Walling v. State

1

NOT DESIGNATED FOR PUBLICATION

Nos. 114,186
114,187

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

TERRY F. WALLING,
Appellant,

v.

STATE OF KANSAS,
Appellee.


MEMORANDUM OPINION

Appeal from Johnson District Court; JAMES FRANKLIN DAVIS and TIMOTHY P. MCCARTHY,
judges. Opinion filed June 17, 2016. Affirmed.

Brian C. Paden, of Olathe, for appellant.

Shawn E. Minihan, assistant district attorney, Stephen M. Howe, district attorney, for appellee.

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

Per Curiam: In these consolidated appeals from two K.S.A. 60-1507 motions,
Terry F. Walling seeks specific performance of his plea agreement. Walling is not
alleging that the district court erred in denying his motion to withdraw his guilty plea, nor
does he wish to set aside his plea. Instead, Walling asks this court to find that discussion
of his earliest release date constituted a promise and to read that promise into his written
plea agreement in which it does not appear. Walling also contends that his counsel was
ineffective in not getting his sentences to run concurrently. Finding no merit to these
claims, we affirm.
2

Procedural background

In 1984, Terry F. Walling received a lifetime maximum sentence following a rape
conviction in Douglas County, Kansas. After serving 18 years, Walling was released on
parole. In April 2012, Walling was charged with two counts of theft. The parties
negotiated a global plea agreement, which was mediated Judge Kevin P. Moriarty.

As instructed in mediation, Walling's attorney, Zach Thomas, contacted the
Kansas Prisoner Review Board (the Board) to find out what penalty Walling might face
after entering a guilty plea in the felony theft case. After contacting the Board, Thomas
informed Walling that the Board did not issue advisory opinions, and it would not come
to a decision until Walling was before the Board. Walling would not go before the Board
until after he entered his guilty plea. Also prior to finalizing the plea agreement, Assistant
District Attorney Ann Henderson contacted Michelle Sullivan, the manager for the
Sentence Computation Unit for the Kansas Department of Corrections (KDOC). Based
on the information provided, Sullivan estimated November 5, 2013, was the earliest
possible release date for Walling regarding his felony theft matter. No discussion was had
regarding parole because that "[was] for the parole board to decide." After the November
5 projected release date was provided, Kate Zigtema, Walling's attorney in the
misdemeanor cases, picked a "benchmark" date of November 3, 2013. This date was
selected "to make sure all the misdemeanor sentences were done so that [Walling]
wouldn't have to come back on a county jail hold after doing DOC time."

Following the negotiations, a global plea agreement was reached where Walling
pleaded guilty to count two, felony theft—the State dismissed count one. The parties
agreed to recommend a high box sentence of 17 months' imprisonment. The parties also
agreed Walling would serve his sentence consecutive to a Wyandotte County case, but
concurrent to four Johnson County cases. On January 7, 2013, the district court followed
3

the recommendations provided in the plea agreement and sentenced Walling to 17
months' imprisonment.

Although the record is not clear, it appears a hearing before the Board was held on
March 12, 2013. Walling testified he received a 29-month penalty for a parole
violation—conviction of a new felony while on parole. The Board decided to revoke
Walling's parole and to "[p]ass to September 2015." According to Walling, he would not
begin serving his 17-month sentence until he completed his parole violation penalty.
Even though it appears Walling did not go before the Board until March 2013, he filed a
K.S.A. 60-1507 motion on February 27, 2013, arguing that the State failed to abide by the
plea agreement because the KDOC "refuse[d] to recognize" the November release dates.
The district court held a hearing to address the motion in case number 13CV1438 on
December 3, 2013.

13CV1438 Hearing

At the hearing, Walling asked the district court for relief in two ways; he requested
specific performance of the plea agreement, or alternatively to withdraw his guilty plea.
After hearing testimony, the district court denied Walling's motion.

First, the district court found the State substantially performed under the
agreement. The district court stated: "The monkey wrench, so to speak, came into this
case by reason of the ruling of the Prisoner Review Board." The district court found the
November 5, 2013, release date, which Sullivan provided prior to a ruling from the
Board, was "simply as she testified was [his] current situation at the time of that
conversation." Second, the district court addressed Walling's motion to withdraw plea.
The district court noted Judge Stephen R. Tatum's prior ruling that Walling "got a really
great deal." The district court found no manifest injustice existed "by having the parties
perform in this context." Walling timely appeals.
4

14CV6253 Hearing

Following his sentence in January 2013, Walling filed a number of pro se motions.
In addition to the K.S.A. 60-1507 filed in February 2013, Walling also filed a K.S.A. 60-
1507 motion in case number 14CV6253 on October 2, 2014. In this motion, Walling
claimed his plea agreement was invalid because the consecutive sentence was not
operating as ordered by the district court. Walling also claimed his counsel was
ineffective for failing to know the correct sentencing laws. A hearing was held on
February 24, 2015, where the district court considered Walling's motion to correct his
illegal sentence. The district court found "there was no Murdock issue and that any
calculation error by the Kansas Department of Corrections must be taken up in the county
in which he is incarcerated. [Walling] has a pending case in Leavenworth County District
Court to address that issue."

