Opinion
No. 107,493.
2013-03-15
Diego MORALES–ORDONEZ, Appellant, v. STATE of Kansas, Appellee.
Appeal from Seward District Court; Kim R. Schroeder, Judge. Janine Cox, of Kansas Appellate Defender Office, for appellant. Don L. Scott, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Seward District Court; Kim R. Schroeder, Judge.
Janine Cox, of Kansas Appellate Defender Office, for appellant. Don L. Scott, county attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., McANANY, J., and KNUDSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Diego Morales–Ordonez appeals from the district court's dismissal of his motion filed pursuant to K.S.A. 60–1507. Morales–Ordonez is from Guatemala, and his native language is Kiche, a Mayan dialect. The district court summarily dismissed Morales–Ordonez' claim that the court-appointed interpreter did not correctly interpret the sentences imposed by the district court at the sentencing proceeding. However, an evidentiary hearing was held on Morales–Ordonez' claim that his attorney did not file a direct appeal as requested. At the hearing, Morales–Ordonez, contrary to his claim, acknowledged that he did not request counsel to file a direct appeal. As a consequence, the district court determined Morales–Ordonez was not entitled to relief on that claim.
In this appeal, Morales–Ordonez has abandoned all claims he may have initially raised in his K.S.A. 60–1507 motion except whether the district court erred in summarily dismissing the claim that the interpreter did not correctly interpret the sentences imposed by the district court at the sentencing proceeding.
We affirm the decision of the district court because Morales–Ordonez' motion, together with the files and records of the criminal proceeding, conclusively demonstrate he is not entitled to relief as a matter of law on his claim that the interpreter did not adequately interpret the sentences imposed at the sentencing hearing.
On March 12, 2009, Morales–Ordonez pled no contest to one count of kidnapping and one count of aggravated assault. The interpreter was present and did interpret throughout the proceedings. The district court informed Morales–Ordonez that, depending on his criminal history, he would be facing a sentence of 55 to 247 months for kidnapping, a severity level 3 person felony, and 11 to 34 months for aggravated assault, a severity level 7 person felony. The State informed the court that it would remain silent at the sentencing hearing as to whether Morales–Ordonez' sentences should be served concurrently or consecutively.
On April 24, 2009, the district court sentenced Morales–Ordonez, who it was determined had a criminal history of I, to presumptive sentences of 59 months for kidnapping and 12 months for aggravated assault. The district court also ordered that the sentences were to be served consecutively. It appears from Morales–Ordonez' K.S.A. 60–1507 motion that the same interpreter was used at both the plea hearing and the sentencing hearing.
In Lujan v. State, 270 Kan. 163, Syl. ¶ 3, 14 P.3d 424 (2000), the Kansas Supreme Court articulated the three different approaches that a district court can employ when faced with a K.S.A. 60–1507 motion:
“ First, it may determine that the motion, files, and records of the case conclusively show that the [movant] is entitled to no relief, in which case it will summarily deny the [movant's] motion. Second, the court may determine from the motion, files, and record that a substantial issue or issues are presented, requiring a full evidentiary hearing with the presence of the [movant]. Third, the court may determine that a potentially substantial issue or issues of fact are raised in the motion, supported by the files and record, and hold a preliminary hearing after the appointment of counsel to determine whether in fact the issues in the motion are substantial.” (Emphasis added.)
Accord Trotter v. State, 288 Kan. 112, 132, 200 P.3d 1236 (2009); see K.S.A. 60–1507(b).
In a K.S.A. 60–1507 motion, the movant has the burden to establish the grounds for relief by a preponderance of the evidence. Supreme Court Rule 183(g) (2012 Kan. Ct. R. Annot. 274). Additionally, an appellate court is in as good of a position as a district court to consider the merits when a district court denies relief under K.S.A. 60–1507 solely because of counsel's legal argument and the court's review of the files and case records. Therefore, appellate review is de novo. Barr v. State, 287 Kan. 190, 196, 196 P.3d 357 (2008).
Morales–Ordonez' claim presented on appeal has no legal merit. First, Morales–Ordonez does not challenge the integrity of the proceedings on March 12, 2009, when his no contest pleas to the charges of kidnapping and aggravated assault were made and accepted by the district court. He does not argue that the interpreter did not correctly interpret at the plea hearing. He does not argue that the sentencing range for both offenses as stated above was not conveyed to him.
At the sentencing hearing on April 24, 2009, Morales–Ordonez received presumptive sentences for kidnapping and aggravated assault. The sentences imposed were consistent with the applicable presumptive sentencing ranges for the crimes of kidnapping and aggravated assault announced by the district court at the plea hearing. Nevertheless, Morales–Ordonez contends in his K.S.A. 60–1507 motion that the interpreter told him that that his controlling sentence would be 42 months to 54 months. Then, at the evidentiary hearing as to whether he sought a direct appeal, Morales–Ordonez testified his trial attorney told him after the sentences were imposed that his controlling sentence was 43 months and with good behavior he would be eligible for release after serving 36 months; thus, he decided not to appeal.
Morales–Ordonez' representations and testimony fly in the face of the detailed sentencing information imparted to him at the plea hearing. As we have already noted, on appeal Morales–Ordonez does not challenge the accuracy of the interpretation at the plea hearing. An issue not briefed by an appellant is deemed waived and abandoned. State v. McCaslin, 291 Kan. 697, 709, 245 P.3d 1030 (2011). Finally, neither Morales–Ordonez nor his attorney expressed any concern to the district court at the plea hearing or at the sentencing hearing regarding the interpreter's qualifications or effectiveness as required under K.S.A. 75–4353. In the absence of a contemporary objection or expression of concern presented to the district court, there is a presumption that the interpreter was qualified to interpret for Morales–Ordonez and did so effectively. See State v. Pham, 234 Kan. 649, 663, 675 P.2d 848 (1984); Shaha v. State, 44 Kan.App.2d 334, 335–39, 236 P.3d 560 (2010), rev. denied 292 Kan. 965 (2011).
On the issue presented on appeal, we are persuaded the district court correctly determined that an evidentiary hearing was not required. Accordingly, we conclude the judgment of the district court should be affirmed.
Affirmed.