                          NOT DESIGNATED FOR PUBLICATION

                                             No. 121,008


             IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                         ERNEST L. TAYLOR,
                                            Appellant,

                                                    v.

                                         STATE OF KANSAS,
                                             Appellee.


                                   MEMORANDUM OPINION


       Appeal from Shawnee District Court; C. WILLIAM OSSMANN, judge. Opinion filed August 14,
2020. Affirmed.


       Kristen B. Patty, of Wichita, for appellant, and Ernest L. Taylor, appellant pro se.


       Natalie Chalmers, assistant solicitor general, and Derek Schmidt, attorney at law, for appellee.


Before BUSER, P.J., HILL and WARNER, JJ.


       PER CURIAM: To win this collateral attack on his convictions, Ernest L. Taylor
had to show that his lawyer's performance was legally deficient and that he was
prejudiced by that performance. At trial, his lawyer failed to object to the admission of
some evidence that he had asked the court to suppress. Thus, the issue was not preserved
for his direct appeal. But he has failed to show us that he would have prevailed in his
direct appeal if the issue had been preserved. We hold that Taylor has no right to relief
because he has not shown prejudice.



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       In his uncounseled brief that he submitted to this court, Taylor raises several other
issues. None of them are persuasive, and we affirm the court's dismissal of his K.S.A. 60-
1507 motion.


       Taylor is serving a prison sentence for three felony crimes—aggravated robbery,
aggravated burglary, and obstructing official duty. His convictions were affirmed by this
court in State v. Taylor, No. 101,451, 2010 WL 2245599 (Kan. App. 2010) (unpublished
opinion). Full details of Taylor's crime are given in that opinion.


       To provide a context, we summarize the details. In 2007, a young woman in
Topeka discovered a man standing in her bedroom about 10 to 12 feet from her bed. The
man was hunched over and had his hand under his shirt. It looked like he had a gun. He
demanded money or he would shoot her. She yelled at him to get out and told him that
she did not have a wallet. The intruder fled and snatched a jar of nickels and dimes off a
shelf on his way out.


       When she called the police, she described the intruder as a black man, 5′ 8″ to 5′
10″, weighing 170 to 190 pounds, with short hair and a mustache, who was wearing a
white t-shirt with some writing on the front of it.


       Two sheriff's deputies who were in the area received a radio dispatch describing
the intruder as a black male, with short hair and a mustache, wearing a white shirt. The
deputy who was driving immediately headed the unmarked police car towards the
victim's house. While en route, the officers spotted a black male with short hair and a
white shirt about 3 blocks from the victim's house.


       The deputies, who were dressed in street clothes, drove past the man, turned their
car around, and parked the car. They approached the man on foot. Following from
behind, one of the officers asked the man if he could stop and talk with him. The man

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looked back and continued walking. The man did not stop until one of the deputies used a
taser on the man. He was later identified as Taylor.


       The deputies arrested Taylor. When he was searched, they discovered $41.05 in
coins on his person. When detectives later showed the victim a photo array that included
Taylor's photo, she pointed him out after about 30 seconds and said, "that looks like him."


       Later, the victim went to the jail where she watched video of Taylor in an
interview room. Even though she could not see his face, she could hear his voice. She
then told the detectives that she was "120 percent sure" that Taylor was the intruder.


       Before trial, the defense moved to suppress evidence. Taylor argued that the court
should suppress all evidence related to the search of his person because the officers used
excessive force when they approached him. Taylor also argued the officers lacked
reasonable suspicion to begin the detention, but he did not argue that the officers lacked
reasonable suspicion because he did not fit the description given to the 911 operator by
the victim. The district court held a hearing on the motion, and Taylor argued he did not
fit the description given by the victim. The court denied the motion to suppress. The
defense did not object when the evidence was offered at trial.


       Later, in his direct appeal, Taylor brought up the lack of reasonable suspicion. But
this court did not address the issue because Taylor's trial counsel failed to make a timely
and specific objection to the evidence at trial. 2010 WL 2245599, at *2-3.


