Gormly v. State ( 2022 )

NOT DESIGNATED FOR PUBLICATION
No. 123,889
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
DEREK ALAN GORMLY,
Appellant,
v.
STATE OF KANSAS,
Appellee.
MEMORANDUM OPINION
Appeal from Lyon District Court; JEFFRY J. LARSON, judge. Opinion filed July 8, 2022.
Affirmed.
Gerald E. Wells, of Jerry Wells Attorney-at-Law, of Lawrence, for appellant.
Amy L. Aranda, first assistant county attorney, Marc Goodman, county attorney, and Derek
Schmidt, attorney general, for appellee.
Before ISHERWOOD, P.J., SCHROEDER and WARNER, JJ.
PER CURIAM: Derek Gormly appeals the district court's decision denying his
K.S.A. 60-1507 motion following an evidentiary hearing. Gormly's motion alleged that
his trial counsel provided constitutionally defective representation and attacked multiple
aspects of the attorney's defense during the underlying bench trial. After hearing
testimony from both Gormly and his attorney, the district court—the same judge who
presided over Gormly's trial—found that the attorney's description of the events was
credible and denied Gormly's requested relief. We affirm.
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FACTUAL AND PROCEDURAL BACKGROUND
In 2016, Gormly was convicted after a bench trial of one count of aggravated
indecent liberties with a child and one count of lewd and lascivious behavior. At the same
time, the court found him not guilty of two additional counts of aggravated indecent
liberties with a child. The incidents giving rise to Gormly's convictions involved D.S.,
who was 13 years old at the time the events took place in October 2012, while Gormly
was 26.
The district court imposed sentences of life in prison without the possibility of
parole for 25 years and 16 months' imprisonment for Gormly's respective crimes,
ordering the sentences to be served consecutively. A panel of this court affirmed
Gormly's convictions and sentence terms, though we remanded the case for resentencing
to correct an order regarding Gormly's post-imprisonment supervision status. State v.
Gormly, No. 117,378, 2018 WL 671489, at *1-2 (Kan. App.) (unpublished opinion), rev.
denied 308 Kan. 1593 (2018).
In November 2019, after his resentencing had been completed in accordance with
this court's decision, Gormly filed a pro se motion under K.S.A. 60-1507. Gormly
claimed that his trial counsel, Frederick Meier, had provided constitutionally defective
representation in several ways. After amending his motion with the assistance of counsel,
Gormly alleged:
• Meier failed to adequately prepare for trial and did not adequately communicate
with Gormly about his defense.
• Meier had not interviewed several potential witnesses—including Gormly's
mother and his ex-wife—who could have been helpful to his defense or impeached
others' testimony, particularly the testimony of D.S.'s stepfather. Gormly believed
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the stepfather's testimony to be particularly harmful to Gormly's defense, as the
stepfather had corroborated D.S.'s timeline of the encounter with Gormly that led
to his convictions and provided other damaging observations about interactions
between Gormy and D.S.
• Meier failed to discuss the possibility of a plea deal or otherwise pursue that
possibility with the State.
• Meier failed to request a departure sentence.
The district court held an evidentiary hearing on Gormly's motion. The judge who
presided over this hearing was the same judge who had presided over Gormly's bench
trial. During the hearing, the court heard testimony from both Gormly and Meier.
In his testimony, Gormly recalled meeting with Meier in person, but he stated that
he never received any letters or phone calls from the attorney. He explained that although
he received some copies of discovery, those reports were missing a few pages that he
never received.
Gormly also testified that his ex-wife, his mother, and another person named
Rachel Osban were sources of information for his defense and potential witnesses, as all
three could have provided information regarding Gormly's tumultuous relationship with
D.S.'s stepfather. Gormly testified the stepfather was an important witness against him at
trial, and their relationship was "bad right from the start." According to Gormly, the
stepfather had reported Gormly and his girlfriend to the Kansas Department for Children
and Families and had driven by his house multiple times. Gormly testified that the
stepfather even tried to run him off the road at one point, which prompted Gormly to
obtain a protection-from-abuse order against him. Gormly stated that he had informed
Meier of those circumstances.
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According to Gormly, Meier had spoken with Gormly's mother but determined her
testimony was unnecessary. Gormly stated that he believed Meier had spoken with his
ex-wife on two occasions, though neither conversation took place when Gormly was
present. And Gormly called Osban to testify on his behalf at the evidentiary hearing;
Osban testified that she did not recall speaking with Meier in preparation for trial, but she
stated she had never witnessed Gormly and D.S.'s stepfather interact.
