Ketley v. State

NOT DESIGNATED FOR PUBLICATION

No. 116,944

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

GARRETT EDWIN KETLEY,
Appellant,

v.

STATE OF KANSAS,
Appellee.


MEMORANDUM OPINION

Appeal from Reno District Court; JOSEPH L. MCCARVILLE, III, judge. Opinion filed September
22, 2017. Affirmed.

Sam S. Kepfield, of Hutchinson, for appellant.

Thomas R. Stanton, deputy district attorney, Keith E. Schroeder, district attorney, and Derek
Schmidt, attorney general, for appellee.

Before GREEN, P.J., BUSER and LEBEN, JJ.

LEBEN, J.: Garrett Edwin Ketley appeals from the district court's summary
dismissal of his habeas corpus motion. Ketley filed a habeas corpus motion claiming
ineffective assistance of counsel after he was sentenced to a 98-month presumptive prison
sentence. The district court dismissed the motion because Ketley did not point to any
viable issues or facts that his attorney could have presented to get a better outcome for
Ketley.

2

Without specific facts about a potentially successful claim, Ketley's habeas motion
contained unsupported conclusions, such as a claim that his attorney's work "was fatally
deficient" or that had his attorney not been "lax" and "unattentive," she would have
negotiated for a better result. Without more specific facts, Ketley's motion is one that the
Kansas Supreme Court woud consider so "conclusory and inadequate" that no evidentiary
hearing is required. Trotter v. State, 288 Kan. 112, 135, 200 P.3d 1236 (2009). So the
district court properly dismissed his motion without holding an evidentiary hearing. We
affirm its judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Ketley was charged with several drug offenses arising on two dates in April and
May 2013. He was first arrested for felony possession of marijuana with the intent to sell
it, an offense serious enough that it has a standard 98-month presumptive prison sentence
even for a person who has no past criminal offenses. But while Ketley was out on bond
on the initial felony charge, he was arrested again—this time for felony possession of
marijuana with intent to sell within 1,000 feet of a school.

Since the charges arose from separate acts on different dates, the State charged
Ketley in two separate cases with those offenses and some related drug charges (like
possessing the marijuana without having a drug-tax stamp affixed to it). The court
appointed Alice Osburn to be Garrett Ketley's attorney for trial and sentencing. Ketley
ultimately pled guilty to all of the charges, which were then combined into a single
complaint for sentencing.

Before the sentencing hearing, Osburn filed a written motion for a departure
sentence of probation instead of the presumptive prison sentence called for under Kansas
sentencing guidelines. Osburn supported the motion with letters of family support and a
psychological evaluation suggesting that Ketley would do well in drug treatment outside
3

a prison setting. The district court denied the departure motion and sentenced Ketley to
98 months in prison for each of the possession-of-marijuana-with-intent-to-sell charges
(both the one near a school and the one that wasn't) and lesser sentences on three other
charges. The court ordered all of the sentences to run concurrently (rather than
consecutively, one after another), so Ketley's total prison sentence is 98 months.

Ketley appealed his sentence, and his appointed appellate counsel filed a motion
seeking summary disposition of the sentencing appeal. The Kansas Supreme Court
accepted the appeal for summary disposition but dismissed the appeal because Ketley had
received a presumptive sentence under Kansas sentencing guidelines and presumptive
sentences are, by statute, not reviewable. See K.S.A. 2016 Supp. 21-6820(c); State v.
Huerta, 291 Kan. 831, Syl. ¶ 3, 247 P.3d 1043 (2011).

Ketley then filed a habeas corpus motion attacking his sentence based on
ineffective assistance of counsel both at sentencing and on appeal. The district court
dismissed the motion because it found that Ketley did not suggest anything that his trial
counsel should have done but didn't. The district court also found that Ketley did not
identify an issue that should have been raised on appeal but wasn't. Ketley has appealed
to our court, arguing that it was improper for the district court to dismiss his petition
without first giving him an evidentiary hearing.

