               IN THE SUPREME COURT OF THE STATE OF KANSAS

                                        No. 111,608

                                     STATE OF KANSAS,
                                         Appellee,

                                              v.

                                    VINCENT R. JARMON,
                                        Appellant.


                              SYLLABUS BY THE COURT

1.
       When an instructional error was not raised in the district court and is asserted for
the first time on appeal, failing to give a legally and factually appropriate instruction will
result in reversal only if the failure was clearly erroneous.


2.
       To establish a clearly erroneous instruction error, the defendant must firmly
convince the court the jury would have reached a different result without the error.


3.
       In a prosecution for burglary, the failure to instruct a jury on the elements of the
intended felony underlying burglary constitutes error.


4.
       The omission of an instruction defining the intended felony underlying a charge of
burglary is subject to harmless error analysis.



                                              1
5.
        An untimely motion for new trial that asserts ineffective assistance of counsel may
be treated as a collateral attack on a judgment under K.S.A. 60-1507.


6.
        An untimely motion for new trial that is deemed a collateral attack on a judgment
does not confer on the movant greater procedural rights than those provided to a timely
movant filing under K.S.A. 60-1507.


        Review of the judgment of the Court of Appeals in an unpublished opinion filed February 26,
2016. Appeal from Sedgwick District Court; BRUCE C. BROWN, judge. Opinion filed June 15, 2018. The
judgment of the Court of Appeals affirming in part and reversing in part the district court is affirmed in
part and reversed in part. The judgment of the district court is affirmed.


        Heather Cessna, of Kansas Appellate Defender Office, argued the cause and was on the briefs for
appellant.


        Matt J. Maloney, assistant district attorney, argued the cause, and Marc Bennett, district attorney,
and Derek Schmidt, attorney general, were with him on the briefs for appellee.


The opinion of the court was delivered by


        ROSEN, J.: Vincent Jarmon appeals from his jury conviction for one count of
burglary.


                              FACTS AND PROCEDURAL BACKGROUND


        At the time of the events that led to the conviction, Tommy Luallen and his
mother, Mathilda Luallen, owned a commercial building in Wichita. Tommy was in

                                                      2
business with Larry Farmer. Tommy and Farmer bought storage units at auctions and
resold the contents. They stored their inventory at the building in Wichita.


       On May 6, 2013, Tommy Luallen and Farmer went to the building and discovered
a hole in the back wall of the building. They attempted to remedy the breach by placing a
board in front of it and piling marble sinks, tubs, a stove, a barrel, and other items in front
of the board. On the morning of May 7, 2013, Farmer went to the building and opened
the front door. He heard a noise in the back and saw a light shining where he would not
normally expect to see any light. He backed out of the building and quietly closed the
door and then called the police.


       Officer Edward Johnson of the Wichita Police Department responded to report of
a burglary in progress. He initially encountered Farmer, who told him someone was
inside the building. Johnson and another officer entered through the front door, while a
third officer went to the back of the building to seal it off. They announced their presence
and made their way toward the back. There they encountered Jarmon and arrested him.
Jarmon had chips on his clothing, similar in appearance to the wall insulation through
which the holes in the back wall had been broken. He had a red bracelet belonging to
Farmer on his left wrist. In Jarmon's pocket were found screws and washers that came
from Farmer's business.


       Farmer inspected the back room and saw that the tubs and sinks and barrel had
been moved. A second hole was found above the earlier opening and higher than the
stacked up items.


       Bags not belonging to Farmer were found in the room; these bags were filled with
Farmer's property. Open toolboxes were scattered around and many tools were missing
from them. A jewelry display and other goods had been swept off shelves and were lying
                                               3
on the floor. A string of Hot Wheels toy cars led to the hole and out into the alley. Over
120 Hot Wheels cars were missing, as were some jewelry, tools, stereo equipment, CDs,
and DVDs. Jarmon did not have permission to be in the building.


