Opinion
No. 107,844.
2013-05-17
James M. COLBERT, Appellant, v. STATE of Kansas, Appellee.
Appeal from Sedgwick District Court; Clark V. Owens II, Judge. Christina M. Kerls, of Kansas Appellate Defender Office, for appellant. Lesley A. Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Clark V. Owens II, Judge.
Christina M. Kerls, of Kansas Appellate Defender Office, for appellant. Lesley A. Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before LEBEN, P.J., BRUNS, J., and HEBERT, S.J.
MEMORANDUM OPINION
PER CURIAM.
James M. Colbert appeals the district court's denial of his K.S.A. 60–1507 motion. Although the district court originally dismissed the motion following a preliminary hearing, a panel of this court reversed the dismissal and remanded the case to the district court. On remand, the district court denied the motion after holding an evidentiary hearing. Because we find that substantial evidence in the record supports the district court's factual findings and that these findings are sufficient to support the conclusion reached by the district court, we affirm the denial of Colbert's K.S.A. 60–1507 motion.
Facts
On December 3, 2004, Colbert pled no contest to three counts of aggravated robbery, one count of attempted aggravated robbery, and one count of theft. The presentence investigation report indicated that Colbert had a criminal history score of a B because he had two prior person felonies. See K.S.A. 21–4709. One of the person felonies was based on Colbert being convicted of three person misdemeanors, which under K.S.A. 21–4711(a) count as one person felony. Before sentencing, Colbert challenged his criminal history score. Specifically, Colbert alleged that his criminal history score should be a D because counsel had not represented him in a 2004 misdemeanor conviction for domestic battery in Wichita municipal court.
On February 2, 2005, the district court held a sentencing hearing. At the hearing, Colbert's counsel stated that it was Colbert's desire to withdraw the motion objecting to his criminal history score. Colbert spoke later in the sentencing hearing but did not mention his concerns regarding his criminal history score. Based on the criminal history score set forth in the presentence investigation report, the district court sentenced Colbert to imprisonment for a term of 206 months.
On direct appeal, Colbert generally challenged the district court's use of his prior criminal history to increase his sentence without submitting it to a jury to find proof of it beyond a reasonable doubt. But a panel of this court rejected this argument and affirmed that part of Colbert's sentence. Nevertheless, the panel remanded the case for resentencing because the district court had failed to consider Colbert's financial resources before requiring him to pay Board of Indigents' Defense Services (BIDS) fees. See State v. Colbert, No. 94,213, 2006 WL 2337220 (Kan.App.2006) (unpublished opinion).
On September 5, 2007, Colbert filed the present K.S.A. 60–1507 motion, arguing ineffective assistance of counsel at his sentencing hearing. Colbert expressly argued that his counsel had been ineffective because he failed to preserve an objection to his criminal history score. The district court appointed counsel to represent Colbert on his K.S.A. 60–1507 motion and held a preliminary hearing on December 12, 2007. At the conclusion of the hearing, the district court found that the motion, files, and record conclusively showed that Colbert was not entitled to relief. Furthermore, the court concluded that Colbert could not challenge his criminal history score because he had withdrawn his objection to it at the sentencing hearing.
On appeal from the dismissal of the K.S.A. 60–1507 motion, a panel of this court reversed the district court's decision and remanded the matter for an evidentiary hearing. See Colbert v. State, No. 99,920, 2009 WL 1393747 (Kan.App.2009) (unpublished opinion), rev. denied 290 Kan. 1092 (2010). The district court appointed Colbert new counsel on remand and held an evidentiary hearing. At the hearing, the parties stipulated to the admission of two affidavits from the municipal court judge who had presided over Colbert's plea hearing in the underlying misdemeanor case. In addition, the parties stipulated to the admission of three journal entries and two waiver-of-counsel forms from Colbert's prior misdemeanor convictions.
Colbert also testified on his own behalf at the evidentiary hearing. According to Colbert, he did not tell his attorney to withdraw the objection to his criminal history score at the sentencing hearing. Moreover, Colbert testified that he had appeared before the municipal court judge in the underlying misdemeanor case by a video link on October 1, 2004. When shown the written waiver of counsel he had purportedly signed during the municipal court hearing, Colbert denied signing the form. Colbert admitted, however, that he believed the municipal court judge “may have discussed this waiver with [him].” At the end of the hearing, the district court took the motion under advisement.
On November 23, 2011, the district court denied Colbert's K.S.A. 60–1507 motion on the merits. After considering the evidence presented at the hearing, the district court determined that Colbert had the right to collaterally challenge the use of an alleged uncounseled misdemeanor conviction in a subsequent criminal case. But the district court concluded that Colbert had in fact signed the waiver-of-counsel form in the underlying municipal court case. Although the municipal court judge had failed to sign the waiver-of-counsel form, the district court found that the totality of the evidence established that Colbert had voluntarily and knowingly waived his right to counsel before entering his plea in the underlying misdemeanor case. Therefore, the district court concluded that Colbert was not prejudiced by his attorney's actions during the sentencing hearing in the present case.
