Kelly v. State

1
NOT DESIGNATED FOR PUBLICATION

No. 114,158

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

TERRANCE KELLY,
Appellant,

v.

STATE OF KANSAS,
Appellee.


MEMORANDUM OPINION

Appeal from Johnson District Court; SARA WELCH, judge. Opinion filed May 27, 2016.
Affirmed.

Richard P. Klein, of Olathe, for appellant.

Steven J. Obermeier, senior deputy district attorney, Stephen M. Howe, district attorney, and
Derek Schmidt, attorney general, for appellee.

Before MCANANY, P.J., PIERRON and SCHROEDER, JJ.

Per Curiam: Terrance Kelly appeals the district court's summary disposition of
his K.S.A. 60-1507 motion filed almost 20 years after he entered his plea of guilty to
felony murder and aggravated robbery. We find no abuse of discretion and affirm.

FACTS

This is not Kelly's first trip to the Kansas appellate courts, and the facts leading up
to this appeal have been well summarized by the Kansas Supreme Court in State v. Kelly,
298 Kan. 965, 966-68, 318 P.3d 987 (2014). Relevant portions are repeated below:
2
"When he was 14 years old, Kelly robbed a liquor store, killing the store clerk
with a sawed-off shotgun. The State charged him with premeditated first-degree murder,
an alternative charge of first-degree felony murder, and aggravated robbery. The district
court certified Kelly for adult prosecution. He later pleaded guilty to felony murder and
aggravated robbery. The district court imposed a hard 15 life sentence for the felony-
murder conviction and a consecutive 172-month sentence for the aggravated robbery
conviction. Approximately 12 years later, Kelly moved to withdraw those pleas and
correct what he argue[d] is an illegal sentence for the aggravated robbery conviction.
"In support of the motion to withdraw his pleas, Kelly allege[d] his attorneys
failed to: (1) fully explain the sentencing consequences of the pleas; (2) keep him
informed during the plea negotiations; (3) investigate and advise him of alternate
defenses or trial strategies; and (4) explain the possibility of 'diversion . . . from the
criminal process,' i.e., not challenging his prosecution as an adult and failing to assert his
Miranda rights with respect to his pretrial statements to police. He further claim[ed] on
appeal that his hard 15 life sentence and the consecutive 172-month prison sentence
constituted cruel and unusual punishment under the Eighth Amendment to the United
States Constitution and/or § 9 of the Kansas Constitution Bill of Rights.
. . . .
"On remand, the district court again denied the motion without conducting an
evidentiary hearing. In doing so, it observed that Kelly had two trial attorneys, both of
whom participated in the plea hearing and separately stated on the record that they had
informed Kelly of the rights he was waiving, and that even if counsel had not informed
Kelly of the rights being waived, he could not establish prejudice because the district
court informed him of those rights during the plea hearing. The court also rejected Kelly's
claims that trial counsel failed to properly advise him of the sentencing ranges, and again
determined that even if trial counsel had not properly advised him of the possible
sentencing range, the district court had 'fully informed Defendant of the sentencing range
at the plea hearing.'
"Similarly, the district court found from the record that trial counsel had apprised
Kelly of the plea discussions and were very effective in those negotiations. The court
likewise found no merit in Kelly's claims that his attorneys failed to investigate alternate
defenses and trial strategies. It noted Kelly did not identify any potential defenses or
strategies his attorneys allegedly failed to investigate and Kelly had expressly stated at
the plea hearing that he was satisfied with the plea and with his attorneys' representation.
3
The district court also found Kelly's attorneys were not ineffective for allegedly failing to
pursue a claim that Kelly's Miranda rights were violated. The court determined Kelly's
sole contention that police questioning was improper because his parent, guardian, or
attorney was not present was insufficient to establish a violation of his Miranda rights
under the factors set out in State v. Young, 220 Kan. 541, Syl. ¶ 2, 552 P.2d 905 (1976)
('The age of the juvenile, the length of the questioning, the juvenile's education, the
juvenile's prior experience with the police, and the juvenile's mental state are all factors to
be considered in determining the voluntariness and admissibility of a juvenile's
confession into evidence.').
"Finally, the district court concluded that Kelly's failure to timely assert his actual
innocence and the long delay in filing the motion to withdraw his plea weighed against
determining that manifest injustice existed."

