Sellers v. State

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NOT DESIGNATED FOR PUBLICATION
No. 118,105
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
JERRY DALE SELLERS,
Appellant,
v.
STATE OF KANSAS,
Appellee.



MEMORANDUM OPINION


Appeal from Saline District Court; JARED B. JOHNSON, judge. Opinion filed August 31, 2018.
Affirmed.


Kristen B. Patty, of Wichita, for appellant.



Ellen Hurst Mitchell, county attorney, and Derek Schmidt, attorney general, for appellee.



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



PER CURIAM: Jerry Dale Sellers appeals from the summary dismissal of his
K.S.A. 60-1507 motion alleging ineffective assistance of appellate counsel. Because his
K.S.A. 60-1507 motion is untimely and because his arguments are otherwise
unpersuasive, we affirm.


On September 7, 2007, the State charged Sellers with the following: (1) two
counts of rape or, in the alternative, aggravated indecent liberties with a child; (2) one
count of attempted aggravated criminal sodomy or, in the alternative, attempted criminal
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sodomy; (3) one count of aggravated criminal sodomy or, in the alternative, criminal
sodomy; and (4) two counts of indecent liberties with a child.


On November 18, 2008, in accordance with a plea agreement with the State, Sellers
entered a no contest plea to one count of indecent liberties with a child and a plea in
accordance with North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162
(1970), to another count of indecent liberties with a child. As a result of his plea
agreement, the State dismissed Sellers' remaining charges. Even though Sellers' plea
agreement recommended that the trial court run Sellers' indecent liberties with a child
sentences concurrently, the trial court ran Sellers' sentences consecutively. For both of his
indecent liberties with a child sentences, the trial court imposed the standard presumptive
grid sentence, resulting in Sellers receiving a controlling term of 152 months'
imprisonment followed by lifetime postrelease supervision.


Sellers appealed his sentences to our Supreme Court. Nevertheless, because
Sellers received presumptive sentences for his crimes, our Supreme Court dismissed
Sellers' appeal on July 9, 2010. See State v. Sellers, No. 102,166, 2010 WL 2816251
(Kan. 2010) (unpublished opinion).


Following the dismissal of his appeal, on June 28, 2011, Sellers filed a pro se
motion for relief under K.S.A. 60-1507. The trial court then appointed Sellers counsel,
who filed an amended K.S.A. 60-1507 motion on July 8, 2011. In his motion, Sellers
made three arguments why his plea counsel was ineffective: (1) counsel led him to
believe that his no contest and Alford pleas would not result in convictions; (2) counsel
failed to act on his request to withdraw his pleas before sentencing; and (3) counsel failed
to explain how his convictions would affect his criminal history. The trial court held an
evidentiary hearing on Sellers' motion. In the end, although the trial court found that
Sellers' plea counsel had provided him with some incorrect advice, it further found that
Sellers was not prejudiced by his counsel's deficient performance.
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Sellers appealed the trial court's denial of his K.S.A. 60-1507 motion. The trial
court appointed Gerald E. Wells to represent Sellers on appeal. On appeal, Sellers
generally repeated the arguments he made below. Yet, this court rejected each of Sellers'
arguments. Sellers, 2015 WL 5750517, at *7-9. Moreover, our Supreme Court denied
Sellers' petition for review on July 22, 2016.


Nine days before our Supreme Court denied Sellers' petition for review, on July

13, 2016, Sellers filed a pro se K.S.A. 60-1507 motion alleging that Wells provided
ineffective assistance of counsel. In his pro se motion, Sellers alleged that Wells was
ineffective for failing to raise the following issues in his first K.S.A. 60-1507 appeal: (1)
that the judge who presided over his plea and sentencing hearing engaged in misconduct
because he "participat[ed] in a plea agreement"; (2) that the trial court violated his "State
and Federal Constitutional rights by not ensuring that the existence of the factual basis for
the acceptance of the plea was rightfully introduced and explained in open court for the
record of what [he] was pleading [to]"; (3) that the State violated its obligations as stated
under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963); and (4)
that cumulative error otherwise required the reversal of his convictions.


