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No. 121,160

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

GEORGE LOWELL BROWN II,

Appellant,

v.

STATE OF KANSAS,

Appellee.

SYLLABUS BY THE COURT

1.

When a district court considers a K.S.A. 60-1507 motion, it may: (a) determine 

that the motion, files, and case records conclusively show the prisoner is entitled to no 

relief and deny the motion summarily; (b) determine from the motion, files, and records 

that a potentially substantial issue exists, in which case a preliminary hearing may be held 

after appointment of counsel. If the court then determines there is no substantial issue, the 

court may deny the motion; or (c) determine from the motion, files, records, or 

preliminary hearing that there is a substantial issue requiring an evidentiary hearing.

2.

When a district court held a full evidentiary hearing on an ineffective assistance of 

counsel claim under K.S.A. 60-1507, an appellate court reviews a district court's findings 

of fact and conclusions of law under a mixed standard of review. The appellate court 

examines the record and determines whether substantial competent evidence supports the 

district court's factual findings and determines whether the court's factual findings 

support its conclusions of law. The appellate court then reviews the district court's 

conclusions of law de novo. 
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3.

A district court is not required to entertain successive K.S.A. 60-1507 motions on 

behalf of the same movant unless there are exceptional circumstances.

4. 

K.S.A. 60-1507(f) places a time limit on filing an action under that statute of one 

year from the date the movant's direct appeal becomes final, unless the time limitation is 

extended by the court to prevent a manifest injustice. A K.S.A. 60-1507 movant has the 

burden of establishing manifest injustice.

5.

Appellate courts employ a two-step analysis when evaluating claims of reversible 

prosecutorial error. These two steps are simply described as error and prejudice. To 

determine prosecutorial error, an appellate court decides whether the act complained of 

falls outside the wide latitude afforded to prosecutors to conduct the State's case in a way 

that does not offend the defendant's constitutional right to a fair trial. If it finds error, the 

appellate court determines if that error prejudiced the defendant's right to a fair trial.

6. 

In State v. Tosh, 278 Kan. 83, 93, 91 P.3d 1204 (2004), the Supreme Court set 

forth a three-factor test to evaluate the prejudice step for reversible prosecutorial

misconduct: (1) whether the misconduct was gross and flagrant, (2) whether it was 

motivated by prosecutorial ill will, and (3) whether the evidence was of such a direct and 

overwhelming nature that the misconduct would likely have had little weight in the minds 

of jurors. 

7. 

In State v. Sherman, 305 Kan. 88, 378 P.3d 1060 (2016), the Supreme Court 

overruled portions of the Tosh analysis and adopted a new framework to evaluate the 
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prejudice step for reversible prosecutorial error, which requires the court to determine 

whether the State has carried its burden to demonstrate beyond a reasonable doubt that 

the error complained of will not or did not affect the outcome of the trial in light of the 

entire record, i.e., where there is no reasonable possibility that the error contributed to the 

verdict.

8. 

Generally, an opinion changing the law acts prospectively, applying to all cases, 

state or federal, pending on direct review or not yet final.

9.

Where both the alleged errors occurred and the direct appeals were finalized 

before Sherman, an appellate court analyzes a claim of prosecutorial error alleged in the 

context of a K.S.A. 60-1507 ineffective assistance of counsel claim using the reversibility 

framework in effect at the time of trial. 

Appeal from Cowley District Court; JOHN E. SANDERS, judge. Opinion filed September 25, 2020. 

Affirmed.

Kristen B. Patty, of Wichita, for appellant. 

Michael K. Henson, deputy county attorney, and Derek Schmidt, attorney general, for appellee.

Before WARNER, P.J., STANDRIDGE and GARDNER, JJ.

STANDRIDGE, J.: Following a jury trial, George Lowell Brown II was convicted of 

one count of aggravated indecent liberties with a child and one count of lewd and 

lascivious behavior. The district court sentenced Brown to life in prison with a mandatory 

minimum term of 25 years. On appeal, the Kansas Supreme Court affirmed his 

convictions and his life sentence. Brown later filed a timely first K.S.A. 60-1507 motion 
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alleging various claims, including one of ineffective assistance of counsel. The district 

court summarily denied Brown's first motion, a finding which this court affirmed on 

appeal. More than a year later, Brown filed an untimely second 60-1507 motion, alleging 

that both his trial counsel and direct appeal counsel were ineffective for various reasons. 

The district court appointed counsel to represent Brown and held an evidentiary hearing. 

Following the hearing, the district court denied Brown's second motion as successive and 

untimely and alternatively denied Brown's motion on the merits. Brown filed a motion to 

alter or amend the district court's ruling and, after another hearing, the district court 

denied that motion. Brown now appeals the dismissal of his second 60-1507 motion, 

specifically alleging that he established exceptional circumstances for the district court to 

entertain his successive motion and that he established manifest injustice to warrant 

extension of the one-year filing deadline. For the reasons stated below, we affirm the 

district court's ruling because its findings were supported by substantial competent 

evidence and it correctly found that Brown's second 60-1507 motion was successive and 

untimely.

FACTS

The facts of the underlying criminal case are largely irrelevant in this appeal. 

However, any facts that are necessary to the analysis will be included where needed. 

Further details about the underlying criminal case are extensively summarized in State v. 

Brown, 295 Kan. 181, 185-87, 284 P.3d 977 (2012) (Brown I). 

On October 7, 2009, a jury convicted Brown of one count of aggravated indecent 

liberties with a child and one count of lewd and lascivious behavior. In November 2009, 

the district court sentenced Brown to life in prison and ordered him to serve a mandatory 

minimum term of 25 years pursuant to Jessica's Law—also known as the "hard 25." On 

direct appeal, the Kansas Supreme Court affirmed Brown's convictions and his life 

sentence, finding, among other things, that (1) there were no alternative means issues 
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within the aggravated indecent liberties and lewd and lascivious behavior charges, (2) the 

district court did not abuse its discretion in allowing the State to reopen its case-in-chief 

to present limited testimony as to Brown's age, and (3) certain comments by the 

prosecutor during jury selection and closing arguments constituted error but the error was 

harmless. See Brown I, 295 Kan. at 202-03, 210, 211-15. The Kansas Supreme Court 

issued its mandate on September 17, 2012.

Brown filed a timely first pro se motion under K.S.A. 60-1507 on June 28, 2013. 

In this first 60-1507 motion, Brown argued that the district court deprived him of his right 

to due process by allowing the State to reopen its case-in-chief at trial and that his trial 

counsel was ineffective for failing to preserve his right to prepare an adequate defense. 

The district court summarily denied Brown's motion on July 16, 2013. Brown appealed 

the ruling and argued for the first time on appeal that his direct appeal counsel was 

deficient by only raising two of the seven factors courts must consider in deciding 

whether to allow a party to reopen its case-in-chief at trial. See Brown v. State, No. 

110,644, 2014 WL 2871400, at *2-3 (Kan. App. 2014) (unpublished opinion) (Brown II). 