Analysis
On appeal, Colbert contends that the district court erred in denying his K.S.A. 60–1507 motion. Specifically, Colbert contends that he was not represented by counsel when he was convicted of domestic battery in municipal court in a 2004 misdemeanor case. “An uncounseled misdemeanor conviction obtained in violation of the misdemeanant's Sixth Amendment right to counsel may not be collaterally used for sentence enhancement in a subsequent criminal proceeding.” State v. Youngblood, 288 Kan. 659, Syl. ¶ 3, 206 P.3d 518 (2009); see also State v. Allen, 28 Kan.App.2d 784, 786–87, 20 P.3d 747 (2001) (finding use of an invalid misdemeanor conviction would satisfy the ineffective-assistance-of-counsel-prejudice prong under Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 [1984] ).
“Before a misdemeanor conviction which results in jail time may be included in a defendant's criminal history, either the record must demonstrate that the defendant was represented by counsel or that the defendant waived counsel, or the State must establish by a preponderance of evidence that the defendant was represented by counsel or waived counsel.” State v. Delacruz, 258 Kan. 129, Syl. ¶ 7, 899 P.2d 1042 (1995). When a defendant files an objection to his or her criminal history, the State bears the “burden of producing further evidence to satisfy its burden of proof regarding any disputed part, or parts, of the criminal history ... by a preponderance of the evidence.” K.S.A. 21–4715(c); see State v. Schow, 287 Kan. 529, 539–40, 197 P.3d 825 (2008).
If the district court finds the State met its burden of proof, an appellate court's review is limited to a determination of whether there is substantial evidence to support the district court's findings. See State v. Hughes, 290 Kan. 159, 162, 224 P.3d 1149 (2010). “[B]ecause municipal courts are not courts of record, a written document should be obtained so that there is evidence that the defendant was fully informed of his or her rights to counsel and that any waiver thereof was knowingly and intelligently made.” 290 Kan. at 168; see In re Habeas Corpus Application of Gilchrist, 238 Kan. 202, 708 P.2d 977 (1985). Nevertheless, “[a]s long as the necessary information is ascertainable from other means or waiver forms, Gilchrist's requirements are satisfied.” Hughes, 290 Kan. at 168. Accordingly, the question presented in this appeal is whether there was sufficient evidence that Colbert was fully advised and properly informed of his rights.
Here, the district court weighed the evidence and concluded that Colbert voluntarily signed the waiver form in the underlying misdemeanor case after being advised of his rights by the municipal judge. Although the municipal judge failed to sign the waiver form, there was other evidence presented by the State on which the district court could rely to find that Colbert waived his rights. In particular, the district court concluded that Colbert's knowing and voluntary waiver of counsel in the municipal court case was proved by the following evidence: (1) Colbert admitted that the municipal judge may have read the contents of the waiver-of-counsel form to him during the video hearing; (2) Colbert testified that he knew indigent defendants are entitled to have court-appointed counsel because he had previously been prosecuted for several misdemeanor violations and a prior felony; (3) Colbert never claimed that he was not aware of his rights; (4) the municipal judge believed Colbert signed the waiver-of-counsel form during the video hearing; (5) the municipal judge's ordinary procedure was to inform defendants of their rights and to ask them if they wanted an appointed attorney; (6) if a defendant indicated that he or she did not want an attorney appointed, a corrections officer at the jail would hand a waiver form to the defendant, and the municipal judge would observe the defendant signing the waiver before proceeding with the video hearing; (7) the municipal judge believed that Colbert knowingly and voluntarily waived his right to counsel before entering his plea; and (8) the journal entry from the underlying misdemeanor case stated that Colbert had been advised of his right to counsel and that he had signed a waiver of counsel.
Although Colbert denied signing the waiver-of-counsel form, the district court did not find his testimony to be credible. Further, the district court compared Colbert's signature on the waiver-of-counsel form to his undisputed signatures on various other court documents presented at the evidentiary hearing and determined they were written by the same person. We also note that the journal entry entered by the municipal judge stated that Colbert waived his right to counsel after being advised of this right. Accordingly, our review of the record reveals there was substantial evidence presented at the evidentiary hearing to support the district court's findings and conclusions, and we will not replace our judgment for that of the district court.
We, therefore, conclude that the district court's decision was supported by substantial evidence and that such evidence was sufficient to support the conclusion that Colbert was not prejudiced by his attorney's failure to challenge his criminal history score at the sentencing hearing.
Affirmed.