Then, on May 13, 2015, the district court held an evidentiary hearing on Walling's
K.S.A. 60-1507 motion. First, the district court found that Walling had filed this motion
outside of the 1-year time limitation; however, the district court extended the time limit in
order to prevent manifest injustice. The State does not challenge this finding on appeal.

Next, the district court found the representation in this case by both Thomas and
Zigtema was appropriate, stating:

"Walling had two attorneys handling his cases. Ms. Zigtema handled the
misdemeanors and Mr. Thomas the felony. They both participated in the negotiations and
the mediation conducted regarding the Johnson County Cases. Ms. Zigtema got the
potential sentences on the misdemeanors folded into the sentence in 12CR825. The Court
finds no issue with regard to her representation of Walling.

"Mr. Thomas negotiated what everyone involved in the case classified as a good
deal. Walling's sole complaint is that he claims he was told that his release date was
5

11/5/13. Mr. Thomas testified that he contacted the Prisoner Review Board and was told
they don't give advisory opinions. It appears it was not possible to give him a release date
that was firm.

"Walling testified that [he] had served two previous sanctions of 90 days for
technical violations of his lifetime parole. It seems unlikely that Mr. Walling believed
that he would receive no sanctions for new charges. The Court finds that the
representation provided by Mr. Thomas was appropriate in this case."

The district court denied Walling's K.S.A. 60-1507 motion. Walling timely appeals.

Is specific performance a possible remedy in a K.S.A. 60-1507 motion?

Initially, we state our doubts that a defendant may use a K.S.A. 60-1507 motion to
obtain specific performance of a plea agreement. Walling shows the court no instance in
which this remedy has ever been given under this statute.

The remedy of specific performance appears to be outside those provided for in
K.S.A. 60-1507(a), which provides:

"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 Kansas
. . . may . . . move the court which imposed the sentence to vacate, set aside or correct the
sentence."

For example, if a district court finds that sentencing counsel provided ineffective
assistance of counsel in violation of a defendant's Sixth Amendment rights and that the
ineffective assistance prejudiced the defendant, the district court may vacate the initial
sentence and impose a new one. See State v. Allen, 28 Kan. App. 2d 784, 791-93, 20 P.3d
747 (2001). But Walling cites no authority for the proposition that specific performance
6

of a plea agreement is included within the court's authority to "correct the sentence," and
the plain meaning of that phrase is not so broad as to encompass what Walling seeks
here. Nonetheless, because the State has not raised that procedural argument, we address
the merits of this case.

Did the district court err in finding the State substantially complied with the plea
agreement?

On appeal, Walling claims: "[T]he State Breached the terms of the plea agreement
when the Department of Corrections failed to follow the release date provided by the
Sentencing Computation Unit. Thus, there was a breach of the contractual plea resulting
in [Walling] serving a longer sentence." Walling further contends "the information
provided by Michelle Sullivan, the specific release date, binds the Department of
Corrections to the global plea." We first set forth our standard of review.

The allegation that the State breached a plea agreement involves a question of law
over which we have unlimited review. State v. Peterson, 296 Kan. 563, 567, 293 P.3d
730 (2013). Our Supreme Court has held:

"A plea agreement is a contract between the State and the accused, and the
exchanged promises must be fulfilled by both parties. [Citation omitted.] 'An expectation
inherent in all plea agreements is that each party will honor the terms of the agreement.'
[Citations omitted.] The State's breach of a plea agreement denies the defendant due
process. [Citations omitted.] 'If the State fails to perform its obligations under a bargained
plea agreement, then the court must decide whether justice requires that the promise be
fulfilled or whether the defendant should have the opportunity to withdraw his or her
plea.' [Citation omitted.]" Peterson, 296 Kan. at 567.

