State v. Kelly

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IN THE SUPREME COURT OF THE STATE OF KANSAS

Nos. 100,913
100,914

STATE OF KANSAS,
Appellee,

v.

THOMAS ODELL KELLY,
Appellant.


SYLLABUS BY THE COURT


1.
A proceeding under K.S.A. 60-1507 cannot ordinarily be used as a substitute for a
direct appeal. Likewise, a district court should not entertain a second or successive 60-
1507 motion for similar relief on behalf of the same prisoner.

2.
Absent a showing of exceptional circumstances, a second or successive K.S.A. 60-
1507 motion is an abuse of remedy. Exceptional circumstances are unusual events or
intervening changes in the law which prevent a movant from reasonably being able to
raise all of the trial errors in the first postconviction proceeding.

3.
To avoid the 1-year time limit for filing a K.S.A. 60-1507 motion, the movant
must show that an extension of time is necessary to prevent a manifest injustice.
"Manifest injustice" has been described as meaning obviously unfair or shocking to the
conscience.
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4.
In Kansas, there are four requirements to apply the doctrine of res judicata: (1)
identity in the thing sued for, (2) identity of the cause of action, (3) identity of persons
and parties to the action, and (4) identity in the quality of persons for or against whom
claim is made.

Appeal from Shawnee District Court; JAN W. LEUENBERGER, judge. Opinion filed March 25,
2011. Affirmed.

Patrick H. Dunn, of Kansas Appellate Defender Office, argued the cause and was on the brief for
appellant.

Natalie A. Chalmers, assistant district attorney, argued the cause, and Chadwick J. Taylor, district
attorney, and Steve Six, attorney general, were with her on the brief for appellee.

The opinion of the court was delivered by

JOHNSON, J.: Thomas Odell Kelly appeals the denial of a number of
postconviction motions in which he sought to withdraw pleas he had entered some two
decades ago, on February 14, 1991. In this appeal, Kelly argues that during an attempt to
withdraw his pleas prior to sentencing, the district court was put on notice that Kelly's
trial counsel had a conflict of interest, which required the district court to make further
inquiry. Kelly also contends that his pleas were not knowingly and voluntarily entered.
Finding that we are procedurally barred from deciding Kelly's claims, we affirm the
district court.

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FACTUAL OVERVIEW

In 1990, the State filed two cases against Kelly, numbered 90CR670 and
90CR671. In 90CR670, Kelly was charged with aggravated kidnapping, rape, two counts
of aggravated criminal sodomy, and aggravated sexual battery from an incident on
December 11, 1989, involving W.W., a woman with whom Kelly had a child. In
90CR671, Kelly was charged with two counts of aggravated criminal sodomy for
allegedly forcing B.S., a 15-year-old male, to engage in oral and anal sexual acts in
November 1989.

The procedural history in both cases was influenced by the fact that at the
conclusion of the December incident, an acquaintance of W.W. severely beat Kelly with
a shovel, sending him to the hospital with a brain injury. Subsequent to the filing of
charges, the court found that as a consequence of his brain injuries, Kelly was mentally
incompetent to stand trial in both cases. The court committed Kelly to Larned State
Security Hospital and further ordered that Kelly undergo emergency brain surgery, to
which he had refused to consent.

Larned State Hospital (Larned) discharged Kelly on December 6, 1990. The court
conducted a preliminary hearing in 90CR670 on January 14, 1991, but the preliminary
hearing in the other case was delayed after the State learned that B.S. was out of state.
Before the other preliminary hearing could be conducted, the parties reached a plea
agreement which called for Kelly to plead guilty to attempted rape in 90CR670 and to
one count of aggravated criminal sodomy in 90CR671. In addition to dismissing the
remaining counts of both complaints, the State agreed not to invoke the Habitual
Criminal Act and to recommend that Kelly be treated at Larned in lieu of imprisonment.

After accepting Kelly's plea, the court followed the plea agreement and committed
Kelly for treatment in lieu of imprisonment, pursuant to K.S.A. 22-3430 (Ensley 1988).
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However, Kelly was subsequently released from Larned and returned for sentencing in
June 1991.

By this time, Kelly's previous attorney, E. Jay Greeno, had left the public
defender's office, and Ron Wurtz appeared at sentencing to represent Kelly. Prior to the
imposition of sentence, Wurtz advised the district court that Kelly wanted to withdraw his
pleas based upon Kelly's belief that Greeno had coerced him into entering the pleas.
Wurtz immediately tried to explain a possible conflict of interest, stating: "As Mr.
Greeno was under my supervision, I cannot actually be on this case and if it needs to be
litigated there would have to be a—." The district court interrupted Wurtz and declared:
"That motion, if it's considered to be a motion, will be overruled. I personally attended at
that plea and the record will reflect no such inducements from the Court's personal
knowledge. Based on that, the motion will be overruled." The court then proceeded to
sentence Kelly to a controlling imprisonment term of 15 years to life.

