Galleher v. State

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NOT DESIGNATED FOR PUBLICATION
No. 118,485
IN THE COURT OF APPEALS OF THE STATE OF KANSAS

BRANDON LEE GALLEHER,
Appellant,
v.
STATE OF KANSAS,
Appellee.



MEMORANDUM OPINION


Appeal from Harvey District Court; JOE DICKINSON, judge. Opinion filed November 30, 2018.
Affirmed.


Korey A. Kaul, of Kansas Appellate Defender Office, for appellant.



David E. Yoder, county attorney, and Derek Schmidt, attorney general, for appellee.



Before MALONE, P.J., PIERRON, J., and BURGESS, S.J.



PER CURIAM: Brandon Lee Galleher was convicted of attempting to manufacture
methamphetamine, possession of precursor products, possession of drug paraphernalia,
and nonresidential burglary. He was sentenced to 110 months in prison. Galleher filed a
K.S.A. 60-1507 motion claiming ineffective assistance of counsel because his attorney
did not inform him of every plea offer that the State offered. The district court denied the
motion finding that Galleher's attorney conveyed all offers from the State and was not
ineffective as counsel. Galleher appeals from the order denying the motion. Finding no
error, we affirm.
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FACTUAL AND PROCEDURAL BACKGROUND


On March 6, 2012, Galleher was arrested and charged with: (1) attempt to
manufacture methamphetamine, (2) possession of precursor products with intent to
manufacture methamphetamine, (3) possession of drug paraphernalia, and (4) non-
residential burglary. The district court ultimately appointed Randall Fisher as Galleher's
counsel.


Before trial, the State's attorney, David Yoder, and Fisher began plea negotiations.
On May 29, 2012, Yoder made a plea offer of 49 months in prison if Galleher pled to
count two: possession of precursor products. Fisher discussed the plea offer with Galleher,
but Galleher rejected it because he did not want to serve any prison time. The details of
the plea offer were set forth in a letter the day after the conversation.


On June 18, 2012, Yoder spoke with Fisher over the phone and told Fisher that
based on a recent Kansas Supreme Court case, Yoder could no longer offer 49 months for
count two. Yoder then offered a plea to count one, attempt to manufacture
methamphetamine, but left the amount of prison time open for the district court to decide
at sentencing. Fisher would not be able to argue for a dispositional departure under this
plea offer because Yoder was adamant about Galleher serving a prison sentence. Yoder
testified that he did not believe this was a firm plea offer, just a discussion with Fisher
about what could potentially be offered.


Fisher believed it was a firm plea offer and testified that he took the offer to
Galleher. Again Galleher rejected the plea offer because he was unwilling to accept any
plea that would result in prison time. Fisher did not have any notes detailing whether he
took the second plea offer to Galleher the same day it was received, but his billing
statements reflected that he visited the county jail and Yoder the next day. Fisher testified
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that he probably relayed the offer to Galleher first and then went to Yoder's office to tell
him Galleher rejected the second plea offer.


Galleher testified that Fisher never conveyed this second plea offer to him, but he
would have taken the deal because he claims it would have allowed him to ask for either
a dispositional or durational departure at sentencing. Galleher also testified it would
benefit him because the remaining charges would be dismissed and he would only have
had the first conviction on his record instead of four.


Yoder also offered a third and final plea offer on June 19, 2012. The final plea
offer consisted of Galleher pleading to count one, attempt to manufacture
methamphetamine, for 50 months in prison. Fisher relayed this offer to Galleher in a
letter dated June 20, 2012, but Galleher again rejected this final plea offer because it
involved prison time. Galleher stated he would rather take his chances at trial. The letter
did not specifically mention the second plea offer because Yoder presented a new offer
within two days, but Fisher remembered that Galleher rejected every plea offer presented.



At trial, Galleher was convicted on all counts. Fisher requested durational and
dispositional departures, but the district court denied the dispositional departure.
However, the district court granted a durational departure and sentenced Galleher to 110
months on count one with the remaining charges running concurrent to the first for a total
of 110 months. Fisher filed a motion for a new trial, but the district court denied the
motion. Fisher then filed a notice of appeal from the bench trial arguing insufficient
evidence to support the convictions. On appeal, the Court of Appeals affirmed Galleher's
convictions. See State v. Galleher, No. 109,686, 2014 WL 2589823 (Kan. App. 2014)
(unpublished opinion).


