State v. Kelly

318 P.3d 987, 298 Kan. 965, 2014 Kan. LEXIS 79
CourtSupreme Court of Kansas
DecidedFebruary 21, 2014
DocketNo. 105,934
StatusPublished
Cited by229 cases

This text of 318 P.3d 987 (State v. Kelly) is published on Counsel Stack Legal Research, covering Supreme Court of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Kelly, 318 P.3d 987, 298 Kan. 965, 2014 Kan. LEXIS 79 (kan 2014).

Opinion

The opinion of the court was delivered by

Biles, J.:

Terrance Kelly appeals the district court’s summary denial of his pro se motion to withdraw his guilty pleas to first-degree felony murder and aggravated robbeiy entered in 1995. He also argues the aggravated robbery sentence is illegal because his juvenile adjudications were used both to certify him for adult prosecution and to compute his criminal histoiy score. We hold that Kelly fails to demonstrate the manifest injustice required by K.S.A. 22-3210(d) to withdraw his guilty pleas. We hold further that his aggravated robbery sentence is not illegal. We affirm the district court’s judgment.

Factual and Procedural Background

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 robbeiy. The district court imposed a hard 15 life sentence for the felony-murder conviction and a consecutive 172-month sentence for the aggravated robbeiy conviction. Approximately 12 years later, Kelly moved to withdraw those pleas and correct what he argues is an illegal sentence for the aggravated robbeiy conviction.

In support of die motion to withdraw his pleas, Kelly alleges 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 claims on appeal that his hard 15 [967]*967life 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.

In the district court’s first consideration of the motion, it incorrectly treated Kelly’s pro se pleading as a request for relief under K.S.A. 60-1507 (habeas corpus statute) and denied it as time barred. Kelly appealed. This court reversed and remanded the motion for further proceedings, holding that the district court should have considered the motion under K.S.A. 22-3210(d), the statute applicable at the time to postsentence motions to withdraw pleas. State v. Kelly, 291 Kan. 563, 564-67, 244 P.3d 639 (2010). We concluded the motion was not time barred under the statute and on remand the district court was required to determine whether Kelly was entitled to withdraw his plea to correct manifest injustice. 291 Kan. at 564-67.

Notably, K.S.A. 22-3210 was amended in 2009. It now imposes a 1-year time limitation, which may be extended by a showing of excusable neglect. See L. 2009, ch. 61, sec. 1; K.S.A. 2013 Supp. 22-3210(e). Those revisions are not applicable to Kelly’s motion.

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 die 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 de[968]*968fenses 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.

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, die juvenile’s prior experience with tire 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 wididraw his plea weighed against determining that manifest injustice existed.

Kelly filed a timely notice of appeal. This court has jurisdiction pursuant to K.S.A. 22-3601(b)(l) (off-grid crime; life sentence).

Denial of Motion to Withdraw Plea

At the time Kelly filed his motion, the statute governing a district court’s decision to grant or deny a withdrawal of a guilty plea stated in pertinent part: “To correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw the plea.” K.S.A. 22-3210(d). Kelly claims he demonstrated manifest injustice and the district court erred in summarily denying his motion.

In that regard, we observe Kelly frames his issues now differently than when he last argued before this court. At that time, his appellate counsel conceded at oral argument that the district court was not required to hold an evidentiaiy hearing on remand in order to determine the merits of Kelly’s claims against the manifest injustice standard in K.S.A. 22-3210(d). Kelly, 291 Kan. at 567. But [969]

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Cite This Page — Counsel Stack

Bluebook (online)
318 P.3d 987, 298 Kan. 965, 2014 Kan. LEXIS 79, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-kelly-kan-2014.