                           NOT DESIGNATED FOR PUBLICATION

                                             No. 121,137

               IN THE COURT OF APPEALS OF THE STATE OF KANSAS

                                      XAVIER A. HUTCHERSON,
                                            Appellant,

                                                  v.

                                           STATE OF KANSAS,
                                               Appellee.


                                    MEMORANDUM OPINION

        Appeal from Lyon District Court; W. LEE FOWLER, judge. Opinion filed March 13, 2020.
Affirmed.


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


        Meghan K. Morgan, assistant county attorney, Marc Goodman, county attorney, and Derek
Schmidt, attorney general, for appellee.


Before WARNER, P.J., POWELL, J., and LAHEY, S.J.


        PER CURIAM: Xavier Hutcherson appeals the summary denial of his K.S.A. 60-
1507 motion. In that motion, Hutcherson argued that his trial counsel was ineffective
when the attorney's conduct led him to waive two constitutional rights: his right to a jury
trial and his right to confront witnesses. We find the district court appropriately denied
Hutcherson's motion and affirm.




                                                   1
                        FACTUAL AND PROCEDURAL BACKGROUND

       The facts of Hutcherson's convictions are discussed at length in State v.
Hutcherson, No. 113,669, 2016 WL 2942304 (Kan. App. 2016) (unpublished opinion),
rev. denied 306 Kan. 1325 (2017). After a bench trial, Hutcherson was convicted of
possession of marijuana with the intent to distribute, possession of methamphetamine
with the intent to distribute, felony battery of a law enforcement officer, and felony
interference with law enforcement. The facts relevant to this appeal stem from
Hutcherson's waiver of certain constitutional rights leading up to his trial: (1) his waiver
of his right to a jury trial and (2) his stipulation to the foundation of a KBI report, a
decision he now frames as a waiver of his right to confrontation.


       Hutcherson waived his right to a jury trial at a pretrial conference. At that time,
Hutcherson engaged in a discussion with the court and counsel, during which he
indicated he was unsure whether he would continue to demand a jury trial or proceed to a
bench trial. He ultimately stated: "I'll take the bench trial; I'll waive my right to a jury
trial." Before accepting Hutcherson's waiver, the district court confirmed it was freely
and voluntarily made, that Hutcherson was not under the influence of any substance that
would cloud his decision-making process, and that no one made any threats or promises
inducing his waiver. Hutcherson stated he understood the nature of the right he was
giving up and acknowledged he had discussed the matter with his attorney. Hutcherson
also agreed he was satisfied with his trial counsel's representation and did not have any
complaints—although he did state he wished his attorney had come to visit him. After
this colloquy, the court accepted Hutcherson's waiver and set the case for a bench trial.


       Due to a problem securing the availability of the chemist who produced the KBI
report analyzing the drugs seized from Hutcherson, the State moved to continue the trial.
Hutcherson opposed the requested continuance, and the district court held a hearing on
the matter. In the interest of facilitating the trial on the scheduled date, Hutcherson agreed



                                               2
to waive any objection to the foundation of the KBI report, relieving the State's need to
call the chemist as a witness. The court then directly addressed Hutcherson and asked
him whether his decision to stipulate to the report was freely and voluntarily made.
Hutcherson responded that it was.


       At trial, Hutcherson was convicted of all charges. On direct appeal, this court
reversed and remanded Hutcherson's conviction for felony interference with law
enforcement with directions to resentence and treat that crime as a misdemeanor. 2016
WL 2942304, at *5-6. After Hutcherson was resentenced, he filed a pro se K.S.A. 60-
1507 motion alleging ineffectiveness of his trial and appellate counsel.


       Hutcherson alleged his trial counsel was ineffective because (1) he failed to
preserve his objection to the district court's interference with his right to counsel; (2) his
motion to dismiss on speedy trial grounds was deficient; (3) he failed to file a K.S.A. 60-
1501 petition and a motion to stay proceedings; (4) he failed to file three separate pretrial
motions Hutcherson requested; (5) he failed to sufficiently confer or consult with
Hutcherson about the facts of the case, which led to Hutcherson's waiver of his right to a
jury and his waiver of "other fundamental constitutional rights"; and (6) he failed to
object to the district court's encroachment on duties of the prosecution and interference
with his right to counsel.


