Kelly v. State

1

Terrance Kelly, Appellant, v. State of Kansas, Appellee.

No. 126,949

Court of Appeals of Kansas

September 13, 2024

NOT DESIGNATED FOR PUBLICATION

Submitted without oral argument. Opinion filed September 13 2024.

APPEAL FROM JOHNSON DISTRICT COURT; NEIL B. FOTH, JUDGE.

Richard P. Klein, of Lenexa, for appellant, and Terrance Kelly, appellant pro se.

Shawn E. Minihan, assistant district attorney, Stephen M. Howe district attorney, and Kris W. Kobach, attorney general, for appellee.

Before MALONE, P.J., GREEN and SCHROEDER, JJ.

MEMORANDUM OPINION

PER CURIAM

Terrance Kelly timely appeals from the summary denial of his second K.S.A. 60-1507 motion, arguing the district court erred in rejecting his challenge to the constitutionality of his life imprisonment sentence with parole eligibility after 15 years for a crime Kelly committed when he was 14 years old. He further argues that lifetime postrelease is unconstitutional for juvenile offenders. Finding no error by the district court, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Terrance Kelly pled guilty to first-degree felony murder and aggravated robbery for acts committed in 1994. Kelly was 14 years old at the time of the offenses; however, the juvenile court declined jurisdiction and certified Kelly for adult prosecution. The district court imposed a sentence of lifetime imprisonment with a mandatory minimum term of 15 years (hard 15) for felony murder and a consecutive sentence of 172 months' imprisonment for aggravated robbery.

Following a series of posttrial motions and related appellate proceedings, our Supreme Court found Kelly was not entitled to withdraw his pleas based on ineffective assistance of counsel. State v. Kelly, 298 Kan. 965, 974, 318 P.3d 987 (2014). Kelly subsequently filed a K.S.A. 60-1507 motion in 2015, arguing his plea counsel was ineffective. His motion was summarily denied by the district court as untimely. Another panel of this court affirmed, finding his motion was time-barred and the claims therein were precluded as res judicata. Kelly v. State, No. 114,158, 2016 WL 3031256, at *5-6 (Kan. App. 2016) (unpublished opinion).

In 2021, Kelly filed a second K.S.A. 60-1507 motion, challenging the constitutionality of his hard 15 sentence under the Eighth Amendment to the United States Constitution and section 9 of the Kansas Constitution Bill of Rights, based on the United States Supreme Court's decisions in Miller v. Alabama, 567 U.S. 460, 479, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) (finding mandatory sentence of lifetime imprisonment without the possibility of parole for juvenile unconstitutional absent certain findings), and Montgomery v. Louisiana, 577 U.S. 190, 205-06, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016) (finding Miller created new constitutional rule applicable to state collateral proceedings). The district court summarily denied Kelly's motion, finding Montgomery and Miller did not apply because Kelly received a life sentence with parole eligibility after 15 years, not a life sentence without the possibility of parole.

ANALYSIS

Standard of Review

When the district court summarily dismisses a K.S.A. 60-1507 motion, we conduct a de novo review to determine whether the motion, files, and records of the case conclusively establish that the movant is not entitled to relief. State v Vasquez, 315 Kan. 729, 731, 510 P.3d 704 (2022).

Kelly's Sentence Is Not Unconstitutional

Kelly argues his hard 15 sentence is unconstitutional under Montgomery and Miller. Kelly also filed a supplemental brief and advances nearly identical arguments, which we decline to address separately.

Kelly's first argument is unpersuasive in light of controlling precedent from our Supreme Court. Largely the same argument was rejected in both State v. Gulley, 315 Kan. 86, 101-03, 505 P.3d 354 (2022) (finding Miller inapplicable to juvenile sentenced to lifetime imprisonment with mandatory minimum term of 618 months' imprisonment), and Williams v. State, 314 Kan. 466, 470, 500 P.3d 1182 (2021) (finding Miller inapplicable to upward durational departure enhancing sentence from hard 25 to hard 50). While Kelly makes a number of policy arguments incidentally asserting Gulley was wrongly decided, he fails to point to any authority-nor does there appear to be any such authority-indicating our Supreme Court is departing from its position in Gulley and Williams. We are duty-bound to follow Kansas Supreme Court precedent absent some indication our Supreme Court is departing from its prior position. State v. Patton, 315 Kan. 1, 16, 503 P.3d 1022 (2022).