In June 2014, this court rejected Brown's new argument on appeal and affirmed the 

district court's summary dismissal. Brown II, 2014 WL 2871400, at *2-3.

On October 2, 2015—over three years after the Kansas Supreme Court issued its 

mandate in Brown's direct appeal—Brown filed a second pro se 60-1507 motion. In his 

memorandum and affidavit in support of the motion, Brown alleged his trial counsel and 

his direct appeal counsel were ineffective. Brown argued that his trial counsel was 

ineffective for several different reasons: (1) counsel failed to seek a lesser included crime 

of aggravated indecent solicitation of a child, (2) counsel failed to object to the 

investigating deputy's testimony about using "finding words" or RATAC interviewing 

techniques as improper expert testimony, (3) counsel failed to object to the introduction 

at trial of the victim's recorded police interview, (4) counsel failed to object to the 

prosecutor's alleged "consciousness of guilt" closing argument, (5) counsel failed to 
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present an expert witness to testify about child interviewing techniques, (6) counsel failed 

to file and pursue a motion for judgment of acquittal as to the aggravated indecent 

liberties conviction, and (7) counsel failed to offer or request a limiting instruction on 

how prior consistent statements may only be used to corroborate a victim's testimony. 

Brown argued his direct appeal counsel was ineffective because counsel failed to include 

the State's consciousness of guilt closing argument in the prosecutorial error argument on 

direct appeal.

Apparently recognizing that his second K.S.A. 60-1507 motion was procedurally 

barred as untimely and successive, Brown provided several reasons why the district court 

should make an exception and consider his motion anyway. Specifically, he claimed (1) 

he did not have nor could he afford any legal assistance in drafting and filing his previous 

60-1507 motion, (2) he was afraid of seeking help from other inmates at his previous 

prison due to the nature of his conviction, (3) he could not go into protective custody at 

his previous prison because he would have been denied access to legal materials, (4) the 

Appellate Defender Office failed to provide him with legal aid resources following his 

direct appeal after telling him he would receive that information, and (5) he could only 

safely receive assistance from other inmates and did so once he was transferred to a 

different facility housing like offenders.

The district court appointed counsel (habeas counsel) to represent Brown and held 

a full evidentiary hearing on January 21, 2016. Judge James T. Pringle, the same judge 

who presided over Brown's underlying criminal matter, also presided over this 

evidentiary hearing. Brown's habeas counsel called him as a witness at the hearing, but 

Brown testified only about the alleged ineffective assistance of trial counsel in failing to 

object to the State's introduction at trial of the victim's recorded interview without also 

introducing the transcript from that interview as required by statute. 
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After Brown's testimony, habeas counsel emphasized three issues in Brown's 

second K.S.A. 60-1507 motion as having particular merit. First, Brown's trial counsel 

failed to object to the introduction of a videotape of the alleged victim's testimony under 

K.S.A. 22-3433, in part because no written transcript was produced by the State. Habeas 

counsel argued that Brown was prejudiced by his trial counsel's performance because the 

lack of an objection prevented the issue from being raised on appeal and because the 

video contained additional details not testified to by the victim at trial. Second, habeas 

counsel emphasized trial counsel's failure to object to the State's consciousness of guilt 

statement in closing argument. Had trial counsel objected to the prosecutor's allegedly 

improper statement that Brown's demeanor during his interview with police showed that 

he was guilty of the crimes charged, the issue could have been raised on direct appeal to 

bolster his other claims of prosecutorial error. Third, habeas counsel emphasized Brown's 

trial counsel failed to object to the investigating deputy's testimony about her use of the 

finding words technique with the victim, which habeas counsel asserted is a scientific 

technique requiring expert testimony. After discussing these three issues, habeas counsel 

advised the court that Brown was not abandoning the other issues in his second 60-1507 

motion; rather, Brown would rely on the arguments presented in his written motion for 

the other issues not specifically discussed at the evidentiary hearing.

The State presented no additional evidence but rebutted Brown's claims and 

simultaneously argued that the district court should deny Brown's motion as successive. 

The State asserted that Brown's ineffective assistance of counsel claims amounted to 

mere trial errors that should have been raised on direct appeal or in his first 60-1507 

motion, and Brown failed to meet his burden to establish exceptional circumstances 

existed to overcome the successive filing hurdle. The district court took the matter under 

advisement and informed the parties it would issue a written order. 

On March 7, 2016, Judge Pringle issued a lengthy order denying Brown's 60-1507 

motion. At the outset, the district court denied Brown's motion as successive because 
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Brown had previously alleged ineffective assistance of counsel in his first 60-1507 

motion, and it denied Brown's motion as untimely because Brown failed to establish the 

requisite manifest injustice to extend the one-year filing deadline. Alternatively, the 

district court denied Brown's motion on the merits. 

Brown's habeas counsel filed a notice of appeal on March 8, 2016. While the 

matter was pending in this court, Brown filed a pro se motion with the district court to 

alter or amend the court's order denying his 60-1507 motion. He also filed a pro se 

motion to stay the appeal pending the district court's ruling on the motion to alter or 

amend the judgment. At some point, Brown was appointed new habeas counsel and he 

moved this court to dismiss his appeal. This court granted Brown's voluntary request and 

dismissed the appeal on February 13, 2017. 

The matter proceeded in the district court before Senior Judge John E. Sanders. 

Judge Sanders held a pretrial conference on March 27, 2018. It is unclear what arguments 

the parties made at this hearing as there was no record created for it. However, it appears 

that Judge Sanders took the matter under advisement, requested the parties obtain reports 

from their respective experts on child interviewing techniques, and advised he would 

issue a written ruling as to whether any further hearings were necessary. 

On February 5, 2019, Judge Sanders issued his order denying Brown's motion to 

alter or amend Judge Pringle's ruling and dismissing Brown's 60-1507 request for relief. 

The district court noted that Judge Pringle already found that having an expert witness to 

discuss child interviewing techniques would not have discredited the victim's testimony 

or changed the outcome of the trial in this case. The court reasoned that Brown should 

not get "another bite of the apple" to argue why an expert is necessary, and it found 

nothing that would compel it to reverse Judge Pringle's ruling. The court noted that in 

addition to the incriminating evidence presented throughout trial, Brown himself at least 

partially confirmed some of the victim's allegations. Noting it had reviewed the proffered 
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expert reports, the court found that calling these witnesses would "change nothing" and 

"inject further confusion" into the proceedings. 

Brown timely appealed the denial of his second 60-1507 motion. 

ANALYSIS

When considering a K.S.A. 60-1507 motion, a district court has three options:

"'(1) The court may determine that the motion, files, and case records conclusively show 

the prisoner is entitled to no relief and deny the motion summarily; (2) the court may 

determine from the motion, files, and records that a potentially substantial issue exists, in 

which case a preliminary hearing may be held. If the court then determines there is no 

substantial issue, the court may deny the motion; or (3) the court may determine from the 

motion, files, records, or preliminary hearing that a substantial issue is presented 

requiring a full hearing.' [Citation omitted.]" Sola-Morales v. State, 300 Kan. 875, 881, 

335 P.3d 1162 (2014).

The standard of review depends upon which approach the district court used to 

dispose of the motion. When, as here, the district court held a full evidentiary hearing on 

an ineffective assistance of counsel claim under K.S.A. 60-1507, an appellate court 

reviews a district court's findings of fact and conclusions of law under a mixed standard 

of review. The appellate court examines the record and determines whether substantial 

competent evidence supports the district court's factual findings and determines whether 

the court's factual findings support its conclusions of law. The appellate court then 

reviews the district court's conclusions of law de novo. State v. Adams, 297 Kan. 665, 

669, 304 P.3d 311 (2013). 

