1

NOT DESIGNATED FOR PUBLICATION

No. 124,838

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

CLAYTON DEION WILMER,

Appellant,

v.

STATE OF KANSAS,

Appellee.

MEMORANDUM OPINION

Appeal from Leavenworth District Court; GERALD R. KUCKELMAN, judge. Opinion filed 

November 4, 2022. Affirmed.

Joseph A. Desch, of Law Office of Joseph A. Desch, of Topeka, for appellant. 

Christopher Lyon, assistant county attorney, Todd Thompson, county attorney, and Derek 

Schmidt, attorney general, for appellee.

Before CLINE, P.J., ATCHESON and COBLE, JJ.

CLINE,J.: Clayton Deion Wilmer appeals the district court's denial of his K.S.A. 

60-1507 motion because he claims the court erred by not appointing substitute counsel 

before trial. Although this issue ordinarily cannot be raised in a K.S.A. 60-1507 motion, 

Wilmer asserts that his counsel on direct appeal was ineffective for failing to mention it, 

constituting an exceptional circumstance which allows our consideration of the issue.

We find the district court correctly denied Wilmer's motion because he failed to 

establish his dissatisfaction with trial counsel was justified. And since he has not shown 
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appellate counsel was ineffective or that he was prejudiced by counsel's failure to raise 

this issue on direct appeal, he is not entitled to relief under K.S.A. 60-1507.

FACTS

Wilmer shot a passenger in a vehicle driven by the mother of Wilmer's child, 

while that child, who was only a few months old, was in the backseat. State v. Wilmer, 

No. 117,080, 2018 WL 1127679, at *1 (Kan. App. 2018) (unpublished opinion). A jury 

convicted Wilmer of aggravated assault, criminal discharge of a firearm at an occupied 

vehicle, criminal possession of a firearm, and aggravated endangering of a child. 

Motion to withdraw

About six months before trial, Wilmer was sentenced in an unrelated matter by the 

same judge who later presided over Wilmer's jury trial. The attorney appointed to 

represent Wilmer in the criminal case underlying this appeal, Debra Snider, was also 

appointed to represent him in that matter. At the sentencing hearing, the district court 

took up a motion to withdraw from Snider after she said Wilmer had requested new

counsel the day before. Snider told the court that her communications with Wilmer had 

broken down to the point where neither of them believed it was in Wilmer's best interests

for her to continue to represent him. She did not know whether he wanted new counsel 

for the unrelated matter, but he had requested new counsel in the case underlying this 

appeal. 

When the district court asked Wilmer if he wanted Snider to withdraw in the 

unrelated matter, Wilmer said Snider could continue representing him in that matter if she 

was willing. So the court proceeded with sentencing in the unrelated matter, taking up 

arguments from Snider and the prosecutor about defense objections to Wilmer's criminal 

history, Snider's departure motion, and Wilmer's sentencing requests.
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After the district court pronounced Wilmer's sentence, it took up Snider's motion 

to withdraw. Snider explained that she had relayed a plea offer to Wilmer the day before 

at which point their communications had broken down. She repeated that Wilmer had 

then asked to be assigned new counsel and said she joined in that request.

The district court denied the motion, noting Wilmer had been dissatisfied with 

each of his three appointed trial attorneys, even filing his own motions despite being 

represented by counsel. The court did not believe Wilmer would ever find an attorney 

that would satisfy him. It then explained:

"Miss Snider is a very experienced attorney. She has been involved in a number 

of trials with this Court and other jurisdictions, handling very serious cases similar to this 

case here. I can't appoint lawyers to hold your hand, Mr. Wilmer, and just be there all the 

time to talk with you and get you through this process. I can only provide an attorney 

that's qualified and experienced in the nature–—to rise to the level of the nature of the 

offense that you're charged with.

"I think Miss Snider has worked very hard on your case. I think the fact that you 

may disagree with some things, if the–—but I don't know of any reasons she could not 

perform well even if your relationship is strained, because I think it's going to be strained 

with any lawyer that you have. So at this point, the motion to withdraw is denied."

Snider responded, "Judge, may I please note for the record that we are literally 

unable to effectively communicate at this point?" The district judge responded that they 

could use pen and paper to communicate suggestions and questions. Additionally, the 

judge stated, "If I just keep appointing lawyers, we'll just keep dragging this out, which 

does no one any good."

At that point, Wilmer complained about his lack of communication with Snider. 

