1

IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 108,714

RAYMOND FULLER,

Appellant,

v.

STATE OF KANSAS,

Appellee.

SYLLABUS BY THE COURT

1.

There are three categories of ineffective assistance of counsel claims. The first 

involves an allegation that a criminal defense attorney's performance was so deficient that 

the defendant was denied a fair trial. The second category applies when the assistance of 

counsel was denied entirely or denied at a critical stage of the proceeding. The third 

category includes situations in which the attorney actively represented conflicting 

interests. Claims in the first category follow the general rule and require a defendant to 

show constitutionally deficient performance by his or her attorney under the totality of 

the circumstances and prejudice. A court presumes prejudice for claims in the second 

category. For claims in the third category, the type of alleged conflict of interest dictates 

what a defendant must show in addition to the existence of the conflict itself. In the first 

subcategory of such claims, which involve multiple concurrent representations of 

codefendants with antagonistic interests, reversal is automatic. In the second subcategory, 

also involving certain instances of concurrent representation, it is sufficient if a defendant 

shows an adverse effect on the adequacy of counsel's performance. In the third 

subcategory, involving a conflict between the defendant and a former client or between 
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the defendant and the attorney, no standard of prejudice or adverse effect has previously 

been established by the United States Supreme Court. 

2. 

In this case, defense counsel's cross-examination-style questions of his client 

during the client's direct testimony at trial, when considered in context, were the product 

of a considered trial strategy and not an example of constitutionally deficient 

performance. 

3. 

In this case, defense counsel's cross-examination-style questions of his client 

during the client's direct testimony at trial, when considered in context, did not transform 

defense counsel into a second prosecutor, wholly depriving defendant of representation at 

a critical stage of the proceedings. 

4. 

The Kansas appellate courts construe K.S.A. 60-2103(b) to assure justice in every 

proceeding, but there is a substantive minimum below which a notice of appeal cannot 

fall and still support jurisdiction. Under the circumstances of this case, the Court of 

Appeals had and the Supreme Court has appellate jurisdiction to consider a district court 

ruling referenced in a later written order explicitly challenged in the defendant's notice of 

appeal. 

5.

In this case, defense counsel's failure to call a witness to impugn the character of 

the victim of the alleged sex crimes was not an example of constitutionally deficient 

performance. The testimony would have been irrelevant and inadmissible.
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6. 

Under the unusual circumstances of this case—where a conflict of interest 

between the defendant and his criminal defense counsel clearly developed in the course 

of a hearing on the defendant's pro se motion for new trial and the district judge failed to 

react to it by appointing conflict-free counsel to assist the defendant—we must remand 

certain issues for rehearing with conflict-free counsel. The issues are limited to those in 

the defendant's pro se motion and those he raised by what was effectively an oral 

amendment at the hearing that have not already been disposed of adversely to him in 

subsequent proceedings under K.S.A. 60-1507. 

Review of the judgment of the Court of Appeals in an unpublished opinion filed November 22, 

2013. Appeal from Sedgwick District Court; ANTHONY J. POWELL, judge. Opinion filed December 23, 

2015. Judgment of the Court of Appeals affirming the district court is affirmed in part and reversed in 

part. Judgment of the district court is affirmed in part, reversed in part, and remanded with directions. 

Krystle M.S. Dalke, of Law Office of Michael P. Whalen, of Wichita, argued the cause, and 

Michael P. Whalen, of the same office, was with her on the brief for appellant. 

Matt J. Maloney, assistant district attorney, argued the cause, and Marc Bennett, district attorney, 

and Derek Schmidt, attorney general, were with him on the brief for appellee.

The opinion of the court was delivered by

BEIER, J.: Defendant Raymond Fuller challenges the Court of Appeals' decision 

affirming the district court judge's denial of his K.S.A. 60-1507 motion alleging 

ineffective assistance of counsel. Fuller argues that he was blindsided by his lawyer's 

aggressive questioning of him during his trial for rape, aggravated sexual battery, and 

aggravated burglary. He also challenges his lawyer's failure to call a witness who would 
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have testified about the victim's flirtatious nature, and he asserts his lawyer had a conflict 

of interest at a hearing on a motion for new trial. 

We recognize the conflict that existed between Fuller and his lawyer at the hearing 

on the motion for new trial and we fashion an appropriate remedy. We reject Fuller's 

other appellate arguments.

FACTUAL AND PROCEDURAL BACKGROUND

The charges against Fuller were based on allegations made by his next-door 

neighbor, C.K., after an encounter in C.K.'s home. Fuller admitted to sexual contact with 

C.K., but he defended on the basis that the contact was consensual.

The Court of Appeals panel summarized the conflicting trial testimony as follows:

"Fuller and the victim, C.K., were neighbors who had sporadic contact prior to 

the incident which resulted in charges against Fuller. . . . [T]he day prior to the incident, 

C.K. helped Fuller jump-start his vehicle. . . .

. . . .

"C.K. testified that at the time Fuller rang her doorbell, she was in her bathrobe 

and talking on the phone with her friend Brenon Odle. Her two children, ages 3 years and 

22 months, were at home with her. C.K. told Odle to call her back in a few minutes and 

then stuck her head outside the door and told Fuller to 'give [her] a minute.' C.K. went to 

her bedroom to put some clothes on. Without C.K.'s permission, Fuller entered the house 

and walked into her bedroom doorway and told C.K., 'I like what I'm looking at.' Startled 

and caught off-guard, C.K. asked Fuller to give her 'just a minute' and directed him to 

wait in the living room. Fuller complied.
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"C.K. finished dressing and went to the living room, where she seated herself 

f[a]rthest from Fuller on the couch. C.K.'s children were also with them in the living 

room. Fuller told C.K. that he had some photographs on his cell phone that he wanted to 

show her. C.K. leaned across the couch and saw that the photographs were of Fuller's 

penis. As she leaned over, Fuller grabbed C.K.'s hair and pulled her head toward[] his 

lap. He then pulled C.K.'s shirt down, exposing her chest, and grabbed her breast. After 

removing his hand from her chest, Fuller put his hand inside C.K.'s shorts and placed his 

fingers inside her vagina.

"The encounter ended when the phone rang and C.K. answered it. Although it 

was Odle calling her back, C.K. told Fuller that her husband was on the phone, and that 

her husband knew Fuller was there and Fuller should 'get the hell out of here.' Fuller left, 

but only after telling C.K. that he would kill her if she told anyone what happened. C.K. 

then told Odle what had happened.

. . . .

"Fuller testified that after he rang the doorbell, C.K. smiled and invited him in, 

and the two made 'small talk' as they walked to C.K.'s bedroom. Once in the bedroom, 

C.K. dropped her bathrobe and exposed herself to Fuller. Fuller retreated to the couch 

because the presence of C.K.'s children in the bedroom made him feel 'weird.' C.K. 

joined him on the couch and[,] after they talked briefly, C.K. exposed her vagina to him. 