ANALYSIS

Our court independently reviews a summary dismissal of a K.S.A. 60-1507
motion, without any required deference to the district court. We must determine whether
the motion, files, and records of the case conclusively show the movant is entitled to no
relief. Holt v. State, 290 Kan. 491, 495, 232 P.3d 848 (2010) (citing Trotter v. State, 288
Kan. 112, 132, 200 P. 3d 1236 [2009]).

4

The Kansas Supreme Court has held district courts have three options when
considering a K.S.A. 60-1507 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).

Here, the district court determined that the first option applied and summarily dismissed
Ketley's motion without a preliminary or full evidentiary hearing.

To obtain an evidentiary hearing, the movant's claims must be based on more than
mere conclusory statements. In addition, evidence to support the claims must be cited in
the motion or otherwise appear in the court record. Holt, 290 Kan. at 495. But a district
court cannot deny a K.S.A. 60-1507 motion when it alleges facts—even if they are not in
the original record—that, if true, would entitle the movant to relief. State v. Holmes, 278
Kan. 603, 629, 102 P.3d 406 (2004).

We reviewed Ketley's motion and the court record of his case. We too conclude
that he is not entitled to relief and his allegations do not justify an evidentiary hearing
because he does not assert new facts that raise a substantial issue.

Ketley's motion failed to identify what his counsel should have done differently.
He generally argued that Osburn should have obtained a plea bargain that would have
given him probation or convinced the court to give him probation at sentencing. Ketley
has made no showing that his attorney was ineffective at the plea-bargaining stage. See
5

Seward v. State, No. 115,841, 2017 WL 948129, at *3 (Kan. App. 2017) (unpublished
opinion). Because the State is not required even to offer a plea bargain, it's hard to see
what Osburn could have done to force a better deal. If there is some answer to that,
Ketley has not provided it. Nor has he pointed to any failure by his attorney at the
sentencing hearing.

Ketley's petition claims that Osburn's "failed actions" are evident in the transcripts.
But within the only relevant transcript, the transcript of Ketley's sentencing hearing, we
find that the district court commended Osburn for presenting a departure motion seeking
probation, rather than prison, that was "very logical and very moving."

It's true that even though Osburn presented the motion and a supportive
psychological evaluation, the district court still sentenced Ketley to 98 months in prison.
But the result was not the fault of Ketley's attorney. Let's consider the context for Ketley's
sentencing. He had first been arrested for felony possession of marijuana with the intent
to sell it. After he posted bond, he immediately committed an even more serious
offense—possession of marijuana with the intent to sell it near a school. The court
commented that one reason it sent Ketley to prison rather than probation was that Ketley
had committed a more serious crime while on felony bond after his initial arrest.

We also note that there is support in the record for a conclusion that Osburn's
argument was at least somewhat effective. The State had proposed that the district court
give Ketley a 196-month sentence, making each sentence consecutive to one another
rather than concurrent. But the district court rejected that request.

As for Ketley's claim that his appellate counsel let him down, there were no issues
for that attorney to bring up because his sentence was not appealable. By law, appellate
courts do not review presumptive sentences. See K.S.A. 2016 Supp. 21-6820(c); Huerta,
291 Kan. 831, Syl. ¶ 3. The Kansas Supreme Court dismissed the appeal because Ketley
6

received a presumptive sentence. Ketley's counsel had no good argument to make, and
Ketley hasn't suggested otherwise.

In sum, Ketley already faced a presumptive prison sentence for the crime he
initially committed. But then—while on felony bond pending trial—he committed a
second crime that was more serious than the first one. He blames the resulting prison
sentence on his attorneys, but he has not pointed to any specific thing either his trial or
appellate attorney could have done to obtain a better sentence. We therefore agree with
the district court that Ketley did not make a sufficient showing to be entitled to an
evidentiary hearing.

The district court's judgment is affirmed.