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NOT DESIGNATED FOR PUBLICATION

No. 121,580

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

GARY PERALES,

Appellant,

v.

STATE OF KANSAS,

Appellee.

MEMORANDUM OPINION

Appeal from Saline District Court; JARED B. JOHNSON, judge. Opinion filed July 31, 2020. 

Affirmed.

Kristen B. Patty, of Wichita, for appellant. 

Michael J. Duenes, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.

Before BUSER, P.J., HILL and WARNER, JJ.

PER CURIAM: A jury convicted Gary Perales of sexually assaulting M.P. over 

several years. That verdict was supported, in part, by the expert testimony of a nurse who 

described the findings from M.P.'s sexual-assault examination. After this court affirmed 

his conviction, Perales filed a motion under K.S.A. 60-1507, arguing among other claims

that his trial counsel was ineffective because she did not call an expert to rebut the nurse's 

testimony. The district court summarily denied Perales' motion. After reviewing the 

record and the parties' arguments, we conclude Perales has not shown that the court 

should have held an evidentiary hearing on his K.S.A. 60-1507 motion. Thus, we affirm.
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FACTUAL AND PROCEDURAL BACKGROUND

This court addressed the underlying facts leading to Perales' conviction in State v. 

Perales, No. 110,246, 2015 WL 6630443 (Kan. App. 2015) (unpublished opinion), rev. 

denied 305 Kan. 1256 (2016). In August 2010, M.P., then 16 years old, told police that 

Perales had been sexually abusing her for the past four years. Several days later, a 

SANE/SART nurse—a nurse certified in performing sexual-assault examinations—

examined M.P. M.P. also began attending therapy sessions where she discussed the 

abuse. 

The State brought multiple sex-related charges against Perales, including rape, 

aggravated indecent liberties with a child, and aggravated criminal sodomy. Because 

M.P. told others about the abuse only a few days before informing the police, the jury 

trial largely focused on M.P.'s credibility. During the two-week trial, the parties called 

multiple witnesses, including the SANE/SART nurse and M.P.'s therapist. The nurse 

testified about the sexual-assault examination, and the therapist discussed M.P.'s 

memories of abuse they talked about during therapy. The jury convicted Perales on eight

charges. 2015 WL 6630443, at *1. This court affirmed his conviction, the Supreme Court 

denied his petition for review, and the mandate was issued in late December 2016. 

In August 2017, Perales filed a K.S.A. 60-1507 motion, raising over 50 issues—

including an allegation that his trial counsel was ineffective because the attorney did not 

hire an expert witness to rebut the testimony of the nurse or the therapist. The district 

court summarily denied the motion. In its ruling, the court observed that Perales did not 

specify what type of expert would have been helpful in his case. And the court found that 

Perales' trial attorney effectively countered the testimony of the nurse and M.P.'s therapist 

through cross-examination.
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Perales appeals. Though his initial motion raised numerous potential issues, the 

sole issue presented in his appeal concerns his attorney's decision not to hire an expert 

witness. He claims the district court erred when it summarily denied this point, asserting 

the court should have held an evidentiary hearing to determine the merits of his claim.

DISCUSSION

K.S.A. 2019 Supp. 60-1507(a) provides a collateral vehicle for those convicted of 

crimes to challenge the fairness of the proceedings leading to their convictions. A court 

considering a K.S.A. 60-1507 motion may take three courses of action, depending on the 

motion's contents. First, the court may summarily deny the motion without a hearing if 

the motion, files, and records from the case conclusively show the movant is not entitled 

to relief. Second, the court may order a preliminary hearing and appoint the movant 

counsel if a potentially substantial issue exists. Third, when "the motion and the files and 

records of the case" do not "conclusively show that the prisoner is entitled to no relief," 

the court must hold an evidentiary hearing. K.S.A. 2019 Supp. 60-1507(b); see Hayes v. 

State, 307 Kan. 9, 12, 404 P.3d 676 (2017).

To warrant an evidentiary hearing, a movant must first make a prima facie 

showing that his or her claims are colorable by demonstrating a possible evidentiary basis 

for his or her assertions. See Swenson v. State, 284 Kan. 931, 938, 169 P.3d 298 (2007). 