Kelly appealed the district court's summary denial of his motion to withdraw his
pleas. The Kansas Supreme Court held that summary disposition of Kelly's postsentence
motion to withdraw his pleas under K.S.A. 22-3210(d) was appropriate because there
were no substantial questions of law or triable issues of fact and the files and records
conclusively showed Kelly was not entitled to relief on the motion. "The movant bears
the burden of alleging facts sufficient to warrant a hearing. Mere conclusions for which
no evidentiary basis is stated or appears are insufficient." Kelly, 298 Kan. 965, Syl. ¶ 2.
Furthermore,

"[a] postsentence motion to withdraw a plea under K.S.A. 22-3210(d) alleging
ineffective assistance of counsel due to deficient performance must meet the
constitutional standards articulated in Strickland v. Washington, 466 U.S. 668, 687, 104
S. Ct. 2052, 80 L .Ed. 2d 674, reh. denied 467 U.S. 1267(1984), to establish manifest
injustice. The defendant must demonstrate: (a) Counsel's performance fell below the
standard of reasonableness; and (b) there was a reasonable probability that, but for
counsel's errors, the defendant would not have entered the plea and would have insisted
on going to trial." Kelly, 298 Kan. 965, Syl. ¶ 4.

4
The court found Kelly failed to demonstrate manifest injustice as required by
K.S.A. 22-3210(d) to withdraw his pleas.

"At Kelly's plea hearing, one of his attorneys said, '[W]e have shown [Kelly] the
sentencing range under the guidelines,' adding that he had advised Kelly of the 'best-case
worst-case middle-case scenario.' And, notwithstanding what his attorneys may or may
not have specifically told him off the record, Kelly acknowledged during a colloquy with
the trial court at the plea hearing that he understood that he faced a possible life sentence
for the felony-murder charge and a sentencing range of 46 to 206 months for aggravated
robbery. We observe nothing in the record that supports Kelly's allegations regarding the
range of sentences he might expect. In addition, we agree with the district court that it is
relevant in deciding an allegation of manifest injustice that Kelly received his sentence,
made no contemporaneous objection, and waited another 12 years before advancing these
claims.
"We hold the district court was correct to summarily conclude Kelly's counsel
was not ineffective and to refuse to allow plea withdrawal as to this claim
. . . .
"Finally, we hold further that each of Kelly's ineffectiveness arguments fails
because he does not claim his decision to enter his pleas would have changed, but for the
alleged deficient performance by his attorneys. . . .
"[T]he record shows Kelly requested that his attorneys enter into plea
negotiations after his accomplices were convicted in jury trials and he learned of their
sentences. The record further shows his request was motivated by a recognition and fear
that he likely would receive a greater sentence of imprisonment than his accomplices if
he went to trial because he was the shooter. At the plea hearing, Kelly's lawyers both
expressed concerns that Kelly could be found guilty of a premeditated killing that would
subject him to a hard 25 or hard 40 sentence. And one of Kelly's lawyers concluded that
Kelly could face a sentence of such length that 'he might die in the penitentiary' if
convicted at trial because of his prior juvenile record.
"In light of the stated justifications for pleading guilty, it is apparent he entered
his pleas with the specter of harsher punishment looming if he chose to go to trial—a risk
that remained regardless of the information he alleges was withheld. We hold that Kelly
has failed to establish prejudice. There is no reasonable probability he would have
insisted on going to trial instead of entering his pleas under the circumstances.
5
"For these reasons, we hold the district court did not err in denying Kelly's
motion as to the ineffective assistance of counsel claims without the benefit of an
evidentiary hearing." Kelly, 298 Kan. at 970-74.

On June 12, 2014, Kelly filed a motion to correct an illegal sentence pursuant to
K.S.A. 22-3504 on the basis of State v. Murdock, 299 Kan. 312, 323 P.3d 846 (2014), as
modified by Supreme Court order September 19, 2014, overruled by State v. Keel, 302
Kan. 560, 357 P.3d 251 (2015), cert. denied 136 S. Ct. 865 (2016). The district court
denied his motion and it was not appealed.

Kelly filed this K.S.A. 60-1507 motion February 9, 2015. The district court
concluded Kelly's motion was time barred and that Kelly failed to demonstrate an
extension of time was necessary to prevent manifest injustice. The district court went
through each of Kelly's ineffective assistance of counsel arguments and found that he had
failed to raise any substantive issue of law or fact deserving a hearing before the district
court.

Kelly timely appeals.

ANALYSIS

Was Kelly's K.S.A. 60-1507 motion for relief sufficient to survive summary disposition?