Fuller admitted he placed his finger in C.K.'s vagina, but testified that C.K. smiled after 

he did so. Fuller then began performing oral sex on C.K. but stopped because the children 

were nearby. C.K. told Fuller she liked having her hair pulled, so Fuller playfully pulled 

her hair. Fuller agreed that the encounter ended when C.K.'s phone rang." State v. Fuller, 

No. 100,026, 2009 WL 4639506, at *1-2 (Kan. App. 2009) (unpublished opinion).

After Fuller's jury convicted him as charged, his lawyer, Quentin Pittman, filed a 

motion for new trial and a motion for judgment of acquittal, both attacking the 

sufficiency of the evidence. Fuller also filed a pro se motion, which the district judge 

construed as a motion for new trial, in which Fuller raised issues related to members of 
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his jury. At the hearing on the motions, Pittman described the trial as "extremely clean."

The district judge ruled that sufficient evidence supported the convictions and denied the 

two motions Pittman had filed. 

The district judge then turned to Fuller's motion. Pittman suggested that Fuller 

should argue his motion because "we kind of get into a mine field." Fuller's oral 

statement included issues beyond those in his written motion. He argued that his jury was 

not impartial, that the State had violated an order in limine, and that Pittman had failed to 

put on evidence in Fuller's defense. When the judge asked Pittman if he had anything to 

add to Fuller's argument, Pittman said that he had "a slightly different take on those 

issues." Pittman then defended his decisions about the evidence to put on at trial as 

strategic calls properly within the province of defense counsel. Pittman also defended his 

juror selections as strategic decisions and said he thought Fuller might "be mistaken in 

his recollection of several things."

Characterizing Fuller's arguments as allegations of ineffective assistance of 

counsel, the district judge concluded that—"for the reasons expressed by Mr. Pittman"—

the challenged decisions qualified as trial strategy and did not support a finding of 

ineffective assistance of counsel. 

On direct appeal before the Court of Appeals, Fuller asserted that "his trial counsel 

was so grossly ineffective that he entirely failed to subject the prosecution's case to 

meaningful adversarial testing," Fuller, 2009 WL 4639506 at *1, supporting this 

assertion with specific arguments different from those he raised before the district court. 

In particular, Fuller attacked Pittman's tone during Fuller's direct examination at trial and 

Pittman's failure to advocate for Fuller at his motion for new trial hearing. 2009 WL 

4639506, at *5. A panel of the Court of Appeals declined to address the allegations 

because the record on appeal was not sufficiently developed, but it noted that "some of 
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Fuller's allegations, viewed from a cold record, are troubling." 2009 WL 4639506, at *5. 

The panel said that Fuller could challenge Pittman's effectiveness through a later motion 

under K.S.A. 60-1507.

As contemplated by the panel, Fuller filed a K.S.A. 60-1507 motion. In it he 

argued that Pittman had been ineffective: (1) by the way he conducted his direct 

examination of Fuller, (2) by failing to object to a jury instruction, (3) by failing to 

request a lesser included offense instruction, (4) by failing to argue in support of 

Pittman's motion for new trial, (5) by arguing against Fuller's pro se motion for new trial, 

(6) by failing to object to the prosecutor's cross-examination of Fuller, (7) by failing to 

strike two jurors, (8) by failing to discredit C.K., and (9) by failing to subpoena a witness 

who could have testified about C.K.'s flirtatious nature. 

The district judge held a preliminary, nonevidentiary hearing on the motion. At the 

hearing, counsel for Fuller argued the motion and requested a full evidentiary hearing on 

the issues raised. The district judge denied relief on all but three of Fuller's allegations. 

The district judge ordered an evidentiary hearing on the claims that (1) Pittman was 

ineffective in his direct examination; (2) Pittman was ineffective in his advocacy at the 

motion for new trial hearing; and (3) Pittman was ineffective for failing to challenge two 

jurors.

At the evidentiary hearing, counsel for Fuller questioned Pittman about his use of 

cross-examination-style questions during Fuller's direct examination. Fuller had argued in 

his motion and had testified at the 1507 hearing that Pittman's "unorthodox" questions 

left Fuller confused, insinuated that he was guilty, destroyed his credibility, and were 

contrary to Fuller's theory of defense, i.e., that the sexual contact was consensual. Pittman 

testified that he had provided Fuller with a list of questions to review before Fuller 

testified and that the style of the questions was not reflected on the list. Pittman also 
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conceded that he had not specifically prepared Fuller for the tone of the questions asked. 

When counsel for Fuller read questions from the trial transcript, Pittman agreed that he 

had asked the questions that were read. 

Those questions included: "You are going over because you were going to have 

sex with her one way or the other, correct?"; "That's when you grab her?"; "That's when 

you say I want to fuck you?"; "Then you attack her?"; "That's when you grab her and 

attack her, right?"; "That's when you attack her?"; "That's when you jammed your finger 

into her vagina?"; "That's when you rip her shorts off?"; "[Y]ou then attack her, pull her 

hair and put your finger in her vaginal area, right?"; "You grab her by the back of the 

head and stick it towards your crotch?"; "That's when you said you tell anyone and I will 

fucking kill you?"; "Because you didn't tell the exact same story throughout that you 

eventually got to, you are a liar right?"; "I mean you raped her[?]" Pittman concluded his 

redirect examination with "And that's because you are a liar and rapist?" 

Pittman testified that he asked these questions in order to "take away the sting of 

the accusation." He also said that he believed it was important for Fuller to appear 

credible, and, in an effort to achieve that aim, Pittman wanted Fuller to come across as 

"indignant, emotional." This reaction would have contrasted, Pittman said, with the 

appearance of C.K's testimony, which Pittman described as "blasé and not emotional." 

Pittman further testified that he wanted to "get out in front of the issue and do it in a 

controlled manner." Had Fuller not handled the questioning as Pittman intended, Pittman 

explained, he would have stopped using the tactic. Pittman also testified that, in his view, 

Fuller had done well on the stand and had connected with the jury. 

Turning to Pittman's performance at the motion for new trial hearing, Pittman 

described the hearing as "contentious," but he did not specifically remember arguing 

Fuller's pro se motion. 
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Fuller's third claim subject to the district court evidentiary hearing—that Pittman 

was ineffective for failing to strike two jurors—was not appealed and does not warrant 

our discussion.

In an order dated May 17, 2012, and filed June 8, 2012, the district judge denied 

Fuller relief. The district judge concluded that Pittman's performance was reasonable and 

that the decision to use cross-examination-style questions was strategic. The district judge 

noted that "the technique worked (as demonstrated by trial counsel's continued use of it 

and [Fuller's] ability to answer the questions)." According to the district judge, the 

questioning softened the impact of the prosecutor's cross-examination and elicited 

"passionate denials" from Fuller. 

As for Pittman's performance at the motion for new trial hearing, the district judge 

recognized Pittman's candor and ruled that his performance was reasonable. The district 

judge explained that Pittman had "truthfully explained what had occurred and why he did 

what he did." The district judge also concluded that Fuller was unable to show prejudice 

because there was no factual or legal merit to the issues he raised. The district judge did 

not discuss any alleged conflict of interest.

