Wahl v. State

1

NOT DESIGNATED FOR PUBLICATION

No. 114,888

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

DUANE WAHL,
Appellant,

v.

STATE OF KANSAS,
Appellee.


MEMORANDUM OPINION

Appeal from Crawford District Court; A.J. WACHTER, JR., judge. Opinion filed August 25, 2017.
Affirmed in part, vacated in part, and remanded with directions.

Kai Tate Mann, of Kansas Appellate Defender Office, for appellant.

Michael Gayoso, Jr., county attorney, and Derek Schmidt, attorney general, for appellee.

Before GREEN, P.J., POWELL and GARDNER, JJ.

Per Curiam: Duane E. Wahl pled guilty to one count of first-degree premeditated
murder. He was sentenced to a term of life imprisonment with the possibility of parole
after 25 years and lifetime postrelease supervision. In this appeal from the district court's
denial of his K.S.A. 60-1507 motion, Wahl raises several claims of error. We agree with
Wahl's claim that he should not have received lifetime postrelease supervision but affirm
all other issues.



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Factual and procedural background.

After Wahl pleaded guilty to one count of first-degree premeditated murder and
was sentenced, he did not directly appeal his sentence. Instead, he sent to the district
court a pro se motion for postconviction relief based upon ineffective assistance of
counsel. The district court dismissed Wahl's motion, finding that it was filed outside the
1-year statute of limitations, did not demonstrate manifest injustice to justify the late
filing, and was barred by the plea agreement. Wahl appealed that decision to this court
and we affirmed. Wahl v. State, No. 107,934, 2013 WL 4564823, at *4-5 (Kan. App.
2013) (unpublished opinion). Thereafter, the Kansas Supreme Court granted review,
reversed the district court and Kansas Court of Appeals, and remanded for the district
court to consider Wahl's motion. Wahl v. State, 301 Kan. 610, 616-17, 344 P.3d 385
(2015).

Wahl's motion and memorandum raised multiple claims of ineffective assistance
of counsel. First, Wahl claimed his original counsel, Steve Stockard, failed to relay a plea
offer from the State that would have permitted him to plead guilty to second-degree
murder in exchange for telling the State where he hid the victim's body. Wahl claimed
that appointed counsel, Jennifer Brunetti, told him he should plead guilty to avoid the
possibility of a hard 50 life sentence or the death penalty and failed to investigate the case
before advising Wahl of the plea agreement. Wahl incidentally raised a concern about his
competency at trial. Finally, Wahl claimed he was misled about the nature of the sentence
because he thought he would receive a definite 25-year sentence and not an indeterminate
life sentence with possibility of parole after 25 years.

Wahl later filed a motion for appointment of counsel and attached to it an affidavit
from his sister, Shiela Hall. Hall swore that Brunetti told her that the district attorney
"had offered, most likely, one more plea deal 25 years," then told her "the death penalty
was still an option." Because Hall believed that Wahl would get the death penalty if he
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did not accept the plea deal for first-degree murder, she begged Wahl to accept the plea
deal.

After the Supreme Court remanded Wahl's case, finding it had been timely filed,
Wahl submitted two additional affidavits via another pro se filing: one from his brother,
Matthew Wahl, and one from his mother, Marjorie Buckley. The affidavit from his
brother stated that he heard Brunetti tell Wahl when Wahl was in Crawford County Jail
that he "could be sentenced to death if he went to trial" and that "a plea would give him
25 years before maybe he would get parole." The affidavit from Wahl's mother stated that
she heard Brunetti tell Wahl when he was in Crawford County Jail that Wahl "could get
the death sentence, if he didn't plea for 25 years before he could get parole."

Wahl then filed a pro se motion for an evidentiary hearing which raised additional
claims. First, Wahl alleged Brunetti only met with him "3, 4, or more times for 5 to 10
minutes per each meeting" and stated the meetings occurred around court appearances.
Wahl asserted that he had a mental and physical impairment caused by various
medications which made him unable to assist in his defense and to understand what was
happening during meetings with counsel. Wahl also alleged that neither counsel
adequately investigated his case because they "would have potentially found that [his]
live-in girlfriend or wife at the time the alleged murder was committed" had made a
dying declaration that Wahl was innocent. Wahl asserted that neither counsel informed
him of the offer for him to plead to second-degree murder in exchange for informing the
State of the location of the body. Finally, Wahl reasserted his claim that Brunetti had
informed him and his family that the death penalty was a possible punishment.

