Opinion
No. 106,508.
2012-10-5
STATE of Kansas, Appellee, v. Nathaniel KENNEY, Appellant.
Appeal from Wyandotte District Court; John J. McNally, Judge. Matthew J. Edge, of Kansas Appellate Defender Office, for appellant. Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Wyandotte District Court; John J. McNally, Judge.
Matthew J. Edge, of Kansas Appellate Defender Office, for appellant. Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MARQUARDT, P.J., McANANY and BUSER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Nathaniel Kenney filed a motion to withdraw his no contest pleas before he was sentenced. Kenney asserts that the district court erred by refusing to appoint substitute counsel for him before considering and denying his motion. We affirm.
Facts
On April 1, 2010, the State charged Kenney with 13 felonies. The district court appointed Jeffrey Leiker to represent Kenney. On August 27, 2010, Leiker filed a motion to withdraw as Kenney's attorney. The motion stated that 4 days earlier, Kenney had demanded Leiker withdraw and cease all activity on his case, Leiker's motion stated that Kenney had previously written to Leiker claiming that Leiker was violating Kenney's constitutional rights by refusing to follow his wishes in defending his case. Leiker stated that he personally discussed these concerns with Kenney, after which Kenney withdrew his complaints. The district court held a hearing and denied Leiker's motion to withdraw.
On the morning of the first day of Kenney's trial, Leiker orally renewed his motion to withdraw as Kenney's attorney. Kenney told the district court that he objected to Leiker's continued representation because Leiker had been “hostile and belligerent” to him a few days earlier. The district court denied Leiker's renewed motion to withdraw. Later that day, Kenney and the State reached a plea agreement in which Kenney agreed to plead no contest to one count of aggravated kidnapping and one count of aggravated robbery, and the State agreed to dismiss the remaining 11 felony counts.
The terms of the plea agreement were included in a petition to enter a plea of nolo contendere (document) that Kenney signed. That document advised Kenney of the nature of the charges to which he was pleading and the maximum possible penalty of 714 months' imprisonment. In the document and at sentencing, Kenney's counsel and the State agreed to jointly recommend that the district court grant Kenney a downward durational departure of 160 months' imprisonment. The document stated that Kenney did not waive his right to appeal the district court's rulings on several motions that Kenney had previously filed.
The document advised Kenney of the following constitutional rights he was waiving by entering a no contest plea:
“A. The right to a speedy and public trial by jury.
“B. At that trial, and at all stages of the proceedings, the right to the assistance of a lawyer.
“C. The right to see and hear all witnesses called to testify against me, and the right to cross-examine those witnesses.
“D. The right to use the power and process of the court to compel the production of any evidence, including the attendance of any witnesses in my favor.
“E. The right not to be compelled to incriminate myself by taking the witness stand, and if I do not take the witness stand, no inference of guilt may be drawn from such failure.
“F. If I am convicted, I have the right to appeal to the Supreme Court of Kansas, and that if I do not have the funds, the court will appoint an attorney for me and pay the costs of such appeal.”
The document also stated: “I believe that my lawyer has done all that anyone could do to counsel and assist me, AND I AM SATISFIED WITH THE ADVICE AND HELP HE/SHE HAS GIVEN ME.” Kenney testified that he entered the no contest pleas freely and voluntarily. The document stated that Kenney's pleas were made “with full understanding of all the matters set forth in the Information and in this petition.”
Before accepting Kenney's no contest pleas, the district court conducted a plea colloquy. In response to the district court's inquiries, Kenney advised the court that he was aware that he had the right to a jury trial and to have the State prove the charges beyond a reasonable doubt, that he had the right to call witnesses at trial and that he could testify on his own behalf but that he was not required to do so, that if he were convicted, then he would have the right to appeal his conviction to the Kansas Supreme Court, and that he would receive court-appointed counsel if he could not afford an attorney.