Fuller filed a notice of appeal from "the judgment entered May 17, 2012, and filed 

with the Court on June 08, 2012, denying his [motion] for relief under K.S.A. 60-1507." 

In his brief to the Court of Appeals, he identified three appellate challenges: (1) Pittman 

was ineffective on direct examination; (2) Fuller was denied conflict-free representation 

at his motion for new trial hearing; and (3) Pittman was ineffective for failing to call a 

witness who would have testified about the victim "being a flirt and a tease." 
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A panel of our Court of Appeals affirmed. The panel agreed with the district 

judge's characterization of Pittman's style of questioning on direct examination as a 

reasonable strategy, given Fuller's consent defense. 

"Fuller's decision to take the stand and paint a picture of consensual sexual activity would 

have clearly opened him up to the same questioning by the prosecutor on crossexamination. We do not find it unreasonable strategy to try and soften the effect of 

Fuller's testimony while in the control of his own attorney, who testified he would have 

immediately stopped if he felt the aggressive questioning was not working and caused 

Fuller to become upset or flustered. The prosecutor would not have stopped." Fuller v. 

State, No. 108,714, 2013 WL 6164528, at *6 (Kan. App. 2013) (unpublished opinion).

On the issue of conflict-free counsel, the panel held that Pittman never gave up his 

role as Fuller's advocate at the motion for new trial hearing. The panel also ultimately 

concluded that Fuller was unable to show prejudice, notwithstanding its recognition that, 

as Fuller's trial counsel, "Pittman was obligated to advocate and prove his own 

professional ineffectiveness by addressing the claims for a new trial." 2013 WL 6164528, 

at *8.

Finally, the panel held that Fuller's claim of ineffectiveness based on Pittman's 

failure to call a witness to discredit C.K. was not properly before the court. The district 

judge had decided the issue against Fuller in the order dealing with the issues for which 

there was no evidentiary hearing, and Fuller's notice of appeal did not identify that order. 

In the alternative, assuming appellate jurisdiction to be sufficient, the panel concluded 

that Pittman's decision not to call the witness "was clearly a tactical decision and even if 

erroneous would not have changed the outcome of the trial." 2013 WL 6164528, at *13.

Fuller petitioned this court for review, raising the same three claims of ineffective 

assistance of counsel that he raised before the Court of Appeals.
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DISCUSSION

"Ineffective assistance of counsel claims—whether based on deficient 

performance or conflict of interest—involve mixed questions of fact and law." State v. 

Cheatham, 296 Kan. 417, 430, 292 P.3d 318 (2013). When such claims are brought under 

K.S.A. 60-1507 and the district court conducts a full evidentiary hearing on them, we 

review the district court's factual findings for substantial competent evidence and we 

determine whether the factual findings support the district court's conclusions of law. 

State v. Adams, 297 Kan. 665, 669, 304 P.3d 311 (2013). We apply a de novo standard to 

the conclusions of law. 297 Kan. at 669. For ineffective assistance of counsel claims on 

which there is no evidentiary hearing in the district court, we review de novo the district 

court's determination that relief should be denied on the motion, files, and records of the 

case. Sola-Morales v. State, 300 Kan. 875, 881, 335 P.3d 1162 (2014).

The burden of proof in establishing ineffective assistance of counsel is on the 

K.S.A. 60-1507 movant. State v. Jackson, 255 Kan. 455, 463, 874 P.2d 1138 (1994).

Ineffective assistance of counsel claims inhabit three categories we recently 

summarized in Sola-Morales, 300 Kan. at 882-84. We begin our analysis of this case 

with that summary: 

"The Sixth Amendment to the United States Constitution guarantees that '[i]n all 

criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of 

Counsel for his defence.' This right to counsel is applicable to state proceedings under the 

Fourteenth Amendment. Miller v. State, 298 Kan. 921, 929, 318 P.3d 155 (2014). This 

guarantee includes the right to more than the mere presence of counsel[. It] also 

[includes] the effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 

687, 104 S. Ct. 2052, 80 L. Ed. 2d 674, reh. denied 467 U.S. 1267, 104 S. Ct. 3562, 82 L. 
12

Ed. 2d 864 (1984); see also Chamberlain v. State, 236 Kan. 650, 656-57, 694 P.2d 468 

(1985) (adopting Strickland). We have acknowledged that '[t]he purpose of the effective 

assistance guarantee "is simply to ensure that criminal defendants receive a fair trial."' 

State v. Galaviz, 296 Kan. 168, 174, 291 P.3d 62 (2012) (quoting Strickland, 466 U.S. at 

689).

"We have interpreted United States Supreme Court caselaw as distinguishing 

among three categories of ineffective assistance of counsel claims:

"'The first category includes cases in which it is claimed that the 

attorney's performance was so deficient that the defendant was denied a 

fair trial. The second category applies when the assistance of counsel was 

denied entirely or denied at a critical stage of the proceeding. The third 

category includes situations where the defendant's attorney "actively 

represented conflicting interests."' Galaviz, 296 Kan. at 181 (quoting 

Mickens v. Taylor, 535 U.S. 162, 166, 122 S. Ct. 1237, 152 L. Ed. 2d 

291, reh. denied 535 U.S. 1074, 122 S. Ct. 1954, 152 L. Ed. 2d 856 

[2002]).

"Claims of ineffective assistance of counsel for deficient performance under the 

first category are the 'general rule' and controlled by Strickland. Galaviz, 296 Kan. at 181 

(citing Mickens, 535 U.S. at 166). To prevail on such a claim, a criminal defendant must 

establish (1) 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. Bledsoe, 283 

Kan. 81, 90, 150 P.3d 868 (2007); see Strickland, 466 U.S. at 687.

"The second category of claims falls under an exception to the general rule 

known as the Cronic exception. It applies only when a defendant is completely denied the 

assistance of counsel or denied counsel 'at a critical stage of a proceeding.' Galaviz, 296

Kan. at 181 (citing United States v. Cronic, 466 U.S. 648, 658-59, 104 S. Ct. 2039, 80 L. 

Ed. 2d 657 [1984]). Under these circumstances, a court may presume the defendant was 

prejudiced, i.e., he or she is 'spared . . . the need of showing probable effect upon the 
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outcome.' 296 Kan. at 181 (quoting Mickens, 535 U.S. at 166); see State v. Stovall, 298 

Kan. 362, 375, 312 P.3d 1271 (2013). . . .

"The third category of claims involves attorney conflicts of interest. The right to 

counsel extends a duty of loyalty from counsel to the client so '[a] defendant in a criminal 

trial must have "'representation that is free from conflicts of interest.'" [Citations 

omitted.]' State v. Bowen, 299 Kan. 339, 343, 323 P.3d 853 (2014). To prevail on such a 

claim, the defendant must first establish his or her attorney '"actively represented 

conflicting interests."' Galaviz, 296 Kan. at 181 (quoting Mickens, 535 U.S. at 166). 