The district court then appointed counsel to represent Wahl in his K.S.A. 60-1507
proceedings. It scheduled a telephone conference for June 2, 2015, to determine whether
an evidentiary hearing was necessary but, before that date, Wahl requested a preliminary
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hearing. The district court granted Wahl's request, canceled the status conference, and
held a preliminary hearing on July 30, 2015.

After the testimony was concluded, the court stated that the proceeding initially
began as a preliminary hearing to determine if an evidentiary hearing was necessary, but
the hearing had actually become an evidentiary hearing. The State agreed. The district
court asked whether Wahl would produce any additional evidence if another evidentiary
hearing were held, and Wahl's counsel responded:

"Judge, the only other person I would call if there was an evidentiary hearing
would be a Matthew Wahl but he's signed a statement that is attached to my client's
supplemental pleading that he's filed so that is the only additional information that I
would submit."

The court admitted the affidavit without objection from the State, heard closing
arguments from counsel, then took the motion under advisement because the parties had
offered transcripts and other matters that it had not yet read. The court specifically found
that it had conducted an evidentiary hearing, that the only other evidence the defendant
would have presented would have been the affidavit of Wahl's brother which the court
already had, and that it would take that affidavit into consideration before making its
findings in a written opinion.

On August 6, 2015, the district court filed its final order. First, the district court
found Wahl had advanced only two claims of ineffective assistance of counsel at the
hearing: entering a plea when Wahl was incompetent due to the medications and
coercing the plea by stating he could be subject to the death penalty. The court found the
following: (1) at all relevant times Wahl was competent and had knowingly entered into
the plea agreement; (2) neither of Wahl's attorneys at any time informed him that he
could potentially be subject to the death penalty if found guilty as charged; and (3) Wahl
had been informed of the correct maximum punishment for his offense before entering
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his plea. The district court held that Wahl had not shown ineffective assistance of
counsel.

On August 3, 2015, despite the fact that Wahl was represented by counsel at the
time, Wahl had mailed a pro se objection to not having another evidentiary hearing,
saying he had additional evidence that he wanted to admit. The district court did not
receive and file that objection until 4 days after its opinion was filed. Wahl has timely
appealed the decision of the district court denying his K.S.A. 60-1507 motion.

Has Wahl preserved his due process issue?

Wahl contends he was denied due process when the district court determined the
preliminary hearing would serve as the evidentiary hearing for his case. Before
addressing the merits of this claim, we consider whether Wahl has preserved it for appeal.

Generally, issues not raised before the district court, including constitutional
grounds for reversal, are not properly before us for review. State v. Godfrey, 301 Kan.
1041, 1043, 350 P.3d 1068 (2015). Instead, they are to be asserted to the district court
who has first-hand knowledge of the facts and circumstances and who should be given an
opportunity to address or cure the matter. Wahl did not object, however, when the district
court determined the preliminary hearing would function as an evidentiary hearing.

Wahl argues, however, that an exception to the general rule applies. See In re
Estate of Broderick, 286 Kan. 1071, 1082, 191 P.3d 284 (2008).Wahl claims that hearing
this issue will prevent the denial of a fundamental right. Accordingly, we choose to hear
the issue to prevent the potential denial of Wahl's fundamental right to due process. See
Godfrey, 301 Kan. at 1043.


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Was Wahl denied due process?

Wahl asserts that he was denied procedural due process by the court's
determination that the preliminary hearing would serve as his evidentiary hearing.
Procedural due process is comprised of two essential elements: notice and the
opportunity to be heard at a meaningful time and in a meaningful manner. Kennedy v.
Board of Shawnee County Comm'rs, 264 Kan. 776, 797-98, 958 P.2d 637 (1998).
Whether a person has received due process is a question of law over which we exercise
unlimited review. State v. Easterling, 289 Kan. 470, 475, 213 P.3d 418 (2009).

