Justin Burke Eckert, Appellant, v. State of Kansas, Appellee. (2026)

MEMORANDUM OPINION

Justin Burke Eckert appeals the district court's summary denial of his K.S.A. 60-1507 motion, asserting only that appellate counsel was ineffective for failing to pursue a claim of judicial misconduct in his direct appeal. We find no error and affirm.

Factual and Procedural Background

In 2016, police officers executed a search warrant of Eckert's home after receiving reports that Eckert physically attacked his then-girlfriend Amber Dial while he was intoxicated. Eckert reportedly beat Dial by punching and kicking her and hitting her with a wooden object, held a knife to Dial's throat, and prevented Dial from leaving. During the search of Eckert's home, officers found a wooden stick, a knife, and several items related to a marijuana grow operation.

The State charged Eckert with aggravated kidnapping, attempted second-degree murder or in the alternative aggravated battery, aggravated assault, criminal threat, cultivation of marijuana plants, and several counts of felony and misdemeanor possession of drug paraphernalia. Before trial, the district court dismissed four of the charges for misdemeanor possession of drug paraphernalia.

The case was tried to a jury. On the alternative charges, the jury found Eckert guilty of aggravated battery. The jury convicted Eckert on all remaining charges.

Motion for New Trial and Sentencing

Before sentencing, Eckert filed a motion for new trial raising two issues. Eckert claimed that he was denied a fair trial because the district court: (1) erred in not instructing the jury on voluntary intoxication, which is not at issue here; and (2) engaged in prejudicial judicial conduct during closing arguments.

The State lodged four objections during Eckert's closing argument on the basis that he argued facts not in evidence or misstated the evidence. The district court sustained three of the State's objections and overruled one. The district court said nothing remarkable in making these rulings. On two occasions when the district court sustained the State's objection, the court told the jury to disregard the objectionable statement.

The district court held a hearing on Eckert's motion for new trial and denied the existence of prejudicial judicial conduct. The district court said:

“I do not believe I said or did anything inappropriate during closing argument. If my tone was perceived to be exasperated, which I will not concede and I—I will say this, I had to repeatedly sustain the same motion about counsel mischaracterizing evidence or stating evidence—stating facts that were not in evidence. So a repetition of the same thing over and over again might be perceived to be an exasperated judge, but really in this instance all I was left to do was continue to admonish counsel to stay within the appropriate boundaries.

“It is also my responsibility to make sure that counsel are following the rules and in the particular sequence complained about by defense counsel to make sure they're adhere—adhering to the evidence and not misleading the jury. In my opinion, counsel's repeated mischaracterization of the evidence warranted sustaining the State's objections, as well as the admonishment given.

“I would also note [defense counsel] has some concerns about the accuracy of the transcript and I may remember things differently. I don't generally have to raise my voice, so I'm not sure about the use of the exclamation marks; but I don't generally use the phrase the jury will disregard. I usually say the jury will disregard counsel's last statement or the last statement. I usually clarify what's going to be disregarded and I think that's reflected in the transcript as filed.

․

“So as to the merits, I do not find any error occurred.”

The district court moved immediately into sentencing and ordered Eckert to serve a controlling sentence of 362 months’ imprisonment.

Eckert's Direct Appeal

Eckert appealed his sentence to this court. See State v. Eckert, No. 120,566, 2022 WL 628660 (Kan. App. 2022) (unpublished opinion), aff'd on other grounds 317 Kan. 21, 522 P.3d 796 (2023). His appellate counsel did not raise the issue of judicial misconduct in the direct appeal. Eckert successfully challenged his convictions for possession of drug paraphernalia as multiplicitous; as a result, 23 of the 25 convictions for possession of drug paraphernalia were reversed. 2022 WL 628660, at *6, 10. Eckert's remaining convictions were affirmed. 2022 WL 628660, at *13. Our Supreme Court granted review and affirmed the multiplicity finding. State v. Eckert, 317 Kan. 21, 33, 522 P.3d 796 (2023).

Eckert's K.S.A. 60-1507 Motion

Eckert filed the K.S.A. 60-1507 motion at issue in this appeal. He raised several claims in his motion, including that his appellate counsel was ineffective because he failed to raise the judicial misconduct argument on direct appeal. The district court summarily denied the motion, finding among other things that Eckert's argument regarding ineffective assistance of counsel was conclusory and without an evidentiary basis warranting a hearing.

