Opinion
No. 105,300.
2012-05-25
Marcus KELLEY, Jr., Appellant, v. STATE of Kansas, Appellee.
Appeal from Atchison District Court; Robert J. Bednar, Judge. Janine Cox, of Kansas Appellate Defender Office, for appellant. Gerald R. Kuckelman, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Atchison District Court; Robert J. Bednar, Judge.
Janine Cox, of Kansas Appellate Defender Office, for appellant. Gerald R. Kuckelman, county attorney, and Derek Schmidt, attorney general, for appellee.
Before McANANY, P.J., LEBEN and ATCHESON, JJ.
MEMORANDUM OPINION
PER CURIAM.
Marcus Kelley, Jr. appeals the ruling of the Atchison County District Court denying him habeas corpus relief from a sentence of 618 months in prison imposed after he entered a no-contest plea to attempted first-degree murder. Kelley contends that the lawyer defending him in the criminal case failed to meet the constitutional standards for adequate representation because he failed to request a competency hearing immediately before the plea. We find no error in the district court's ruling and affirm.
In July 2006, the State charged Kelley with attempted murder and aggravated robbery arising out of an attack on the driver of a delivery truck. Kelley's lawyer filed a motion for a competency determination. On August 11, 2006, the court granted the motion. A week later, a psychologist filed a report with the district court finding Kelley to be competent to stand trial. The State and defense counsel worked out an agreement under which Kelley would plead to the attempted murder charge, while the aggravated robbery charge and several misdemeanor charges in a separate case would be dismissed. Based on the agreement, Kelley entered a no-contest plea to the attempted murder charge on September 15, 2006. The district court accepted the plea. The district court sentenced Kelley to 618 months in prison on October 16, 2006. The term of incarceration reflected the aggravated grid sentence for attempted murder based on Kelley's criminal history. Kelley filed no direct appeal; a sentence within the statutory guidelines is not appealable.
On November 14, 2007, Kelley filed a motion under K.S.A. 60–1507 alleging he was mentally incompetent when he entered his plea and the lawyer representing him was constitutionally ineffective for failing to request a second competency evaluation of him. The district court appointed a lawyer to represent Kelley on the 60–1507 motion and held an evidentiary hearing. The district court denied the motion, finding Kelley had been adequately represented in the criminal case and nothing suggested he was incompetent when he entered his plea. Kelley has appealed that ruling. The timeliness of the 60–1507 motion has not been questioned, and we do not consider it.
We first review Kelley's claim as he presented it and the district court considered it—a motion for relief under K.S.A. 60–1507 on the grounds the criminal proceeding was infected with constitutional error causing him prejudice based on his lawyer's performance. In light of State v. Kelly, 291 Kan. 563, 565–66, 244 P.3d 639 (2010), we also consider the motion as one to set aside a plea under K.S.A. 22–3210(d)(2). Kelley was not entitled to relief either way.
When reviewing the denial of a 60–1507 motion after a full evidentiary hearing, an appellate court accepts the district court's findings of fact to the extent that they are supported with substantial competent evidence. The appellate court exercises unlimited review of the determinative legal issues. Bellamy v. State, 285 Kan. 346, 355, 172 P.3d 10(2007).
Kelley must show that his lawyer's performance in the criminal case, based on the totality of circumstances, “fell below an objective standard of reasonableness.” Holmes v. State, 292 Kan. 271, 274, 252 P.3d 573 (2011). If so, Kelley must then demonstrate prejudice resulting from the substandard representation to the extent that there would have been “a reasonable probability” of a successful result had he been adequately represented. 292 Kan. at 274. The measure of the lawyer's representation outlined in Holmes mirrors the standard in Strickland v. Washington, 466 U.S. 668, 687–88, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); see Chamberlain v. State, 236 Kan. 650, Syl. ¶¶ 3, 4, 694 P.2d 468 (1985) (adopting and stating Strickland test for ineffective assistance); see also Haddock v. State, 282 Kan. 475, 511–12, 146 P.3d 187 (2006) (citing Chamberlain). From Kelley's standpoint we suppose for the sake of argument that success would have been a request for a second competency hearing and a finding that he was not competent to enter a plea.
As both the United States Supreme Court and the Kansas Supreme Court have noted, review of a lawyer's representation should be deferential and hindsight criticism tempered lest the evaluation of the performance be unduly colored by lack of success notwithstanding demonstrable competence. Strickland, 466 U.S. at 689–90;Holmes, 292 Kan. at 275. Rarely should counsel's representation be considered substandard when he or she investigates the client's circumstances and then makes a deliberate strategic choice among multiple options. Strickland, 466 U.S. at 690–91.
