                IN THE SUPREME COURT OF THE STATE OF KANSAS

                                        No. 110,214

                                     STATE OF KANSAS,
                                         Appellee,

                                              v.

                                   RANDALL A. MURRAY,
                                       Appellant.


                               SYLLABUS BY THE COURT

1.
         Under our holding in State v. Murray, 293 Kan. 1051, 271 P.3d 739 (2012), if a
district court violates K.S.A. 22-3302 by proceeding with a criminal case even though a
competency evaluation was ordered but the defendant's competency never judicially
determined, a meaningful retrospective competency hearing can rectify the procedural
error.


2.
         To determine whether a retrospective competency hearing is feasible, the district
court should consider (1) the passage of time, (2) the availability of contemporaneous
medical evidence, including medical records and prior competency determinations,
(3) any statements by the defendant in the trial record, and (4) the availability of
individuals who were in a position to interact with defendant before and during trial,
including the trial judge, counsel for both the State and defendant, jail officials, and
expert and nonexpert trial witnesses.



                                              1
3.
        Appellate courts apply an abuse of discretion standard when reviewing a district
court's determination of whether a retrospective competency hearing is feasible. A
judicial decision amounts to an abuse of discretion when a decision is (1) arbitrary,
fanciful, or unreasonable, (2) based on an error of law, or (3) based on an error of fact.


        Appeal from Wyandotte District Court; R. WAYNE LAMPSON, judge. Opinion filed July 31,
2015. Affirmed.


        Gerald E. Wells, of Jerry Wells Attorney-at-Law, of Lawrence, argued the cause and was on the
brief for appellant.


        Jerome A. Gorman, district attorney, argued the cause, and Derek Schmidt, attorney general, was
with him on the brief for appellee.


The opinion of the court was delivered by


        LUCKERT, J.: In State v. Murray, 293 Kan. 1051, 271 P.3d 739 (2012) (Murray I),
we remanded this case for a determination of Randall A. Murray's motion to correct an
illegal sentence. In his motion, he argued the district court lacked jurisdiction to convict
him because it failed to suspend proceedings after ordering a competency examination in
the underlying criminal case. On remand, the district court determined: (1) a competency
hearing had not been conducted; (2) a retrospective competency hearing was feasible; and
(3) Murray had been competent when tried and convicted. Murray now argues the district
court on remand exceeded this court's mandate and, alternatively, that the district court
erred in determining the retrospective competency hearing was feasible.


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                            FACTS AND PROCEDURAL HISTORY


       The State charged Murray in February 1983 with felony murder and aggravated
robbery for holding up a gas station and shooting the cashier. Prior to trial, Murray filed a
motion to determine competency. Under K.S.A. 22-3302(1), proceedings "shall be
suspended and a hearing conducted to determine the competency of the defendant" when
"the judge before whom the case is pending finds that there is reason to believe that the
defendant is incompetent to stand trial." The district court found "good cause" to grant
Murray's motion the same day it was filed, and the court ordered Dr. William Reese to
examine Murray. But in Murray's case, while Dr. Reese performed a competency
evaluation, the record does not reflect that the district court conducted the statutorily
mandated competency hearing. Nevertheless, the case proceeded to trial where a jury
convicted Murray on May 25, 1983, of felony murder and aggravated robbery. Murray
received a life sentence for murder and a consecutive sentence of 15 years to life for
aggravated robbery.


       After an unsuccessful direct appeal and a number of unsuccessful collateral
challenges, Murray filed a motion to correct an illegal sentence in 2009. He argued the
district court's failure to conduct a competency hearing deprived it of jurisdiction to
convict and sentence him. The district court summarily dismissed his motion, and Murray
appealed to this court.


