Opinion
No. 107,099.
2013-03-15
STATE of Kansas, Appellee, v. James J. SPOONER, Appellant.
Appeal from Sedgwick District Court; Terry L. Pullman, Judge. Ryan Eddinger, of Kansas Appellate Defender Office, for appellant. Matt J. Maloney, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Terry L. Pullman, Judge.
Ryan Eddinger, of Kansas Appellate Defender Office, for appellant. Matt J. Maloney, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before ATCHESON, P.J., PIERRON, J., and LARSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
This is James J. Spooner's appeal from the denial of his presentencing motion for appointment of new counsel.
Spooner asserts that his Sixth Amendment to the United States Constitution right to conflict-free counsel was violated when the district court failed to appoint new counsel to represent him in order to present claims that his trial counsel was ineffective.
We hold the court correctly denied Spooner's request for new counsel, fully considered all of his contentions, and lawfully concluded Spooner's sentencing.
The record presented to us reveals that in June 2011 Spooner was charged in Sedgwick County District Court with two counts of aggravated battery, severity level 7 person felonies, and one count of domestic battery, a class B misdemeanor. The complaint identified the victim of the crimes as Ora J. Moore and asserted the crimes occurred on three different dates in May 2011.
Shortly before the scheduled trial date, Spooner filed a pro se motion for new counsel. Spooner asserted that his trial attorney, Mark Rudy, had refused to subpoena records that would be helpful to his defense, was attempting to convince him to take a plea deal that Spooner did not want, and did not spend sufficient time with him to prepare his case. After a brief hearing, Judge Journey denied Spooner's motion.
Spooner thereafter waived his right to a jury trial and agreed to proceed with a bench trial. Judge Pullman conducted the trial on September 20, 2011; the sole witnesses were the alleged victim Moore, her mother, and a Wichita police officer.
During the trial, Moore testified that she dated and Spooner briefly lived with her in April and May 2011; Moore said that during this time, Spooner was violent and controlling. Moore testified that on May 17, 2011, Spooner was angry when she refused to accompany him on his delivery route. According to Moore, Spooner grabbed her around the throat, lifted her off the ground, and pushed her against the wall. Moore could not breathe and briefly lost consciousness. Moore testified that Spooner also kicked her in the face, leaving an imprint of the tread mark of his shoes on her face. After the assault, Moore agreed to accompany Spooner on his route; after returning home from this trip, Spooner slapped Moore in the face a couple of times. Moore told her mother about the incident but did not call police.
Moore further testified that on Sunday, May 22, 2011, Spooner again asked Moore to accompany him on his work route; the couple argued when Moore refused because she wanted to spend the day with her mother. Spooner left to stock up his delivery truck. While he was gone, Moore started packing up Spooner's belongings. As Moore opened her patio door to place Spooner's property outside, Spooner arrived and forced his way into the premises. According to Moore, Spooner grabbed her around her throat, dragged her into the bedroom, and started hitting her face with closed fists. After the attack stopped, Moore went to the bathroom. As she spit blood out of her mouth, she noticed parts of two teeth came out with the blood. Seeing the blood, Spooner apologized and Moore told him to leave. Spooner left for his route, and Moore called her mother and her ex-boyfriend, Garrett. They insisted on taking Moore to the emergency room. Police were called when Moore was at the ER. Photographs of Moore's injuries taken May 22 were admitted into evidence, which are not a part of the appellate record, the photos showed injuries to Moore's leg, injuries to her nose, two black eyes, swollen cheeks, and redness around her throat.
Spooner did not testify or present additional evidence on his own behalf. The court granted Spooner's motion for acquittal of the domestic battery charge based on the State's failure to present evidence of Spooner's age. During closing arguments, Spooner's counsel questioned Moore's credibility based on inconsistencies in her testimony and her failure to promptly call police after the incidents. Although noting some inconsistency in the witnesses' testimony, the court convicted Spooner of the two aggravated battery charges and scheduled a sentencing hearing.
