Opinion
Nos. 107,685 108,049.
2013-05-24
STATE of Kansas, Appellee, v. Vernon R. SMITH, Appellant.
Appeal from Sedgwick District Court; Clark V. Owens II, Judge. Samuel D. Schirer and J. Patrick Lawless, Jr., of Kansas Appellate Defender Office, for appellant. Boyd K. Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Clark V. Owens II, Judge.
Samuel D. Schirer and J. Patrick Lawless, Jr., of Kansas Appellate Defender Office, for appellant. Boyd K. Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before ATCHESON, P.J., GREEN and McANANY, JJ.
MEMORANDUM OPINION
PER CURIAM.
Vernon R. Smith appeals the district court's decision denying his motion to withdraw his guilty pleas prior to sentencing. Smith claims that he was denied his Sixth Amendment right to assistance of counsel during his plea withdrawal hearing, a critical stage in the proceedings. Smith also asserts that the district court abused its discretion by applying an incorrect legal standard when it denied his motion.
Smith suffers from schizoaffective disorder and borderline intellectual functioning. Smith claims he also suffers from a narcolepsy condition that causes him to fall asleep.
In November 2009, Smith was charged with unlawful possession of a firearm. The district court ordered an examination to determine Smith's competency to stand trial.
In December 2009, Smith was charged with battery of a law enforcement officer in a separate case. Later that month, the district court reviewed the report on Smith's mental competency and determined that Smith was incompetent to stand trial. Smith was sent to Larned State Security Hospital for treatment. That same month Smith was also charged with aggravated battery of a law enforcement officer in another case.
In August 2010, the court determined that Smith was competent to stand trial, and Smith was returned from Larned.
In September 2010, Smith's appointed attorney, James Crawford, II, moved for another competency evaluation. The court granted the motion. At the hearing, Smith advised the court that he and his lawyer were “having problems” and Smith wanted to hire private counsel. The court agreed to continue the case to allow Smith the opportunity to hire counsel of his choice.
In October 2010, Smith had a second mental evaluation. He was found to have auditory hallucinations, halting speech, poor hygiene, and a lethargic demeanor. His intellectual functioning was reported to be in the “borderline range,” and he had problems with his short-term memory. However, the evaluator opined that Smith was competent to stand trial because he understood the charges against him and was able to assist in his defense. Later that month, the court again found Smith to be competent to stand trial. Smith filed a pro se motion to dismiss Crawford as his counsel. The district court denied the motion, and Crawford continued representing Smith. Smith eventually hired attorney Mark Rudy to represent him. He and Rudy engaged in plea negotiations with the State.
In April 2011, having completed those plea negotiations, Smith appeared with Rudy to enter guilty pleas in all three criminal cases, with the aggravated battery charge in his third case reduced to simple battery. But before sentencing, Smith was charged in a fourth case with aggravated robbery, and he entered a plea in that case as well. Bradley Sylvester represented Smith in the aggravated robbery case.
Smith then moved pro se for leave to withdraw his plea in the aggravated robbery case. At the hearing on Smith's motion, the court inquired about Smith's mental competency. Sylvester advised that Smith had not shown any major issues with his mental stability and Sylvester thought Smith was “very competent in dealing with me,” but Sylvester noted that Smith said he had not been taking his medications and did not believe he was competent to proceed. Rudy added that he had not seen evidence of any mental health concerns recently and, contrary to the interests of his client, opined, “I suspect what we have here is a case of buyer's remorse more than anything else.” Smith responded that he has been on three different medications, and those medications make him ill. He said he has been diagnosed with narcolepsy, is disabled with paranoid schizophrenia, and has a hard time understanding what's going on. Smith stated, “I got like a third or fourth grade understandable.” Sylvester and Rudy reiterated that they believed Smith was competent. The court sua sponte ordered another competency evaluation.
In December 2011, shortly after the court ordered another competency evaluation, and before Smith's sentencing hearing, Smith moved pro se for leave to withdraw his guilty pleas in his firearm and battery cases. He claimed that Rudy, his counsel at the time of these pleas, took advantage of him due to his mental illness and that his counsel did not inform the court of his mental illness. He claimed that the medication and his medical condition allow him to be easily persuaded by others and that he should not be held to his guilty pleas. Later that month, after reviewing Smith's third mental evaluation report, the court found Smith competent to stand trial. Sylvester advised the court that it needed to decide whether Smith “needs to have new counsel appointed.”