The district court denied Brown's second 60-1507 motion for relief on grounds 

that it was successive and untimely. Although the court went on to discuss the underlying 
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merits of Brown's ineffective assistance of counsel claims, it did so as an alternative 

reason for denying the motion and as a means to facilitate a decision about whether 

considering the merits would prevent a manifest injustice, which would excuse the 

untimely nature of the filing. 

K.S.A. 2019 Supp. 60-1507 sets forth restrictions on courts' consideration of 

untimely and successive motions. In this case, neither analysis requires fact-finding. So 

we first must find that Brown has cleared these two procedural hurdles before we can 

move on to address the underlying merits of his K.S.A. 60-1507 motion. This is Brown's 

second 60-1507 motion in which he alleges various ineffective assistance of counsel 

claims. To avoid dismissal of his motion as successive, Brown must establish that 

exceptional circumstances existed to prevent him from raising these issues in his first 60-

1507 motion. See K.S.A. 60-1507(c); Thuko v. State, 310 Kan. 74, 81, 444 P.3d 927 

(2019). And because he filed his second motion over three years after the Kansas 

Supreme Court issued its mandate in Brown's direct appeal, Brown also must establish 

manifest injustice. See K.S.A. 60-1507(f)(1) and (2) (one-year time limit to file motion 

may be extended by the court only to prevent a manifest injustice). 

1. Successive motion

K.S.A. 2019 Supp. 60-1507(c) and Supreme Court Rule 183(d) (2020 Kan. S. Ct. 

R. 223) provide that a district court is not required to entertain successive motions on 

behalf of the same prisoner. This rule prohibiting successive motions, however, is subject 

to limited exceptions. Thuko, 310 Kan. at 84. To avoid having a second or successive 

K.S.A. 60-1507 motion dismissed as an abuse of remedy, the movant must establish 

exceptional circumstances. "Exceptional circumstances" are defined as unusual events or 

intervening changes in the law that prevented the movant from raising the issues in the 

preceding 60-1507 motion. Beauclair v. State, 308 Kan. 284, 304, 419 P.3d 1180 (2018).
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In his brief, Brown alleges six distinct circumstances he contends are exceptional: 

(1) He did not have nor could he afford any legal assistance in drafting and filing his 

previous 60-1507 motion, (2) he was afraid of seeking help from other inmates at his 

previous prison due to the nature of his convictions, (3) he could not go into protective 

custody at his previous prison because he would have been denied access to legal 

materials, (4) the Appellate Defender Office failed to provide him with legal aid 

resources following his direct appeal after telling him he would receive that information,

(5) he could only safely receive assistance from other inmates and did so once he was 

transferred to a different facility housing like offenders, and (6) his ineffective assistance 

of counsel claims constitute such a circumstance.

The first five reasons Brown provides can be lumped into two similar categories: 

Brown either lacked legal assistance in filing his motions or he lacked access to legal 

resources for various reasons. As Kansas appellate courts have long established, none of 

these reasons constitute valid exceptional circumstances that prevented Brown from 

raising his ineffective assistance of counsel claims in his first K.S.A. 60-1507 motion. 

See, e.g., Sherwood v. State, 310 Kan. 93, 101, 444 P.3d 966 (2019) (finding that 

movant's inability to obtain legal assistance is not valid basis for manifest injustice); 

Brown v. State, 278 Kan. 481, 483, 101 P.3d 1201 (2004) ("[T]here is no constitutional 

right to effective assistance of legal counsel on collateral attacks because they are civil, 

not criminal, actions."); Harris v. State, No. 120,942, 2020 WL 1482424, at *3 (Kan. 

App. 2020) (unpublished opinion) (finding that movant's limited access to legal materials 

was insufficient to show manifest injustice), petition for rev. filed April 24, 2020; 

Martinez v. State, No. 120,488, 2019 WL 6798971, at *3 (Kan. App. 2019) (unpublished 

opinion) ("A prisoner's lack of legal knowledge, training, and familiarity with the rules of 

procedure fails to meet [the manifest injustice] standard."), rev. denied 311 Kan. ___ 

(July 28, 2020); Kelly v. State, No. 114,158, 2016 WL 3031256, at *5 (Kan. App. 2016) 

(unpublished opinion) (finding that lack of access to legal resources due to time spent in 

administrative segregation is not persuasive circumstance for establishing manifest 
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injustice); Conley v. State, No. 111,777, 2015 WL 7434746, at *3-4 (Kan. App. 2015) 

(unpublished opinion) (finding that movant's limited legal knowledge, lack of access to 

law library, and numerous prison transfers did not rise to level of exceptional 

circumstances or manifest injustice).

While Brown is correct that an ineffective assistance of counsel claim may 

constitute an exceptional circumstance, the claims that Brown alleges in this second 

K.S.A. 60-1507 motion occurred before he filed his first 60-1507 motion. See Thuko, 310 

Kan. at 84; Rowland v. State, 289 Kan. 1076, 1087, 219 P.3d 1212 (2009) ("Ineffective 

assistance of counsel can qualify as an exceptional circumstance."). So Brown's current 

allegations of ineffective assistance by trial counsel and direct appeal counsel do not 

constitute an unusual or intervening event that would excuse omitting the issue in his first 

60-1507 motion. See Thuko, 310 Kan. at 84. What is more, Brown's first motion alleged 

that he had been denied effective assistance of trial counsel—a claim which the district 

court summarily denied and this court rejected. Additionally, his appeal of that denial 

also alleged he was denied effective assistance of direct appeal counsel—a claim this 

court also rejected. See Brown II, 2014 WL 2871400, at *2-3. By alleging ineffective 

assistance of counsel claims in his second 60-1507 motion that he could have raised in 

his first motion, Brown seeks successive consideration of the same claim. The fact that 

the argument he now offers in support of the ineffective assistance of counsel claim is 

different than the argument he previously offered in support of the claim is immaterial. 

The language in K.S.A. 60-1507(c) is clear: a sentencing court is not required to 

entertain a second or successive motion for similar relief on behalf of the same prisoner.

Our Supreme Court held that "'[a movant] in a K.S.A. 60-1507 motion is presumed to 

have listed all grounds for relief and a subsequent motion need not be considered in the 

absence of [a showing of] circumstances justifying the original failure to list a ground.'" 

