Gilkey v. State, 88,208

• Decision Date: 03 January 2003
• Docket Number: No. 88,208,88,208
• Citation: 31 Kan.App.2d 77,60 P.3d 351
• Parties: WILLIAM A. GILKEY, Appellant, v. STATE OF KANSAS, Appellee.
• Court: Kansas Court of Appeals

31 Kan.App.2d 77

60 P.3d 351

WILLIAM A. GILKEY, Appellant, v. STATE OF KANSAS, Appellee.

No. 88,208

Court of Appeals of Kansas

Opinion filed January 3, 2003.

Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellant.

Lesley A. Isherwood, 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.

KNUDSON, J.:

William A. Gilkey appeals from the trial court's summary denial of his motion filed under K.S.A. 60-1507. On appeal, Gilkey contends the trial court did not enter findings of fact and conclusions of law as required by Supreme Court Rule 183(j) (2001 Kan. Ct. R. Annot. 210). Alternatively, Gilkey contends the trial court erred in summarily dismissing his motion without an evidentiary hearing.

We affirm the trial court. The court's findings and conclusions are sufficient for meaningful appellate review. The court did not err in concluding Gilkey's motion presented no issues of fact or law upon which relief should be granted.

The underlying facts of the criminal case are reported in Gilkey's direct appeal. State v. Gilkey, No. 81,002, unpublished opinion filed August 4, 2000.

Gilkey first contends the trial court's lack of specific findings and its conclusions are not adequate under Supreme Court Rule 183(j) and require a remand to the trial court for compliance. The State objects to our consideration of this issue, arguing Gilkey's failure to raise this issue before the trial court precludes appellate review.

"[A] litigant must object to inadequate findings of fact and conclusions of law in order to give the trial court an opportunity to correct them. In the absence of an objection, omissions in findings will not be considered on appeal. Where there has been no such objection, the trial court is presumed to have found all facts necessary to support the judgment." Hill v. Farm Bur. Mut. Ins. Co., 263 Kan. 703, 706, 952 P.2d 1286 (1998).

Supreme Court Rule 183(j) requires that "[t]he court shall make findings of fact and conclusions of law on all issues presented." (2001 Kan. Ct. R. Annot. 211.)

The State's objection is persuasive. However, we may still consider a remand if the lack of specific findings precludes meaningful appellate review. See State v. Moncla, 269 Kan. 61, 65, 4 P.3d 618 (2000); Stewart v. State, 30 Kan. App. 2d 380, 42 P.3d 205 (2002). As pointedly noted in Moncla:

"The merits of Moncla's motion aside, the fundamental problem with the district court's approach here is that it impedes appellate review. How are we to review the decision, even under the abuse of discretion standard, when neither findings nor conclusions based on the findings are stated? Motions for new trials, like many 60-1507 motions, may be meritless and, thus, not entitled to evidentiary hearings. However, the district court must tell us what its findings are and why it concluded the motion to be without merit if we are to conduct any sort of meaningful appellate review." (Emphasis added.) 269 Kan. at 65.

Ordinarily, denial of a 60-1507 motion without an evidentiary hearing is subject to an abuse of discretion standard of review. Lujan v. State, 270 Kan. 163, 169, 14 P.3d 424 (2000). We believe that highly deferential standard is in part based upon an assumption that the trial judge considering the 60-1507 motion is the same trial judge who presided at the underlying criminal proceeding. In Chamberlain v. State, 236 Kan. 650, 659-60, 694 P.2d 468 (1985), the court stated:

"It is a rule of this court that in an action asserting ineffective assistance of counsel, the trial court must have an opportunity to assess the performance of counsel before an appellate court will consider the matter. Much deference and reliance must be placed upon the wisdom and determination of the trial judge who saw all of the [criminal case] first hand as [it] happened."

In this instance, Judge Paul Clark was also the presiding judge in Gilkey's criminal case. Thus, we will give great deference to his factual findings. This circumstance is not unimportant in ascertaining whether the trial court should be presumed to have found all facts necessary to support dismissal of Gilkey's petition. See Hill, 263 Kan. at 706. We are less inclined 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 our standard of review, but rather acknowledge the superior vantage point of the judge who presided in the criminal case.