                                         ANALYSIS


       The State charged Jarmon with one count of felony burglary. A jury found him
guilty as charged, and the court sentenced him to a standard term of 32 months of
incarceration and 12 months of postrelease supervision.


       Jarmon took a timely appeal to the Court of Appeals, which affirmed the
conviction itself but reversed on a peripheral question of the effectiveness of trial
counsel, particularly with respect to a conflict of interest when arguing Jarmon's pro se
motion for change of counsel. The court remanded for a renewed hearing on the motion
to replace trial counsel. State v. Jarmon, No. 111,608, 2016 WL 757570 (Kan. App.
2016) (unpublished opinion).


       This court granted the State's petition for review with respect to the remand for a
hearing on ineffective assistance of counsel and granted Jarmon's cross-petition for
review with respect to the first issue he raised to the Court of Appeals—the omission of
the theft instruction.


The Omission of an Instruction on the Elements of Theft


       The jury was instructed on the elements of burglary. One of the elements was that
Jarmon entered the building with the intent to commit a theft, but the instructions
neglected to define theft. He asserts that the omission of a definition of theft constituted
reversible error.
                                              4
       When a jury instruction is alleged to be erroneous,


       "(1) [f]irst, the appellate court should consider the reviewability of the issue from both
       jurisdiction and preservation viewpoints, exercising an unlimited standard of review; (2)
       next, the court should use an unlimited review to determine whether the instruction was
       legally appropriate; (3) then, the court should determine whether there was sufficient
       evidence, viewed in the light most favorable to the defendant or the requesting party, that
       would have supported the instruction; and (4) finally, if the district court erred, the
       appellate court must determine whether the error was harmless." State v. Plummer, 295
       Kan. 156, 163, 283 P.3d 202 (2012).


       Jarmon did not object to the burglary instruction. When, as here, an instructional
error is asserted for the first time on appeal, failing to give a legally and factually
appropriate instruction will result in reversal only if the failure was clearly erroneous.
State v. Solis, 305 Kan. 55, 65, 378 P.3d 532 (2016). "To establish a clearly erroneous
instruction error, the defendant must firmly convince the court the jury would have
reached a different result without the error." 305 Kan. at 65. This standard applies with
equal force when the defendant fails to object to an instruction that omits an element of a
crime. The error is harmless if the appellate court has a firm belief beyond a reasonable
doubt that the error had little, if any, likelihood of changing the result of the trial. State v.
Watson, 256 Kan. 396, 404, 885 P.2d 1226 (1994).


       The standard of review in Kansas is consistent with the standard applied by the
United States Supreme Court when reviewing the omission of an element of a crime in
jury instructions. See Neder v. United States, 527 U.S. 1, 119 S. Ct. 1827, 144 L. Ed. 2d
35 (1999). In Neder, unlike here, the defendant preserved the issue by objecting to the
missing element instruction. Relying on Chapman v. California, 386 U.S. 18, 24,
87 S. Ct. 824, 17 L. Ed. 2d 705 (1967), the Neder Court applied the standard test for

                                                     5
harmlessness: "whether it appears 'beyond a reasonable doubt that the error complained
of did not contribute to the verdict.'" 527 U.S. at 15. The court noted that the standard is
essentially the same as the analysis used in other cases that deal with errors infringing
upon the jury's fact-finding role: "Is it clear beyond a reasonable doubt that a rational
jury would have found the defendant guilty absent the error?" 527 U.S. at 18.


       Here, the standard is relaxed because Jarmon did not object to the instructions. As
with other instructional errors reviewed for clear error, the error may be deemed harmless
unless Jarmon can convince this court that the jury would have reached a different verdict
if it had been informed of the elements of theft.


       Jury Instruction 7 read:


       "In Count 1, the defendant, Vincent R. Jarmon, is charged with Burglary. The defendant
       pleads not guilty.