Prior to sentencing, Spooner filed a pro se motion for new counsel prior to sentencing. Spooner asked for new counsel to represent him in proving that his trial counsel was ineffective for failing to present certain evidence. This motion was filed more than 30 days after Spooner's bench trial and was therefore untimely as a motion for a new trial. It was treated as a K.S.A. 60–1507 motion.
At the sentencing hearing conducted by Judge Pullman, the court first considered Spooner's motion for new counsel. Mark Rudy appeared as Spooner's counsel for purposes of sentencing. The court asked Spooner about the specifics of his claims. Spooner stated that Moore committed perjury when she testified that the protective order she had previously obtained against her ex-boyfriend, Garrett, had been dissolved prior to him taking her to the hospital; Spooner asserted at the hearing, however, that the PFA order was still in effect on May 22, 2011, as well as the date of the trial. Spooner conceded the evidence of the PFA order “did not have anything to do directly” with his case, but he asserted his attorney knew of Moore's lie and should have presented the PFA order as evidence. Spooner also complained that his attorney failed to present the chart from the emergency room and emphasized the lack of dental records. Thus, Spooner asserted there were no medical records to confirm Moore's testimony that he “knocked a tooth out.”
The court addressed both of Spooner's complaints at the hearing. The court stated that the evidence regarding the outstanding PFA order against Garrett, even if it had been admitted at trial, would only be collateral impeachment of the victim and did not logically prove or disprove any of Moore's claims. The court further noted that Moore testified that portions of her two teeth were broken, not that any were completely knocked out; the court also concluded that the notes about the MRI and facial x-rays would not have shown whether Moore's teeth were chipped. The court found the evidence Spooner claimed should have been presented would not have changed his evaluation of the evidence and denied Spooner's motion.
Rudy presented a motion for dispositional and durational departure on behalf of Spooner which was denied by Judge Pullman. Spooner was sentenced to consecutive prison terms of 29 and 12 months. Spooner has timely appealed from all adverse rulings.
Spooner's sole issue on appeal is his contention that the district court was obligated to appoint him new counsel to present his motion for appointment of new counsel based on his claims of ineffective assistance of counsel during trial.
Spooner relies almost exclusively on State v. Taylor, 266 Kan. 967, 975 P.2d 1196 (1999), a case involving the presenting of a motion to withdraw a plea based on ineffective assistance of counsel which is completely different factually from our facts. The State relies on cases setting forth the rulings that a district court need not appoint new or substitute counsel every time a defendant makes such a request and, further, that no showing has been made here that justifiable dissatisfaction with appointed counsel has been shown.
The initial premise of Spooner's argument is that the hearing on his postconviction motion for new counsel violated his Sixth Amendment rights. However, a defendant only has a constitutional right to counsel at critical stages of the proceedings. State v. Hamon, 46 Kan.App.2d 356, 367, 262 P.3d 1061 (2011), (citing Coleman v. Alabama, 399 U.S. 1, 7, 90 S.Ct. 1999, 26 L.Ed.2d 387 [1970] ),rev. denied 294 Kan. –––– (May 21, 2012). In Taylor, there was no question that a presentencing motion to withdraw a guilty plea was a critical stage where conflict-free counsel was required. 266 Kan. at 975.
Spooner's motion cannot be interpreted as one for a new trial based on ineffective assistance of counsel, which is a critical stage of proceedings for Sixth Amendment purposes. See Robinson v.. Norris, 60 F.3d 457, 459–60 (8th Cir.1995); Johnston v. Mizell, 912 F.2d 172, 176 (7th Cir.1990). The motion Spooner filed was clearly untimely for a new trial motion, nor did it explicitly ask for such relief. It was beyond the 10–day required period or within such further time as the court may fix within such 10–day period. K.S.A. 22–3501. Additionally, the time limits are not discretionary, and the trial court lacks jurisdiction to consider a motion filed too late. State v. Lee, 45 Kan.App.2d 1001, 1021–22, 257 P.3d 799 (2011), rev. denied 293 Kan. –––– (January 20, 2012).
