Milo v. State

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NOT DESIGNATED FOR PUBLICATION

No. 115,584

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

GREGORY MILO,
Appellant,

v.

STATE OF KANSAS,
Appellee.


MEMORANDUM OPINION

Appeal from Johnson District Court; SARA WELCH, judge. Opinion filed December 9, 2016.
Affirmed.

Clayton E. Gillette, of Gillette Law Office, LLC, of Kansas City, Missouri, for appellant.

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

Before MALONE, C.J., GREEN and LEBEN, JJ.

Per Curiam: Gregory John Milo appeals the district court's summary denial of his
K.S.A. 60-1507 motion. The issues raised in this appeal are identical to the issues raised
in the companion case of State v. Milo, No. 114,832, unpublished opinion filed this day,
December 9, 2016 (Kan. App.). For the reasons stated herein, we affirm the district
court's judgment.

We set forth the factual and procedural history of Milo's case in detail in our
opinion in No. 114,832. Briefly summarized, on July 21, 2011, Milo pled no contest to
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one count of attempted first-degree murder, one count of aggravated robbery, and one
count of attempted aggravated robbery. Prior to sentencing, Milo filed a motion to
withdraw his plea and alleged that his trial counsel, David Magariel, failed to properly
investigate his criminal history and misled him into believing that he could be found not
guilty in a no contest plea. After holding an evidentiary hearing, the district court denied
Milo's motion, finding that Magariel had provided competent representation. The district
court sentenced Milo to 272 months' imprisonment. This court affirmed the district
court's judgment on appeal. State v. Milo, No. 108,228, 2013 WL 5507288 (Kan. App.
2013) (unpublished opinion), rev. denied 300 Kan. 1106 (2014).

On August 20, 2015, Milo filed two separate motions: (1) a motion to withdraw
his plea after sentencing under K.S.A. 2015 Supp. 22-3210, and (2) a motion pursuant to
K.S.A. 60-1507 to vacate, set aside, or correct his sentence. Both motions raised identical
claims: (1) Magariel was constitutionally ineffective for failing to make a record of the
presumptions regarding Milo's criminal history that formed the basis for the plea
agreement; (2) Magariel was constitutionally ineffective for failing to adequately and
reasonably investigate Milo's criminal history score prior to Milo entering the no contest
plea; (3) Magariel was constitutionally ineffective for failing to competently explain to
Milo his rights to withdraw a no contest plea; and (4) Milo's appellate counsel was
constitutionally ineffective for failing to argue that the district court applied an incorrect
legal standard. The district court summarily denied both motions based on res judicata,
finding that Milo was attempting to relitigate his prior claims of ineffective assistance of
counsel that he had raised in the presentence motion to withdraw his plea.

Milo appealed the summary denial of his postsentence motion to withdraw plea,
which is the subject of our opinion in No. 114,832. Milo filed a separate appeal from the
district court's summary denial of his K.S.A. 60-1507 motion, which is the subject of this
opinion. The two appeals raise identical issues and could have been consolidated.
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However, Milo did not file a motion to consolidate, and this court did not consolidate the
separate appeals on its own motion.

On appeal, Milo claims the district court erred when it ruled that res judicata
barred consideration of his K.S.A. 60-1507 motion. For the reasons we explained in
detail in our opinion in No. 114,832, we conclude that Milo's ineffective assistance of
trial counsel claim in his K.S.A. 60-1507 motion was barred by res judicata. However,
Milo's claim of ineffective assistance of appellate counsel was not barred by res judicata
because that claim was not raised in Milo's presentence motion to withdraw his plea. But
for the reasons we explained in detail in our opinion in No. 114,832, we find that Milo's
ineffective assistance of appellate counsel claim is without merit. Thus, we conclude that
the district court did not err in summarily denying Milo's K.S.A. 60-1507 motion.

Affirmed.