Beyond this starting point, the type of alleged conflict dictates what the defendant must 

additionally establish to prevail. The United States Supreme Court has recognized three 

subcategories of conflict of interest claims: (1) the automatic reversal exception, (2) the 

adverse effect exception, and (3) what we have labeled the 'Mickens reservation.' See 296 

Kan. at 181-85 (discussing the three Mickens subcategories).

"The first subcategory of conflict of interest claims, i.e., the automatic reversal 

exception, is relevant only in cases of 'multiple concurrent representation,' which is when 

defense counsel 'is simultaneously representing codefendants with antagonistic interests 

in the same proceeding.' Stovall, 298 Kan. at 376 (citing Galaviz, 296 Kan. at 183). This 

exception additionally requires an objection to the representations before or during the 

proceedings and also a failure of the district court to inquire and determine there is no 

conflict. Galaviz, 296 Kan. at 183. Under this exception, as with the Cronic exception, 

reversal is automatic—unless the district court determines there is no conflict of interest. 

296 Kan. at 183; see State v. Gleason, 277 Kan. 624, 650, 88 P.3d 218 (2004).

"While the second subcategory, i.e., the adverse effect exception, also requires an 

attorney conflict of interest through concurrent representation of codefendants, it is 

dissimilar from the automatic reversal exception because it arises when no objection to 

the conflict is lodged before or during the proceedings. Stovall, 298 Kan. at 376 (citing 

Galaviz, 296 Kan. at 183). And under this particular exception, '"a defendant must 

demonstrate that 'a conflict of interest actually affected the adequacy of his 

representation.'"' (Emphasis added.) Galaviz, 296 Kan. at 183 (citing Mickens, 535 U.S. 

at 168); see Gleason, 277 Kan. at 650. This standard is lower than Strickland's, which 
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imposes a burden on defendant to show actual prejudice by the attorney's performance, 

i.e., 'probable effect upon the outcome of the trial.' 296 Kan. at 184 (citing Mickens, 535 

U.S. at 174).

"The third subcategory, i.e., the Mickens reservation, is relevant where a conflict 

is '"rooted in counsel's obligations to former clients"' or '"counsel's personal or financial 

interests."' Galaviz, 296 Kan. at 184 (quoting Mickens, 535 U.S. at 174). We have 

referred to this subcategory as the Mickens reservation because the Supreme Court did 

not articulate what additional burden, e.g., prejudice or adverse effect, a defendant must 

satisfy before receiving relief based on such conflicts of interest. Mickens, 535 U.S. at 

176; Galaviz, 296 Kan. at 184-86; see State v. Cheatham, 296 Kan. 417, 449-50, 292 

P.3d 318 (2013)." Sola-Morales, 300 Kan. at 882-84.

We have taken the liberty of reordering Fuller's three claims to enhance clarity of 

this opinion. 

Defense Counsel's Direct Examination of Fuller

Fuller argues that Pittman's cross-examination-style questions on direct 

examination constituted ineffective assistance of counsel under two theories. First, Fuller 

argues that Pittman's performance on direct examination was deficient, i.e., he advances 

an argument under the first category of ineffective assistance of counsel. Second, Fuller 

alleges that Pittman created a conflict of interest during direct examination. Fuller relies 

on Cronic, i.e., the second category of ineffective assistance, but he also argues prejudice 

and speaks in terms of the third subcategory of the third category, i.e., the Mickens

reservation.

The district court denied relief on this claim after conducting an evidentiary 

hearing. Accordingly, we review the district court's factual findings for substantial 

competent evidence and determine whether the findings support its conclusions of law. 
15

Adams, 297 Kan. at 665, 669. We apply a de novo standard to the conclusions of law. 297 

Kan. at 669. 

Deficient Performance

In determining whether defense counsel's performance was deficient, a K.S.A. 60-

1507 movant must show that

"'counsel's representation fell below an objective standard of reasonableness. Judicial 

scrutiny of counsel's performance must be highly deferential, and a fair assessment of 

attorney performance requires that every effort be made to eliminate the distorting effects 

of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to 

evaluate the conduct from counsel's perspective at the time. A court must indulge a strong 

presumption that counsel's conduct falls within the wide range of reasonable professional 

assistance.'" State v. Betancourt, 301 Kan. 282, 306, 342 P.3d 916 (2015).

Both the district court and the Court of Appeals characterized Pittman's line of 

questioning as trial strategy. Citing Flynn v. State, 281 Kan. 1154, Syl. ¶ 5, 136 P.3d 909 

(2006), the panel recognized this court's view that "strategic decisions made by trial 

counsel based on a thorough investigation are virtually unchallengeable." Fuller, 2013 

WL 6164528, at *5; see Strickland v. Washington, 466 U.S. 668, 690, 104 S. Ct. 2052, 80 

L. Ed. 2d 674 (1984).

Fuller appears to concede that Pittman's questioning was the result of a strategic 

choice. He relies on statements by this court that "[m]ere invocation of the word 'strategy' 

does not insulate the performance of a criminal defendant's lawyer from constitutional 

criticism." Wilkins v. State, 286 Kan. 971, 982, 190 P.3d 957 (2008); see Sola-Morales,

300 Kan. at 887. Regardless of any strategic motivation, Fuller argues that Pittman's 

performance was deficient based on the type of questions Pittman asked, his failure to 
16

prepare Fuller for those questions, and Pittman's failure to explain to the jury "why 

counsel was indicting his own client." Fuller contends that Pittman "knowingly and 

purposefully misled" him about the questions Pittman planned to ask, that Pittman called 

him a liar and a rapist repeatedly in front of the jury in a "negative and reprehensible" 

attack, and argues that he was left to present his defense without an advocate because 

Pittman "essentially joined forces with the prosecutor during his direct examination."

Fuller further contends that it was "improper and unethical" for Pittman to comment on 

Fuller's credibility.

Before the Court of Appeals, the State argued Pittman's questions to Fuller needed 

to be viewed in context. It noted that Pittman's direct examination of Fuller consisted of 

36 pages of trial transcript. The State informed the panel that Pittman had asked 

numerous open-ended questions that allowed Fuller to tell his version of events to the 

jury. In addition, the State pointed to the open-ended questions that Pittman had asked 

when concluding his direct examination, which had allowed Fuller to reiterate that the 

sexual contact was consensual. The State acknowledged that Pittman's "pointed 

questions" appeared "unconventional if considered in a vacuum," but it asserted that,

when viewed in context, "it is evident that counsel was pursuing a strategic course of 

action that allowed movant to directly deny the charges."