       Following his direct appeal, Taylor filed a pro se K.S.A. 60-1507 motion. Over the
next three years, Taylor filed many pro se motions. Eventually, his counsel filed a
consolidated motion for relief that narrowed the allegations to ineffective assistance of
his trial and appellate counsel. Taylor alleged his trial counsel was ineffective for failing
to preserve his motion to suppress for appellate review.

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       After a preliminary hearing, the district court denied Taylor's motion. The district
court found that "[w]hile a timely objection would have preserved the issue for appeal, it
is extremely doubtful [this court], in reviewing the same facts and testimony presented at
trial, would have reached a different result than that of the trial court." The district court
found Taylor failed to meet his burden of proving ineffective assistance of trial and
appellate counsel.


We must follow these rules.


       If a district court holds a preliminary hearing where it admits limited evidence and
considers arguments of counsel, as here, this court must defer to any factual findings
made by the district court. We look to see if the findings are supported by substantial
competent evidence and whether those findings are enough to support its conclusions of
law. See Bellamy v. State, 285 Kan. 346, 354, 172 P.3d 10 (2007). Our review over the
district court's conclusions of law and its decision to grant or deny the K.S.A. 60-1507
motion is unlimited. White v. State, 308 Kan. 491, 504, 421 P.3d 718 (2018).


       To be entitled to relief under K.S.A. 60-1507, the movant must establish by a
preponderance of the evidence either:
           • the judgment was rendered without jurisdiction;
           • the sentence imposed was not authorized by law or is otherwise open to
              collateral attack; or
           • there has been such a denial or infringement of the constitutional rights of
              the prisoner that it renders the judgment vulnerable to collateral attack.
K.S.A. 2019 Supp. 60-1507(b); Supreme Court Rule 183(g) (2020 Kan. S. Ct. R. 223).


       Here, Taylor claims that his lawyer's deficient performance is an infringement of
his constitutional rights.


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       To avoid the summary denial of a motion brought under K.S.A. 60-1507, a
movant bears the burden of establishing entitlement to an evidentiary hearing. To meet
this burden, a movant's contentions must be more than conclusory, and either the movant
must set forth an evidentiary basis to support those contentions or the basis must be
evident from the record. Sola-Morales v. State, 300 Kan. 875, 881, 335 P.3d 1162 (2014).


       Taylor argues his constitutional right to the assistance of counsel was violated
because his lawyer was ineffective for failing to preserve his motion to suppress evidence
by objecting to the evidence at trial. To prevail on a claim of ineffective assistance of trial
counsel, Taylor must establish:
          • that the performance of defense counsel was deficient under all of the
              circumstances; and
          • prejudice, i.e., that there is a reasonable probability the jury would have
              reached a different result absent the deficient performance.
See State v. Salary, 309 Kan. 479, 483, 437 P.3d 953 (2019).


       We are cautious when addressing such questions. When reviewing claims of
ineffective assistance of counsel, judicial scrutiny must be highly deferential and requires
consideration of all the evidence before the judge. And in considering deficiency, "there
is a strong presumption counsel 'rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional judgment.'" State v. Kelly, 298 Kan.
965, 970, 318 P.3d 987 (2014). To establish prejudice, the defendant must show a
reasonable probability that, but for counsel's deficient performance, the outcome of the
proceeding would have been different, with a reasonable probability—that is, a
probability sufficient to undermine confidence in the outcome. See State v. Sprague, 303
Kan. 418, 426, 362 P.3d 828 (2015).




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       This failure to show the outcome of the appeal would have been different is where
Taylor's argument collapses. Even if we assume that his counsel's performance was
deficient, he has failed to prove the issue would have been successful on appeal.


Taylor claims he did not match the description of the robber given by the victim and the
officers had no reasonable suspicion to stop him.

       The point Taylor stresses is that he is far heavier than the description of the robber
given by the victim. According to the arrest report, Taylor weighed 260 pounds when he
was arrested, and the victim described the intruder as weighing between 170 to 190
pounds. But the officers had more to consider than just a physical description of the
intruder. We must look at all of the circumstances.