First, we look to the actual terms of the plea agreement to ascertain the parties'
intent. See Stechschulte v. Jennings, 297 Kan. 2, 15, 298 P.3d 1083 (2013). Although
Walling contends that he would never have agreed to a plea without a fixed "out date,"
7

neither the November 5, 2013, release date nor any other release date was mentioned, let
alone promised, in the plea agreement. Additionally, throughout the hearings, the
witnesses consistently testified that this was the "earliest possible release date," and
Walling concedes he understood that fact. (Emphasis added.) The district court correctly
found the date Sullivan provided was simply based on information she had in front of her,
which did not include any penalties provided by the Board. Therefore, the November 5,
2013, date was neither a binding release date, nor was it included in the plea agreement.
Walling does not contend that the State breached any provisions included in the plea
agreement.

Second, we look at the parties involved in the plea agreement. Neither the Board
nor the KDOC was a party to the plea agreement. Thomas informed Walling that the
Board would not issue advisory opinions and would not convene until Walling went
before the Board, which would not occur until after he entered his guilty plea in the
felony theft case. Walling had previous experience before the Board, having served two
sanctions for technical violations. Walling concedes knowing that he was on lifetime
parole and that the plea was not binding on the Prisoner Review Board.

Third, we examine whether Walling was able to understand the nature of his plea
agreement and was represented by counsel. It is uncontested that Walling was
represented by counsel in the misdemeanor cases as well as in the felony theft case. At
the plea hearing, the district court established the voluntary nature of the plea agreement
and Walling's ability to understand it, and specifically asked, "Besides this plea
agreement, sir, has anybody made any promises that you're counting on in entering your
guilty plea?" Walling replied, "No, sir." Walling thus disavowed any reliance on any
statements made about a fixed "out date."

Comparing the plea agreement to the journal entry of judgment, we find Walling
received the sentence he agreed to in his plea agreement. Because substantial competent
8

evidence supports the district court's findings that Walling's plea was knowingly and
voluntarily made and that the State substantially performed under the plea agreement,
Walling states no basis for specific performance of the plea agreement.

Did the district court err in failing to find Walling received ineffective assistance of
counsel?

In the district court, Walling argued his counsel was ineffective for "providing the
incorrect and wrong release dates." He argued his counsel was ineffective for failing to
inform him that the November 5, 2013, date was not a firm release date. Now, for the
first time on appeal, Walling argues his counsel was ineffective for failing "to argue for
concurrent time on all cases, including his lifetime parole case from Douglas County."

Issues not raised before the trial court cannot be raised on appeal. See State v.
Kelly, 298 Kan. 965, 971, 318 P.3d 987 (2014). Supreme Court Rule 6.02(a)(5) (2015
Kan. Ct. R. Annot. 41) requires an appellant to explain why an issue that was not raised
below should be considered for the first time on appeal. Litigants who fail to comply with
this rule risk a ruling that the issue is improperly briefed and will be deemed waived or
abandoned. State v. Godfrey, 301 Kan. 1041, 1043-44, 350 P.3d 1068 (2015).

In its decision denying Walling's motion, the district court found Walling's counsel
was appropriate because Walling received a "good deal," he was informed it was not
possible to provide a firm release date, and he had previous experience with the Board.
The district court did not address any claim regarding his counsel's failure to argue that
all of Walling's sentences should run concurrently because Walling never raised the
argument below. Accordingly, we need not reach the merits of this issue.

We do so here only to assure Walling that his counsel was, in fact, effective. A
claim alleging ineffective assistance of counsel presents mixed questions of fact and law.
Consequently, we review the underlying factual findings for support by substantial
9

competent evidence and the legal conclusions based on those facts de novo. State v.
Bowen, 299 Kan. 339, 343, 323 P.3d 853 (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) 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, 335 P.3d 1162 (2014),
relying on Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d
674, reh. denied 467 U.S. 1267 (1984).

K.S.A. 2015 Supp. 21-6606(c) provides that any person who is convicted of a
crime while on parole for a felony shall serve the sentence consecutive to the terms under
which the person was on parole. See State v. Currie, No. 111,542, 2015 WL 4486786, at
*1 (Kan. App. 2015) (unpublished opinion). Because Walling was serving a lifetime
parole sentence at the time he committed the new felony theft offense, that statute
required the district court to sentence him to consecutive sentences, unless to do so would
"result in a manifest injustice." K.S.A. 2015 Supp. 21-6819(a). Walling made no
argument regarding manifest injustice at the time of sentencing and makes none under
this motion. Thus, Walling's sentences were statutorily mandated to run consecutively.

We find no merit to Walling's contention that his counsel was deficient in not
agreeing to a sentence which would have been contrary to law. Nor do we find any
prejudice toward Walling by counsel's performance. Even had counsel argued for a
concurrent sentence, Walling could not have received it given the dictates of the statute
above, coupled with the facts presented to the district court which failed to establish that
running the sentences consecutively would have resulted in manifest injustice.

Affirmed.