To establish a due process violation, the person claiming the violation must show
he or she was denied a specific procedural protection. State v. Robinson, 281 Kan. 538,
547, 132 P.3d 934 (2006). In determining what process is due, we use the factor
balancing test from Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 47 L. Ed. 2d
18 (1976). In re Marriage of Hutchison, 47 Kan. App. 2d 851, 856, 281 P.3d 1126
(2012). The factors we balance are: (1) the individual interest at stake; (2) the risk of
erroneous depravation of the interest and the probable value, if any, of additional or
substitute procedural safeguards; and (3) the State's interest in the procedure used,
including the fiscal and administrative burden additional or substitute procedures would
incur. Mathews, 424 U.S. at 335; Marriage of Hutchison, 47 Kan. App. 2d at 856.

Wahl contends that he was deprived of notice that the entirety of this claim was to
be determined in the hearing. To the extent Wahl may be arguing that he was entitled to
notice of an evidentiary hearing instead of notice of a preliminary hearing, we find no
deprivation. Wahl received notice of a preliminary hearing and does not show that the
notice he should have received of an evidentiary hearing would have been any different
in kind from the notice or the preliminary hearing he actually received. In a K.S.A. 60-
1507 proceeding, the purpose of a preliminary hearing is to determine if a substantial
question of law or fact exists that would support proceeding to a full evidentiary hearing.
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Lujan v. State, 270 Kan. 163, 170, 14 P.3d 424 (2000). The purpose of the evidentiary
hearing is, in contrast, to determine the merits of the claims. K.S.A. 60-1507(b). But
nothing about the nature of the notice itself works an injustice here.

Wahl's claim is more likely that the lack of notice deprived him of a meaningful
opportunity to present all his evidence. But Wahl was represented by counsel during the
hearing and makes no allegation that counsel did not adequately represent him. Wahl was
present at that hearing. Wahl called relevant witnesses, developed their testimony as well
as his own on both of the issues he wished to present, and addressed the merits of the
issues at length instead of merely skimming over their surface. The State cross-examined
the witnesses and presented lengthy portions of transcripts from prior hearings. The
parties also admitted letters from Brunetti to Wahl and the county attorney during plea
negotiations, a competency evaluation of Wahl by the Mental Health Center of Crawford
County concluding Wahl was incompetent, a subsequent competency evaluation of Wahl
by Larned State Hospital concluding Wahl was feigning his mental health issues, Wahl's
plea agreement, the transcript of Wahl's plea, the transcript of his sentencing, and copies
of Brunetti's visitor badges to the jail from when she visited Wahl. The extent and depth
of the inquiry during the hearing demonstrates that both parties addressed the merits of
the claims and not merely the threshold issue whether a substantial question of law or fact
would support a full evidentiary hearing.

Wahl alleges that he was denied the ability to call additional witnesses and present
additional testimony. But the record refutes that assertion, showing that Wahl had no
additional testimony other than the affidavit from his brother, which was already in the
record. When the district court remarked that the hearing had morphed from a
preliminary hearing into an evidentiary hearing and sought counsel's input on what
remained to be tried, Wahl's counsel stated:

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"Judge, the only other person I would call if there was an evidentiary hearing
would be a Matthew Wahl but he's signed a statement that is attached to my client's
supplemental pleading that he's filed so that is the only additional information that I
would submit."

The State did not object to the admission of that affidavit, and the district court took the
motion under advisement so it could review all the evidence in the matter. Accordingly,
Wahl received a full evidentiary hearing on his K.S.A. 60-1507 motion.

Wahl specifically contends only that his subsequent pro se written objection
"identifies many different pieces of evidence" that should have been considered at an
evidentiary hearing, and that his medical records from Community Health and from
Larned had not been received at the time of the preliminary hearing. But Wahl's counsel
did not include those medical records in the additional evidence he asked the court to
consider before making its decision, despite having solicited testimony that referred to
them.

Wahl did mail a written objection after the hearing had ended. But he did so at a
time he was represented by counsel and had no right to hybrid representation. While a
party has the right to represent himself or herself or be represented by counsel, he or she
does not have the right to a hybrid representation. State v. McKessor, 246 Kan. 1, 12, 785
P.2d 1332 (1990); see State v. Holmes, 278 Kan. 603, 620, 102 P.3d 406 (2004). The
right to the assistance of counsel and the right of self-representation may be viewed as
mutually exclusive rights. A criminal defendant does not have an absolute right to both
self-representation and the assistance of counsel. United States v. Halbert, 640 F.2d
1000, 1009 (9th Cir. 1981).