On appeal, Kelly argues the district court erred when it summarily denied his
claim for relief pursuant to K.S.A. 60-1507. While Kelly acknowledges his motion is
untimely, he argues the district court should have extended the time limitation to prevent
manifest injustice. Kelly argues "[h]e had good cause to not file his petition within the
one-year time limit and his representation prior to and during his plea was not
constitutionally adequate." Kelly argues he was incapable of filing a timely K.S.A. 60-
1507 motion and his trial counsel did not properly explain the consequences of his plea,
6
telling him "to agree that everything was okay and to not ask questions at his plea
hearing."

Upon receipt of a K.S.A. 60-1507 motion, the district court has three options to
resolve the 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.' [Citation omitted.]" Sola-Morales v. State, 300 Kan. 875, 881,
335 P.3d 1162 (2014).

The standard of review depends upon which of these options a district court
utilizes. Sola-Morales, 300 Kan. at 881. When the district court summarily denies a
K.S.A. 60-1507 motion, an appellate court conducts de novo review to determine whether
the motion, files, and records of the case conclusively establish that the movant is not
entitled to relief. 300 Kan. at 881.

To be entitled to relief under K.S.A. 60-1507, the movant must establish by a
preponderance of the evidence either: "[T]he judgment was rendered without
jurisdiction, or that the sentence imposed was not authorized by law or is otherwise open
to collateral attack, or that there has been such a denial or infringement of the
constitutional rights of the prisoner as to render the judgment vulnerable to collateral
attack." K.S.A. 60-1507(b) (grounds for relief); see Supreme Court Rule 183(g) (2015
Kan. Ct. R. Annot. 271) (preponderance burden).

To avoid the summary denial of a motion brought under K.S.A. 60-1507, a
movant bears the burden of establishing entitlement to an evidentiary hearing. To meet
7
this burden, a movant's contentions must be more than conclusory, and either the movant
must set forth an evidentiary basis to support those contentions or the basis must be
evident from the record. If such a showing is made, the court is required to hold a hearing
unless the motion is a second or successive motion seeking similar relief. Sola-Morales,
300 Kan. at 881 (citing Holt v. State, 290 Kan. 491, 495, 232 P.3d 848 [2010]). The
district court shall hold an evidentiary hearing on a K.S.A. 60-1507 motion and make
findings of fact and conclusions of law with respect thereto, unless the motion and the
files and records of the case conclusively show the movant is not entitled to relief. K.S.A.
60-1507(b); Supreme Court Rule 183(f) and (j).

A defendant has 1 year from when a conviction becomes final to file a K.S.A. 60-
1507(a) motion. K.S.A. 60-1507(f)(1). Individuals who had claims preexisting the 2003
statutory amendment had until June 30, 2004, to file a K.S.A. 60-1507 motion. Pabst v.
State, 287 Kan. 1, 22, 192 P.3d 630 (2008). The 1-year time limitation for bringing an
action under K.S.A. 60-1507(f)(1) may be extended by the district court only to prevent
manifest injustice. K.S.A. 60-1507(f)(2). Manifest injustice must be determined from the
totality of the circumstances. See Vontress v. State, 299 Kan. 607, 616, 325 P.3d 1114
(2014). A defendant who files a K.S.A. 60-1507 motion outside the 1-year time limitation
of K.S.A. 60-1507(f) and fails to assert manifest injustice is procedurally barred from
maintaining the action. State v. Trotter, 296 Kan. 898, 905, 295 P.3d 1039 (2013).

Kelly's motion is out of time, and he acknowledges it is. His claim preexisted the
2003 statutory amendment and, thus, he had until June 30, 2004, to file his K.S.A. 60-
1507 motion. Additionally, Kelly failed to demonstrate manifest injustice as required for
the district court to consider an untimely K.S.A. 60-1507 motion.

"[C]ourts conducting a manifest injustice inquiry under K.S.A. 60-1507(f)(2) should
consider a number of factors as a part of the totality of the circumstances analysis. This
nonexhaustive list includes whether (1) the movant provides persuasive reasons or
circumstances that prevented him or her from filing the 60-1507 motion within the 1-year
8
time limitation; (2) the merits of the movant's claim raise substantial issues of law or fact
deserving of the district court's consideration; and (3) the movant sets forth a colorable
claim of actual innocence, i.e., factual, not legal, innocence." Vontress, 299 Kan. at 616.

First, Kelly argues circumstances prevented him from filing within the time
limitation because, when he was first sentenced in April 1995, he was held in
administrative segregation until 2007 without access to legal resources. When he did
have access to legal resources, his motion to withdraw his plea was initially improperly
classified as a K.S.A. 60-1507. His motion to withdraw his plea was not concluded until
April 30, 2014, therefore, the time period between 2007 and 2014 should not be counted
against him. This argument is premised on a conclusion, without any factual support, that
Kelly was not able file any motions until 2007. Kelly's rationale is not persuasive.

