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NOT DESIGNATED FOR PUBLICATION

No. 123,205

 

 

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

JOHN BLAKE KOOP,

Appellant,

v.

STATE OF KANSAS,

Appellee.

MEMORANDUM OPINION

Appeal from Sedgwick District Court; JEFFREY SYRIOS, judge. Opinion filed January 21, 2022. 

Affirmed.

Mark Sevart, of Derby, for appellant.

Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, 

attorney general, for appellee.

Before BUSER, P.J., POWELL and HURST, JJ.

PER CURIAM: John Blake Koop appeals from the district court's summary denial

of his pro se K.S.A. 60-1507 motion in which he alleged (1) the complaint was defective; 

(2) his trial and appellate attorneys were ineffective for failing to challenge the 

complaint; and (3) the victim gave inconsistent statements at trial. Koop alleges the 

district court erred when it failed to appoint him counsel or hold an evidentiary hearing 

for his motion. This court is unpersuaded by Koop's conclusory claims and affirms the 

district court's summary denial of his 60-1507 motion. 
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FACTS AND PROCEDURAL BACKGROUND

On April 23, 2015, the State charged Koop with one count of attempted seconddegree murder and one count of aggravated battery. The State's complaint alleged that

"on or about the 21st day of April, 2015 A.D., one JOHN B. KOOP did commit any overt

act, to-wit: placed a hand on the throat of CLC and squeezed, strangulating CLC, toward 

the perpetration of a crime, to-wit: Murder in the Second Degree, as defined by K.S.A. 

21-5403(a)(1), and the said JOHN B. KOOP intended to commit such crime but failed in 

the perpetration thereof or was prevented or intercepted in executing such crime."

A detailed summary of the facts leading to these charges is unnecessary. On August 31, 

2016, a jury convicted Koop of both attempted second-degree murder and aggravated 

battery. The district court sentenced him to 260 months in prison and 36 months of 

postrelease supervision. 

Koop directly appealed his convictions and sentence alleging that (1) the State 

violated his right to a speedy trial; (2) the district court erred in instructing the jury; and 

(3) the district court violated his constitutional rights by not requiring the State to prove 

his criminal history beyond a reasonable doubt. A panel of this court found Koop's appeal 

unpersuasive and confirmed his convictions and sentence. State v. Koop, No. 117,134, 

2018 WL 3080690 (Kan. App. 2018) (unpublished opinion). 

About two months later, Koop filed a motion seeking free transcripts and court 

records pursuant to K.S.A. 22-4509. The district court denied this motion, and Koop 

timely appealed. A panel of this court affirmed the district court's denial—finding Koop 

ineligible for free records because he failed to first file a motion under K.S.A. 60-1501 or 

60-1507. State v. Koop, No. 121,890, 2020 WL 6930798 (Kan. App. 2020) (unpublished 

opinion), rev. denied 313 Kan. 1044 (2021). In March 2020, while his appeal for free 

transcripts was still pending, Koop filed a pro se K.S.A. 60-1507 motion that forms the 
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basis for this current appeal, where he alleged: (1) The State lacked jurisdiction over the 

attempted second-degree murder charge because the complaint was defective; (2) the 

victim's trial testimony was inconsistent with her preliminary hearing testimony; and (3) 

ineffective assistance of trial and appellate counsel for failure to object to the defective 

complaint. 

On July 30, 2020, the district court summarily denied Koop's K.S.A. 60-1507 

motion. As an initial matter, the district court found that it had jurisdiction over Koop's 

timely 60-1507 motion despite his pending appeal regarding the transcript requests. Upon 

review, the district court found that Koop failed to allege facts sufficient to warrant an 

evidentiary hearing on his K.S.A. 60-1507 motion. Specifically, the district court 

determined that the complaint was not defective because it conformed to the requirements 

of an attempt charge—it "clearly defined the overt act toward the perpetration of a crime,

and advised movant of the attempted crime." The district court also found that Koop's 

claim that the alleged defective complaint prejudiced his defense was conclusory and he

should have raised that objection in his direct appeal. It further determined that 

"neither trial nor appellate counsel's performance was deficient for failing to raise the

issues." Finally, the district court found that Koop's arguments were "conclusory and

without merit." 

Koop appealed the district court's summary denial of his 60-1507 motion. 