Because of our hybrid representation rule, a defendant who is represented by
counsel cannot dictate matters such as what witnesses to call, see State v. Ames, 222 Kan.
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88, 100, 563 P.2d 1034 (1977), or what motions to file. Thus a court faced with a pro se
submission at the time that defendant is represented by counsel has no duty to consider
that submission. "A pro se motion generally has no legal effect, due to hybrid
representation principles." Commonwealth v. Valenzuela, No. 598 MDA 2016, 2017 WL
1948637, at *3 (Pa. Super. Ct. 2017) (unpublished opinion) (finding pro se motion to be a
legal nullity); see Chambers v. Gaul, No. 105,229, 2017 WL 1955297, at *2 (Ohio Ct.
App. 2017) (unpublished opinion) (finding defendant's motions to dismiss for lack of a
speedy trial were not properly before the court because the State prohibited hybrid
representation); Bogle v. State, 284 Or. App. 882, 395 P.3d 643 (2017) (Postconviction
court was not required to consider merits of represented defendant's pro se claims and
make discretionary decision whether to direct defendant's attorney to assert them.); State
v. Rincon, No. 112,183, 2015 WL 9455560, at *15 (Kan. App. 2015) (unpublished
opinion) (holding a district court is not required to grant a defendant's request to proceed
pro se with appointed cocounsel), rev. denied 304 Kan. 1021 (2016); Johnson v. Premo,
355 Or. 866, 877, 333 P.3d 288 (2014) (holding defendant was without authority to file
any pro se motions after appellate counsel entered an appearance on defendant's behalf);
United States v. Noriega-Perez, 467 Fed. Appx. 698, 703 (9th Cir. 2012) (unpublished
opinion) (finding because Noriega-Perez was represented by counsel, only counsel could
file motions, so court properly declined to entertain his pro se submissions); United States
v. Bergman, 813 F.2d 1027, 1030 (9th Cir. 1987) (finding no error in the district court's
refusal to acknowledge defendant's pro se filings because he was represented by counsel).

Since there is no right to hybrid representation that is partially pro se and partially
by counsel, substantive documents submitted pro se by a person represented by counsel,
with the exception of motions to relieve counsel, need not be considered by the court or
filed by the clerk. City of Columbia v. Assa'ad-Faltas, 420 S.C. 28, 41 n.13, 800 S.E.2d
782 (2017) ("'Tails should not wag dogs. Merely because an appellant believes that the
irrelevant is relevant is no reason to turn the system on its head and solemnly contemplate
the wisdom of a person who does not have the sense to be guided by experts in an area
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where he himself possesses no expertise.' [Citation omitted.]") We consider Wahl's pro se
objection to be a legal nullity, since Wahl was represented by counsel at the time it was
filed. The district court thus had no obligation to reconsider its decision based on matters
alleged in that pro se objection.

Nonetheless, in an abundance of caution, we apply the Mathews factors to Wahl's
claim, first analyzing the individual interest at stake. Wahl's K.S.A. 60-1507 motion
alleged ineffective assistance of counsel, as guaranteed by the Sixth Amendment to the
United States Constitution. See, e.g., State v. Cheatham, 296 Kan. 417, 429-30, 292 P.3d
318 (2013). Because the proceeding involves a fundamental interest under the
Constitution, this factor weighs in Wahl's favor. Cf. In re Adoption of B.J.M., 42 Kan.
App. 2d. 77, 84, 209 P.3d 200 (2009) (weighing the first Mathews factor in favor of the
claimant because the proceeding below involved the fundamental liberty interest in
parenting one's own child).

We next analyze the risk of erroneous deprivation of the individual interest
through the procedures that were used. Here, there was a low risk of erroneous
deprivation because Wahl was given notice that he would be having a preliminary
hearing on that day and, although he was not required to do so, he voluntarily met the
additional burden that an evidentiary hearing would have imposed on him—to put on the
evidence needed to determine the merits of his claims instead of merely the evidence
needed to determine if a substantial question of law or fact existed that would warrant a
full evidentiary hearing. Under these circumstances, the probable value of the additional
or substitute procedural safeguard—a full evidentiary hearing—is minimal to
nonexistent.

