                          NOT DESIGNATED FOR PUBLICATION

                                             No. 121,581

             IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                  ANDRES G. PENA-GONZALES,
                                         Appellant,

                                                   v.

                                         STATE OF KANSAS,
                                             Appellee.


                                   MEMORANDUM OPINION


       Appeal from Shawnee District Court; CHERYL A. RIOS, judge. Opinion filed June 26, 2020.
Affirmed.


       Jennifer Chaffee, of Free State Law, of Perry, for appellant.


       Kurtis Wiard, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.


Before ARNOLD-BURGER, C.J., WARNER, J., and LAHEY, S.J.


       PER CURIAM: Andres G. Pena-Gonzales appeals the district court's summary
denial of his K.S.A. 60-1507 motion alleging ineffective assistance of his trial counsel.
Finding no error by the district court, we affirm.


                          FACTUAL AND PROCEDURAL BACKGROUND


       In 2012, a jury convicted Pena-Gonzales of rape of a child under the age of 14 in
violation of K.S.A. 21-3502(a)(2), furnishing an alcoholic beverage to a minor for illicit



                                                    1
purposes in violation of K.S.A. 21-3610b, and aggravated indecent solicitation of a child
under the age of 14 in violation of K.S.A. 21-3511(b).


      The underlying facts were set forth in Pena-Gonzales' direct appeal:


              "The events leading to these convictions began in April 2009 when [B.C.]
      contacted Pena-Gonzales ask[ing] him for a ride to Topeka so she could hang out at the
      home of a friend. . . . [B.C.] and her older brother had known Pena-Gonzales for years
      and they referred to him as their 'uncle.'


              "Pena-Gonzales agreed to give the children a ride. When he arrived at their
      house, he had alcoholic beverages in his car, either bottles of Smirnoff Ice or strawberry
      daiquiris. He opened the bottles and offered them to the children. [B.C.] drank a couple
      of bottles on the ride to Topeka. Her brother, who was age 17, also consumed the
      beverages.


              "Rather than taking the children directly to the friend's house, Pena-Gonzales told
      them he was going to stop first at a gas station and get a pizza. At the gas station he did
      not buy a pizza but bought some Black & Mild cigars, which he shared with [B.C.]'s
      brother. Pena-Gonzales then drove the children to his house, where he said he wanted to
      show the boy his new truck. After checking out the truck, Pena-Gonzales and the boy
      went inside the house where [B.C.] was playing with the dog.


              "At that point, [B.C.]'s brother became sick from the alcohol he drank, so he
      stepped outside. When he tried to reenter the house, the doors were locked. The boy gave
      up trying to reenter the house and called a friend and left his sister alone with Pena-
      Gonzales.


              "According to [B.C.], when her brother stepped outside Pena-Gonzales locked
      the front door, and she 'knew something bad was going to happen.' When she was unable
      to get out the back door she ran to the bathroom and tried to lock the door, but there was
      no lock. Pena-Gonzales entered the bathroom and forced [B.C.]'s pants down. Pena-
      Gonzales said: '[J]ust let me put my penis in between your legs.' [B.C.] resisted, but Pena-



                                                    2
       Gonzales held her down, and [B.C.] felt his penis briefly penetrate her vagina. He then
       withdrew, masturbated on her leg, and then left.


               "[B.C.] opened the door and found her clothes sitting next to the door, along with
       her cell phone, a Black & Mild cigar, and a $50 bill. B. grabbed these items, got dressed,
       and fled and called for help.


               "When the police found her, she reported that she had been raped. Lieutenant Joe
       Perry reported that [B.C.] told him that her brother had taken her to her uncle's house, and
       her uncle offered to give her alcohol if he could perform oral sex on her. She said that
       when her brother left the house, her uncle raped her. She told Lieutenant Perry that Pena-
       Gonzales gave her two cigars and a $50 bill not to say anything. While Lieutenant Perry
       was talking to her, [B.C.] took the cigars and money out of her pocket and threw them on
       the ground and then fell to the ground 'rocking back and forth and started crying
       hysterically.'