       On appeal, this court held a district court loses jurisdiction if it proceeds without a
competency evaluation and hearing when statutorily mandated. Murray I, 293 Kan. at



                                              3
1054; see State v. Davis, 281 Kan. 169, 180, 130 P.3d 69 (2006). Since Murray alleged
that was what occurred in his case, this court remanded


       "to determine whether his factual assertion that he never received a competency hearing
       is accurate. Significantly, the State has not argued otherwise so far. On remand, in order
       to effectively contest Murray's assertion (and presumably his willingness to take the stand
       and swear that his assertion is the truth), the State must come forward with evidence to
       fill in the gaps in the reconstructed record to show that a competency hearing occurred. If
       the district court determines that Murray did not, in fact, receive a competency hearing
       under K.S.A. 22-3302(1), then the statute and our holding in Davis will compel it to grant
       relief." Murray I, 293 Kan. at 1055.


       On remand, the district court conducted an evidentiary hearing. The hearing
included the testimony of Dr. Reese, the prosecutor, Murray's attorney, and Murray.


       Dr. Reese indicated he had no memory of his examination of Murray, so he had
little to add beyond his report. He read his report to the court into the record:


       "[O]n March 28, . . . 1983, I concluded my initial evaluation appraisal of Randall Murray.
       It is my observation that Randall Murray does not warrant further evaluation. I am
       satisfied he is competent to stand trial. I'm aware he has certain emotional liabilities;
       however, he sufficiently understands and comprehends the charges against him . . . , the
       need to communicate with his attorney . . . , and the consequences of his behavior . . . . I
       do not recommend further evaluation at this time . . . . [I]f I can be of further assistance,
       please don't hesitate to contact me."


       The Wyandotte County Assistant District Attorney who prosecuted Murray also
indicated he could not specifically remember Murray's proceedings. Based on his files


                                                     4
and the court record, he testified that he had agreed to the district court's order to
determine competency and that he had received Dr. Reese's evaluation. He also testified
that the preliminary hearing had been originally scheduled for March 15, 1983, but was
continued to allow time for Dr. Reese's evaluation. Murray's preliminary hearing
occurred on March 29, 1983, which was the day after receipt of Dr. Reese's evaluation.
The attorney testified, however, that there was no competency hearing as required by
K.S.A. 22-3302(1); if it had occurred, he believed the docket sheet or other notes in the
record would have reflected it.


       Carl Cornwell, Murray's defense attorney, also testified that he could not
remember many details of Murray's case. He recognized his motion to determine
competency, and he testified that he must have observed something leading him to
question whether Murray was "hitting on all cylinders." While he found no evidence of a
competency hearing in the record, he conceded that he had received Dr. Reese's report
and apparently chose not to challenge it. Cornwell also testified he allowed the
preliminary hearing to proceed the next day without seeking a second continuance and
also counseled Murray through a plea in a parallel case—circumstances he would not
have allowed if he had any concern about Murray's competence.


       Murray testified that he remembered Dr. Reese's interview, which he estimated
lasted only 5 or 15 minutes. Murray explained that he felt he had some "psychological
problems" when he was younger. He also believed he had suffered a head injury the day
before his arrest; he indicated this had caused him to lose his memory from one minute to
the next. Further, he reported that he felt Cornwell was "out to get [him]."




                                               5
       After arguments from counsel, the district court took Murray's motion to correct
an illegal sentence under advisement and later issued a written order. The district court
first found no evidence that Murray had received a competency hearing as required by
K.S.A. 22-3302(1). Nevertheless, the district court concluded that it was feasible to
retrospectively determine Murray's competence given the availability of
contemporaneous medical evidence and the testimony of the witnesses. Finally, the
district court found that Murray was competent to stand trial in 1983. The district court
denied Murray's motion to correct an illegal sentence.


       Murray timely appealed the denial to this court, and we have jurisdiction under
K.S.A. 2014 Supp. 22-3601(b)(3) (permitting direct appeal to supreme court when life
imprisonment imposed).


                                         ANALYSIS


       Before discussing the issues raised by Murray, we must discuss the procedural
mechanism for Murray's claim—a motion to correct an illegal sentence—in light of our
holding in State v. Ford, ___ Kan. ___, ___P.3d ___ (No, 109,806, this day decided).
Ford, like Murray, alleged the district court lacked jurisdiction to convict him because he
had been convicted without compliance with K.S.A. 22-3302. Both Ford and Murray
relied on Davis, 281 Kan. at 174-75, in which this court allowed a motion to correct an
illegal sentence to serve as the potential vehicle for reversing a conviction entered after a
district court failed to follow the requirements of K.S.A. 22-3302. Ford also relied on
Murray I, which followed Davis and recognized the appropriateness of using a motion to
correct an illegal sentence in Murray's case.



