Opinion
110,748.
10-10-2014
In the Court of Appeals of the STATE of Kansas State of Kansas, Appellee, v. Jesse GUZMAN, Appellant.
Eric S. Harmon, of Harman Law, LLC, of Dodge City, for appellant. J. Scott James, assistant county attorney, Natalie K. Randall, county attorney, and Derek Schmidt, attorney general, for appellee.
Eric S. Harmon, of Harman Law, LLC, of Dodge City, for appellant.
J. Scott James, assistant county attorney, Natalie K. Randall, county attorney, and Derek Schmidt, attorney general, for appellee.
Before BRUNS, P.J., PIERRON and POWELL, JJ.
Opinion
PER CURIAM.
Jesse Guzman appeals from his conviction and sentence for burglary. He claims he should be allowed to withdraw his plea because the district court neglected to safeguard his Sixth Amendment right to conflict-free counsel by failing to properly inquire whether a conflict of interest existed between himself and his court-appointed attorney. We disagree and affirm.
Facts
In February 2013, the State charged Guzman with burglary of a dwelling and felony theft and appointed an attorney to represent him. Before Guzman's preliminary hearing and arraignment, he filed two pro se motions despite being represented by counsel. On May 15, 2013, Guzman filed his first motion, which stated: “I would Like to put in for a Ninety day speedy trail.[sic ]” On May 23, 2013, Guzman filed a second motion asking for the suppression of evidence because it was no longer in the possession of the Dodge City Police Department. He did not identify what evidence he wished to suppress or what items the police department no longer possessed. There is no evidence in the record that the motions were served to the State, that the State responded, or that the motions were set for hearing.
On June 6, 2013, Guzman pled no contest to one count of burglary of a dwelling, and the State requested the court dismiss the theft charge pursuant to a plea agreement. At the hearing, the district court asked Guzman whether he had an opportunity to talk with his attorney about entering a plea. Guzman said he had discussed it with his attorney and he was satisfied with his attorney's advice. Six days after entering his plea, Guzman filed another pro se motion asking to withdraw his plea because he believed it was not fair and he did not know he had pending charges. There is no record of a hearing or any other action taken in response to the motion.
At the sentencing hearing on August 16, 2013, the pro se motions filed by Guzman were not discussed. The district court asked if there was any reason it could not proceed with sentencing, and Guzman's attorney said there was not. Prior to the sentencing hearing, Guzman's attorney had filed a motion for a dispositional departure. The district court denied the motion and sentenced Guzman to 34 months in prison.
Guzman's attorney subsequently filed a timely notice of appeal on August 20, 2013. On August 28, 2013, Guzman filed a pro se “motion for appeal” in which he claimed for the first time there was a conflict of interest between himself and his attorney. He also claimed the sentence he received was not what he and his attorney had originally discussed.
Did the District Court Err by Failing to Inquire as to a Potential Conflict of Interest Between Guzman and His Attorney?
Guzman argues the district court failed to safeguard his Sixth Amendment right to conflict-free counsel. He claims his multiple pro se motions should have triggered the district court's duty to inquire about a potential conflict of interest between Guzman and his attorney. The State claims the district court did not have a duty to inquire about a potential conflict of interest because Guzman never alleged a conflict of interest until he filed his “motion for appeal” after sentencing.
The Sixth Amendment to the United States Constitution guarantees a defendant the right to effective assistance of counsel, which includes the right to representation free from conflicts of interest. State v. Stovall, 298 Kan. 362, 370, 312 P.3d 1271 (2013). “ ‘It is the task of the district judge to insure that a defendant's Sixth Amendment right to counsel is honored. [Citations omitted.]’ ‘Where a trial court becomes aware of a possible conflict of interest between an attorney and a defendant charged with a felony, the court has a duty to inquire further.’ [Citations omitted.]” State v. Vann, 280 Kan. 782, 789, 127 P.3d 307 (2006). “If an appropriate inquiry is made, the district court's decision is reviewed under an abuse of discretion standard. [Citation omitted.] But a district court abuses its discretion when it makes no inquiry into the nature of the conflict. [Citation omitted.]” Stovall, 298 Kan. at 370. The defendant bears the burden of showing the court abused its discretion. State v. Hulett, 293 Kan. 312, 319, 263 P.3d 153 (2011).
The issue in this case is not whether the district court made an inquiry but whether the district court had the duty to inquire in the first place.
“If a defendant seeks substitute counsel, the defendant ‘must show “justifiable dissatisfaction” with his or her appointed counsel,’ which can be ‘demonstrated by showing a conflict of interest, an irreconcilable disagreement, or a complete breakdown in communication between counsel and the defendant.’ [Citation omitted .] The defendant bears the responsibility of providing “ ‘an articulated statement of attorney dissatisfaction,’ “ which will, in turn, “ ‘trigger the district court's duty to inquire into a potential conflict’ “ of interest.” State v. Brown, 299 Kan. ––––, ––––, 331 P.3d 797, 807 (August 15, 2014) (quoting State v. Wells, 297 Kan. 741, 754, 755, 305 P.3d 568 [2013] ).
A review of the record fails to reveal any facts that should have triggered the district court's duty to inquire as to a possible conflict of interest between Guzman and his attorney. First, none of the multiple pro se motions Guzman filed before his sentencing alleged or even hinted that Guzman and his attorney had a conflict of interest, an irreconcilable disagreement, or a complete breakdown in communication. Second, Guzman failed to raise the issue when given two opportunities in open court. At Guzman's plea hearing, held subsequent to the filing of his pro se motions for a speedy trial and suppression of some unnamed evidence, he was asked specifically by the district court if he was satisfied with his attorney's representation; Guzman indicated he was. Then, after he filed his pro se motion to withdraw his plea, the district court held a sentencing hearing at which time it inquired if there was any reason it should not proceed to sentencing; the question was met with silence by Guzman.
It was not until after sentencing and after Guzman's attorney had already filed a timely notice of appeal that Guzman filed his own pro se “motion of appeal,” claiming he wished to appeal because there was a conflict of interest. However, we think both the form and the substance of the pleading failed to put the district court on notice of the need to inquire further. We note Guzman admits the district court was essentially finished with the case when he filed his pro se notice of appeal. Though it was labeled as a motion, Guzman's document functioned as a notice of appeal in part because there was no request for the district court to take any action. A notice of appeal states a party's intention to appeal a district court's ruling. It is not a motion requesting the court make a ruling or order. See Black's Law Dictionary 1168, 1229 (10th ed.2014) (definitions of “motion” and “notice of appeal”). A notice of appeal does not obligate the district court to undertake any additional consideration of claims or a review of arguments.
Substantively, the only factual bases for Guzman's claim of a conflict of interest were his repeated pro se motions. However, something more than the mere filing of pro se motions—motions that completely failed to mention Guzman's dissatisfaction with his attorney or to articulate any facts—was required to trigger the district court's duty to inquire into a possible conflict of interest, particularly when coupled with repeated failures by Guzman to raise in open court such dissatisfaction when given the opportunity. See Brown, 299 Kan. ––––, Syl ¶ 4. In light of this record, we conclude the district court did not abuse its discretion because there is insufficient evidence to establish that the district court had a duty to inquire as to a possible conflict of interest between Guzman and his counsel.
Affirmed.