               "At the hospital, [B.C.] told Detective Roger Smith that her 'uncle' had raped her.
       Joy Thomas, a sexual assault nurse examiner, examined [B.C.] According to Thomas,
       [B.C.] told her that Pena-Gonzales had penetrated her vagina twice, but she was unsure
       whether it was his penis or his finger that he put inside of her. [B.C.] also told Thomas
       that Pena-Gonzales had sucked on her right breast. Thomas took for examination seminal
       fluid samples found on [B.C.]'s leg, along with DNA samples from [B.C.]'s breast and
       underwear. [B.C.]'s blood alcohol level was 0.01." State v. Pena-Gonzales, No. 112,174,
       2016 WL 1614025, at *1-2 (Kan. App. 2016) (unpublished opinion).


       The district court sentenced Pena-Gonzales to life in prison with a mandatory
minimum of 25 years. Pena-Gonzales directly appealed his convictions and another panel
of our court affirmed the convictions. 2016 WL 1614025, at *15. The Supreme Court
denied his petition for review. 306 Kan. 1328 (2017).


       On January 8, 2018, Pena-Gonzales filed a timely motion under K.S.A. 60-1507,
alleging ineffective assistance of counsel from his trial attorneys. Pena-Gonzales alleged



                                                    3
seven counts of ineffective assistance of trial counsel based on various trial errors and
argued his appellate attorney failed to raise the issues on his direct appeal.


       The district court subsequently appointed counsel who filed an amended K.S.A.
60-1507 motion on March 23, 2019. The amended motion raised three ineffective
assistance of counsel claims: (1) failure to investigate impeachment evidence against a
witness, N.C., and the victim; (2) failure to investigate exculpatory evidence pertaining to
the ownership of the underwear allegedly worn by B.C.; and (3) failure to have a
translator present during private attorney-client meetings. For all three claims, Pena-
Gonzales argued the trial would have resulted in a different outcome had his trial counsel
been effective.


       On May 21, 2019, the district court issued a thorough, well-written memorandum
decision and order summarily denying Pena-Gonzales' motion. The district court
addressed the three claims raised in the amended motion and found that neither of Pena-
Gonzales' trial attorneys were ineffective in representing him and that he failed to
establish any prejudice. Pena-Gonzales filed a timely notice of appeal.


                                         ANALYSIS


       Our standard of review provides: When the district court summarily dismisses a
K.S.A. 60-1507 motion, an appellate court conducts a de novo review to determine
whether the motion, files, and records of the case conclusively establish that the movant
is not entitled to relief. Beauclair v. State, 308 Kan. 284, 293, 419 P.3d 1180 (2018).


       To avoid the summary denial of a motion brought under K.S.A. 60-1507, the
movant bears the burden of establishing entitlement to an evidentiary hearing. To meet
this burden, the movant's contentions must be more than conclusory, and the movant
must set forth an evidentiary basis to support those contentions or the basis must be


                                              4
evident from the record. If such a showing is made, the district court is required to hold a
hearing unless the motion is a "second" or "successive" motion seeking similar relief.
Sola-Morales v. State, 300 Kan. 875, 881, 335 P.3d 1162 (2014).


Abandoned Points


       After filing his notice of appeal, Pena-Gonzales also filed an objection to the
district court's findings of facts and conclusions of law. In his objection, Pena-Gonzales
asserted he raised seven claims of ineffective assistance of counsel in his original motion,
but the district court only ruled on the three claims raised in the amended motion. On
appeal, Pena-Gonzales states he objected on these grounds, but he does not provide any
substantive argument challenging the district court's failure to address the claims brought
in his original 60-1507 motion. Instead, Pena-Gonzales' appellate brief only addresses the
three ineffective assistance of counsel claims set forth in the amended 60-1507 motion
and ruled on by the district court. Generally, a point raised incidentally in a brief and not
argued therein is deemed waived and abandoned. See Russell v. May, 306 Kan. 1058,
1089, 400 P.3d 647 (2017). Accordingly, this opinion will address only the three claims
brought in the amended motion.