In August 2015, Galleher filed a K.S.A. 60-1507 motion arguing Fisher was
ineffective as counsel in a variety of ways. The district court held a hearing on the
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motion, in which the only issue discussed was that Fisher did not inform Galleher of the
State's second plea offer. Yoder, Fisher, and Galleher all testified to their version of the
events, but the district court ultimately found Fisher more credible. The district court
found that the second plea offer was not a formal offer, but Fisher conveyed all three
offers to Galleher. Because Fisher did so, the district court could not find any reason that
Fisher was ineffective as counsel. The district court noted that because Galleher did not
accept any of the plea offers, he was able to ask for both a dispositional and durational
departure as he had hoped. Galleher filed a notice of appeal to this court.


DID THE DISTRICT COURT ERR IN DENYING GALLEHER'S K.S.A. 60-1507 MOTION?


Galleher's K.S.A. 60-1507 motion hearing solely focused on whether Fisher relayed
the second plea offer to him. The district court found that Fisher relayed all offers to
Galleher. On appeal, Galleher argues there was insufficient evidence to support this
decision and the district court should have looked to other nontestimonial evidence to
determine credibility.


Our standard of review for an ineffective assistance of counsel claim provides a
mixed question of law and fact. State v. Adams, 297 Kan. 665, 669, 304 P.3d 311 (2013).


"When such a claim is brought under K.S.A. 60-1507 and the district court conducts a
full evidentiary hearing on the claim, we review the district court's factual findings for
substantial competent evidence and determine whether the court's factual findings
support its conclusions of law. The district court's conclusions of law are reviewed de
novo. [Citation omitted.]" 297 Kan. at 669.


Substantial competent evidence is relevant and legal evidence which a reasonable person
could use to support a conclusion. State v. Butler, 307 Kan. 831, 853, 416 P.3d 116
(2018).
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In order for a K.S.A. 60-1507 movant to prevail on an ineffective assistance of
counsel claim, the movant must satisfy the constitutional standards set forth in Strickland
v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The movant
must show "(1) the performance of defense counsel was deficient under the totality of the
circumstances, and (2) prejudice, i.e., that there is a reasonable probability the jury would
have reached a different result absent the deficient performance." Sola-Morales v. State,
300 Kan. 875, 882-83, 335 P.3d 1162 (2014). Judicial scrutiny is highly deferential to
counsel and this court presumes that counsel gave adequate assistance and exercised
reasonable professional judgment in making all significant decisions. See State v. Kelly,
298 Kan. 965, 970, 318 P.3d 987 (2014).



Galleher first argues there was not substantial competent evidence to support the
district court's decision by pointing to the fact that Fisher sent Galleher a letter that only
included details of the first and third plea offers but not the second. Secondly, Galleher
argues that Fisher's billing statements do not indicate that Fisher saw Galleher at all on
the day the offer was made.


Conversely, the State argues that nothing in the record established that Fisher was
ineffective. The State asserts that Fisher's billing statement shows he had a telephone
conversation with Yoder on the day he made the second plea offer and visited with
Galleher the next day. The State contends that Fisher and Yoder's testimony both reflect
that Fisher took the second plea offer to Galleher before going to Yoder's office to inform
him that Galleher rejected the second offer. Further, the State asserts that Fisher
explained that his reason for not including the second plea offer in the letter was because
the second and third offers happened so close in time and Galleher had already rejected
the second offer. Thus, there was no reason to include it when a new plea offer was
already on the table.
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Generally, defense counsel must communicate all formal offers from the
prosecution to the defendant. "When defense counsel allowed the offer to expire without
advising the defendant or allowing him to consider it, defense counsel did not render the
effective assistance the Constitution requires." Missouri v. Frye, 566 U.S. 134, 145, 132
S. Ct. 1399, 182 L. Ed. 2d 379 (2012).