Second, Kelly argues the merits of his claim raise substantial issues of fact
deserving of the district court's consideration. Specifically, Kelly alleges his counsel
failed to fully explain the consequences of his plea and told him to not ask any questions
of the district court at the time he was entering his plea. Kelly argues his counsel told him
that he would receive a sentence of 13 years and get good time credit:

"The issue at question is based solely on discussions had between counsel and Mr. Kelly.
There is simply no way to determine what happened in those discussions from the current
record. Moreover, these are fairly troubling accusations. If true, they undercut at the heart
of a defense attorney's job. Thus, because there were substantial issues of fact involved in
this case, this Court should reverse the district court's decision and remand for a hearing."

While this is Kelly's first motion pursuant to K.S.A. 60-1507, this is not the first
time he has argued ineffective assistance of counsel. He made the same arguments in his
motion to withdraw his plea which was appealed twice to the Kansas Supreme Court. The
Supreme Court found his allegations were not supported by the facts in the record before
the district court. This issue is barred by res judicata.
9
Whether the doctrine of res judicata applies in a certain case is an issue of law
over which appellate courts exercise de novo review. In re Tax Appeal of Fleet, 293 Kan.
768, 777, 272 P.3d 583 (2012); Miller v. Glacier Development Co., 293 Kan. 665, 668,
270 P.3d 1065 (2011).

"'An issue is res judicata when four conditions concur: (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. [Citation omitted.]
The requirements of collateral estoppel are: (1) a prior judgment on the merits which
determined the rights and liabilities of the parties on the issue based upon ultimate facts
as disclosed by the pleadings and judgment; (2) the parties must be the same or in privity;
and (3) the issue litigated must have been determined and necessary to support the
judgment. [Citation omitted.]' Regency Park v. City of Topeka, 267 Kan. 465, 478, 981
P.2d 256 (1999)." Waterview Resolution Corp. v. Allen, 274 Kan. 1016, 1023, 58 P.3d
1284 (2002) (discussing doctrine of collateral estoppel/issue preclusion).

See State v. Kingsley, 299 Kan. 896, 901, 326 P.3d 1083 (2014) (upholding denial of 60-
260[b] motion in criminal case based, in part, on res judicata); Shelton v. DeWitte, 271
Kan. 831, 836-37, 26 P.3d 650 (2001) (doctrine of res judicata prevents splitting single
cause of action or claim into two or more suits).

Where an appeal is taken from a conviction or sentence imposed, the judgment of
the appellate court is res judicata as to all issues actually raised. Issues that could have
been raised are deemed waived. State v. Kingsley, 299 Kan. 896, 901, 326 P.3d 1083
(2014); see State v. Martin, 294 Kan. 638, 279 P.3d 704 (2012) (issues raised and decided
in prior 60-1507 motions or motions to correct an illegal sentence are res judicata and
cannot be raised in subsequent motions); but see State v. Alonzo, 296 Kan. 1052, 1057,
297 P.3d 300 (2013) (a defendant who did not challenge the sentence on direct appeal is
not barred by res judicata from later filing a motion to correct illegal sentence). When
identical issues are raised in a motion to withdraw a plea, as in a motion pursuant to
K.S.A. 60-1507, the identical issues are res judicata; the defendant may not reassert the
10
same issues previously rejected. See State v. Baker, No. 106,171, 2012 WL 5392094,
(Kan. App. 2012) (unpublished opinion); Woods v. State, No. 105,948, 2012 WL
6734507, (Kan. App. 2012) (unpublished opinion) rev. denied 297 Kan. 1257 (2013);
Taylor v. State, No. 103,473, 2011 WL 1376998 (Kan. App. 2011), rev. denied 293 Kan.
1114 (2011).

Kelly previously argued his defense counsel told him he would serve a maximum
of 10 years with good time credit; however, the Kansas Supreme Court rejected his
arguments finding it was clear Kelly understood what he was pleading to and it was also
clear Kelly received a significantly lower sentence as a result of his attorneys'
negotiations than he would have most likely received at trial. Kelly, 298 Kan. at 970-74.
This issue is res judicata. While Kelly did not specifically raise the issue that his attorney
had told him to not ask any questions, the issue is within the realm of what should have
been raised or could have been raised the first time he alleged ineffective assistance of
counsel. We see no reason why Kelly did not raise this issue at the same time of his other
alleged ineffective assistance of counsel claims. We find Kelly waived the claim, and the
district court was right to summarily deny his motion for relief.

Affirmed.