       Here, the dispatcher put out a call about the crime describing the suspect as a black
male with short hair and a mustache, who was around 6' tall and weighed 170 to 190
pounds. Dispatch also described the suspect as wearing dark pants or jeans and a white t-
shirt with writing on it. The officers testified that they knew the suspect could be armed,
and they were aware of the location of the crime. There is more.


       Around two to three minutes after receiving the physical description of the
suspect, the officers saw Taylor walking a few blocks away from the crime scene. Taylor
was the only pedestrian the officers saw in the area. Together with the time and location
of the crime, the officers believed Taylor matched the description of the suspect. Even
though Taylor had long hair at the time, the officers testified that his hair appeared short
because it was pulled back into a ponytail.


       Before contacting Taylor, the officers noticed he was behaving suspiciously. The
officers testified that while they were watching Taylor, he was looking back over his
shoulder and looking around while walking. Taylor was also sweating through his


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clothes. The officers thought this was suspicious because it was around 76 degrees that
night.


         Reasonable suspicion depends on all of the circumstances and what is reasonable
depends on all of the circumstances in the view of a trained law enforcement officer.
Kansas courts have determined that reasonable suspicion depends on the information
possessed, its degree of reliability, and both the quantity and quality of information. State
v. Martinez, 296 Kan. 482, 487, 293 P.3d 718 (2013).


         The Kansas Supreme Court has consistently held that when deciding if there is
reasonable suspicion, a court must look at the big picture. A court must


         "'judge the officer's conduct in light of common sense and ordinary human experience.
         "Our task . . . is not to pigeonhole each purported fact as either consistent with innocent
         travel or manifestly suspicious," but to determine whether the totality of the
         circumstances justify the detention. We make our determination with deference to a
         trained law enforcement officer's ability to distinguish between innocent and suspicious
         circumstances, remembering that reasonable suspicion represents a "minimum level of
         objective justification" which is "considerably less than proof of wrongdoing by a
         preponderance of the evidence."[Citations omitted.]'" State v. DeMarco, 263 Kan. 727,
         735, 952 P.2d 1276 (1998).


Following this reasoning, when we are deciding if there was reasonable suspicion here,
we must look at the big picture.


         In an attempt to narrow our view, Taylor cites State v. Anguiano, 37 Kan. App. 2d
202, 151 P.3d 857 (2007), for support. In Anguiano, a panel of this court found that the
officer who stopped the defendant "had no particularized and objective basis for
suspecting Anguiano was involved in criminal activity" because the only description
given to the officer was that the suspect was a Hispanic man who wore a coat and "dark-

                                                      7
type green" pants. 37 Kan. App. 2d at 207. That description is far more generic than the
one given here. Besides, the officers did not rely only on the description given by the
victim.


       When we consider the big picture here, the officers had reasonable suspicion to
stop Taylor and investigate whether he was involved in the robbery. Even though there
were some discrepancies between the description given by the dispatcher and Taylor's
appearance, other facts must be considered. Taylor was a black male with a mustache
wearing a white shirt and dark pants, and he was near the crime scene and acting
suspiciously two to three minutes after the victim's call to the police. Taylor's case can be
distinguished from Anguiano because the officers here relied on more than a generic
description about the suspect's appearance.


       We hold there is no reasonable probability that Taylor's motion would have been
successful on direct appeal even if his trial counsel had preserved the issue. Thus, any
deficient performance by Taylor's trial counsel did not lead to prejudice because there is
very little likelihood that this court would have reversed the suppression ruling on appeal.
No evidentiary hearing was warranted on Taylor's claim of ineffective assistance of
counsel. The district court properly denied the claim without a hearing. We turn now to
the issues raised by Taylor in his uncounseled brief.


The supplemental issues raised by Taylor do not give us reasons to reverse.


       In several of the issues brought by Taylor, he argues that his speedy trial rights
were violated because he faced a competency evaluation that he did not want. Put another
way, his counsel—who he contends was standby counsel—had no authority to request a
competency evaluation.




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       On direct appeal, Taylor argued that his counsel was ineffective for requesting a
competency hearing that led to a violation of his speedy trial rights. In rejecting this
claim, this court found that his counsel was not deficient because "there was evidence
supporting a reasonable belief that Taylor was in need of a competency evaluation
because he was refusing to assist in his own defense." 2010 WL 2245599, at *7.