Kelly's motion to modify his sentences was denied on September 11, 1991. Kelly
did not directly appeal his convictions, his sentences, or the denial of his presentence
motion to withdraw pleas. Beginning in 1993, Kelly filed a number of postconviction
motions, including a K.S.A. 60-1507 motion alleging ineffective assistance of counsel,
which was denied. In 2007 and 2008, Kelly filed a series of motions, which the district
court eventually consolidated and liberally construed as a request for correction of an
illegal sentence under K.S.A. 22-3504, a request for relief under K.S.A. 60-1507, and a
request to withdraw his pleas under K.S.A. 22-3210. The district court summarily denied
Kelly's motions, finding that his claims did not fit within the definition of an illegal
sentence, that his 60-1507 claims were time-barred, and that Kelly's conclusory
statements about his plea did not warrant withdrawal under K.S.A. 22-3210.

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On March 5, 2008, Kelly filed a motion to reconsider, which reasserted his
previous complaints as well as adding allegations of wrongful conduct by his trial
attorneys. The new allegations against Greeno were that he failed to inform Kelly that
B.S., the victim in 90CR671, had left the state; that Greeno had told Kelly that he could
not win and had no choice but to plead guilty; and that Greeno had advised Kelly to tell
the court that he was entering his pleas freely, knowingly, voluntarily, and intelligently.
The allegation against Wurtz was the somewhat curious claim that Wurtz had refused to
present Kelly's presentence plea withdrawal motion. Kelly also complained that the
district court's rulings were based upon journal entries, rather than a review of hearing
transcripts, and that the court had refused to allow him to file pro se motions. The district
court denied Kelly's motion for reconsideration in a June 2, 2008, memorandum decision,
which was based on much the same rationale as the previous memorandum decision.

On appeal, Kelly raises a new complaint about the district court's failure to inquire
into Wurtz' conflict of interest and reiterates his claim that his pleas were not voluntarily
and knowingly entered.

CONFLICT OF INTEREST CLAIM

Kelly first complains that Wurtz put the trial court on notice that he had a conflict
of interest in representing Kelly on the plea withdrawal motion, which triggered a duty
for the district court to make further inquiry into the conflict. Kelly asks that the matter
be remanded for the district court to first inquire into the conflict of interest and then to
take evidence on the merits of the motion to withdraw plea. In other words, he attempts to
include his claim that he was denied his constitutional right to conflict-free counsel as a
part of his motion to withdraw plea. However, the Sixth Amendment to the United States
Constitution claim is separate from the merits of the plea withdrawal claim. Granted, one
of the factors a district court should consider in exercising its discretion to allow a plea
withdrawal for good cause is whether the defendant was represented by competent
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counsel. See State v. White, 289 Kan. 279, 285, 211 P.3d 805 (2009). However, that
inquiry focuses on the adequacy of representation at the plea hearing, not at the hearing
on a motion to withdraw plea.

Therefore, Kelly's conflict of interest claim was a proper subject for a K.S.A. 60-
1507 motion, not a motion to withdraw plea under K.S.A. 22-3210. Accordingly, we will
consider Kelly's claim in that context.

A. Standard of Review

The district court summarily denied those claims that it construed to be 60-1507
issues. For summary denials, we conduct a de novo review to determine whether the
motion, files, and records of the case conclusively establish that the movant is not entitled
to any relief. Trotter v. State, 288 Kan. 112, 132, 200 P.3d 1236 (2009).

B. Analysis

Kelly has at least three procedural obstacles that stand in the way of his getting
review of the conflict of interest claim. First, he did not directly appeal, and a 60-1507
motion cannot be used as a substitute for a direct appeal. See Rice v. State, 37 Kan. App.
2d 456, 459, 154 P.3d 537, rev. denied 284 Kan. 946 (2007).

Next, Kelly filed a prior 60-1507 which raised the issue of ineffective assistance of
counsel. An ineffective assistance of counsel claim is founded upon the defendant's Sixth
Amendment right to counsel, which is the same basis upon which Kelly relies to argue
his current conflict of interest claim. The district court is not required to entertain a
second or successive 60-1507 motion for similar relief on behalf of the same prisoner.
See K.S.A. 60-1507(c); Supreme Court Rule 183(d) (2010 Kan. Ct. R. Annot. 255).
Absent a showing of exceptional circumstances, the court can dismiss a second or
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successive motion as an abuse of remedy. Toney v. State, 39 Kan. App. 2d 944, 947, 187
P.3d 122 (2008).

"'Exceptional circumstances are unusual events or intervening changes in the law
which prevent a movant from reasonably being able to raise all of the trial errors in the
first post-conviction proceeding.' [Citation omitted.]" Woodberry v. State, 33 Kan. App.
2d 171, 175, 101 P.3d 727, rev. denied 278 Kan. 853 (2004). Kelly does not explain the
unusual events or changes in the law which have occurred since he filed his previous 60-
1507 motion, and we can discern no such exceptional circumstances.

Kelly was aware of the conflict of interest issue at the sentencing hearing. While
he purports to make the issue an absence of judicial inquiry, the error in this case had
nothing to do with judicial inquiry. Wurtz presented the district court with sufficient
information to find a conflict of interest. Hopefully, a district court need not inquire
further to ascertain that when a defendant is represented by the public defender's office
and the defendant alleges an attorney in that office coerced or misled the defendant, then
the attorney's supervisor in the public defender's office has a conflict in representing the
defendant on that claim. It is difficult to imagine any judicial inquiry which might have
made the conflict any more clear.