                                                6
       Today, however, in Ford we have disapproved that part of the Davis and Murray I
decisions that hold a failure to comply with K.S.A. 22-3302 is jurisdictional—which
forecloses a motion to correct an illegal sentence as a mechanism for correcting a
procedural competency error. Ford, ___ Kan. ___, slip op. at 16. Nevertheless, in Murray
I, we validated Murray's use of a motion to correct an illegal sentence; that holding is the
law of his case, and the parties have not asked us to reexamine that holding. See State v.
Collier, 263 Kan. 629, 631, 952 P.2d 1326 (1998) (discussing law of the case doctrine).
Therefore, we will consider the merits of his appeal.


       To put the merits discussion in perspective, we again note that in Murray I we held
that Murray had satisfied his initial burden of establishing, from the record or other
evidence, that there was reason to believe he was incompetent to stand trial and that the
requirements of K.S.A. 22-3302 had not been satisfied. Meeting this initial burden
entitled Murray to a hearing on his motion, so we remanded his case to the district court
for further proceedings. We stated that on remand the burden would shift to the State to
prove compliance with K.S.A. 22-3302. If the State failed to establish compliance with
K.S.A. 22-3302, then Murray's procedural due process rights were violated "and our
holding in Davis will compel [the district court] to grant relief." Murray I, 293 Kan. at
1055; see Ford, __Kan. at __, slip op. at 21.


       After the evidentiary hearing conducted on remand from Murray I, the district
court determined the State had not established compliance with K.S.A. 22-3302. Murray,
of course, agrees. The State suggests that an alternative way for us to affirm the district
court—a right-for-the-wrong-reason sort of approach—is to conclude circumstantial
evidence suggests a hearing did occur. As discussed in Ford, the district court's
determination that the State had not met its burden was a negative finding. "When


                                                7
reviewing a negative finding—a finding that a party failed to meet its burden—appellate
courts consider whether a district court arbitrarily disregarded undisputed evidence or
relied upon an extrinsic consideration such as bias, passion, or prejudice." Ford, ___ Kan.
at ___, slip op. at 18-19.


       Here, the State points to evidence that might have led the district court to a
different result. Further, the State argues the attorneys in Murray's case believed they
would not have proceeded without a hearing, so a hearing must have occurred. Contrary
to this assertion, the prosecutor testified, "There wasn't any hearing." Similarly, Cornwell
testified that he would like to think that Murray received a hearing, but he just did not
know. The record in this case was not clear, and neither party could remember the
hearing. Even if the district court could have made a different finding, it did not ignore
undisputed evidence or base its decision on extrinsic considerations in finding that the
State failed in its burden to prove Murray received a competency hearing.


       Because Murray's motion now proceeds with a finding that he did not receive a
competency hearing, his allegation that his rights under K.S.A. 22-3302 were violated is
substantiated. Nevertheless, in Davis, 281 Kan. at 181, we held that "under certain
circumstances the State may rectify the error by a retrospective competency hearing."
The first step in analyzing whether a particular case is one of the "certain circumstances"
requires a determination as to whether a retrospective competency hearing is feasible—
i.e., whether the available evidence is such that a retrospective hearing could be
meaningful. See Ford, __ Kan. at ___, slip op. at 21. On remand in this case, the district
court undertook an evaluation of feasibility and determined a hearing was feasible.




                                              8
       On appeal, Murray focuses his arguments on this step of the proceedings. He
argues first that the district court on remand exceeded the mandate in Murray I when it
undertook a feasibility examination. Second, he makes an alternative argument that the
district court erred in determining the retrospective competency hearing was feasible.


ISSUE 1. The district court did not exceed the Murray I mandate.