State v. Trotter, 296 Kan. 898, 904, 295 P.3d 1039 (2013); see also Thuko, 310 Kan. at 

84-85; Manco v. State, 51 Kan. App. 2d 733, 739, 354 P.3d 551 (2015) ("'[S]uccessive 

post-conviction motions alleging ineffective assistance of counsel are an abuse of remedy 
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and should be denied even if based . . . upon distinct allegations of ineffectiveness. 

Absent assertion of exceptional circumstances, all claims of ineffective assistance of trial 

counsel must be asserted together in order to avoid summary denial as successive, even 

though a later assertion alleges different or distinct factual bases for the purported 

ineffectiveness.").

Brown has failed to prove the requisite exceptional circumstances that would 

excuse the filing of his successive 60-1507 motion. Because he failed to establish these 

circumstances, the district court did not err in denying Brown's second 60-1507 motion as 

successive.

2. Manifest injustice

Since 2003, K.S.A. 60-1507(f) has required individuals to bring their K.S.A. 60-

1507 motions within one year of (1) the termination of state appellate jurisdiction over a 

direct appeal or (2) the United States Supreme Court's denial of a petition for writ of 

certiorari. See K.S.A. 2019 Supp. 60-1507(f); Noyce v. State, 310 Kan. 394, 399, 447 

P.3d 355 (2019). Brown filed the present 60-1507 motion on October 2, 2015, over three 

years after the Kansas Supreme Court issued its mandate in Brown's direct appeal.

Therefore, the motion is untimely. 

Although the one-year time limitation may be extended by the district court, that 

extension can be granted only to prevent a manifest injustice. K.S.A. 2019 Supp. 60-

1507(f)(2). In 2014, our Supreme Court decided Vontress v. State, 299 Kan. 607, 325 

P.3d 1114 (2014), in which the court identified three bases for determining whether a 

movant has demonstrated manifest injustice in order to avoid the one-year deadline for 

filing a K.S.A. 60-1507 motion. Those bases are as follows:
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"whether (1) the movant provides persuasive reasons or circumstances that prevented him 

or her from filing the 60-1507 motion within the 1-year time limitation; (2) the merits of 

the movant's claim raise substantial issues of law or fact deserving of the district court's 

consideration; and (3) the movant sets forth a colorable claim of actual innocence, i.e., 

factual, not legal, innocence." 299 Kan. at 616.

In response to Vontress, the Legislature amended K.S.A. 60-1507(f), effective 

July 1, 2016, to provide:

"For purposes of finding manifest injustice under this section, the court's inquiry 

shall be limited to determining why the prisoner failed to file the motion within the oneyear time limitation or whether the prisoner makes a colorable claim of actual innocence. 

As used herein, the term actual innocence requires the prisoner to show it is more likely 

than not that no reasonable juror would have convicted the prisoner in light of new 

evidence." K.S.A. 2016 Supp. 60-1507(f)(2)(A).

This legislative action effectively eliminated the second Vontress factor for 

determining manifest injustice when a K.S.A. 60-1507 motion is untimely filed. Notably, 

however, our Supreme Court has held this amended statute does not apply retroactively to 

K.S.A. 60-1507 motions filed before July 1, 2016. White v. State, 308 Kan. 491, Syl. ¶ 1, 

421 P.3d 718 (2018). Again, Brown's current motion was filed in October 2015, so the 

new manifest injustice standard is inapplicable. Rather, the Vontress analysis controls. 

White, 308 Kan. at 503.

As the person seeking an extension of the time limit, Brown "bears the 'burden to 

establish manifest injustice by a preponderance of the evidence.'" Noyce, 310 Kan. at 399 

(quoting White, 308 Kan. at 496; citing Supreme Court Rule 183[g] [2018 Kan. S. Ct. R. 

223]). In conducting a manifest injustice inquiry, courts must consider the Vontress

factors under the totality of the circumstances rather than balancing factors against each 
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other. Given the required analysis for each of the Vontress factors, we will conduct our 

analysis of the first and third factors before addressing the second factor. 

a. Manifest injustice under Vontress factor 1

As to the first factor—reasons or circumstances explaining the failure to meet the 

one-year time limit—Brown incorporates the same circumstances he alleged as bases for 

finding exceptional circumstances. For the reasons stated in our analysis above, we 

similarly find Brown has failed to provide valid reasons for failing to raise the ineffective 

assistance of counsel arguments within the one-year time limit. Our analysis on that issue 

is incorporated and applied here. Because Brown fails to establish any valid reasons 

explaining his failure to file his second 60-1507 motion within the one-year time limit, he 

is not entitled to relief under the first Vontress factor.

b. Manifest injustice under Vontress factor 3

The third Vontress factor requires this court to look at whether Brown asserted a 

colorable claim of actual innocence. Brown made no such assertion in his original 

motion. On appeal, Brown argues that he is serving a life sentence because he is "weird" 

and that inadvertent or innocent acts—i.e., sleeping naked with the victim in this case, 

rubbing lotion on the victim's body when she asked, and scratching victim's back—were 

given criminal interpretations. See Brown I, 295 Kan. at 186-87. This is not a colorable 

claim of innocence, and in fact, it is counter to any such claim because it corroborates at 

least some of the victim's trial testimony in the underlying criminal case. Because Brown 

fails to assert a colorable claim of innocence, he is not entitled relief under the third 

Vontress factor.
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c. Manifest injustice under Vontress factor 2

Under the second factor, this court must consider whether the merits of Brown's 

claims raise substantial issues of law or fact deserving of the district court's 

consideration. It is only in this context that we now review the individual claims set forth 

in Brown's motion. To prevail on an ineffective assistance of counsel claim, a criminal 

defendant must establish (1) that 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 counsel's deficient 

performance. Sola-Morales, 300 Kan. at 882 (relying on Strickland v. Washington, 466 

U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 [1984]).

The benchmark for reviewing an ineffective assistance of counsel claim is whether 

the attorney's conduct so undermined the proper functioning of the adversarial process 

that the trial cannot be relied on as having produced a fair and just result. Bledsoe v. 

State, 283 Kan. 81, 90, 150 P.3d 868 (2007). Judicial scrutiny of counsel's performance 

in a claim of ineffective assistance of counsel is highly deferential and requires 

consideration of all the evidence before the judge or jury. The reviewing court must 

strongly presume that counsel's conduct fell within the broad range of reasonable 

professional assistance. State v. Kelly, 298 Kan. 965, 970, 318 P.3d 987 (2014). "[A] fair 

assessment of attorney performance requires that every effort must 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."

Crowther v. State, 45 Kan. App. 2d 559, 564, 249 P.3d 1214 (2011).
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(1) Lesser included offense

Brown's first ineffective assistance of counsel claim is that his trial counsel failed 

to request a lesser included charge. Brown was charged with aggravated indecent liberties 

with a child in violation of K.S.A. 21-3504(a)(3)(A), which provides:

"(a) Aggravated indecent liberties with a child is:

. . . . 

(3) engaging in any of the following acts with a child who is under 14 years of 

age: 

(A) Any lewd fondling or touching of the person of either the child or the 

offender, done or submitted to with the intent to arouse or to satisfy the sexual desires of 

either the child or the offender, or both."

