Opinion
No. 106,668.
2013-03-15
STATE of Kansas, Appellee, v. Richard Eugene RICE, Appellant.
Appeal from Shawnee District Court; David B. Debenham, Judge. Matthew J. Edge, of Kansas Appellate Defender Office, for appellant. Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Shawnee District Court; David B. Debenham, Judge.
Matthew J. Edge, of Kansas Appellate Defender Office, for appellant. Jodi Litfin, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., McANANY, J., and KNUDSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
This is a direct appeal by Richard Eugene Rice after his convictions for attempted aggravated burglary and attempted robbery. A controlling sentence of 29 months' imprisonment has been imposed. At sentencing, Rice contended the written plea agreement had been altered and he wanted to withdraw his nolo contendere pleas. As a result, Rice's attorney, Jason Belveal, requested that the district court appoint substitute counsel to represent him on his motion to withdraw the pleas. Belveal believed he would be a potential witness on the issue of whether the written plea agreement had been altered. The district court denied the request for appointment of substitute counsel. Thereafter, neither Rice nor his attorney made any argument or an offer of proof to support Rice's contention that the plea agreement had been altered. After denying Rice's oral motion, the district court proceeded with sentencing.
On appeal, Rice contends the district court erred by denying his motion to withdraw pleas without appointing substitute counsel. His entire argument is that Belveal had a conflict of interest as a potential witness to the terms of the written plea agreement and therefore could not represent him on his motion to withdraw pleas.
We affirm. There was no showing before the district court that the written plea agreement, signed by Rice, had been subsequently altered. Thus Belveal did not have a conflict. Rice presented no additional evidence or argument to support his oral motion to withdraw his pleas. Accordingly, we conclude the district court did not error. The proceedings in district court
On October 28, 2010, the State charged Rice with one count aggravated burglary, a level 5 person felony, one count aggravated assault with a deadly weapon, a level 7 person felony, and one count aggravated robbery, a level 3 person felony. The district court appointed Belveal to Rice's defense. On January 25, 2011, Rice appeared with Belveal at a pretrial conference which established that the sentence for the controlling charge, aggravated robbery, was presumptive prison.
On December 13, 2010, Rice appeared with Belveal for his first plea hearing. The parties referred to a written plea agreement, but this particular plea agreement is not in the record. According to the transcript, Rice agreed to plead to attempted aggravated burglary and aggravated assault with intent to commit a felony, “which would essentially remove the deadly weapon portion of that charge.” In exchange the State would dismiss the aggravated robbery charge and agree to the following sentencing recommendations:
“That if this defendant were presumptive probation, essentially a ‘C’ to an ‘I,’ the State would ask that the Court follow the presumption of probation with ISP, but that the Court run the two counts ... consecutive. If this defendant is an ‘A’ or a ‘B’ criminal history, which would place him presumptive prison, the State will argue that the Court impose the prison sentence, but that it run the two counts ... concurrent. The defendant is free to, under that scenario, to ask for a departure to probation.
....
“[E]ssentially there will be two Level 7 person felonies that this defendant will be entering a plea to.”
The district court conducted a thorough colloquy with Rice regarding his rights. Rice said he was 51 years of age with a 12th grade education. The district court judge directed Rice to the sentencing grid, and the following exchange took place:
“THE COURT: ... They have given two different scenarios on what they will do at sentencing in this case. One is if you are presumptive probation, which would be if your criminal history comes back ‘C’ or higher—‘C’ or less, I should say, ‘C,’ ‘D,’ ‘E,’ ‘F,’ ‘G,’ ‘H’ or ‘I,’ you would fall within the presumptive probation box. And I think you have the grid box in front of you?
“DEFENDANT RICE: Yes, Your Honor.
“THE COURT: Okay. And in that case, they're going to ask for consecutive sentences, but follow the presumption, which is probation. If you come back an ‘A’ or a ‘B,’ which is three or two prior person felony convictions or person adjudications, they are going to seek the prison time, which would be the presumptive ... sentence in this case, not oppose concurrent, but then they would also not oppose your ability to ask for a ... dispositional departure, but they're not saying that they would agree. In fact, they would ask for prison. Is that your understanding?