       Hutcherson alleged that his appellate counsel (1) failed to raise speedy trial issues
in his direct appeal; (2) failed to raise an ineffective assistance of counsel claim;
(3) failed to file a Van Cleave motion; and (4) failed to raise all potentially meritorious
issues preserved by his trial counsel. Hutcherson also argued the prosecutor on his case
had a conflict of interest because she had represented him in a prior criminal case.


       The State requested summary disposition and dismissal of Hutcherson's motion,
arguing Hutcherson failed to establish sufficient grounds on which he would be entitled


                                               3
to relief. Hutcherson was appointed counsel, who argued that Hutcherson's allegations of
ineffective assistance of counsel were supported by the record and could, if proven,
establish a reasonable probability that, but for the acts and omissions of his counsel, there
would have been a different outcome.


       The district court summarily denied Hutcherson's motion. With regard to the
claims Hutcherson raises in this appeal, the court observed:


       "A pretrial hearing was held in the petitioner's underlying criminal case on April 28,
       2014. At that hearing the petitioner waived his right to a jury trial and affirmatively stated
       to the court that he was satisfied with trial counsel. When asked about any specific
       complaints the petitioner had regarding his attorney, the petitioner did raise a concern that
       counsel had not come to see him, but upon further inquiry he confirmed that he had a
       chance to talk to counsel and wanted to proceed with the jury trial waiver. . . . No other
       'fundamental constitutional rights' are identified in the petition filed herein. The claims of
       the petitioner on this issue are without merit."


       Hutcherson appeals.


                                              DISCUSSION

       While Hutcherson states that the district court erred in summarily denying all the
claims in his issue statement, he only discusses two claims on appeal—one of which was
not raised in his original K.S.A. 60-1507 motion. Accordingly, we only address the two
issues he now presents. See State v. Arnett, 307 Kan. 648, 650, 413 P.3d 787 (2018)
("'An issue not briefed by an appellant is deemed waived and abandoned.'").


       Hutcherson argues that the ineffectiveness of his trial attorney led him to waive his
right to a jury trial and to waive his right to confrontation. The State asserts Hutcherson
provided no facts, witnesses, or other sources of evidence supporting his jury-trial claim
and waived any argument about his right to confrontation by failing to raise it below.


                                                     4
Thus, the district court correctly found the motion, files, and records of the case establish
that Hutcherson is not entitled to relief.


       An appellate court's standard of review when examining a K.S.A. 60-1507 motion
depends on how the district court ruled below. White v. State, 308 Kan. 491, 504, 421
P.3d 718 (2018). When the district court summarily denies a K.S.A. 60-1507 motion—as
it did here—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 summary denial of his K.S.A. 60-1507 motion, Hutcherson bore the
burden of establishing that his claims warranted an evidentiary hearing. An evidentiary
hearing is required "[u]nless the motion and the files and records of the case conclusively
show that the prisoner is entitled to no relief." K.S.A. 2019 Supp. 60-1507(b); Supreme
Court Rule 183(f) (2019 Kan. S. Ct. R. 228); see also Mundy v. State, 307 Kan. 280, 302,
408 P.3d 965 (2018) (holding that the condition triggering the evidentiary hearing
requirement is a district court's determination that the motion presents substantial issues
of law or fact).


         While Kansas courts liberally construe pro se pleadings, a pro se movant still
bears the burden to allege facts sufficient to warrant a hearing on the motion. 307 Kan. at
304. And "'mere conclusions . . . are not sufficient to raise a substantial issue of fact when
no factual basis is alleged or appears from the record.'" 307 Kan. at 304. To meet this
burden, a movant's contentions either must set forth an evidentiary basis to support his or
her contentions or the basis must be evident from the record. Sola-Morales v. State, 300
Kan. 875, 881, 335 P.3d 1162 (2014). When ruling on a K.S.A. 60-1507 motion, a district
court is required to "make findings of fact and conclusions of law on all issues
presented." Supreme Court Rule 183(j) (2019 Kan. S. Ct. R. 230).



                                              5
   1. The district court correctly found Hutcherson has not shown ineffective assistance
      of counsel induced his waiver of his right to a jury trial.

