              IN THE SUPREME COURT OF THE STATE OF KANSAS

                                        No. 108,714

                                    RAYMOND FULLER,
                                       Appellant,

                                              v.

                                     STATE OF KANSAS,
                                         Appellee.


                              SYLLABUS BY THE COURT


1.
       There are three categories of ineffective assistance of counsel claims. The first
involves an allegation that a criminal defense attorney's performance was so deficient that
the defendant was denied a fair trial. The second category applies when the assistance of
counsel was denied entirely or denied at a critical stage of the proceeding. The third
category includes situations in which the attorney actively represented conflicting
interests. Claims in the first category follow the general rule and require a defendant to
show constitutionally deficient performance by his or her attorney under the totality of
the circumstances and prejudice. A court presumes prejudice for claims in the second
category. For claims in the third category, the type of alleged conflict of interest dictates
what a defendant must show in addition to the existence of the conflict itself. In the first
subcategory of such claims, which involve multiple concurrent representations of
codefendants with antagonistic interests, reversal is automatic. In the second subcategory,
also involving certain instances of concurrent representation, it is sufficient if a defendant
shows an adverse effect on the adequacy of counsel's performance. In the third
subcategory, involving a conflict between the defendant and a former client or between



                                              1
the defendant and the attorney, no standard of prejudice or adverse effect has previously
been established by the United States Supreme Court.


2.
       In this case, defense counsel's cross-examination-style questions of his client
during the client's direct testimony at trial, when considered in context, were the product
of a considered trial strategy and not an example of constitutionally deficient
performance.


3.
       In this case, defense counsel's cross-examination-style questions of his client
during the client's direct testimony at trial, when considered in context, did not transform
defense counsel into a second prosecutor, wholly depriving defendant of representation at
a critical stage of the proceedings.


4.
       The Kansas appellate courts construe K.S.A. 60-2103(b) to assure justice in every
proceeding, but there is a substantive minimum below which a notice of appeal cannot
fall and still support jurisdiction. Under the circumstances of this case, the Court of
Appeals had and the Supreme Court has appellate jurisdiction to consider a district court
ruling referenced in a later written order explicitly challenged in the defendant's notice of
appeal.


5.
       In this case, defense counsel's failure to call a witness to impugn the character of
the victim of the alleged sex crimes was not an example of constitutionally deficient
performance. The testimony would have been irrelevant and inadmissible.


                                              2
6.
        Under the unusual circumstances of this case—where a conflict of interest
between the defendant and his criminal defense counsel clearly developed in the course
of a hearing on the defendant's pro se motion for new trial and the district judge failed to
react to it by appointing conflict-free counsel to assist the defendant—we must remand
certain issues for rehearing with conflict-free counsel. The issues are limited to those in
the defendant's pro se motion and those he raised by what was effectively an oral
amendment at the hearing that have not already been disposed of adversely to him in
subsequent proceedings under K.S.A. 60-1507.


        Review of the judgment of the Court of Appeals in an unpublished opinion filed November 22,
2013. Appeal from Sedgwick District Court; ANTHONY J. POWELL, judge. Opinion filed December 23,
2015. Judgment of the Court of Appeals affirming the district court is affirmed in part and reversed in
part. Judgment of the district court is affirmed in part, reversed in part, and remanded with directions.


        Krystle M.S. Dalke, of Law Office of Michael P. Whalen, of Wichita, argued the cause, and
Michael P. Whalen, of the same office, was with her on the brief 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 brief for appellee.


The opinion of the court was delivered by


        BEIER, J.: Defendant Raymond Fuller challenges the Court of Appeals' decision
affirming the district court judge's denial of his K.S.A. 60-1507 motion alleging
ineffective assistance of counsel. Fuller argues that he was blindsided by his lawyer's
aggressive questioning of him during his trial for rape, aggravated sexual battery, and
aggravated burglary. He also challenges his lawyer's failure to call a witness who would



                                                      3
have testified about the victim's flirtatious nature, and he asserts his lawyer had a conflict
of interest at a hearing on a motion for new trial.


       We recognize the conflict that existed between Fuller and his lawyer at the hearing
on the motion for new trial and we fashion an appropriate remedy. We reject Fuller's
other appellate arguments.


                           FACTUAL AND PROCEDURAL BACKGROUND


       The charges against Fuller were based on allegations made by his next-door
neighbor, C.K., after an encounter in C.K.'s home. Fuller admitted to sexual contact with
C.K., but he defended on the basis that the contact was consensual.


       The Court of Appeals panel summarized the conflicting trial testimony as follows:


               "Fuller and the victim, C.K., were neighbors who had sporadic contact prior to
       the incident which resulted in charges against Fuller. . . . [T]he day prior to the incident,
       C.K. helped Fuller jump-start his vehicle. . . .


               ....


               "C.K. testified that at the time Fuller rang her doorbell, she was in her bathrobe
       and talking on the phone with her friend Brenon Odle. Her two children, ages 3 years and
       22 months, were at home with her. C.K. told Odle to call her back in a few minutes and
       then stuck her head outside the door and told Fuller to 'give [her] a minute.' C.K. went to
       her bedroom to put some clothes on. Without C.K.'s permission, Fuller entered the house
       and walked into her bedroom doorway and told C.K., 'I like what I'm looking at.' Startled
       and caught off-guard, C.K. asked Fuller to give her 'just a minute' and directed him to
       wait in the living room. Fuller complied.



                                                     4
               "C.K. finished dressing and went to the living room, where she seated herself
       f[a]rthest from Fuller on the couch. C.K.'s children were also with them in the living
       room. Fuller told C.K. that he had some photographs on his cell phone that he wanted to
       show her. C.K. leaned across the couch and saw that the photographs were of Fuller's
       penis. As she leaned over, Fuller grabbed C.K.'s hair and pulled her head toward[] his
       lap. He then pulled C.K.'s shirt down, exposing her chest, and grabbed her breast. After
       removing his hand from her chest, Fuller put his hand inside C.K.'s shorts and placed his
       fingers inside her vagina.


               "The encounter ended when the phone rang and C.K. answered it. Although it
       was Odle calling her back, C.K. told Fuller that her husband was on the phone, and that
       her husband knew Fuller was there and Fuller should 'get the hell out of here.' Fuller left,
       but only after telling C.K. that he would kill her if she told anyone what happened. C.K.
       then told Odle what had happened.


               ....


               "Fuller testified that after he rang the doorbell, C.K. smiled and invited him in,
       and the two made 'small talk' as they walked to C.K.'s bedroom. Once in the bedroom,
       C.K. dropped her bathrobe and exposed herself to Fuller. Fuller retreated to the couch
       because the presence of C.K.'s children in the bedroom made him feel 'weird.' C.K.
       joined him on the couch and[,] after they talked briefly, C.K. exposed her vagina to him.
       Fuller admitted he placed his finger in C.K.'s vagina, but testified that C.K. smiled after
       he did so. Fuller then began performing oral sex on C.K. but stopped because the children
       were nearby. C.K. told Fuller she liked having her hair pulled, so Fuller playfully pulled
       her hair. Fuller agreed that the encounter ended when C.K.'s phone rang." State v. Fuller,
       No. 100,026, 2009 WL 4639506, at *1-2 (Kan. App. 2009) (unpublished opinion).


