Opinion
No. 106,044.
2012-06-8
Aaron GRAHAM, Appellant, v. STATE of Kansas, Appellee.
Appeal from Cherokee District Court; Oliver Kent Lynch, Judge. Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellant. Kristafer R. Ailslieger, Deputy Solicitor General, for appellee.
Appeal from Cherokee District Court; Oliver Kent Lynch, Judge.
Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellant. Kristafer R. Ailslieger, Deputy Solicitor General, for appellee.
Before BUSER, P.J., ATCHESON, J., and KNUDSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Aaron Graham pled guilty to a charge of first-degree felony murder. He was sentenced to life imprisonment and will be eligible for parole after serving 20 years without deduction of any good time credits. K.S.A. 21–3401; K.S.A. 22–3717(b)(2). Graham did not pursue a direct appeal but commenced this proceeding pursuant to K.S .A. 60–1507 contending he should be permitted to withdraw the guilty plea because his attorney did not provide effective assistance of counsel. After appointment of counsel and a full evidentiary hearing, the district court denied Graham's motion. Graham has filed a timely appeal. We affirm the decision of the district court.
The underlying circumstances
In 2007, Graham and two other men, Samuel Becker and Edward Gordon, “engaged in a course of conduct that would take them across two Kansas towns and into the homes of several people, ultimately resulting in one death and multiple charges of kidnapping, assault, battery, and murder,” State v. Becker, 290 Kan. 842, 842, 235 P .3d 424 (2010). The underlying facts and circumstances of the defendants' crime spree is fully narrated in the Becker decision and need not be repeated in our opinion. Becker's jury trial resulted in convictions of one count of first-degree murder, four counts of kidnapping, one count of attempted kidnapping, two counts of aggravated battery, two counts of aggravated assault, and one count of aggravated burglary. The district court imposed a controlling sentence of life imprisonment plus 68 months.
On the Friday before Graham's scheduled Monday jury trial, Graham met with his attorney, William Adamson. Adamson told Graham that his defenses would not be very successful at trial and that the best thing for him to do was plead guilty. Based on Becker's trial and sentence, Adamson thought that Graham would be exposed to much more risk if he went to trial because multiple convictions would likely result in consecutive sentences. During the meeting, Adamson called the State and the State offered to dismiss all charges except felony murder, which carried a mandatory life sentence with a possibility of parole after 20 years. Adamson advised Graham to accept the plea. Graham pled guilty to felony murder and was sentenced to life in prison.
One year after he was sentenced Graham commenced this proceeding under K.S.A. 60–1507 seeking to withdraw his guilty plea, alleging ineffective assistance of counsel. An evidentiary hearing was conducted, and the parties submitted proposed findings and conclusions. In Graham's proposed findings of fact, he alleged that his plea was involuntary and was procured based upon misrepresentations of his sentence and counsel's preparation for trial. Graham also alleged that he was coerced into pleading because Adamson incorrectly informed him that he had no defenses available. Graham asked the district court to withdraw his plea and place his case on the jury trial docket. After an evidentiary hearing, the district court denied Graham's motion, finding that Graham failed to establish that his counsel was ineffective or that he was prejudiced by his counsel's errors. Graham timely appeals.
Standard of Review
When the district court has conducted an evidentiary hearing after a K.S.A. 60–1507 motion has been filed, an appellate court reviews the district court's findings of fact to determine whether they are supported by substantial competent evidence and are sufficient to support the court's conclusions of law. Appellate review of the district court's ultimate conclusions of law is unlimited. Bellamy v. State, 285 Kan. 346, 354–55, 172 P.3d 10 (2007).
Our courts have generally considered three factors in evaluating both pre- and post-sentencing motions to withdraw pleas, known as the “ Edgar ” factors: (1) whether the defendant was represented by competent counsel; (2) whether the defendant was misled, coerced, mistreated, or unfairly taken advantage of; and (3) whether the plea was fairly and understandingly made. See State v. Schow, 287 Kan. 529, 546, 197 P.3d 825 (2008); State v. Edgar, 281 Kan. 30, 36, 127 P.3d 986 (2006). Graham invokes all three factors in his brief. The State argues that Graham's argument based on Edgar is misplaced as Edgar was a direct appeal from the denial of a motion to withdraw a plea and is not applicable in this collateral proceeding. One panel of this court has agreed with the State, finding that both Schow and Edgar were direct appeals and were not applicable in K.S.A. 60–1507 cases. Keltner v. State, No. 101,796, 2010 WL 2348690 (Kan.App.2010) (unpublished opinion), rev. denied 292 Kan. 965 (2011).
