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NOT DESIGNATED FOR PUBLICATION

No. 123,547

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

EDWARD A. WARREN JR.,

Appellant,

v.

STATE OF KANSAS,

Appellee.

MEMORANDUM OPINION

Appeal from Sedgwick District Court; SETH L. RUNDLE, judge. Opinion filed March 18, 2022. 

Affirmed.

Joshua S. Andrews, of Cami R. Baker & Associates, P.A., of Augusta, for appellant.

Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, 

attorney general, for appellee. 

Before ATCHESON, P.J., HILL and GARDNER, JJ.

PER CURIAM: Edward A. Warren Jr. has appealed the Sedgwick County District 

Court's summary denial of his habeas corpus motion challenging jury verdicts convicting 

him of 21 counts of violating a protective order for repeatedly placing telephone calls 

from jail to a woman he had twice been charged with beating. On appeal, Warren 

contends he is entitled to relief because the lawyer handling his direct appeal failed to 

argue his speedy trial rights had been violated and inadequately argued he had a statutory 

privilege to call the woman. We disagree and affirm the district court's denial of his

motion for relief under K.S.A. 60-1507. 
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The factual background to Warren's convictions in this case takes some twists and 

turns. Warren was charged in another case with domestic battery for hitting A.H. The 

district court entered a protective order in that case directing that Warren have no contact 

with A.H. Warren was later charged in a second case for another domestic battery of 

A.H. He was then held in the Sedgwick County Jail as a pretrial detainee in those cases.

The district court appointed a lawyer to represent Warren in both cases. Warren filed 

motions in those cases to represent himself. For reasons not readily apparent in our 

record, there was a significant delay between when Warren filed the motions for selfrepresentation and when the district court granted them.

In between the filing and granting of his self-representation motions, Warren 

called A.H. from the jail at least 22 times from July 17 to August 13, 2018. Based on 

those telephone calls, the State charged Warren with 22 counts of violating a protective 

order, a class A misdemeanor under K.S.A. 2018 Supp. 21-5924(a)(4). The district court 

granted Warren's request to represent himself on those charges. The State dismissed one 

count before trial. The jury convicted Warren of the remaining 21 counts. The district 

court later imposed a sentence of 105 days in jail on each count to be served 

consecutively. 

Warren appealed those convictions. A court-appointed lawyer handled the appeal 

for Warren. We affirmed the convictions and sentences. State v. Warren, No. 121,209, 

2020 WL 4035062, at *5 (Kan. App. 2020) (unpublished opinion). Warren then drafted 

and filed a habeas corpus motion alleging the lawyer handling the direct appeal was 

constitutionally inadequate. After reviewing the motion and the record in the criminal 

case, the district court summarily denied the motion. Warren has appealed that ruling and 

is now represented by another court-appointed lawyer in this appeal. 

When the district court summarily denies a 60-1507 motion, we exercise unlimited 

review. We can examine the motion and the case file just as well as the district court, and 
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the district court's determination requires no weighing of conflicting testimony or other 

evidence to which we would owe deference. Bellamy v. State, 285 Kan. 346, 354, 172 

P.3d 10 (2007). Well established principles govern 60-1507 motions alleging a criminal 

defendant has received constitutionally inadequate representation from a lawyer either 

leading up to and during trial or on direct appeal. 

Here, Warren cannot complain about the quality of his legal representation during 

trial precisely because he represented himself. See Faretta v. California, 422 U.S. 806, 

834 n.46, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975) ("[A] defendant who elects to represent 

himself cannot thereafter complain that the quality of his own defense amounted to a 

denial of 'effective assistance of counsel.'"); see also State v. Torrence, No. 120,077, 

2020 WL 6930802, at *3 (Kan. App. 2020) (unpublished opinion) (recognizing 

applicability of Faretta rule to 60-1507 motions brought by defendants representing 

themselves at trial). But he can challenge the work of the lawyer representing him in his 

direct appeal. See Miller v. State, 298 Kan. 921, 929-30, 318 P.3d 155 (2014).