Finally, Gormly testified he never discussed the possibility of a plea or a
sentencing departure with Meier, nor did Meier explain his trial strategy. Gormly
explained he was "kind of blind as to what was really going on . . . just letting [Meier]
control everything and do what he thought was best."
Meier provided a different account of the events leading to Gormly's trial and
sentencing. Meier explained that he was appointed to represent Gormly and had also
represented Gormly in previous cases. Meier recalled providing Gormly with the reports
and discovery in the case; he explained that after sentencing Gormly had lost the
discovery and wanted another copy, but Gormly had not informed Meier that certain
pages of discovery were missing beforehand. Based on his case notes, Meier met with
Gormly 11 times before trial.
Turning to the potential defense witnesses, Meier testified his trial preparation
included discussing with Gormly that his mother and ex-wife could be possible
witnesses. Meier's trial strategy turned on D.S.'s jealousy of Gormly's ex-wife and D.S.'s
possible fabrication of the allegations. He explained that his strategy was to discredit D.S.
and to demonstrate through the ex-wife's and Gormly's mother's testimony that D.S.'s
testimony was untrue by highlighting the lack of corroborating evidence. Meier did not
recall Gormly discussing any other potential witnesses, such as Osban.
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Meier explained that he anticipated that Gormly's mother would testify at the
bench trial, but she did not appear in court and he did not know why. Gormly's ex-wife
did testify at the trial. Meier confirmed from his case notes that he spoke with witnesses
over the phone twice but could not recall if he talked to Gormly's ex-wife or his mother.
Meier testified that he discussed the relationship between Gormly and the
stepfather with Gormly often. He explained that although he was aware of the situations
that Gormly complained of, he did not use them in his trial strategy because they did not
"really fit into what would be . . . impeachable evidence." Meier explained that he did not
find the stepfather's testimony to be strong for the State; although the stepfather's
testimony corroborated the time and place of D.S.'s allegations, Meier testified that he did
not believe that this testimony impacted the verdict "in any way."
With regard to a potential plea, Meier testified that he was "never authorized to
ask for an offer." He stated that Gormly's attitude "was that this didn't happen and so it
was pretty apparent from the start that plea negotiations were not going to occur." Meier
testified that discussing a plea with Gormly would have been "counterproductive" and
harmful to their relationship because Gormly was "adamant about his position." Meier
also discussed a sentencing departure with Gormly and testified that, generally, a
departure is "always available, whether it was likely foreseeable or even remotely
possible, I'm sure we would have had that conversation." But Meier did not file a motion
for departure "simply because it would have been without merit and unlikely—virtually
impossible to be granted."
After the hearing, the district court denied Gormly's requests for relief.
• The district court found that Meier was not ineffective for failing to impeach the
stepfather's testimony. The court noted that the contentious relationship between
Gormly and the stepfather was discussed throughout the trial, and the court found
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that Meier's cross-examination of the stepfather underscored the lack of trust
between the two men. The court found that any further impeachment of the
stepfather by Meier would not have affected its decision, as the case "turned upon
the credibility of the victim."
• The district court found that Gormly had not shown any deficiency in Meier's
communication with Gormly or preparation for trial. The court found that Meier
visited Gormly 11 times and, though Meier did not call or send mail, he had
discussed the reports, evidence, and possible witnesses with Gormly. Similarly,
the district court found that Meier was not constitutionally ineffective for failing to
secure Gormly's mother and Osban as defense witnesses.
• The district court determined that Meier's failure to pursue a plea agreement was
not constitutionally deficient. The court found that Gormly denied the allegations,
so Meier did not want to damage their relationship by discussing a plea agreement.
More importantly, Gormly never asked Meier to seek a plea, and there was no
evidence to suggest that the State would have been amenable to a plea deal.
• The district court was not persuaded by Gormly's claim that Meier was ineffective
for failing to move for a sentencing departure. Based on Gormly's criminal history,
D.S.'s age, and other factors, the district court found that the motion for a
departure would have been denied. So, Gormly was not prejudiced by Meier's
failure to file the motion.
Gormly now appeals the district court's denial of his motion.
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DISCUSSION
When a district court denies a K.S.A. 60-1507 motion after holding an evidentiary
hearing—as the district court did here—appellate courts review factual findings for
substantial competent evidence, then determine whether those findings support the
district court's legal conclusions. State v. Adams, 297 Kan. 665, Syl. ¶ 1, 304 P.3d 311(2013). "Substantial competent evidence is legal and relevant evidence a reasonable
person could accept to support a conclusion." State v. Talkington, 301 Kan. 453, Syl. ¶ 3,
345 P.3d 258 (2015). Appellate courts do not reweigh the evidence, assess witness
credibility, or resolve evidentiary conflicts. 301 Kan. 453, Syl. ¶ 3. Legal conclusions are
subject to unlimited review. Adams, 297 Kan. 665, Syl. ¶ 1.