Moreover, there has been no intervening change in the law which would have
prevented Kelly from raising the conflict of interest claim in either a direct appeal or in
his first 60-1507 motion. Accordingly, Kelly's successive claim that he was denied
effective assistance of counsel, as required by the Sixth Amendment, is an abuse of
remedy.

The final obstacle to review is found in K.S.A. 60-1507(f)(1), which required
Kelly to file his 60-1507 action within 1 year of the termination of appellate jurisdiction
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in his case. He did not meet that deadline. To avoid the time limitation, he had to
convince the district court that an extension of time was necessary to prevent a manifest
injustice. See K.S.A. 60-1507(f)(2). "Manifest injustice" has been described in other
contexts as meaning "obviously unfair" or "shocking to the conscience." Ludlow v. State,
37 Kan. App. 2d 676, 686, 157 P.3d 631 (2007).

Kelly's attempt to claim that the district court's failure to inquire "simply allowed
defense counsel to stand mute" on the plea withdrawal motion is disingenuous, at best.
Wurtz made no attempt to argue the merits of the motion. To the contrary, Wurtz
specifically told the district court that he could not be on the case to litigate the motion,
before the district court interrupted and summarily ruled on the motion. The problem was
not that the district court allowed a conflicted attorney to argue the motion, but that the
district court did not permit any argument whatsoever. It is not manifestly unjust to apply
the time limitation to Kelly's conflict of interest claim, and we find that claim to be
procedurally barred.

PLEA WITHDRAWAL

In his second issue, Kelly argues that he should be entitled to withdraw his pleas
because they were not knowingly and voluntarily entered. He includes all of the
arguments he has made in his various motions and appears to treat the matter as if there
had been but one motion under K.S.A. 22-3210(d). However, Kelly recognizes that the
district court's basis for exercising its discretion to allow a plea withdrawal is different for
a postsentencing motion. A plea may be withdrawn before sentencing "for good cause
shown," whereas a postsentencing plea withdrawal may be ordered "[t]o correct manifest
injustice." K.S.A. 22-3210(d). Accordingly, Kelly creatively suggests that we can
separate his arguments based upon when they were first made, analyzing the arguments
made at the sentencing hearing for good cause and analyzing the postsentencing
arguments for manifest injustice. Then, he would have us either reverse all of the denials
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and remand with directions to permit the withdrawal of his pleas, or remand to the district
court for an evidentiary hearing.

Kelly's contorted analysis highlights his insurmountable problem. He received a
ruling on the merits of his motion to withdraw pleas at the sentencing hearing in 1991.
Kelly did not appeal that ruling, and it became a final ruling on the plea withdrawal issue.
Accordingly, the dispositive question is whether res judicata prevented Kelly from
relitigating the plea withdrawal issue through his postsentencing motions.

A. Standard of Review

The applicability of res judicata is a question of law, subject to unlimited review.
See In re Care & Treatment of Sporn, 289 Kan. 681, 686, 215 P.3d 615 (2009).

B. Analysis

In Kansas, there are four requirements to apply res judicata: (1) identity in the
thing sued for, (2) identity of the cause of action, (3) identity of persons and parties to the
action, and (4) identity in the quality of persons for or against whom claim is made. In re
Sporn, 289 Kan. at 686. In Kelly's current postsentencing motion, he is suing for the same
thing that he was denied at the sentencing hearing, i.e., leave to withdraw his plea. The
cause of action and parties were identical. Kelly was his own proponent for his position
in all of the motions. The doctrine of res judicata is applicable in this situation.

In its initial memorandum decision, the district court noted that Kelly had not
appealed the denial of his initial plea withdrawal motion. However, the court appeared to
apply the exceptional circumstances analysis applicable to 60-1507 motions. There is
precedent for applying to plea withdrawal motions certain procedures governing 60-1507
motions. See State v. Jackson, 255 Kan. 455, 458, 874 P.2d 1138 (1994) (applying
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procedures governing hearings on 60-1507 motions as guidance for hearings on K.S.A.
22-3210[d] [Ensley 1988] motions).

Nevertheless, Kelly does not ask us to treat his motion as a 60-1507 motion and
does not argue the existence of exceptional circumstances that would provide relief
through a 60-1507 motion notwithstanding his failure to directly appeal. The reason that
he does not argue for the application of K.S.A. 60-1507 procedural rules is most likely
revealed by his declaration that "there is no time limitation for a motion to withdraw one's
plea." But cf. K.S.A. 60-1507(f)(1) (1-year limitation on filing 60-1507 motion).
Regardless, Kelly does not present us with any mechanism whereby the doctrine of res
judicata may be circumvented to permit a relitigation of the plea withdrawal issue. The
district court should be affirmed. See State v. Murray, 285 Kan. 503, 533, 174 P.3d 407
(2008) (district court's correct result may be upheld for alternative reasons).

Affirmed.