To prevail on a 60-1507 motion, a convicted defendant must show both that his or 

her legal representation "fell below an objective standard of reasonableness" guaranteed 

by the right to counsel in the Sixth Amendment to the United States Constitution and that 

absent the substandard lawyering there is "a reasonable probability" the outcome in the 

criminal case would have been different. Strickland v. Washington, 466 U.S. 668, 687-88, 

694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Phillips, 312 Kan. 643, 676, 479 

P.3d 176 (2021); Sola-Morales v. State, 300 Kan. 875, 882, 335 P.3d 1162 (2014); see 

Chamberlain v. State, 236 Kan. 650, Syl. ¶¶ 3, 4, 694 P.2d 468 (1985) (adopting and 

stating Strickland test for ineffective assistance). Reasonable representation demands that 

degree of "skill and knowledge as will render the trial a reliable adversarial testing 

process." Strickland, 466 U.S. at 688. A reasonable probability of a different outcome 

"undermine[s] confidence" in the result and marks the criminal proceeding as

fundamentally unfair. Strickland, 466 U.S. at 694. The movant, then, must prove both 
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constitutionally inadequate representation and sufficient prejudice attributable to that 

representation to materially question the resulting convictions. 

As the United States Supreme Court and the Kansas Supreme Court have stressed, 

review of the representation should be deferential and hindsight criticism tempered lest 

the evaluation of a lawyer's performance be unduly colored by lack of success 

notwithstanding demonstrable competence. See Strickland, 466 U.S. at 689-90; Holmes 

v. State, 292 Kan. 271, 275, 252 P.3d 573 (2011). Rarely should a lawyer's representation 

be considered substandard when he or she investigates the client's circumstances and then 

makes a deliberate strategic choice among arguably suitable options. Strickland, 466 U.S. 

at 690-91. Whether a lawyer had made reasoned strategic decisions bears on the 

competence component of the Strickland test.

Regardless of the inadequacy of legal representation, a 60-1507 motion fails if the 

movant cannot establish substantial prejudice. And a reviewing court properly may deny 

a motion that falters on the prejudice component of the Strickland test without assessing 

the constitutional adequacy of the representation. Strickland, 466 U.S. at 697 ("If it is 

easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, 

which we expect will often be so, that course should be followed."); see Edgar v. State, 

294 Kan. 828, 843-44, 283 P.3d 152 (2012); McConnell v. State, No. 123,246, 2021 WL 

4496479, at *4 (Kan. App. 2020) (unpublished opinion), petition for rev. filed October 

12, 2021. In other words, even assuming a criminal defendant's legal representation fell 

below the Sixth Amendment standard, he or she is not entitled to habeas corpus relief if 

the result would have been no different with competent counsel.

On appeal, Warren contends the lawyer representing him in his direct criminal 

appeal was constitutionally deficient in the two ways, as we have indicated. Because the 

district court did not hold an evidentiary hearing on Warren's 60-1507 motion, we have 

no way of knowing what strategic determinations the lawyer may have made in sorting 
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through potential issues to raise on direct appeal. We may, nonetheless, consider whether 

the asserted deficiencies resulted in legal prejudice to Warren.

First, Warren contends his appellate lawyer should have argued the State violated 

his statutory right to a speedy trial, protected in K.S.A. 2020 Supp. 22-3402. A violation 

of K.S.A. 2020 Supp. 22-3402 requires the dismissal of the charges and any resulting 

convictions with prejudice. See State v. Queen, 313 Kan. 12, 29-30, 482 P.3d 117 (2021). 

Warren asserted and lost a speedy trial challenge in the district court before trial, so the 

issue was preserved for appellate review. The lawyer handling the appeal did not brief a 

speedy trial claim.

But the statutory speedy trial argument has no merit. Warren had been charged in 

and detained on more than one criminal case. When a defendant is held in multiple cases, 

the speedy trial right in K.S.A. 2020 Supp. 22-3402 does not apply. See State v. 

Mathenia, 262 Kan. 890, 900, 942 P.2d 624 (1997) ("[W]e interpret K.S.A. 22-3402 as 

not applicable when a defendant is held in jail for any reason other than the subject 

criminal charge."); State v. Goss, 245 Kan. 189, 191, 777 P.2d 781 (1989) ("[D]efendant, 

who was in jail on the charges herein, was served with a second criminal warrant 

involving unrelated burglary and theft charges . . . . Thus, defendant was held in jail 

solely on the case before us approximately one week between his arraignment and trial. 

Accordingly, he does not meet the requirement of K.S.A. 22-3402[1] of being 'held in jail 

solely by reason thereof.'"); State v. Montes-Mata, 41 Kan. App. 2d 1078, 1081, 208 P.3d

770 (2009), aff'd 292 Kan. 367, 253 P.3d 354 (2011). In short, the district court correctly 

denied Warren's pretrial motion for discharge asserting a statutory speedy trial violation. 