Brown claims trial counsel was deficient for failing to request the jury be permitted to 

consider whether he committed the crime of aggravated indecent solicitation of a child in 

violation of K.S.A. 21-3511(a), which he asserts is a lesser included charge of aggravated 

indecent liberties with a child. "Aggravated indecent solicitation of a child is: (a) 

Enticing or soliciting a child under the age of 14 years to commit or to submit to an 

unlawful sexual act." K.S.A. 21-3511(a). An "unlawful sex act" is defined, among other 

things, as "any . . . aggravated indecent liberties with a child . . . [or] lewd and lascivious 

behavior . . . as defined in this code." K.S.A. 21-3501(4).

The controlling test for determining whether aggravated indecent solicitation of a 

child is a lesser include offense in this case is found in K.S.A. 21-3107(2), which 

provides in relevant part:

"(2) Upon prosecution for a crime, the defendant may be convicted of either the 

crime charged or a lesser included crime, but not both. A lesser included crime is:

. . . . 
18

(b) a crime where all elements of the lesser crime are identical to some of the 

elements of the crime charged."

In comparing the statutes, we necessarily conclude that aggravated indecent 

solicitation of a child charge is not a lesser included offense of aggravated indecent 

liberties with a child. Under K.S.A. 21-3107(2)(b), all of a lesser included offense's 

elements must appear in some of the elements of the greater crime charged. To prove 

aggravated indecent solicitation of a child, the State must establish not only all of the 

elements of the crime of aggravated indecent liberties with a child or some other unlawful 

sex act but, in addition, must prove that a defendant enticed or solicited a child to commit 

or submit to an unlawful sex act. There are more elements in an aggravated indecent 

solicitation of a child charge than found in the aggravated indecent liberties with a child 

charge. As such, the record conclusively shows that Brown's trial counsel was not 

deficient for failing to request the lesser included instruction. 

(2) Interviewing protocol

In his second claim, Brown asserts trial counsel was deficient by failing to object 

to the investigating deputy's testimony about using the finding words protocol when 

interviewing the child victim in this case. In his motion, he summarily argued that the 

deputy was allowed to testify without objection about her training and knowledge of the 

finding words or RATAC technique and that such testimony was improper expert 

opinion. But the record reflects that the deputy never testified as to any personal opinions 

about whether Brown molested the victim based on these interview techniques, nor did 

she testify as to the victim's credibility during the interview. She only testified as to her 

training and experience using the technique and how that guided her interview with the 

victim in this case. See Waddell v. State, No. 120,800, 2020 WL 2502200, at *9 (Kan. 

App. 2020) (unpublished opinion) (finding that detective investigating allegations of 

sexual abuse of child was not an expert when detective merely testified about his 
19

investigative process and made no opinions about whether abuse actually occurred or 

whether defendant perpetrated said abuse). Brown provides us with no authority to 

support his legal proposition that a law enforcement officer trained in using the finding 

words technique is not allowed to testify as to their training, experience using the 

technique, and application of that technique. Accordingly, Brown fails to establish his 

trial counsel was deficient by failing to object to the investigating deputy's testimony.

(3) Lack of transcript

In his third argument, Brown claims trial counsel was ineffective by failing to 

object to the introduction of the victim's recorded interview. Specifically, he alleges that 

the recorded interview was inadmissible because the State failed to provide the defense 

with a transcript of the child's interview prior to trial as required by K.S.A. 22-

3433(a)(8). At the time of his trial, this statute provided:

"(a) In any criminal proceeding in which a child less than 13 years of age is 

alleged to be a victim of a crime, a recording of an oral statement of the child, made 

before the proceeding began is admissible in evidence if: 

. . . .

(8) . . . a copy of a written transcript is provided to the parties." K.S.A. 22-

3433(a)(8).

Brown claims trial counsel was deficient for failing object to the introduction of 

the victim's recorded interview without first receiving the interview transcript. We will 

assume without deciding for purposes of our analysis that trial counsel's failure to object 

constitutes deficient performance. In support of prejudice, Brown first argues the video 

recording that was played for the jury significantly strengthened the State's case against 

him at trial. In making this argument, Brown seems to suggest that if trial counsel had 

objected to the admissibility of the recorded interview based on a violation of K.S.A. 22-

3433(a)(8), the court would have deemed the recording inadmissible. But there is no 
20

evidence in the record to suggest that the trial court would have prohibited the State from 

introducing the recorded interview into evidence based on the State's failure to adhere to 

the statutory requirements. It seems just as likely that the trial court would have given the 

State an opportunity to provide Brown with a written transcript for review, which would 

have then rendered the recording admissible under the statute. Although Brown 

summarily cites to the State's violation of K.S.A. 22-3433(a)(8), he fails to explain how 

he was prejudiced by the State's failure to provide a written transcript before it introduced

the recorded interview into evidence. The transcript is a verbatim written transcription of 

every statement in the interview. Significant to our analysis, introduction of the written 

transcript at trial would not have prohibited the State from introducing the video 

recording at trial. The rule requiring the State to provide a transcript is meant to 

supplement, not supplant, the introduction of a video recording at trial. Conspicuously 

missing from Brown's argument is an assertion that the written transcript would have 

bolstered any part of his defense to the charges lodged against him. 

In another attempt to show prejudice, Brown relies on State v. Waddell, No. 

100,517, 2011 WL 767836 (Kan. App. 2011) (unpublished opinion). In Waddell, a panel 

of this court found that the overwhelming evidence of defendant's guilt centered on 

statements the child victim made in her recorded interview or in the presence of other 

interviewers and investigators—not from what the victim testified to at trial. The panel 

determined that without the video evidence and the additional hearsay testimony about 

the victim's interview statements, it is likely there would not have been sufficient 

evidence presented at trial to convict the defendant. Based on these determinations, the 

court found reversible error where the recorded interview was introduced into evidence 

without a transcript being provided to the defense. 2011 WL 767836, at *3-4. 

But the facts here are different than those in Waddell. Here, the victim was 

available to testify at the jury trial and largely recounted the information she provided to 

the deputy in her interview: how she and Brown slept naked together in Brown's bed, 
21

how Brown laid on top of her while they were naked, how Brown put his arms around her 

and snuggled her, how he touched her privates, how he rubbed lotion all over her body, 

how Brown made her wear only an apron while cooking breakfast, and how Brown 

showed her his privates. Brown also corroborated some of this evidence in his own 

interview with police—i.e., he admitted to sleeping naked with the victim in his bed, 

rubbing lotion on the victim, and scratching the victim's back. See Brown I, 295 Kan. at 

186-87. Police even found physical evidence to corroborate the victim's story, such as 

five bottles of lotion retrieved from the headboard of Brown's bed and the apron the 

victim wore at Brown's request. 

Having considered the entire record, we find beyond a reasonable doubt that any 

alleged deficiency in trial counsel's failure to object to introduction of the recorded 

interview without first being provided a written transcript did not affect the outcome of 

the trial.