Analysis

Eckert appeals, arguing that the district court erred in summarily denying his K.S.A. 60-1507 motion. He insists that the district court should have held an evidentiary hearing on the question of appellate counsel's ineffective assistance in failing to raise the judicial misconduct issue on direct appeal.

This is the only issue Eckert has briefed in this appeal. Eckert did not brief any other issues raised in his K.S.A. 60-1507 motion. An issue or claim that is not briefed is deemed to be waived or abandoned. State v. Davis, 313 Kan. 244, 248, 485 P.3d 174 (2021). For this reason, we will address only the district court's summary denial of Eckert's K.S.A. 60-1507 motion regarding appellate counsel's alleged ineffective assistance in failing to raise the judicial misconduct issue.

Standard of Review

A district court has three options when considering a K.S.A. 60-1507 motion:

“ ‘(1) The court may determine that the motion, files, and case records conclusively show the prisoner is entitled to no relief and deny the motion summarily; (2) the court may determine from the motion, files, and records that a potentially substantial issue exists, in which case a preliminary hearing may be held. If the court then determines there is no substantial issue, the court may deny the motion; or (3) the court may determine from the motion, files, records, or preliminary hearing that a substantial issue is presented requiring a full hearing.’ ” White v. State, 308 Kan. 491, 504, 421 P.3d 718 (2018).

If the district court summarily denies a K.S.A. 60-1507 motion, as it did here, we conduct a de novo review to determine whether the motions, files, and records of the case conclusively establish the movant is not entitled to relief. Beauclair v. State, 308 Kan. 284, 293, 419 P.3d 1180 (2018). Eckert has the burden to establish that an evidentiary hearing is warranted. He must present something more than conclusory contentions, and he must state an evidentiary basis for his claims, or an evidentiary basis must appear in the record. See Noyce v. State, 310 Kan. 394, 398, 447 P.3d 355 (2019).

Ineffective Assistance of Counsel

Claims of ineffective assistance of counsel are analyzed under the two-prong test articulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Under the first prong, a defendant must show that the attorney's performance was deficient. If so, we move to the second prong to determine whether there is a reasonable probability that, absent counsel's alleged deficient performance, the result would have been different. State v. Evans, 315 Kan. 211, 217-18, 506 P.3d 260 (2022).

Here, Eckert claims that the performance of appellate counsel was deficient because counsel did not raise the issue of judicial misconduct on direct appeal. “To establish ineffective assistance of appellate counsel, defendant must show that (1) counsel's performance, based upon the totality of the circumstances, was deficient in that it fell below an objective standard of reasonableness, and (2) the defendant was prejudiced to the extent that there is a reasonable probability that, but for counsel's deficient performance, the appeal would have been successful.” State v. Salary, 309 Kan. 479, 483, 437 P.3d 953 (2019). This court applies a “ ‘strong presumption’ ” that counsel's performance was reasonable. State v. James, 319 Kan. 178, 190, 553 P.3d 308 (2024).

Applying this standard here, Eckert must demonstrate that his appellate counsel's decision not to raise a judicial misconduct claim in his direct appeal was objectively unreasonable and that this decision affected the outcome of his case. Practically speaking, this means that Eckert must show that a judicial misconduct claim would have been successful if it had been raised during his appeal. He has not done so.

The Judicial Misconduct Claim

The district court judge occupies an important role at trial and must conduct himself or herself accordingly.

“ ‘The trial judge is not merely a moderator but is the governor of the trial. The judge should strive to conduct the trial in an atmosphere of impartiality and should refrain from remarks or conduct that may injure a litigant. The judge should be the exemplar of dignity and impartiality, should exercise restraint over judicial conduct and utterances, should suppress personal predilections, and should control his or her temper and emotions.’ ” State v. Hayden, 281 Kan. 112, 125, 130 P.3d 24 (2006).