In January 2012, a hearing was held on Smith's pro se motion to withdraw his pleas in his first three cases. Smith appeared with his counsel, Rudy. The district court asked Rudy: “Are you intending to proceed with the motion or leave it to him, since this is a pro se motion? Are you intending to make arguments?” Of course, Smith's contention supporting the motion was that Rudy had taken advantage of him in causing Smith to enter his pleas. Rudy responded: “[Smith] would need to prosecute the motion himself.”
Smith did not waive his right to counsel during the hearing, and the district court made no effort to secure such a waiver.
Smith argued that he thought he was facing 53 months in prison, but his possible sentence increased to 84 months at the last minute. Smith said that he planned on getting another attorney “because these are serious cases.” The State explained that the change in Smith's anticipated sentence was because of the aggravated robbery Smith pled guilty to in his fourth case. Repeating the theme first expressed by Smith's own counsel, the State claimed that Smith simply had a case of buyer's remorse.
Smith then brought up the issue of his competency and stated that he had narcolepsy. The following exchange occurred:
“THE COURT: Well, if you had fallen asleep during the plea hearing, I think I would have known about that.
“THE DEFENDANT: I did it a couple of times since I've been in court.
“THE COURT: During the plea hearing you fell asleep? When you were entering your plea to these three cases you fell asleep during that plea hearing, so you didn't really keep track of what was going on?
“THE DEFENDANT: Yes, I did.
“THE COURT: Well, I know that didn't happen. I mean, I guarantee you a hundred percent you did not fall asleep during the plea hearing because I would have rejected it. I would not have accepted it.
“THE DEFENDANT: You can ask my lawyer, sir.
“MR. RUDY: Judge, he did not fall asleep during the plea agreement.”
The district court denied Smith's motion. Smith then asked if it would make any difference if he hired a different attorney. The district court responded: “Well, he can represent you at the sentencing hearing. And he can represent you on any appeal in the case if you want to hire anybody you want.” Smith responded: “Appreciate it.” The hearing was then adjourned.
After the court imposed a controlling sentence of 84 months in prison, Smith appealed.
Smith claims that he was denied his constitutional right to counsel at a critical stage of the case: the argument on his motion to withdraw his pleas. Generally, the extent of the right to counsel is a question of law over which we exercise unlimited review. See Robertson v. State, 288 Kan. 217, 227, 201 P.3d 691 (2007).
A defendant has a constitutional right to counsel at critical stages of the proceedings. State v. Andrews, 228 Kan. 368, 377, 614 P.2d 447 (1980); State v. Hamon, 46 Kan.App.2d 356, 367, 262 P.3d 1061 (2011), rev. denied 294 Kan. –––– (May 21, 2012); see Coleman v. Alabama, 399 U.S. 1, 7, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970). Critical stages are those that amount to trial-like confrontations during which counsel would help the accused in meeting his or her adversary. Rothgery v. Gillespie County, 554 U.S. 191, 212, 128 S.Ct. 2578, 171 L.Ed.2d 366 (2008). The right to counsel attaches in all critical stages of a felony proceeding unless the right is knowingly and competently waived. Lafler v. Cooper, 566 U.S. ––––, 132 S.Ct. 1376, 1385, 182 L.Ed.2d 398 (2012).
Our Supreme Court has held that a presentencing motion to withdraw a guilty plea is a critical stage where conflict-free counsel is required. State v. Taylor, 266 Kan. 967, 975, 975 P.2d 1196 (1999). When the State is represented at a plea withdrawal hearing, the defendant has a constitutional right to be represented by conflict-free counsel unless the defendant waives the right to counsel. State v. Hulett, 293 Kan. 312, 319, 263 P.3d 153(2011).