Sellers' argument about the judge participating in the plea agreement involved the
judge's alleged statement to his counsel before he entered into the plea agreement.
According to Sellers and his counsel, the judge stated he had no "desire to hammer"
Sellers during sentencing. One of Sellers' counsel testified that he told Sellers about the
judge's statement before he entered into the plea agreement. Counsel explained that
Sellers wanted him to get a "promise" from the judge, but he told Sellers "you don't get
promises."


The State responded that the trial court should summarily dismiss Sellers' K.S.A.

60-1507 motion. The State asserted that Sellers' argument about the trial court
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participating in his plea agreement was conclusory. Concerning Sellers' arguments about
the factual basis and alleged Brady violation, the State argued that both complaints
involved alleged trial errors that Sellers could not properly raise under K.S.A. 60-1507;
thus, Wells had no obligation to raise those arguments on Sellers' behalf on appeal.


On August 10, 2016, the trial court summarily dismissed Sellers' pro se K.S.A. 60-

1507 motion. The court noted that following Sellers' K.S.A. 60-1507 evidentiary hearing,
it had found that any comment by the judge about not "hammering" Sellers during
sentencing did not affect Sellers' ultimate decision to accept the plea agreement. Because
the trial court stated that ample evidence in the record supported this finding, the trial
court determined that Wells had no duty to raise this argument on Sellers' behalf on
appeal. For Sellers' factual basis and Brady violation arguments, the trial court adopted the
State's contention that Wells could not properly raise either argument under K.S.A.
60-1507 given that the arguments involved trial errors. The trial court also found that
Wells could not have raised either argument on appeal given that Sellers did not raise
either argument below when arguing his K.S.A. 60-1507 motion.


Did the Trial Court Err by Summarily Dismissing Sellers' K.S.A. 60-1507 Motion?



Sellers argues that the trial court erred when it summarily denied his K.S.A. 60-

1507 motion because his allegations about Wells providing ineffective assistance of
counsel entitled him to an evidentiary hearing. Sellers believes that Wells should have
raised each of these arguments on appeal from his first K.S.A. 60-1507 motion. First, he
argues that the judge who presided over his plea hearing engaged in ex parte
communications with his counsel that encouraged him to accept the plea agreement by
telling his counsel that he had no "desire to hammer" him during sentencing. Second, he
argues that the State's factual basis for his indecent liberties with a child conviction for
which he entered an Alford plea was insufficient, seemingly because he had an alibi.
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Third, he argues that the State committed a Brady violation by withholding evidence
about cell phone records "involving the whereabouts of his body at a lake."


The State responds that all of Sellers' arguments are conclusory. Furthermore, the
State argues that because Sellers did not raise his arguments below, Sellers cannot show
that Wells was ineffective for failing to raise the arguments for the first time on appeal.


Applicable Law



Appellate courts exercise de novo review following the trial court's summary
dismissal of a K.S.A. 60-1507 motion. Beauclair v. State, 308 Kan. 284, 293, 419 P.3d
1180 (2018). Summary dismissal is appropriate only when the motions, files, and records
of the movant's case establish that the movant is not entitled to relief. 308 Kan. at 293. In
all other circumstances, a movant is entitled to a preliminary or an evidentiary hearing.


To establish ineffective assistance of counsel, the movant must show (1) that
counsel's performance was deficient under the totality of the circumstances and (2) that
prejudice resulted from counsel's deficient performance. When movants argue ineffective
assistance of appellate counsel, our Supreme Court has defined prejudice as a reasonable
probability that movants would have won their appeal but for their appellate counsel's
deficient performance. Miller v. State, 298 Kan. 921, 930-31, 934, 318 P.3d 155 (2014).
Appellate counsel's failure to raise an issue on appeal is not per se ineffective assistance of
counsel. Layman v. State, 280 Kan. 430, Syl. ¶ 3, 122 P.3d 326 (2005).


K.S.A. 2016 Supp. 60-1507 states:



"A prisoner in custody under sentence of a court of general jurisdiction claiming
the right to be released upon the ground that the sentence was imposed in violation of the
constitution or laws of the United States, or the constitution or laws of the state of
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Kansas, or that the court was without jurisdiction to impose such sentence, or that the
sentence was in excess of the maximum authorized by law, or is otherwise subject to
collateral attack, may, pursuant to the time limitations imposed by subsection (f), move
the court which imposed the sentence to vacate, set aside or correct the sentence."