Eckert frames this issue as judicial misconduct, but in his brief quotes and urges us to apply the standard of review for judicial comment error. Erroneous judicial comments made in front of a jury—that are not jury instructions or legal rulings—are known as judicial comment error. State v. Boothby, 310 Kan. 619, 626, 448 P.3d 416 (2019). Here, the trial judge sustained three of four objections made by the State during closing argument on the basis that the defense attorney misstated the evidence or argued facts not in evidence. The district court said little more than “[s]ustained” and in some instances “[t]he jury will disregard” the statement.

Further, the district court instructed the jury as follows: “At times during the trial, I have ruled upon the admissibility of evidence. You must not concern yourself with the reasons for these rulings. I have not meant to indicate any opinion as to what your verdict should be by any ruling that I have made or anything that I have said or done.”

Eckert's trial counsel did not lodge a contemporaneous objection to the district court's rulings or behavior at trial. However, our courts have generally found allegations of judicial misconduct and judicial comment error to be reviewable on appeal despite lack of a contemporaneous objection at trial. See Boothby, 310 Kan. at 628 (judicial comment error); State v. Miller, 308 Kan. 1119, 1154, 427 P.3d 907 (2018) (applying rule to judicial misconduct pre-Boothby). Lack of preservation is no bar to our consideration of the judicial misconduct issue.

Eckert's complaint here is not that the trial judge sustained the objections, but that in sustaining the three objections, the judge demonstrated “frustration” or “exasperation” with defense counsel. He does not explain how this demonstration occurred. In fact, there is very little discussion of the district court's words or behavior in Eckert's briefing. We conclude that this is not a judicial comment issue because Eckert points to no improper comment; he alleges only improper conduct in the form of “frustration.”

Appellate courts have unlimited review over judicial misconduct claims. State v. Lyman, 311 Kan. 1, 33, 455 P.3d 393 (2020). The party alleging judicial misconduct has the burden to establish that the misconduct occurred and that it prejudiced the party's substantial rights. State v. Lemmie, 311 Kan. 439, 450, 462 P.3d 161 (2020). In contrast, judicial comment error requires the State to show beyond a reasonable doubt that the error did not affect the outcome of the trial. Boothby, 310 Kan. at 625-27. Eckert's argument fails under either test because we find no misconduct, improper comment, or other error by the district court.

“Allegations of judicial misconduct must be decided on the surrounding facts and circumstances.” State v. Hudgins, 301 Kan. 629, 637, 346 P.3d 1062 (2015). Eckert's minimal description of the district court's words or demeanor during closing argument adds little to the analysis. The transcript of this portion of the trial reveals nothing that would indicate the district court was frustrated or exasperated, and there is nothing to suggest the district court was behaving other than in an impartial manner. Eckert has not met his burden to show misconduct or that he suffered prejudice.

Eckert fails to convince us that his attorney should have raised this issue on direct appeal. “[F]ailure to raise an issue on direct appeal is not per se ineffective assistance.” Miller v. State, 298 Kan. 921, 932, 318 P.3d 155 (2014). Indeed,

“In an appeal from a criminal conviction, appellate counsel should carefully consider the issues, and those that are weak or without merit, as well as those which could result in nothing more than harmless error, should not be included as issues on appeal. Likewise, the fact that the defendant requests such an issue or issues to be raised does not require appellate counsel to include them. Conscientious counsel should only raise issues on appeal which, in the exercise of reasonable professional judgment, have merit.” Baker v. State, 243 Kan. 1, 10, 755 P.2d 493 (1988).

With little or no evidence to support a claim of judicial misconduct or judicial comment error, Eckert's attorney on direct appeal was not ineffective for declining to pursue this issue. See Bledsoe v. State, 283 Kan. 81, 103, 150 P.3d 868 (2007) (finding trial counsel could not be ineffective for failing to file motion that would have been denied). It appears Eckert's appellate counsel made a valid strategic decision to abandon a meritless claim. See Baker, 243 Kan. at 10. Eckert's attorney on direct appeal instead focused on obtaining dismissal of multiplicitous charges, and 23 of Eckert's 25 convictions for possession of drug paraphernalia were reversed.

We agree with the district court's conclusion here that the motion, files, and records conclusively establish that Eckert is not entitled to relief. The district court did not err in summarily dismissing Eckert's K.S.A. 60-1507 motion.

Affirmed.

Per Curiam: