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Moll v. State

Court of Appeals of Kansas.
Mar 15, 2013
296 P.3d 1141 (Kan. Ct. App. 2013)

Opinion

No. 107,450.

2013-03-15

Shea MOLL, Appellee, v. STATE of Kansas, Appellant.

Appeal from Sedgwick District Court; Eric R. Yost, Judge. Matt J. Maloney, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellant. Kurt P. Kerns, of Ariagno, Kerns, Mank & White, LLC, of Wichita, and Melanie S. Morgan, of Morgan Pilate LLC, of Olathe, for appellee.


Appeal from Sedgwick District Court; Eric R. Yost, Judge.
Matt J. Maloney, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellant. Kurt P. Kerns, of Ariagno, Kerns, Mank & White, LLC, of Wichita, and Melanie S. Morgan, of Morgan Pilate LLC, of Olathe, for appellee.
Before LEBEN, P.J., PIERRON and STANDRIDGE, JJ.

MEMORANDUM OPINION


LEBEN, J.

The State has for a second time appealed the district court's grant of relief in a habeas corpus action brought by Shea Moll. In the first appeal, the State argued that the district court's factual findings were inadequate, and our court agreed, remanding the case for further findings. The district court entered a supplemental written order, but the State again argues that the district court's factual findings are not specific enough—or sufficiently supported by evidence—to warrant relief to Moll.

We have carefully examined the district court's 9–page supplemental ruling, which supplemented its prior, 2–page written ruling. The district court has provided ample findings, and its legal conclusions are squarely based on those findings, which are supported by the evidence. We find no error and affirm the district court.

The underlying factual and procedural history of this case is set out in detail in our earlier opinion, Moll v. State, 41 Kan.App.2d 677, 678–80, 204 P.3d 659 (2009), rev. denied 290 Kan. 1094 (2010). The parties are familiar with these matters, and we will only cover enough here to explain our ruling.

Moll pled guilty to one count of aggravated escape from custody (case No. 04 CR 831), two counts of aggravated battery (case No. 04 CR 3254), and one count of driving under the influence (DUI) (case No. 04 CR 3254). Moll pled guilty “straight up,” i.e., with no plea agreement, in case No. 04 CR 3254. In case No. 04 CR 831, Moll and the State had a plea agreement under which the State agreed to recommend the low number among the three numbers in the applicable grid box. The State also noted that Moll could ask for concurrent sentences. The district court sentenced Moll to 19 months in prison on the aggravated-escape charge, 114 months on the first aggravated-battery charge, 7 months on the second aggravated-battery charge, and 6 months on the DUI charge. The district court made all the sentences in case No. 04 CR 3254 concurrent to each other and consecutive to the sentence in case No. 04 CR 831.

Moll filed his habeas action to set aside his guilty pleas based on his claim that his attorney provided constitutionally inadequate representation. On the merits of an ineffective-assistance claim, the defendant has the burden to show two things: (1) that the attorney's work was below minimum standards and, thus, constitutionally deficient; and (2) that the attorney's substandard work prejudiced the defense. Mattox v. State, 293 Kan. 723, 725, 267 P.3d 746 (2011). The second part of that test ordinarily requires showing a reasonable probability that the result of the trial would have been different but for the attorney's substandard work. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674,reh. denied467 U.S. 1267 (1984); Mattox, 293 Kan. at 725–26. But where the defendant was found guilty based upon a plea rather than at trial, the defendant must show a reasonable probability that he or she would not have pled guilty and instead would have insisted on going to trial had the attorney provided constitutionally adequate representation. State v. Adams, 284 Kan. 109, 118, 158 P.3d 977 (2007); State v. Atteberry, 44 Kan.App.2d 478, 484, 239 P.3d 857 (2010), rev. denied 292 Kan. 966 (2011). A reasonable probability is one sufficient to undermine confidence in the outcome. State v. Bricker, 292 Kan. 239, 246, 252 P.3d 118 (2011).

In sum, what is generally referred to as the Strickland test requires two showings—constitutionally deficient representation and prejudice to the defense. The district court found that Moll made both showings. We must determine whether the district court's factual findings are supported by substantial evidence and whether those findings are sufficient to meet the Strickland test. Bellamy v. State, 285 Kan. 346, 354–55, 172 P.3d 10 (2007); Moll, 41 Kan.App.2d at 682.

The district court found that Moll's trial counsel, Danny Saville, provided inadequate assistance. In support of that conclusion, the district court made these notable factual findings:

• Saville met with Moll only six or seven times in 9 months, and Saville had little recollection about any of the meetings. Saville had no specific recollection of his discussion with Moll in reviewing the plea-agreement and plea-waiver forms.

• Saville's only strategy was to pursue a plea agreement. He didn't research or investigate any pretrial motions.

• Saville believed that Moll would receive probation “[i]n light of who the sentencing judge was.” Saville never believed there was a real possibility that Moll would be sentenced to prison.