       "To establish this charge, each of the following claims must be proved:


           1. That the defendant entered a building that is not a dwelling;


           2. That the defendant did so without authority;


           3. That the defendant did so with the intent to commit a theft therein;


           4. That this act occurred on or about the 7th day of May, 2013, in Sedgwick
               County, Kansas."


       This instruction generally tracked the PIK Crim. 4th 58.120 burglary instruction
but omitted the PIK language "[t]he elements of [theft] are (set forth in Instruction


                                                   6
No. ___) (as follows: ________________________)." The instructions as given
provided the jury with no definition of the crime of theft.


       PIK Crim. 4th 58.010, defining theft, would have added language similar to this
instruction:


       "To establish that the defendant intended to commit a theft, each of the following claims
       must be proved:


               "Larry Farmer was the owner of the property.


               "The defendant exerted unauthorized control over the property.


               "The defendant intended to deprive Larry Farmer permanently of the use or
               benefit of the property.


               "This act occurred on or about the 7th day of May, 2013, in Sedgwick County,
               Kansas."


See K.S.A. 2012 Supp. 21-5801 (defining theft).


       In a burglary prosecution, failure to provide the elements of the underlying
intended crime constitutes error. See, e.g., State v. Richmond, 258 Kan. 449, 458, 904
P.2d 974 (1995); Watson, 256 Kan. 396, Syl. ¶ 6; State v. Rush, 255 Kan. 672, 679, 877
P.2d 386 (1994); State v. Linn, 251 Kan. 797, 802, 840 P.2d 1133 (1992). Because
Jarmon did not object to the instructions as given or request an instruction on the
elements of theft, we apply the clearly erroneous standard set out above. Jarmon must
firmly convince this court that the jury would have reached a different result if it had
been instructed on the elements of theft.


                                                   7
       An examination of the record leads us to conclude that the State's evidence was
overwhelming and was never directly contested. It was clear that Jarmon did not have
permission to be in the building and he had exerted significant effort in creating a hole
that would give him access to the storeroom. He had warehouse property in his pockets;
he was wearing a bracelet found in the warehouse; a trail of warehouse property could be
followed from the warehouse through the hole and out into the alley; and warehouse
property had been placed in bags that had been brought into the warehouse by someone
other than the owners. Property that had been present in the building shortly before
Jarmon was found there was missing when the building was searched after his arrest.
This was compelling and uncontested evidence that he intended to permanently deprive
the owners of their property.


       No evidence was introduced of Jarmon's purpose or presence in the building other
than the abundant circumstantial evidence of theft. Jarmon did not testify on his own
behalf. On cross-examination, Johnson testified that the weather was "cool" at the time of
the arrest. During closing argument, Jarmon's counsel contended that he was homeless
and might have been looking for shelter and not looking to appropriate property. Counsel
pointed out that Jarmon was wearing a jacket, which might be seen as evidence that
Jarmon entered the building to avoid the "cool" weather.


       Of course, if Jarmon had not been wearing a jacket, counsel could have argued
that this was evidence likewise tending to show that he might have entered the building in
order to escape from the weather. Wearing a jacket was not relevant to his motivation for
breaking into the warehouse, because Jarmon could have been warmly dressed, not
warmly dressed, or even naked, and the same argument could have been advanced based
on the fact that he was wearing (or not wearing) clothing. The relevant and substantial
evidence with respect to his clothing was the presence of warehouse property in Jarmon's
pockets.
                                             8
       Even if a jury might have been persuaded that he initially entered the building for
shelter from the elements, the evidence was compelling that he left the building with
property not belonging to him and then returned to the building in order to obtain more of
that property. Some property was missing entirely; some property was found in the alley
behind the building; and some property was found on Jarmon's person. This evidence
undermined any contention that he was in the building only for warmth and did not
intend to permanently deprive the owners of their property.


       The present case contrasts with Rush, 255 Kan. 672, where this court reversed a
burglary conviction for failure to instruct on the elements of theft. In Rush, a homeless
man forced entry into a store where he was found by police. Nothing was missing from
the building, and the defendant had nothing on his person except his personal belongings.
The defendant stated that he intended only to sleep in the building, not to take anything.
In the present case, however, no evidence was put forward that Jarmon was homeless;
property was missing from the building, Jarmon had store property in his pockets and on
his wrist, and he had placed store property in bags that he brought with him. The
evidence of theft was much greater than in Rush.