He said that he only saw Snider the day before or the day of a court appearance. He 

claimed other inmates got letters twice a week from their attorneys, but none of his 
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appointed attorneys had done that. Then Snider expressed concern for her professional 

reputation and potential issues involving her liability insurance if she continued to 

represent Wilmer. Even so, Snider's motion to withdraw was denied.

Wilmer's direct appeal

After Wilmer was convicted, he appealed his sentence through different counsel. 

A panel of this court vacated the aggravated assault conviction due to a jury instruction 

error but affirmed the rest of the convictions. Wilmer, 2018 WL 1127679, at *1.

Wilmer's K.S.A. 60-1507 motion

Wilmer then filed a timely pro se motion for habeas corpus relief under K.S.A. 60-

1507. In his motion, Wilmer asserted several reasons why both his trial and appellate 

counsel had provided ineffective representation. The district court appointed counsel for 

Wilmer and granted Wilmer an evidentiary hearing. Before the hearing, Wilmer filed a 

pro se supplement to his motion, alleging additional defects in trial counsel's 

representation. And his appointed attorney filed a supplement as well, articulating even 

more defects in representation, including the court's failure to adequately inquire into a 

potential conflict of interest between Snider and Wilmer when Snider moved to 

withdraw. This last issue is the only one Wilmer raises on appeal.

Both Snider and Wilmer testified at the evidentiary hearing on the various 

complaints. As for her request to withdraw, Snider testified she made the request because 

Wilmer sent a letter to the district court asking to have her removed and alleging she was 

ineffective as counsel. She did not agree she was ineffective but asked to withdraw 

because that is what Wilmer wanted. She noted, "[W]hen a client puts it in writing and 

asks to have you removed, then I think it needs to be brought forward to the judge. . . . 
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And in order to try to give my client the best opportunity to have the—the representation 

that he wanted, I asked to be allowed to withdraw."

Snider denied having problems communicating with Wilmer but acknowledged 

they had differences of opinion on strategy. She testified she had adequate time to 

communicate with him before trial, and probably met with him more often than she 

normally met with clients in custody. Since she and Wilmer had frequent disagreements 

on strategy, she said it took "more than an average amount of meeting and discussing to 

try to come to a mutually agreeable strategy and direction going forward in the case."

After her motion to withdraw was denied, she could not recall Wilmer requesting her to 

be removed again.

Snider felt she effectively represented Wilmer despite their communication issues. 

She pointed out her successful trial results, including the district court's dismissal of the 

aggravated assault charge against the child's mother after the close of evidence. And 

despite aggravated assault not being a lesser included offense of attempted first-degree 

murder, the jury was instructed on attempted voluntary manslaughter and aggravated 

assault as lesser included offenses of attempted first-degree murder and convicted 

Wilmer of the lesser offense of aggravated assault. Wilmer, 2018 WL 1127679, at *1.

Wilmer testified there was a lack of communication between Snider and him, 

claiming they spoke only 5 or 10 minutes before any court hearing. Wilmer was not 

satisfied with Snider's representation and believed their relationship was contentious. But 

he admitted he was successful at trial, beating the attempted murder charge and having 

another charge dismissed.

The district court denied Wilmer's motion, noting it was within the court's 

discretion to determine whether Wilmer's dissatisfaction with his court appointed counsel 

warranted the discharge of Snider's services and appointment of new counsel, and 
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Wilmer did not establish justifiable dissatisfaction. The court also determined Wilmer did 

not establish trial and appellate counsel's representation was defective or that he had 

suffered prejudice from that representation.

Wilmer appeals the district court's denial of his K.S.A. 60-1507 motion. But the 

only issue he raises on appeal is the court's denial of Snider's motion to withdraw.

ANALYSIS

Generally, a habeas corpus proceeding may not replace a direct appeal to correct 

mere trial errors. An exception exists, however, when constitutional rights are implicated, 

and exceptional circumstances excuse the failure to raise the issue on direct appeal. 

Supreme Court Rule 183(c)(3) (2022 Kan. S. Ct. R. at 243); State v. Barnes, 37 Kan. 

App. 2d 136, Syl. ¶ 9, 149 P.3d 543 (2007). 

Wilmer claims his appellate counsel was ineffective in failing to raise the district 

court's refusal to appoint substitute counsel in his direct appeal. We have found such 

ineffectiveness can rise to the level of exceptional circumstances, justifying consideration 

of the issue under K.S.A. 60-1507. Cosby v. State, No. 109,880, 2014 WL 4435848, at *4

(Kan. App. 2014) (unpublished opinion).