       But more importantly, the court found that Taylor's claim was "based on a false
premise as to prejudice" because the State was still required to bring him to trial within
the statutory period, holding: "In other words, Taylor suffered no actual prejudice by
reason of the competency evaluation; he was free to assert and demand compliance with
the speedy trial deadline at all times." 2010 WL 2245599, at *7.


       Because this court has already ruled that the competency evaluation did not violate
Taylor's speedy trial rights and it was not ineffective assistance of counsel to request an
evaluation, res judicata bars our reconsideration of Taylor's claims in two of his issues.
See Salary, 309 Kan. at 482.


       Next, it appears that Taylor argues that his competency hearing was erroneous
because he objected to it. In Taylor's direct appeal, this court noted that Taylor
"adamantly and continually objected" to his counsel's motion for a competency
evaluation. 2010 WL 2245599, at *6. This court determined it was reasonable for
Taylor's counsel to request, and for the district court to grant, a competency evaluation
based on Taylor's behavior. Because this court determined that the competency
evaluation was appropriate under the circumstances, this issue is barred by res judicata.


       But even if we are misconstruing his claim, and it is not identical to the claim
decided on direct appeal, he still loses. It could have been raised in Taylor's direct appeal
and it has been waived. See Salary, 309 Kan. at 482.


                                              9
       Next, Taylor appears to argue that his appellate counsel was ineffective for failing
to argue that he was pro se and therefore his standby counsel had no authority to request a
competency evaluation. As noted by the State, Taylor failed to cite to the record on
appeal to establish his pro se status. The district court, in considering Taylor's K.S.A. 60-
1507 motion, found Taylor was not pro se when his counsel requested the competency
evaluation.


       In making that finding, the district court relied on a pretrial motions hearing where
it ordered Taylor's counsel to remain as his defense counsel—not standby counsel—
because Taylor could not decide whether he wanted to represent himself. This means that
the district court's factual finding is supported by substantial competent evidence.
Because Taylor was not pro se when the competency evaluation was ordered, it was not
error for the district court to deny Taylor an evidentiary hearing on this claim.


       Finally, Taylor brings an issue that he did not raise in the district court in this
K.S.A. 60-1507 motion. He contends that his trial counsel was ineffective for failing to
request a jury instruction regarding eyewitness identification. In fact, he contends the
identification should have been suppressed. We hold this issue is also barred by res
judicata.


       Taylor raised this issue in his direct appeal, and this court determined that there
was not "any serious question about the reliability of the identification." 2010 WL
2245599, at *5. The panel was impressed by the timing and certainty of the victim's
identification:


       "The victim had 3 to 5 minutes to view her intruder, she had an unobstructed view of the
       front of the intruder's face, and she provided a relatively consistent and accurate
       description—albeit somewhat erroneous in estimations of weight and height. She
       consistently identified Taylor both in a photographic line-up from among five other


                                                    10
       persons, and she clearly confirmed her identification after hearing Taylor's voice at the
       police station and again after seeing his face. There are [sic] nothing about these
       circumstances that raises a serious question about the reliability of the victim's
       identification of Taylor." 2010 WL 2245599, at *5.


       Even more, the panel determined that because Taylor was apprehended near the
victim's residence with the nickels and dimes stolen from the victim, the evidence
"dispel[led] any possibility that the additional eyewitness instruction would have resulted
in a different verdict." 2010 WL 2245599, at *5.


       In trying to strengthen his argument, Taylor also argues the pretrial identification
procedures were unconstitutional. Although this court determined this claim was not
preserved for appellate review on direct appeal, it found that "[e]ven if [the panel] were
to address these claims on their merits . . . any perceived illegality in the line-up
procedures was clearly harmless." 2010 WL 2245599, at * 4. The court, again, reasoned
that the change found on Taylor's person was a "damning discovery [that] certainly
blunts—if not obliterates—Taylor's challenge to the identification procedures and related
testimony." 2010 WL 2245599, at *4.


       This ruling means that res judicata prevents us from reconsideration of the claim.
Taylor has not established that he is entitled to relief.


       Affirmed.




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