       We are not firmly convinced that the jury would have reached a different verdict if
the district court had given a theft instruction. A rational jury would have concluded that
at least one of the reasons why Jarmon went into the building was to steal property. The
instructional error was therefore harmless.


The Motion to Replace Trial Counsel Prior to Sentencing


       Several weeks after the trial ended, Jarmon filed a pro se motion requesting a new
trial based on the alleged ineffective assistance of his trial counsel. Immediately prior to
                                              9
sentencing, the court conducted an inquiry on the motion and heard the arguments of his
trial counsel, the attorney for the State, and Jarmon himself. The court then denied the
motion and heard arguments on sentencing. Jarmon argued on appeal that the district
court abused its discretion when it denied his motion, and the Court of Appeals agreed.
The State challenges this holding on review.


       Jarmon maintains that the standard of review is a mixed question of law and fact,
with the ultimate conclusion subject to de novo review. The State, on the other hand,
asserts that the issue is reviewed for abuse of judicial discretion. The State is correct.
See State v. Pfannenstiel, 302 Kan. 747, 760-61, 357 P.3d 877 (2015) (duty to conduct
inquiry on substitution of counsel can lead to three types of errors, each of which is
reviewed on appeal for an abuse of discretion); State v. Richardson, 290 Kan. 176, 185,
224 P.3d 553 (2010) (discretion not abused in refusing to appoint new counsel for
defendant).


       An abuse of discretion occurs when judicial action is (1) arbitrary, fanciful, or
unreasonable, i.e., no reasonable person would take the view adopted by the trial court;
(2) based on an error of law, i.e., the discretion is guided by an erroneous legal
conclusion; or (3) based on an error of fact, i.e., substantial competent evidence does not
support a factual finding on which a prerequisite conclusion of law or the exercise of
discretion is based. State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied
___ U.S. ___, 132 S. Ct. 1594 (2012).


       Because Jarmon's motion for new trial was filed out of time, the Court of Appeals
treated it as a motion under K.S.A. 60-1507. It remanded for a hearing, complete with
new appointed counsel. In so doing, the Court of Appeals provided Jarmon with
procedural rights superior to those granted many petitioners who file timely K.S.A.


                                              10
60-1507 pleadings. When 60-1507 pleadings are timely filed, the petitioners are not
guaranteed a hearing and are not automatically provided with court-appointed attorneys.


       Jarmon charged in his motion that his attorney, Latina Wharton, provided
ineffective assistance and "deliberately and with intention sabotage[d] the defendant's
jury trial." He set out several grounds for his allegation: Wharton was aware that he was
homeless and was in the building because he was homeless; Wharton refused to object to
the introduction of photographs of the building; Wharton failed to object to the
publication of a photograph showing him in handcuffs; and Wharton "failed to give any
opening statements to a defense" and, after being summoned to the judge's bench, she
never returned to complete opening statements. He then asked the court to dismiss
Wharton and grant him a new jury trial.


       The district court conducted an inquiry in which it gave Jarmon, Wharton, and the
prosecutor ample opportunity to speak. Jarmon repeated the contentions contained in his
motion. Wharton initially stated that she was "willing to work with Mr. Jarmon." She
explained that she, not the State, introduced the photograph of Jarmon, which she did for
the purpose of suggesting that the weather was cold and he had sought shelter in the
building. The prosecution also spoke to some of Jarmon's concerns and portrayed
Wharton as having performed admirably.