• Moll signed the documents waiving his rights to enter guilty pleas without reading them. Moll relied on Saville's advice and believed that he would get probation.

• Had Saville not represented to Moll that he would most likely get probation, Moll would have gone to trial.

• Investigation, including interviews of fact witnesses and law-enforcement officers, would have been essential in determining what pretrial motions should be filed and in preparing for trial.

• Depending upon the investigation, a pretrial motion might well have limited the facts that the jury could have considered, and Moll might have been convicted of a lesser offense.

• The development of pretrial motions could have been used as leverage to negotiate a more favorable plea agreement.

• Saville's representation fell below the standard of reasonableness.

The district court's factual findings take up 3.5 pages of its supplemental ruling. Of those findings, the State has challenged only one on appeal—saying that the court's finding “that Saville could not recall details concerning his meetings with [Moll] ... [was] incomplete if not outright inaccurate.” It's true, as the State notes, that Saville did testify about a general practice of reading through plea documents with his clients. But he had no specific recollection of the details of his meetings with Moll, and he twice testified that he had no specific recollection of reviewing the plea documents with Moll before Moll signed them. Even when asked if he recalled “telling [Moll] that he should simply say yes to everything the judge said” during the plea hearing—which is what Moll said had happened—Saville said he had “no specific recollection of that.” He didn't say such a thing hadn't happened.

The district court heard testimony from both Saville and Moll, and the district court had the chance to make credibility determinations. In addition, we must “accept as true the evidence and all inferences drawn from the evidence that tend to support the findings of the district judge.” Wilkins v. State, 286 Kan. 971, 980–81, 190 P.3d 957 (2008). The district court's factual finding that Saville had no recall “as to details about review of the plea agreements or telling [Moll] to answer the Court's questions in a certain way” was supported by substantial evidence.

The State has not specifically challenged any of the other factual findings the district court made. Those findings are therefore accepted for the purposes of this appeal. See Sullivan, Bodney & Hammond P.C. v. Bodney, 16 Kan.App.2d 208, 209, 820 P.2d 1248 (1991).

So we turn to whether the factual findings of the district court support the court's legal conclusions under Strickland—that Saville provided inadequate assistance and that this prejudiced Moll.

The district court concluded that Saville's actions fell below the standard of reasonable assistance of counsel in two respects. First, the court faulted Saville's investigation and trial preparation, concluding that Saville failed to give meaningful consideration to the possibility of trial and failed to “develop[ ] information through investigation or pretrial motion practice which would have increased the odds of a more favorable resolution.” Second, the court faulted Saville's advice to Moll, concluding that “Saville failed to communicate the necessary information to [Moll] in order for [Moll] to make a knowing and voluntary waiver of his right to trial.”

Two criminal-defense attorneys testified as expert witnesses, and both said that Saville's representation had been below the required standard. The district court's factual findings included that “[b]oth experts credibly opined that an investigation and pretrial motions should have been pursued in this case.” As to the advice given, Moll testified that Saville told him that he “was going to get probation” and that Saville “just said we might as well just plead guilty and get it over with and you're going to get probation.”

The State correctly notes the rule that tactical and strategic decisions usually don't establish that the attorney was ineffective. See State v. Orr, 262 Kan. 312, 333, 940 P.2d 42 (1997). But even strategic decisions must be part of a reasonable, overall defense strategy. See Bledsoe v. State, 283 Kan. 81, 93–94, 150 P.3d 868 (2007). Here, the district court found that, in light of Moll's criminal history and the fact that the sentencing guidelines provided for a presumptive prison sentence, Saville's belief—and advice—that Moll would receive probation was “simply unreasonable.” We agree. Nor does the complete failure to investigate or prepare the case constitute a reasonable, overall defense strategy.

As to the prejudice prong of the Strickland test, Moll testified that had he understood he was facing possible imprisonment, he wouldn't have entered a guilty plea. The district court specifically found Moll's testimony on this point credible. The district court's conclusion that there was a reasonable probability that Moll would have gone to trial had he been properly represented is itself a reasonable one, so the Strickland prejudice test was met.

The State's final argument is that even the district court's supplemental journal entry is still not specific enough to allow meaningful appellate review. The district court's 9–page supplemental journal entry, when combined with its original 2–page written order, provides several pages of factual findings and two bases for concluding that Saville's representation was below the acceptable standard for reasonableness; it also finds that but for Saville's errors, there is a reasonable probability that Moll would have insisted on going to trial. The district court's journal entry is more than adequate to explain the basis for the district court's decision, and we have had no difficulty in reviewing that decision.

The district court's judgment is affirmed.


Summaries of

Moll v. State

Court of Appeals of Kansas.
Mar 15, 2013
296 P.3d 1141 (Kan. Ct. App. 2013)
Case details for

Moll v. State

Case Details

Full title:Shea MOLL, Appellee, v. STATE of Kansas, Appellant.

Court:Court of Appeals of Kansas.

Date published: Mar 15, 2013

Citations

296 P.3d 1141 (Kan. Ct. App. 2013)