Another panel of this court has applied the Edgar factors in an appeal from a denial of a 60–1507 motion. Stanton v. State, No. 101, 589, 2011 WL 588483 (Kan.App.) (unpublished opinion), rev. denied 293 Kan. –––– (2011). The panel found, however, that unless a movant's claim is based upon a conflict of interest, the movant must demonstrate ineffective assistance of counsel rising to the level of a violation of the Sixth Amendment to the United States Constitution. Stanton, 2011 WL 588483, at *3.
We conclude even if the Edgar factors do apply, in order for Graham to prevail on his claim of ineffective assistance of counsel, he must meet the test under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674,reh. denied467 U.S. 1267 (1984), and demonstrate by evidence that (1) counsel's performance fell below an objective standard of reasonableness and (2) but for counsel's errors, he would not have pled guilty and would have insisted on going to trial. A “reasonable probability” is a probability sufficient to undermine confidence in the outcome. State v. Bricker, 292 Kan. 239, 245–46, 252 P.3d 118 (2011); State v. Barahona, 35 Kan.App.2d 605, 610, 132 P.3d 959,rev. denied 282 Kan. 791 (2006); see Lemon v. State, No. 105,432, 2012 WL 718943 (Kan.App.2012), petition for review filed April 2, 2012 (applying Bricker and Barahona to a K.S.A. 60–1507 motion based on ineffective assistance of counsel); Washington v. State, No. 103,772, 2011 WL 5143037, at *4 (Kan.App.2011) (unpublished opinion), rev. denied May 21, 2012 (same). Graham bore the burden of proving by a preponderance of the evidence that he was entitled to relief. See Supreme Court Rule 183(g) (2011 Kan. Ct. R. Annot. 259).
Adamson did not fail to adequately explain the life sentence
Graham first alleges that he misunderstood the duration of his life sentence. He testified that based on Adamson's description of the sentence, it was his understanding that if he had no disciplinary incidents, he would be paroled after 20 years. Graham's mother and wife also testified that based on Adamson's explanation of the sentence, Graham would be paroled in 20 years if he did not have any disciplinary issues in prison. The plea agreement, however, stated: “I understand that the mandatory sentence for this crime is a sentence of life in prison. I understand that I would be eligible for parole in 20 years but that parole at that time or any other time is not guaranteed.” The plea agreement repeated that his sentence would be “[l]ife in prison and a fine of up to $300,000.00.” In the agreement, Graham also signed the following statement:
“After fully discussing my potential defenses to the charges in this case, the legal options available to me in these proceedings, and the above-mentioned matters with my attorney, I advise this court that I understand it is my decision, alone, whether to accept or reject the plea agreement and whether to enter a plea of guilty to the charge(s) herein. My decision to accept the plea agreement and change my plea is completely voluntary without anyone having threatened me or promised me anything of benefit, and it is without duress or coercion other than that which the plea agreement provides .”
Under K.S.A. 22–3210(a)(3), the district judge was required to “address [ ] the defendant personally and determine[ ] that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea.” Here, Graham does not contend the district court failed to comply with the requirements of K.S.A. 22–3210 in accepting his guilty plea. Moreover, Graham does not contend that at the hearing he gave the district court any reason whatsoever to pause in accepting the plea. This conclusion is reinforced as Graham has not even included a transcript of the plea hearing in the record on appeal. Clearly, Graham's claim is limited to an allegation that Adamson misled him as to the life sentence that would be imposed. Graham contends that Adamson explained he would serve 20 years and then be released on probation. The record does not support Graham's claim.
Adamson testified at the K.S.A. 60–1507 hearing that he explained to Graham exactly what his sentence meant: “it was a life sentence but he would see the parole board after 20 years.” He also said: “I explained to Mr. Graham ... my understanding was that it was a minimum of 20. It was a life sentence and literally he could be kept in the Kansas Department of Corrections for life, but that he would have an opportunity to begin the process of parole after 20 years.” Adamson's testimony did not indicate a likelihood that a defendant would actually receive parole in 20 years following a felony-murder conviction.