The State countered Fuller's claim that he had been "blind-sided" by Pittman's 

questions by directing the panel's attention to Pittman's testimony at the evidentiary 

hearing. Pittman testified that he had told Fuller he would ask him "point blank" if he had 

sex with C.K. and "[D]id you rape her, et cetera." The State also pointed to the list of 

questions Pittman had provided to Fuller at pretrial and compared them to many of the 

questions asked. The State also pointed to Fuller's testimony at the evidentiary hearing, in

which Fuller acknowledged that Pittman had never told him he would ask questions only

from the list. 
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To the extent Fuller asserts that the jury could have been confused by Pittman's 

questioning, the State noted that both Pittman's opening statement and closing argument 

included statements that the sexual contact was consensual. Under these circumstances, 

according to the State, "there was no need for counsel to take the unusual step of 

expressly explaining his [direct examination] strategy to the jury." The State specifically 

noted that Pittman's follow-up, open-ended questions allowed Fuller to explain his 

denials more fully, giving a "clear signal" of Fuller's position to the jury. 

Considering the strong presumption that Pittman's conduct fell within the wide 

range of reasonable professional assistance, the State persuades us. 

Generally "'[i]t is within the province of a lawyer to decide what witnesses to call, 

whether and how to conduct cross-examination, and other strategic and tactical 

decisions.'" Sola-Morales, 300 Kan. at 887. Among these strategic decisions is how to 

phrase and present questions to a client on direct examination. In this case, it appears 

Pittman elected to employ heavy sarcasm as a rhetorical device. Although we may differ 

on the likely effectiveness of his choices, Pittman's performance did not fall below an 

objective standard of reasonableness in this regard. As the State insists, context matters, 

and it demonstrates here that Pittman exceeded the Constitution's minimum standard. 

Pittman discharged his duty to prepare himself and Fuller for trial. State v. Orr, 262 Kan. 

312, 333, 940 P.2d 42 (1997). He fully presented Fuller's consent defense in his opening 

statement and in closing argument. In the meantime, his direct examination of Fuller was 

designed to elicit and did elicit strong denials from his client. Pittman used the pointed 

questions as signposts throughout the direct examination, following up with open-ended

questions, that allowed Fuller to explain. Contrary to Fuller's claim that he faced two 

prosecutors, we are certain that a prosecutor would not have been so magnanimous. 

Similarly, as the panel noted, had Fuller appeared upset or flustered, Pittman testified at 
18

the evidentiary hearing that he would have changed course. Again, as the Court of 

Appeals panel noted, a "prosecutor would not have stopped." Fuller, 2013 WL 6164528, 

at *6.

Fuller's final deficiency allegation that Pittman's "attack of his own client [was] 

negative and reprehensible, [and] it was a violation of trial counsel's ethical duties and[,]

therefore, deficient" under Kansas Rule of Professional Conduct 3.4(e) (2015 Kan. Ct. R. 

Annot. 609) (lawyer shall not comment on credibility of a witness), is not supported by 

the record. Pittman's questions on this point were setups for Fuller to justify 

inconsistencies in statements Fuller had made to the police. On redirect examination, 

Pittman asked Fuller a series of questions about the circumstances surrounding Fuller's

interrogation, which suggested that the interrogation was an uncomfortable experience. 

In summary, Pittman consistently advocated for the innocence of his client before 

and throughout trial including during his direct examination of Fuller. Fuller has not 

demonstrated that Pittman's direct examination of Fuller qualified as deficient 

performance under Strickland. 

Conflict of Interest

Fuller also argues Pittman's direct examination of Fuller created a conflict of 

interest. 

As our previous discussion demonstrates, there is no merit to this argument. 

Pittman did not function as a second prosecutor during direct examination of Fuller.

There was no complete denial of counsel at a critical stage of the proceeding under 

Cronic. Moreover, Fuller does not allege any personal conflict of interest under Mickens. 
19

Defense Counsel's Failure to Call Witness

Fuller argues Pittman was constitutionally ineffective for failing to call a witness 

who would testify that C.K. was a flirt and a tease. This ineffectiveness argument was 

decided adversely to Fuller before the evidentiary hearing was held. The district judge

memorialized the decision in an order filed on November 22, 2011. 

The Court of Appeals held that it lacked jurisdiction to consider this issue, relying 

on the language in Fuller's notice of appeal stating that he was appealing "from the 

judgment entered May 17, 2012, and filed with the Court on June 08, 2012, denying his 

[motion] for relief under K.S.A. 60-1507" and the failure of the notice to include a more 

inclusive "catch-all phrase." Fuller, 2013 WL 6164528, at *10.

Whether an appellate court has jurisdiction is a question of law subject to de novo 

review. State v. Brown, 299 Kan. 1021, 1027, 327 P.3d 1002 (2014).

This court recently explained:

"K.S.A. 2011 Supp. 60-2103(b) provides that '[t]he notice of appeal shall specify 

the parties taking the appeal; shall designate the judgment or part thereof appealed from, 

and shall name the appellate court to which the appeal is taken.' We liberally construe 

K.S.A. 60-2103(b) '"to assure justice in every proceeding,"' State v. Wilkins, 269 Kan. 

256, 270, 7 P.3d 252 (2000) (quoting State v. Griffen, 241 Kan. 68, 70, 734 P.2d 1089 

[1987]); but there is still a substantive minimum below which a notice cannot fall and 

still support jurisdiction. See, e.g., State v. Coman, 294 Kan. 84, 90, 273 P.3d 701 (2012) 

(notice of appeal for sentence cannot be construed to support appeal of conviction); State

v. G.W.A., 258 Kan. 703, 707, 906 P.2d 657 (1995) (State's appeal from judgment of 

acquittal insufficient to confer jurisdiction over question reserved); Gates v. Goodyear, 

37 Kan. App. 2d 623, 626-29, 155 P.3d 1196 (notice of appeal citing two specific district 

court rulings insufficient to confer jurisdiction over issues not addressed in those rulings), 
20

rev. denied 284 Kan. 945 (2007)." State v. Laurel, 299 Kan. 668, 673-74, 325 P.3d 1154 

(2014).

The panel recognized that an appellate court should not be overly technical in its 

construction of notices of appeal. See State v. Griffen, 241 Kan. 68, 69-70, 734 P.2d 1089 

(1987). But it believed specificity of Fuller's notice of appeal language would have to be 

"substantively rewritten" to allow it to reach the witness issue. Fuller, 2013 WL 6164528, 

at *10.

We disagree. The order explicitly covered by the notice—the one filed on June 8, 

2012—is titled "Order Denying Movant Relief on his K.S.A. 60-1507 Motion." 

Paragraph 3 of the order reads: "On September 30, 2011, a preliminary, nonevidentiary 

hearing was held and this court summarily denied movant relief on his assertion of 

cumulative error and several assertions of ineffective assistance of trial counsel. See 

Order Granting Movant a Limited Evidentiary Hear[]ing on His K.S.A. 60-1507 Motion."

Although the witness issue was not expressly decided on June 8, 2012, the order filed that 

day referenced the issue, and it was the June 8, 2012, order that denied movant relief on 

his K.S.A. 60-1507 motion. Moreover, "'[t]here is no showing that the notice of appeal 

misled the State or that anyone was surprised or prejudiced by the issues on appeal.'" 