The Sixth Amendment to the United States Constitution guarantees criminal
defendants "the assistance of counsel" for their defense. U.S. Const. amend. VI. This
assistance must be "reasonably effective," because the failure to provide effective
assistance of counsel deprives a defendant of a fair trial in violation of the Sixth
Amendment. Strickland v. Washington, 466 U.S. 668, 687, 689, 104 S. Ct. 2052, 80 L.
Ed. 2d 674 (1984).
To determine whether an attorney's performance constitutes ineffective assistance
of counsel, courts examine whether the attorney's representation was deficient and
whether any constitutionally defective representation prejudiced the defendant. 466 U.S.
at 687. That is, the defendant must show (1) the attorney's actions were objectively
unreasonable under the totality of the circumstances, and (2) but for those actions, there is
a reasonable probability that the outcome would have been different. 466 U.S. at 687;
Chamberlain v. State, 236 Kan. 650, Syl. ¶ 3, 694 P.2d 468 (1985) (adopting Strickland).
Under Strickland's effectiveness inquiry, courts' review of an attorney's actions is
"highly deferential"; in other words, there is "a strong presumption that counsel's conduct
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falls within the wide range of reasonable professional assistance." Chamberlain, 236
Kan. 650, Syl. ¶ 3. Courts must examine the representation from the attorney's
perspective at the time of trial "'to eliminate the distorting effects of hindsight.'" Edgar v.
State, 294 Kan. 828, 838, 283 P.3d 152 (2012). Matters of trial strategy, such as what
witnesses to call or what motions to file, are decisions for the attorney, and courts will
defer to the attorney's discretion. 294 Kan. at 838-39. Other decisions, such as whether a
defendant will testify, are ultimately up to the defendant. 294 Kan. at 838.
Strickland's second consideration—its analysis of prejudice—focuses "'on the
fundamental fairness of the proceeding.'" Balbirnie v. State, 311 Kan. 893, 900, 468 P.3d
334 (2020) (quoting Strickland, 466 U.S. at 696). To show a reasonable probability that
the outcome would have been different but for an attorney's deficient representation,
there must be "'a probability sufficient to undermine confidence in the outcome.'"
Chamberlain, 236 Kan. at 655. Appellate courts must consider all the evidence before the
jury, with prejudice more likely when the verdict has little evidentiary support rather than
a verdict "'with overwhelming record support.'" Balbirnie, 311 Kan. at 899 (quoting
Strickland, 466 U.S. at 695-96).
Against this backdrop, Gormly challenges all aspects of the district court's denial
of his K.S.A. 60-1507 motion. After carefully reviewing the parties' arguments and the
evidence presented at the hearing before the district court, we find no error in the court's
assessment and affirm its judgment.
Our review of each of Gormly's assertions is guided by two practical realities.
First, because this appeal arises after an evidentiary hearing, many of the district court's
rulings are rooted in credibility assessments of the two primary witnesses—Gormly and
Meier. Broadly speaking, the court's written explanation of its ruling shows that it found
Meier's testimony to be credible and more accurate. Unlike the district court, the judges
of the Court of Appeals were not present to hear this testimony or observe the witnesses'
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demeanor. See Talkington, 301 Kan. 453, Syl. ¶ 3. We therefore defer to the district
court's assessment of these matters. Second, the district court judge who evaluated the
evidence at the hearing on Gormly's K.S.A. 60-1507 motion was the same judge who
presided over Gormly's bench trial and sentencing hearing. Thus, this is not a case where
a district court was required to assess the potential effect a change in circumstances might
have had on a jury's verdict. Instead, the district court's explanation of its evidentiary
assessments and its analysis of the prejudicial effect any alleged deficiency might have
had are particularly compelling.
With this background, we turn to Gormly's challenges to his attorney's actions.
1. Gormly has not shown that his attorney provided constitutionally deficient
representation in his communication, witness preparation, or presentation of his
theory of the case.
Gormly's first three claims of error in his appeal—concerning Meier's
communication, witness preparation, and presentation of Gormly's challenge to D.S.'s
stepfather's testimony—are related, in that they involve allegations regarding Gormly's
interactions with Meier leading to his trial. In each instance, Gormly's and Meier's
explanations were markedly different. For example, Gormly indicated that Meier
contacted him only four times throughout the duration of the case; Meier, however,
testified that he met with Gormly 11 times and discussed the case strategy with him—
information that was documented in Meier's case notes. Their respective accounts of
Meier's investigation of potential witnesses were similarly divergent.
