Opinion
No. 107,023.
2013-03-8
STATE of Kansas, Appellee, v. Joseph DAVIS, Appellant.
Appeal from Scott District Court; J. Philip C. Vieux, Judge. Matthew J. Edge, of Kansas Appellate Defender Office, for appellant. Joseph Davis, appellant pro se.
Appeal from Scott District Court; J. Philip C. Vieux, Judge.
Matthew J. Edge, of Kansas Appellate Defender Office, for appellant. Joseph Davis, appellant pro se.
John Shirley, county attorney, and Derek Schmidt, attorney general, for appellee.
Before BRUNS, P.J., GREEN and BUSER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Joseph Davis filed a motion to withdraw plea based, in part, on ineffective assistance of counsel. The district court summarily dismissed the motion and indicated that Davis should raise the issue in a K.S.A. 60–1507 motion. We reverse and remand for consideration of the motion to withdraw plea.
Factual and Procedural Background
The State charged Davis with one count aggravated burglary. Davis appeared for the preliminary hearing with his counsel, Therese Hartnett, assistant western regional public defender. Hartnett and the State announced that the parties had reached a plea agreement and that Davis would plead guilty to attempted aggravated burglary.
The district court informed Davis of the rights he would waive if he pled guilty and inquired regarding Davis' understanding of the plea. No questions were asked about Davis' mental state or whether any medications he was taking might affect his understanding of the proceedings. After the State presented a factual basis for the guilty plea, the district court accepted the plea and found Davis guilty.
On April 5, 2010, Davis was sentenced to 32 months' imprisonment. On June 17, 2010, a letter from Davis (dated May 6, 2010) was filed in the district court. The letter stated:
“Motion To Withdraw Plea
“Dear Judge:
“Hello, I am sending this to the courts due to ‘motion to with-draw my plea.’ I took a plea on April 5th 2010. ‘I'm with-drawing my plea because I feel with the medication ! was on I did not understand what was going on!!’ Now they got me on different medication so I'm able to understand what is going on. I would greatly apriciate [ sic ] it if you could get me back into court.
“Please take this motion into consideration.”
The district court responded to Davis' letter:
“Your letter, which is captioned ‘Motion To Withdraw Plea’ involves elements of a request to withdraw a plea as well as elements of a 60–1507 [motion]. It, however, fails required information in both regards. Additionally, writing personal letters and requests to the court will not solve any problems. The court is not your attorney. You must contact your attorney or file a motion that is in accordance with the statutes of this state.”
On September 24, 2010, Davis filed a pro se motion to withdraw plea. He alleged “several attempts to get his appointed defense attorney ... Hartnett to withdraw his plea” before sentencing. Davis claimed that Hartnett refused to do so and that she also refused to file a notice of appeal. He alleged Hartnett's refusals had prompted his letter to the district court. Davis further alleged that he entered his plea while “on medication which interferred [ sic ] with his cognitive functions and the appointed defense attorney, pushing him to plead, stating that in Scott County a Blackman [ sic ] charged was automatically guilty.” Davis asked to withdraw his plea in order to correct a manifest injustice.
On October 19, 2010, the district court summarily denied the motion to withdraw plea since it was “based upon ineffective assistance of counsel and is more properly addressed in a motion brought pursuant to K.S.A. 60–1507.” The district court directed that Davis, “if he wishes to purse this matter, shall cause the same to be filed as a motion seeking the protections of K.S.A. 60–1507, habeas corpus. And he shall do so in accordance with the procedures of K.S.A. 60–1507 and Supreme Court Rule 183.” Stating “[t]his is the second notice to the defendant that he needs to follow the procedures of K.S.A. 60–1507,” the district court included “two copies of the forms necessary to file a motion pursuant to K.S.A. 60–1507.”
A few days later, on October 28, 2010, Davis filed another pro se motion to withdraw plea, a pro se motion to correct illegal sentence, and a motion for appointed counsel. The motion to withdraw plea was identical to the September 24, 2010, filing. In the motion to correct illegal sentence, Davis repeated his claim that he did not understand his plea due to medication. He attached what appears to be a note from a nurse practitioner stating Davis was medicated for depression, anxiety, insomnia, and pain disorder.
On the same day, the district court summarily dismissed Davis' motions. The district court denied the motion to withdraw plea as second or successive. The district court also held Davis was not complaining of an illegal sentence. Given these rulings, it denied Davis' motion for appointment of counsel.
On November 2, 2010, Davis filed a notice of appeal in the criminal case. The case, however, was not docketed in this court. Instead, on November 23, 2010, Davis filed a pro se K.S.A. 60–1507 motion using a form document. When asked to state the grounds for his K.S.A. 60–1507 motion, Davis repeated his complaints regarding Hartnett and his allegations regarding the medication. When asked what else he had done to pursue these claims, Davis wrote that the district court “advised filing K.S.A. 60–1507 and provided forms.” Davis further noted his motions in the criminal case were denied and the district court had “instructed that a K.S.A. 60–1507 is the appropriate form for motion.” Finally, Davis expanded his complaints regarding Hartnett, alleging she also had failed to obtain exculpatory evidence or communicate with him.