The final factor is the State's interest in the procedure used, including the fiscal
and administrative burden additional or substitute procedures would incur. The State has
an interest in expediently adjudicating claims under K.S.A. 60-1507. See Supreme Court
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Rule 183(f) (2017 Kan. Ct. R. 222) (requiring a hearing on a K.S.A. 60-1507 motion to
be "prompt"). We also recognize the interest in not holding redundant hearings. Here, had
a subsequent evidentiary hearing been held, as Wahl desires, it would have been identical
or nearly so to the hearing already held. The State's interest in avoiding such a fiscal and
temporal burden is substantial.

On balance, we find that Wahl's due process rights were not violated. Accordingly,
we do not reach the State's assertion that Wahl invited any due process deprivation by
acquiescing to the district court's suggestion that the preliminary hearing serve as the
evidentiary hearing. See State v. Verser, 299 Kan. 776, 784, 326 P.3d 1046 (2014).

Did the district court err by not addressing all of the claims in Wahl's petition?

Wahl argues the district court erred by not addressing all the claims he raised in
his petition. Specifically, Wahl contends that the district court erred in not addressing his
claim of ineffective assistance of counsel as it related to Stockard representing Wahl.
Wahl claims this violates the rule that "[t]he court must make findings of fact and
conclusions of law on all issues presented." Supreme Court Rule 183(j) (2017 Kan. S. Ct.
R. 224). The interpretation of a Kansas Supreme Court Rule is a question of law. Kansas
Judicial Review v. Stout, 287 Kan. 450, 459, 196 P.3d 1162 (2008). Our review of
questions of law is unlimited. Gerhardt v. Harris, 261 Kan. 1007, 1010, 934 P.2d 976
(1997).

Although Wahl asserted additional issues in his petitions and memorandum, his
testimony was limited to only two of them. Wahl presented two issues—whether counsel
was ineffective for entering a plea Wahl did not understand due to medication and
whether counsel was ineffective for inducing the plea based on statements concerning the
death penalty. The district court addressed both of these issues and made findings of fact
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and conclusions of law on them. Supreme Court Rule 183(j) requires the district court to
address "all issues presented."

Wahl did not present any other claims. The State specifically asked Wahl if he had
claims in addition to those noted above—that the medications prevented him from
making a voluntary plea and that he was coerced into accepting a plea because he was
facing the death penalty. Wahl responded that those were the claims he wanted the court
to address. The State then asked, "Regardless of whatever has been filed, these are the
ones that you want to address; correct?" Wahl responded, "At this point in time, yes." The
district court addressed all issues presented, so we find no error in this respect.

Did the district court err in denying Wahl's motion under K.S.A. 60-1507?

We next address whether the district court erred in denying Wahl's K.S.A. 60-
1507 motion. We review the underlying factual findings for support by substantial
competent evidence and the legal conclusions de novo. State v. Bowen, 299 Kan. 339,
343, 323 P.3d 853 (2014).

Judicial scrutiny of counsel's performance in a claim of ineffective assistance of
counsel is highly deferential and requires consideration of all the evidence before the
judge or jury; the reviewing court must strongly presume that counsel's conduct fell
within the broad range of reasonable professional assistance. See State v. Kelly, 298 Kan.
965, 970, 318 P.3d 987 (2014). "To prevail on [a claim of ineffective assistance of
counsel], a criminal defendant must establish (1) the performance of defense counsel was
deficient under the totality of the circumstances" and (2) the defendant was prejudiced by
counsel's error. Sola-Morales v. State, 300 Kan. 875, 882, 335 P.3d 1162 (2014). To
establish prejudice, the defendant must show "that there is a reasonable probability that,
but for the deficient performance, the [outcome of the proceeding would have been
different]. . . . A 'reasonable probability' is a probability sufficient to undermine
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confidence in the outcome" of the proceeding. Miller v. State, 298 Kan. 921, 934, 318
P.3d 155 (2014).

Wahl contended that his counsel was deficient in two respects: failing to show the
court that his plea was not voluntarily made and improperly advising him as to the death
penalty.

