No. 94,811

DAVID A. MONCLA,

Appellant,

v.

STATE OF KANSAS,

Appellee.

SYLLABUS BY THE COURT

1. An evidentiary hearing on a K.S.A. 60-1507 motion is not required if the motion together with the files and records of the case conclusively show that the movant is not entitled to relief. The burden is on the movant to allege facts sufficient to warrant a hearing. If no substantial issues of fact are presented by the motion, the district court is not required to conduct an evidentiary hearing.

2. A movant in a K.S.A. 60-1507 proceeding may raise the issue of trial misconduct by the prosecutor only after showing exceptional circumstances which excuse the failure to raise the issue in the movant's direct appeal.

3. To prevail on a claim of ineffective assistance of counsel a criminal defendant must establish that (1) counsel's representation fell below an objective standard of reasonableness, considering all the circumstances and (2) but for counsel's deficient performance, there is a reasonable probability that the outcome of the proceeding would have been more favorable to the defendant. In considering the first element, the defendant's counsel enjoys a strong presumption that his or her conduct falls within the wide range of reasonable professional conduct. Further, courts are highly deferential in scrutinizing counsel's conduct and counsel's decisions on matters of reasonable strategy, and make every effort to eliminate the distorting effects of hindsight.

4. Appellate review of the district court's order denying a request for a new trial based on newly discovered evidence is limited to whether the court abused its discretion. This review includes a review to determine whether the district court's exercise of discretion was guided by erroneous legal conclusions.

5. In considering whether the district court should have conducted an evidentiary hearing before ruling on a request for a new trial asserted in a K.S.A. 60-1507 motion, the appellate court considers (1) whether the motion alleges facts which do not appear in the original record which, if true, would entitle the movant to relief; (2) whether the motion adequately identifies readily available witnesses whose testimony would support these new facts and demonstrate that the movant should receive a new trial; and (3) whether the claimed newly discovered evidence could have been produced at trial through the exercise of reasonable diligence.

Review of the judgment of the Court of Appeals in an unpublished opinion filed December 1, 2006. Appeal from Sedgwick district court; PAUL W. CLARK, judge. Judgment of the Court of Appeals affirming the district court is reversed. Judgment of the district court is reversed and remanded with directions. Opinion filed February 8, 2008.

Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, argued the cause and was on the brief for appellant.

Lesley A. Isherwood, assistant district attorney, argued the cause, and Nola Tedesco Foulston, district attorney, and Phill Kline, attorney general, were with her on the brief for appellee.

The opinion of the court was delivered by

McANANY, J.: David A. Moncla, who was convicted of the 1995 murder of Diane Swinney, appeals from the district court's summary denial of his K.S.A. 60-1507 motion in which he alleged prosecutorial misconduct, ineffective assistance of counsel, and newly discovered evidence. A divided panel of the Court of Appeals affirmed. Moncla v. State, No. 94,811, unpublished opinion filed December 1, 2006. This court granted Moncla's petition for review.

Swinney owned the Star's Club, a Wichita bar where Kevin Robertson worked. According to the State's witnesses, Swinney and employee Linda Brown closed the bar at about 2 a.m. on the day of the murder. Swinney left the bar with several cans of beer and drove to her apartment which was a block or two from the bar. Swinney had lived in her upstairs apartment for about 3 months before her death. Pat Berry and Kathryn Cunningham also occupied the house. Berry and Cunningham slept downstairs. Moncla had been living in the house less than a week before Swinney's death. He often slept in a recliner upstairs in Swinney's room, though at times he slept downstairs.

Berry testified that Moncla left the house on foot early on the morning of Swinney's murder. Moncla told Berry he was late for work and Swinney was upstairs having sex with someone and he did not want to watch. Moncla went to the home of Carl Guy at about 9 a.m. and asked Guy for a ride to work. Guy agreed and stopped for gas en route. Moncla operated the pump and, during the process, spilled gasoline on his jeans. Guy dropped Moncla off at a QuikTrip store. Moncla arrived at the home of John Bayliff sometime between 9 and 9:30 that morning. Moncla told Bayliff that people were after him and he needed a place to stay. Moncla spent the day with Bayliff.

Later that day Robertson broke into Swinney's apartment after she failed to respond to repeated pounding on her door. She was found dead from repeated blows to her head. When Moncla saw the report of Swinney's death on the evening television news, he told Bayliff his version of what happened, a version consistent with Moncla's later testimony at his trial. Moncla stayed with Bayliff for several days until he was arrested and charged with Swinney's murder.