At the preliminary hearing to consider Gilkey's motion, the parties presented the following argument:

"[Defense attorney]: ... [A] lot of this has been dealt with on direct appeal. The facts of the one count is that apparently there was a traffic stop. They stopped he [sic] and his girlfriend, Lucretia Bailey. The allegation was that she made a statement that she got a bag of something off of Mr. Gilkey and she swallowed it, and they eventually took her to the hospital and gave her something to induce vomiting, and they got the bag back and it tested positive for illegal drugs, and she made a statement to that effect. Now, what he's claiming is that he had ineffective assistance of counsel because he says if my defense counsel had called Lucretia Bailey to the stand, she would have recanted. She would have said, no, I didn't get the bag from my client and swallowed it and eventually had it induced. He also says it was illegal the way they got the bag from the girl. Of course, not his body. It's hers, so I don't think he has any standing to make any complaints as far as that search conducted by the police, if you will. He feels that counsel should have removed himself as his attorney prior to trial due to irretrievable [sic] differences. And I contacted Mr. Gilkey about what were these irretrievable differences. Primarily it's the one about not calling Lucretia Bailey. Also, he felt that another police witness, Sergeant Pichler, should have been called to testify because this sergeant would have testified if there had been some drugs on him and they had brought out one of the canine dogs, the dogs could possibly have detected the drugs. And, again, he's complaining about the method in which the cocaine, as he says, was regurgitated from Miss Bailey.

"He talks about also that there was in the — as far as Count 2, I take it there — that there was a defective Complaint and Information; that he was charged with possession of illegal drugs at 1900 North Minnesota, and he says, well, the State didn't prove that; that he did not have possession of drugs at that residence, so he couldn't have been convicted of that. Well, that's a matter that should have been dealt with on direct appeal as far as any sufficiency of the evidence is concerned.

"Again, he also makes an allegation that the defense attorney should have hired someone to examine the cocaine. Again, he doesn't elaborate as to what that examination should have revealed. He doesn't — He does not assert a defense that there wasn't any drugs in the bag. He also claims that there was something wrong with the chain of custody concerning the cocaine found from — or on Lucretia Bailey, but he did not elaborate, and I requested him to do so, as to what was wrong in the chain of custody at the time of trial.

"And then he also made an argument in his petition for relief that the trial counsel should have requested an instruction as far as a lesser included offense. I contacted him. He doesn't elaborate as to what that instruction should have been. It was two straight possession charges but, again, the Court could have on its own issued the instructions, so I think when we get down to it we're primarily talking about an ineffective assistance of counsel as far as the differences between — a difference of opinion between my client and his trial attorney as far as who is going to be called to testify, chain of custody, and whether or not this bag that was found inside her stomach belonged to her or the — he, he being the boyfriend. I think — Again, this is somewhat confusing, but I think the better practice would be to have him brought back for an evidentiary hearing so we could have some clarification as to just what it was and the differences of opinion by the counsel that they could show that they did not comply with the standard stated in Chamberlain v. State and Strickland v. Washington, so that would be my request on behalf of Mr. Gilkey today."

Brown's argument was then followed by the argument of Debra Peterson.

"[Prosecutor]: ... I believe that Mr. Gilkey [also] raises a claim of ineffective assistance of appellate counsel, alleging that counsel was ineffective for failing to allege that legally obtained evidence to convict him, i.e., the drugs received from his girlfriend's stomach, should have been suppressed. There's no reasonable probability that that issue would have been successful on appeal. As Mr. Brown notes, the defendant does not have any standing to raise issues concerning what his girlfriend vomited. Further, it seems that, pursuant to the defendant's version of the events, basically Bailey agreed to the regurgitation process.

"As to the claims regarding trial counsel, all of the claims are conclusory in nature. The only testimony that the defendant proposes to offer is his own and neither conclusory or uncorroborated statements of the movant are entitled relief. That's Wright v. State, 5 Kan. App. 2d at 495 and Wisely v. State at 201 Kan. 377. Mr. Gilkey seems to have a problem with every attorney who attempts to represent him.

"As to the failure to investigate Bailey, this Court is well aware that recantations are viewed very suspiciously, and there is no real issue that cocaine was found in the

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