The district court specifically found: (1) at all relevant times, Wahl was
competent and understood and knowingly entered into his plea agreement; (2) at no time
did any counsel that represented Wahl communicate to Wahl that he would potentially be
subject to a death penalty if found guilty as the result of a trial of his charges of first-
degree murder as charged in his case; (3) Wahl knowingly and voluntarily waived his
right to a preliminary hearing and trial of his charges; (4) before taking Wahl's plea of
guilty, the court specifically informed Wahl that the punishment for the premeditated
first-degree murder as charged in the Information "is life in prison and or a fine of up to
$500,000," and when asked if he understood what he was charged with and what the
punishment would be, Wahl answered "Yes"; (5) Wahl's guilty plea to a first-degree
murder charge in this case was a knowing and voluntary plea; and (6) Wahl was
represented by experienced and competent counsel, and Wahl's claim of ineffective
assistance of counsel was not supported by the totality of evidence presented.

The district court made two additional findings: that the evidence failed to show
that medications prescribed for Wahl during the plea negotiations and Wahl's plea had
any effect on his ability to knowingly, intelligently and voluntarily enter into the plea
agreement and that the evidence failed to show that Wahl's defense counsel did anything
during their representation of Wahl that might constitute ineffective representation.

We find substantial competent evidence in the record to support the district court's
findings. At the hearing, Wahl testified. He acknowledged that he had signed a plea
14

agreement and that he had been present before a judge who asked him about his plea.
Wahl contended that although he had some recollection of the plea hearing he was not
able to fully comprehend what was occurring due to medications he was taking. Wahl
described his mental state as being "zombie like" in that he did not understand what was
occurring and was open to suggestion. Wahl stated that he would not have taken the plea
if he had not been on medications.

Wahl also claimed he had been lied to about the possible punishment for his
offense. He remembered being told the death penalty was a possible punishment and the
hard 25 sentence was his best option. He claimed that after the discussion of the death
penalty, he was told that he could receive a 50-year sentence, which influenced him to
take the plea. On cross-examination, however, Wahl agreed that at the time of his plea the
court had informed him of the maximum penalty for his offense—life in prison.
Ultimately, Wahl claimed that he would not have taken the plea had he not been informed
that the death penalty was an option.

Next, Wahl called attorney Brunetti as a witness. Brunetti did not recall any issue
with Wahl's medications. While counseling Wahl concerning the plea, Brunetti read
through the plea agreement with him and answered any questions he had. Brunetti
believed that Wahl had understood the plea agreement and that she had answered all his
questions regarding the plea. Brunetti believed that Wahl was lucid and competent to
plea. She stated that she would not proceed with a plea if she did not believe the
defendant was competent. When Brunetti informed Wahl the decision to accept the plea
was solely his, Wahl responded that he wanted to take the plea.

Brunetti denied ever having told Wahl that he faced the death penalty. Brunetti
was not qualified to handle death penalty cases as a defense attorney at the time she
represented Wahl. She denied having discussed the death penalty at any time during any
court proceeding or during any conversation with Wahl or his family. Instead, in a letter
15

Brunetti sent to Wahl on July 22, 2010, she informed Wahl of the State's plea offer and
that the possible sentence was a hard 50.

The final witness was Marjorie Buckley, Wahl's mother. Buckley was present
during some of the conversations between Wahl and Brunetti. Buckley testified that she
never heard Brunetti tell Wahl that he was subject to the death penalty. She clarified that
Brunetti had said that this was a death penalty crime, but the death penalty was not on the
table for Wahl. Ultimately, Buckley acknowledged that she understood that the death
penalty was not an issue in Wahl's case.

The affidavit from Wahl's brother conflicted with his mother's testimony. It stated
that he heard Brunetti tell Wahl that he "could be sentenced to death if he went to trial"
and that "a plea would give him 25 years before maybe he would get parole."

Resolving the conflicting testimony about the death penalty was a matter for the
district court. The district court's findings reflect its tacit reliance on the testimony of
Brunetti and Wahl's mother, rather than on Wahl and his brother regarding this matter.
Brunetti's testimony that she was not qualified to handle a death penalty case is
compelling. The record noted above contains substantial competent evidence supporting
the district court's finding that counsel did not communicate to Wahl that he would
potentially be subject to a death penalty if found guilty as the result of a trial in this case.

Similarly, resolving the issue about the effect of Wahl's medications on his
decision to take the plea required the court to weigh Wahl's testimony against Brunetti's.
The district court gave Brunetti's testimony greater weight. Wahl did not recall events on
the date leading up to his plea or the date of his plea agreement—Brunetti did.