       After Fuller's jury convicted him as charged, his lawyer, Quentin Pittman, filed a
motion for new trial and a motion for judgment of acquittal, both attacking the
sufficiency of the evidence. Fuller also filed a pro se motion, which the district judge
construed as a motion for new trial, in which Fuller raised issues related to members of
                                                     5
his jury. At the hearing on the motions, Pittman described the trial as "extremely clean."
The district judge ruled that sufficient evidence supported the convictions and denied the
two motions Pittman had filed.


       The district judge then turned to Fuller's motion. Pittman suggested that Fuller
should argue his motion because "we kind of get into a mine field." Fuller's oral
statement included issues beyond those in his written motion. He argued that his jury was
not impartial, that the State had violated an order in limine, and that Pittman had failed to
put on evidence in Fuller's defense. When the judge asked Pittman if he had anything to
add to Fuller's argument, Pittman said that he had "a slightly different take on those
issues." Pittman then defended his decisions about the evidence to put on at trial as
strategic calls properly within the province of defense counsel. Pittman also defended his
juror selections as strategic decisions and said he thought Fuller might "be mistaken in
his recollection of several things."


       Characterizing Fuller's arguments as allegations of ineffective assistance of
counsel, the district judge concluded that—"for the reasons expressed by Mr. Pittman"—
the challenged decisions qualified as trial strategy and did not support a finding of
ineffective assistance of counsel.


       On direct appeal before the Court of Appeals, Fuller asserted that "his trial counsel
was so grossly ineffective that he entirely failed to subject the prosecution's case to
meaningful adversarial testing," Fuller, 2009 WL 4639506 at *1, supporting this
assertion with specific arguments different from those he raised before the district court.
In particular, Fuller attacked Pittman's tone during Fuller's direct examination at trial and
Pittman's failure to advocate for Fuller at his motion for new trial hearing. 2009 WL
4639506, at *5. A panel of the Court of Appeals declined to address the allegations
because the record on appeal was not sufficiently developed, but it noted that "some of
                                              6
Fuller's allegations, viewed from a cold record, are troubling." 2009 WL 4639506, at *5.
The panel said that Fuller could challenge Pittman's effectiveness through a later motion
under K.S.A. 60-1507.


          As contemplated by the panel, Fuller filed a K.S.A. 60-1507 motion. In it he
argued that Pittman had been ineffective: (1) by the way he conducted his direct
examination of Fuller, (2) by failing to object to a jury instruction, (3) by failing to
request a lesser included offense instruction, (4) by failing to argue in support of
Pittman's motion for new trial, (5) by arguing against Fuller's pro se motion for new trial,
(6) by failing to object to the prosecutor's cross-examination of Fuller, (7) by failing to
strike two jurors, (8) by failing to discredit C.K., and (9) by failing to subpoena a witness
who could have testified about C.K.'s flirtatious nature.


          The district judge held a preliminary, nonevidentiary hearing on the motion. At the
hearing, counsel for Fuller argued the motion and requested a full evidentiary hearing on
the issues raised. The district judge denied relief on all but three of Fuller's allegations.
The district judge ordered an evidentiary hearing on the claims that (1) Pittman was
ineffective in his direct examination; (2) Pittman was ineffective in his advocacy at the
motion for new trial hearing; and (3) Pittman was ineffective for failing to challenge two
jurors.


          At the evidentiary hearing, counsel for Fuller questioned Pittman about his use of
cross-examination-style questions during Fuller's direct examination. Fuller had argued in
his motion and had testified at the 1507 hearing that Pittman's "unorthodox" questions
left Fuller confused, insinuated that he was guilty, destroyed his credibility, and were
contrary to Fuller's theory of defense, i.e., that the sexual contact was consensual. Pittman
testified that he had provided Fuller with a list of questions to review before Fuller
testified and that the style of the questions was not reflected on the list. Pittman also
                                               7
conceded that he had not specifically prepared Fuller for the tone of the questions asked.
When counsel for Fuller read questions from the trial transcript, Pittman agreed that he
had asked the questions that were read.


       Those questions included: "You are going over because you were going to have
sex with her one way or the other, correct?"; "That's when you grab her?"; "That's when
you say I want to fuck you?"; "Then you attack her?"; "That's when you grab her and
attack her, right?"; "That's when you attack her?"; "That's when you jammed your finger
into her vagina?"; "That's when you rip her shorts off?"; "[Y]ou then attack her, pull her
hair and put your finger in her vaginal area, right?"; "You grab her by the back of the
head and stick it towards your crotch?"; "That's when you said you tell anyone and I will
fucking kill you?"; "Because you didn't tell the exact same story throughout that you
eventually got to, you are a liar right?"; "I mean you raped her[?]" Pittman concluded his
redirect examination with "And that's because you are a liar and rapist?"


       Pittman testified that he asked these questions in order to "take away the sting of
the accusation." He also said that he believed it was important for Fuller to appear
credible, and, in an effort to achieve that aim, Pittman wanted Fuller to come across as
"indignant, emotional." This reaction would have contrasted, Pittman said, with the
appearance of C.K's testimony, which Pittman described as "blasé and not emotional."
Pittman further testified that he wanted to "get out in front of the issue and do it in a
controlled manner." Had Fuller not handled the questioning as Pittman intended, Pittman
explained, he would have stopped using the tactic. Pittman also testified that, in his view,
Fuller had done well on the stand and had connected with the jury.


       Turning to Pittman's performance at the motion for new trial hearing, Pittman
described the hearing as "contentious," but he did not specifically remember arguing
Fuller's pro se motion.
                                               8
       Fuller's third claim subject to the district court evidentiary hearing—that Pittman
was ineffective for failing to strike two jurors—was not appealed and does not warrant
our discussion.


       In an order dated May 17, 2012, and filed June 8, 2012, the district judge denied
Fuller relief. The district judge concluded that Pittman's performance was reasonable and
that the decision to use cross-examination-style questions was strategic. The district judge
noted that "the technique worked (as demonstrated by trial counsel's continued use of it
and [Fuller's] ability to answer the questions)." According to the district judge, the
questioning softened the impact of the prosecutor's cross-examination and elicited
"passionate denials" from Fuller.


       As for Pittman's performance at the motion for new trial hearing, the district judge
recognized Pittman's candor and ruled that his performance was reasonable. The district
judge explained that Pittman had "truthfully explained what had occurred and why he did
what he did." The district judge also concluded that Fuller was unable to show prejudice
because there was no factual or legal merit to the issues he raised. The district judge did
not discuss any alleged conflict of interest.