There is substantial competent evidence to support the district court's finding that
Fisher relayed the second plea offer to Galleher. Both Fisher and Galleher agreed that
Fisher relayed the first plea offer of 49 months to count two on May 29, 2012. Galleher
rejected this offer stating that he wanted probation and would not accept a plea offer that
included prison time. Fisher informed Yoder that Galleher rejected the first plea offer.


On June 18, 2012, Fisher and Yoder spoke on the telephone. Both Yoder and
Fisher testified that this conversation took place and Fisher's billing statement reflects
this as well. Both testified that because of a recent Kansas Supreme Court case, Yoder
could no longer offer a 49 month prison sentence for count two but that he would be
willing to make a plea offer on count one. Both Fisher and Yoder testified that Fisher
attempted to obtain a plea offer with probation, but Yoder was adamant Galleher serve a
prison sentence. The two men then discussed the idea of pleading to count one and
leaving the sentencing open for the district court. Both testified that Galleher would only
be allowed to ask for a durational departure under this plea offer. Galleher would not be
allowed to ask for a dispositional departure to probation.


While Yoder claimed he believed these discussions were simply negotiations,
Fisher testified that he believed this was a firm plea offer. Fisher testified that he
remembered telling Galleher of the second plea offer and Galleher rejected it because he
did not want to serve prison time. Fisher's billing statement reflects that he visited the
county jail and Yoder the next day, on June 19, 2012. Fisher testified that he probably
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went to see Galleher about the plea offer first and then went to Yoder's office to tell him

Galleher rejected the offer and that they could resume plea negotiations.



Galleher could only refute this version of events by saying that it did not happen.
He presented no evidence of an alternate version of events. The billing statement reflects
that Fisher visited Galleher the next day, June 19, 2012. Under Fisher's version, he visited
Galleher and upon rejection, he went to Yoder's office. As a result, Yoder made the third
and final plea offer. Because Fisher was having a hard time getting Galleher to listen to
him, he relayed the details of the third plea offer in a letter to Galleher on June 20, 2012.
Galleher rejected this offer again because it included a prison sentence. This letter is also
consistent with Fisher's billing statement. Fisher explained that he did not write a letter
about the second plea offer because he received a new offer within 24 hours and did not
see any reason to include that in the letter to Galleher with the new offer.


Given that the burden is on Galleher, Galleher provides little evidence to show that
Fisher did not relay the second plea offer. Galleher's only evidence is his own testimony
that Fisher did not relay the second offer. Although Fisher's notes do not provide specific
details about each offer, he remembered telling Galleher the second plea offer and
Galleher rejecting it. Considering Fisher's version of events along with the billing
statement, the June 20, 2012, letter, and the fact that a rejection of the offer was
consistent with Galleher's refusal to accept any plea that required prison time, the district
court found Fisher more credible. "The appellate court does not reweigh evidence, assess
the credibility of witnesses, or resolve conflicts in evidence." State v. Talkington, 301
Kan. 453, Syl. ¶ 3, 345 P.3d 258 (2015). Thus, a reasonable person could find there was
evidence to support the district court's decision that Fisher relayed the second plea offer.


This court must next review the district court's legal conclusion under unlimited
review. The district court held that Fisher was not ineffective as counsel. Because there is
substantial competent evidence to support a finding that Fisher relayed every plea offer
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the State offered, Fisher fulfilled his duties. Additionally, Fisher and Yoder testified that
Fisher continuously fought to get Galleher probation right up until the morning of trial.
However, Yoder was adamant about prison time and would not consider probation for
Galleher. The fact that Galleher did not receive the desired sentence cannot be attributed
to any action or inaction on Fisher's part.


Fisher filed a motion for a new trial after the district court convicted Galleher and
also argued for both a durational and dispositional departure at sentencing. This is what
Galleher wanted all along. Fisher was a zealous advocate for Galleher's position
throughout the entire case. Under the totality of the circumstances, the district court did
not err in finding that Fisher was effective as counsel. Such finding precludes any other
claims made by Galleher.





Affirmed.