       Kansas Supreme Court Rule 6.02(a)(5) (2020 Kan. S. Ct. R. 35) requires an
appellant to include "the arguments and authorities relied on" in its appellate brief. Past
courts have made clear that an appellant is not in compliance with this rule when he or
she fails to "cite relevant authority or engage in substantial analysis." State v. Clay, 300
Kan. 401, 416, 329 P.3d 484 (2014). Failure to comply with this rule results in
abandonment of the claim. See Friedman v. Kansas State Bd. of Healing Arts, 296 Kan.
636, 645, 294 P.3d 287 (2013). Also, as stated above, a point raised incidentally in a brief
and not argued therein is deemed waived and abandoned. See Russell, 306 Kan. at 1089.
The State contends Pena-Gonzales failed to comply with appellate procedure because he
failed to include supporting legal authority or substantive analysis in his brief. Although


                                              5
we see merit in the State's arguments, we nonetheless address Pena-Gonzales appeal on
the merits.


       In Kansas, it is well-settled:


               "To prevail on a claim of ineffective assistance of trial counsel, 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 the deficient
       performance. Sola-Morales v. State, 300 Kan. 875, 882, 335 P.3d 1162 (2014) (relying on
       Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674, reh.
       denied 467 U.S. 1267 [1984])." State v. Salary, 309 Kan. 479, 483, 437 P.3d 953 (2019).


Under the prejudice prong, "a reasonable probability is a probability sufficient to
undermine confidence in the outcome." State v. Sprague, 303 Kan. 418, 426, 362 P.3d
828 (2015).


       "'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. Johnson, 304 Kan
924, 951, 376 P.3d 70 (2016).


       Each of Pena-Gonzales' claims is addressed below.


          DID TRIAL COUNSEL FAIL TO INVESTIGATE IMPEACHMENT EVIDENCE?


       Pena-Gonzales alleges his trial counsel "failed to diligently investigate, explore,
and/or introduce evidence at trial impeaching the [credibility] of witnesses [N.C.] and
[B.C.]" He contends his trial counsel should have procured phone records from B.C. and


                                                      6
N.C. because this evidence (1) may have led to their impeachment given they each
testified differently in regards to "who called and arranged for [movant] to give them a
ride into Topeka" or (2) the phone records "may have produced a lead to the discovery of
other exculpatory evidence."


       The district court found that Pena-Gonzales' claim was based on speculative
evidence and he failed to show how the lack of the phone records resulted in any
prejudice. The district court stated:


       "[T]he phone records, if they exist, may or may not contain any evidence relevant to
       impeachment. As such, the existence of these phone records and any evidence therein is
       purely speculative. Speculative evidence, as stated in Barahona, is insufficient to
       mandate a hearing under K.S.A. 60-1507. [Movant] has the burden to show there is some
       real, not speculative, evidence in order for the court to grant the request for an evidentiary
       hearing. In other words, Pena-Gonzales must assert how having phone records would
       have resulted in impeachment and how it is relevant to his claim that counsel was
       ineffective. Additionally, Pena-Gonzales is required to prove that the absence of the
       phone records is prejudicial. Assuming phone records did exist and that they were
       admitted at trial. Pena-Gonzales cannot say and the Court does not find that a different
       jury verdict would result. [B.C.] and [N.C.] each testified differently at trial as to the
       reasons for their unplanned trip from Silver Lake to Pena-Gonzales home on April 18,
       2009. They were subject to cross-examination as to their inconsistencies for the jury to
       hear and consider. In spite of their inconsistencies, the jury found the evidence sufficient
       to convict Pena Gonzales beyond a reasonable doubt. The absence of phone records was
       not prejudicial."


       On appeal, Pena-Gonzales simply argues that an evidentiary hearing was
warranted. However, just as the district court ruled, Pena-Gonzales failed to provide an
evidentiary basis for his claim, and a basis does not appear in the record. First, Pena-
Gonzales asserted that trial counsel failed to investigate phone records, but he did not
identify which phone records he was referring to or provide any facts to show that these


                                                      7
records actually existed. "Merely speculative allegations are insufficient to mandate an
evidentiary hearing." State v. Barahona, 35 Kan. App. 2d 605, 611, 132 P.3d 959, rev.
denied 282 Kan. 791 (2006).


