Opinion
No. 105,789.
2012-05-18
STATE of Kansas, Appellee, v. Joshua FLEMING, Appellant.
Appeal from Sedgwick District Court; David J. Kaufman, 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; David J. Kaufman, 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.
Joshua Fleming appeals the district court's decision denying his motion to withdraw his guilty pleas prior to sentencing.
Fleming claims the district court erred by failing to find that he showed good cause to withdraw his pleas on the grounds that his defense counsel had a conflict of interest. He also asserts he should have been allowed to withdraw his pleas even without a showing of good cause. Finally, he argues his criminal history was improperly used to increase his sentence.
None of Fleming's arguments have any merit and we affirm. Factual background and legal proceedings
Although we utilize the name Joshua Fleming throughout this opinion as it was the name used below, we note that Fleming's lawful name is Donte Oliver Zilfonte and at times in the record the defendant's lawful name is utilized.
In November 2009, Joshua Fleming was initially charged with seven felony counts after he was accused of participating in a home invasion. The district court appointed Latina Wharton, a public defender, to represent Fleming, Wharton negotiated a plea agreement for Fleming in which he would plead guilty to the charges in exchange for the State's recommendation of a mitigated sentence.
On July 12, 2010, the scheduled date of his jury trial, Fleming pled guilty to one count of aggravated burglary, one count of aggravated assault, three counts of aggravated robbery, one count of defacing the identification markings of a firearm, one count of criminal possession of a firearm, and one count of theft. Under the plea agreement, the State agreed to recommend that the district court impose the mitigated sentences in the appropriate guidelines grid boxes and further request that the sentences be ordered to run concurrently.
Fleming was represented by Wharton at the plea hearing. The district court engaged Fleming in a lengthy dialogue regarding his rights, the criminal procedural process, the possibility of deportation, his comprehension of the plea agreement, and the possible sentences. The district court encouraged Fleming to interrupt the court and ask questions or indicate if there was something that he did not understand. After establishing a factual basis for each count, the district court accepted Fleming's pleas as knowing and voluntary and set the case for sentencing.
On August 18, 2010, Fleming filed a pro se motion for ineffective counsel, requesting the appointment of new counsel and withdrawal of his pleas. On August 20, 2010, Fleming filed a pro se motion to withdraw plea, alleging a “blatant conflict of interest.” Fleming alleged that he had shared information with defense counsel regarding the involvement of Jeff True and Gary Ramsey in the home invasion. Fleming alleged that defense counsel had a conflict of interest because the Public Defender's Office had previously represented True. Fleming contended that defense counsel failed to forward relevant evidence to the prosecutor. Fleming's newly appointed counsel explained that Fleming claimed he shared information about True's involvement in the home invasion with Wharton with the intention of negotiating a favorable plea agreement with the State. Fleming assumed that Wharton declined to pass the information to the State out of a sense of loyalty to True due to the Public Defender's Office's prior representation of True. Fleming did not offer any evidence to substantiate his claim and stood solely on his conclusory statement as support for his request.
After hearing arguments from counsel regarding the alleged conflict of interest, the district court ruled that the public defender's duty of loyalty to its former client, True, would not have prevented Wharton from using Fleming's information about True's and Ramsey's involvement while negotiating a plea agreement. Before ruling, the district court took judicial notice of the full court computerized system. The district court stated that True had two previous cases, No. 98 CR 1205 and No. 02 CR 1355, in which he was represented by the Public Defender's Office. The court further noted that the Public Defender's Office was briefly appointed to represent True in two cases in 2008, but it was relieved of its responsibilities in those cases due to a conflict.
The district court recognized the appropriate burden of proof and the factors to consider when determining whether a defendant has met his or her burden of establishing good cause. The district court stated that Rule 1.9 of the Kansas Rules of Professional Conduct (KRPC) did not require Wharton to relieve herself in this case because the public defender's previous representation of True was not in a “substantially related matter.” See 2011 Kan. Ct. R. Annot. 502. The court ruled that it could not find “any conflict of interest under the Kansas Rules of Professional Conduct that would require [Wharton] to have relieved herself of representation.”
The district court also reviewed the affidavit of probable cause regarding the home invasion in light of Fleming's allegations that True was involved in the crime. The court stated: “Mr. True, without being redundant, is obviously not a charged codefendant in this case.... His name just appears on a pro se motion. I don't consider that good cause shown based on what has been argued before me.” The district court did not find any evidence to support Fleming's allegations and ruled that Fleming failed to show good cause to withdraw his pleas. Finally, the district court gave Fleming the opportunity to make a statement regarding his allegations. After Fleming's statement, the court reaffirmed its ruling and denied Fleming's motion to withdraw his pleas.
The presentence investigation report indicated that Fleming had a criminal history classification of A. Based on that classification, the district court followed the State's recommended sentencing, imposing the mitigated sentence in the grid box and running the sentences concurrently for a controlling sentence of 221 months' imprisonment.
Fleming timely appeals the denial of his motion to withdraw his pleas.
Analysis
Fleming's first argument is the district court erred in failing to find he showed good cause to withdraw his plea. He contends his defense counsel had a conflict of interest that prevented her from zealously representing him in plea negotiations. The State responds that Fleming did not present any credible evidence showing his plea counsel had a conflict of interest resulting in a failure to show good cause.
“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)(1). On appeal, the defendant must establish that the district court abused its sound discretion in denying the motion to withdraw plea. State v. Denmark–Wagner, 292 Kan. 870, 875, 258 P.3d 960 (2011). Discretion is not abused when reasonable minds could differ as to the propriety of the action taken by the district court. See State v. Gant, 288 Kan. 76, 81–82, 201 P.3d 673 (2009).