“DEFENDANT RICE: Right.
“THE COURT: That is your understanding?
“DEFENDANT RICE: Yes, Your Honor.”
Towards the end of the hearing Rice indicated his dissatisfaction with the plea agreement. Saying he was “understanding you more now than I did before,” Rice wondered if he wanted to “take two felonies without getting something out of my plea bargain. That's my plea bargain, to try to get something for my benefit ... and all I'm getting is two felonies on my record.” Asked whether he still wished to go through with the plea, Rice answered: “Absolutely not.” The district court set trial for February 14, 2011.
On February 11, 2011, Rice appeared with Belveal. The parties announced a second plea deal, memorialized by a written plea agreement signed by Rice. The plea agreement stated Rice would plead to attempted robbery and attempted aggravated burglary, both level 7 person felonies. The third charge would be dismissed. The State would recommend standard sentences to run consecutively. Under “Other Terms/Conditions,” the written plea agreement included the following: “Believed [Rice's] criminal history is ‘D’ & he was be [ sic ] presumptive prob (ISP)—No deadly weapon finding.”
The prosecutor explained the sentencing recommendation as follows:
“The parties will recommend to you at the time of sentencing a standard range sentence, consecutive. So you would have a—it is believed that this defendant's criminal history is ‘D,’ so you would have a D–7 standard range sentence and then an 1–7 range standard sentence, that those would run consecutive.
“This plea is not going to require a departure—any type of departure, Your Honor....
“It is anticipated that this defendant will fall in the presumptive probation category and that the Court will place him on probation with ISP, and there will be no request by either party to depart from that presumption.”
The district court again directed Rice to the sentencing grid, but the colloquy this time was much shorter than in the first plea hearing. The district court noted the possible range of months without mentioning a criminal history score by letter, presumptive probation, presumptive prison, concurrent sentencing, or consecutive sentencing:
“THE COURT: ... Then do you have a sentencing grid in front of you, sir?
“DEFENDANT RICE: Yes, sir.
“THE COURT: I want to go over a couple of things on that. Do you realize that both these are Level 7's, and that's the VII on the left-hand side?
“DEFENDANT RICE: Yes, your Honor.
“THE COURT: If you have no prior criminal record, your presumptive sentence is a minimum of 11 months. If you have three prior person felony convictions or person adjudications as a juvenile, it could be up to 34 months on each count; do you understand that?
“DEFENDANT RICE: Yes, Your Honor.”
Rice said he had no questions and that he understood the proceeding and the consequences of his plea. The district court accepted Rice's pleas and scheduled sentencing for a later date.
On March 15, 2011, the presentence investigation report was filed. It showed Rice had a B criminal history with two prior person felonies. One of these felonies was from Colorado, and numerous prior misdemeanors were from Arizona and Georgia. On March 18, 2011, Belveal announced Rice would challenge the criminal history score. The district court therefore continued sentencing until May 5, 2011.
On May 5, 2011, Rice appeared with Belveal for sentencing. The district court found the State had not proven one of the misdemeanors, but it found the State had proven the Colorado person felony which, together with an unchallenged Kansas person felony, kept Rice at a B criminal history score. Belveal next addressed the court, and the entire exchange, including Rice's comments, was as follows:
“MR. BELVEAL: Judge, with that finding, Mr. Rice informs me that he wishes to withdraw his plea. He informs me that he believes that the written plea agreement I have placed in front of him is not the written plea agreement that he signed. He believes that it's been altered in some way, and he wishes to withdraw his plea. With that, I would ask that you appoint him new counsel so that that person could explore that. I believe that I would become a witness in that case and would not be able to proceed further.
“THE COURT: Okay. My understanding is that you've made a Motion to Withdraw, appoint new counsel to defendant under the allegation that the plea agreement has been changed?
“MR. BELVEAL: Yes, Judge. Mr. Rice informs me that he believes the written plea agreement as I laid in front of him is not the written plea agreement he signed. He believes it was altered after it was signed by him.
