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Appeal from Johnson District Court; JOHN P. BENNETT, judge.
BY THE COURT
1. Under K.S.A. 22-3210(d), a court may set aside a conviction and allow a defendant to withdraw his or her plea after sentencing to correct manifest injustice.
2. Summary disposition of a postsentence motion to withdraw a plea under K.S.A. 22-3210(d) is appropriate if there is no substantial question of law or triable issue of fact and the files and records conclusively show the defendant is not entitled to relief on the motion. The movant bears the burden of alleging facts sufficient to warrant a hearing. Mere conclusions for which no evidentiary basis is stated or appears are insufficient.
3. A district court's summary denial of a postsentence motion to withdraw a plea is reviewed de novo.
4. A postsentence motion to withdraw a plea under K.S.A. 22-3210(d) alleging ineffective assistance of counsel due to deficient performance must meet the constitutional standards articulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674, reh. denied 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d 864 (1984), to establish manifest injustice. The defendant must demonstrate: (a) Counsel's performance fell below the standard of reasonableness; and (b) there was a reasonable probability that, but for counsel's errors, the defendant would not have entered the plea and would have insisted on going to trial.
5. Under K.S.A. 22-3504(1), Kansas courts have jurisdiction to correct illegal sentences at any time.
6. A prior juvenile adjudication considered in determining whether a defendant is or is not a juvenile offender does not enhance a crime's severity level or applicable penalties and may be used also to calculate the defendant's criminal history score.
Carl Folsom, III, of Bell Folsom, P.A., of Lawrence, argued the cause, and was on the brief for appellant.
Steven J. Obermeier, assistant district attorney, argued the cause, and Steven M. Howe, district attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.
[298 Kan. 966] BILES,
Terrance Kelly appeals the district court's summary denial of his pro se motion to withdraw his guilty pleas to first-degree felony murder and aggravated robbery entered in 1995. He also argues the aggravated robbery sentence is illegal because his juvenile adjudications were used both to certify him for adult prosecution and to compute his criminal history score. We hold that Kelly fails to demonstrate the manifest injustice required by K.S.A. 22-3210(d) to withdraw his guilty pleas. We hold further that his aggravated robbery sentence is not illegal. We affirm the district court's judgment.
Factual And Procedural Background
When he was 14 years old, Kelly robbed a liquor store, killing the store clerk with a sawed-off shotgun. The State charged him with premeditated first-degree murder, an alternative charge of first-degree felony murder, and aggravated robbery. The district court certified Kelly for adult prosecution. He later pleaded guilty to felony murder and aggravated robbery. The district court imposed a hard 15 life sentence for the felony-murder conviction and a consecutive 172-month sentence for the aggravated robbery conviction. Approximately 12 years later, Kelly moved to withdraw those pleas and correct what he argues is an illegal sentence for the aggravated robbery conviction.
In support of the motion to withdraw his pleas, Kelly alleges his attorneys failed to: (1) fully explain the sentencing consequences of the pleas; (2) keep him informed during the plea negotiations; (3) investigate and advise him of alternate defenses or trial strategies; and (4) explain the possibility of " diversion . . . from the criminal process," i.e., not challenging his prosecution as an adult and failing to assert his Miranda rights with respect to his pretrial statements to police. He further claims on appeal that his hard 15 [298 Kan. 967] life sentence and the consecutive 172-month prison sentence constituted cruel and unusual punishment under the Eighth Amendment to the United States Constitution and/or § 9 of the Kansas Constitution Bill of Rights.
In the district court's first consideration of the motion, it incorrectly treated Kelly's pro se pleading as a request for relief under K.S.A. 60-1507 (habeas corpus statute) and denied it as time barred. Kelly appealed. This court reversed and remanded the motion for further proceedings, holding that the district court should have considered the motion under K.S.A. 22-3210(d), the statute applicable at the time to postsentence motions to withdraw pleas. State v. Kelly, 291 Kan. 563, 564-67, 244 P.3d 639 (2010). We concluded the motion was not time barred under the statute and on remand the district court was required to determine whether Kelly was entitled to withdraw his plea to correct manifest injustice. 291 Kan. at 564-67.
Notably, K.S.A. 22-3210 was amended in 2009. It now imposes a 1-year time limitation, which may be extended by a showing of excusable neglect. See L. 2009, ch. 61, sec. 1; K.S.A. 2013 Supp. 22-3210(e). Those revisions are not applicable to Kelly's motion.
On remand, the district court again denied the motion without conducting an evidentiary hearing. In doing so, it observed that Kelly had two trial attorneys, both of whom participated in the plea hearing and separately stated on the record that they had informed Kelly of the rights he was waiving, and that even if counsel had not informed Kelly of the rights being waived, he could not establish prejudice because the district court informed him of those rights during the plea hearing. The court also rejected Kelly's claims that trial counsel failed to properly advise him of the sentencing ranges, and again determined that even if trial counsel ...