       In Murray's first argument he focuses on the last sentence of our Murray I
decision, which stated: "If the district court determines that Murray did not, in fact,
receive a competency hearing under K.S.A. 22-3302(1), then the statute and our holding
in Davis will compel it to grant relief." 293 Kan. at 1055. Murray suggests the only
remedy available in the absence of a contemporaneous competency hearing under K.S.A.
22-3302 is the reversal of his conviction.


       Murray's reading removes the incorporation of Davis into the Murray I holding.
As we have noted, Davis specifically discussed the "relief" available in the face of a
failure to comply with K.S.A. 22-3302 and noted that in certain circumstances the road to
relief includes a retrospective competency hearing. 281 Kan. at 181. Our opinion in
Murray I does not modify Davis or limit its application. Consequently, the district court's
pursuit of the remedies discussed in Davis fit within this court's mandate in Murray I.


ISSUE 2. A retrospective competency hearing was feasible.


       In Davis, we explained that upon the State's request and in the face of a procedural
violation of K.S.A. 22-3302, the district court could determine if a meaningful
retrospective competency hearing was feasible. Davis, 281 Kan. at 180-81; see Ford, ___


                                              9
Kan. at ___, slip op. at 21. Relying on McGregor v. Gibson, 248 F.3d 946 (10th Cir.
2001), the Davis court directed district courts to consider the following factors when
determining this feasibility:


               "'(1) [T]he passage of time, (2) the availability of contemporaneous medical
       evidence, including medical records and prior competency determinations, (3) any
       statements by the defendant in the trial record, and (4) the availability of individuals and
       trial witnesses, both experts and non-experts, who were in a position to interact with
       defendant before and during trial . . . ." Davis, 281 Kan. at 181 (citing McGregor, 248
       F.3d at 962-63).


       On review of a district court's application of those factors in Ford, today we held
an appellate court will review the district court's conclusion regarding those factors for an
abuse of discretion. See Ford, __ Kan. at __, slip op. at 22-23 (citing Hooker v. United
States, 70 A.3d 1197, 1202-03 [D.C. 2013]; State v. Blancher, 170 N.C. App. 171, 174,
611 S.E.2d 445 [2005]). An abuse of discretion occurs when a judicial action is (1)
arbitrary, fanciful, or unreasonable; (2) based on an error of law; or (3) based on an error
of fact. State v. Mosher, 299 Kan. 1, 3, 319 P.3d 1253 (2014). Although not citing a
standard of review, Murray argues the district court erred in applying these factors. We
disagree.


       2.1 First McGregor factor—passage of time


       The first McGregor factor—passage of time—weighs in Murray's favor. Almost
30 years passed between the order to determine Murray's competency and the time of his
retrospective determination. Certainly, a lengthy passage of time makes retrospective



                                                    10
determinations inherently difficult, as competency is subject to change and witnesses'
memories fade.


       2.2 Second McGregor factor—contemporaneous medical evidence


       As the second McGregor factor recognizes, the availability of contemporaneous
medical evidence can significantly diminish the problems that arise over time. Ford, ___
Kan. at ___, slip op. at 23; Davis, 281 Kan. at 182-83; Maxwell v. Roe, 606 F.3d 561,
576-77 (9th Cir. 2010); McGregor, 248 F.3d at 963. And here, the State presented the
district court with Dr. Reese's March 1983 evaluation of Murray. Dr. Reese concluded
that Murray "does not warrant further evaluation. . . . [H]e is competent to stand trial."
That contemporaneous finding carries significant weight. See Davis, 281 Kan. at 182.


       In an attempt to minimize the exam's value on appeal, Murray challenges the
brevity of Dr. Reese's report. But as the Tenth Circuit Court of Appeals concluded under
similar circumstances, "[a]lthough the report was admittedly brief, it nonetheless
constituted a contemporaneous medical determination." Clayton v. Gibson, 199 F.3d
1162, 1169 (10th Cir. 1999). Indeed, Dr. Reese's brevity suggests there was nothing to
discuss—he had no concerns about Murray's competence. Cf. McGregor, 248 F.3d at 955
(McGregor had a substantial history of mental illness, was not properly medicated
throughout his trial, exhibited odd behaviors at trial, and his counsel made "repeated and
vehement contentions that his client was unable to assist in his own defense.").