“THE COURT: That is the one page written plea agreement, bears my signature and the date of 2–11–11. I'll hear your counsel—or your client's statements as to where he thinks that's been altered.
“MR. BELVEAL: Yes, Judge.
“DEFENDANT RICE: Here where it says he was ‘D.’
“THE COURT: I'm sorry sir?
“DEFENDANT RICE: It says here, believed a criminal history of ‘D.’ He was be presumptive probation, ISP, no weapon found, okay. So it was—said I was going to get probation is what it's showing here on the plea agreement.
“THE COURT: Okay. Mr. Rice, I'm not understanding you. What part do you think—excuse me. What part do you think was changed on the written plea agreement?
“DEFENDANT RICE: Well, I mean, he was ‘D’ only makes sense. ‘He was be’ what? I mean, you know, it don't even come to a complete sentence.
“THE COURT: The way it reads is, believed defendant criminal history is ‘D’ and he was be presumptive probation, ISP, no deadly weapon finding.
“DEFENDANT RICE: Okay. So
“THE COURT: What you're saying is that ‘he was be’ does not make sense?
“DEFENDANT RICE: No, that I was supposed to get probation and I'm not getting it.
“THE COURT: I'm sorry, what?
“DEFENDANT RICE: I was supposed to get probation.
“THE COURT: That you were supposed to get probation?
“DEFENDANT RICE: It's saying here that I was getting probation is what was pointed out.
“THE COURT: Okay. What it says was, believed defendant's criminal history is ‘D’ and he was presumptive probation. I think that is just a sentence—it is supposed to be, and he would be presumptive probation, ISP, no deadly weapon finding. I'm going to deny the defendant's request for a—new counsel. I don't find that there's any evidence to support the allegation that the written plea agreement has been modified or changed in this matter. We're going—go ahead and have a seat, sir. We'll proceed.”
The State argued for application of the plea agreement, repeating it “was a presumption on our part” that Rice's criminal history was D. The prosecutor told the judge: “Of course, you told him and he's advised, hey, if your history is different or comes back different, you're going to be subject to the penalties for your actual history.” The prosecutor allowed that although the plea agreement specified consecutive sentences, “[n]ow that he is ‘B’ and there is no request for a departure, I will advise the Court that this is just one criminal act.” He therefore asked the district court to run the sentences concurrently.
Belveal stated he would “join in the recommendation of the State as is required of me by the plea agreement.” This included the State's “modified recommendation to you of concurrent sentencing.” Belveal said the prosecutor's “rationale makes sense to me.”
The district court judge addressed Rice again:
“Mr. Rice, in this case, at the time I took your plea, one of the things I would have advised you of, and I did advise you of I'm sure, is that regardless of where the parties think your criminal history is, you're going to be placed on the Sentencing Guidelines based on what the criminal history actually shows your criminal history to be. I know it's higher that what you thought it would be or what the counsel thought it would be, but I advised you of that. I have a duty to follow the Kansas Sentencing Guidelines in this case, and that means I have to basically plug you into the Sentencing Guidelines based on where your criminal history is.
“I found that your criminal history is a ‘B’ in this matter. I reviewed your criminal history before making that finding, and you are, in essence, a career criminal, sir.
“Now, one of the things that the State has changed on the plea negotiation and it works to your benefit so there's no violation of the agreement that they've made is they've agreed to recommend that the sentence on these two counts run concurrent with each other, at the same time, and that does work to your benefit. And your counsel has not violated the plea agreement. He has urged the Court to accept the State's modified recommendation since it does work to your benefit.
“One of the things I would have told you at the time you took your plea is it's up to the Court to determine concurrent and consecutive. Based on the fact that the State has recommended that these two sentences run concurrent, I'm going to do that, in essence .”