(4) Consciousness of guilt

Brown's next claim is that his trial counsel was ineffective for failing to object 

during closing argument to the prosecutor's comment on Brown's demeanor in a video 

recording of his interview by police. In its memorandum opinion, the habeas court set 

forth the relevant facts related to this claim:

"At the end of Deputy McDonald's interview of Brown, she left the room. At that point 

the video showed Brown tilt his head down onto his fists and then his open hands 

covering his face. There was no indication he was crying and he didn't say anything. 

During the prosecutor's closing argument, he stated the following:

"'Watch the defendant's video. And the reason we played that video all the way to 

the conclusion is when Deputy McDonald left, what did the defendant do? (Gesture.)

"'I have a phrase for that, but I don't think I should use it in open court. I call it an 

Oh, shucks moment in open court. He knew what he did was wrong. He knew he had 
22

been caught. Watch the video. Watch his testimony. No, this never happened. No, this 

never happened. No, this never happened. Well, this part happened. Oh, well, that part

happened. Oh, well, this part happened. Another 15 minutes, who knows what he would 

have said.

"'Ladies and gentlemen, it's for you to decide what happened. Watch that video. 

Watch [the victim].'"

Brown characterized the prosecutor's statement as a "consciousness of guilt" 

argument because the prosecutor urged the jury to view Brown's demeanor at the end of 

questioning as an indication that Brown "knew what he did was wrong" and "knew he 

had been caught." Brown claims trial counsel was deficient for failing object to the 

prosecutor's "consciousness of guilt" argument. For purposes of our analysis, we will 

assume without deciding that trial counsel's failure to object to the State's consciousness 

of guilt argument constitutes deficient performance. Brown claims the prosecutor's 

argument rose to the level of prosecutorial misconduct, which necessarily supports a 

finding of prejudice in that he was deprived of a fair trial.

When Brown's case was tried in 2009 and when he filed this habeas motion in 

2015, Kansas courts referred to claims that a prosecutor's comments denied a defendant's 

due process rights to a fair trial as "prosecutorial misconduct." See State v. Barber, 302 

Kan. 367, Syl. ¶ 4, 353 P.3d 1108 (2015). The applicable test for such a claim was set out 

in State v. Tosh, 278 Kan. 83, Syl. ¶¶ 1-2, 91 P.3d 1204 (2004). Under Tosh, an appellate 

court first decided whether the prosecutor's comment was outside the wide latitude 

allowed in discussing evidence. 278 Kan. at 85. If so, the court was required to engage in 

a "particularized harmlessness inquiry" that assessed three factors: (1) whether the 

misconduct was gross and flagrant, (2) whether it showed ill will on the prosecutor's part, 

and (3) whether the evidence against the defendant was of such a direct and 

overwhelming nature that the misconduct likely had little weight in the jurors' minds. 278 

Kan. at 93-96. No factor was individually controlling. But before the third could override 

the first two, an appellate court had to be able to say the harmlessness tests of both 
23

K.S.A. 60-261 and Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 

(1967), were met. Tosh, 278 Kan. 83, Syl. ¶ 2.

The district court issued its memorandum opinion denying Brown habeas relief on 

March 7, 2016. The court applied the Tosh test to analyze Brown's claim alleging 

prosecutorial misconduct. About six months after the district court's memorandum 

opinion was issued, the Kansas Supreme Court modified the two-step analytical 

framework for claims that a prosecutor's trial behavior requires reversal. See State v. 

Sherman, 305 Kan. 88, 109, 378 P.3d 1060 (2016). Sherman changed the name of these 

claims to "'prosecutorial error'" and saved the pejorative "'prosecutorial misconduct'"

designation for more severe wrongdoing. 305 Kan. at 107; see State v. Chandler, 307 

Kan. 657, 695, 414 P.3d 713 (2018). Sherman held: 

"Appellate courts will continue to employ a two-step analysis to evaluate claims 

of reversible prosecutorial error. These two steps can and should be simply described as 

error and prejudice."

"To determine whether prosecutorial error has occurred, the appellate court must 

decide whether the prosecutorial acts complained of fall outside the wide latitude 

afforded prosecutors to conduct the State's case and attempt to obtain a conviction in a 

manner that does not offend the defendant's constitutional right to a fair trial. If error is 

found, the appellate court must next determine whether the error prejudiced the 

defendant's due process rights to a fair trial." 305 Kan. 88, Syl. ¶¶ 6-7.

Sherman did not change the applicable standard for deciding whether the 

prosecutor's actions were outside the wide latitude afforded prosecutors. 305 Kan. at 104 

("The well-developed body of caselaw defining the scope of a prosecutor's 'wide latitude'

. . . will continue to inform our review of future allegations of prosecutorial error."). The 

Sherman court modified only the second Tosh step:

"If error is found, the appellate court must next determine whether the error prejudiced 

the defendant's due process rights to a fair trial. In evaluating prejudice, we simply adopt 
24

the traditional constitutional harmlessness inquiry demanded by Chapman [v. California, 

386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967)]. In other words, prosecutorial error 

is harmless if the State can demonstrate 'beyond a reasonable doubt that the error 

complained of will not or did not affect the outcome of the trial in light of the entire 

record, i.e., where there is no reasonable possibility that the error contributed to the 

verdict.' We continue to acknowledge that the statutory harmlessness test also applies to 

prosecutorial error, but when 'analyzing both constitutional and nonconstitutional error, 

an appellate court need only address the higher standard of constitutional error.'

[Citations omitted.]" 305 Kan. at 109.

Although the briefs in this matter were filed over three years after Sherman was 

decided, neither party addressed whether Sherman applies to Brown's claim alleging 

prosecutorial misconduct at his trial. So in order to properly analyze the issue presented, 

we first must decide whether the standards in effect at the time of trial should govern the 

court's review of a prosecutorial error alleged in a K.S.A. 60-1507 ineffective assistance 

of counsel matter that was filed before the Sherman decision. Panels of our court 

presented with this issue appear to summarily—and sometimes inconsistently—decide 

the matter and no clear rule has emerged. To resolve the issue, we find it helpful to 

summarize the cases that have addressed Sherman's retroactivity, both in the direct appeal 

context and the K.S.A. 60-1507 context.

(a) Sherman's retroactivity in direct appeal context

"Generally, an opinion changing the law acts prospectively, applying '"to all cases, 

state or federal, pending on direct review or not yet final."'" State v. Butler, 307 Kan. 831, 

863, 416 P.3d 116 (2018). Butler was a case involving a prosecutorial misconduct claim 

from a jury trial held pre-Sherman. However, Sherman was decided at some point while 

Butler was on direct appeal. The Kansas Supreme Court did not decide whether there was 

a retroactive application issue as both parties agreed to analyze the prosecutorial error 

claim under the new Sherman standard. Butler, 307 Kan. at 863.
25

In State v. Kleypas, 305 Kan. 224, 314-24, 382 P.3d 373 (2016), the prosecutorial 

misconduct claim arose in a jury trial held pre-Sherman. While the matter was on direct 

appeal, Sherman was decided. However, unlike Butler, neither party addressed whether 

Sherman should apply. So the Kansas Supreme Court applied both the Tosh standard and 

the Sherman standard. The court found no error under either standard. Kleypas, 305 Kan. 

at 320, 323-24.