       The district court made two findings: that there was no basis for granting a new
trial and that there was an insufficient basis for replacing Wharton as counsel. In
particular, the court addressed Wharton's decision not to introduce direct evidence of
Jarmon's homeless condition and motives for being in the building:


               "Now, there are certain strategies, though, if she calls you to the stand to testify
       oh, I was homeless, didn't have any place to stay, that's why I went in there, you're

                                                    11
       opened up to cross-examination, which probably would have been—had horrible results
       for you, with [the prosecutor] asking you questions about this. That would have been a
       total meltdown in your case. She did an excellent job of using other evidence to point out
       to the jury and she made the argument in closing argument, I remember thinking about
       that, and thinking that's a good point, and yeah, she's doing a good job there bringing that
       out, that you know, hey, trying to argue that you were in there for the purposes of
       shelter."


       The Court of Appeals determined that there was necessarily a conflict of interest
when Wharton responded to her client's motion. Jarmon, 2016 WL 757570, at *5. The
Court of Appeals initially noted, apparently agreeing with the State, that Jarmon's motion
for new trial was filed out of time and was therefore jurisdictionally deficient. The court
then elected to treat the motion as a collateral challenge to the conviction under K.S.A.
60-1507. 2016 WL 757570, at *5.


       In State v. Reed, 302 Kan. 227, 236, 352 P.3d 530 (2015), the defendant filed a
motion alleging ineffective assistance of trial counsel before sentencing but three months
after the guilty verdict. This court held that a district court has jurisdiction under K.S.A.
22-4506 (applying to "any person who is in custody under a sentence of imprisonment")
to treat the motion as a collateral attack on the sentence. The court cited State v. Kirby,
272 Kan. 1170, 1192-93, 39 P.3d 1 (2002), which held that a posttrial but presentencing
motion for new trial that alleged ineffective assistance of counsel could be treated as a
postconviction motion under K.S.A. 22-4506.


       The Court of Appeals remanded for a hearing on Jarmon's "collateral challenge to
his conviction on the basis of ineffective assistance of counsel." 2016 WL 757570, at *7.
At this hearing he was to receive new appointed counsel.




                                                   12
       Because Jarmon's motion for new trial was untimely, the only mechanism for
considering the motion was to treat it as a collateral attack on his conviction along the
lines of Reed. But such a collateral attack does not guarantee the movant a full hearing
and neutral appointed counsel. K.S.A. 60-1507(b) allows a district court to summarily
dispose of a motion based on the files and records of the case and without the presence of
the prisoner. K.S.A. 22-4506(b) requires appointment of counsel only when the court
finds that the motion presents substantial questions of law or triable issues of fact. By
granting Jarmon a full hearing with new counsel, the Court of Appeals provided him with
more procedural rights than he may have received if he had filed his motion on time or
had filed a true 60-1507 motion.


       In State v. Sharkey, 299 Kan. 87, 95, 322 P.3d 325 (2014), the court noted that an
untimely motion for new trial is subject to a summary denial without appointing counsel
if the judge determines that the motion, files, and records of the case conclusively show
that the movant is entitled to no relief. See K.S.A. 60-1507(b). Such a disposition would
have provided Jarmon less protection than he received in the present case under a
challenge based on asserted conflicts of interest. Normally, a court would conduct a
preliminary examination to determine whether the requested relief was a realistic
possibility. He would not be automatically entitled to a hearing, much less to appear and
testify at the hearing. The Court of Appeals skipped the statutory step allowing the
district court to conduct a preliminary investigation of the merits of the claim. Under the
Court of Appeals reasoning, Jarmon was entitled to an inquiry sufficient to develop on
the record the interests of the parties because he filed his motion out of time.


       The Court of Appeals erroneously created a right to the appointment of new,
neutral counsel. This court has held that a claim of conflict of interest between a
defendant and counsel does not require "automatic substitution of counsel." Pfannenstiel,
302 Kan. at 764. Kansas caselaw has consistently held that a district court need not
                                             13
appoint new counsel until it finds, after an initial inquiry into potential conflict of interest,
that a defendant has established "justifiable dissatisfaction with his or her current
attorney." 302 Kan. at 765; see also State v. Brown, 300 Kan. 565, 575, 331 P.3d 797
(2014); State v. Wells, 297 Kan. 741, 754, 305 P.3d 568 (2013).