       Fuller filed a notice of appeal from "the judgment entered May 17, 2012, and filed
with the Court on June 08, 2012, denying his [motion] for relief under K.S.A. 60-1507."
In his brief to the Court of Appeals, he identified three appellate challenges: (1) Pittman
was ineffective on direct examination; (2) Fuller was denied conflict-free representation
at his motion for new trial hearing; and (3) Pittman was ineffective for failing to call a
witness who would have testified about the victim "being a flirt and a tease."




                                                9
         A panel of our Court of Appeals affirmed. The panel agreed with the district
judge's characterization of Pittman's style of questioning on direct examination as a
reasonable strategy, given Fuller's consent defense.


         "Fuller's decision to take the stand and paint a picture of consensual sexual activity would
         have clearly opened him up to the same questioning by the prosecutor on cross-
         examination. We do not find it unreasonable strategy to try and soften the effect of
         Fuller's testimony while in the control of his own attorney, who testified he would have
         immediately stopped if he felt the aggressive questioning was not working and caused
         Fuller to become upset or flustered. The prosecutor would not have stopped." Fuller v.
         State, No. 108,714, 2013 WL 6164528, at *6 (Kan. App. 2013) (unpublished opinion).


         On the issue of conflict-free counsel, the panel held that Pittman never gave up his
role as Fuller's advocate at the motion for new trial hearing. The panel also ultimately
concluded that Fuller was unable to show prejudice, notwithstanding its recognition that,
as Fuller's trial counsel, "Pittman was obligated to advocate and prove his own
professional ineffectiveness by addressing the claims for a new trial." 2013 WL 6164528,
at *8.


         Finally, the panel held that Fuller's claim of ineffectiveness based on Pittman's
failure to call a witness to discredit C.K. was not properly before the court. The district
judge had decided the issue against Fuller in the order dealing with the issues for which
there was no evidentiary hearing, and Fuller's notice of appeal did not identify that order.
In the alternative, assuming appellate jurisdiction to be sufficient, the panel concluded
that Pittman's decision not to call the witness "was clearly a tactical decision and even if
erroneous would not have changed the outcome of the trial." 2013 WL 6164528, at *13.


         Fuller petitioned this court for review, raising the same three claims of ineffective
assistance of counsel that he raised before the Court of Appeals.
                                                     10
                                              DISCUSSION


       "Ineffective assistance of counsel claims—whether based on deficient
performance or conflict of interest—involve mixed questions of fact and law." State v.
Cheatham, 296 Kan. 417, 430, 292 P.3d 318 (2013). When such claims are brought under
K.S.A. 60-1507 and the district court conducts a full evidentiary hearing on them, we
review the district court's factual findings for substantial competent evidence and we
determine whether the factual findings support the district court's conclusions of law.
State v. Adams, 297 Kan. 665, 669, 304 P.3d 311 (2013). We apply a de novo standard to
the conclusions of law. 297 Kan. at 669. For ineffective assistance of counsel claims on
which there is no evidentiary hearing in the district court, we review de novo the district
court's determination that relief should be denied on the motion, files, and records of the
case. Sola-Morales v. State, 300 Kan. 875, 881, 335 P.3d 1162 (2014).


       The burden of proof in establishing ineffective assistance of counsel is on the
K.S.A. 60-1507 movant. State v. Jackson, 255 Kan. 455, 463, 874 P.2d 1138 (1994).


       Ineffective assistance of counsel claims inhabit three categories we recently
summarized in Sola-Morales, 300 Kan. at 882-84. We begin our analysis of this case
with that summary:


               "The Sixth Amendment to the United States Constitution guarantees that '[i]n all
       criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of
       Counsel for his defence.' This right to counsel is applicable to state proceedings under the
       Fourteenth Amendment. Miller v. State, 298 Kan. 921, 929, 318 P.3d 155 (2014). This
       guarantee includes the right to more than the mere presence of counsel[. It] also
       [includes] the effective assistance of counsel. Strickland v. Washington, 466 U.S. 668,
       687, 104 S. Ct. 2052, 80 L. Ed. 2d 674, reh. denied 467 U.S. 1267, 104 S. Ct. 3562, 82 L.

                                                    11
Ed. 2d 864 (1984); see also Chamberlain v. State, 236 Kan. 650, 656-57, 694 P.2d 468
(1985) (adopting Strickland). We have acknowledged that '[t]he purpose of the effective
assistance guarantee "is simply to ensure that criminal defendants receive a fair trial."'
State v. Galaviz, 296 Kan. 168, 174, 291 P.3d 62 (2012) (quoting Strickland, 466 U.S. at
689).


        "We have interpreted United States Supreme Court caselaw as distinguishing
among three categories of ineffective assistance of counsel claims:


        "'The first category includes cases in which it is claimed that the
        attorney's performance was so deficient that the defendant was denied a
        fair trial. The second category applies when the assistance of counsel was
        denied entirely or denied at a critical stage of the proceeding. The third
        category includes situations where the defendant's attorney "actively
        represented conflicting interests."' Galaviz, 296 Kan. at 181 (quoting
        Mickens v. Taylor, 535 U.S. 162, 166, 122 S. Ct. 1237, 152 L. Ed. 2d
        291, reh. denied 535 U.S. 1074, 122 S. Ct. 1954, 152 L. Ed. 2d 856
        [2002]).


        "Claims of ineffective assistance of counsel for deficient performance under the
first category are the 'general rule' and controlled by Strickland. Galaviz, 296 Kan. at 181
(citing Mickens, 535 U.S. at 166). To prevail on such a claim, a criminal defendant must
establish (1) 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. State v. Bledsoe, 283
Kan. 81, 90, 150 P.3d 868 (2007); see Strickland, 466 U.S. at 687.


        "The second category of claims falls under an exception to the general rule
known as the Cronic exception. It applies only when a defendant is completely denied the
assistance of counsel or denied counsel 'at a critical stage of a proceeding.' Galaviz, 296
Kan. at 181 (citing United States v. Cronic, 466 U.S. 648, 658-59, 104 S. Ct. 2039, 80 L.
Ed. 2d 657 [1984]). Under these circumstances, a court may presume the defendant was
prejudiced, i.e., he or she is 'spared . . . the need of showing probable effect upon the

                                             12
outcome.' 296 Kan. at 181 (quoting Mickens, 535 U.S. at 166); see State v. Stovall, 298
Kan. 362, 375, 312 P.3d 1271 (2013). . . .


