rovi ded the defendant with adequate assistance and used reasonable professional judgment in making all significant decisions. Johnson , 307 Kan.
at 447

.

When the district court conducts an evidentiary hearing on claims of ineffective
assistance of coun sel , th e appellate courts review the district court ' s factual findings using a substantial competent evidence standard. State v. Butler , 307 Kan. 831, 853, 416 P.3d 116 (2018)

. Substantial competent evidence refers to legal and relevant evidence that a

rea son able person could accept as being adequate to support a conclusion. State v. Doelz , 309 Kan. 133, 138, 432 P.3d 669 (2019)

. Appellate courts review the district court ' s legal
conclusions based on those facts de novo. Butler , 307 Kan. at 853

. "' Judicial scr utin y 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 th e b road range of reasonable professional assistance. [Citation omitted.]'" State v. Johnson , 304 Kan. 924 , 9 51 , 376 P.3d 70 (201 6 )

.10 Discussion

Here, Hardyway claims his appellate counsel was ineffective for failing to argue his plea counsel was ineffecti ve. In order to prevail on his claim, Hardyway need s to establish : (1) H is appellate counsel should have raised the arguments identified in his brief and (2) if those arguments had been raised, they would have succeeded on appeal.
See Miller , 298 Kan. at 930

- 31 , 934 . To show his arguments would have succeeded on appeal, Hardyway needs to establish Phillips ' performance was, in fact, deficient and, but
for Phillips ' deficient performance, he would not have entered his pleas. See Johnson , 307 Kan. at 447 . Ha rdy way ' s arguments fail because he cannot show Phillips was deficient and/or he cannot show his appellate counsel was deficient for failing to advance
the arguments he presents to us on appeal.

As the State points out, the arguments Hardyway advances in his bri ef are largely points previo usly raised during the appeal of his motion to wi thdraw his plea but now framed through the lens of an ineffective assistance of counsel claim. A prior panel of
this court found Hardyway waived or abandoned his claim of i nef fect ive assistance of plea counsel because he failed to brief the issue. See Hardyway , 2014 WL 1887647, at

* 3 . Accordingly, the issues raised in Hardyway ' s brief are not necessarily precluded by the doctrine of res judicata. Still, the prior panel state d: " Ne vertheless, we find that the testimony offered by his former attorney

— if believed

— was sufficient to show that Hardyway received constitutionally effective representation. " 201 4 WL 1887647, at *3

. This is essentially where all of Hardyway ' s arguments fa il

— t he district court believed the testimony of Phillips , not Hardyway.

Hardyway now raises five claims of ineffective assistance of appellate counsel , which are not persuasive. As each one is considered , they do not provide Hardaway with any rel i ef.11 F irst , he asserts his appellate counsel should have argued Phillips did not properly explain the plea agreement. Second, he asserts his appellate counsel should have argued Phillips did not spend enough time to adequately explain the plea agreement. Hard ywa y ' s second point is a continuation of the first. In essence, he claims he did not understand the plea agreement because Phillips misled or misinformed him and/or did not adequately explain it to him.

Hard y way ' s arguments are contrary to the district c our t ' s finding Phillips was a more credible witness than Hardaway. The district court found in harmony with Phillips ' testimony he spent the time necessary to explain the plea agreement to Hardaway

. They are also contrary to the district court ' s finding Ha rdy way understood the terms of the plea agreement. In reaching its decision, the district court pointed to Phillips ' testimony his records showed he visited Hardyway 58 times in jail. The district court also discussed its colloquy with Hardyway at the plea he arin g, quoting portions of the transcript verbatim , which showed Hardyway had no questions about the plea agreement or potential
sentences he could receive as a result. The district court also found Phillips ' testimony
credible that he never told Hardyw ay he w ould receive a departure sentence.

Only by asking us to reweigh evidence and/or determine credibility

— which we cannot do

— could Hardyway truly call into question the district court ' s findings. See State v. Salary , 309 Kan. 479, 483

- 84, 437 P.3d 953 (2 019) (factual issues underlying ineffective assistance of counsel claim must be resolved by district court). It was not ineffective for Hardyway ' s appellate counsel not to advance arguments contrary to or unsupported by the record, nor was it ineffectiv e t o de cline to make arguments inconsistent with the proper standard of appellate review.

Third, Hardyway asserts his appellate counsel should have argued Phillips was ineffective for failing to adequately investigate potential defenses, discuss trial st rat egy,

or file pretrial motions. T his is an argument unsupported by the record; thus, it was not12 unreasonable for appellate counsel not to present the argument. Phillips testified he spent "an extra amount of time working with [Hardyway]" due to the natur e o f th e charges and Hardyway ' s initial desire to take the case to trial. Phillips visited Hardyway "many, many,

numerous " times, and his review of the jail logs indicated as many as 58 visits.

Phillips testified he reviewed reports, went to the scene of the shooting, and he or his secretary spoke with eyewitnesses in preparation for trial. The district court found Phillips ' testimony credible that he visited with Hardyway numerous times to discuss the evidence and prepare for trial and found Phillips w as not deficient in his preparation or representation of Hardyway. Further, the record reflects Phillips made three pretrial
motions

— a motion request ing forensic or DNA evidence, a motion to exclude evidence of Hardyway ' s criminal record and gang activity, an d a motion for additional discovery.