       Second, even if the phone records existed, Pena-Gonzales failed to explain how
they would have been used as impeachment evidence or otherwise aided in his defense.
Pena-Gonzales admitted that B.C.'s and N.C.'s testimony already differed at trial
regarding who called Pena-Gonzales for the ride. Both were cross-examined on their
testimony, and the jury was able to evaluate their credibility. See State v. Butler, 307
Kan. 831, 858, 416 P.3d 116 (2018) ("In a similar fashion, it would make sense for trial
counsel to not subpoena Butler's phone records when there was no indication it would
support Butler's defense.").


       Pena-Gonzales' motion asserted the outcome would have been different but for his
counsel's deficient performance but he does not provide any prejudice argument on
appeal. As noted by the district court, Pena-Gonzales did not explain how any failure to
obtain phone records could have outweighed the other overwhelming evidence presented
at trial. Regardless of any inconsistent testimony regarding who initially called Pena-
Gonzales for a ride, B.C. consistently identified Pena-Gonzales as her rapist. B.C. and
N.C. both testified that B.C. was alone in the house with Pena-Gonzales and the doors
were locked just before the incident. B.C. testified that immediately after the rape
occurred, Pena-Gonzales left her $50 and a cigar on her pants and underwear before she
put them back on. The DNA from the seminal fluid obtained from B.C.'s shin and
underwear—which were tested immediately after the assault—matched to Pena-
Gonzales. In addition, B.C. testified Pena-Gonzales attempted to solicit sexual acts from
her in exchange for $100 on a prior occasion. As a result, the district court did not err in
ruling that an evidentiary hearing was not warranted on this issue.




                                              8
          DID TRIAL COUNSEL FAIL TO INVESTIGATE EXCULPATORY EVIDENCE?


       Pena-Gonzales argues that his trial counsel failed to investigate whether the
underwear B.C. was wearing at the time of the rape could have belonged to his live-in
girlfriend. Pena-Gonzales' motion asserted that he informed trial counsel that his
girlfriend could have information helpful to his defense, but counsel failed to investigate
that possibility. But Pena-Gonzales added that "it was only at trial that [movant] learned
the description of the underwear and believes that the underwear found on [B.C.]
belonged to his girlfriend . . . and not [B.C.]"


       The evidence introduced at trial showed that Pena-Gonzales' DNA was found on
B.C.'s underwear. Pena-Gonzales appears to allege that he could have provided a
plausible explanation for the DNA match if he could show that the underwear belonged
to his girlfriend, with whom he allegedly had intercourse with earlier that day.


       In denying relief on this issue, the district court ruled:


               "Pena-Gonzales also claims that [trial counsel] provided ineffective assistance of
       counsel by failing to investigate evidence regarding who owned the underwear placed
       into evidence at trial. He claims that [trial counsel] should have investigated the
       ownership of the underwear after Pena-Gonzales informed him of his live-in girlfriend
       before trial. He also claims that [trial counsel] should have objected to the introduction of
       the underwear when Pena-Gonzales told him at trial and as the evidence was being
       offered that the underwear might belong to his girlfriend. However, the fact that Pena-
       Gonzales had a live-in girlfriend alone would not lead to the notion that the underwear
       worn by [B.C.] when she was examined by SANE belonged to Pena-Gonzales' girlfriend.
       Because the standard for ineffective assistance of counsel claims is of objective
       reasonableness, the question to be asked is whether a reasonable attorney informed that
       Pena-Gonzales has a live-in girlfriend, should have investigated ownership of the
       underwear worn by [B.C.] There is no particular connection between [the girlfriend]'s
       presence in [Pena-Gonzales'] life and the undergarments worn by [B.C.] As such, it


                                                    9
       cannot be concluded that [trial counsel] was objectively unreasonable in deciding not to
       look into the ownership of the underwear, or that he failed to object to its admission at
       trial.