In making a determination of whether a defendant demonstrates good cause to withdraw a plea, the district court should consider if (1) the defendant was represented by competent counsel; (2) the defendant was misled, coerced, mistreated, or unfairly taken advantage of; and (3) the plea was fairly and understandingly made. State v. Plotner, 290 Kan. 774, 778, 235 P.3d 417 (2010). All three factors do not have to be in the defendant's favor to grant relief. The district court also may consider other factors when determining whether good cause is shown. State v. Anderson, 291 Kan. 849, Syl. ¶ 2, 249 P.3d 425 (2011).
Fleming asserts his attorney, Wharton, had a conflict of interest because the Public Defender's Office, where Wharton was employed, had in previous years represented True. There was no showing that Wharton's office was representing True in this case, but Fleming stated he had told Wharton that True was involved in his case and she had failed to properly utilize this information. Specifically, he argued Wharton had declined to pass on the information out of loyalty to True. There has been no evidence presented to support these allegations.
Under Rule 1.9(a) (2011 Kan. Ct. R. Annot. 502) of the KRPC, “[a] lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client” without a written waiver from the former client. In determining whether a matter is substantially related enough to present a conflict, “[t]he underlying question is whether the lawyer was so involved in the matter that the subsequent representation can be justly regarded as a changing of sides in the matter in question.” See Rule 1.9, Comment 2. Additionally, matters are “substantially related” for purposes of Rule 1.9, “if they involve the same transaction or legal dispute or if there otherwise is a substantial risk that confidential factual information as would normally have been obtained in the prior representation would materially advance the client's position in the subsequent matter.” Rule 1.9, Comment 3.
Under the Sixth Amendment to the United States Constitution, an actual conflict of interest occurs when a counsel's divided loyalties adversely affect counsel's performance. Mickens v. Taylor, 535 U.S. 162, 172 n. 5, 122 S.Ct. 1237, 152 L.Ed.2d 291 (2002); State v. Gleason, 277 Kan. 624, 654, 88 P.3d 218 (2004). Here, Fleming has failed to show that his asserted conflict of interest adversely affected his public defender's performance in negotiating his plea agreement. See Mickens, 535 U.S. at 174.
The record showed the Public Defender's Office had not represented True since 2002. There was no shown conflict of interest. True was not a codefendant or a named witness in Fleming's case. Other than Fleming's unsubstantiated assertion after his plea was finalized, there is nothing to connect True to the home invasion.
Additionally, the entire plea hearing was before the same judge who heard Fleming's motion to withdraw his plea. The record is clear that Fleming was not misled, coerced, mistreated, or unfairly taken advantage of during the plea hearing. True said nothing about being unhappy with his counsel or the bargained agreement. No conflict of interest was shown.
The entire record supports the district court's findings and decision to deny Fleming's motion to withdraw his plea.
Fleming's alternative argument that the district court erred by failing to consider whether to exercise its discretion and allow Fleming to withdraw his pleas, even absent a showing of good cause, has absolutely no merit.
Fleming's argument requires an interpretation of K.S.A.2011 Supp. 22–3210(d)(1). Interpretation of a statute is a question of law over which an appellate court has unlimited review. State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010).
Fleming asserts that the language of K.S.A.2011 Supp. 22–3210(d)(1) provides two independent grounds upon which a district court may allow a defendant to withdraw his or her plea. Fleming argues these grounds are (1) upon a showing of good cause; or (2) at the district court's discretion. Thus, Fleming asserts the district court erred in failing to consider whether the circumstances in this case warranted a plea withdrawal even absent a showing of good cause.
Fleming concedes that K.S.A.2011 Supp. 22–3210(d)(1) uses the word “and” rather than “or,” and he notes that the word “and” is ordinarily conjunctive. See State v. Johnson, 289 Kan. 870, 879, 218 P.3d 46 (2009). But he asserts that the legislative intent should be considered and the use of the word “and” does not resolve the ambiguity in this statute.
Our court has on numerous occasions been presented with the same argument as Fleming makes here and expressly rejected it each time. See State v. Brown, 46 Kan.App.2d 556, 263 P.3d 217 (2011); State v. Sullivan, No. 102,057, 2011 WL 148889 (Kan.App.2011) (unpublished opinion); see also State v. Aguilar, 290 Kan. 506, 511, 231 P.3d 563 (2010).
Fleming failed to show good cause to withdraw his plea, and the district court had no choice but to deny his motion to withdraw his plea.
Finally, Fleming claims that the district court's use of his prior adult convictions and prior juvenile adjudications at sentencing violated his due process and jury trial rights. Fleming's criminal history consisted of five adult convictions and three additional juvenile adjudications that were final in 2002.
Fleming acknowledges the Kansas Supreme Court has decided the issue against him, and he raises it only for purposes of federal review. See State v. Fischer, 288 Kan. 470, Syl. ¶ 3, 203 P.2d 1269 (2009) (juvenile adjudications final as of June 20, 2008, may be included in an offender's criminal history score); State v. Hitt, 273 Kan. 224, 229, 236, 42 P.3d 732,cert. denied537 U.S. 1104 (2003); State v. Ivory, 273 Kan. 44, 46–48, 41 P.3d 781 (2002). 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,rev. denied 284 Kan. 949 (2007). There is no indication the Supreme Court intends to depart from its position on either issue. See State v. McCaslin, 291 Kan. 697, 731–32, 245 P.3d 1030 (2011) (reaffirming Ivory ).
Affirmed.