Thus, the question becomes what is the appropriate standard to apply under the facts of this case. The most analogous case is State v. Kirby, 272 Kan. 1170, 39 P.3d 1 (2002). In that case, the defendant was convicted of unintentional second-degree murder. Kirby's attorney filed a timely motion for new trial raising various trial errors; thereafter, Kirby filed an untimely pro se motion for new trial claiming, in part, ineffective assistance of counsel. In Kirby, the Supreme Court found the district court did not err when it failed to appoint the defendant new counsel or conduct a separate evidentiary hearing on an untimely motion that claimed ineffective assistance of trial counsel. In reaching this conclusion, the Supreme Court relied on the standards in K.S.A. 22–5406 and State v. Kingsley, 252 Kan. 761, 765–67, 851 P.2d 370 (1993). Based on that authority, the Supreme Court recognized that a defendant is not entitled to a hearing and the appointment of counsel on every posttrial motion. Instead, the court held that Kirby would be entitled to counsel only if the court found the motion presented “ ‘substantial questions of law.’ “ Kirby, 272 Kan. at 1193.
Kirby and Kingsley apply a similar standard to those used in motions under K.S.A. 60–1507 when determining whether the court is required to appoint counsel. With a K.S.A. 60–1507 motion, the district court may summarily deny the motion, require an evidentiary hearing, or hold a preliminary hearing to determine whether issues raised in the motion are substantial. Albright v. State, 292 Kan. 193, 196, 251 P.3d 52 (2011). If the district court disposes of the case summarily, the standard of review is de novo. Wilkins v. State, 286 Kan. 971, 980, 190 P.3d 957 (2008).
We might consider Spooner's claims under the standard that applies when a defendant seeks new counsel for any reason during a trial. Under such circumstances, a defendant must show “justifiable dissatisfaction” with his or her appointed counsel. “Justifiable dissatisfaction” requires a showing of a conflict of interest, an irreconcilable conflict, or a complete breakdown in communications between the defendant and counsel. Hamon, 46 Kan.App.2d at 367–68. However, whether new counsel should be appointed “is reviewed under an abuse of discretion standard, which asks whether any reasonable person would take the view adopted by the court. [Citation omitted.]” State v. Bryant, 285 Kan. 970, 986, 179 P.3d 1122 (2008).
No matter what standard we apply to Spooner's request for new counsel to present his motion, we end up with the same result.
The trial judge, who also heard the bench trial, clarified and heard all the specifics of Spooner's claims. There was limited involvement by either Mark Ruby or the prosecutor. The colloquy was primarily between Spooner and the court.
The court reasonably and correctly concluded that trial counsel had not been ineffective nor had Spooner established justifiable dissatisfaction. A court should not fault defense counsel for declining to attempt to impeach a witness based on claims which were collateral and irrelevant, a fact that even Spooner acknowledged. See Pabst v. State, 287 Kan. 1, 19, 192 P.3d 630 (2008).
In this case, Spooner did not claim Garrett inflicted Moore's injuries or was involved in any other way other than being with Moore at the hospital. Whether Spooner or Moore had a PFA order against Garrett was totally irrelevant.
There is no merit to Spooner's argument on appeal that his counsel's answer to a question from the court about Moore's injuries had the effect of showing Spooner was lying. Rudy, in response to a question from the court stated he did not think there was “any medical evidence regarding whether she [Moore] had a tooth knocked out or not.” Immediately after the counsel's response, the court reiterated its own (correct) recollection that Moore only testified that parts of her teeth were broken by Spooner's attack. The record clearly shows counsel's response to the court's question in no manner amounted to legal prejudice to Spooner. See Robertson v. State, 288 Kan. 217, 232, 201 P.3d 691 (2009).
Our full review of the record shows that no substantial question of law existed here. Spooner was not limited in any manner by the absence of substitute counsel in presenting all of his complaints to the court which correctly denied the motion from which he appeals.
Affirmed.