During Wahl's plea hearing, the district court inquired at length about Wahl's
medications:
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"The Court: Okay. Are you taking any medication at this time, Mr. Wahl?
"The Defendant: Yes.
"The Court: What medication are you taking?
"The Defendant: I have no idea, I don't know the names of them.
"The Court: Okay. Can you tell me what affect upon you this medication has?
"The Defendant: No.
"The Court: Do you know the purpose of taking your medication?
"The Defendant: Yeah, it is to stay calm.
"The Court: Okay. Would there be anything about that medication that would
prevent you from understanding what we are talking about?
"The Defendant: No.
"The Court: Have you understood me?
"The Defendant: Yes.
"The Court: Have you comprehended the questions I've asked of you?
"The Defendant: Yes.
"The Court: You've been able to track with me, you've [been] able to follow me;
is that correct?
"The Defendant: Yes.
"The Court: And, again, are you doing this today freely and voluntarily?
"The Defendant: Yes.
. . . .
"The Court: Okay. Do you have any comments you want to make, sir?
"The Defendant: No, sir.
"The Court: Ms. Brunetti, any comments?
"Ms. Brunetti: Just briefly, Your Honor. Concerning Duane's medication, I've
checked with the jail, it is all prescription medication and he's on a regimen of medication
and I don't have any problems with that.
"The Court: All right. And are you sure, Mr. Wahl, that there is nothing about
that medication that causes you to be unable to understand what we are discussing?
"The Defendant: No.
"The Court: So you are clear headed today; is that correct?
"The Defendant: Yes.
"The Court: Is that correct, sir?
"The Defendant: Yes, correct, sir."
17

The Court revisited the issue of Wahl's medications again, after the State offered
the factual basis for the plea:

"The Court: Thank you. Mr. Wahl, the Court is looking at the plea agreement.
Again, it does bear your signature?
"The Defendant: Yes.
"The Court: Signed and dated on October 7. Is that correct, sir? Is this your
signature on the plea agreement?
"The Defendant: Yeah, yes, sir.
"The Court: Okay. And, again, are you sure you understand everything that is
contained in the plea agreement?
The Defendant: Yes.
The Court: You're sure you don't have any questions of myself or Ms. Brunetti
with regard to anything that is in the plea agreement?
"The Defendant: I accept it.
"The Court: Okay. And, again, are you doing this today freely and voluntarily?
"The Defendant: Yes.
"The Court: Your medication does not prevent you from understanding what we
are doing today, what you are doing today; is that correct, sir?
"The Defendant: Yes.
"The Court: And I don't mean to put words in your mouth so if I'm incorrect,
please correct me. You are doing this today and you understand what it is you are doing;
is that correct?
"The Defendant: Yes.
"The Court: Okay. Mr. Wahl, I will accept your plea. I will find it is knowing
and voluntary . . . ."

Wahl's testimony during his 60-1507 hearing in 2015 contradicts his testimony during his
plea agreement in 2010 and was over 4 years removed in time from his plea hearing, and
his recall during the 60-1507 hearing about the plea hearing was admittedly very little.
The district court chose to give more weight to Wahl's testimony during his plea hearing
and to Brunetti's testimony that Wahl was able to make a voluntary and knowing plea and
18

there was no issue about his medications. Having reviewed the testimony from the
hearing, as well as the transcripts from Wahl's plea, we find substantial competent
evidence supporting the district court's decision that Wahl's guilty plea to a first-degree
murder charge in this case was a knowing and voluntary plea. Accordingly, the record
fully supports the district court's denial of Wahl's K.S.A. 60-1507 motion.

The district court erred in sentencing Wahl to lifetime postrelease supervision.

The district court sentenced Wahl to a term of lifetime postrelease supervision.
The State concedes this is an error and states that it has prepared a journal entry to correct
it. Under K.S.A. 2009 Supp. 22-3717(b)(1), Wahl is eligible for lifetime parole, not
lifetime postrelease supervision, after he serves 25 years of his lifetime sentence. Wahl's
sentence is an illegal sentence because it does not conform to the statutory requirements.
See State v. Moncla, 301 Kan. 549, 551, 343 P.3d 1161 (2015). The court may correct an
illegal sentence at any time. K.S.A. 22-3504(1). We remand so that the district court may
resentence Wahl by correcting this error in the event that it has not already done so.

Affirmed in part, vacated in part, and remanded with directions.