The State relies on Hulett for support. In Hulett, the defendant moved pro se for the appointment of substitute counsel. Following the hearing, at which both the defendant and his counsel addressed the court, the district court denied relief, finding that the defendant's complaints were the product of “ ‘unreasonable expectations of appointed counsel.’ “ 293 Kan. at 314. The case proceeded to trial. On the second day of trial, the parties entered into a plea agreement in which the defendant agreed to plead guilty to reduced charges. At the plea hearing, the defendant told the court that his only objections to his counsel's performance related to the matters he raised in his earlier motion, which the court had since ruled on. Then, before sentencing, defense counsel filed a motion seeking to allow the defendant to withdraw his plea. The basis for the motion, as expressed to defense counsel, was that the defendant's plea was a mistake. Defense counsel suggested that the court hear directly from the defendant regarding the basis for the motion. The Supreme Court found this appropriate, because “[t]here are times when only the client can articulate the reasons to the client's satisfaction, especially when the client's original complaint is nothing more than some variety of the vague ‘I made a mistake.’ “ 293 Kan. at 322. The district court refused to permit the defendant to withdraw his plea, and the Supreme Court affirmed, finding that the defendant was not denied conflict-free counsel at the hearing on the motion to permit the defendant to withdraw his plea. 293 Kan. at 321–22.
Hulett does not control. First, Hulett complained that he was denied the right to conflict-free counsel at the hearing. On the other hand, Smith complains that he was denied counsel altogether at the hearing and he was required to proceed pro se without having waived his right to counsel. Rudy informed the district court that Smith would be proceeding on his motion to withdraw his pleas as a pro se litigant and stated his only role would be to “set them in front of” the district court. When the court called the motion up for hearing, Rudy advised the court, “[Smith] would need to prosecute the motion himself.”
Second, in Hulett, the motion did not express supporting grounds other than the defendant's complaint that he thought the plea was a mistake. But Smith's motion directly addressed his counsel's conduct. He alleged that at the time of Smith's pleas Rudy knew Smith suffered from mental illness, knew he was easily swayed, and took advantage of Smith's condition by talking him into pleading guilty, without bringing the defendant's current mental condition to the court's attention.
Third, the district court in Hulett previously addressed the defendant's criticisms of counsel at the hearing on the defendant's motion to appoint substitute counsel. Here, the district court has never addressed the complaints about the performance of Smith's counsel raised in his motion.
The State also relies on State v. Williams, 290 Kan. 1050, 236 P.3d 512 (2010), for support. Following her plea, but before sentencing, defense counsel moved to permit Williams to withdraw her plea. The sole basis expressed in the motion was Williams' statement that “I don't believe that taking the plea is the best for me.” At the hearing, defense counsel introduced a letter to counsel from Williams in which she said that the plea “ ‘was not done with my best interest in mind, rather as a quick resolution for you.’ “ 290 Kan. at 1051. With that preface, Williams was called upon to address the court. Rather than addressing the issue just introduced in the letter, Williams argued that her actions did not justify the charge against her and she had concerns about her right to appeal. The district court addressed only those issues and overruled Williams' motion. On appeal, Williams argued that the protocol for considering such a motion requires the district court to determine whether the defendant was represented by competent counsel, and the district court failed to address the issue. The Supreme Court affirmed, stating that the Edgar factors relating to the competency of counsel did not control when the defendant's actual complaints were directed at the nature of the charge vis-a-vis her conduct, not her lawyer's conduct. Williams, 290 Kan. at 1054–56.
Williams does not control. Unlike the motion in Williams, Smith's motion directly addressed the performance of his counsel. Williams claimed she was not represented by competent counsel. Smith claims he was not represented by counsel at all, and he did not waive his right to counsel at this critical stage in the proceedings.
