Kelley v. State

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NOT DESIGNATED FOR PUBLICATION

No. 118,132

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

CHICO MADISON KELLEY JR.,
Appellant,

v.

STATE OF KANSAS,
Appellee.


MEMORANDUM OPINION

Appeal from Wyandotte District Court; J. DEXTER BURDETTE, judge. Opinion filed November
30, 2018. Affirmed.

Chico Madison Kelley, Jr., appellant pro se.

Jennifer S. Tatum, assistant district attorney, Mark A. Dupree Sr., district attorney, and Derek
Schmidt, attorney general, for appellee.

Before ARNOLD-BURGER, C.J., LEBEN and BRUNS, JJ.

PER CURIAM: Chico Madison Kelley Jr. appeals from the summary dismissal of
his K.S.A. 60-1507 motion. In his motion, Kelley asserted ineffective assistance of his
trial counsel and prosecutorial error. On appeal, he contends his trial counsel was
ineffective but on different grounds than the one set forth in his motion. He also contends
for the first time that his appellate counsel was ineffective. However, he makes no
argument on appeal regarding prosecutorial error. Based on our review of the motion,
files, and court records, we conclude that Kelley is not entitled to relief. Accordingly, we
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affirm the district court's summary dismissal of Kelley's K.S.A. 2016 Supp. 60-1507
motion.

FACTS

On January 9, 2013, a jury convicted Kelley of two counts of attempted first-
degree premeditated murder and one count of criminal possession of a firearm. A panel
of this court affirmed Kelley's conviction in State v. Kelley, No. 110,153, 2014 WL
6909607, at *1 (Kan. App. 2014) (unpublished opinion). Subsequently, on July 22, 2015,
the Kansas Supreme Court denied a petition for review. The underlying facts are set forth
in detail in the opinion affirming Kelley's convictions, and we will not repeat them here.

On October 21, 2015, Kelley then filed a pro se K.S.A. 60-1507 motion. In his
motion, Kelley alleged that his trial counsel was ineffective in "failing to request lesser
included offense." Evidently, he was alleging that his trial counsel should have requested
a jury instruction on a lesser included offense. However, Kelley did not offer any facts in
his motion to support this allegation. Likewise, he failed to identify the lesser included
offense to which he was referring. Kelley also alleged "prosecutorial misconduct" in his
motion. Again, he did not offer any facts to support this allegation nor did he identify
what the prosecutor did that he believed constituted misconduct.

On March 22, 2016, the State moved to summarily dismiss Kelley's K.S.A. 60-
1507 motion. A week later, on March 29, 2016, the district court issued a memorandum
decision summarily dismissing Kelley's motion. Specifically, the district court found that
"[a]fter a thorough review of the files, records and pleadings . . . it is conclusively shown
that the movant is entitled to no relief and his petition is dismissed." In reaching this
determination, the district court also recognized that "[e]mpty claims not supported by
facts or evidence are insufficient to establish a claim."

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ANALYSIS

On appeal, Kelley no longer contends that his trial counsel was ineffective for
"failing to request lesser included offense" as asserted in his K.S.A. 60-1507 motion.
Instead, for the first time on appeal, Kelley asserts that his trial counsel was ineffective
for a variety of other reasons that were not set forth in his motion. In addition, for the first
time on appeal, Kelley contends that his appellate counsel was also ineffective for an
assortment of reasons. We also note that Kelley does not mention his claim of
"prosecutorial misconduct" in his appellate briefs.

Upon the filing of a K.S.A. 60-1507 motion, a district court has three options:

"'(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 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.'" Sola-Morales v. State, 300 Kan. 875, 881, 335 P.3d
1162 (2014).

Here, the district court chose the first of these options and summarily dismissed
Kelley's motion. As such, our review is de novo and—like the district court—we must
also determine whether the motion, files, and records of the case conclusively establish
that Kelley is not entitled to relief. Sola-Morales, 300 Kan. at 881.

To avoid the summary denial of a claim for relief under K.S.A. 60-1507, a movant
bears the burden of establishing that he or she is entitled to an evidentiary hearing. To
meet this burden, a movant's contentions must be more than conclusory. In other words,
either the movant must set forth an evidentiary basis to support those contentions in the
motion or the basis must be evident from the record. If such a showing is made, a district
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court is normally required to hold a hearing. See State v. Sprague, 303 Kan. 418, 425,
362 P.3d 828 (2015).

Here, a review of the K.S.A. 60-1507 motion filed by Kelley reveals that it only
included vague conclusory allegations without factual support. As indicated above,
although Kelley claimed in his motion that his trial counsel failed to request a lesser
included offense instruction, he did not identify the lesser included offense to which he
was referring. Moreover, although he claimed "prosecutorial misconduct" in his motion,
he did not state what the prosecutor did or failed to do that allegedly constituted
misconduct. Thus, we conclude that Kelley failed to set forth an evidentiary basis to
support the conclusory allegations contained in his K.S.A. 60-1507 motion.

It is also important to note that Kelley's appellate briefs do not mention the alleged
failure by trial counsel to request a lesser included offense instruction. Likewise, he does
not argue "prosecutorial misconduct" in his briefs. Because he has failed to brief either of
the issues set forth in his K.S.A. 60-1507 motion, we deem them to be waived and
abandoned. See State v. Boleyn, 297 Kan. 610, 633, 303 P.3d 680 (2013).

As the State correctly points out, none of the allegations discussed in Kelley's
appellate briefs were raised before the district court. Instead, for the first time on appeal,
Kelley raises a variety of additional ways in which he believes his trial counsel was
ineffective that were not alleged in his K.S.A. 60-1507 motion. Likewise, although he
made no such claim in his motion, Kelly claims for the first time on appeal that his
appellate counsel was ineffective.

Issues not raised below are not to be considered for the first time on appeal unless
a party affirmatively asserts and explains why an exception to the general rule applies.
Kansas Supreme Court Rule 6.02(a)(5) (2018 Kan. S. Ct. R. 34); see State v. Godfrey,
301 Kan. 1041, 1043-44, 350 P.3d 1068 (2015); State v. Williams, 298 Kan. 1075, 1085,
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319 P.3d 528 (2014). Here, Kelley has failed to assert any reason why he should be
allowed to raise issues on appeal that were not asserted before the district court.
Accordingly, we will not address the new issues asserted by Kelley for the first time on
appeal.

In summary, we find that Kelley's motion contained only vague conclusory
allegations. We also find that Kelley made no attempt to provide the district court with
factual support for his allegations. Furthermore, we do not find the basis for Kelley's
conclusory allegations to be evident from the record. We, therefore, conclude that the
district court was not required to hold an evidentiary hearing under the circumstances
presented and that it did not err in summarily dismissing Kelley's K.S.A. 60-1507 motion.

Affirmed.