                "Pena Gonzales must also demonstrate how, if at all, he was prejudiced by [trial
       counsel]'s failure to investigate ownership of the underwear, and by his failure to object
       to admission of the same at trial.


                "To establish prejudice, it must be shown that it is reasonable to assume that a
       different result (guilty verdict) would have been reached but for counsel's inaction. In
       order to reach a different verdict, the jury would have to leap to the assumption that
       [B.C.] might have inadvertently picked up another woman's underwear when she picked
       up her own pants and didn't recognize that they were not her underwear when she put
       them on. The underwear she wore were collected and preserved by the SANE nurse at the
       hospital. The jury would further have to discount [B.C.]'s testimony (and corroborating
       DNA evidence) that defendant removed her underwear, raped her and then ejaculated his
       seminal fluid onto her shin.


                "Prejudicial effect may have been more probable if DNA evidence was only
       collected from the underwear. However, DNA evidence consistent with Pena-Gonzales
       was collected from [B.C.]'s shin as well as the underwear. [B.C.]'s testimony, the
       consistent DNA evidence, and the physical contact between [B.C.] and [Pena-Gonzales]
       would all be evidence that would allow a jury to convict defendant even if [trial counsel]
       had offered evidence that the underwear might have belonged to Pena-Gonzales'
       girlfriend."


       On appeal, Pena-Gonzales does not provide any argument to refute the district
court's extensive findings on this claim, and we find the record supports the district
court's findings for multiple reasons. First, Pena-Gonzales' motion alleged that he
informed counsel of his live-in girlfriend but did not provide any specific facts of his
discussion with counsel. He does not indicate how his girlfriend was connected to the
case or what information she could provide in his defense—he only asserted that "he
informed counsel that [his girlfriend] may have information helpful to his defense."

                                                    10
Further, even after the trial, Pena-Gonzales does not allege the underwear belonged to his
girlfriend, only that it was possible his girlfriend may have had a similar pair. Again,
"[m]erely speculative allegations are insufficient to mandate an evidentiary hearing."
Barahona, 35 Kan. App. 2d at 611.


       Second, under Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L.
Ed. 2d 674, reh. denied 467 U.S. 1267 (1984), a movant is required to prove that his or
her counsel's performance was deficient under the circumstances. Here, the district court
assessed trial counsel's decision not to investigate the ownership of the underwear for
reasonableness and found this decision was not unreasonable. Pena-Gonzales admitted he
did not learn of the description of the underwear until trial and that is when he realized
the underwear could have belonged to his girlfriend. If this fact is accepted as true, trial
counsel would not have had any reason to believe the underwear could have belonged to
anyone else until it was introduced at trial. "A court deciding an actual ineffectiveness
claim must judge the reasonableness of counsel's challenged conduct on the facts of the
particular case, viewed as of the time of counsel's conduct." Reed v. State, No. 119,484,
2020 WL 1070350, at * 5 (Kan. App. 2020) (unpublished opinion), petition for rev. filed
April 1, 2020.


       At trial, B.C. testified she was wearing her underwear just before the rape
occurred. Right after the rape occurred, B.C. stated she located her underwear and her
pants outside the bathroom door and put them back on just before leaving the house. B.C.
told the SANE nurse during the examination that she was still wearing the clothing,
including the underwear, she wore at the time of the rape. Further, the testimony reflects
that B.C. was the only person in the house with Pena-Gonzales at the time of the rape,
and there is no indication any other underwear was near the scene of the rape.


       As part of Pena-Gonzales' motion, he attached a letter purportedly written by his
girlfriend. In the letter, his girlfriend explains the underwear belonged to her and stated


                                              11
Pena-Gonzales' seminal fluid was on the underwear because they had intercourse earlier
that day. The letter alleges the girlfriend took the underwear off at some point while N.C.
and B.C. were at the house. However, this letter was not dated or notarized, and there is
nothing in the letter to substantiate the contents or the author. The letter does not explain
how B.C. came to be wearing the girlfriend's underwear. And, as the district court found,
this evidence also does not explain how Pena-Gonzales' seminal fluid was found on
B.C.'s shin.