Without further explanation, Hardyway asserts: "The information requested in the discovery motion might have impacted Mr. Hardyway ' s decision to enter a plea." Hardyway further complain s Phillips did not file a mo tio n to suppress evidence regarding law enforcement stopping Hardyway during their investigation. Hardyway provides no explanation as to the potential grounds for such a motion, how it would have been
successful , and how it would have affected the case. Ha rdy way additionally argues Phillips failed to properly challenge eyewitness identification of Hardyway as the shooter because he did not investigate whether the witnesses who identified Hardyway from a photo lineup may have been under the influence of alco hol or drugs. His argument on this point is entirely speculative. There is no evidence supporting a claim or inference the eyewitnesses were intoxicated when they identified Hardyway as the shooter. The evidence also reflects some of the witnesses were pas sen gers in the car with Hardaway at the time of the shooting.

Hardyway also complains there were no witnesses subpoenaed to testify on his behalf at trial. He fails to explain who might have testified and what the substance of13 their testimony may have be en. He has not established Phillips was deficient for failing to subpoena witnesses on his behalf. Phillips still could have effectively challenged the
State ' s case solely through cross

- examination of the State ' s witnesses. A criminal
defendant does not ha ve the burden of proof and has no burden or obligation to present evidence in his or her defense. If Phillips felt there was no beneficial evidence to present,
then it would not be ineffective to decline to do so. Hardyway presents no evidence there

were , in fact , favorable defense witnesses available and their testimony would have changed his decision to enter his pleas. Hardyway has failed to establish Phillips ' investigation was deficient. Hardaway also fails to recognize in his briefing he agreed to

ent er a pl ea , thus eliminating the need to subpoena witnesses for the trial. Accordingly, he has failed to show his appellate counsel was ineffective for failing to raise the issue his
trial counsel was ineffective . See Johnson , 307 Kan. at 447 ; Miller , 298 K an. at 930

- 31

.

Fourth, Hardyway asserts his appellate counsel should have argued Phillips was ineffective for failing to investigate and present evidence of mitigating factors at sentencing. This argument is beyond the scope of the ruling appealed. Hardy way was not appealing his sentence; he was appealing the denial of his motion to withdraw his plea. There was no reason for Hardyway ' s appellate counsel to make an argument not germane
to the issue. To the extent this issue is relevant, it is tangential at be st. Phillips told Hardyway he would file a departure motion. However, Phillips advised Hardyway the
likelihood the motion would succeed was "remote." Based on Phillips ' testimony, which
the district court found credible , Hardyway cannot establish he wou ld not have entered his pleas based on a belief his attorney would not thoroughly prepare or argue for a departure. Phillips ' testimony establishes Hardyway knew it was unlikely he would
receive a dispositional departure sentence to probation or a reduced sen tenc e regardless of how well prepared or presented his motion was. Moreover, the record reflects Hardyway ' s counsel research ed potential mitigating factors to present at sentencing and thoroughly argued for a departure based on the same.14 Finally, Hard ywa y as serts his appellate counsel was ineffective for failing to argue
the district court should have applied the good cause standard used for a presentence motion to withdraw plea. See K.S.A. 2019 Supp. 22

- 3210(d)(1)

. Hardyway fails to support this argum ent wit h pertinent authority, and there does not appear to be any authority supporting his argument. "[ F ] ailure to support a point with pertinent authority or show why it is sound despite a lack of supporting authority or in the face of contrary authority is akin to failing to brief the issue. " Salary , 309 Kan. at 481

.

At sentencing, Hardyway indicated he felt he may have been misled by Phillips regarding whether he could or would receive a departure, but Hardyway did not indicate
he wanted to withdraw hi s p leas

. Hardyway clearly stated: " I ' m guilty. I pled guilty. I ' m willing to go do whatever time I got to do, ' cause I did that. " The district court then clarified for the record the plea agreement did not guarantee Hardyway would receive a departure , and th e di strict court had advised Hardyway at the plea hearing it was not bound by the plea agreement.

Hard y way did not make a presentence mo tion to withdraw his pleas. With no presentence motion to withdraw his plea , i t was not ineffective for his appella te coun sel not to advance an argument unsupported by the record and without support ing authority.
Here , Hardyway provides only a conclusory argument on this point, asserting: "Had the issue been raised, the result of the appeal would have been different." He fai ls to properly explain how or why the result would have been different; therefore, we consider his argument abandoned due to improper briefing. See 309 Kan. at 481

.

We find no support in the record that Hardyway ' s arguments in his brief would
have be en s uccessful if raised in his prior appeal. Accordingly, the district court did not
err in summarily dismissing his claims of ineffective assistance of appellate counsel
raised in his K.S.A. 60

- 1507 motion. See Beauclair , 308 Kan. at 293 ; Miller , 298 K an. at
930

- 31

.15 Affirm ed

.