State v. Thurber, 308 Kan. 140, 160-71, 420 P.3d 389 (2018), is another case 

where the misconduct claims arose in a jury trial held pre-Sherman. While the matter was 

on direct appeal, Sherman was decided. The parties did not address Sherman in their 

briefs; however, they did address the framework at oral argument. Unlike Kleypas, the 

Kansas Supreme Court decided to apply only the Sherman standard because it found that 

the direct appeal was not yet final. The court ultimately determined that while there were 

some instances of error, any error was harmless both individually and cumulatively.

Thurber, 308 Kan. at 169-71.

In State v. Thomas, 307 Kan. 733, 741-42, 415 P.3d 430 (2018), the Kansas 

Supreme Court stated:

"Generally, an opinion changing the law acts prospectively, applying 'to all cases, 

state or federal, pending on direct review or not yet final.' But because this case was fully 

briefed under Tosh, and the parties have not had the opportunity to fully argue this case 

under the Sherman rubric, we will apply both Sherman and Tosh. In the end, Thomas is 

not entitled to reversal under either standard. [Citations omitted.]"

In Chandler, the misconduct claims arose in a jury trial held pre-Sherman. While 

the matter was on direct appeal, Sherman was decided. The parties had a chance to 

address Sherman in their supplemental briefs and at oral argument. The Kansas Supreme 

Court decided to apply only the Sherman standard because it found that the direct appeal 

was not yet final. It ultimately found the prosecutor acted with "a level of culpability that 
26

exceeds mere negligence" that compelled the harsher prosecutorial misconduct label 

contemplated by Sherman. Chandler, 307 Kan. at 695.

State v. Kahler, 307 Kan. 374, 382, 410 P.3d 105 (2018), aff'd 589 U.S. __, 140 S. 

Ct. 1021, 206 L. Ed. 2d 312 (2020), is another case where the misconduct claims arose in 

a jury trial held pre-Sherman. While the matter was on direct appeal, Sherman was 

decided. The parties did not have a chance to brief the issue, but they did have the 

opportunity to address the Sherman framework at oral argument. Both parties conceded 

the Sherman framework applied, so the Kansas Supreme Court applied it. The court 

ultimately found no error. Kahler, 307 Kan. at 383.

In State v. McBride, 307 Kan. 60, 63-72, 405 P.3d 1196 (2017), the misconduct 

claims arose in a jury trial held pre-Sherman. While the matter was on direct appeal and 

after a panel of this court issued its opinion applying the old standard, Sherman was 

decided. The Kansas Supreme Court, without any additional analysis, stated that Sherman

overruled the old standard and it would proceed by applying Sherman to the prosecutorial 

error claims before it. In applying Sherman, the court found reversible error. McBride, 

307 Kan. at 72.

(b) Sherman's retroactivity in K.S.A. 60-1507 context

Turning to the K.S.A. 60-1507 context, the following cases evaluate ineffective 

assistance of counsel claims for failure to object to or identify prosecutorial errors. 

Review of these cases reflect that application of the Tosh rule as opposed to the Sherman

rule is all over the map when the claims and the direct appeals occurred well before 

Sherman was decided.

In Reed v. State, No. 119,484, 2020 WL 1070350 (Kan. App. 2020) (unpublished 

opinion), petition for rev. filed April 1, 2020, Reed claimed that his trial counsel was 
27

ineffective for failing to object to alleged prosecutorial misconduct and his appellate 

counsel was ineffective for failing to raise those alleged prosecutorial errors on direct 

appeal. These claims arose and his direct appeal was final before Sherman was decided. 

Without any additional analysis, a panel of this court applied Sherman to the error claims 

by appellate counsel. It found no error. Reed, 2020 WL 1070350, at *12.

In Watts v. State, No. 117,184, 2020 WL 741723 (Kan. App. 2020) (unpublished 

opinion), petition for rev. filed March 16, 2020, Watts claimed that his appellate counsel 

was ineffective for failing to raise alleged prosecutorial errors on direct appeal. These 

claims arose and his direct appeal was final before Sherman was decided. Without any 

additional analysis, this court applied Sherman to the error claims. It found no reversible 

error. Watts, 2020 WL 741723 at *9-10.

In Sumpter v. State, No. 117,732, 2019 WL 257974 (Kan. App.) (unpublished 

opinion), rev. denied 310 Kan. 1071 (2019), a panel of our court applied the Tosh test to a 

K.S.A. 60-1507 claim of overlooked prosecutorial misconduct. Before finding no 

reversible error, the panel stated:

"We mention that the Supreme Court revamped the standards for assessing 

claims of prosecutorial error after Sumpter's trial and direct appeal. We suppose, 

however, that the standards in effect at the time of Sumpter's trial and appeal should 

govern our review of this collateral challenge to his convictions. The Kansas Supreme 

Court declined to apply Sherman in cases that were fully briefed on direct appeal when it 

was decided. And the issue here is the constitutional adequacy of Sumpter's legal 

representation when the earlier standards for prosecutorial error governed; so it follows 

the quality of the representation should be measured against the law as it was then. The 

choice, however, is not especially significant. Under either the pre-Sherman standards or 

Sherman itself, the focus for our purposes rests on sufficiently substantial prejudice to 

Sumpter to compromise his right to a fair trial." [Citations omitted.] Sumpter, 2019 WL 

257974, at *11. 
28

In Phillips v. State, No. 118,066, 2018 WL 6071388 (Kan. App. 2018)

(unpublished opinion), Phillips raised several instances of alleged prosecutorial 

misconduct in his K.S.A. 60-1507 appeal but not in the context of ineffective assistance 

of counsel claims. These claims arose, and his direct appeal was final before Sherman

was decided. Like Watts and Reed above, a panel of this court applied the Sherman test to 

these claims without any additional analysis on whether the Tosh test should apply.

In Waller v. State, No. 116,706, 2017 WL 4847862 (Kan. App. 2017) 

(unpublished opinion), Waller claimed that his appellate counsel was ineffective for 

failing to raise alleged prosecutorial errors on direct appeal. These claims arose and his 

direct appeal was final before Sherman was decided. Without any additional analysis, this 

court applied Sherman to the error claims. It found no reversible error. Waller, 2017 WL 

4847862, at *3, 6.

In Mitchell-Pennington v. State, No. 115,407, 2017 WL 1104599 (Kan. App. 

2017) (unpublished opinion), Mitchell-Pennington claimed that his appellate counsel was 

ineffective for failing to raise alleged prosecutorial errors on direct appeal. His

prosecutorial error claims arose, and his direct appeal was final before Sherman was 

decided. In evaluating the claims, this court recognized that the first prong of the analysis 

remained unchanged after Sherman. However, it noted that the prejudice analysis 

significantly changed. It ultimately found that there was error, but in analyzing the 

prejudice prong, it applied the Tosh test—as a panel of this court did in Sumpter. The 

court found that appellant was not prejudiced under the Tosh prejudice prong. MitchellPennington, 2017 WL 1104599, at *7-10.