       In sum, Pena-Gonzales' argument relies on speculative evidence and does not
explain how trial counsel was ineffective in failing to investigate evidence which he had
no reason to believe existed at the time. Pena-Gonzales makes no showing of prejudice.
The district court properly dismissed this claim.


                    DID TRIAL COUNSEL FAIL TO OBTAIN A TRANSLATOR?


       Pena-Gonzales argued he received ineffective assistance of counsel because his
attorneys did not have a translator present during their private communications. Pena-
Gonzales appears to argue that an interpreter was necessary during private conversations
with trial counsel because English is not his primary language and he could not
communicate how his girlfriend could have been used as part of his defense. Pena-
Gonzales provided the following statements in support of his claim:


       "The [movant] was first represented in the district court by [counsel], however during the
       course of her representation [counsel] did not utilize the services of an interpreter to
       communicate with [movant], who's primary language is Spanish and not English.
       [Movant] had engaged in conversation with [counsel] and had made her aware of his live-
       in girlfriend . . . . [Movant] was then provided with new counsel . . . who represented him
       in trial and at sentencing. [Trial counsel] had arranged for an interpreter in court, but did
       not use an interpreter for all conversations between himself and [movant]. [Movant]




                                                    12
again informed [trial] counsel that [his girlfriend] may have information helpful to his
defense."


The district court ruled:


        "[Pena-Gonzales'] third claim is that [trial counsel] failed to obtain a translator
for private attorney-client conversations. This claim is predicated on the idea that Pena-
Gonzales was not proficient enough in English to understand certain nuances of his legal
defense. The record reflects that Pena-Gonzales was proficient in English. He spoke
English at proceedings and indicated that he had spoken to [trial counsel] privately in
English as well. Furthermore, Pena-Gonzales wrote some of his own pleadings in
English. Although there are some spelling and grammatical errors, it was clear that Pena
understands English enough to follow the proceedings. In fact, [trial counsel] specifically
said that he believed defendant was proficient in English, though Spanish was his first
language. He had been in in the United States for 23 years. [Trial counsel] out of an
abundance of caution believed Pena-Gonzales would receive the best defense if he also
had an interpreter to assist with any legal terms or nuances that might require a translator.


        "[Pena-Gonzales] has not shown how he was prejudiced by the fact that a
translator was not present for attorney-client meetings prior to trial. To establish
prejudice, Pena-Gonzales must show that [trial counsel]'s decision to forego a translator
at some proceedings is unreasonable. The presence of a translator at some, but not all,
proceedings, would be reasonable if the client demonstrates a strong proficiency in
English and is able to communicate well in that language. [Pena-Gonzales'] ability to
speak intelligibly, write his own pleadings, and communicate with [trial counsel] outside
of proceedings demonstrates such proficiency. Pena-Gonzales also claims that the use of
a translator at jury trial may have prejudiced him because jurors might think he could not
speak English and this would somehow prevent him from receiving a fair trial. Defendant
has not shown prejudice by the presence of a translator at his trial. He has not shown that
the absence of a translator at trial would not have changed the outcome of the case based
upon the overwhelming evidence against him discussed herein."




                                             13
       On appeal, Pena-Gonzales does not contest the district court's factual findings.
Instead, he argues he did not waive his right to an interpreter and he was not informed of
his right to an interpreter. Pena-Gonzales' appellate brief provides: "Counsel knew that
Mr. Pena Gonzales would not understand everything in a complex case as this was. The
right to be present at hearings and to confront accusers requires a translator when
necessary for the accused to understand and assist in defense." Pena-Gonzales contends
that because an interpreter was used during the trial, this implied an interpreter was
necessary for every other communication and proceeding.


       Pena-Gonzales alleges his constitutional rights were violated by trial counsel's
failure to obtain a translator for all conversations with him. The absence of an interpreter
can violate a defendant's right to due process under the Sixth Amendment to the United
States Constitution:


       "[A] defendant is guaranteed the right to be present at any stage of the criminal
       proceeding that is critical to its outcome if the defendant's presence would contribute to
       the fairness of the procedure. To be 'present' requires that a defendant be more than just
       physically present. It assumes that a defendant will be informed about the proceedings so
       he or she can assist in the defense. A defendant's right to be present includes a right to
       have trial proceedings translated into a language that he or she understands so that he or
       she can participate effectively in his or her own defense. [Citations omitted.]" State v.
       Calderon, 270 Kan. 241, 245, 13 P.3d 871 (2000).


