by Dale Chappell

The Supreme Court of Kansas upheld the dismissal of a defendant’s convictions after the district court found several instances of ineffective assistance of counsel (“IAC”), including an actual conflict of interest and the State’s failure to preserve an issue for appeal, forfeiting that issue.

After Emmanuel Ellie was convicted of aggravated battery, rape, and aggravated kidnapping and his appeals were exhausted, he filed for postconviction relief under K.S.A. 60-1507, asserting several IAC claims, including that counsel had a financial conflict of interest that adversely affected his representation of Ellie. At an evidentiary hearing, counsel admitted that Ellie should have fired him and gone with a public defender, but he remained on the case to “protect” Ellie after his original attorney was removed by the court. Remaining counsel did so at no charge.

But that free service came with a price: deficient representation by counsel. “I have bills to pay,” counsel was quoted at the hearing in response to why he lacked time to prepare for Ellie’s trial. The district court concluded counsel was not only deficient for at least six reasons that combined to require relief, but also, the financial grounds for poor representation amounted to an actual conflict of interest. The court ruled that prejudice wasn’t required for such a conflict of interest and vacated Ellie’s convictions.

The State, however, appealed and argued that the district court failed to establish prejudice, as required by Strickland v. Washington, 466 U.S. 668 (1984), and that there was no cumulative effect of the errors that amounted to IAC. While the State failed to preserve the prejudice argument for appeal, the court of appeals ignored that issue. Instead, the court decided that the prejudice from the multiple errors required reversal anyway, allowing the prejudice issue to be ignored.

The Supreme Court granted Ellie’s pro se petition for review on the question of whether the conflict of interest required the reversal of all his convictions, as Ellie urged. First, the Court agreed with Ellie that the State’s failure to preserve the prejudice issue for appeal foreclosed the argument in the Supreme Court.

Supreme Court Rule 6.02(a)(5) provides that an appellant must cite to a “pinpoint” page reference in the record where it had preserved the issue for appeal or at least show a valid reason why it wasn’t raised below. In this case, the State generally cited to over 250 pages of transcripts. Though the Court tried to find where the State had preserved the prejudice issue, it said it couldn’t “find the needle in the haystack.”

Since the State failed to comply with Supreme Court Rule 6.02(a)(5), the Court refused to hear the argument about the prejudice standard, thereby affirming the district court’s “decision to reverse all of Ellie’s convictions based on the financial conflict of interest of his trial counsel.”

Accordingly, the Court affirmed in part and reversed in part the judgment of the court of appeals. See: Ellie v. State, 481 P.3d 1208 (Kan. 2021). 

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