For purposes of this case, subparagraph (f)(1)(A) provides that any action brought
under K.S.A. 2016 Supp. 60-1507 must be brought within one year of "[t]he final order of
the last appellate court in this state to exercise jurisdiction on a direct appeal . . . ."
Previously, subparagraph (f)(2) provided that movants could extend the one-year time
limitation if they established "manifest injustice." See K.S.A. 60-1507(f)(2). Because the
Legislature had not defined "manifest injustice," our Supreme Court created a test for
determining when manifest injustice existed in Vontress v. State, 299 Kan. 607, 325 P.3d

1114 (2014). In Vontress, our Supreme Court held that manifest injustice existed when
movants established one of the following nonexhaustive factors: (1) they could not
possibly file their motions within the one-year time frame; (2) they raised claims
deserving of consideration; or (3) they set forth colorable claims of actual innocence. 299
Kan. 607, Syl. ¶ 8.



Effective July 1, 2016, however, the Legislature amended K.S.A. 60-1507(f)(2) so
the one-year time limitation may be extended only when the movant establishes
"manifest injustice." In determining whether the manifest injustice exception applies, the
Legislature set forth two factors for the court to consider: (1) "why the prisoner failed to
file the motion within the one-year time limitation" and (2) "whether the prisoner makes a
colorable claim of actual innocence." K.S.A. 2016 Supp. 60-1507(f)(2)(A). The
Legislature explained "mak[ing] a colorable claim of actual innocence" required the
movant to establish that "it is more likely than not that no reasonable juror would have
convicted the prisoner in light of new evidence." K.S.A. 2016 Supp. 60-1507(f)(2)(A).
Under the new subsection, if a movant's motion is untimely and the movant cannot
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establish manifest injustice, then "the district court must dismiss the motion as untimely
filed." K.S.A. 2016 Supp. 60-1507(f)(3).


Motion Untimely



The trial court did not dismiss Sellers' motion based on it being untimely.
Nevertheless, this court may affirm the trial court when it reaches the right result despite
relying on the wrong reasoning. See Gannon v. State, 302 Kan. 739, 744, 357 P.3d 873
(2015). Moreover, in his brief, Sellers does not dispute that his motion does not comply
with the one-year time requirement under K.S.A. 2016 Supp. 60-1507(f).


Again, under K.S.A. 2016 Supp. 60-1507(f)(1)(A), movants have one year to
timely file their motion following the last appellate court to exercise jurisdiction on direct
appeal. Sellers' appeal was dismissed by our Supreme Court on July 9, 2010. Therefore,
Sellers had until July 9, 2011, to timely file his K.S.A. 60-1507 motion. Sellers did not file
his 60-1507 motion here until July 13, 2016. Thus, Sellers' motion was untimely.
Moreover, as Sellers recognizes in his brief, he must comply with manifest injustice
requirements.


Yet, Sellers believes he can establish manifest injustice. Indeed, Sellers has
provided two arguments why he believes his motion is properly before the court even
though he filed it over five years past the statutory deadline.


First, Sellers asserts that "his motion was [not] truly 'untimely'" because he has a
right to assistance of appellate counsel under K.S.A. 22-4506(b). Thus, Sellers assumes
that because he has a right to counsel, he also has a right to challenge counsel's
effectiveness under K.S.A. 60-1507. Simply put, this argument might have had traction
under the second Vontress factor—substantial issues deserving of consideration—but this
factor does not affect this case. In the very recent case, White v. State, 308 Kan. , Syl.
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¶ 1, 421 P.3d 718 (2018), our Supreme Court held that the 2016 amendments to the

K.S.A. 60-1507 time limitation apply to all motions filed on or after July 1, 2016. Thus, it
is readily apparent that the 2016 amendments, which require the movant (1) to provide
persuasive reasons for the delay, or (2) to make a colorable claim of actual innocence,
apply to Sellers' K.S.A. 60-1507 motion filed on July 13, 2016.