       "Courts have acknowledged that '[c]ounsel's inability to communicate with his
client because of a language barrier may render his assistance constitutionally ineffective.
[Citation omitted.]' Gallo-Vasquez v. United States, 402 F.3d 793, 799 (7th Cir. 2005)."
Rivera v. State, No. 104,064, 2011 WL 3558232, at *3 (Kan. App. 2011) (unpublished
opinion).




                                                    14
       Trial courts have wide discretion in determining whether providing an interpreter
will satisfy constitutional requirements: "[T]his court has acknowledged that, unlike the
Kansas statutory provision, the United States Constitution does not require that the court
provide an interpreter in all cases in which a defendant's primary language is not
English." State v. Holguin-Loredo, No. 118,740, 2019 WL 1496775, at *10 (Kan. App.)
(unpublished opinion) (citing Khalil-Alsalaami, 54 Kan. App. 2d 235, 239, 399 P.3d 264
[2017]), rev. denied 310 Kan. 1067 (2019).


       Determining whether an interpreter is necessary depends on a variety of factors,
"including the complexity of the proceedings, the defendant's knowledge of English, and
the testimony presented during trial." Khalil-Alsalaami, 54 Kan. App. 2d at 239. But,
"[w]e, of course, have not endeavored to suggest just how conversant in English a person
must be to satisfy the Sixth Amendment and due process protections afforded criminal
defendants." State v. Wei, No. 120,443, 2019 WL 5287908, at *8 (Kan. App. 2019)
(unpublished opinion).


       Here, Pena-Gonzales' motion did not provide a factual basis to show he needed an
interpreter. He claimed the interpreter was not present during some of his meetings with
trial counsel, but he does not identify or describe those meetings. The only specific
complaint he makes is the lack of an interpreter impeded his ability to communicate to
trial counsel that his girlfriend might have information useful to his defense. However,
Pena-Gonzales asserted that he was not sure if trial counsel did not understand him or
simply chose not to use his girlfriend as a part of his trial strategy. See Sola-Morales, 300
Kan. at 888 ("Consistent with Strickland's burden on a defendant to establish deficient
performance, the defendant bears the burden of demonstrating that trial counsel's alleged
deficiencies were not the result of strategy.").


       The record reflects an interpreter was present for some of Pena-Gonzales'
meetings with trial counsel. Trial counsel specifically requested an interpreter be present


                                              15
for at least one of their meetings in order to determine if there was a language barrier
between himself and Pena-Gonzales. When trial counsel first requested an interpreter, he
told the district court he was initially concerned about Pena-Gonzales' ability to
understand the proceedings and was unsure if the difficulty was derived from a language
barrier or for some other reason. To determine where Pena-Gonzales' confusion stemmed,
trial counsel requested an interpreter and informed the district court he intended to have a
private meeting with Pena-Gonzales and the interpreter and then he would report back at
the next hearing.


       At the next hearing, trial counsel explained he and Pena-Gonzales did not have
any trouble communicating due to a language barrier and were able to discuss legal
strategy and his defense. Trial counsel clarified that Pena-Gonzales was only having
difficulty understanding the possible sentences he faced:


               "After discussion with this client it appears that he understands my function. He
       understands the charges against him and everything related to his case. Where he's having
       the biggest problem is the potential sentence that he faces upon conviction. A plea offer
       was made, and if he enters a plea to that specific charge he's facing a sentence that he
       fails to understand how that sentence can be so large for what occurred in this case. So
       his understanding of the process and what's going on seems to be there, but his inability
       to the get his thoughts around the possible sentence, that's the issue.


               "So in terms of being able to move forward to trial, which is what he requests to
       do at this time, we are set and we will be prepared for that."