       Hutcherson claims the district court erred in summarily denying his claim because
his jury trial waiver claim could not be conclusively deemed to be meritless without an
evidentiary hearing. The State responds that Hutcherson failed to proffer any facts, names
of witnesses, or any other source of evidence to demonstrate that he was entitled to relief.
The State points out that the record supports the district court's finding that Hutcherson
was satisfied with the representation provided by his counsel and freely and voluntarily
waived his right to a jury trial.


       To establish ineffective assistance of his trial counsel, Hutcherson was required to
show that his trial counsel provided deficient representation and that this deficient
representation prejudiced his rights and affected the outcome below. See Mundy, 307
Kan. at 296 (citing Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d
674 [1984]). When reviewing whether representation was deficient, there is a strong
presumption that counsel's conduct fell within the broad range of reasonable professional
assistance. State v. Kelly, 298 Kan. 965, 970, 318 P.3d 987 (2014). In other words, the
errors must be so serious that counsel's performance was less than that guaranteed by the
Sixth Amendment. Mundy, 307 Kan. at 296. To establish prejudice, a movant must show
a reasonable probability that, but for counsel's deficient performance, the outcome of the
proceeding would have been different. Miller v. State, 298 Kan. 921, 934, 318 P.3d 155
(2014). Stated differently, the required showing of prejudice requires a showing that
counsel's errors were so serious they deprived the defendant of a fair trial. Mundy, 307
Kan. at 296.


       Hutcherson has not made either required showing. As the district court noted in its
order, before Hutcherson waived his right to a jury trial, the judge specifically asked
whether he was satisfied with his counsel's representation. While Hutcherson stated he
was displeased that his attorney had not come to see him, he noted that he was satisfied


                                              6
with his services. Hutcherson further stated that he understood the nature of the right he
was giving up and that he was entering his waiver freely and voluntarily. There is nothing
in the record to support Hutcherson's claim that his attorney's performance was deficient
due to a failure to confer or consult with him. And even if his attorney's performance
were considered deficient, Hutcherson has not provided—and the record does not
reflect—any probability that the outcome of his trial would have been different if the case
had been tried to a jury instead of a judge. He has not provided any factual basis to
support his conclusory claims.


       In the absence of any evidence in the hearing transcript to support Hutcherson's
claim, he needed to set forth an evidentiary basis to support his motion—naming
witnesses or other sources of evidence demonstrating his entitlement to relief. He did not
do so. On appeal, Hutcherson admits that the facts supporting his claim were "meagerly
presented" in his motion, yet he states his assertions—if true—would be sufficient to
require an evidentiary hearing. But all Hutcherson's motion alleged was that his attorney
"failed to confer or consult with petitioner about the facts and evidence involved in his
[sic] in a sufficient manner or not at all and, consequently, his decision to waive his right
to a jury . . . was not knowingly, intelligently and understandingly made." The record
does not support this assertion.


       Hutcherson agreed during the pretrial conference that he had discussed the matter
with his counsel and freely and voluntarily decided to waive his right to a jury trial. The
motion, files, and records conclusively establish that Hutcherson is not entitled to relief
on his claim that he waived his right to a jury trial due to ineffective assistance of
counsel. The district court did not err in summarily denying this claim.




                                              7
   2. Hutcherson did not raise the waiver of his right to confrontation before the district
      court and provides no argument or explanation as to why this court should
      consider the claims for the first time on appeal.

       Hutcherson focuses the bulk of his argument on appeal on his second argument—
the alleged waiver of his right to confrontation resulting from his stipulation to the
foundation of a KBI report. The State notes that Hutcherson did not raise this issue in his
motion or at any time before the district court. Hutcherson does not address preservation
in his brief and did not submit a reply brief explaining why this argument can be raised
for the first time in this appeal.


       As a general rule, an issue not previously raised—during trial proceedings, on
direct appeal, or during district court proceedings on a K.S.A. 60-1507 motion—cannot
be considered for the first time on appeal. Trotter v. State, 288 Kan. 112, 124, 200 P.3d
1236 (2009). Similarly, this court will not consider constitutional issues raised for the
first time on appeal unless one of three recognized exceptions applies: (1) The newly
asserted claim involves only a question of law arising on proved or admitted facts and is
finally determinative of the case; (2) the claim's consideration is necessary to serve the
ends of justice or to prevent the denial of fundamental rights; or (3) the district court's
judgment may be upheld on appeal despite its reliance on the wrong ground or reason for
its decision. 288 Kan. at 125; see State v. Dunn, 304 Kan. 773, 819, 375 P.3d 332 (2016).


