Bellamy v. State

• Decision Date: 07 December 2007
• Docket Number: No. 94,365.,94,365.
• Citation: 172 P.3d 10
• Parties: Alex L. BELLAMY, Appellant, v. STATE of Kansas, Appellee.
• Court: Kansas Supreme Court

172 P.3d 10

Alex L. BELLAMY, Appellant, v. STATE of Kansas, Appellee.

No. 94,365.

Supreme Court of Kansas.

December 7, 2007.

Rick Kittel, of Kansas Appellate Defender Office, of Topeka, argued the cause, and Korey A. Kaul, of the same office, was on the brief for appellant.

Matt J. Maloney, assistant district attorney, argued the cause, and Jeffrey E. Evans, assistant district attorney, Nola Tedesco Foulston, district attorney, and Phill Kline, attorney general, were on the brief for the appellee.

The opinion of the court was delivered by ROSEN, J.:

Alex L. Bellamy petitioned this court to review the Court of Appeals' opinion affirming the denial of his K.S.A. 60-1507 motion. The district court dismissed Bellamy's motion without conducting an evidentiary hearing on Bellamy's claim that he received ineffective assistance of counsel. Bellamy asserts that the Court of Appeals applied an incorrect standard of review and seeks to have this matter remanded for an evidentiary hearing.

FACTS

Alex Bellamy was charged with one count of rape for engaging in sexual intercourse with A.P., a 21-year-old woman who suffered from brain damage due to an illness during her infancy. A.P.'s brain damage caused physical and developmental disabilities which required her to attend special schools. Bellamy was charged alternatively with rape by force or fear, pursuant to K.S.A.2001 Supp. 21-3502(a)(1)(A), and rape where the victim was incapable of giving consent due to mental deficiency or mental disease, pursuant to K.S.A.2001 Supp. 21-3502(a)(1)(C). Bellamy pled guilty to rape based on A.P.'s incapacity to consent.

When Bellamy was 24 years old, he met A.P. while he was driving around and observed A.P. in her family's front yard. He decided to pull his car over and talk to her. After asking A.P.'s name and age, Bellamy asked A.P. if she wanted to go for a ride. A.P. asked her older brother for permission to go and then got in the car with Bellamy.

Bellamy took A.P. to his house. He and A.P. went to his bedroom and, after talking for a while, began kissing. Bellamy then repeatedly asked A.P. if she wanted to have sex with him. At first, A.P. said no, then she said maybe, and finally A.P. said yes because she thought Bellamy might hurt her. A.P. asked Bellamy to use a condom.

After having sexual intercourse with A.P., Bellamy drove A.P. home. A.P. told her mother where she had been and what had happened. Upon her mother's request, A.P. directed her mother to Bellamy's house. A.P.'s mother then called the police.

Bellamy entered into a plea agreement in which the State agreed to recommend probation as a dispositional departure rather than the presumptive prison sentence pursuant to Kansas sentencing guidelines. At Bellamy's sentencing hearing, Bellamy's counsel advised the court that Bellamy had undergone a psychological evaluation, which revealed that Bellamy also suffered from diminished mental capabilities and had been in special education classes throughout his schooling. Because students in special education classes were Bellamy's peers, Bellamy did not see people with intellectual or emotional impairment as abnormal. According to the psychological evaluation, it may have been asking too much of Bellamy to diagnose or appreciate a casual acquaintance as being mentally impaired. Based on this information, the district court sentenced Bellamy to an underlying prison term of 155 months but granted a dispositional departure and directed Bellamy to serve 36 months on probation. Bellamy did not appeal.

After Bellamy had been on probation for about a year and a half, he was charged with a probation violation for failure to maintain employment, failing to report to his probation officer, making a false police report, and resisting arrest. Bellamy admitted the allegations, advising the court that he had loaned his car to the friend of a friend, who had not returned the car. Because Bellamy did not know who had borrowed his car, he reported it as stolen and told police that he had been carjacked. Without transportation, Bellamy was unable to get to work or to his appointments with his probation officer. When Bellamy admitted to police what had actually happened to his car, the police arrested him for making a false report. Based on this information, the district court revoked Bellamy's probation and ordered that his probation be reinstated after he served 60 days in jail. The court also extended his probation by 6 months.

A short time later, Bellamy was charged with violating his probation again. The second probation violation warrant alleged that Bellamy had failed a drug test. Bellamy admitted the allegation, explaining that he had been left homeless when he was released from serving the jail time ordered as part of his prior probation violation. Without a place to reside, Bellamy began living with a man who used drugs and had encouraged Bellamy to use drugs. Bellamy's counsel argued that Bellamy did not have a drug problem and would be successful on probation if he could get the appropriate support. However, the district court revoked Bellamy's probation and reinstated his prison sentence, modifying the term of imprisonment from 155 months to 147 months.