        "The third category of claims involves attorney conflicts of interest. The right to
counsel extends a duty of loyalty from counsel to the client so '[a] defendant in a criminal
trial must have "'representation that is free from conflicts of interest.'" [Citations
omitted.]' State v. Bowen, 299 Kan. 339, 343, 323 P.3d 853 (2014). To prevail on such a
claim, the defendant must first establish his or her attorney '"actively represented
conflicting interests."' Galaviz, 296 Kan. at 181 (quoting Mickens, 535 U.S. at 166).
Beyond this starting point, the type of alleged conflict dictates what the defendant must
additionally establish to prevail. The United States Supreme Court has recognized three
subcategories of conflict of interest claims: (1) the automatic reversal exception, (2) the
adverse effect exception, and (3) what we have labeled the 'Mickens reservation.' See 296
Kan. at 181-85 (discussing the three Mickens subcategories).


        "The first subcategory of conflict of interest claims, i.e., the automatic reversal
exception, is relevant only in cases of 'multiple concurrent representation,' which is when
defense counsel 'is simultaneously representing codefendants with antagonistic interests
in the same proceeding.' Stovall, 298 Kan. at 376 (citing Galaviz, 296 Kan. at 183). This
exception additionally requires an objection to the representations before or during the
proceedings and also a failure of the district court to inquire and determine there is no
conflict. Galaviz, 296 Kan. at 183. Under this exception, as with the Cronic exception,
reversal is automatic—unless the district court determines there is no conflict of interest.
296 Kan. at 183; see State v. Gleason, 277 Kan. 624, 650, 88 P.3d 218 (2004).


        "While the second subcategory, i.e., the adverse effect exception, also requires an
attorney conflict of interest through concurrent representation of codefendants, it is
dissimilar from the automatic reversal exception because it arises when no objection to
the conflict is lodged before or during the proceedings. Stovall, 298 Kan. at 376 (citing
Galaviz, 296 Kan. at 183). And under this particular exception, '"a defendant must
demonstrate that 'a conflict of interest actually affected the adequacy of his
representation.'"' (Emphasis added.) Galaviz, 296 Kan. at 183 (citing Mickens, 535 U.S.
at 168); see Gleason, 277 Kan. at 650. This standard is lower than Strickland's, which

                                              13
       imposes a burden on defendant to show actual prejudice by the attorney's performance,
       i.e., 'probable effect upon the outcome of the trial.' 296 Kan. at 184 (citing Mickens, 535
       U.S. at 174).


                "The third subcategory, i.e., the Mickens reservation, is relevant where a conflict
       is '"rooted in counsel's obligations to former clients"' or '"counsel's personal or financial
       interests."' Galaviz, 296 Kan. at 184 (quoting Mickens, 535 U.S. at 174). We have
       referred to this subcategory as the Mickens reservation because the Supreme Court did
       not articulate what additional burden, e.g., prejudice or adverse effect, a defendant must
       satisfy before receiving relief based on such conflicts of interest. Mickens, 535 U.S. at
       176; Galaviz, 296 Kan. at 184-86; see State v. Cheatham, 296 Kan. 417, 449-50, 292
       P.3d 318 (2013)." Sola-Morales, 300 Kan. at 882-84.


       We have taken the liberty of reordering Fuller's three claims to enhance clarity of
this opinion.


Defense Counsel's Direct Examination of Fuller


       Fuller argues that Pittman's cross-examination-style questions on direct
examination constituted ineffective assistance of counsel under two theories. First, Fuller
argues that Pittman's performance on direct examination was deficient, i.e., he advances
an argument under the first category of ineffective assistance of counsel. Second, Fuller
alleges that Pittman created a conflict of interest during direct examination. Fuller relies
on Cronic, i.e., the second category of ineffective assistance, but he also argues prejudice
and speaks in terms of the third subcategory of the third category, i.e., the Mickens
reservation.


       The district court denied relief on this claim after conducting an evidentiary
hearing. Accordingly, we review the district court's factual findings for substantial
competent evidence and determine whether the findings support its conclusions of law.

                                                     14
Adams, 297 Kan. at 665, 669. We apply a de novo standard to the conclusions of law. 297
Kan. at 669.


Deficient Performance


       In determining whether defense counsel's performance was deficient, a K.S.A. 60-
1507 movant must show that


       "'counsel's representation fell below an objective standard of reasonableness. Judicial
       scrutiny of counsel's performance must be highly deferential, and a fair assessment of
       attorney performance requires that every effort be made to eliminate the distorting effects
       of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to
       evaluate the conduct from counsel's perspective at the time. A court must indulge a strong
       presumption that counsel's conduct falls within the wide range of reasonable professional
       assistance.'" State v. Betancourt, 301 Kan. 282, 306, 342 P.3d 916 (2015).


       Both the district court and the Court of Appeals characterized Pittman's line of
questioning as trial strategy. Citing Flynn v. State, 281 Kan. 1154, Syl. ¶ 5, 136 P.3d 909
(2006), the panel recognized this court's view that "strategic decisions made by trial
counsel based on a thorough investigation are virtually unchallengeable." Fuller, 2013
WL 6164528, at *5; see Strickland v. Washington, 466 U.S. 668, 690, 104 S. Ct. 2052, 80
L. Ed. 2d 674 (1984).


       Fuller appears to concede that Pittman's questioning was the result of a strategic
choice. He relies on statements by this court that "[m]ere invocation of the word 'strategy'
does not insulate the performance of a criminal defendant's lawyer from constitutional
criticism." Wilkins v. State, 286 Kan. 971, 982, 190 P.3d 957 (2008); see Sola-Morales,
300 Kan. at 887. Regardless of any strategic motivation, Fuller argues that Pittman's
performance was deficient based on the type of questions Pittman asked, his failure to
                                                   15
prepare Fuller for those questions, and Pittman's failure to explain to the jury "why
counsel was indicting his own client." Fuller contends that Pittman "knowingly and
purposefully misled" him about the questions Pittman planned to ask, that Pittman called
him a liar and a rapist repeatedly in front of the jury in a "negative and reprehensible"
attack, and argues that he was left to present his defense without an advocate because
Pittman "essentially joined forces with the prosecutor during his direct examination."
Fuller further contends that it was "improper and unethical" for Pittman to comment on
Fuller's credibility.


       Before the Court of Appeals, the State argued Pittman's questions to Fuller needed
to be viewed in context. It noted that Pittman's direct examination of Fuller consisted of
36 pages of trial transcript. The State informed the panel that Pittman had asked
numerous open-ended questions that allowed Fuller to tell his version of events to the
jury. In addition, the State pointed to the open-ended questions that Pittman had asked
when concluding his direct examination, which had allowed Fuller to reiterate that the
sexual contact was consensual. The State acknowledged that Pittman's "pointed
questions" appeared "unconventional if considered in a vacuum," but it asserted that,
when viewed in context, "it is evident that counsel was pursuing a strategic course of
action that allowed movant to directly deny the charges."