Rice argues he “was denied his Sixth Amendment right to counsel and his rights under K.S.A. 22–4503 to the assistance of counsel” because the “district court forced [him] to present and argue the motion to withdraw the pleas, without the benefit of counsel to help him investigate and present the facts and arguments in favor of granting the motion.” Rice asks that we vacate the sentence and remand the case to the district court for appointment of substitute counsel and further proceedings on the motion to withdraw the pleas. However, Rice's motion to withdraw pleas is based solely on the conflict of his attorney as a potential witness to the alleged alteration of the written plea agreement, not on good cause shown for withdrawal of a plea. See K.S.A.2011 Supp. 22–3210(d)(1).
Thus the ruling appealed from is the motion for substitute counsel. A district court's “refusal to appoint new trial counsel is reviewed for abuse of discretion.” State v. Smith, 291 Kan. 751, Syl. ¶ 4, 247 P.3d 676 (2011). Rice must show “justifiable dissatisfaction” with Belveal, which “may be demonstrated by showing a conflict of interest.” See 291 Kan. 751, Syl. ¶ 1, 247 P.3d 676. Rice argues Belveal “was conflicted and could not represent him on his motion to withdraw pleas.” Whether a conflict of interest existed is a question of law. See State v. Diggs, 272 Kan. 349, 355, 34 P.3d 63 (2001). However, “[t]o demonstrate that a conflict of interest resulted in ineffective assistance of counsel, a defendant has the burden of proving reversible conflict—that is, (1) a conflict of interest (2) that affected the adequacy of the attorney's representation.” Boldridge v. State, 289 Kan. 618, 622, 215 P.3d 585 (2009).
“A defendant who can demonstrate that a conflict of interest affected the adequacy of his or her counsel's representation need not demonstrate prejudice in the traditional sense, which requires the defendant to prove that counsel's deficient performance affected the outcome of the trial, due to the difficulty of establishing such a claim in cases based on conflicting loyalties. [Citation omitted.]” 289 Kan. at 622–23, 215 P.3d 585.
Rice has not shown that Belveal had a conflict of interest or that any conflict affected his performance. Belveal did suggest that he might become a witness at a future hearing regarding an alteration of the written plea agreement, and “[c]ombining the roles of advocate and witness can ... involve a conflict of interest between the lawyer and client.” Kansas Rule Profession Conduct Rule 3.7, Comment [1] (2012 Kan. Ct. R. Annot. 600). Yet there was no such hearing.
Instead, the district court questioned Rice. This was proper under the circumstances. “Before determining whether to appoint new counsel at the defendant's request, the trial court must make some inquiry into the defendant's complaints.” State v. Bogguess, 293 Kan. 743, Syl. ¶ 5, 268 P.3d 481 (2012).
Rice's answers showed that the true issue was not a supposed alteration of the written plea agreement, as Belveal had stated it, but whether the sentence would violate the written plea agreement. The district court did not acknowledge Rice's answers but kept to the issue as framed by Belveal. Not until its final comments did the district court address Rice's actual concern, stating inaccurately, at least with respect to the second plea hearing, that it had explained the consequences of a greater criminal history score.
It is true that Belveal did not argue Rice's point for him, and that he acquiesced in the State's recommendations. Yet it is difficult to see how this flowed from Belveal's potential role as a witness on a supposed alteration of the written plea agreement. After Rice spoke, no reasonable person could have thought that was the issue.
Arguably, there could perhaps have been an issue whether Belveal had adequately advised Rice regarding his criminal history score and its effect on the sentence. And Belveal could be a witness at a hearing on that issue. Moreover, if Belveal had failed to advise Rice adequately on these points, Belveal would have been forced to argue for withdrawal based on his own ineffectiveness, which would have presented a conflict of interest. See State v. Toney, 39 Kan.App.2d 1036, 187 P.3d 138 (2008). But Rice makes neither of these arguments on appeal. Issues not briefed are waived or abandoned. State v. McCaslin, 291 Kan. 697, 709, 245 P.3d 1030 (2011).
The record is clear that the written plea agreement had not been altered prior to sentencing. The district court did not err in denying the request for appointment of substitute counsel. As a result, Rice's oral motion to withdraw pleas became an empty vessel in the absence of any alternative arguments to support the motion. Accordingly, we hold the district court did not err in denying Rice's oral motion to withdraw pleas.
Affirmed.