To establish a claim of ineffective assistance of counsel, the movant must establish 

counsel provided objectively deficient representation and the deficient representation 

prejudiced the proponent's legal proceedings—whether those proceedings involved a 

criminal trial or an appeal (the so-called "Strickland test"). See Strickland v. Washington, 

466 U.S. 668, 688, 693, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Dinkel, 314 

Kan. 146, 148, 495 P.3d 402 (2021) (trial counsel); Khalil-Alsalaami v. State, 313 Kan. 

472, 526, 486 P.3d 1216 (2021) (appellate counsel). Wilmer bears the burden of 

establishing both parts of the Strickland test. See Mundy v. State, 307 Kan. 280, 296, 408 
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P.3d 965 (2018). If Wilmer can establish that appellate counsel's failure to raise the issues 

on his direct appeal constituted deficient representation and prejudiced his trial or direct 

appeal, the merits of his claim are properly before this court, even if the claim should 

have been raised in Wilmer's direct criminal proceedings.

"[T]he failure of appellate counsel to raise an issue on appeal is not, per se, 

ineffective assistance of counsel." Jenkins v. State, 32 Kan. App. 2d 702, 704, 87 P.3d 

983 (2004).

"In an appeal from a criminal conviction, appellate counsel should carefully 

consider the issues, and those that are weak or without merit, as well as those which 

could result in nothing more than harmless error, should not be included as issues on 

appeal. Likewise, the fact that the defendant requests such an issue or issues to be raised 

does not require appellate counsel to include them. Conscientious counsel should only 

raise issues on appeal which, in the exercise of reasonable professional judgment, have 

merit." Baker v. State, 243 Kan. 1, 10, 755 P.2d 493 (1988).

Thus, Wilmer's appellate counsel need only have raised meritorious issues. This 

means if the district court did not err, or if the denial caused Wilmer no prejudice, then 

the issue lacked merit and Wilmer's appellate counsel's representation was not deficient. 

The district court did not err when failing to appoint substitute counsel.

As noted above, the standard of review for the merits of Wilmer's claim is abuse of 

discretion. State v. McGee, 280 Kan. 890, 894, 126 P.3d 1110 (2006). And Wilmer bears 

the burden of establishing it. State v. Hulett, 293 Kan. 312, 319, 263 P.3d 153 (2011). A 

judicial action constitutes an abuse of discretion if (1) it is arbitrary, fanciful, or 

unreasonable; (2) stems from an error of law; or (3) stems from an error of fact. State v. 

Levy, 313 Kan. 232, 237, 485 P.3d 605 (2021).
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Both the federal and Kansas Constitutions guarantee the right of criminal 

defendants to have the assistance of counsel. State v. Brown, 300 Kan. 565, 574, 331 P.3d 

797 (2014). Criminal defendants also have the right to effective assistance of counsel. 

State v. Galaviz, 296 Kan. 168, 174, 291 P.3d 62 (2012). That is not to say, however, that 

defendants have the right to choose which lawyer will be appointed to represent them. 

Brown, 300 Kan. at 575.

If a defendant is unhappy with their appointed counsel and is seeking substitute 

counsel, then they must show justifiable dissatisfaction:

"[T]o warrant substitute counsel, a defendant must show 'justifiable dissatisfaction' with 

appointed counsel. Justifiable dissatisfaction includes a showing of a conflict of interest, 

an irreconcilable conflict, or a complete breakdown in communications between counsel 

and the defendant. But ultimately, '"[a]s long as the trial court has a reasonable basis for 

believing the attorney-client relation has not deteriorated to a point where appointed 

counsel can no longer give effective aid in the fair presentation of a defense, the court is 

justified in refusing to appoint new counsel."' [Citations omitted.]" State v. Breitenbach, 

313 Kan. 73, 90, 483 P.3d 448, cert. denied 142 S. Ct. 255 (2021).

And once a defendant has shown justifiable dissatisfaction, the district court must inquire 

into the attorney-client relationship. Brown, 300 Kan. at 575.

Importantly, if "the defendant's dissatisfaction emanates from a complaint that 

cannot be remedied or resolved by the appointment of new counsel . . . the defendant has 

not shown the requisite justifiable dissatisfaction." Breitenbach, 313 Kan. at 90-91. In 

other words, the substitute must not encounter the same problem as the first appointed 

counsel. The focus of the justifiable dissatisfaction inquiry is the adequacy of counsel in 

the adversarial process, not the accused's relationship with his or her attorney. State v. 