       The State countered Fuller's claim that he had been "blind-sided" by Pittman's
questions by directing the panel's attention to Pittman's testimony at the evidentiary
hearing. Pittman testified that he had told Fuller he would ask him "point blank" if he had
sex with C.K. and "[D]id you rape her, et cetera." The State also pointed to the list of
questions Pittman had provided to Fuller at pretrial and compared them to many of the
questions asked. The State also pointed to Fuller's testimony at the evidentiary hearing, in
which Fuller acknowledged that Pittman had never told him he would ask questions only
from the list.
                                             16
       To the extent Fuller asserts that the jury could have been confused by Pittman's
questioning, the State noted that both Pittman's opening statement and closing argument
included statements that the sexual contact was consensual. Under these circumstances,
according to the State, "there was no need for counsel to take the unusual step of
expressly explaining his [direct examination] strategy to the jury." The State specifically
noted that Pittman's follow-up, open-ended questions allowed Fuller to explain his
denials more fully, giving a "clear signal" of Fuller's position to the jury.


       Considering the strong presumption that Pittman's conduct fell within the wide
range of reasonable professional assistance, the State persuades us.


       Generally "'[i]t is within the province of a lawyer to decide what witnesses to call,
whether and how to conduct cross-examination, and other strategic and tactical
decisions.'" Sola-Morales, 300 Kan. at 887. Among these strategic decisions is how to
phrase and present questions to a client on direct examination. In this case, it appears
Pittman elected to employ heavy sarcasm as a rhetorical device. Although we may differ
on the likely effectiveness of his choices, Pittman's performance did not fall below an
objective standard of reasonableness in this regard. As the State insists, context matters,
and it demonstrates here that Pittman exceeded the Constitution's minimum standard.
Pittman discharged his duty to prepare himself and Fuller for trial. State v. Orr, 262 Kan.
312, 333, 940 P.2d 42 (1997). He fully presented Fuller's consent defense in his opening
statement and in closing argument. In the meantime, his direct examination of Fuller was
designed to elicit and did elicit strong denials from his client. Pittman used the pointed
questions as signposts throughout the direct examination, following up with open-ended
questions, that allowed Fuller to explain. Contrary to Fuller's claim that he faced two
prosecutors, we are certain that a prosecutor would not have been so magnanimous.
Similarly, as the panel noted, had Fuller appeared upset or flustered, Pittman testified at
                                              17
the evidentiary hearing that he would have changed course. Again, as the Court of
Appeals panel noted, a "prosecutor would not have stopped." Fuller, 2013 WL 6164528,
at *6.


         Fuller's final deficiency allegation that Pittman's "attack of his own client [was]
negative and reprehensible, [and] it was a violation of trial counsel's ethical duties and[,]
therefore, deficient" under Kansas Rule of Professional Conduct 3.4(e) (2015 Kan. Ct. R.
Annot. 609) (lawyer shall not comment on credibility of a witness), is not supported by
the record. Pittman's questions on this point were setups for Fuller to justify
inconsistencies in statements Fuller had made to the police. On redirect examination,
Pittman asked Fuller a series of questions about the circumstances surrounding Fuller's
interrogation, which suggested that the interrogation was an uncomfortable experience.


         In summary, Pittman consistently advocated for the innocence of his client before
and throughout trial including during his direct examination of Fuller. Fuller has not
demonstrated that Pittman's direct examination of Fuller qualified as deficient
performance under Strickland.


Conflict of Interest


         Fuller also argues Pittman's direct examination of Fuller created a conflict of
interest.


         As our previous discussion demonstrates, there is no merit to this argument.
Pittman did not function as a second prosecutor during direct examination of Fuller.
There was no complete denial of counsel at a critical stage of the proceeding under
Cronic. Moreover, Fuller does not allege any personal conflict of interest under Mickens.


                                               18
Defense Counsel's Failure to Call Witness


       Fuller argues Pittman was constitutionally ineffective for failing to call a witness
who would testify that C.K. was a flirt and a tease. This ineffectiveness argument was
decided adversely to Fuller before the evidentiary hearing was held. The district judge
memorialized the decision in an order filed on November 22, 2011.


       The Court of Appeals held that it lacked jurisdiction to consider this issue, relying
on the language in Fuller's notice of appeal stating that he was appealing "from the
judgment entered May 17, 2012, and filed with the Court on June 08, 2012, denying his
[motion] for relief under K.S.A. 60-1507" and the failure of the notice to include a more
inclusive "catch-all phrase." Fuller, 2013 WL 6164528, at *10.


       Whether an appellate court has jurisdiction is a question of law subject to de novo
review. State v. Brown, 299 Kan. 1021, 1027, 327 P.3d 1002 (2014).


       This court recently explained:


               "K.S.A. 2011 Supp. 60-2103(b) provides that '[t]he notice of appeal shall specify
       the parties taking the appeal; shall designate the judgment or part thereof appealed from,
       and shall name the appellate court to which the appeal is taken.' We liberally construe
       K.S.A. 60-2103(b) '"to assure justice in every proceeding,"' State v. Wilkins, 269 Kan.
       256, 270, 7 P.3d 252 (2000) (quoting State v. Griffen, 241 Kan. 68, 70, 734 P.2d 1089
       [1987]); but there is still a substantive minimum below which a notice cannot fall and
       still support jurisdiction. See, e.g., State v. Coman, 294 Kan. 84, 90, 273 P.3d 701 (2012)
       (notice of appeal for sentence cannot be construed to support appeal of conviction); State
       v. G.W.A., 258 Kan. 703, 707, 906 P.2d 657 (1995) (State's appeal from judgment of
       acquittal insufficient to confer jurisdiction over question reserved); Gates v. Goodyear,
       37 Kan. App. 2d 623, 626-29, 155 P.3d 1196 (notice of appeal citing two specific district
       court rulings insufficient to confer jurisdiction over issues not addressed in those rulings),
                                                    19
          rev. denied 284 Kan. 945 (2007)." State v. Laurel, 299 Kan. 668, 673-74, 325 P.3d 1154
          (2014).


          The panel recognized that an appellate court should not be overly technical in its
construction of notices of appeal. See State v. Griffen, 241 Kan. 68, 69-70, 734 P.2d 1089
(1987). But it believed specificity of Fuller's notice of appeal language would have to be
"substantively rewritten" to allow it to reach the witness issue. Fuller, 2013 WL 6164528,
at *10.


          We disagree. The order explicitly covered by the notice—the one filed on June 8,
2012—is titled "Order Denying Movant Relief on his K.S.A. 60-1507 Motion."
Paragraph 3 of the order reads: "On September 30, 2011, a preliminary, nonevidentiary
hearing was held and this court summarily denied movant relief on his assertion of
cumulative error and several assertions of ineffective assistance of trial counsel. See
Order Granting Movant a Limited Evidentiary Hear[]ing on His K.S.A. 60-1507 Motion."
Although the witness issue was not expressly decided on June 8, 2012, the order filed that
day referenced the issue, and it was the June 8, 2012, order that denied movant relief on
his K.S.A. 60-1507 motion. Moreover, "'[t]here is no showing that the notice of appeal
misled the State or that anyone was surprised or prejudiced by the issues on appeal.'"
State v. Wilkins, 269 Kan. 256, 270, 7 P.3d 252 (2000) (quoting Griffen, 241 Kan. at 69-
70). The notice of appeal in this case was sufficient to confer jurisdiction on our appellate
courts to decide the witness issue.


