Opinion
No. 108,088.
2013-08-16
STATE of Kansas, Appellee, v. Bryan Dean HARBERT, Appellant.
Appeal from Harper District Court; Larry T. Solomon, Judge. Reid T. Nelson, Capital and Conflicts Appellate Defender, of Capital and Conflicts Appeals Office, for appellant. Janis I. Knox, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Harper District Court; Larry T. Solomon, Judge.
Reid T. Nelson, Capital and Conflicts Appellate Defender, of Capital and Conflicts Appeals Office, for appellant. Janis I. Knox, county attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., ATCHESON, J., and LARSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Defendant Bryan D. Harbert appeals the denial of his postsentencing motion to withdraw his plea of guilty to one count of aggravated sodomy in the Harper County District Court. The district court set the motion for a hearing at which the county attorney appeared and argued against setting aside the plea. Harbert, who was in prison, did not appear personally or by counsel. The district court noted that Harbert had not asked for appointed counsel. The district court committed reversible error in allowing the State to argue the motion when Harbert was absent and unrepresented. We, therefore, reverse and remand with directions that the district court appoint counsel for Harbert and hold another hearing on the motion to set aside the plea.
In State v. Hulett, 293 Kan. 312, 319, 263 P.3d 153 (2011), the Kansas Supreme Court held that when the State is represented at a hearing on a defendant's motion to withdraw a plea, the defendant has “a constitutional right to conflict-free counsel at the hearing .” Underpinning that holding, as the Hulett court pointed out, is a defendant's right to counsel in that circumstance unless that right has been waived. 293 Kan. at 319. Nothing in the record indicates Harbert knowingly and voluntarily waived his right to counsel. A criminal defendant's failure to affirmatively ask for counsel is not the legal equivalent of a waiver of counsel.
Reversed and remanded with directions that the district court appoint counsel for Harbert and rehear his motion to withdraw the plea.