Staten, 304 Kan. 957, 972, 377 P.3d 427 (2016).
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In Wilmer's case, Snider was Wilmer's third appointed trial counsel before his 

criminal trial. And he expressed discontent with each of them. This persistent disapproval 

suggests Wilmer's complaint would not be remedied by appointment of a new attorney. 

"[U]ltimately, as long as the trial court has a reasonable basis for believing the attorneyclient relation has not deteriorated to a point where appointed counsel can no longer give 

effective aid in the fair presentation of a defense, the court is justified in refusing to 

appoint new counsel." State v. Bryant, 285 Kan. 970, Syl. ¶ 14, 179 P.3d 1122 (2008). 

Wilmer has alleged no trial error caused by his alleged communication issues with 

Snider. In fact, he admits she was successful in her representation of him. As noted 

above, Snider successfully moved for acquittal of the charge of aggravated assault against 

the child's mother and the State withdrew the charge of aggravated battery of the 

passenger as an alternative to attempted first-degree murder. The jury also convicted 

Wilmer of a level 7 person felony instead of a level 1 person felony when it convicted 

him of aggravated assault of the passenger instead of attempted first-degree murder.

Wilmer, 2018 WL 1127679, at *1; see K.S.A. 2021 Supp. 21-5412(e)(2); K.S.A. 2021 

Supp. 21-5301(c)(1); K.S.A. 2021 Supp. 21-5402(a)(1), (b). 

These successful outcomes evidence that Snider was able to effectively represent 

Wilmer despite any claimed communication issues and that Wilmer suffered no prejudice 

from her continued representation. Further, in the six months between Snider's motion 

and trial, the record reveals no additional complaints from Wilmer about Snider's 

representation. Nor could Snider remember Wilmer requesting her removal again. 

As in Cosby, the district court found no merit in the complaint of a breakdown in 

communication and believed instead that Snider could and was effectively representing 

Wilmer despite their strained relationship. See 2014 WL 4435848, at *7. The district 

court's finding that Wilmer was not justifiably dissatisfied with Snider was not arbitrary, 

fanciful, or unreasonable, nor did it stem from a legal or factual error. As a result, 
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appellate counsel's failure to raise this issue on direct appeal was not defective 

representation. The district court did not err in denying Wilmer's habeas corpus motion 

on this issue.

Affirmed.

* * *

ATCHESON, J., concurring: I concur in the outcome we reach today affirming the 

Leavenworth County District Court's denial of Defendant Clayton Deion Wilmer's habeas 

corpus challenge to the jury verdicts finding him guilty of discharging a firearm into an 

occupied vehicle and other crimes. Wilmer's quest for relief from the convictions under 

K.S.A. 60-1507 fails not because the district court properly handled his pretrial motion 

for appointment of a new lawyer—it didn't—but because he cannot show the result 

ultimately compromised his defense at trial. Wilmer, therefore, is entitled to no relief in 

this collateral attack on the convictions. In short, fortuity overtook the district court's 

fumbling of the pretrial motion. And at this juncture, no harm equates to no foul. 

Wilmer personally drafted the pretrial motion to replace Debra Snider as his courtappointed lawyer. She was the third lawyer to represent him in this case and had been 

appointed to represent him in another case in Leavenworth County that was then set for 

sentencing. When a criminal defendant formally states he or she wants to replace an 

appointed lawyer, the district court typically ought to conduct a preliminary inquiry to 

determine if the request has a colorable basis. State v. Brown, 300 Kan. 565, 575, 331 

P.3d 797 (2014). A defendant should be permitted a replacement lawyer for "'justifiable 

dissatisfaction,'" entailing an actual conflict of interest on the part of his or her present 

lawyer, an irreconcilable disagreement with the lawyer, or a complete breakdown in 

communication. State v. Pfannenstiel, 302 Kan. 747, 759-60, 765, 357 P.3d 877 (2015). 
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We review a district court's denial of a motion for a new lawyer for abuse of 

judicial discretion. 302 Kan. at 760-61. A district court exceeds that discretion if it rules 

in a way no reasonable judicial officer would under the circumstances, if it ignores 

controlling facts or relies on unproven factual representations, or if it acts outside the 

legal framework appropriate to the issue. See State v. Darrah, 309 Kan. 1222, 1227, 442 

P.3d 1049 (2019); State v. Ward, 292 Kan. 541, Syl. ¶ 3, 256 P.3d 801 (2011). The party 

asserting an abuse of judicial discretion bears the burden of proving the point. State v. 