Moreover, Sellers' argument is conclusory and undeveloped. In his brief, Sellers
raises his arguments in passing with no analysis or argument. It is a well-known rule that
a point raised incidentally in a brief and not argued therein is deemed waived and
abandoned. State v. Sprague, 303 Kan. 418, 425, 362 P.3d 828 (2015). As a result,
despite the preceding problem, Sellers has abandoned his argument.


Second, both in his K.S.A. 60-1507 motion and on appeal, Sellers has asserted that
the fact he entered an Alford plea, as well as the fact he had an alibi defense, establishes
that he has a colorable claim of actual innocence. It seems Sellers believes that the
following statements from his K.S.A. 60-1507 motion support his colorable claim of
actual innocence: (1) that "[he] declared innocence through the alibi presented at the plea
hearing and at sentencing . . . ."; and (2) that "[he] continues to assert his actual and factual
claim of innocence in this case . . . ." Accordingly, Sellers' actual argument is that because
he continues to assert that he is innocent, he has a colorable claim of innocence. He
contends that the alibi defense, which he had in place way back when he pled to his
offenses, should weigh in his favor in our manifest injustice consideration.


Nevertheless, under the plain language of the amended K.S.A. 2016 Supp. 60-

1507(f)(2)(A), "the term actual innocence requires the prisoner to show it is more likely
than not that no reasonable juror would have convicted the prisoner in light of new
evidence." (Emphasis added.) As a result, not only must the K.S.A. 60-1507 movant
make a colorable claim of actual innocence, the movant must be doing so based on new
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evidence. Clearly, an alibi defense that Sellers recited at his plea and sentencing hearing
does not constitute "new evidence."


Additionally, Sellers' arguments are wholly undeveloped. Recently, in Beauclair,
our Supreme Court explained that movants who wanted to establish manifest injustice
under the new 2016 amendments must make more than conclusory contentions in which
they simply allege that they are innocent. The Beauclair court explained that the
application of the new manifest injustice rule should be a rare and extraordinary
exception, not the rule. 308 Kan. at 302. Thus, Sellers must do more than just allege that
he is innocent based on the same theories that he relied upon before he entered his pleas.


In short, Sellers' conclusory contentions of actual innocence falls far from the
mark. As a result, Sellers' July 13, 2016 K.S.A. 60-1507 motion was untimely.


Arguments Otherwise Meritless



Moreover, it is worth mentioning that even if Sellers' motion was timely, it would
still fail for other reasons. Specifically, his arguments fail either because Wells had no
duty to raise the argument or because Wells would have to raise the argument for the first
time on appeal.


In his first K.S.A. 60-1507 motion, which was pro se and filed on June 28, 2011,
Sellers never raised any complaints about the judge interfering with his plea negotiations.
Sellers' appointed counsel, who filed an amended K.S.A. 60-1507 motion on July 8,
2011, also never mentioned anything about the judge interfering with his plea
negotiations. It was not until Sellers' evidentiary hearing that his plea counsel testified
that the judge made a comment in private before Sellers entered into the plea agreement
that he "[did not] have a desire to hammer" Sellers on sentencing. The prosecutor could
not recall this statement.
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Although Sellers seemingly raised this argument through testimony, the trial court
explicitly rejected this argument in its order denying his K.S.A. 60-1507 motion. The trial
court explained that any statement by the judge about not looking to "hammer" Sellers
did not affect Sellers' decision to enter his pleas (1) because plea counsel told Sellers both
orally and in writing that "there were no promises regarding sentencing" and (2) because
Sellers acknowledged nobody made him any promises about sentencing during his plea
colloquy.


As emphasized by the State throughout its brief, appellate counsel is not per se
ineffective for not raising an issue on appeal. Laymon, 280 Kan. 430, Syl. ¶ 3. In deciding
what issues to raise, our Supreme Court explained:


"[A]ppellate counsel should carefully consider the issues, and those that are weak or
without merit, as well as those which could result in nothing more than harmless error,
should not be included as issues on appeal. Likewise, the fact that the defendant requests
such an issue or issues to be raised does not require appellate counsel to include them.
Conscientious counsel should only raise issues on appeal which, in the exercise of
reasonable professional judgment, have merit." Baker v. State, 243 Kan. 1, 10, 755 P.2d
493 (1988).