Graham argued to the district court that Adamson's logic for accepting the plea in this case made no sense because the addition of any other time consecutive to a life sentence was meaningless. The district court found Graham's argument ignored the plain language of K.S.A. 21–4720(b)(2) which provided that “[i]f sentences for off-grid and on-grid convictions are ordered to run consecutively, the offender shall not begin to serve the on-grid sentence until paroled from the off-grid sentence.” Therefore, as the district court pointed out, if Graham was paroled, under K.S.A. 21–4720(b)(2) he would then be required to serve his on-grid sentences.
We conclude the evidence introduced at the hearing supports the district court's finding that Graham failed to prove by a preponderance of the evidence that Adamson provided misleading legal advice regarding the life sentence.
Graham has not shown his attorney was unprepared for trial
Graham also argues that he entered his plea because he thought his attorney was not prepared for trial. Our Supreme Court has indicated that an attorney's failure to adequately prepare for trial is a sufficient legal basis for finding his or her performance ineffective. State v. Overstreet, 288 Kan. 1, 25, 200 P.3d 427 (2009); State v. Davis, 277 Kan. 309, 327–29, 85 P.3d 1164 (2004). The court has also made it clear, however, that “ ‘ “mistaken subjective impressions, in the absence of substantial objective proof showing that they were reasonably justified, do not provide sufficient grounds upon which to vacate a guilty plea.” [Citation omitted.]’ [Citation omitted.]” State v. Harned, 281 Kan. 1023, 1043, 135 P.3d 1169 (2006).
Adamson requested two continuances in this case, both based on his extremely busy schedule. The State objected to the second request for continuance. The court, however, granted the motion. Graham testified that when the district judge granted the motion, Adamson was admonished that this would be his last chance and that the jury trial would proceed in July. Graham testified that when he would contact Adamson to discuss his case, Adamson would tell him there was no need to discuss trial strategy until closer to the trial date.
The Friday before the jury trial was scheduled, Adamson met with Graham to discuss his case. Graham testified that Adamson told him that he had not hired an investigator, interviewed the State's witnesses, or visited the scene of the crimes. Graham testified that Adamson gave him until Saturday morning to decide whether to accept the plea so that Adamson could start preparing for trial if necessary. Graham did not feel that Adamson was prepared for trial and felt that he was faced with either taking the plea or going to trial without having any preparation for the trial.
Adamson, on the other hand, testified that while he thought it was in Graham's best interest to take the State's plea offer, he was prepared for trial if Graham chose not to plead. He testified that he had reviewed all discovery, reviewed the transcripts from Becker's trial, and discussed his theory of defense with Graham, which was to lay blame at the door of the other defendants, argue that the State had not proven kidnapping, and show Graham was not the one who fired the weapon. He also testified that while he did not independently interview the State's witnesses, he had reviewed the State's evidence and dealt with the witnesses at the preliminary hearing.
Graham contends Adamson was untruthful when he told Graham that after reviewing the transcripts in Becker's case, he concluded that Graham would not win at trial, After he was sentenced, Graham's mother and wife spoke with Adamson. They each testified that Adamson told them he had not read Becker's trial transcripts as he had represented. Graham testified that had he known Adamson had not reviewed the transcripts, he would not have taken the plea.
Conversely, Adamson testified that he had read the transcripts. The district court found that upon weighing the credibility of the witnesses, Adamson did read the transcripts of Becker's trial. The court further found that the dispute regarding what Adamson may or may not have said to Graham's mother and wife about the transcripts following the plea hearing was the result of a miscommunication or misunderstanding. Graham's claim of error asks this court to make determinations regarding witness credibility, which is outside of this court's province. See State v. Fewell, 286 Kan. 370, Syl. ¶ 2, 184 P.3d 903 (2008). The district court's finding on this claim of error was supported by substantial competent evidence.
Graham also claims that Adamson was ineffective for failing to adequately investigate potential defenses available for the charged crimes and telling Graham he had no defense available to him. Graham first argues that his case was factually different from Becker's case because Becker was the actual shooter of the victim, not Graham, and therefore the requirement of the proof for the State was very different. This factual difference, however, does not provide Graham a defense, as our Supreme Court has stated that to prove felony murder, the State:
“ ‘must prove only that the defendant committed a felony inherently dangerous to human life, which directly resulted in the homicide. [Citation omitted.] Accordingly, a defendant may be convicted of felony murder even if the victim was not killed by the defendant or an agent of the defendant, as long as the homicide occurred as a direct result of an inherently dangerous felony. [Citation omitted.]’ State v. Ransom, 288 Kan. 697, 713–14, 207 P.3d 208 (2009).” State v. Washington, 293 Kan. 732, 738–39, 268 P.3d 475 (2012).
