1

NOT DESIGNATED FOR PUBLICATION

No. 125,957

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

DAVID D. WASYLK,

Appellant,

v.

STATE OF KANSAS,

Appellee.

MEMORANDUM OPINION

Appeal from Lyon District Court; MERLIN G. WHEELER, judge. Submitted without oral argument. 

Opinion filed February 2, 2024. Affirmed.

Kristen B. Patty, of Wichita, for appellant. 

Amy L. Aranda, first assistant county attorney, Marc Goodman, county attorney, and Kris W. 

Kobach, attorney general, for appellee.

Before BRUNS, P.J., COBLE and PICKERING, JJ.

PER CURIAM: David D. Wasylk appeals from the district court's summary 

dismissal of his K.S.A. 60-1507 motion. His motion was premised on the contention that 

his trial counsel should have called additional witnesses at his sentencing hearing in 

support of his motion for a departure sentence. However, the content of the witnesses' 

testimony was already contained within a written motion. Moreover, a review of the 

record reveals that additional testimony would not have served any beneficial purpose. 

For these reasons, we find that Wasylk has failed to show that his trial counsel was 

ineffective. Thus, we affirm the summary dismissal of his K.S.A. 60-1507 motion.
2

FACTS

In 2014, a jury found Wasylk guilty of four counts of manufacturing 

methamphetamine. In addition, the jury found him to be guilty of one count each of 

possession of pseudoephedrine, ephedrine, lithium metal, or anhydrous ammonia with 

intent to manufacture a controlled substance; possession of drug paraphernalia with the 

intent to manufacture a controlled substance; and possession of anhydrous ammonia in an 

unapproved container. The underlying facts of the case are set forth in the opinion 

affirming his convictions on direct appeal and will not be repeated in this opinion. State 

v. Wasylk, No. 112,128, 2015 WL 6833835, at *1-4 (Kan. App. 2015) (unpublished 

opinion), rev. denied 305 Kan. 1257 (2016).

Before sentencing, Wasylk moved for downward durational departure. In support 

of his motion, he argued—among other things—that he was not the principal actor, that 

he had a supportive family, and that he had a solid employment history. At his 

sentencing hearing, Wasylk reiterated his arguments and presented testimony from his 

mother. She described her son to be a hard worker and a loving father to his children.

After considering the arguments and testimony presented by Wasylk, the district court 

denied Wasylk’s departure motion. 

In reaching its decision to deny the departure motion, the district court decided 

that the reasons given by Wasylk were not substantial and compelling in light of the 

seriousness of the crimes of convictions. In particular, the district court explained that 

methamphetamine manufacturing and distribution posed a significant danger to the safety 

of the community. The district court also considered the fact that Wasylk committed his 

crimes while under the supervision of Lyon County in another criminal case in which he 

was convicted of cultivating, distributing, or possessing with the intent to distribute 

opiates, opium, narcotic drugs, or designated stimulants. 
3

Consequently, the district court sentenced him to a guidelines sentence for a total 

of 308 months' imprisonment with 36 months of postrelease supervision. On direct 

appeal, Wasylk's convictions were affirmed, and as noted above, the Kansas Supreme 

Court later denied Wasylk's petition for review. State v. Wasylk, 2015 WL 6833835, at 

*16. Thereafter, the United States Supreme Court also denied Wasylk's petition for writ 

of certiorari. Wasylk v. Kansas, 581 U.S. 997, 137 S. Ct. 2169, 198 L. Ed. 2d 240 (2017).

Within one year following the United States Supreme Court's denial of his 

certiorari petition, Wasylk filed a K.S.A. 60-1507 motion alleging ineffective assistance 

of both trial and appellate counsel. Following an evidentiary hearing, the district court 

denied Wasylk's motion. On appeal, a panel of this court affirmed the district court's 

decision. Wasylk v. Kansas, No. 122,214, 2020 WL 6685312, at *5 (Kan. App. 2020) 

(unpublished opinion), rev. denied 313 Kan. 1046 (2021).

On June 30, 2022, Wasylk filed a second K.S.A. 60-1507 motion, which is the 

subject of this appeal. In this motion, he again argued that trial counsel was ineffective. 