Thomas, 307 Kan. 733, 739, 415 P.3d 430 (2018); Gannon v. State, 305 Kan. 850, 868, 

390 P.3d 461 (2017). 

Here, Wilmer sought to oust his third appointed lawyer. As the district court 

correctly observed, criminal defendants sometimes make complaints about their 

appointed lawyers as a device to delay the trial of their cases and, in so doing, to garner 

some perceived tactical advantage. See Pfannenstiel, 302 Kan. at 764. The district court 

imputed that sort of motive to Wilmer, especially since he had already gone through two 

lawyers and simply asserted a generic complaint that Snider wasn't meeting or otherwise 

communicating with him often enough about the upcoming trial. Moreover, Wilmer told 

the district court he wanted Snider to continue representing him in the other case, 

suggesting something other than a substantial dissatisfaction with Snider prompted his 

request.

Nonetheless, at the hearing, Snider informed the district court that in her view her 

professional relationship with Wilmer had so "broken down" they could no longer 

"communicate effectively." For that reason, she asked the district court to appoint a 

substitute lawyer for Wilmer. Without inquiring about the genesis of the collapse or 

whether Snider considered the breakdown irreconcilable, the district court hastily denied 

the lawyer's request and suggested she and Wilmer could communicate by writing notes 

to each other. The response was perfunctory, simplistic, and inadequate. 
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The two issues presented to the district court at the hearing were different: 

Wilmer asserted he and Snider were not talking often enough about the case; Snider told 

the district court that when they did talk, they no longer interacted in a constructive way. 

The district court failed to delve into Snider's contention at the hearing on the motion 

and, thus, lacked a sufficient factual basis to deny her request out of hand. The district 

court, therefore, abused its discretion and committed error. But that doesn't translate into 

an error necessarily mandating relief for Wilmer now in a 60-1507 proceeding. The 

district court's mistaken denial of a motion to appoint a new lawyer for a criminal 

defendant may be excused as harmless, especially when the mistake entails a failure to 

sufficiently inquire and the issue revolves around an ostensible breakdown in 

communication. See United States v. Senke, 986 F.3d 300, 314-15 (3d Cir. 2021); United 

States v. Horton, 693 F.3d 463, 467 (4th Cir. 2012).

In this 60-1507 proceeding, Wilmer argues that the lawyer handling the appeal of 

the direct criminal case provided constitutionally inadequate representation by failing to 

brief the district court's denial of the pretrial motion for appointment of substitute 

counsel. To succeed, Wilmer must show both that his legal representation in the direct 

appeal "fell below an objective standard of reasonableness" guaranteed by the right to 

counsel in the Sixth Amendment to the United States Constitution and that absent the 

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

case would have been different. Strickland v. Washington, 466 U.S. 668, 687-88, 694, 

104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Phillips, 312 Kan. 643, 676, 479 P.3d 

176 (2021). 

A lawyer is not constitutionally required to raise every possible issue on direct

appeal in a criminal case and, rather, is expected to focus on those with some reasonable 

chance of success, while discarding those with insufficient legal or factual support. See 

Baker v. State, 243 Kan. 1, 9-10, 755 P.2d 493 (1988); Warren v. State, No. 123,547, 

2022 WL 816313, at *3 (Kan. App. 2022) (unpublished opinion). Here, the record on 
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direct appeal would not have supported any substantive relief for Wilmer based on the 

denial of the pretrial motion for a new lawyer, since the district court failed to sufficiently 

inquire into Snider's stated concerns about the deteriorated communications. At best, the 

remedy would have required a remand to the district court to conduct an expanded 

hearing to flesh out those concerns. See State v. Moyer, 306 Kan. 342, 383-84, 410 P.3d 

71 (2017). That inquiry may have established good grounds for denying Snider's request 

to be replaced because of her eroding professional relationship with Wilmer. For 

example, Snider ultimately may have attributed the breakdown to Wilmer's deliberate and 

obstinate refusal to interact with her—a circumstance the district court could have viewed 

as nothing more than an improper second front in Wilmer's own concerted effort to delay 

the trial. Or Snider might have agreed that in response to some targeted questioning from 

the district court she would have conceded she likely could repair the relationship 

sufficiently to represent Wilmer adequately at trial. That sort of testimony would have 

shown the district court reached the right result in denying the motion for a new lawyer, 

albeit through an impermissibly truncated process.