Graham further contends the kidnappings underlying the felony-murder charge were completed at the time of the shooting and were not available as the predicate crime. As the State points out, however, the jury rejected this argument in Becker, and Adamson was aware of this at the time he advised Graham to plead guilty. See Becker, 290 Kan. at 855–56. Graham argues that this was still a viable defense and may have been successful with a different jury. This argument, however, overlooks that while the defense may have been viable that does not mean it was a strong defense. Adamson stated that he reviewed the Becker trial transcripts; therefore, it was not unreasonable for him to conclude that this was a weak defense.
Graham's final argument is that Adamson told him that voluntary intoxication was not a defense in his case and was only available at sentencing as a mitigating factor. Clearly, if Adamson did so inform Graham, he misspoke. Aiding and abetting is a specific intent crime and voluntary intoxication can cause one to be incapable of specific intent necessary to aid and abet. See State v. McDaniel & Owens, 228 Kan. 172, 178–79, 612 P.2d 1231 (1980).
On this issue, Graham initially testified as follows:
“Q. Did you ever discuss with Mr. Adamson the utilization of a voluntary intoxication defense at trial?
“A. No, we hadn't discussed—Really I had ideas for what I wanted to say and, you know, some of the things I wanted to say at trial and I brought that to him and he kept telling me that they were no good, they were no good, they were no good. Then he just kept talking about the plea. This is stuff that I tried to discuss with him of months before trial even, you know what I mean. And at that time he just told me that they were pointless issues I suppose.”
Adamson testified subsequently and stated:
“Q. Did you discuss with him voluntary intoxication [as a] defense?
“A. Yes, I explained to him that it was in fact not a defense and could not be presented as one but that the court can consider it as a mitigating circumstance in sentencing. And after review of everything I didn't feel there was going to be much opportunity for mitigation in the case.
“Q. So your thinking was on the involuntary intoxication it wasn't a defense but could be considered like at sentencing as part of a departure motion or trying to get a mitigated sentence, that kind of thing?
“A. Yes; Sir.”
Thereafter, Graham returned to the stand in rebuttal and testified as follows:
“Q. Do you recall Mr. Adamson telling you that voluntary intoxication was not a defense?
“A. No. I told him I was drunk when it happened but he said that it didn't matter.”
The above testimony from the evidentiary record is not a model of clarity. However, even if we are to conclude from the testimony presented that Graham reasonably understood from his conversations with Adamson that voluntary intoxication was not a defense, he has not demonstrated the district court erred.
Our Supreme Court has found that simply having consumed drugs or alcohol is not enough to support a voluntary intoxication defense. State v. Brown, 258 Kan. 374, 386–87, 904 P.2d 985 (1995). A defendant's ability to recall the circumstances surrounding the charged crime and to provide a coherent narrative of his or her conduct undercuts a claim of sufficient intoxication to warrant a jury instruction. State v. Hernandez, 292 Kan. 598, 606–07, 257 P.3d 767 (2011) (defendant's ability to recall his or her actions demonstrates his or her faculties were sufficiently intact to negate voluntary intoxication defense); Brown, 258 Kan. at 387. Admittedly these cases dealt with a different issue than is before us. However, both Brown and Hernandez provide insight as to the evidence Graham must present to demonstrate prejudice.
Graham testified he told Adamson he was drunk at the time of the events leading to his criminal charges. He does not support this single self-serving statement with any corroborative evidence as to the type or quantity of alcohol consumed; he does not present a time line of consumption or of the attendant circumstances that would demonstrate excessive drinking. In short, Graham does not offer any evidence that his mental faculties were so impaired that he would have been unable to form specific intent in the commission of the multiple felonies perpetrated over an extended period of time and in multiple locations. His only statement of being drunk was presented in rebuttal testimony, almost as an afterthought compared to his otherwise vigorous presentation of evidence to support his contentions. We conclude the evidence presented at the hearing did not establish prejudice resulting from any miscommunication with counsel.
Conclusion
The evidentiary record supports the district court's findings and its legal conclusion that Graham has not met his burden of establishing grounds for relief by a preponderance of the evidence presented at the evidentiary hearing.
Affirmed.