State v. Wilkins, 269 Kan. 256, 270, 7 P.3d 252 (2000) (quoting Griffen, 241 Kan. at 69-

70). The notice of appeal in this case was sufficient to confer jurisdiction on our appellate 

courts to decide the witness issue.

Because the district judge decided this issue before conducting an evidentiary 

hearing, our review is de novo. Sola-Morales, 300 Kan. at 881.

Fuller argues that Pittman was ineffective for failing to put on a witness that would 

have testified that C.K. "was a flirt and a tease and . . . openly pursued married men at her 
21

place of work to the point of other wives having heated arguments and confrontations 

with her." 

The State argued at the preliminary, nonevidentiary hearing on Fuller's K.S.A. 60-

1507 motion that the witness' testimony would have been inadmissible under the rape 

shield statute. See K.S.A. 21-3525. The district judge agreed with the State when he 

announced his decision from the bench. In the judge's written order, however, he relied 

on K.S.A. 60-446 to say the proposed testimony would have been improper character 

evidence. 

Without explanation, the Court of Appeals panel stated that the rape shield statute 

was inapplicable. Fuller, 2013 WL 6164528, at *11. The panel nevertheless held that the 

evidence would have been inadmissible because, to the extent C.K.'s character was at 

issue, the defense had put it in issue and could not be permitted to exploit that fact. The 

panel ultimately concluded that Pittman's decision not to have the witness testify was 

tactical and, even if error, did not prejudice Fuller because he had been able to testify that 

C.K. was a flirt and a tease and Pittman had elicited similar testimony from a detective 

during the detective's cross-examination.

Even if the rape shield statute does not directly apply—an issue we need not 

decide—the rationale behind the statute is instructive. "'The Kansas [rape shield] statute 

merely serves to focus both judges' and attorneys' attention upon the fact that the victim's 

prior sexual activity is not generally relevant, reminding them that a victim's lack of 

chastity has no bearing whatsoever on her truthfulness and generally has no bearing on 

the important issue of consent.'" State v. Atkinson, 276 Kan. 920, 926, 80 P.3d 1143 

(2003) (quoting In re Nichols, 2 Kan. App. 2d 431, 433-34, 580 P.2d 1370, rev. denied

255 Kan. 844 [1978]); see State v. Jones, 168 Wash. 2d 713, 723, 230 P.3d 576 (2010) 
22

(rape shield statute "created to erase the misogynistic and antiquated notion that a 

woman's past sexual behavior somehow affected her credibility"). 

Fuller argues that the purpose of the evidence he contends should have been 

offered at trial would have been to attack C.K.'s credibility and character. But testimony 

indicating that C.K. was a flirt or a tease generally would not have made any material 

contribution to a showing that she consented to sexual contact with Fuller on the day of 

the alleged attack. The evidence was not relevant and was therefore inadmissible. State v. 

Huddleston, 298 Kan. 941, 959, 318 P.3d 140 (2014).

Fuller's argument that the State put C.K.'s character in issue when it inquired on 

cross-examination about his testimony that C.K. had flirted with him is unsupported by 

the record. It was the defense, and not the State, who attempted to put C.K.'s character in 

issue. On cross-examination of an investigating detective, Pittman asked about statements 

Fuller had made during his interrogation. Those statements indicated that Fuller's fiancé 

and her aunt thought C.K. was "too flirty." During his direct examination, Fuller claimed 

C.K. had been flirting with him. The State was permitted to cross-examine Fuller on this 

topic, see State v. Davidson, 264 Kan. 44, 56, 954 P.2d 702 (1998) ("Questions asked on 

cross-examination must be responsive to testimony given on direct examination, or 

material or relevant thereto."), without opening the door to a defense attack on C.K.'s 

character. 

Fuller has failed to demonstrate that Pittman was ineffective when he elected not 

to proffer a witness who could have provided only irrelevant and inadmissible testimony. 

Fuller's request that this particular facet of his ineffective assistance claim be remanded to 

the district court to hold an evidentiary hearing must be denied.
23

Defense Counsel's Failure to Argue Fuller's Pro Se Motion for New Trial

As with the first issue discussed, this issue was decided adversely to Fuller after an 

evidentiary hearing in the district court. Accordingly, our standard of review requires us 

to determine whether substantial competent evidence supports the district court's factual 

findings and whether those factual findings support its conclusions of law. We review the 

district court's conclusions of law de novo. Adams, 297 Kan. at 669.

Fuller argues that Pittman was ineffective at the motion for new trial hearing 

because Pittman had a conflict of interest. In order for Pittman to defend himself against 

Fuller's ineffective assistance of counsel allegations lodged at the hearing, Fuller 

contends, Pittman was required to advocate against Fuller's pro se motion for new trial. 

We agree that a conflict between Fuller and his counsel arose at the hearing. 

"'[W]here a constitutional right to counsel exists, there is a correlative right to 

representation that is free from conflicts of interest.'" State v. Sharkey, 299 Kan. 87, 96, 

322 P.3d 325 (2014) (quoting Wood v. Georgia, 450 U.S. 261, 271, 101 S. Ct. 1097, 67 

L. Ed. 2d 220 [1981]). Fuller filed his pro se motion within the then 10-day limitation 

period of K.S.A. 22-3501(1). The hearing on Fuller's pro se motion for new trial was a 

critical stage of the proceeding, and he was entitled to conflict-free counsel. Sharkey, 299 

Kan. at 96. 

In Sharkey, defendant Tyjuna M. Sharkey argued that "the trial judge erred in 

denying his pro se motions for new trial—based on ineffective assistance of counsel—

without first appointing new conflict-free counsel to assist him in arguing the motions." 

299 Kan. at 88-89. Sharkey focused his argument on the trial judge's failure to conduct an 

inquiry or appoint new counsel, and he sought remand so that conflict-free counsel could

argue his motions for him. 
24

This court found conflicted defense counsel's inaction compelling:

"Sharkey's defense counsel did not argue his own ineffectiveness, nor did he seek to 

withdraw so that Sharkey could be represented by conflict-free counsel at the motions 

hearing. Further, no evidence was presented in support of Sharkey's pro se motions, and 

defense counsel did not make any statement regarding those motions. Because of defense 

counsel's inaction, Sharkey was essentially required to present pro se legal arguments in 

support of his motions for new trial even though the State was represented by counsel." 

299 Kan. at 98. 

This court held that the circumstances made the potential for conflict apparent, and the 

judge was required to make an appropriate inquiry. Its absence constituted an abuse of 

the judge's discretion. 299 Kan. at 98. 

Turning to the effect of the abuse of discretion, this court held that a showing of 

prejudice was not required because Cronic applied. "Sharkey was constructively denied 

his right to counsel because of his attorney's conflict of interests; he effectively had no 

legal representation at the motions hearing." 299 Kan. at 101 (citing Mickens, 535 U.S. at 

172 n.5). Accordingly, we presumed the existence of prejudice, and we ordered the case 

remanded with instructions to hold a new hearing on Sharkey's pro se motions for new 

trial after he was appointed new, conflict-free counsel to argue the motions. 299 Kan. at 

101. 

