Francis v. State

459 P.3d 837 (Table)

John F. FRANCIS, Appellant,

v.STATE of Kansas, Appellee.

No. 117,531

Court of Appeals of Kansas.

Opinion filed March 20, 2020.

Richard Ney, of Ney, Adams & Miller, of Wichita, for appellant.

Shawn E. Minihan, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.

Before Leben, P.J., Buser and Standridge, JJ.

MEMORANDUM OPINION

Buser, J.:

In 2003, John Francis was convicted of first-degree murder in the killing of Clem Hollingsworth. In 2006, his conviction and sentence were upheld by our Supreme Court on direct appeal. State v. Francis , 282 Kan. 120, 122, 145 P.3d 48 (2006) (Francis I ). Since that time, Francis has filed two K.S.A. 60-1507 motions for postconviction relief and other assorted pro se motions.

This is an appeal of the district court's denial of Francis' motion to amend his second K.S.A. 60-1507 motion (hereinafter motion to amend) and his pro se " K.S.A. 60-260 Motion for Relief from Judgment" (hereinafter motion for relief). These two motions taken together sought to justify Francis adding a fraudulent waiver of conflict claim to his motion to amend due to newly discovered evidence that Francis was actually innocent of murder. Upon our review, we find no error in the district court's denial of the second motion or the motion for relief.

FACTUAL AND PROCEDURAL BACKGROUND

The following is our Supreme Court's detailed factual summary of evidence presented at Francis' murder trial:

"On February 18, 1998, Clem Hollingsworth IV died as the result of a gunshot wound which he sustained while a passenger in the back seat of a car driven by his mother. The shot was fired from another vehicle. The State's theory was that Hollingsworth was killed in revenge for the murder of Frederick Johnson.

"About 8 months earlier, in June 1997, Clem Hollingsworth shot and killed Frederick Johnson and shot and wounded Jason Smith. Hollingsworth was arrested on June 20, 1997, and charged with Johnson's murder. On February 17, 1998, Hollingsworth's mother, Sharon Hollingsworth, paid the bond to secure her son's release from jail. Among the people who were notified pursuant to the Missouri victims' rights statute of Hollingsworth's release was Frederick Johnson's mother. Hollingsworth was shot and killed in the early morning hours of February 18.

"Frederick Johnson was the brother of Richard Johnson and the cousin of the defendant, John Francis. Hollingsworth and Francis were friends. At the time of Frederick Johnson's death, Corey Shannon, another friend of Hollingsworth and Francis, was incarcerated in Missouri. A few weeks after Johnson's murder, Sharon Hollingsworth telephoned Shannon, then telephoned Francis as if the call were coming directly from Shannon, and listened to Shannon and Francis talk about the murder. Francis told Shannon that if he did not get Clem Hollingsworth, ‘he would get the next thing closest to him.’

"In early February 1998, before Hollingsworth's mother paid his bond, the defendant along with several other people had visited James ‘Tony’ Gillihan at the KC Bail Bonding Company. They wanted to pay Hollingsworth's bond and get him released. They did not have enough money to pay the bond but urged Gillihan to let them pay less, saying, ‘You're not going to be on the bond very long.’ When Gillihan said he would not make the bond for the $5,000 they were offering, Francis said, ‘That's the motherfucker who killed my cousin a couple weeks ago,’ and reiterated that Gillihan would only be on the bond a couple of days. Gillihan refused to be involved. Then someone with Francis offered another $2,500 and said, ‘Don't worry about [it]; you're not going to lose anything. As soon as they find his body, you're off the bond.’ Later, after hearing that Hollingsworth had been killed, Gillihan called the TIPS Hotline.

"Hollingsworth was released from jail at approximately 7:30 the evening of February 17. His mother picked him up, and they went to her house. After he showered, they went to visit relatives. At approximately midnight they picked up her friend Karen McCoy when she got off work. The three went to Harrah's in North Kansas City. As they were going into Harrah's, a young man recognized Clem Hollingsworth and greeted him.

"At approximately 3 a.m., they left Harrah's with Sharon Hollingsworth driving, McCoy in the front passenger seat, and Clem Hollingsworth in the back seat. They drove south on I-35 and exited at the Shawnee Mission Parkway ramp. At the yield sign to get on Shawnee Mission Parkway westbound, a car with bright headlights came up behind them. As Sharon drove onto the parkway, the car with the bright lights drove quite close beside her—over the line into her lane. Sharon recognized the defendant in the front passenger seat of the other car.