       A party raising an unpreserved issue must invoke one of these exceptions and
provide a persuasive argument as to why this court should consider it for the first time on
appeal. See State v. Godfrey, 301 Kan. 1041, 1043, 350 P.3d 1068 (2015); see also
Supreme Court Rule 183(c)(3) (2019 Kan. S. Ct. R. 229) ("Mere trial errors must be
corrected by direct appeal, but trial errors affecting constitutional rights may be raised
even though the error could have been raised on appeal, provided exceptional
circumstances excuse the failure to appeal." [Emphasis added.]). Kansas Supreme Court
Rule 6.02(a)(5) (2019 Kan. S. Ct. R. 35) similarly directs: "If the issue was not raised


                                               8
below, there must be an explanation why the issue is properly before the court."
(Emphasis added.)


       Our Supreme Court has warned that litigants must comply with Rule 6.02(a)(5)
"or risk a ruling that an issue improperly briefed will be deemed waived or abandoned."
State v. Williams, 298 Kan. 1075, 1085, 319 P.3d 528 (2014) (stating a party fails to
comply with Rule 6.02(a)(5) when the brief does not explain why the argument can be
raised for the first time on appeal). The court has directed that Rule 6.02(a)(5) is to be
strictly enforced. Godfrey, 301 Kan. at 1044. Thus, Godfrey declined to reach the merits
of the defendant's claim because the defendant's brief was "woefully insufficient" and
merely argued the merits—proffering no reason why the court should have considered the
argument for the first time on appeal. 301 Kan. at 1044. In finding the claim was not
appropriately preserved, the court cautioned that "Rule 6.02(a)(5) means what it says and
is ignored at a litigant's own peril. . . . We are now sufficiently post-Williams that
litigants have no excuse for noncompliance with Rule 6.02(a)(5)." Godfrey, 301 Kan. at
1043-44.


       Hutcherson does not acknowledge his failure to preserve his confrontation claim,
explain why it was not raised below, or provide any basis for this court to consider it for
the first time in this appeal. He makes no attempt to argue any of the recognized
exceptions that could permit this court to consider his unpreserved claim. In his statement
of the issue on appeal, Hutcherson merely states the district court erred in summarily
denying his claim that he "waived his right to a jury trial and (presumably) his right to
confrontation." (Emphasis added.) Hutcherson's original K.S.A. 60-1507 motion claimed:


       "[T]rial counsel . . . failed to confer or consult with petitioner about the facts and
       evidence involved in his [sic] in a sufficient manner or not at all and, consequently, his
       decision to waive his right to a jury . . . and to forego some of his other fundamental
       constitutional rights was not knowingly, intelligently and understandingly made."
       (Emphasis added.)


                                                      9
       It is under the banner of "other fundamental constitutional rights" that Hutcherson
couches his confrontation argument—and presumably why he included "(presumably)" in
his issue statement. Yet Hutcherson made no effort to correct the district court when it
remarked, after addressing his jury-trial claim, that "[n]o other 'fundamental
constitutional rights' are identified in the petition filed herein."


       The nature of Hutcherson's arguments in his brief underscores the importance of
allowing district courts the first opportunity to consider a movant's claims under K.S.A.
60-1507. We are a court of review, and preservation is the only sure way to develop a
record that permits meaningful appellate review. A movant should not be allowed to
remain silent before a district court, only to argue on appeal extensive factual
allegations—asserting in hindsight that the court should have held an evidentiary hearing
on a claim never raised before the filing of an appellate brief. Hutcherson neither
preserved this argument before the district court nor complied with Rule 6.05(a)(5). We
find his confrontation argument is not properly before this court.


       The motion, files, and records in this case conclusively establish that Hutcherson
is not entitled to relief on his jury-trial claim. And Hutcherson has failed to offer any
reason why this court can reach his argument regarding the waiver of his right to
confrontation. Accordingly, we affirm the district court's summary denial of Hutcherson's
K.S.A. 60-1507 motion.


       Affirmed.




                                               10
