Gilkey v. State, 88,234
Decision Date | 03 January 2003 |
Docket Number | No. 88,234,88,234 |
Parties | WILLIAM A. GILKEY, Appellant, v. STATE OF KANSAS, Appellee. |
Court | Kansas Court of Appeals |
Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellant.
Ian H. Taylor, assistant district attorney, Nola Foulston, district attorney, and Carla J. Stovall, attorney general, for appellee.
Before GERNON, P.J., KNUDSON, J., and LARSON, S.J.
William A. Gilkey brings this appeal after summary dismissal of his motion filed under K.S.A. 60-1507, contending ineffective assistance of counsel at his criminal trial in 1997. Gilkey was found guilty by a jury of three counts of aggravated assault, and his convictions were affirmed on appeal. See State v. Gilkey, No. 81,193, unpublished opinion filed December 10, 1999. There are two issues presented: (1) Were the district court's findings of fact and conclusions of law adequate for meaningful appellate review; and, if so, (2) did the court err in dismissing Gilkey's motion without an evidentiary hearing?
We remand to the district court for adequate findings of fact and conclusions of law as required under Supreme Court Rule 183(j) that is unequivocal: "The court shall make findings of fact and conclusions of law on all issues presented." (2001 Kan. Ct. R. Annot. 211.) See also Stewart v. State, 30 Kan. App. 2d 380, 42 P.3d 205 (2002).
In the underlying criminal case, Gilkey's convictions stemmed from a drive-by shooting on Kellogg Avenue in Wichita, Kansas. His defenses were mistaken identification and alibi. The trial judge was District Judge Warren Wilbert. In his direct appeal, Gilkey unsuccessfully raised issues of sufficiency of the evidence and juror misconduct. In this K.S.A. 60-1507 motion, Gilkey listed eight representations of fact to support his contention of ineffective assistance of trial counsel. Generally, those representations focused on trial counsel's lack of preparation, investigation deficiencies, failure to secure and introduce exculpatory evidence, and failure to request a mistrial upon an issue of jury tampering.
At a preliminary hearing upon Gilkey's 60-1507 motion, only Gilkey's court-appointed attorney and an assistant Sedgwick County District Attorney (who did not prosecute the criminal case) appeared before Judge Paul W. Clark. We are given no explanation why Judge Clark considered Gilkey's motion rather than the trial judge, Warren Wilbert. Ordinarily, we would expect the trial judge, because of his or her familiarity with the underlying criminal case, to make the preliminary review of a 60-1507 motion and decide if an evidentiary hearing should be conducted. See Schoonover v. State, 2 Kan. App. 2d 481, 482-83, 582 P.2d 292, rev. denied 225 Kan. 845 (1978). In fact, an appellate court's long-standing standard of review of a summary denial of a 60-1507 motion has probably been influenced by that expectation. In Chamberlain v. State, 236 Kan. 650, 659-60, 694 P.2d 468 (1985), the Supreme Court stated:
(Emphasis added.)
At the beginning of the 60-1507 hearing, Gilkey's court-appointed attorney reviewed the movant's allegations, stating:
Lynette Goines, the assistant district attorney, then responded:
Judge Clark then stated his decision:
Subsequently, the court's journal entry provided, in material part:
To continue reading
Request your trial-
Moll v. State
...rev'd in part on other grounds 284 Kan. 931, 169 P.3d 298 (2007); Harris, 31 Kan.App.2d 237, 62 P.3d 672, Syl.; Gilkey v. State, 31 Kan. App.2d 84, 87-88, 60 P.3d 347 (2003); Littrice v. State, 30 Kan.App.2d 800, 48 P.3d 690, Syl., 30 Kan.App.2d 800, 48 P.3d 690 (2002); Stewart v. State, 30......
-
Mundy v. State
...to support this contention. Conclusory contentions without an evidentiary basis are not sufficient for relief. Gilkey v. State, 31 Kan.App.2d 84, 87, 60 P.3d 347 (2003) (citing Burns v. State, 215 Kan. 497, 500, 524 P.2d 737 [1974] ). Consequently, Mundy's argument fails.Last, it is worth n......
-
Gilkey v. State, 88,208
...to indulge in such a presumption when the trial judge was not also the presiding judge in the criminal case. See Gilkey v. State, 31 Kan. App. 2d 84, 60 P.3d 347 (2002) (No. 88,234), a decision this date in an unrelated 60-1507 by the same petitioner. We do not suggest some seismic shift in......
-
McDermed v. State
...the district court's findings concerning the trial counsel's performance are entitled to deference. See Gilkey v. State, 31 Kan.App.2d 84, 85, 60 P.3d 347 (2003) (ordinarily the trial judge is expected to make the preliminary review of a 60-1507 motion to decide if an evidentiary hearing sh......