Kenney advised the district court that he understood that if he pled no contest there would be no trial, and if the court accepted the State's factual proffer, then Kenney's no contest plea would result in a finding of guilt just the same as a guilty plea. During this portion of the plea colloquy, Kenney's attorney interrupted and informed the court that one of the terms of the plea agreement involved Kenney retaining the ability to appeal the district court's adverse rulings on several motions that Kenney had previously filed.
The district court asked Kenney whether anyone had made any threats or promises to force him into entering his no contest pleas. Kenney advised that no one had made any threats or assurances. Kenney also informed the district court that he had been provided with adequate opportunity to review the written agreement and to discuss the terms and conditions of that agreement with his attorney. After the district court asked Kenney whether he had any questions about the terms of his plea agreement, the court granted Kenney additional time to discuss the plea agreement with his attorney. The district court then accepted Kenney's no contest pleas and found him guilty of aggravated kidnapping and aggravated robbery.
Prior to sentencing, Kenney filed a motion to withdraw his no contest pleas. In his motion, Kenney alleged: (1) that his pleas were not voluntarily, knowingly, and intelligently made because he was not advised of his privilege against self-incrimination and the right to confront his accusers; (2) that he was induced to enter the plea agreement because he was denied a fair trial when the State failed to disclose exculpatory evidence; (3) that he was not adequately advised about the nature of the charges or the possible lesser included offenses; (4) that he was not informed that a no contest plea would have the same consequences as a guilty plea; (5) that he was not advised that he would be waiving his appeal rights by pleading no contest; and (6) that he believed that a no contest plea would allow him to maintain his innocence and to appeal his convictions.
At sentencing, the district court considered Kenney's motion to withdraw his plea and found that Kenney had been aware of his constitutional trial and appeal rights at the time that he entered his pleas. The motion was denied. Kenney timely filed his notice of appeal.
Motion to Withdraw a Plea
A district judge's denial of a defendant's presentence motion to withdraw a plea is reviewed under an abuse of discretion standard. State v. Hulett, 293 Kan. 312, 318, 263 P.3d 153 (2011). An abuse of discretion occurs when the action is arbitrary, fanciful, or unreasonable. This means when no reasonable person would have taken the action of the trial court. State v. Sellers, 292 Kan. 117, 124, 253 P.3d 20 (2011). A defendant bears the burden of demonstrating that a district court abused its discretion. State v.. Schow, 287 Kan. 529, 541, 197 P.3d 825 (2008).
Kenney argues that the district court deprived him of his Sixth Amendment right to the assistance of counsel by failing to appoint conflict-free substitute counsel who could effectively argue his motion to withdraw his pleas. Specifically, Kenney argues that his attorney was conflicted because his attorney failed to advise Kenney that a no contest plea would waive the appeal rights that Kenney sought to preserve. Therefore, Kenney's attorney was unable to zealously argue for his motion to withdraw his pleas because his attorney would be required to concede that he gave Kenney erroneous legal advice. As a preliminary matter, Kenney argues that the question presented is a question of law and that the panel's scope of review is de novo. However, as noted previously, a district court's refusal to appoint substitute counsel and denial of a presentence motion to withdraw a plea are reviewed for an abuse of discretion.
K.S.A.2009 Supp. 22–3210(d)(1) provides: “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.” In Hulett, our Supreme Court acknowledged that a defendant's constitutional right to counsel creates a corresponding right to be represented by counsel who is free from conflicts of interest. This right applies at a hearing in which the State is represented by counsel, including a hearing on a defendant's motion to withdraw a plea. Hulett, 293 Kan. at 319. When a district court becomes aware of a possible conflict between a defendant and defense counsel, the court has a duty to engage in further inquiry. State v. Taylor, 266 Kan. 967, 979, 975 P.2d 1196 (1999).
Kenney cites State v. Carter, 270 Kan. 426, 14 P.3d 1138 (2000), for the proposition that the district court's failure to appoint substitute counsel to argue Kenney's motion to withdraw his pleas deprived him of a meaningful opportunity to demonstrate why good cause existed to justify the withdrawal of Kenney's no contest pleas. However, a panel of this court recently considered and rejected this argument. See State v. Smith–Allegree, No. 104,846, 2012 WL 1919887, at *4 (Kan.App.2012) (unpublished opinion) (noting that Carter does not address whether a defendant is deprived of the Sixth Amendment right to conflict-free counsel when a district court fails to appoint substitute counsel to argue a defendant's motion to withdraw a plea).