The movant bears the burden of proving an evidentiary hearing is necessary. Holt v. 

State, 290 Kan. 491, Syl. ¶ 3, 232 P.3d 848 (2010). When the district court has denied a 

K.S.A. 60-1507 motion based only on the motion, files, and records—with or without a 

preliminary hearing—the appellate court is in just as good a position as the district court 

to consider the merits. We thus review such rulings de novo. Grossman v. State, 300 Kan. 

1058, 1061, 337 P.3d 687 (2014).
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On appeal, Perales asserts that "[o]f all [his] allegations, the one most entitled to 

an evidentiary hearing" was his claim of ineffective assistance of counsel relating to his 

attorney's decision not to hire an expert witness to counter the testimony of the therapist 

or the SANE/SART nurse; he discusses no other claims raised in his original motion. 

Accord Requena v. State, 310 Kan. 105, 107, 444 P.3d 918 (2019) (an issue not briefed 

on appeal is abandoned). Claims for ineffective assistance of counsel are evaluated under 

the two-prong standard set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. 

Ct. 2052, 80 L. Ed. 2d 674 (1984). A movant therefore must show that counsel's 

performance was deficient and that, but for counsel's deficient performance, there is a 

reasonable probability the jury would have reached a different result. Breedlove v. State, 

310 Kan. 56, 64, 445 P.3d 1101 (2019).

Perales acknowledges that not all cases require defense counsel to hire an expert 

witness. Often, cross-examination may accomplish the same aim without giving 

unintended credence to or otherwise highlighting the testimony of the State's witnesses. 

See Harrington v. Richter, 562 U.S. 86, 111, 131 S. Ct. 770, 178 L. Ed. 2d 624 (2011). 

For this reason, the decision to hire an expert is quintessential trial strategy. Courts 

generally defer to an attorney's strategic decisions, so Perales bears the burden to 

demonstrate his attorney's decision here was an exception to that rule. See State v. Butler, 

307 Kan. 831, 854, 416 P.3d 116 (2018) (noting a decision is not strategic when an 

attorney "lacks the information necessary to make an informed decision due to an 

insufficient investigation").

Perales argues his trial counsel should have hired an expert witness to rebut the

testimony provided by the SANE/SART nurse and M.P.'s therapist. He asserts that these 

witnesses were important to the State's case, so his trial counsel had a duty to diligently 

examine the State's forensic evidence and "garner the expertise necessary to cross 

examine the State's expert." Yet beyond this general point, Perales provides no 

information regarding who his counsel should have retained as an expert, the substance of 
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that potential expert's or experts' testimony, or how this testimony would have led to a 

different outcome in his trial. 

It was Perales' burden to provide a sufficient factual explanation as to why his 

claims warranted an evidentiary hearing. And it is Perales' burden on appeal to 

demonstrate why, in the absence of such an explanation, the district court erred in 

summarily denying his motion. Based on the scant information provided to the district 

court and on appeal, we conclude he has not made this requisite showing.

Rather, our review of the record demonstrates Perales' trial counsel conducted an 

effective cross-examination of the State's witnesses:

• The therapist, who recounted information from M.P.'s discussions and memories 

of abuse in her therapy sessions, testified as a fact witness, not an expert. It is 

unclear how expert testimony would have affected the therapist's recital of these

facts. And on cross-examination Perales' attorney attempted to draw out 

discrepancies in the testimony in an effort to undermine M.P.'s credibility. 

• The nurse provided expert testimony regarding the outcome of the sexual-assault 

examination. Rather than call a separate expert long after the exam, Perales' 

attorney on cross-examination pointed out alternative explanations for the nurse's 

conclusions that were inconsistent with sexual assault or intercourse. This strategy 

was consistent with the theory of the defense—to call into question the veracity of 

M.P.'s account. 

Under these circumstances, Perales has not shown that his trial counsel's 

performance was constitutionally deficient. Nor has he demonstrated that the jury would 

have reached a different result had an expert (or multiple experts) been retained. As such, 
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he has not provided a sufficient evidentiary basis for his claims. The district court did not 

err in summarily denying Perales' K.S.A. 60-1507 motion without an evidentiary hearing.

Affirmed.