       For a number of other reasons, Murray asserts that Dr. Reese's report was not
meaningful. First, Murray claims it was just an "'initial report,'" which suggested that



                                             11
further evaluation was meant to occur. But Dr. Reese's evaluation expressly states, "I do
not recommend further evaluation at this time."


       Second, Murray claims the evaluation is suspect because Dr. Reese did not
specifically describe what test he used, and he did not expressly state that Murray was
able "to make or assist in making his defense." K.S.A. 22-3301(1)(b) (defining
"incompetent to stand trial" to mean being unable to [1] "understand the nature and
purpose of the proceedings against him," or [2] "make or assist in making his defense").
Yet Murray cites nothing to support his assertion that a mental evaluation is not valid
unless it is keyed to the language of the statute and describes what tests were used. The
failure to support a point with authority amounts to an abandonment of the issue. State v.
Tague, 296 Kan. 993, 1001, 298 P.3d 273 (2013).


       Moreover, even when a district court finds reason to believe a defendant is
incompetent, the ordering of an expert psychological examination under K.S.A. 22-
3302(3) is a discretionary decision—meaning the court can determine competence
without any expert evaluation. ("The court may order a psychiatric or psychological
examination of the defendant.") (Emphasis added.) Hence, we disagree with Murray's
technical claim about the necessary contents of an expert evaluation because an expert
evaluation is not statutorily mandated. We find no fault in the district court's conclusion
that Dr. Reese's expert evaluation of Murray was meaningful, contemporaneous medical
evidence of Murray's competence in the retrospective hearing. Finally, there is no
evidence to counter Dr. Reese's conclusion.




                                              12
       2.3 Third McGregor factor—Murray's statements in trial record


       Regarding the third McGregor factor—statements by Murray in the trial record—
the district court had access to the transcript of Murray's pretrial and trial testimony. See
Davis, 281 Kan. at 181-82 (considering defendant's own statements on the record).
Murray testified at both his suppression hearing and in his defense at trial.


       The suppression hearing arose from Murray's attempt to suppress his shoes, which
investigators had linked to a shoe print left at the scene. At the hearing, Murray testified
about specific prison officials who took his shoes despite his refusal to consent. His
testimony reflects that he understood the purpose of the proceeding and the law upon
which the court's decision depended and that he testified accordingly.


       Also supporting the district court's finding that the record reflected Murray's
competence were other steps Murray took prior to trial, testimony he gave at trial, and his
actions in a parallel proceeding. Specifically, prior to trial, Murray learned his friend had
confessed to the crime. In response, Murray sent a letter to the friend advising him to
exercise his constitutional right to silence and encouraging him to try and get his
confession suppressed. Murray understood the evidence against him, and he actively
attempted to assist in his defense. Further, at trial, Murray provided a detailed timeline of
the events of the day of the crime. He testified that he was never at the gas station on
February 17, 1983. Finally, as part of a plea in a parallel case, Murray certified that he
had never been confined in a mental institution nor judged mentally incompetent.
Nothing in the record indicates that Murray did not understand the proceedings or that a
mental disease or defect rendered him mentally incapable of assisting in his defense
under K.S.A. 22-3301.


                                              13
       Murray points on appeal to a witness at trial who testified that people said Murray
was "crazy." Cornwell objected at trial, but he decided not to seek clarification of the
remark through cross-examination. The district court noted, "Crazy means a lot of things.
Seldom does it mean insane." The court then admonished the jury to disregard the
statement. As the trial court contemporaneously noted, the witness' remark, which could
mean just about anything, does not call Murray's competence into question.


       In short, Murray does not point to anything he said or did that raises the sort of
competency question a retrospective hearing could not answer. He seems to concede this
point, claiming on appeal that his trial testimony "was unremarkable as to having
relevance [on the competency] issue." This factor weighs in the State's favor.