Kenney's argument that his counsel was conflicted, which therefore entitled him to substitute counsel to argue his motion to withdraw his pleas, is unpersuasive because Kenney never alleges his counsel's deficient representation was the basis for his motion to withdraw his pleas. In his motion, Kenney asserts six different grounds for allowing him to withdraw his no contest pleas, but he never alleges that his attorney's representation was deficient or that he was induced to accept the plea agreement based upon the threats, promises, or inadequate advice of his attorney. Instead, Kenney generally alleges that he should be permitted to withdraw his no contest pleas because he was not fully advised of his constitutional rights, was not advised of the nature of the charges against him, was not told of the existence of exculpatory evidence, and mistakenly believed that his no contest pleas would allow him to maintain his innocence and appeal any adverse rulings made by the district court.
In Hulett, our Supreme Court rejected Hulett's argument that the district court abused its discretion by failing to appoint conflict-free counsel to argue his motion to withdraw his plea because “Hulett's concerns related to the nature of the plea he had entered, not defense counsel's performance.” Hulett, 293 Kan. at 321. The court concluded that the district court's actions in not appointing substitute counsel and in denying Hulett's motion to withdraw his plea were appropriate even though Hulett had complained about his attorney's representation at prior hearings. The court noted that Hulett's concerns over his attorney's representation were resolved at those prior hearings and those concerns were not present at the hearing on Hulett's motion to withdraw his plea. Hulett, 293 Kan. at 321–22. Similarly, Kenney had sought to secure the withdrawal of his attorney at prior hearings, but the district court had denied the motions to withdraw filed by Kenney's attorney.
In his motion and at the hearing on that motion, Kenney claims he was not advised of his constitutional rights and he did not understand the consequences of his pleas. Although it is possible to infer that Kenney could be complaining that his attorney failed to properly advise him of the matters he lists in his motion, Kenney never specifically argues that his attorney's deficient performance was the source of his ignorance or confusion. Thus, Kenney's concern about his counsel's performance was not before the district court at the hearing on his motion, and the district court was not required to engage in further inquiry or appoint substitute counsel before considering Kenney's motion to withdraw his pleas.
Furthermore, the district court did not abuse its discretion in denying Kenney's motion, because Kenney failed to demonstrate good cause to justify the withdrawal of his pleas. At a hearing to consider a motion to withdraw a plea before sentencing, the district court must determine whether: (1) the defendant was represented by competent counsel at the plea hearing; (2) the defendant was misled, coerced, mistreated, or unfairly taken advantage of; and (3) the plea was fairly and understandingly made. State v. Edgar, 281 Kan. 30, 36, 127 P.3d 986 (2006).
Kenney fails to demonstrate that his counsel was not competent; that he was misled, coerced, mistreated, or unfairly taken advantage of; or that his pleas were not fairly and understandingly made.
Kenney was advised of his Fifth Amendment rights against self-incrimination, of his right to confront his accusers, and of the maximum possible penalties of the crimes to which he was pleading. Kenney also advised the district court that no one made any assurances or threats to induce his plea, and Kenney signed the plea agreement petition, which stated that he entered his plea agreement “with full understanding of all the matters set forth” in the petition. Finally, Kenney was advised that his no contest pleas would have the same effect as a guilty plea and that he was giving up his right to appeal the charges.
Even though Kenney believed that the terms of the plea agreement secured his ability to appeal the district court's ruling on several motions that Kenney had previously filed, this mistaken belief did not entitle Kenney to withdraw his no contest pleas. See State v. Williams, 290 Kan. 1050, 1055, 236 P.3d 512 (2010).
Therefore, the district court did not abuse its discretion by not appointing substitute counsel to argue Kenney's motion to withdraw his no contest pleas or by denying that motion.
Affirmed.