After attempting to appeal his conviction and sentence out of time, Bellamy filed a pro se 60-1507 motion alleging, among other things, that his trial counsel was ineffective. According to Bellamy, his attorney advised him that A.P. was legally incapable of giving consent because she had been in special education.

In response to Bellamy's 60-1507 motion, the district court appointed counsel to represent Bellamy and conducted a preliminary hearing. After hearing arguments from Bellamy's counsel and the State, the district court denied Bellamy's 60-1507 motion without an evidentiary hearing.

Bellamy appealed the denial of his 60-1507 motion to the Court of Appeals. In an unpublished opinion, Bellamy v. State, No. 94,365, filed September 29, 2006, the Court of Appeals affirmed the district court's denial, and Bellamy filed a petition for review. We granted Bellamy's petition for review to determine whether the Court of Appeals applied the proper standard of review and whether Bellamy should have received a full evidentiary hearing on his claim of ineffective assistance of counsel.

ANALYSIS

Bellamy first argues that the Court of Appeals erroneously applied an abuse of discretion standard in its decision affirming the district court's denial of his 60-1507 motion. Relying on Laymon v. State, 280 Kan. 430, 436-38, 122 P.3d 326 (2005), Bellamy asserts that the proper standard of review is de novo because the appellate courts can review the motion, files and records in the same manner as the district court.

In Laymon, this court noted that prior cases have often stated the standard of review to be an abuse of discretion because the sentencing court has discretion to determine whether a 60-1507 claim is "`substantial before granting a full evidentiary hearing and requiring the prisoner to be present.'" 280 Kan. at 436-37, 122 P.3d 326 (quoting Supreme Court Rule 183(h) [2004 Kan. Ct. R Annot. 221]). Nevertheless, the Laymon court applied a de novo standard, reasoning:

"[T]o the extent a decision is based only upon the `motion, files, and record' of a case, an appellate court is as equipped as a district court to decide the issues efficiently and reliably, and both this court and the Court of Appeals routinely engage in de novo review of summary denials of 60-1507 motions while giving lip service to the abuse of discretion standard." (Citation omitted.) 280 Kan. at 437, 122 P.3d 326.

Bellamy asserts that our decision in Laymon is confusing because it does not explicitly overrule the prior case law applying an abuse of discretion standard. We note that Bellamy's assertion fails to recognize the limiting language used in applying the de novo standard in Laymon to those cases involving summary dismissal by the district court. Nevertheless, we are mindful of the inconsistency in the standard of review applied to 60-1507 motions and will clarify the confusion.

Our research reveals that Kansas appellate courts have applied three different standards in reviewing 60-1507 motions — abuse of discretion, de novo, and findings of fact and conclusions of law. See, e.g., Flynn v. State, 281 Kan. 1154, 1157, 136 P.3d 909 (2006) (applying a findings of fact and conclusions of law standard in concluding that the district court properly denied petitioner's claims of ineffective assistance of counsel); Graham v. State, 263 Kan. 742, 753, 952 P.2d 1266 (1998) (concluding that the district court's findings were not supported by substantial competent evidence, reversing the district court's order for a new trial, and remanding for a hearing on petitioner's sentence); Taylor v. State, 252 Kan. 98, 103, 843 P.2d 682 (1992) (affirming the denial of petitioner's claim that he was denied the right to testify due to ineffective assistance of counsel based on a findings of fact and conclusions of law standard); Estes v. State, 221 Kan. 412, 414, 559 P.2d 392 (1977) (upholding district court's summary denial of petitioner's motion based on an abuse of discretion standard); Morrow v. State, 219 Kan. 442, 548 P.2d 727 (1976) (applying a de novo standard without articulating a standard); Johnson v. State, 203 Kan. 947, 457 P.2d 181 (1969) (applying a de novo standard in concluding that petitioner's trial counsel was effective); Sharp v. State, 203 Kan. 937, 457 P.2d 14 (1969) (using a de novo standard in affirming the district court's denial of an evidentiary hearing on petitioner's claim that his guilty plea was coerced by ineffective counsel); White v. State, 201 Kan. 801, 443 P.2d 182 (1968) (using a findings of fact and conclusions of law standard in reviewing the district court's evidentiary hearing and remanding the matter to the district court for findings of fact and conclusions of law); Brown...