The district court heard testimony from both men at the evidentiary hearing and
found Meier's explanation—not Gormly's—to be credible. Appellate judges, who are
removed from these proceedings, cannot reassess those credibility determinations.
Talkington, 301 Kan. 453, Syl. ¶ 3. And while Gormly may dispute Meier's testimony
and account of his efforts to communicate with Gormly, the attorney's explanation
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provides substantial competent evidence to support the district court's finding that Meier
adequately communicated with Gormly and prepared for trial. Thus, Gormly has not
shown any deficiency in Meier's communication or general trial preparation.
Gormly's assertions regarding Meier's witness preparation and defense strategy are
similarly unpersuasive. Deciding which witnesses to investigate and call is a strategic
decision—the province of the attorney, not the client—to which courts will generally
defer. Sola-Morales v. State, 300 Kan. 875, 887, 335 P.3d 1162 (2014). Gormly has the
burden to show that the failure to call witnesses was an uninformed decision that was
"not the result of strategy." 300 Kan. at 888.
Gormly's primary claim in his K.S.A. 60-1507 motion was that Meier should have
investigated (and called) additional witnesses to impeach the testimony of the stepfather.
Though the stepfather did not witness any of the incidents giving rise to the charges in
Gormly's case, his account of the events corroborated D.S.'s explanation and her timeline
of when the incidents occurred. Thus, in Gormly's view, if Meier had sufficiently
undercut the stepfather's explanation by questioning his motivations, the district court
would have found D.S.'s account less credible.
Gormly testified that he provided Meier with three potential witnesses who would
be helpful to discredit the testimony of the stepfather—Gormly's ex-wife, his mother, and
Osban. But this assertion was riddled with evidentiary deficiencies. Meier testified at the
hearing that Gormly had never identified Osban as a potential witness; regardless,
Osban's testimony at the evidentiary hearing proved unremarkable, as she did not have
any observations regarding Gormly's and the stepfather's interactions. Meier did call
Gormly's ex-wife as a witness at trial, and Gormly does not identify any way in which the
attorney's examination of her was insufficient. And though Meier thought Gormly's
mother might have provided favorable testimony based on Gormly's representations, she
failed to appear at trial to testify.
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In his appeal, Gormly asserts that Meier could have subpoenaed his mother to
ensure her presence in court. But while we agree in a general sense that Meier could have
requested the court to issue a subpoena for his mother's testimony, we do not find this
argument compelling here. As the person requesting relief under K.S.A. 60-1507, Gormly
bears the burden of showing what impact his mother's testimony might have had on his
case. But Gormly has not provided any explanation of what her testimony may have
been. And his mother did not to appear in court to testify at the evidentiary hearing.
Moreover, the district court judge—who considered the evidence at trial and the
hearing—did not agree with Gormly's assessments of the need for impeachment evidence
or the impact such evidence may have had during the trial. In its ruling, the court
explained the acrimonious relationship between Gormly and D.S.'s stepfather was evident
at trial. As the court indicated, Meier's decision to highlight this relationship and question
the stepfather's motivations during cross-examination, rather than through calling self-
serving witnesses, was a strategic one. The record supports this assessment.
Even more compelling, the district court found that Gormly had not shown that the
absence of any of these potential witnesses affected the outcome of the trial. The court
explained that its decision to convict Gormly was based on D.S.'s testimony, not that of
her stepfather. In other words, any additional efforts to impeach the stepfather's account
would not have changed the court's assessment. Appellate courts do not reweigh fact-
finders' assessment of the evidence.
In short, the record supports the district court's conclusion that Gormly failed to
prove any deficient performance that would have changed the outcome of his trial.
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2. Gormly has not shown that his attorney provided defective representation in
failing to pursue a plea agreement.
Gormly next argues that Meier provided ineffective assistance when he failed to
explore any possibilities of a plea agreement. In denying Gormly's claim, the district
court found Meier's explanation that Gormly utterly denied the State's allegations and
would not have accepted a plea to be credible. The court also determined that even if
Gormly had desired Meier to pursue a plea deal, Gormly had not demonstrated any
prejudice, as he had not shown that the State ever offered a plea agreement or even would
have been amenable to one. We find this reasoning persuasive.
As a starting point to our analysis, we note that there is evidence in the record—in
the form of Meier's testimony—to support the district court's finding that Gormly denied
the charges against him and wished the case to proceed to trial. The United States
Supreme Court has held "that, as a general rule, defense counsel has the duty to
communicate [to the defendant] formal [plea] offers from the prosecution." Missouri v.