The police found a pillow and a woman's coat near Swinney's body. Both were ripped and bloody. A pillowcase covered Swinney's head. Moncla's fingerprints were found on the pillowcase. Moncla's fingerprints were found on the beer cans Swinney had brought to her house after closing the bar. His fingerprints were also found on several empty beer cans in Swinney's wastebasket. In the bathroom, the police found a claw hammer with human blood under its head. The coroner testified that Swinney suffered at least 18 blows to her head, causing her death. He also found defensive injuries on other areas of her body. He opined that the claw hammer found by the police was the murder weapon.

There was no evidence of fingerprints on the hammer. The police found a bloody rag in the bathroom where the hammer was located and where Moncla had been. It was the State's theory that there was enough time following the murder and before Moncla left for him to wipe down the hammer and remove any fingerprints with the rag.

Police investigators discovered bloodstains on Moncla's jeans. However, the stains could not be analyzed because of the gasoline spilled on them on the morning of Swinney's murder. Forensics scientist Kelly Robbins testified that the pattern of the blood spatter on Moncla's jeans was consistent with impact force and not consistent with the wearer having knelt in the blood from Swinney's wounds after her attack, the explanation Moncla would later advance in his defense at trial.

Moncla testified on his own behalf. He claimed that Danny Long committed the murder with the help of Robertson because of debts Swinney owed. According to Moncla, on the morning of the murder he was sleeping on Swinney's recliner when he was awoken by a man hitting him over the head with a gun. There were three men in the room wearing the colors of a motorcycle gang. Moncla was forced from the bedroom into the bathroom. He heard several slaps or hits and heard someone say, "[W]e're going to have to take a loss on this one." He heard the name Kevin. (When Kevin Robertson testified at trial, Moncla claimed he realized that it was Robertson who had hit him on the head with a gun.) After the men left, Moncla reentered the bedroom and saw Swinney crying on the floor with a pillow over her head. He removed the pillow and knelt at her side, causing the bloodstains on his jeans. Swinney asked Moncla to "stay out of it," so he left.

Robert Wisley, a friend of Long, testified on Moncla's behalf that Long approached him in a bar and confessed to murdering Swinney with a hammer.

Moncla was convicted of first-degree murder for Swinney's death. The court sentenced him to life imprisonment with no possibility of parole for 40 years. This court affirmed Moncla's conviction. State v. Moncla, 262 Kan. 58, 79, 936 P.2d 727 (1997) (Moncla I).

In 1998, Moncla moved for a new trial based on newly discovered evidence. For support he provided affidavits of two fellow inmates, Allen Richards and Scott Staggs. Richards and Staggs claimed that Robertson admitted to them that he was involved in the murder. After a nonevidentiary hearing, the district court denied relief without articulating the basis for its denial. Moncla appealed. On appeal, this court reversed and remanded in order for the district court to evaluate the alleged new evidence and to state its findings on the record. State v. Moncla, 269 Kan. 61, 4 P.3d 618 (2000) (Moncla II).

On remand, the district court held an evidentiary hearing on Moncla's motion, following which it concluded the new evidence did not raise a reasonable possibility of a different verdict if the case would have been retried. Moncla again appealed, and this court affirmed. State v. Moncla, 273 Kan. 856, 861, 46 P.3d 1162 (2002) (Moncla III).

In 2003, Moncla moved for relief pursuant to K.S.A. 60-1507. In his motion he claimed prosecutorial misconduct during the trial, ineffective assistance of trial and appellate counsel, and more newly discovered evidence. Following a nonevidentiary hearing, the district court denied relief. A divided panel of the Court of Appeals affirmed. Moncla v. State, No. 94,811, unpublished opinion filed December 1, 2006 (Moncla IV). Judge Greene dissented with regard to the denial of an evidentiary hearing on Moncla's claim of newly discovered evidence. Moncla IV, slip op. D-1 to D-3 (Greene, J., dissenting). The case returns to us on Moncla's petition for review.

Legal Standards for the District Court and for Appellate Review

An evidentiary hearing on Moncla's K.S.A. 60-1507 motion is not required if the motion together with the files and records of the case conclusively show that Moncla is not entitled to relief. See K.S.A. 60-1507(b). The burden is on Moncla to allege facts sufficient to warrant a hearing on the motion. See Supreme Court Rule 183(g) (2007 Kan. Ct. R. Annot. 244); State v. Jackson, 255 Kan. 455, 463, 874 P.2d 1138 (1994). If no substantial issues of fact are presented by the motion, the district court is not required to conduct an evidentiary hearing. Rhone v. State, 211 Kan. 206, 208, 505 P.2d 673 (1973).

The district court held a preliminary hearing on Moncla's motion, at which Moncla's counsel appeared and argued on Moncla's behalf. In its order overruling Moncla's motion, the district court made detailed findings of fact and conclusions of law. We examine these findings and conclusions in order to determine if the findings are supported by substantial competent evidence and whether those findings are sufficient to support the court's conclusions of law. We review de novo the district court's conclusions of law. Bellamy v. State, 285 Kan. 346, Syl.