But even if Snider were to testify that at the time of the hearing on the motion for a 

new lawyer, she would have categorically told the district court her professional 

relationship with Wilmer had been broken beyond repair, that would not itself warrant 

reversing Wilmer's convictions and granting him a new trial. Wilmer would still have to 

show that Snider's representation of him at trial was substantially compromised as a result 

of the deteriorated lawyer-client relationship. That is, Wilmer would have to establish the 

denial of the motion for a new lawyer resulted in a constitutionally inadequate trial.[*]

[*] The analysis would be different if a defendant sought to replace an appointed 

lawyer laboring under an active conflict of interest and the district court declined to do 

so. Depending on the nature of the conflict, a defendant might not have to show any 

actual prejudice in his or her representation at trial or only that he or she might have 

received a materially better defense absent the conflict. See State v. Moyer, 309 Kan. 268, 

283-84, 434 P.3d 829 (2019); Fuller v. State, 303 Kan. 478, 487, 363 P.3d 373 (2015); 
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Sola-Morales v. State, No. 118,451, 2019 WL 6041443, at *6-7 (Kan. App. 2019) 

(unpublished opinion). Here, Snider did not have a conflict of interest.

To that end, the lawyer handling Wilmer's direct appeal could have requested a 

remand to the district court for a Van Cleave hearing to explore the breakdown in 

communication and whether Snider had been constitutionally ineffective during the trial 

as a result. See State v. Hilyard, 316 Kan. 326, 338, 515 P.3d 267 (2022); State v. Van 

Cleave, 239 Kan. 117, 120-21, 716 P.2d 580 (1986). But that didn't happen. A successful 

request for a Van Cleave hearing would have accelerated the review of Snider's 

representation of Wilmer leading up to and during the trial. It would have replicated the 

evidentiary hearing the district court did hold as part of Wilmer's 60-1507 proceeding. 

See Brown v. State, No. 119,063, 2018 WL 6715411, at *8 n.1 (Kan. App. 2018) 

(unpublished opinion) (Atcheson, J., concurring).

At the 60-1507 hearing, Snider testified that she capably defended Wilmer ahead 

of and at the jury trial. And implicit in that testimony, Snider necessarily suggested she 

was able to communicate sufficiently with Wilmer, although the two apparently 

disagreed on certain strategic points. As outlined in the majority opinion, Snider achieved 

an objectively beneficial result for Wilmer by securing a not guilty verdict on the 

attempted murder charge—the most serious lodged against him—and dismissal of an 

aggravated assault charge.

More to the point here, Wilmer offered no evidence that Snider failed to do 

something a reasonable lawyer would have done or did something a reasonable lawyer 

would not have in conducting the trial. Likewise, he did not show Snider refused to call 

witnesses who would have advanced the defense or otherwise ignored particular 

exculpatory evidence. In short, Wilmer could not establish that Snider's representation of 

him fell below the constitutional standard required under Strickland. Nor could he show 

that the ostensible breakdown in communication Snider referred to during the hearing on 
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his motion for a new lawyer caused demonstrable prejudice or diminution in the defense 

Snider presented at trial—thereby falling well short of establishing the second 

requirement for relief under Strickland. On appeal, Wilmer essentially argues that the 

district court's error in ruling on the pretrial motion for a new lawyer in and of itself 

requires reversal of his convictions, so the lawyer handling the direct appeal was 

constitutionally inadequate for not raising the point. But, as I have explained, the premise 

underlying the argument is faulty and incorrectly treats the district court's ruling on the 

pretrial motion as a structural error requiring reversal without any showing of prejudice

when it is not. See Boldridge v. State, 289 Kan. 618, 627-28, 215 P.3d 585 (2009) 

(outlining nature of structural error); State v. Reed, No. 120,613, 2021 WL 1228097, at 

*4 (Kan. App. 2021) (unpublished opinion) ("A structural error requires the reversal of 

any convictions regardless of demonstrable prejudice because it impermissibly corrupts 

the proceedings in a way that defies review for harmlessness.").

In sum, Wilmer has not demonstrated that any purported deterioration in 

communications with Snider deprived him of either a constitutionally fair trial or 

constitutionally adequate legal representation up to and during the trial. Absent such a 

showing, the district court's mistake in failing to inquire sufficiently into Snider's concern 

voiced at the pretrial hearing that she and Wilmer had ceased communicating effectively 

amounts to a harmless error that does not call into question the outcome of the direct 

criminal case. On that basis, I concur in affirming the denial of Wilmer's 60-1507 motion 

attacking his convictions.