          Because the district judge decided this issue before conducting an evidentiary
hearing, our review is de novo. Sola-Morales, 300 Kan. at 881.


          Fuller argues that Pittman was ineffective for failing to put on a witness that would
have testified that C.K. "was a flirt and a tease and . . . openly pursued married men at her

                                                    20
place of work to the point of other wives having heated arguments and confrontations
with her."


       The State argued at the preliminary, nonevidentiary hearing on Fuller's K.S.A. 60-
1507 motion that the witness' testimony would have been inadmissible under the rape
shield statute. See K.S.A. 21-3525. The district judge agreed with the State when he
announced his decision from the bench. In the judge's written order, however, he relied
on K.S.A. 60-446 to say the proposed testimony would have been improper character
evidence.


       Without explanation, the Court of Appeals panel stated that the rape shield statute
was inapplicable. Fuller, 2013 WL 6164528, at *11. The panel nevertheless held that the
evidence would have been inadmissible because, to the extent C.K.'s character was at
issue, the defense had put it in issue and could not be permitted to exploit that fact. The
panel ultimately concluded that Pittman's decision not to have the witness testify was
tactical and, even if error, did not prejudice Fuller because he had been able to testify that
C.K. was a flirt and a tease and Pittman had elicited similar testimony from a detective
during the detective's cross-examination.


       Even if the rape shield statute does not directly apply—an issue we need not
decide—the rationale behind the statute is instructive. "'The Kansas [rape shield] statute
merely serves to focus both judges' and attorneys' attention upon the fact that the victim's
prior sexual activity is not generally relevant, reminding them that a victim's lack of
chastity has no bearing whatsoever on her truthfulness and generally has no bearing on
the important issue of consent.'" State v. Atkinson, 276 Kan. 920, 926, 80 P.3d 1143
(2003) (quoting In re Nichols, 2 Kan. App. 2d 431, 433-34, 580 P.2d 1370, rev. denied
255 Kan. 844 [1978]); see State v. Jones, 168 Wash. 2d 713, 723, 230 P.3d 576 (2010)


                                              21
(rape shield statute "created to erase the misogynistic and antiquated notion that a
woman's past sexual behavior somehow affected her credibility").


       Fuller argues that the purpose of the evidence he contends should have been
offered at trial would have been to attack C.K.'s credibility and character. But testimony
indicating that C.K. was a flirt or a tease generally would not have made any material
contribution to a showing that she consented to sexual contact with Fuller on the day of
the alleged attack. The evidence was not relevant and was therefore inadmissible. State v.
Huddleston, 298 Kan. 941, 959, 318 P.3d 140 (2014).


       Fuller's argument that the State put C.K.'s character in issue when it inquired on
cross-examination about his testimony that C.K. had flirted with him is unsupported by
the record. It was the defense, and not the State, who attempted to put C.K.'s character in
issue. On cross-examination of an investigating detective, Pittman asked about statements
Fuller had made during his interrogation. Those statements indicated that Fuller's fiancé
and her aunt thought C.K. was "too flirty." During his direct examination, Fuller claimed
C.K. had been flirting with him. The State was permitted to cross-examine Fuller on this
topic, see State v. Davidson, 264 Kan. 44, 56, 954 P.2d 702 (1998) ("Questions asked on
cross-examination must be responsive to testimony given on direct examination, or
material or relevant thereto."), without opening the door to a defense attack on C.K.'s
character.


       Fuller has failed to demonstrate that Pittman was ineffective when he elected not
to proffer a witness who could have provided only irrelevant and inadmissible testimony.
Fuller's request that this particular facet of his ineffective assistance claim be remanded to
the district court to hold an evidentiary hearing must be denied.




                                             22
Defense Counsel's Failure to Argue Fuller's Pro Se Motion for New Trial


       As with the first issue discussed, this issue was decided adversely to Fuller after an
evidentiary hearing in the district court. Accordingly, our standard of review requires us
to determine whether substantial competent evidence supports the district court's factual
findings and whether those factual findings support its conclusions of law. We review the
district court's conclusions of law de novo. Adams, 297 Kan. at 669.


       Fuller argues that Pittman was ineffective at the motion for new trial hearing
because Pittman had a conflict of interest. In order for Pittman to defend himself against
Fuller's ineffective assistance of counsel allegations lodged at the hearing, Fuller
contends, Pittman was required to advocate against Fuller's pro se motion for new trial.
We agree that a conflict between Fuller and his counsel arose at the hearing.


       "'[W]here a constitutional right to counsel exists, there is a correlative right to
representation that is free from conflicts of interest.'" State v. Sharkey, 299 Kan. 87, 96,
322 P.3d 325 (2014) (quoting Wood v. Georgia, 450 U.S. 261, 271, 101 S. Ct. 1097, 67
L. Ed. 2d 220 [1981]). Fuller filed his pro se motion within the then 10-day limitation
period of K.S.A. 22-3501(1). The hearing on Fuller's pro se motion for new trial was a
critical stage of the proceeding, and he was entitled to conflict-free counsel. Sharkey, 299
Kan. at 96.


       In Sharkey, defendant Tyjuna M. Sharkey argued that "the trial judge erred in
denying his pro se motions for new trial—based on ineffective assistance of counsel—
without first appointing new conflict-free counsel to assist him in arguing the motions."
299 Kan. at 88-89. Sharkey focused his argument on the trial judge's failure to conduct an
inquiry or appoint new counsel, and he sought remand so that conflict-free counsel could
argue his motions for him.
                                              23
       This court found conflicted defense counsel's inaction compelling:


       "Sharkey's defense counsel did not argue his own ineffectiveness, nor did he seek to
       withdraw so that Sharkey could be represented by conflict-free counsel at the motions
       hearing. Further, no evidence was presented in support of Sharkey's pro se motions, and
       defense counsel did not make any statement regarding those motions. Because of defense
       counsel's inaction, Sharkey was essentially required to present pro se legal arguments in
       support of his motions for new trial even though the State was represented by counsel."
       299 Kan. at 98.


This court held that the circumstances made the potential for conflict apparent, and the
judge was required to make an appropriate inquiry. Its absence constituted an abuse of
the judge's discretion. 299 Kan. at 98.


       Turning to the effect of the abuse of discretion, this court held that a showing of
prejudice was not required because Cronic applied. "Sharkey was constructively denied
his right to counsel because of his attorney's conflict of interests; he effectively had no
legal representation at the motions hearing." 299 Kan. at 101 (citing Mickens, 535 U.S. at
172 n.5). Accordingly, we presumed the existence of prejudice, and we ordered the case
remanded with instructions to hold a new hearing on Sharkey's pro se motions for new
trial after he was appointed new, conflict-free counsel to argue the motions. 299 Kan. at
101.