Here, even if we assume the judge made the comment, at best, all Sellers could
ever establish is that the judge made an improper comment. But this fact alone does not
mean that but for the judge's comment, Sellers would not have entered his pleas. In fact,
the following evidence supports that Sellers would have accepted his plea agreement
regardless of the judge's comment: (1) counsel's oral and written explanations on
sentencing; (2) counsel's testimony that when Sellers asked him to get the judge to make
a promise regarding sentencing, counsel told Sellers "you don't get promises"; (3) Sellers'
statement at his plea hearing that nobody had made him any promises; and (4) Sellers'
statement at sentencing that he accepted the plea agreement because he was facing up to
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600 months' imprisonment. Furthermore, in his appeal from the denial of his first K.S.A.

60-1507 motion, this court rejected Sellers' argument that he would not have accepted his
plea agreement but for counsel's bad advice about Alford pleas partly because of his
statement at sentencing. Sellers, 2015 WL 5750517, at *8.


As a result, from the motions, files, and records of Sellers' case, it is readily
apparent that Sellers' argument about the judge pressuring him to accept the State's plea
agreement by stating that he had no "desire to hammer" Sellers at sentencing was very
weak. This argument had no ability to succeed on appeal because the record shows that
the comment did not affect Sellers' decision to enter his pleas. Sellers was going to enter
his pleas regardless of this alleged comment by the judge. Consequently, the trial court
correctly determined that Wells had no duty to raise this argument on appeal from the
denial of Sellers' first K.S.A. 60-1507 motion. In turn, Wells was not ineffective for
failing to raise this argument.


Next, as for Sellers' remaining arguments, although Sellers complained that the
prosecutor should have dismissed his case in his first K.S.A. 60-1507 motion because of
his alibi defense, he never explicitly asserted that the factual basis of his charge for which
he entered the Alford plea was insufficient in either his pro se K.S.A. 60-1507 or his
counseled K.S.A. 60-1507 motions. Sellers also failed to raise any argument about an
alleged Brady violation by the State in either his pro se K.S.A. 60-1507 or his counseled
K.S.A. 60-1507 motions.


On appeal, Sellers never addresses that he did not raise these arguments before the
trial court when arguing his first K.S.A. 60-1507 motion. The State, however, argues that
Sellers' failure to raise these arguments below should control whether Wells was
ineffective for not raising the arguments on appeal. Generally, issues not raised below,
even issues involving constitutional rights, cannot be raised for the first time on appeal.
State v. Godfrey, 301 Kan. 1041, 1043, 350 P.3d 1068 (2015). Although there are
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exceptions to this rule, such as whether considering the newly asserted theory is
necessary to serve the ends of justice, a movant must establish that such an exception
applies. State v. Phillips, 299 Kan. 479, 493, 325 P.3d 1095 (2014).


Here, because Sellers has failed to address the fact that he did not raise the factual
basis and Brady violation arguments in his first K.S.A. 60-1507 motion, it necessarily
follows that, on appeal, he has not explained what exceptional circumstances he believes
Wells should have invoked on his behalf to raise these arguments for the first time on
appeal. Stated another way, by not addressing this part of the argument, Sellers has not
fully developed his argument. As a result, he has abandoned his argument. See State v.
Williams, 303 Kan. 750, 758, 368 P.3d 1065 (2016) (holding that an issue not briefed is
deemed waived and abandoned). On top of this, even if Sellers had not abandoned his
arguments, this court that earlier considered his appeal from the denial of his first K.S.A.
60-1507 motion, explicitly rejected an argument that Wells raised on Sellers' behalf for
the first time on appeal because this court does not consider arguments for the first time
on appeal. This court's rejection of the argument because Sellers raised it for the first time
on appeal suggests that even if Wells had raised the factual basis and Brady violation
arguments on Sellers' behalf for the first time on appeal, the arguments would have
failed. Sellers, 2015 WL 5750517, at *9.



For the preceding reasons, we affirm the dismissal of Sellers' K.S.A. 60-1507
motion.


Affirmed.