Based on our review of the relevant caselaw, we can see that the Supreme Court 

applied Sherman only in situations where the parties agreed it applied and/or had a 

chance to address it on appeal. Those cases also consistently show that Sherman only 

applies prospectively in cases that are "pending on direct review or not yet final"—many, 
29

if not all, of those cases were pending on direct appeal when Sherman was decided. This 

is why the Kansas Supreme Court decided to apply the Sherman test in those cases.

But the Kansas Supreme Court has not yet weighed in on this issue in the K.S.A. 

60-1507 context. And the summary of cases from panels of our court reflect an 

inconsistent application of the Sherman rule in cases where the alleged errors and the 

direct appeals occurred before Sherman. But we agree with the panels' assessment in 

Sumpter and Mitchell-Pennington, which explain why it is proper to apply the Tosh 

prejudice test to collateral claims of prosecutorial error that occurred before the decision 

in Sherman. The rationales in those cases were based on the Supreme Court's reasoning 

in the direct appeal cases: Sherman only applies prospectively in cases that are "pending 

on direct review or not yet final." When an inmate files a collateral motion for relief 

under K.S.A. 60-1507, the direct appeal is over, not pending. Therefore, we hold the Tosh

rule applies in K.S.A. 60-1507 cases where both the alleged errors occurred and the direct 

appeals were finalized before Sherman. 

Brown filed his ineffective assistance of counsel claim 11 months before Sherman

was decided. His claim is grounded in trial counsel's failure to object to alleged 

prosecutorial misconduct occurring at his trial six years earlier. His direct appeal was 

final on September 17, 2012, which was four years before Sherman was decided. Based 

on this chronology and our holding above, we apply the Tosh prejudice analysis to 

Brown's claim. 

In denying Brown habeas relief on this issue, the district court applied the Tosh

prejudice analysis to Brown's claim of prosecutorial misconduct because the Sherman

case had not yet been decided. In its memorandum opinion, the district court concluded 

that the consciousness of guilt statements likely were error but that they did not constitute 

gross and flagrant misconduct, that they were not motivated by ill will, and that they 

likely had little weight in the minds of the jurors. On appeal from the district court's 
30

decision, Brown's sole argument is that he was prejudiced because trial counsel's failure 

to object deprived him of an opportunity to raise the issue on direct appeal in conjunction 

with his other claims of prosecutorial error. Significantly, Brown does not allege that trial 

counsel's failure to object created a reasonable probability that the outcome of the trial 

would be different.

Like the district court, we find no evidence that the prosecutor's statements 

constituted gross and flagrant misconduct, that they were not motivated by ill will, or that 

they likely weighed heavily in the minds of the jurors. We also note that the prosecutor's 

improper statements occurred at the end of closing argument, they were not repeated or 

emphasized, and they were ameliorated when the prosecutor told the jury it was the jury's 

decision to determine what happened in the video. Having considered the record as a 

whole, we find nothing to support a finding that counsel's alleged deficiency created a 

reasonable probability that the outcome of the trial would be different. 

(5) Child witness expert

In his next claim, Brown argues counsel was deficient for failing to hire an expert 

in child witness interviewing techniques. In his motion, Brown relied on Mullins v. State, 

30 Kan. App. 2d 711, 46 P.3d 1222 (2002), to generally argue that a defense attorney's 

performance is deficient where the attorney fails to hire such an expert and that prejudice 

necessarily follows. In Mullins, a panel of this court upheld a defendant's habeas 

challenge when the trial attorney defending a child sex abuse charge did not hire an 

expert witness who could testify about child-witness interview techniques. 30 Kan. App. 

2d at 717-19. But at the habeas evidentiary hearing in Mullins, the defendant presented 

three witnesses to support that claim.
31

 A criminal defense attorney who had defended about 40 sexual abuse cases 

testified that having an expert on witness interview techniques was essential and 

that there was no valid defense strategy that could support failing to call one.

 A psychologist testified that the interviews of the victim in Mullins' case were 

flawed, making the victim's testimony unreliable.

 The attorney who had defended Mullins at trial testified that he had not 

interviewed key witnesses before trial, had not investigated the possibility of 

hiring an expert in child interview techniques, and in hindsight now realized that 

with adequate resources he would have hired such an expert to help defend the 

case.

The record before us is much different than the record our court considered in 

Mullins. In that case, evidence supported the claim that specific testimony should have 

been obtained by the trial defense counsel and that this additional evidence would have 

undercut key evidence supporting the criminal charge. Here, Brown presented no 

evidence at the evidentiary hearing to support his claim. We find no deficient 

performance on the part of trial counsel for failing to hire an expert in child witness 

interviewing techniques.

Similarly, Brown's contention that his trial counsel was ineffective for failing to 

adequately pursue a motion for acquittal also fails. In assessing a district court's decision 

to deny a motion for judgment of acquittal, an appellate court will consider all the 

evidence in a light most favorable to the State and determine if a rational fact-finder 

could have found the defendant guilty beyond a reasonable doubt. In doing so, the 

appellate court does not reweigh the evidence, assess witness credibility, or resolve 

conflicting evidence. State v. Llamas, 298 Kan. 246, 254, 311 P.3d 399 (2013). Brown's

argument assumes that if counsel had pursued the motion, Brown would have prevailed. 
32

But Brown provides no argument or evidence to persuade us that the trial court would 

have granted a motion for acquittal. Trial counsel was not deficient in failing to file a 

motion for acquittal. 

(6) Limiting instruction

Brown's next claim is that his trial counsel was ineffective for failing to request a 

limiting instruction advising the jury that prior consistent statements by the victim could 

only be used to corroborate the victim's testimony—not as substantive evidence of guilt. 

This argument is grounded in the fact that the video recording of the victim's interview

was introduced into evidence at trial. But we already have found beyond a reasonable 

doubt that any alleged deficiency in trial counsel's failure to object to introduction of the 

recorded interview without first being provided a written transcript did not affect the 

outcome of the trial. Based on this finding, we similarly find that there is not reasonable 

probability that providing a limiting instruction would have changed the outcome of the 

trial. 

(7) Appellate counsel

Finally, Brown claims that his direct appeal counsel was ineffective for failing to 

raise the consciousness of guilt argument on appeal. But if counsel had raised it on direct 

appeal, it is likely the Kansas Supreme Court would have arrived at the same conclusion 

the district court did—any error by the prosecutor was harmless. See Brown I, 295 Kan. 

at 212-15. Brown's claims to the contrary are speculative and unsupported by the record 

and the Kansas Supreme Court's decision in Brown I. We find no deficient performance 

on the part of appellate counsel.

Considering the totality of circumstances, we find Brown has failed to prove the 

requisite manifest injustice that would excuse the untimely filing of his K.S.A. 60-1507 
33

motion. Because he failed to establish manifest injustice, the district court did not err in 

denying Brown's second 60-1507 motion as untimely. 

Affirmed.