concurring: I concur with the result reached by the majority that the district court did not err in dismissing Rickey Alan Cranford’s K.S.A. 60-1507 motion. Cranford’s claim of ineffective assistance of counsel was both successive and untimely. As for the claim of newly discovered evidence, even if A.C. recanted her previous allegations of sexual abuse, this does not affect the validity of Cranford’s no contest plea.
I write separately only to question our standard of review of the district court’s decision. The majority states that we apply a findings of fact and conclusions of law standard of review to determine whether the district court’s findings were supported by substantial competent evidence and whether those findings were sufficient to support its conclusions of law. Cranford did not receive an evidentiary hearing in the district court. The district court conducted a preliminaiy hearing to determine whether the issues in Cranford’s motion were substantial enough to warrant an evidentiary hearing. However, the district court only considered statements of counsel, and no evidence was presented at the preliminary hearing. How *17are we to determine whether the district court’s findings were supported by substantial competent evidence when there was no evidence presented in the district court for us to review?
A brief recitation of the history of the standard of review exercised by Kansas appellate courts in K.S.A. 60-1507 cases is in order. For many years, the standard of review when the district court summarily denied a K.S.A. 60-1507 motion was abuse of discretion. See, e.g., Supreme Court Rule 183(h) (2007 Kan. Ct. R. Annot. 243); Gilkey v. State, 31 Kan. App. 2d 77, 78, 60 P.3d 351, rev. denied 275 Kan. 963 (2003). This standard of review was sometimes questioned because when the district court’s decision was based solely upon the motion, files, and records in the case, movants argued that the appellate court was in the same position as the district court, justifying a de novo standard of review. The confusion reached the point that in Laymon v. State, 280 Kan. 430, 437, 122 P.3d 326 (2005), the Kansas Supreme Court acknowledged that appellate courts “routinely engage in de novo review of summary denials of 60-1507 motions while giving lip service to the abuse of discretion standard. [Citation omitted.]”
Finally, the Kansas Supreme Court attempted to settle the standard of review issue in Bellamy v. State, 285 Kan. 345, 172 P.3d 10 (2007). In Bellamy, the court recognized that K.S.A. 60-1507 motions can be handled in the district court in one of three ways. First, the district court may summarily deny the motion without any type of hearing based on a review of the motion, files, and records of the case. Second, the district court may hold a preliminary hearing after appointment of counsel to determine whether the issues in the motion are substantial enough to warrant an evidentiaiy hearing. Third, the district court may determine from the motion itself that a substantial issue is presented, requiring a full evidentiary hearing with the presence of the movant. Bellamy, 285 Kan. 345, Syl. ¶ 1.
The Bellamy court determined that the appropriate standard of review for the summary dismissal of a K.S.A. 60-1507 motion is de novo. 285 Kan. 345, Syl. ¶ 3. When the district court conducts a preliminary hearing, the appellate court applies a findings of fact and conclusions of law standard of review to determine whether *18the findings were supported by substantial competent evidence and whether those findings were sufficient to support its conclusions of law. The district court’s ultimate legal conclusion regarding whether the movant has established a claim for relief is reviewed as a conclusion of law using a de novo standard. 285 Kan. 345, Syl. ¶ 4. The standard of review is the same when the district court conducts a full evidentiary hearing. 285 Kan. 345, Syl. ¶ 5.
The only problem with Bellamy’s analysis is that when the district court conducts a preliminary hearing on a K.S.A. 60-1507 motion, this is usually a nonevidentiary hearing. Most of the time, the district court hears statements of counsel and reviews the court files and records to determine if a full evidentiaiy hearing with the presence of the movant is warranted. This is what happened in Cranford’s case. When the district court conducts a nonevidentiary hearing, how can the appellate court determine whether the district court’s findings were supported by substantial competent evidence? Statements of counsel are not evidence. The district court is not in a position to make any “findings of fact” at a nonevidentiary hearing except to recite what is already contained in the motion, files, and records of the case. In this event, the appellate court is in the same position as tire district court in reviewing the case, and the district court’s findings need not be accorded any deference by the appellate court.
If the district court considers evidence at a preliminary hearing on a K.S.A. 60-1507 motion, then the substantial competent evidence standard of review would be appropriate. However, if the district court conducts a nonevidentiary preliminary hearing and hears only statements of counsel, then the appellate standard of review should be de novo, just as if the district court had summarily denied the motion without any hearing at all. There can be no requirement to determine whether the district court’s findings were supported by substantial competent evidence when there was no evidence presented in the district court to be reviewed.