As a matter of law, there simply wasn't one. In turn, the issue would have been worthless 

on appeal. Warren's appellate lawyer had no duty to raise a meritless point, and Warren 

could have suffered no prejudice as a result. See Littlejohn v. State, 29 Kan. App. 2d 506, 

507-08, 28 P.3d 448 (2001); Hobby v. State, No. 105,138, 2012 WL 4794452, at *6 (Kan. 

App. 2012) (unpublished opinion).
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Second, Warren contends the lawyer handling the direct appeal failed to fully 

argue what he says is a privilege that allowed him to call A.H. from the jail without 

violating the protective order. Under K.S.A. 2020 Supp. 21-5924(c), a lawyer 

representing a defendant or an agent acting for the lawyer may contact a person covered 

by a protective order "for a legitimate purpose" consistent with the legal representation. 

During the trial, Warren argued he was covered by K.S.A. 2020 Supp. 21-5924(c) on the 

notion that a criminal defendant is always functionally the equivalent of a cocounsel with 

his or her lawyer. So, as his own cocounsel, Warren says he had a privilege to call A.H. 

The premise, however, is quite wrong. See White v. State, 308 Kan. 491, 507-08, 421 

P.3d 718 (2018). Absent a specific court order permitting a defendant to represent 

himself or herself (with or without standby counsel), the law draws a clear distinction 

between criminal defendants and their lawyers and their respective roles in developing 

and carrying out trial strategies. Likewise, almost all decision-making is entrusted to the 

lawyers exercising their professional judgment. Defendants have the exclusive right to 

decide to enter a plea, to testify or not during trial, and whether to appeal—nothing else, 

and most certainly not to contact or interview potential witnesses contrary to a protective 

order. See State v. Hargrove, 48 Kan. App. 2d 522, 534-35, 293 P.3d 787 (2013). 

Warren's appellate lawyer reprised the I'm-my-own-cocounsel argument in the 

direct appeal, and our court categorically rejected it. Warren, 2020 WL 4035062, at *3-4. 

Warren now offers a variation that he contends his appellate lawyer failed to assert, 

rendering the representation constitutionally ineffective. Warren argues that because he 

had filed motions for self-representation in the domestic battery cases that had yet to be 

ruled on, he was privileged to call A.H. from the jail. Warren's realigned position 

ultimately is no more convincing than his initial try.

First, of course, there is no rule that a criminal defendant who has filed a motion 

for self-representation gets to act as his or her own lawyer before the district court 

decides the motion. Warren cites no authority supporting his proposition. Such an 
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interim-relief rule would create knotty problems, especially if a district court were to 

deny the motion for self-representation.

Second, even crediting Warren's idea—which we do not—the conduct charged in 

this case would not be privileged under K.S.A. 2020 Supp. 21-5924(c). The privilege 

expressly applies only to "an attorney" and "any person acting on such attorney's behalf." 

K.S.A. 2020 Supp. 21-5924(c). Self-represented defendants may be functioning as their

own lawyers. But they do not become licensed attorneys in that capacity; and, in turn, 

they do not act on behalf of a licensed attorney. Assuming without deciding that a selfrepresented defendant might be entitled to some form of privilege under K.S.A. 2020 

Supp. 21-5924(c), a district court could then carefully regulate any communication. For 

example, a district court could require any communication with a person shielded by a 

protective order to be conducted through a standby counsel. More generally, a person has 

no obligation to speak with a lawyer or investigator acting either for the State or for the 

defense, so a district court could appoint a special master to find out if the individual 

even wanted to talk at all. Similarly, a special master could monitor an agreed-upon

interview to guard against improper questioning or harassment of the protected person.

Finally, the privilege in K.S.A. 2020 Supp. 21-5924(c) extends only to contacts for 

a legitimate purpose and, presumably, undertaken in a legitimate manner. Twenty calls in 

less than a month from a lawyer to a person who did not want to talk likely would be 

improper even if no protective order were in place. Warren's telephonic barrage of A.H. 

exceeded the scope of K.S.A. 2020 Supp. 21-5924(c), assuming it applied. In short, 

Warren's argument doesn't measure up. He can't show any legal prejudice on this point.

We find no fault in the district court's decision to summarily deny Warren's 60-

1507 motion.

Affirmed.