       2.4 Fourth McGregor factor—availability of those who interacted with Murray


       Finally, as to the last McGregor factor—the availability of individuals who were
in a position to interact with Murray before and during his trial—the district court heard
the testimony of Cornwell (Murray's defense counsel), Murray's prosecutor, and Murray.
See State v. Davis, 281 Kan. 169, 181-82, 130 P.3d 69 (2006) (considering the opinions
of witnesses that interacted with defendant); McGregor, 248 F.3d at 960 (quoting Bryson
v. Ward, 187 F.3d 1193, 1201 [10th Cir. 1999]) ("'Defense counsel is often in the best
position to determine whether a defendant's competency is questionable.'").


       While Cornwell said he must have felt Murray was not "hitting on all cylinders"
when he initially requested the evaluation, he also testified he would not have proceeded
in this case or assisted Murray in entering a plea in a parallel case if he had ongoing


                                             14
concerns about Murray's competency. Cornwell’s testimony also suggests that he had no
concerns about Murray's competence and considered the issue resolved after Dr. Reese's
evaluation. Concededly, he never contested Dr. Reese's evaluation of Murray.


       And it was not that he let the competency issue fall through the cracks—in a
pretrial report Cornwell indicated that insanity might be a possible defense. Cornwell
apparently made the decision not to pursue that defense. Moreover, after Murray's
conviction, Cornwell sought another mental evaluation in the hopes that he could present
some mitigating circumstances that would land Murray in a care and treatment facility
rather than prison. Cornwell did not often make that sort of posttrial motion for an
evaluation. He only filed such a motion when there arguably might be mitigating
emotional issues but no competency issues sufficient to support an insanity defense or the
suspension of trial.


       The prosecutor testified similarly. He never had a concern about Murray's
competency, and he considered the matter resolved after receiving Dr. Reese's evaluation.


       Even Murray did not testify during the 2013 hearing that he had been incompetent
to stand trial. He mentioned that he thought he had some "psychological problems" that
arose before his arrest. Putting aside that his perceived "psychological problems" might
not amount to a "mental illness or defect" implicating his competence under K.S.A. 22-
3301, Murray's testimony mostly focused on his mental state at the time of his crime.
("I'm saying that at that time I was having some mental—I had had some head injuries
the day before I was arrested. And I had had some other trauma involved in some pretty
serious injury which resulted in complete loss of memory from one minute to the next.")
He made no mention of lingering effects during trial, however. Moreover, at trial he


                                            15
demonstrated good recall of his activities on the day of the crime, providing a detailed
timeline. Murray's only other testimony as to his mental state was that, for a time, he
thought Cornwell was "out to get [him]." Viewed very favorably as a statement about
Murray's competence, his alleged belief could be seen as something that might have
impacted his ability to assist in his defense for a reason other than incompetency. But
there is simply nothing in the record that Murray—at any time in his life—has ever
suffered from any mental disease or defect.


       2.5 Conclusion regarding McGregor factors


       In summary, there was a significant period of time—nearly 30 years—between the
order to determine Murray's competence and the 2013 hearing. But in the 2013 hearing,
the district court had the benefit of a contemporaneous mental examination finding
Murray competent; both attorneys in Murray's case testified to no concerns about
Murray's competence; the record reflected Murray's understanding of the case and
rational assistance in his defense; and Murray's own testimony never clearly alleged that
he was incompetent at the time of his trial. Reviewing the available evidence in this case,
we cannot say the district court abused its discretion in finding that a retrospective
hearing on Murray's competency was feasible.


       As a result, the district court did not err in determining the retrospective
competency hearing could rectify the procedural due process error in Murray's underlying
case. See Ford, __ Kan. __, slip op. at 21; Davis, 281 Kan. 169, Syl. ¶ 5.


       Murray presents his challenge only as a procedural competency claim under
K.S.A. 22-3302; he does not present a substantive competency claim. See Ford, ___ Kan.


                                              16
___, Syl. 3 ("A procedural competency claim is based on a district court's alleged failure
to hold a competency hearing or an adequate competency hearing, while a substantive
competency claim is founded on the allegation that an individual was tried and convicted
while, in fact, incompetent."). Thus, our conclusion that the district court properly
rectified his procedural competency claim resolves his appeal.


       Affirmed.




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