This time he claimed that trial counsel was ineffective for failing to call additional 

witnesses at the sentencing hearing to testify in support of his departure motion. As to the 

timing of the motion, Wasylk asserted that the motion should be considered to be timely 

because it was filed within one year of the mandate being issued in the appeal from the 

denial of his prior K.S.A. 60-1507 case. He also claimed that manifest injustice justified 

his otherwise untimely filing because of the length of his sentence as compared with two 

others involved in the methamphetamine operation. 

The district court summarily dismissed Wasylk's second K.S.A. 60-1507 motion

without a hearing. Notably, the judge who dismissed Wasylk's motion was the same 

judge who presided over Wasylk's 2014 sentencing. In dismissing the motion, the district 

court found that it was not timely filed. However, the court also went on to address the 

claims of ineffective assistance of trial counsel raised by Wasylk in his motion. 
4

Regarding Wasylk's claim that his trial counsel should have called additional 

character witnesses at the sentencing hearing, the district court noted that evidence of 

Wasylk's good character, employment history, and background were discussed in the 

departure motion. Moreover, it found that presenting additional evidence on the subject 

would not have changed the sentencing decision. Similarly, the district court found that 

trial counsel was not ineffective for failing to call the person who completed Wasylk's 

drug evaluation because the findings were contained in the report presented to support the 

departure motion.

Thereafter, Wasylk filed a timely notice of appeal. 

ANALYSIS

On appeal, the sole issue presented is whether the district court erred in summarily 

dismissing Wasylk’s second K.S.A. 60-1507 motion. When a 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. Beauclair v. State, 308 Kan. 284, 293, 419 P.3d 1180 (2018). We pause 

to note that the State concedes that Wasylk’s second K.S.A. 60-1507 motion was timely 

filed, so it is not necessary for us to address the issue of timeliness. 

The question we must answer is whether Wasylk asserted sufficient facts in his 

K.S.A. 60-1507 motion "which do not appear in the original record but which, if true, 

would entitle [him] to relief, and the motion identifies readily available witnesses whose 

testimony would support such facts or other sources of evidence." Swenson v. State, 284 

Kan. 931, 939, 169 P.3d 298 (2007). Wasylk claims his trial counsel was ineffective for 

failing to call additional witnesses at his sentencing hearing to support his motion for a 

downward durational departure. Although he suggests that these witnesses could have 

testified as to his good character and drug problems, there is no indication that these 
5

witnesses would have provided evidence beyond what was stated in his motion for 

departure or at the sentencing hearing. As the district court noted, Wasylk’s departure 

motion detailed his work history, his dedication to his community, and his strong ties to 

his family. The motion also detailed his history of drug dependency. 

At the sentencing hearing, the district court did not question the veracity of 

Wasylk’s claims regarding his history, nor did it question the accuracy of the reasons he 

gave in requesting that he receive a reduced sentence. Instead, the district court found that 

the reasons he gave were not sufficient to justify a departure sentence. Under these 

circumstances, we agree with the district court that the testimony of additional witnesses 

at the sentencing hearing would not have changed its decision to impose a sentence 

consistent with the guidelines.

While we recognize that "good character, family, and community support 

ordinarily carry some weight as mitigating factors"—and that these things may support a 

departure sentence for less serious crimes—they carry less significance when a person 

commits serious crimes. State v. Theurer, 50 Kan. App. 2d 1203, 1242, 337 P.3d 725 

(2014). This is because the Revised Kansas Sentencing Guidelines Act, K.S.A. 2022 

Supp. 21-6801 et seq., reflects the intent of the Kansas Legislative for sentencing courts 

to "'address circumstances, behaviors, and facts within the case' rather than 'a Defendant's 

individual characteristics outside . . . the case' itself." 50 Kan. App. 2d at 1221. Here, we 

find it to be significant that Wasylk was convicted of several severity level 1 crimes—the 

crimes the Legislature has deemed most serious—and his convictions were upheld on 

direct appeal. 
6

Under these circumstances, we agree with the district court that the motion, files, 

and records of the case conclusively establish that Wasylk is not entitled to relief. For this 

reason, we conclude that the district court did not err in summarily dismissing his second 

K.S.A. 60-1507 motion. Consequently, we affirm the district court’s decision.

Affirmed.