Opinion
No. 104,846.
2012-05-18
STATE of Kansas, Appellee, v. Andre A. SMITH–ALLEGREE, Appellant.
Appeal from Sedgwick District Court; Benjamin L. Burgess, Judge. Matthew J. Edge, 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; Benjamin L. Burgess, Judge.
Matthew J. Edge, 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 MARQUARDT, P.J., HILL, J., and LARSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Andre A. Smith–Allegree appeals the district court's denial of his request that the district court appoint substitute counsel to argue his motion to withdraw his plea. We affirm.
On November 13, 2009, the State charged Andre A. Smith–Allegree with one count of aggravated battery, in violation of K.S.A. 21–3414(a)(l)(A). The court appointed the Sedgwick County Public Defender's Office to represent Smith–Allegree. With the advice of counsel and without a plea agreement, Smith–Allegree pled no contest to the aggravated battery.
Before accepting Smith–Allegree's plea, the district court conducted an extensive colloquy in which it advised Smith–Allegree of the nature and severity of the charge and the minimum and maximum penalties that could be imposed. Smith–Allegree told the court that he was aware of his rights to a jury trial, to be represented by counsel, to have the State prove the charge beyond a reasonable doubt, to cross-examine the State's witnesses, to compel the attendance of witnesses to testify on his behalf, and to testify in his own defense if he chose to do so.
Smith–Allegree advised the district court that no one had threatened or coerced him into entering his plea and that no one had made any promises or assurances to induce him to enter his plea. Smith–Allegree informed the district court that he was not under the influence of any substance that would affect his cognitive or mental functions. When asked whether he was satisfied with the performance of his attorney, Smith–Allegree answered affirmatively. The district court reiterated that it wanted to be sure that Smith–Allegree was knowingly, intelligently, and voluntarily entering his plea and that no improper influences were applied to persuade him to enter his plea. The district court asked Smith–Allegree if he wished to ask the court any questions. Smith–Allegree told the district court that he did not have any questions. At the conclusion of the colloquy, the district court accepted Smith–Allegree's no contest plea and found him guilty of aggravated battery.
Prior to sentencing, Smith–Allegree filed two motions. In his first motion, Smith–Allegree sought to withdraw his plea claiming that his attorney was ineffective when his attorney: (1) advised him that a plea was the only way to get a dispositional or durational departure; (2) did not secure an agreement for a departure sentence; and (3) did not call several witnesses in Smith–Allegree's defense. In his second motion, Smith–Allegree requested the district court dismiss his court-appointed counsel and appoint new counsel to represent him. In support of this motion, Smith–Allegree's proffered substantially the same allegations that were used in his motion to withdraw his plea.
At the hearing on Smith–Allegree's motions, Smith–Allegree was represented by the same attorney who had represented him at the plea hearing. When asked by the district court if defense counsel would like to argue the motion to withdraw plea, defense counsel indicated that he did not believe there was any basis for Smith–Allegree to withdraw his plea. The district court then asked Smith–Allegree to address his motion to withdraw his plea. Smith–Allegree informed the court that he was not satisfied with the representation provided by his attorney because his attorney had failed to interview witnesses and had told several witnesses they would not be able to testify.
In response to Smith–Allegree's statements, the district court reminded Smith–Allegree of the colloquy that took place during the plea hearing. The court reminded Smith–Allegree that he had been asked whether he was satisfied with the representation provided by his attorney and that he had indicated that he was satisfied. Smith–Allegree's response to the court was that he was emotionally distraught at the plea hearing because he had just lost his child in a guardianship proceeding. The district court found that Smith–Allegree knowingly, intelligently, and voluntarily entered his plea and denied his motion to withdraw his plea.
The district court also denied Smith–Allegree's motion to dismiss his attorney. However, the court did order a different attorney from the public defender's office to represent Smith–Allegree at his sentencing hearing.
At sentencing, the presentence investigation report reflected that Smith–Allegree had a criminal history score of B. The district court sentenced Smith–Allegree to 162 months in prison, which represented the aggravated number in the appropriate sentencing guidelines box. Smith–Allegree timely filed an appeal.