"Clem told Sharon to duck, and gunfire began. When the shooting died down, Sharon put the car in reverse and backed up. She sat up and made a U-turn, almost hitting a truck. Sharon saw two cars turn around to follow her as she drove eastbound. She could see arms outside the car that had been close on her driver's side, and more shots were fired from that car. Sharon pulled into a gas station, and McCoy ran inside to get help. Clem was lying on the back seat bleeding. He was taken by ambulance to the hospital, where he was pronounced dead.

"Police recovered shell casings from the westbound lanes of Shawnee Mission Parkway near the ramp from I-35 and near the gas station Sharon had pulled into. A firearms examiner determined that they had been fired from at least five different firearms—three 9 mms, one .38 or .357 caliber, and one .40 caliber Smith & Wesson or 10mm. A metal bullet jacket was retrieved from Hollingsworth's body during the autopsy and given to police.

"A shoebox of ammunition was seized during the search of defendant's residence. Defendant's fingerprint was found on one of the boxes of ammunition in the shoebox. Four guns and a speed loader for a revolver also were seized from his residence. One of the guns, a .38 Special Taurus handgun, could have fired the bullet with the jacket retrieved from Hollingsworth's body during the autopsy." Francis I , 282 Kan. at 122-24.

After Francis was charged with Hollingsworth's murder, he was represented at the preliminary hearing by assistant public defender, Michael Bartee. In Francis v. State , No. 106,140, 2012 WL 4794595, at *3 (Kan. App. 2012) (unpublished opinion) (Francis III ), our court's opinion affirming the denial of Francis' first K.S.A. 60-1507 motion, we described the factual circumstances of Robert Thomas' representation of Shannon during the preliminary hearing:

"At Francis' preliminary hearing on April 5, 2002, the district court appointed Thomas to represent Shannon as special counsel to determine whether Shannon could assert his Fifth Amendment right against self-incrimination. After an in-camera interview, the district court allowed Shannon to invoke his Fifth Amendment right. Thomas subsequently met with Francis on March 21, 2003. Three days later, Francis signed a waiver of any conflict of interest that could result from Thomas's prior representation of Shannon. On March 26, 2003, Thomas entered an appearance in Francis' case." Francis III , 2012 WL 4794595, at *3.

Before trial, the district court held a hearing to discuss Thomas' ability to represent Francis due to his previous representation of Shannon. At the hearing, the following colloquy occurred:

"MR. THOMAS: Judge, for the record, I mean, there should be in the court file a waiver that Mr. Francis has executed. It was filed and I provided a copy to the State. ...

"Judge, I discussed this at length with Mr. Francis. I don't believe there is a conflict, and the reason being the thing that caused the conflict was a conversation between those two individuals. So I don' t know anything about—even let's say hypothetically the Government granted Corey Shannon complete immunity and put him on the witness stand. Due to my 30 minutes of representation of Mr. Shannon, I don't know anything about him other than what John Francis knows or other than what Corey Shannon knows. I don't know anything I could use to cross-examine him, and that's the heart of—

"THE COURT: The point is, if he does testify, you would be ordered to represent the interest of Mr. Francis in his trial. You would be in a position of having to cross-examine Mr. Shannon who you formerly represented in this case.

"MR. THOMAS: That's correct, but I don't know anything about [Shannon] due to my representation that I would even have the opportunity to use against him which is the heart of conflict of interest, not to be disloyal to a previous client. And the fact is, he is at best an uncooperative witness for the Government. I don't see how I would be acting against his interests in any event.

....

"THE COURT: Mr. Francis, I see that you have signed a letter or a document indicating that you are waiving that conflict of interest that is being discussed here in court. Have you had full opportunity to discuss this situation with Mr. Thomas?

"THE DEFENDANT: Yes.

"THE COURT: You understand the potential conflict that presents itself here if Mr. Shannon were to be involved in this case further?

"THE DEFENDANT: Yes.

"THE COURT: Is it still your decision that you're going to waive any conflict of interest that might exist by Mr. Shannon's later involvement in this case?

"THE DEFENDANT: Yes, sir."

The district court appointed John Jenab as a special counsel to advise Francis regarding the conflict of interest issue "and make sure this is something that is really in your best interest to do."

After a jury trial in which Francis was found guilty of first-degree murder, he was sentenced to life in prison with no parole eligibility for 40 years. In 2006, the Kansas Supreme Court affirmed the conviction and sentence on direct appeal. Francis I , 282 Kan. at 122.

Francis filed his first K.S.A. 60-1507 motion in 2007. He alleged...