       In this case, both the district judge and the Court of Appeals panel concluded that
Pittman never gave up his role as Fuller's advocate at the motion for new trial hearing.
Fuller, 2013 WL 6164528, at *8. Our review of the record simply does not support that
conclusion.


                                                   24
       First, it is important to recall that two motions for new trial were before the court
at the hearing—one filed by Pittman, along with a motion for judgment of acquittal, and
the other filed pro se by Fuller. Pittman's brief argument at the hearing in favor of his
motions consisted of his statement that he thought "it was an extremely clean trial" and
that he "thought things went in our favor." The district judge denied Pittman's motions.
The district judge then turned to Fuller's pro se motion for new trial. The only issues
raised in the motion for new trial were tied to complaints Fuller had about members of his
jury. Specifically, Fuller argued that one juror was a friend of a detective in the case, that
the foreman was a retired employee from the Sedgwick County courthouse, that another
juror was the softball coach of the son of an employee in the prosecutor's office, that
another juror was the victim of assault in her home, that another juror was the mother of a
parole officer, and that one juror dozed off during the proceedings. The district judge
asked Pittman if he planned to present argument or if Fuller "wish[ed] to present his own
argument." Instead of arguing in support of Fuller's pro se motion for new trial, Pittman
said only, "[w]e kind of get into a mine field," and suggested that Fuller argue his own
motion. At that point in the hearing, there was nothing to suggest to the district judge that
a conflict existed between counsel and client.


       Fuller began by arguing that he did not have an impartial jury for the reasons set
out in his pro se motion for new trial. But he quickly changed gears, expanding his list of
complaints, essentially, orally amending his written pro se motion, on the spot. He
asserted that the State violated a motion in limine prohibiting evidence about his drug
use. He noted that Pittman had objected but had not filed a motion for mistrial, which
Fuller considered the only curative measure for the violation. Fuller then alleged that
there was evidence not admitted at trial that would have proved his innocence. After the
district judge followed up, Fuller informed the court that phone records and an unnamed
witness would have proved he was in C.K.'s home with permission. Fuller told the district


                                              25
judge, "I asked my lawyer to get the records, and the records [were] never gotten and I
believe that's critical of proving—helping prove my innocence."


       The district judge then asked Pittman whether he had anything to add. Pittman told
the judge that he had "a slightly different take on those issues which I can express to the
Court in detail issue by issue, if the Court wants to hear that." The district judge told
Pittman to proceed however he saw fit.


       Pittman elected to address Fuller's new complaints individually. With respect to
the phone records, he said, "[M]atters of strategy are not to be dictated by the client but
are up to the attorney." According to Pittman, the phone records could have shown an
inconsistency in the victim's recollection of the events, but there was a greater risk that
the phone records would have damaged Fuller's credibility, a risk Pittman was unwilling
to take. Next Pittman argued that the selection of jurors also involved strategy in the
exclusive province of defense counsel, although he noted that he had discussed the
potential jurors with Fuller. Pittman concluded on this point by stating, "I stand by the
individuals that we picked." Pittman transitioned to the next topic by saying that "Mr.
Fuller may be mistaken in his recollection of several things." He then said he had
interrupted the prosecutor before any motion in limine violation and returned to the juror
issues. He defended each juror, attempting to negate each challenge his client had raised.
Pittman ultimately concluded: "I stand by the jury we picked. I thought it was a good
jury. So I don't think that there's a problem with those individuals," and he again asserted
that Fuller had received a "clean trial."


       From this comprehensive review of this portion of the transcript of the motion for
new trial, it is abundantly clear to us that a conflict between Fuller and his defense
counsel developed in front of the district judge when Pittman elected to defend himself
against Fuller's allegations. Fuller asserted that Pittman failed to perform adequately.
                                              26
Pittman's argument was a point-by-point ineffective assistance of counsel defense
directly opposing his client's motion for new trial. Instead of stopping the proceeding and
appointing conflict-free counsel, the district judge then allowed the prosecutor to weigh
in on Fuller's pro se motion. The prosecutor said that Pittman was "correct when he
state[d] that there are certain strategic decisions that are up to the lawyer, and it sounds
like it was in consultation with Mr. Fuller." The prosecutor then addressed the juror
issues raised in the pro se motion.


       After the prosecutor's argument, the district judge asked Fuller if he had any
rebuttal, but, before Fuller could speak, Pittman asked if he could "just add one thing, and
it's important, for the record." Pittman then specifically defended his decision not to
challenge a juror who had been a victim of assault in her home as "good strategy," noting
she had been the victim of assault and not a sexual assault. He said, "I think it was good
strategy and I'd do it again."


       Fuller then spoke, telling the district judge that Pittman's failure to admit the phone
records "just shows that the—I was not represented to the best of—I wasn't represented
fully to the best of Mr. Pittman's ability." Fuller then continued—this time with a broad
attack on the quality of Pittman's representation. He again touched on the complaints he
had made earlier. He eventually also included an allegation that the prosecutor committed
misconduct by questioning him on matters covered in the motion in limine.


       Following Fuller's rebuttal, the district judge returned to Pittman to ask if he had
anything to add. Pittman said that had he obtained the phone records, he would not have
used them because "I don't think it's good strategy."




                                              27
         At that point, the district judge said that he recognized the written pro se motion
only addressed jury issues but that he believed he "could still rule on the merits of those
matters raised orally."


         Regarding the jurors, the district judge said that each had expressed an ability to
be fair and impartial, and, accordingly, none was subject to a challenge for cause. The
judge then stated: "It seems to me that the real argument here is that counsel, trial
counsel, was ineffective at trial for failing to strike these jurors with the use of
peremptory challenge, and I think that all of that is a matter of trial strategy." The judge
then ruled that—"for the reasons expressed by Mr. Pittman" and because Pittman and
Fuller had been allowed time alone together during which they could have discussed jury
selection choices—the decisions on peremptory challenges were "reasonable and
appropriate trial strategy."


         The judge then particularly addressed the juror that Fuller had argued fell asleep
during trial. The judge said he did not see the juror sleeping and knew the lawyers had
not seen the juror sleeping. He therefore saw no "reason to grant a new trial based on
that."


         The district judge then turned to the other subjects Fuller had raised orally.


         The judge ruled that the State had not violated the order in limine by referencing
Fuller's whereabouts at a particular time. With respect to evidence of drug possession or
use, the judge affirmed that the order in limine prohibited introduction of testimony that
Fuller had marijuana in his pocket at the time of his sexual encounter with C.K. The
judge said that he did not recall Pittman making a contemporaneous objection at the point
when the prosecutor questioned Fuller about drugs, but he said that any error arising out
of the question or Fuller's denial in response would qualify as harmless.
                                               28
       Moving to the subject of the phone records, the judge said: "[A]gain, what we're
really arguing here is ineffective assistance of counsel." He then said:


       "My observation was that Mr. Pittman was very able in his argument of this case, that the
       decisions that he made are decisions that any competent trial counsel would make. I don't
       believe that Mr. Pittman's conduct in this trial fell below the standard that we expect of
       lawyers.