In this case, both the district judge and the Court of Appeals panel concluded that 

Pittman never gave up his role as Fuller's advocate at the motion for new trial hearing. 

Fuller, 2013 WL 6164528, at *8. Our review of the record simply does not support that

conclusion. 
25

First, it is important to recall that two motions for new trial were before the court 

at the hearing—one filed by Pittman, along with a motion for judgment of acquittal, and

the other filed pro se by Fuller. Pittman's brief argument at the hearing in favor of his 

motions consisted of his statement that he thought "it was an extremely clean trial" and 

that he "thought things went in our favor." The district judge denied Pittman's motions.

The district judge then turned to Fuller's pro se motion for new trial. The only issues

raised in the motion for new trial were tied to complaints Fuller had about members of his 

jury. Specifically, Fuller argued that one juror was a friend of a detective in the case, that 

the foreman was a retired employee from the Sedgwick County courthouse, that another 

juror was the softball coach of the son of an employee in the prosecutor's office, that 

another juror was the victim of assault in her home, that another juror was the mother of a 

parole officer, and that one juror dozed off during the proceedings. The district judge 

asked Pittman if he planned to present argument or if Fuller "wish[ed] to present his own 

argument." Instead of arguing in support of Fuller's pro se motion for new trial, Pittman 

said only, "[w]e kind of get into a mine field," and suggested that Fuller argue his own 

motion. At that point in the hearing, there was nothing to suggest to the district judge that 

a conflict existed between counsel and client.

Fuller began by arguing that he did not have an impartial jury for the reasons set 

out in his pro se motion for new trial. But he quickly changed gears, expanding his list of 

complaints, essentially, orally amending his written pro se motion, on the spot. He 

asserted that the State violated a motion in limine prohibiting evidence about his drug 

use. He noted that Pittman had objected but had not filed a motion for mistrial, which 

Fuller considered the only curative measure for the violation. Fuller then alleged that 

there was evidence not admitted at trial that would have proved his innocence. After the 

district judge followed up, Fuller informed the court that phone records and an unnamed 

witness would have proved he was in C.K.'s home with permission. Fuller told the district 
26

judge, "I asked my lawyer to get the records, and the records [were] never gotten and I 

believe that's critical of proving—helping prove my innocence."

The district judge then asked Pittman whether he had anything to add. Pittman told 

the judge that he had "a slightly different take on those issues which I can express to the 

Court in detail issue by issue, if the Court wants to hear that." The district judge told 

Pittman to proceed however he saw fit.

Pittman elected to address Fuller's new complaints individually. With respect to 

the phone records, he said, "[M]atters of strategy are not to be dictated by the client but 

are up to the attorney." According to Pittman, the phone records could have shown an 

inconsistency in the victim's recollection of the events, but there was a greater risk that 

the phone records would have damaged Fuller's credibility, a risk Pittman was unwilling 

to take. Next Pittman argued that the selection of jurors also involved strategy in the 

exclusive province of defense counsel, although he noted that he had discussed the 

potential jurors with Fuller. Pittman concluded on this point by stating, "I stand by the 

individuals that we picked." Pittman transitioned to the next topic by saying that "Mr. 

Fuller may be mistaken in his recollection of several things." He then said he had 

interrupted the prosecutor before any motion in limine violation and returned to the juror 

issues. He defended each juror, attempting to negate each challenge his client had raised. 

Pittman ultimately concluded: "I stand by the jury we picked. I thought it was a good 

jury. So I don't think that there's a problem with those individuals," and he again asserted 

that Fuller had received a "clean trial."

From this comprehensive review of this portion of the transcript of the motion for 

new trial, it is abundantly clear to us that a conflict between Fuller and his defense 

counsel developed in front of the district judge when Pittman elected to defend himself 

against Fuller's allegations. Fuller asserted that Pittman failed to perform adequately. 
27

Pittman's argument was a point-by-point ineffective assistance of counsel defense 

directly opposing his client's motion for new trial. Instead of stopping the proceeding and 

appointing conflict-free counsel, the district judge then allowed the prosecutor to weigh 

in on Fuller's pro se motion. The prosecutor said that Pittman was "correct when he 

state[d] that there are certain strategic decisions that are up to the lawyer, and it sounds 

like it was in consultation with Mr. Fuller." The prosecutor then addressed the juror 

issues raised in the pro se motion.

After the prosecutor's argument, the district judge asked Fuller if he had any 

rebuttal, but, before Fuller could speak, Pittman asked if he could "just add one thing, and 

it's important, for the record." Pittman then specifically defended his decision not to 

challenge a juror who had been a victim of assault in her home as "good strategy," noting

she had been the victim of assault and not a sexual assault. He said, "I think it was good 

strategy and I'd do it again."

Fuller then spoke, telling the district judge that Pittman's failure to admit the phone 

records "just shows that the—I was not represented to the best of—I wasn't represented 

fully to the best of Mr. Pittman's ability." Fuller then continued—this time with a broad 

attack on the quality of Pittman's representation. He again touched on the complaints he 

had made earlier. He eventually also included an allegation that the prosecutor committed 

misconduct by questioning him on matters covered in the motion in limine.

Following Fuller's rebuttal, the district judge returned to Pittman to ask if he had 

anything to add. Pittman said that had he obtained the phone records, he would not have 

used them because "I don't think it's good strategy."
28

At that point, the district judge said that he recognized the written pro se motion 

only addressed jury issues but that he believed he "could still rule on the merits of those 

matters raised orally." 

Regarding the jurors, the district judge said that each had expressed an ability to 

be fair and impartial, and, accordingly, none was subject to a challenge for cause. The 

judge then stated: "It seems to me that the real argument here is that counsel, trial 

counsel, was ineffective at trial for failing to strike these jurors with the use of 

peremptory challenge, and I think that all of that is a matter of trial strategy." The judge 

then ruled that—"for the reasons expressed by Mr. Pittman" and because Pittman and 

Fuller had been allowed time alone together during which they could have discussed jury 

selection choices—the decisions on peremptory challenges were "reasonable and 

appropriate trial strategy." 

The judge then particularly addressed the juror that Fuller had argued fell asleep 

during trial. The judge said he did not see the juror sleeping and knew the lawyers had 

not seen the juror sleeping. He therefore saw no "reason to grant a new trial based on 

that." 

The district judge then turned to the other subjects Fuller had raised orally. 

The judge ruled that the State had not violated the order in limine by referencing 

Fuller's whereabouts at a particular time. With respect to evidence of drug possession or 

use, the judge affirmed that the order in limine prohibited introduction of testimony that 

Fuller had marijuana in his pocket at the time of his sexual encounter with C.K. The 

judge said that he did not recall Pittman making a contemporaneous objection at the point 

when the prosecutor questioned Fuller about drugs, but he said that any error arising out 

of the question or Fuller's denial in response would qualify as harmless.
29

Moving to the subject of the phone records, the judge said: "[A]gain, what we're 

really arguing here is ineffective assistance of counsel." He then said:

"My observation was that Mr. Pittman was very able in his argument of this case, that the 

decisions that he made are decisions that any competent trial counsel would make. I don't 

believe that Mr. Pittman's conduct in this trial fell below the standard that we expect of 

lawyers.