Gulley was decided solely on Eighth Amendment grounds. 315 Kan. at 101-03. However, Kelly further makes some passing reference to section 9 of the Kansas Constitution Bill of Rights but fails to advance any coherent argument as to how the Kansas Constitution might provide greater protections than the Eighth Amendment. To the extent he intended to make a separate claim under the Kansas Constitution, the point is incidentally raised but not argued; thus, it is waived or abandoned. See State v. Meggerson, 312 Kan. 238, 246, 474 P.3d 761 (2020). Kelly's first argument fails.

Kelly's Additional Arguments Are Not Persuasive

Kelly further argues the imposition of lifetime postrelease supervision/lifetime parole for a juvenile offender is unconstitutional. The district court mentioned the issue near the end of its order denying Kelly's K.S.A. 60-1507 motion. From this portion of the order, it appears the argument was raised in Kelly's reply to the State's response to his K.S.A. 60-1507 motion and was largely based on the reasoning in State v. Dull, 302 Kan. 32, 61 351 P.3d 641 (2015) (lifetime postrelease supervision for juvenile convicted of aggravated indecent liberties with a child categorically unconstitutional). However, this issue was not in Kelly's original K.S.A. 60-1507 motion. Although Kelly's current K.S.A. 60-1507 motion claims he submitted exhibits and an accompanying memorandum of law in support of his motion, neither can be found in the record. But the State's response to Kelly's motion and Kelly's reply to the State's response also cannot be found in the record. Still, we will address the issue because it concerns a pure question of law despite a less than complete record.

In the brief filed by his appellate counsel, Kelly argues lifetime postrelease supervision is unconstitutional. However, his current sentence results in lifetime parole, not lifetime postrelease supervision. See K.S.A. 22-3717(d)(1) ("Persons sentenced for crimes, other than off-grid crimes, committed on or after July 1, 1993, . . . will not be eligible for parole, but will be released to a mandatory period of postrelease supervision upon completion of the prison portion of their sentence ...." [Emphasis added.]); K.S.A. 21-5402(a)(2) (felony murder is murder in the first degree); K.S.A. 21-5402(b) ("Murder in the first degree is an off-grid person felony."); State v. Buford, 307 Kan. 73, 74-75, 405 P.3d 1194 (2017) (hard 15 sentence is sentence of lifetime imprisonment despite eligibility for parole); Parker v. State, 247 Kan. 214, 217, 795 P.2d 68 (1990) ("Parole is a conditional release from physical custody, but is not a pardon or a reduction in sentence."). Accordingly, Kelly's arguments about lifetime postrelease supervision are misplaced.

While Kelly's pro se supplemental brief correctly notes he is subject to lifetime parole, his argument is still unpersuasive. Lifetime imprisonment with a mandatory minimum term before parole eligibility is not unconstitutional under the reasoning in Gulley, 315 Kan. at 101-03, and Williams, 314 Kan. at 470. Because a parolee is still serving a prison sentence-albeit released from physical custody-lifetime parole implies vastly different interests from lifetime postrelease supervision.

The authority Kelly relies on-Dull-is readily distinguishable and, therefore, unpersuasive. Dull was a juvenile offender sentenced to a determinate grid-based sentence for aggravated indecent liberties with a child and was subsequently placed on lifetime postrelease supervision. Dull was generally decided based on the reasoning in Graham v. Florida, 560 U.S. 48, 68, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010). Dull, 302 Kan. at 60-61. Graham explained a greater degree of punishment is appropriate for murder than other violent, nonhomicide crimes. 560 U.S. at 69. However, Graham clearly stated: "This Court now holds that for a juvenile offender who did not commit homicide the Eighth Amendment forbids the sentence of life without parole." (Emphasis added.) 560 U.S. at 74. Thus, Dull is consistent with Graham, but extending Dull here is not.

Further an offender who has completed the prison portion of a sentencing guidelines grid-based sentence must be released from custody and is no longer serving a...