Finally, we cannot ignore the contributing factor of Smith's long history of serious mental illness and intellectual impairment, factors not present in Williams and in Hulett. In the landmark case Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), the Supreme Court unanimously established the fundamental constitutional right of a criminal defendant to be represented in state court by counsel; and if the defendant is indigent, it is the obligation of the State to provide counsel. In the Court's opinion authored by Justice Black, the Court struck down its previous decision in Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595 (1942), and adopted Justice Black's vigorous dissent in that case. In Gideon, as noted in Justice Harlan's concurring opinion, the court rejected the notion in Betts of requiring the appointment of counsel only when special circumstances are shown. Betts gave examples of such special circumstances, such as “where the defendant in unable to employ counsel, and is incapable adequately of making his own defense because of ignorance, feeblemindedness, illiteracy, or the like.” 316 U.S. at 463. Thus, even under Betts, a criminal defendant who suffers from ongoing mental illness and is intellectually impaired, such as Smith, would have been entitled to counsel. And as later cases explain, this right would have extended to a hearing on a motion to withdraw guilty pleas that exposed the defendant to 7 years in the penitentiary.
Smith never explicitly waived his right to counsel, and the district court did not attempt to elicit such a waiver from him. A defendant who clearly and unequivocally expresses a wish to proceed pro se has the right to represent himself or herself after a knowing and intelligent waiver of his or her right to counsel. A knowing and intelligent waiver requires that the defendant be informed of the “dangers and disadvantages of self-representation, so that the record will establish that ‘he knows what he is doing and his choice is made with eyes open.’ “ Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1974); see State v. Vann, 280 Kan. 782, Syl. ¶ 3, 127 P.3d 307 (2006).
In Vann, our Supreme Court held that a district court abuses its discretion when it fails to inquire further after becoming aware of a potential conflict of interest. 280 Kan. at 789. A district court abuses its discretion by failing to make such an inquiry, as “ ‘[i]t is the task of the district judge to insure that a defendant's Sixth Amendment right to counsel is honored. [Citations omitted.]’ “ 280 Kan. at 789. In our present case, Rudy informed the court that he would not advocate for his client. Smith's written motion made it clear that Rudy could not argue the merits at the hearing. The court could not expect Rudy to effectively argue that Smith's motion should be granted because Rudy took advantage of his client's mental condition and inducing him to enter a guilty plea.
In Taylor, the defendant filed a motion to withdraw his pleas prior to sentencing. At the sentencing hearing, defense counsel asked for a continuance so that Taylor could secure the services of new counsel. Without inquiring into the reason for Taylor's request for new counsel, the district court refused to grant the continuance and denied Taylor's motion to withdraw his plea. Taylor then expressed his dissatisfaction with counsel. Defense counsel did not respond to Taylor's grievances. Our Supreme Court held that the district court failed in its duty to inquire into the conflict of interest before denying Taylor's motion to withdraw his plea. 266 Kan. at 979.
Unlike the situations in Hulett and Williams, Smith was completely denied the assistance of counsel during his motion to withdraw his plea, a critical stage of the proceedings. At the end of the December 2010 competency hearing, Sylvester suggested that new counsel should be appointed. Rudy informed the court that he would not be advocating on Smith's behalf at the hearing on the motion to withdraw the plea. During the plea withdrawal hearing, when Smith turned to Rudy for factual support, rather than standing silent on the matter Rudy interjected facts adverse to the argument Smith was making. At the conclusion of the hearing, Smith asked the court if it would make a difference if he hired a new attorney. Smith clearly did not want to represent himself on the motion to withdraw his plea. Smith was denied his right to assistance of counsel during a critical portion of his criminal case.
The district court erred in proceeding with Smith's motion for leave to withdraw his plea without first obtaining from Smith an intelligent and voluntary waiver of his right to counsel or appointing counsel for him. Accordingly, we must reverse the district court's ruling on the motion and remand for further proceedings on the motion.
Finally, Smith claims the district court erred by applying an incorrect legal standard in denying his motion for leave to withdraw his pleas. The district court did not evaluate the motion based on whether Smith showed “good cause” to withdraw his pleas. The standard of “good cause shown” is set forth in K.S.A.2012 Supp. 22–3210(d)(l). Smith also claims that the district court failed to consider the Edgar factors. See State v. Edgar, 281 Kan. 30, 127 P.3d 986 (2006). 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). 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). See State v. Aguilar, 290 Kan. 506, 511–12, 231 P.3d 563 (2010).
Because we find it necessary to remand this case for a rehearing of Smith's motion, Smith's argument regarding the correct legal standard is now moot and we need not consider it further.
Reversed and remanded.