"Frankly, I think that all of these complaints are strategic complaints, and you 

don't get new trials because the strategy that you pursued didn't pan out. If that was the 

case, we'd never have the end of any trial. We'd always be able to go back and second 

guess every trial and say if I'd only done this or done that, we'd have had a different 

outcome. Such an approach would lead to the retrial of cases until you get to the verdict 

that you want, and that's just not the way it works. The standard is whether or not Mr. 

Pittman's trial strategy and the manner in which he defended this case fell below what we 

would expect of reasonable trial counsel, and I don't think it did in this case. I think he 

was competent and able in his defense.

"More to the point, with respect to the phone records, as I understand it, it goes to 

the question of the credibility of the victim in this case. And as Mr. Pittman has pointed 

out, her credibility was attacked numerous times by Mr. Pittman by showing the 

inconsistencies in her statements to the detective at various times during the 

investigation. I don't think that the phone records would have added materially to that, 

certainly would not have changed the outcome of the trial. I think that the decision not to 

subpoena those records was a reasonable decision that capable and competent trial 

counsel would make.

"So, for those reasons, the Court would overrule the motion for new trial and 

reversal."
30

The district judge then moved directly to Fuller's sentencing, which was continued 

for 3 weeks to allow Pittman to secure the attendance of two character witnesses Fuller 

wished to call and to gather information to resolve criminal history objections. 

This case differs somewhat from Sharkey because here, instead of proceeding on 

pro se motion after failing to inquire into a potential conflict between Fuller and his 

counsel, the district judge proceeded after an actual conflict became apparent during a 

hearing. But the effect is nearly identical and just as problematic. Pittman did not argue 

his own ineffectiveness. And, instead of standing silent as Sharkey's lawyer did, Pittman 

explicitly and repeatedly advocated for his own effectiveness. Indeed, he was persuasive. 

The judge referenced and relied upon Pittman's statements more than once. Meanwhile, 

Fuller was required to make his own arguments in support of his motion without the 

benefit of counsel. This means that this case either falls under Cronic, under which Fuller 

is "spared . . . the need of showing probable effect upon the outcome" in order to obtain 

relief, or it falls under what we have called the Mickens exception, which is the third 

subcategory of attorney conflict-of-interest cases, for which the United States Supreme 

Court has not yet articulated "what additional burden, e.g., prejudice or adverse effect, a 

defendant must satisfy before receiving relief." Sola-Moralez, 300 Kan. at 883-84. 

Under the circumstances of this case, where the existence of a conflict between 

Fuller and his lawyer is established beyond dispute by the hearing transcript, and the 

same transcript emphatically shows that conflicted counsel argued extensively and 

successfully against his client's position and the judge relied upon counsel's statements to 

issue his ruling, we hold that Fuller has met any burden that might be imposed. Cf. State 

v. Prado, 299 Kan. 1251, 1260, 329 P.3d 473 (2014) (where counsel argued expressly 

against existence of actual conflict shown by record, adverse effect present; prejudice 

presumed). 
31

As a remedy, Fuller asks this court to reverse the district judge's denial of his pro 

se motion for new trial, and, presumably, to remand for a new motion hearing after the 

appointment of conflict-free counsel. This would be the proper remedy if this issue were 

before us on direct appeal. See Sharkey, 299 Kan. at 101. But here the issue comes before 

the court on Fuller's K.S.A. 60-1507 motion. In these proceedings, Fuller has had the 

benefit of what we presume has been conflict-free counsel to assert and argue Pittman's

ineffectiveness. Some of the arguments that Fuller raised pro se have now been presented 

with the benefit of conflict-free counsel and nevertheless rejected by the district court, the 

Court of Appeals, and now this court. Remand to relitigate these thrice-rejected claims is 

not appropriate. 

Yet we are mindful of the fact that Fuller raised an ineffectiveness claim on direct 

appeal, expressly seeking relief from the Court of Appeals because of Pittman's failure to 

act as his counsel at the motion for new trial hearing. See Fuller, 2009 WL 4639506, at 

*3. Without the benefit of this court's later-published Sharkey opinion, and because of the 

framing of the issue and arguments, the panel did not thoroughly explore the issue on 

Fuller's direct appeal. Under different circumstances, we are certain the panel would have 

ordered relief similar to that we granted in Sharkey. Instead, it did what made sense at the 

time: It directed Pittman to K.S.A. 60-1507 as a vehicle for pursing his ineffective 

assistance of counsel claim. 

We recognize that not every pro se argument Fuller raised at his motion for new 

trial hearing was raised again in his K.S.A. 60-1507 motion. So saying that Fuller is in 

exactly the same position today as he would have been if he had conflict-free counsel at 

his motion for new trial hearing is not wholly accurate, even when weighed against the 

general proposition that an issue not raised, briefed, or argued is deemed abandoned or 

waived. See State v. Jones, 300 Kan. 630, 639, 333 P.3d 886 (2014).
32

K.S.A. 60-1507(b) allows a court to "grant a new trial or correct the sentence as 

may appear appropriate." We read this broad language to allow us to craft an appropriate 

remedy in this unusual case, i.e., to remand this case to the district court to hold a hearing 

on those arguments Fuller raised before the district court in support of his pro se motion 

for new trial that have not already been decided adversely to him in these K.S.A. 60-1507 

proceedings. These arguments include Fuller's claim that Pittman failed to obtain and use 

exculpatory phone records or call a witness who could have demonstrated Fuller's 

innocence. They also include juror issues not raised in Fuller's K.S.A. 60-1507 motion 

and any prosecutorial misconduct or ineffective assistance of counsel argument based on 

an alleged violation of the motion in limine. Our remand should not be read to express a 

view on the merit of any of Fuller's claims, only to validate his right to pursue them with 

assistance from conflict-free counsel. See State v. Gleason, 277 Kan. 624, 631, 652, 88 

P.3d 218 (2004) (once defendant filed pro se amendment to motion for new trial alleging 

attorney conflict of interest, second motion alleging ineffective assistance, district judge 

appointed new, conflict-free counsel to assist with pro se motions; new counsel relieved 

of duty after motions decided adversely to client; trial lawyer handled later sentencing). 

CONCLUSION

This case is remanded to the district court with instructions to hold a new hearing 

based on the arguments before the district court during Fuller's pro se motion for new 

trial hearing that have not yet been disposed of adversely to him in these K.S.A. 60-1507 

proceedings. If on remand the district judge rejects the arguments and denies the motion, 

reversal and a new trial is unnecessary. If the judge grants the motion, reversal and a new 

trial will be granted and new trial counsel appointed.

Affirmed in part, reversed in part, and remanded to district court with directions.