DISCUSSION

Koop contends he was entitled to an evidentiary hearing but appeals only two of 

his original K.S.A. 60-1507 motion claims—the complaint was defective and that his trial 

and appellate counsel were ineffective for failing to argue such. Koop has apparently 

abandoned his argument that the victim contradicted her prehearing testimony in her trial 

testimony and that such testimony did not support his conviction. It is well established 
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that issues not briefed are deemed waived or abandoned, so this court will not address 

Koop's evidentiary argument raised below. See In re Marriage of Williams, 307 Kan. 

960, 977, 417 P.3d 1033 (2018); see also State v. Lowery, 308 Kan. 1183, 1231, 427 P.3d 

865 (2018) (a point raised only incidentally in a brief and not argued therein is also 

deemed abandoned). Koop contends the complaint did not properly distinguish between 

the reckless and intentional forms of second-degree murder such that he was not 

adequately informed of the charges against him, therefore this court should reverse his 

conviction for attempted second-degree murder. 

I. The standard of review for K.S.A. 60-1507 motions

A district court has three options when presented with a K.S.A. 60-1507 motion—

it can summarily deny the motion, grant a preliminary hearing on the motion, or grant a 

full hearing on the motion. See White v. State, 308 Kan. 491, 504, 421 P.3d 718 (2018). 

When, as here, the district court summarily denies a K.S.A. 60-1507 motion, this court 

conducts a de novo review to determine whether the motions, 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 (2018). A district court may summarily deny a K.S.A. 60-

1507 motion without any evidentiary hearing if the defendant fails to show they are 

entitled to relief. Moncla v. State, 285 Kan. 826, 830, 176 P.3d 954 (2008). Koop bears 

the burden of showing he is entitled to an evidentiary hearing by making more than 

conclusory contentions. He must set forth an evidentiary basis to support those 

contentions or the basis must be evident from the record. See Thuko v. State, 310 Kan. 

74, 80, 444 P.3d 927 (2019).

II. Koop's trial and appellate counsel did not provide ineffective assistance of 

counsel for failing to allege the complaint was defective 

To be entitled to relief under K.S.A. 2019 Supp. 60-1507(b), Koop must establish 

by a preponderance of the evidence that either: (1) the judgment was rendered without 
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jurisdiction; (2) the sentence imposed was not authorized by law or is otherwise open to 

collateral attack; or (3) there has been such a denial or infringement of the constitutional 

rights of the prisoner as to render the judgment vulnerable to collateral attack. See 

Supreme Court Rule 183(g) (2021 Kan. S. Ct. R. 239). 

A defendant may not use a K.S.A. 60-1507 motion as a substitute for a direct or 

second appeal. "Mere trial errors must be corrected by direct appeal, but trial errors 

affecting constitutional rights may be raised even though the error could have been raised 

on appeal, provided exceptional circumstances excuse the failure to appeal." Supreme 

Court Rule 183(c)(3) (2021 Kan. S. Ct. R. 239). As the district court found, Koop's claim 

that the complaint was defective was a trial error that should have been brought on direct 

appeal. However, ineffective assistance of counsel can qualify as an exceptional 

circumstance that justifies failing to raise an issue on direct appeal. Rowland v. State, 289 

Kan. 1076, 1087, 219 P.3d 1212 (2009). Therefore, although Koop cannot raise his 

defective complaint argument for the first time in a K.S.A. 60-1507 motion if it is a mere 

trial error—this court may still reach that issue because Koop is arguing his counsel was 

ineffective for failing to raise the issue at trial or on direct appeal. 

To prevail on a claim of ineffective assistance of counsel, a defendant must

establish (1) that the performance of defense counsel was deficient under the totality of 

the circumstances; and (2) that the deficient performance prejudiced the defendant. SolaMorales, 300 Kan. 875, 882, 335 P.3d 1162 (2014) (relying on Strickland v. Washington, 

466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674, reh. denied 467 U.S. 1267 [1984]). 

A claim of ineffective assistance of counsel requires this court to consider all the 

evidence before the judge or jury. State v. Sprague, 303 Kan. 418, 426, 362 P.3d 828 

(2015). This court must first determine if Koop's trial and appellate counsel were 

deficient, and if so, whether such deficiency prejudiced Koop. In considering deficiency, 

"there is a strong presumption counsel 'rendered adequate assistance and made all 

significant decisions in the exercise of reasonable professional judgment.'" State v. Kelly, 
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298 Kan. 965, 970, 318 P.3d 987 (2014). "'To show prejudice, the defendant must show a 

reasonable probability that but for counsel's unprofessional errors, the result of the 

proceeding would have been different.'" Sprague, 303 Kan. at 426. In this regard, a 

reasonable probability means a probability sufficient to undermine confidence in the 

outcome. 303 Kan. at 426.