The district court docketed the K.S.A. 60–1507 motion as a civil case and appointed Douglas Spencer as Davis' counsel. Spencer requested discovery from the State and obtained a subpoena duces tecum ordering Hartnett to appear with her records for an evidentiary hearing. Spencer listed the witnesses for this hearing as Hartnett and another individual. Spencer listed as exhibits Davis' criminal file and Davis' “phone call record while he was in the Reception and Diagnostic Unit at El Dorado Correctional Facility .” Spencer also obtained an order to transport Davis for the hearing.
On May 24, 2011, the evidentiary hearing was held on the K.S.A. 60–1507 motion. Davis appeared with Spencer, but no transcript is in the record on appeal. According to the journal entry, the district court found “this matter is properly before the Court for hearing at this time.”
Davis called his first witness, who is not identified in the journal entry. After the direct examination, Davis requested “a recess to confer with [his] attorney, [State] does not object and the Court orders a recess of the hearing.” The journal entry next records: “Thereupon, after [conferring] with his attorney and his wife, the hearing reconvenes, at which time, [Davis] requests that he be allowed to withdraw his Motion.”
According to the journal entry, the district court questioned Davis “about his decision to withdraw his Motion.” The district court was “satisfied that [Davis] has made a knowing and voluntary decision.” As a result, the district court ordered Davis' motion withdrawn and adjourned the hearing. The journal entry does not state that the district court dismissed the case, and Davis did not appeal from the district court's ruling ordering withdrawal of the motion. Instead, on December 1, 2011, Davis docketed his appeal that he had previously timely filed in the criminal case.
Analysis
Davis contends the district court should have considered his motion to withdraw plea. The State does not dispute that Davis deserved an evidentiary hearing in the criminal case on the motion, but it argues Davis acquiesced by pursuing an evidentiary hearing on the K.S.A. 60–1507 motion in the civil case. “Because acquiescence involves jurisdiction, the matter raises a question of law subject to unlimited review.” Alliance Mortgage Co. v. Pastine, 281 Kan. 1266, 1271, 136 P.3d 457 (2006).
“Acquiescence to a judgment cutting off the right of appellate review occurs when a party voluntarily complies with a judgment by assuming the burdens or accepting the benefits of the judgment contested on appeal. [Citation omitted.]” 281 Kan. at 1271. However, “the doctrine of acquiescence has limited application in criminal cases.” State v. Hills, 264 Kan. 437, 440, 957 P.2d 496 (1998). This is shown, for example, by an “application for, or acceptance of, probation or suspended sentence,” which does “not constitute an acquiescence in the judgment for the purpose of appeal .” 264 Kan. at 440.
Among the cases cited by the State in support of its argument are two civil acquiescence cases. This court has previously distinguished civil acquiescence cases from criminal matters because, once again, “[t]he doctrine of acquiescence has limited application in criminal cases.” State v. Kelley, 42 Kan.App.2d 782, 793, 217 P.3d 56 (2009) (citing Hills ). The State does cite one criminal case, State v. Murphy, 278 Kan. 228, 91 P.3d 1232 (2004), but it is distinguishable on the facts.
In Murphy, a criminal defense attorney “assumed that the State would call all of the witnesses it had subpoenaed and did not issue a separate subpoena for a witness who he believed would provide exculpatory evidence.” 278 Kan. 228. The “district court declared a mistrial based upon [the defense attorney's] self-proclaimed ineffective assistance of counsel and assessed the costs of trial to [the attorney] as a sanction.” 278 Kan. 228. The attorney did not object but rather accepted the sanction because it would delay the proceedings.
The attorney then appealed the sanction, but the Kansas Supreme Court held it lacked jurisdiction due to acquiescence. 278 Kan. at 229. Our Supreme Court reasoned the attorney's “position before the trial court is inconsistent with his position on appeal.” 278 Kan. at 229. The attorney had made “statements to the court ... that he was willing to accept the sanction and pay the costs .” 278 Kan. at 229.
Here, in contrast, Davis did not appear to gain anything by following the district court's suggestion to file a K.S.A. 60–1507 motion. He was simply pursuing the remedies available to him rather than taking contrary positions before the district and appellate courts. Thus, we conclude that Davis did not acquiesce in the ruling in the criminal case denying his motion to withdraw plea. And we will not consider what, if any, legal ramifications resulted from Davis' withdrawal of his K.S.A. 60–1507 motion during the evidentiary hearing because the State does not argue it. Issues not briefed are deemed waived or abandoned. State v. McCaslin, 291 Kan. 697, 709, 245 P.3d 1030 (2011).
On the merits, it appears uncontested that Davis alleged a sufficient basis to warrant an evidentiary hearing on his motion to withdraw plea. See State v. Macias–Medina, 293 Kan. 833, Syl. ¶ 2, 268 P.3d 1201 (2012) (competence of counsel among factors for withdrawal); see also State v. Aguilar, 290 Kan. 506, Syl. ¶ 1, 231 P.3d 563 (2010) (defendant need not show Sixth Amendment ineffectiveness). Accordingly, we reverse and remand for an evidentiary hearing on Davis' motion to withdraw plea in the criminal case. At the hearing, the district court should consider both Hartsell's effectiveness and Davis' allegation that medication interfered with his understanding of the plea. See State v. Denmark–Wagner, 292 Kan. 870, 878–80, 258 P.3d 960 (2011) (discussion of medication as basis for withdrawal of plea when no questions were asked at plea hearing).
Finally, we note that Davis filed a supplemental pro se brief with the permission of this court. In this brief, he argues the factual basis for the plea was inadequate. Davis may make this argument on remand.
Reversed and remanded with directions.