Frye, 566 U.S. 134, 145, 132 S. Ct. 1399, 182 L. Ed. 2d 379 (2012). But a defendant has
no right to be offered a plea deal. 566 U.S. at 148. There is no evidence here that the
State communicated a plea offer to Meier such that he violated his duty to communicate
any formal offer to Gormly. Instead, Meier testified that he was not authorized to
negotiate with the State and he understood that Gormly wanted a trial.
These facts are thus similar to circumstances the Kansas Supreme Court
considered in Schoonover v. State, 218 Kan. 377, 379, 543 P.2d 881 (1975), cert. denied
424 U.S. 944 (1976). The defense attorney in Schoonover did not contact the State for
plea negotiations, and the defendant advised her attorney not to negotiate a plea. The
prosecutor in that case testified that he may have considered an offer, but he intended to
continue the case as charged. Based on this evidence, the district court concluded the
movant had failed to show defense counsel was ineffective. On appeal, the Supreme
Court affirmed, finding Schoonover had "insisted upon being tried as charged and she
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emphatically refused to permit her counsel to enter into plea negotiations." 218 Kan. at
386. Further, the prosecutor testified that he "was in no position to do anything but try
[the defendant] as charged." 218 Kan. at 386.
Here, Meier similarly testified that Gormly insisted that he was not guilty and that
he wished to proceed to trial. Meier had represented Gormly in criminal cases before, so
they had an established relationship. Meier testified that discussing a possible plea with
Gormly would be counterproductive and harmful to that relationship. And Gormly did
not authorize Meier to engage in plea negotiations with the State. Thus, the evidence in
the record supports the district court's conclusion that Gormly had not shown any
deficiency in Meier's representation.
The district court also correctly noted that Gormly had not presented any evidence
that the State would have been willing to enter into a plea agreement, even if given the
opportunity. Unlike in Schoonover, Gormly did not call the prosecutor to testify at the
evidentiary hearing. Cf. 218 Kan. at 386. And without evidence that the State may have
considered a plea deal, Gormly cannot sufficiently show he was prejudiced by Meier's
failure to negotiate a plea. See Seward v. State, No. 115,841, 2017 WL 948129, at *3
(Kan. App.) (unpublished opinion) (summary denial of K.S.A. 60-1507 proper where
movant argued counsel was ineffective for failing to negotiate a better plea agreement but
provided no evidence that State offered a different plea or that a better one existed), rev.
denied 306 Kan. 1320 (2017). We find no error in the district court's denial of Gormly's
claim.
3. Gormly has not shown that a request for a sentencing departure would have been
successful.
In his final claim of error, Gormly asserts that Meier provided ineffective
assistance of counsel when he failed to request a departure sentence. As we have
indicated, the sentencing court imposed an off-grid sentence of life in prison for Gormly's
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conviction of aggravated indecent liberties. See K.S.A. 2012 Supp. 21-5506(b)(3)(A);
K.S.A. 2012 Supp. 21-6627(a)(1). Gormly asserts that, though he had some previous
history of criminal behavior, he did not have prior convictions listed under K.S.A. 2012
Supp. 21-6627(a)(1). Thus, he argues, the district court would have been permitted to
impose a departure sentence if it found substantial and compelling reasons to do so.
K.S.A. 2012 Supp. 21-6627(d)(1) (allowing the sentencing judge to impose a departure
only "for a first time conviction of an offense listed in subsection[a][1]"). The court never
had the opportunity to consider a departure, however, because Meier did not request one.
We are unpersuaded by Gormly's final claim of error for at least two reasons.
First, though Gormly broadly asserts that Meier should have requested a
sentencing departure, he offers no substantial or compelling reasons why a departure
would have been warranted. Conclusory allegations with no evidentiary basis in the
record are not enough to satisfy a person's burden in a K.S.A. 60-1507 motion. Mundy v.
State, 307 Kan. 280, 304, 408 P.3d 965 (2018).
And second, as the district court explained in its ruling, the fact that a court could
have imposed a lesser sentence does not mean that it was required to do so. Again, the
court indicated that, as the judge who heard the evidence at trial and sentenced Gormly, it
would not have granted a sentencing departure given Gormly's previous convictions and
D.S.'s age. In other words, the court found that Gormly had not shown any prejudice from
Meier's decision to not request a departure sentence. Once again, the record supports the
district court's findings.
In sum, Gormly has not apprised us of any error in the district court's denial of his
K.S.A. 60-1507 motion. The district court's rulings were rooted in its assessment of the
witnesses' credibility and the strength of the evidence presented, both at the hearing on
Gormly's motion and during the bench trial. We affirm the court's well-reasoned decision.
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Affirmed.
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