Koop argues that the complaint did not specifically include the word "intentional" 

and thus failed to notify him that he was being charged with attempted intentional

second-degree murder, and this omission deprived the court of jurisdiction and failed to 

adequately inform him of his charges. Koop argues that his trial and appellate counsel 

were ineffective for failing to challenge the complaint's defect and this court should set 

aside his conviction. 

Koop's jurisdictional challenge fails because the Kansas Constitution, not the 

criminal charging documents, "dictates the existence of subject matter jurisdiction." State 

v. Dunn, 304 Kan. 773, 813, 375 P.3d 332 (2016). Koop's jurisdictional argument 

erroneously relies on cases expressly overruled by the Kansas Supreme Court in Dunn. 

Deficiencies in a complaint, if any, do not remove the district or appellate court's subject 

matter jurisdiction. 304 Kan. at 810-11.

A charging document is defective, although it does not remove jurisdiction, if it:

(1) fails to meet Kansas constitutional minimums of correct court and correct territory; 

(2) fails to state facts that, if proved beyond a reasonable doubt, would constitute a crime 

under a Kansas statute; and (3) fails to meet federal and state constitutional due process 

and notice standards. Dunn, 304 Kan. at 815. Koop's argument that the defective 

complaint failed to adequately inform him of his charges falls within the third category of 

defect outlined in Dunn. Koop failed to cite the relevant authority in Dunn to support his 

argument, but this court will address the merits of his claims regardless of such failure. 
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Koop argues that the term "intentional" was an essential element of the charged 

crime, such that its omission in the complaint was a fatal defect rendering his counsels' 

representation ineffective for failing to object to its omission. Contrary to his argument, 

Koop was not charged with second-degree murder, which does have an intentional or 

reckless component—he was charged with attempted second-degree murder. A panel of 

this court previously recognized that "[a]n attempt crime has three essential elements: the 

intent to commit the crime, an overt act toward the perpetration of the crime, and a failure 

to consummate the crime." State v. Wilson, 30 Kan. App. 2d 498, 499-500, 43 P.3d 851 

(2002); see K.S.A. 2020 Supp. 21-5301(a). The panel went on to hold that "[i]n charging 

an attempt to commit crime, the essential elements of the crime attempted need not be 

meticulously enumerated in the charging document, but the charge must advise the 

defendant of the offense [they are] alleged to have attempted to commit." (Emphasis 

added.) 30 Kan. App. 2d at 500. Our Supreme Court adopted this same reasoning in 

Swenson v. State, 284 Kan. 931, 942-43, 169 P.3d 298 (2007) (finding trial counsel was 

not ineffective for failing to challenge allegedly defective complaint on grounds that it 

charged attempted first-degree murder without enumerating elements of premeditated 

first-degree murder). 

The State's complaint explicitly alleged that Koop committed an overt act "toward 

the perpetration of a crime, to-wit: Murder in the Second Degree, as defined by K.S.A. 

21-5403(a)(1)." (Emphasis added.) That cited statute defines second-degree murder as 

"the killing of a human being committed . . . intentionally." (Emphasis added.) K.S.A. 

2014 Supp. 21-5403(a)(1). The State did not need to "meticulously enumerate" all the 

elements of intentional second-degree murder to properly inform Koop of the charges 

against him. The complaint enumerated the requisite attempt elements and provided 

Koop with the specific statutory section for second-degree murder he was being charged 

under—the intentional section. Thus, the complaint was not defective and Koop's counsel 

did not provide deficient representation by failing to challenge the complaint. Koop's 

motion and the record clearly show he was not entitled to relief and the district court was 
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not required to conduct an evidentiary hearing. See Thuko, 310 Kan. at 80 (stating that 

the defendant is required to prove their K.S.A. 60-1507 motion is entitled to an 

evidentiary hearing). 

Koop cannot show that his counsels' performance was deficient, thus this court 

need not address the second step in analyzing ineffective assistance of counsel claims—

determining if Koop was prejudiced by such alleged deficiency. See State v. Gleason, 

277 Kan. 624, 646, 88 P.3d 218 (2004). 

CONCLUSION

Koop failed to present a viable ineffective assistance of counsel claim, and as such 

cannot show he was entitled to an evidentiary hearing on his K.S.A. 60-1507 motion. The 

district court's summary denial of the motion is affirmed.

Affirmed.