               "Frankly, I think that all of these complaints are strategic complaints, and you
       don't get new trials because the strategy that you pursued didn't pan out. If that was the
       case, we'd never have the end of any trial. We'd always be able to go back and second
       guess every trial and say if I'd only done this or done that, we'd have had a different
       outcome. Such an approach would lead to the retrial of cases until you get to the verdict
       that you want, and that's just not the way it works. The standard is whether or not Mr.
       Pittman's trial strategy and the manner in which he defended this case fell below what we
       would expect of reasonable trial counsel, and I don't think it did in this case. I think he
       was competent and able in his defense.


               "More to the point, with respect to the phone records, as I understand it, it goes to
       the question of the credibility of the victim in this case. And as Mr. Pittman has pointed
       out, her credibility was attacked numerous times by Mr. Pittman by showing the
       inconsistencies in her statements to the detective at various times during the
       investigation. I don't think that the phone records would have added materially to that,
       certainly would not have changed the outcome of the trial. I think that the decision not to
       subpoena those records was a reasonable decision that capable and competent trial
       counsel would make.


               "So, for those reasons, the Court would overrule the motion for new trial and
       reversal."




                                                     29
       The district judge then moved directly to Fuller's sentencing, which was continued
for 3 weeks to allow Pittman to secure the attendance of two character witnesses Fuller
wished to call and to gather information to resolve criminal history objections.


       This case differs somewhat from Sharkey because here, instead of proceeding on
pro se motion after failing to inquire into a potential conflict between Fuller and his
counsel, the district judge proceeded after an actual conflict became apparent during a
hearing. But the effect is nearly identical and just as problematic. Pittman did not argue
his own ineffectiveness. And, instead of standing silent as Sharkey's lawyer did, Pittman
explicitly and repeatedly advocated for his own effectiveness. Indeed, he was persuasive.
The judge referenced and relied upon Pittman's statements more than once. Meanwhile,
Fuller was required to make his own arguments in support of his motion without the
benefit of counsel. This means that this case either falls under Cronic, under which Fuller
is "spared . . . the need of showing probable effect upon the outcome" in order to obtain
relief, or it falls under what we have called the Mickens exception, which is the third
subcategory of attorney conflict-of-interest cases, for which the United States Supreme
Court has not yet articulated "what additional burden, e.g., prejudice or adverse effect, a
defendant must satisfy before receiving relief." Sola-Moralez, 300 Kan. at 883-84.


       Under the circumstances of this case, where the existence of a conflict between
Fuller and his lawyer is established beyond dispute by the hearing transcript, and the
same transcript emphatically shows that conflicted counsel argued extensively and
successfully against his client's position and the judge relied upon counsel's statements to
issue his ruling, we hold that Fuller has met any burden that might be imposed. Cf. State
v. Prado, 299 Kan. 1251, 1260, 329 P.3d 473 (2014) (where counsel argued expressly
against existence of actual conflict shown by record, adverse effect present; prejudice
presumed).


                                             30
       As a remedy, Fuller asks this court to reverse the district judge's denial of his pro
se motion for new trial, and, presumably, to remand for a new motion hearing after the
appointment of conflict-free counsel. This would be the proper remedy if this issue were
before us on direct appeal. See Sharkey, 299 Kan. at 101. But here the issue comes before
the court on Fuller's K.S.A. 60-1507 motion. In these proceedings, Fuller has had the
benefit of what we presume has been conflict-free counsel to assert and argue Pittman's
ineffectiveness. Some of the arguments that Fuller raised pro se have now been presented
with the benefit of conflict-free counsel and nevertheless rejected by the district court, the
Court of Appeals, and now this court. Remand to relitigate these thrice-rejected claims is
not appropriate.


       Yet we are mindful of the fact that Fuller raised an ineffectiveness claim on direct
appeal, expressly seeking relief from the Court of Appeals because of Pittman's failure to
act as his counsel at the motion for new trial hearing. See Fuller, 2009 WL 4639506, at
*3. Without the benefit of this court's later-published Sharkey opinion, and because of the
framing of the issue and arguments, the panel did not thoroughly explore the issue on
Fuller's direct appeal. Under different circumstances, we are certain the panel would have
ordered relief similar to that we granted in Sharkey. Instead, it did what made sense at the
time: It directed Pittman to K.S.A. 60-1507 as a vehicle for pursing his ineffective
assistance of counsel claim.


       We recognize that not every pro se argument Fuller raised at his motion for new
trial hearing was raised again in his K.S.A. 60-1507 motion. So saying that Fuller is in
exactly the same position today as he would have been if he had conflict-free counsel at
his motion for new trial hearing is not wholly accurate, even when weighed against the
general proposition that an issue not raised, briefed, or argued is deemed abandoned or
waived. See State v. Jones, 300 Kan. 630, 639, 333 P.3d 886 (2014).


                                             31
       K.S.A. 60-1507(b) allows a court to "grant a new trial or correct the sentence as
may appear appropriate." We read this broad language to allow us to craft an appropriate
remedy in this unusual case, i.e., to remand this case to the district court to hold a hearing
on those arguments Fuller raised before the district court in support of his pro se motion
for new trial that have not already been decided adversely to him in these K.S.A. 60-1507
proceedings. These arguments include Fuller's claim that Pittman failed to obtain and use
exculpatory phone records or call a witness who could have demonstrated Fuller's
innocence. They also include juror issues not raised in Fuller's K.S.A. 60-1507 motion
and any prosecutorial misconduct or ineffective assistance of counsel argument based on
an alleged violation of the motion in limine. Our remand should not be read to express a
view on the merit of any of Fuller's claims, only to validate his right to pursue them with
assistance from conflict-free counsel. See State v. Gleason, 277 Kan. 624, 631, 652, 88
P.3d 218 (2004) (once defendant filed pro se amendment to motion for new trial alleging
attorney conflict of interest, second motion alleging ineffective assistance, district judge
appointed new, conflict-free counsel to assist with pro se motions; new counsel relieved
of duty after motions decided adversely to client; trial lawyer handled later sentencing).


                                        CONCLUSION


       This case is remanded to the district court with instructions to hold a new hearing
based on the arguments before the district court during Fuller's pro se motion for new
trial hearing that have not yet been disposed of adversely to him in these K.S.A. 60-1507
proceedings. If on remand the district judge rejects the arguments and denies the motion,
reversal and a new trial is unnecessary. If the judge grants the motion, reversal and a new
trial will be granted and new trial counsel appointed.


       Affirmed in part, reversed in part, and remanded to district court with directions.


                                              32