          In order to demonstrate justifiable dissatisfaction, a defendant seeking new
counsel must show a conflict of interest, an irreconcilable disagreement, or a complete
breakdown in communication between counsel and the defendant. Pfannenstiel, 302 Kan.
at 759-60. Jarmon's motion articulated a statement of attorney dissatisfaction, which
triggered the district court's duty to inquire into a potential conflict of interest. 302 Kan.
at 760.


          Because Jarmon's motion was untimely, he was not entitled to assistance of
conflict-free counsel to argue for a new trial. Pfannenstiel, 302 Kan. at 763. He was also
not entitled to conflict-free counsel to argue for the existence of a conflict with his
current appointed counsel. 302 Kan. at 765.


          The present case is substantially similar to the circumstances of Pfannenstiel,
where the defendant filed a pro se motion for substitute counsel based on a conflict of
interest and the district court questioned the defendant and his counsel at a hearing before
denying the request. 302 Kan. at 755-57.


          Pfannenstiel held that, while a district court's questioning of defense counsel
during its inquiry into the potential conflict does not automatically create a conflict,
counsel must tread a fine line to ensure her or his statements do not create a conflict.
302 Kan. at 765-66. Inquiry by the district court of defense counsel is necessary, but
statements by counsel that go beyond factual recitations and argue against the client's
position create an actual conflict of interest. 302 Kan. at 766. Counsel may make
                                                14
statements regarding decisions of trial strategy and are "a generally appropriate area of
inquiry." 302 Kan. at 767. Likewise, comments by counsel that the defendant may have
misunderstood what counsel told him or her do not cross the line of conflict of interest,
despite being adverse to defendant's statements. 302 Kan. at 767.


       Here, the statements by Jarmon's defense counsel amounted to an explanation of
trial strategy; a clarification of the factual basis for some of the events at trial; and a
clarification that, contrary to Jarmon's allegations, she had advanced Jarmon's theory of
defense during closing arguments. Although some of these statements contradicted
Jarmon's allegations, they constituted factual recitations rather than advocacy against
Jarmon's motion.


       The record supports the district court's conclusion that there was no conflict
between Jarmon and Wharton sufficient to justify either a new trial or the appointment of
new counsel. Some of the allegations in Jarmon's motion are clearly false. Wharton
definitely presented an opening argument that, while brief, was complete. Some of the
allegations were vague and failed to point out a true inadequacy of representation. The
introduction of the photograph was a deliberate and legitimate, albeit unsuccessful, trial
strategy. The claim that Wharton failed to advocate based on his homelessness was not
quite true and was also a matter of trial strategy, which prevented her from calling him as
a witness subject to cross-examination.


       This was a difficult case to defend. Jarmon was caught in a warehouse, having
obviously broken through a wall to obtain entry. He was caught with warehouse property
in his pockets, on his wrist, in bags that he evidently brought with him, and in the act of
taking property out through the hole in the wall. He was marginally articulate and had an
extensive criminal history involving theft and trespass, which made it dangerous to place
him on the stand.
                                               15
       It is inappropriate to send this case back for a hearing on the motion for new trial
or the motion to replace counsel. The Court of Appeals mandated appointment of new
counsel for a collateral challenge that had no support in the record and files. A challenge
such as the one that Jarmon raised is normally subject to summary denial without
appointment of counsel. The district court would have little before it at such a hearing
that it did not have at its inquiry on the conflict of interest: testimony by Jarmon,
Wharton, and the prosecution, as well as its own observations about the conduct of the
defense. It is extraordinarily unlikely that the court would reach a different conclusion
than it did at the time of the hearing on the motion. A remand in cases such as this one
would reward defendants who file untimely motions for new trial by providing them with
full-fledged evidentiary hearings supported by appointed counsel. There is no support for
such an outcome either in caselaw or statute.


                                        CONCLUSION


       We therefore reverse the Court of Appeals ruling on the motion for new trial. The
conviction of burglary and the denial of the motion for new trial by the district court are
affirmed.




                                             16