Motion to Withdraw a Plea Without Appointing New Counsel
A district judge's decision on disqualifying counsel for an alleged conflict of interest claim, a refusal to appoint new counsel, and a denial of a defendant's presentence motion to withdraw a plea are all decisions reviewed on appeal under an abuse of discretion standard. State v. Hulett, 293 Kan. 312, 318, 263 P.3d 153 (2011). An abuse of discretion occurs when the action is arbitrary, fanciful, or unreasonable. It means that no reasonable person would have taken the action of the trial court. State v. Sellers, 292 Kan. 117, 124, 253 P.3d 20 (2011). A defendant bears the burden of demonstrating that a district court abused its discretion. State v. Schow, 287 Kan. 529, 541, 197 P.3d 825 (2008).
Smith–Allegree contends that the district court acted unreasonably by hearing, and subsequently denying, his motion to withdraw his plea. Specifically, Smith–Allegree argues that he had a conflict with his counsel; therefore, his counsel could not represent him at the hearing on the motion to withdraw his plea. As a preliminary matter, Smith–Allegree argues that this issue consists of a question of law and that the applicable standard of review is de novo. However, as noted above, the correct standard of review is whether the district court abused its discretion when it denied Smith–Allegree's request to appoint new counsel to argue his motion.
“A plea of guilty or nolo contendere, for good cause shown and within the discretion of the court, may be withdrawn at any time before sentence is adjudged.” K.S.A.2011 Supp. 22–3210(d)(l). At a hearing in which the State is represented by counsel, a defendant has the right to be represented by conflict free counsel unless a defendant waives that right. State v. Taylor, 266 Kan. 967, 975, 975 P.2d 1196 (1999). The right of a defendant to be represented by conflict free counsel applies at a hearing on a presentencing motion to withdraw a plea. Hulett, 293 Kan. at 319.
In Taylor, our Supreme Court decided whether Taylor was deprived of the right to have conflict free counsel represent him in his motion to withdraw his plea. Taylor pled to several charges, but at sentencing, he informed the district court that he was unhappy with the representation provided and moved for permission to withdraw his plea and for a continuance to allow him the opportunity to retain new counsel. The district court denied both of Taylor's motions and proceeded to sentencing. Taylor, 266 Kan. at 971.
Our Supreme Court reviewed the district court's decisions and determined that Taylor was deprived of a meaningful opportunity to demonstrate good cause to withdraw his plea because he did not have the assistance of conflict free counsel in arguing his motion. The court also noted that the district court did not give Taylor an opportunity to explain why a conflict existed. The court held that a trial court has a duty to engage in further inquiry whenever it becomes aware of a possible conflict between an attorney and a defendant charged with a felony. Taylor, 266 Kan. at 979.
In State v. Davis, 33 Kan.App.2d 134, 98 P.3d 656 (2004), the district court engaged in further inquiry with the defendant when it addressed the defendant's motion to withdraw his plea. In that case, Davis pled guilty to one count of aggravated robbery. At sentencing, Davis moved to withdraw his plea, claiming that he entered his plea after his attorney had made threats toward both Davis and his family. In response to Davis' argument, the district court participated in a lengthy dialog with Davis and twice asked why Davis did not disclose these threats to the court at the plea hearing. In response to the court's second inquiry on this issue, Davis responded by telling the court that he had no comment. The district court denied Davis' motion to withdraw his plea.
On appeal, a panel of this court affirmed that decision, concluding that the district court adequately inquired into both the nature of Davis' alleged conflict with his attorney and his reasons for seeking to withdraw his plea. The panel specifically noted that the district court had provided Davis with two opportunities to explain why he did not inform the court during the plea hearing of the alleged threats and that Davis had failed to provide any explanation or information to the court. Finally, the panel surmised that had Davis provided a satisfactory response to the district court's inquiry, then it may have been appropriate for the court to appoint substitute counsel and hold a separate hearing on Davis' motion to withdraw his plea. Davis, 33 Kan.App.2d at 140.
Based upon a review of the record on appeal in the instant case, it appears that the district court complied with its duty to inquire into the alleged conflict raised by Smith–Allegree. The district court inquired of Smith–Allegree of the reason for seeking to withdraw his plea. Smith–Allegree informed the court that he was dissatisfied with his attorney's representation because his attorney had failed to interview several witnesses. The district court reminded Smith–Allegree of his responses to the district court during the plea hearing. The district court pointed out that Smith–Allegree had stated at the plea hearing that he was satisfied with the representation provided by his attorney. Smith–Allegree's explanation for his answer at the plea hearing was that he was emotionally distraught at the time due to recently losing custody of his child.