Kelley's lawyer in the criminal case did not testify during the 60–1507 hearing, so there is no evidence about his reasoning, if any, in not seeking a second competency examination. But that doesn't drive the outcome. At the 60–1507 hearing, Kelley testified that he was not mentally competent when he entered his plea. In its memorandum decision denying the motion, the district court tacitly rejected Kelley's testimony when it found no evidence supported the notion that Kelley was incompetent. There is, however, considerable evidence of his mental acuity. First, a psychologist had examined Kelley a month before his plea and found him competent at that time. Second, the transcript of the plea hearing shows that the judge taking the plea thoroughly questioned Kelley, advised him of the various rights he would be giving up by entering a plea, and otherwise informed him of the potential consequences of changing his plea. Kelley's responses to the court's questions are content appropriate and coherent and otherwise indicate ordered thinking and comprehension of what was going on. Kelley had the wherewithal to ask about how his juvenile adjudications might influence his sentence. And the judge specifically asked Kelley what the result of another competency examination would be. Kelley told the judge he believed he would have been found competent. Nothing about the plea proceeding suggests someone detached from reality.
All of that evidence sufficiently supports the district court's conclusion in deciding the 60–1507 motion that Kelley was, in fact, competent when he entered his plea. Accordingly, Kelley's lawyer could not have been constitutionally ineffective for failing to request a second competency hearing. That really is the end of the matter. But even if we were to assume a constitutionally substandard performance by his counsel in the criminal case, Kelley has failed to show any prejudice. He offered no evidence that he would have gone to trial or that he had a reasonable chance of being acquitted at trial.
In sum, Kelley failed to establish any factual basis for the requisite grounds necessary for relief on a 60–1507 motion.
In a recent decision reaffirming the rule that pro se prisoner filings should be liberally construed, the Kansas Supreme Court recognized that papers the inmate has characterized as a 60–1507 motion should be treated as a motion to withdraw a plea consistent with the relief sought. The district court considering Kelley's 60–1507 motion did not have the benefit of the Kelly decision. The circumstances are sufficiently similar, however, that in an abundance of consideration for Kelley we also look at his motion as one to withdraw his plea.
A defendant seeking to withdraw a plea after sentencing must show relief is necessary to correct manifest injustice. K.S.A. 22–3210(d). Manifest injustice has been described as something obviously unfair or shocking to the conscience. State v. Kelly, 291 Kan. 868, Syl. ¶ 3, 248 P.3d 1282 (2011). In considering a motion under K.S.A. 22–3210(d), the district court should consider if (1) the defendant was represented by competent counsel; (2) the defendant was misled, coerced, mistreated, or unfairly taken advantage of; and (3) the plea was fairly and understandingly made. State v. White, 289 Kan 279, 285, 211 P.3d 805 (2009); see also State v. Moses, 280 Kan. 939, 950–54, 127 P.3d 330 (2006) (recognizing other relevant factors may support the denial of a postsentence motion to withdraw plea, including prejudice to the State, defendant's prior involvement in the criminal justice system, and defendant's receipt of a favorable plea bargain).
Although the district court did not specifically address the factors bearing on a motion to set aside a plea in that context, its findings on the 60–1507 cover the same territory. The district court reviewed the circumstances of Kelley's plea and the competence of his legal representation and found the lawyer handling the criminal defense performed adequately. In the plea colloquy, Kelley said he was satisfied with his lawyer's work, had adequate time to discuss the case with him, and had ample opportunity to review the plea agreement. At no time during the plea hearing did Kelley suggest he was pressured into pleading or had reservations about the agreement or the process. The record supports the absence of coercion or mistreatment. Likewise, the district court went over Kelley's rights in detail. He should not have been misled. And the record shows Kelley understood the plea and its implications. That is functionally a restatement of the district court's conclusion on the 60–1507 motion that he was competent to plead. We may infer Kelley had a significant criminal history. He would have faced a standard grid sentence of 216 months on the aggravated robbery charge that could have been imposed as a consecutive term of incarceration. Kelley realized a material benefit from the plea agreement.
The record and the district court's findings undercut any implication of manifest injustice that would have warranted allowing Kelley to set aside his plea.
Finally, on appeal, Kelley contends the lawyer handling his 60–1507 in the district court provided constitutionally inadequate representation. The district court did not consider that issue, and there is no record from which we could make any determination. We, therefore, cannot consider the point and dismiss that contention without deciding it.
The district court's ruling denying Kelley's 60–1507 motion is affirmed.