PATRICK B. GROSSMAN, Appellant,
STATE OF KANSAS, Appellee
Review of the judgment of the Court of Appeals in an unpublished opinion filed August 23, 2013.
Appeal from Sedgwick District Court; ANTHONY J. POWELL, judge.
BY THE COURT
1. When the district court denies a K.S.A. 60-1507 motion based only on the motion, files, and records after a preliminary hearing, appellate courts exercise de novo review.
2. A movant has the burden to prove his or her K.S.A. 60-1507 motion warrants an evidentiary hearing; the movant must make more than conclusory contentions and must state an evidentiary basis in support of the claims or an evidentiary basis must appear in the record. If a movant satisfies that burden, the court is required to grant a hearing unless the motion is second or successive and seeks similar relief.
3. If a direct appeal has been taken from a criminal conviction or sentence, the doctrine of res judicata provides that the parties to the appeal are barred from relitigating any issue decided in the direct appeal. Further, those issues that could have been presented in the direct appeal, but were not, are deemed waived in a collateral proceeding.
4. Ordinarily an ineffective assistance of trial counsel claim is not suitable for resolution on direct appeal.
Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, was on the briefs for appellant.
Matt J. Maloney, assistant district attorney, Nola Tedesco Foulston, former district attorney, and Derek L. Schmidt, attorney general, were on the briefs for appellee.
NUSS, C.J. MICHAEL J. MALONE, Senior Judge, assigned.
[300 Kan. 1059] Nuss, C.J.
Patrick B. Grossman filed a motion for postconviction relief under K.S.A. 60-1507, alleging his counsel at a probation revocation hearing was unconstitutionally ineffective. The district court denied his motion after a preliminary hearing, and the Court of Appeals affirmed. We granted his petition for review.
We agree with Grossman that the Court of Appeals erred by applying the doctrine of res judicata to bar his claim. But because his claim is meritless, we ...