In the instant case, the district court engaged in a conflict inquiry that is similar to the conflict inquiry performed by the court in Davis. However, there is one difference between Davis and this case. In Davis, the defendant declined to provide the court with an answer as to why he failed to inform the court at the plea hearing of the alleged threats made by his attorney. In Smith–Allegree's case, he explained that his answers at the plea hearing were affected by his mental state. The district court apparently found Smith–Allegree's explanation unsatisfactory. The district court's rejection of Smith–Allegree's explanation was not arbitrary, fanciful, or unreasonable. See State v. Vasquez, 272 Kan. 692, 36 P.3d 246 (2001) (affirming district court's finding that mental instability did not constitute good cause to withdraw plea before sentencing).
Moreover, the district court's actions in this case do not suffer from the deficiencies present in Taylor. In Taylor, the court denied Taylor's motions without providing him with an opportunity to address his allegation that his attorney had a conflict. In Smith–Allegree's case, the district court let him explain why he believed good cause existed to allow him to withdraw his plea.
Smith–Allegree cites State v. Carter, 270 Kan. 426, 14 P.3d 1138 (2000), to support his argument that he was deprived of his Sixth Amendment right to conflict free counsel. However, Carter does not support Smith–Allegree's argument. In that case, our Supreme Court analyzed whether the State's case had been subjected to “meaningful adversarial testing” when the defendant maintained that he was innocent, but his counsel chose to pursue a defense over the defendant's objections. The court held that the defendant was denied effective representation and a fair trial because his attorney's actions relieved the State of its burden of proving the defendant's guilt beyond a reasonable doubt. The court did not address whether a defendant is deprived of his Sixth Amendment right to conflict free counsel when a trial court denies a request to appoint new counsel to argue a motion to withdraw a plea. Thus, Carter is not applicable to Smith–Allegree's case.
The district court complied with its duty to inquire when Smith–Allegree alleged a conflict; therefore, we affirm the district court's decision.
Aggravated Sentence
Smith–Allegree contends that the district court violated his Sixth and Fourteenth Amendment rights to trial by jury when it imposed the aggravated sentence without having the aggravating factors used to enhance the sentence submitted to a jury and proven beyond a reasonable doubt. Smith–Allegree acknowledges that in State v. Johnson, 286 Kan. 824, 190 P.3d 207 (2008), our Supreme Court already decided this issue adverse to his position, but he raises the argument to preserve it for federal review.
This court is duty bound to follow Kansas Supreme Court precedent, absent some indication the court is departing from its previous position. State v. Merrills, 37 Kan.App.2d 81, 83, 149 P.3d 869 (2007). Our Supreme Court has shown no indication that it intends to depart from its decision in Johnson. Thus, Smith–Allegree's argument is without merit.
Use of Defendant's Criminal History for Sentencing
Smith–Allegree argues that the district court violated his constitutional rights under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), when it used his criminal history to increase his sentence and did not require that criminal history to be submitted to a jury and proven beyond a reasonable doubt. Smith–Allegree concedes that in State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2002), our Supreme Court already decided this issue adverse to his position; however, he raises this argument to preserve it for federal review.
This court is duty bound to follow Kansas Supreme Court precedent, absent some indication the court is departing from its previous position. Merrills, 37 Kan.App.2d at 83. Without any indication that the Kansas Supreme Court intends to depart from its decision in Ivory, Smith–Allegree's argument is without merit.
Juvenile Adjudications
Finally, Smith–Allegree argues that the district court violated his constitutional rights under Apprendi when it included juvenile adjudications in his criminal history, used those prior adjudications to increase his sentence, and did not have those adjudications submitted to a jury and proven beyond a reasonable doubt. Smith–Allegree concedes that in State v. Hitt, 273 Kan. 224, 42 P.3d 732 (2002), our Supreme Court decided this issue adverse to his position; however, he raises this argument to preserve it for federal review.
This court is duty bound to follow Kansas Supreme Court precedent, absent some indication the court is departing from its previous position. Merrills, 37 Kan.App.2d at 83. Our Supreme Court has shown no indication that it intends to depart from its decision in Hitt. See State v. Carter, 278 Kan. 74, 82, 91 P .3d 1162 (2004) (affirming Hitt ). Thus, Smith–Allegree's argument on this issue is also without merit.
Affirmed.