       At the final status conference hearing before trial, trial counsel told the district
court he met with Pena-Gonzales at least four times. Although it is unclear whether an
interpreter was present during each of these meetings, trial counsel informed the district
court that he and Pena-Gonzales discussed the evidence the prosecution had and the
evidence they could use in his defense.



                                                    16
       The record reflects the only time that Pena-Gonzales had difficulty understanding
the legal proceedings was regarding the possible sentences he was facing. Even then, the
misunderstanding was not because of the language barrier. Trial counsel explained that
Pena-Gonzales did not believe the crime warranted such a severe penalty given his
personal experiences in his culture. Pena-Gonzales did not allege he could not understand
trial counsel or the proceedings but instead claimed trial counsel could not understand
him. However, it does not appear trial counsel had difficulty understanding Pena-
Gonzales or any evidence they discussed. Still, trial counsel insisted the interpreter be
present as a safeguard.


       Even if trial counsel were ineffective for failing to obtain a translator for private
meetings, Pena-Gonzales failed to show prejudice. Pena-Gonzales' motion only stated
there would have been a different outcome at trial had he and his trial counsel been able
to fully understand each other when discussing evidence for a defense.


       On appeal, Pena-Gonzales only adds that prejudice is presumed in this situation.
While prejudice can sometimes be presumed when there is a failure to appoint an
interpreter,


       "a presumption of prejudice is only appropriate . . . in situations in which an error
       "'implicate[s] a basic consideration of fairness or undermine[s] the function of a criminal
       trial'". . . . In the context of determining whether the district court's failure to appoint an
       interpreter jeopardized a defendant's constitutional right . . . so that prejudice should be
       presumed, this court has instructed that it is necessary to determine whether the defendant
       was able to understand the proceedings. [Citations omitted.]" Khalil-Alsalaami, 54 Kan.
       App. 2d at 245.


       In Khalil-Alsalaami, the district court found the defendant was not prejudiced by a
lack of an interpreter because he had an excellent grasp on English. On appeal a panel of
our court reversed that ruling, finding the defendant was prejudiced by the lack of an


                                                      17
interpreter because he could not understand what was happening at trial and could not
effectively participate in his own defense given the complexity of the DNA evidence
presented and police minimization techniques. 54 Kan. App. 2d at 242-44.


       Conversely, in Holguin-Loredo, a panel of this court held there was no prejudice
where, despite being from Mexico, the defendant lived in the United States from a young
age, attended high school in Kansas, "had no learning difficulties, and did well when he
applied himself. Many of [the defendant's] evaluations were completed without an
interpreter present. Additionally, [the defendant] met with his posttrial counsel five times
without an interpreter present." 2019 WL 1496775, at *11. The panel found substantial
competent evidence supported the finding that the defendant was fluent in English. 2019
WL 1496775, at *11.


       Here, Pena-Gonzales' situation is not one where prejudice is presumed. Just as the
district court stated in its ruling, the record reflects Pena-Gonzales' primary language was
not English, but he did not appear to have difficulty understanding the proceedings. The
district judge who ruled on the K.S.A. 60-1507 motion was the same judge who presided
over Pena-Gonzales' pretrial proceedings and trial. Pena-Gonzales has lived in the United
States for 23 years. Multiple witnesses stated they spoke to Pena-Gonzales in English and
had no difficulty in communicating with him, including B.C. and the detective who
investigated the case. Further, all of Pena-Gonzales' pleadings were written in English.
Again, on appeal, Pena-Gonzales did not object to these findings or otherwise assert he
did not understand the proceedings.


       Further, when an interpreter was present, Pena-Gonzales seemed to use the
interpreter in only a limited capacity and asked the interpreter for assistance only when he
did not understand the legal terminology. At other times throughout the proceedings,
Pena-Gonzales told the district court that he understood when he was being informed of
various rights. Because prejudice is not presumed here and Pena-Gonzales has not


                                             18
asserted any other argument to the contrary, Pena-Gonzales is not entitled to an
evidentiary hearing on this issue.


       The district court did not err in denying Pena-Gonzales' K.S.A. 60-1507 motion.


       Affirmed.




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