Opinion
No. 110,365.
2014-09-19
STATE of Kansas, Appellee, v. Vernon Lee THOMAS, Appellant.
Appeal from Saline District Court; Jared B. Johnson, Judge.Gerald E. Wells, of Jerry Wells Attorney–at–Law, of Lawrence, for appellant.Jeffery S. Adam, assistant county attorney, Ellen Mitchell, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Saline District Court; Jared B. Johnson, Judge.
Gerald E. Wells, of Jerry Wells Attorney–at–Law, of Lawrence, for appellant. Jeffery S. Adam, assistant county attorney, Ellen Mitchell, county attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., LEBEN and ATCHESON, JJ.
MEMORANDUM OPINION
PER CURIAM.
Vernon L. Thomas appeals his sentence following his guilty plea to two counts of distributing methamphetamine. Thomas claims the district court erred in calculating his criminal history score and by denying his motion for a departure sentence. We find no error on the first issue and we lack jurisdiction to consider the second issue. Thus, we affirm the district court's judgment.
After selling methamphetamine to an undercover agent, Thomas was arrested and charged with 11 crimes, including multiple counts of possession of methamphetamine, distribution of methamphetamine, operating a vehicle without proof of insurance, and unlawfully obtaining drug proceeds. Thomas entered into plea negotiations with the State and eventually pled guilty to two counts of distribution of methamphetamine.
Before sentencing, Thomas objected to the State's proposed criminal history score. One reason Thomas objected was that he believed that one of his previous convictions—a person misdemeanor for violating a protective order in 2002—had been obtained in violation of his Sixth Amendment right to counsel. Also before sentencing, Thomas filed a motion for a downward durational/dispositional sentencing departure.
At the sentencing hearing, the district court used the 2002 misdemeanor in calculating Thomas' criminal history score. The district court denied Thomas' motion for downward departure and imposed the standard presumptive sentence of 40 months' imprisonment. Thomas timely appealed the district court's judgment.
On appeal, Thomas first claims the district court erred in calculating his criminal history score by using a misdemeanor conviction that he argues was obtained in violation of his Sixth Amendment right to counsel. Generally, the State must prove the defendant's criminal history score by a preponderance of the evidence. K.S.A.2012 Supp. 21–6814(c). In that respect, this court's standard of review is limited to determining whether substantial competent evidence supports the district court's ruling that the State has met its burden. State v. Hughes, 290 Kan. 159, Syl. ¶ 1, 224 P.3d 1149 (2010). Substantial evidence is legal and relevant evidence that a reasonable person would find sufficient to support a conclusion. Hodges v. Johnson, 288 Kan. 56, 65, 199 P.3d 1251 (2009).
Thomas argues that caselaw should control the outcome here because Kansas courts have held that a misdemeanor conviction obtained in the absence of counsel or a knowing waiver of the right to counsel cannot be used to calculate a defendant's criminal history score. See State v. Youngblood, 288 Kan. 659, Syl. ¶ 3, 206 P.3d 518 (2009); State v. Long, 43 Kan.App.2d 328, 337–38, 225 P.3d 754 (2010). To the extent that this court considers the effect of existing caselaw on the facts before it, we review the caselaw without deference to the district court. Hughes, 290 Kan. 159, Syl. ¶ 2.
Thomas is correct that misdemeanor convictions resulting from guilty pleas obtained in violation of a defendant's Sixth Amendment right to counsel cannot be used to calculate a defendant's criminal history score. See Youngblood, 288 Kan. 659, Syl. ¶ 3; Long, 43 Kan.App.2d 328, Syl. ¶ 4. A conviction violates a defendant's right to counsel if it includes the possibility of imprisonment and the defendant either was not represented by counsel or did not properly waive his or her right to counsel. 43 Kan.App.2d at 337–38. If a defendant properly waives his or her right to counsel, however, the Sixth Amendment is not violated, and a conviction resulting from a guilty plea made by an unrepresented defendant may be used in calculating the defendant's criminal history score. Hughes, 290 Kan. at 162–64.
To be proper, a defendant's waiver of the right to counsel usually must be in writing. In re Habeas Corpus Application of Gilchrist, 238 Kan. 202, 208–09, 708 P.2d 977 (1985); State v. Lawson, 296 Kan. 1084, 1098, 297 P.3d 1164 (2013). Though the Gilchrist court provided a sample form that courts could use to record a defendant's waiver, the Kansas Supreme Court has since clarified that a written waiver doesn't need to be identical to the sample to provide Sixth Amendment protections. Hughes, 290 Kan. 159, Syl. ¶ 3. As long as the written waiver shows that the defendant knowingly and intelligently waived his or her right to counsel after being advised of his or her rights, the waiver is sufficient to show that the defendant's Sixth Amendment right to counsel wasn't violated. 290 Kan. 159, Syl. ¶ 3.
The record must show two essential things for a waiver to comply with the Sixth Amendment: (1) that the defendant was fully advised and properly informed of his or her right to counsel; and (2) that after being fully advised and properly informed, the defendant clearly determined not to have counsel represent him or her before the court. 290 Kan. 159, Syl. ¶ 4. A waiver must therefore contain a description of the specific rights communicated to the defendant or a judge's certification that the district court accurately communicated to the defendant the full range of his or her rights. 290 Kan. at 172.
Thomas argues that although he waived his right to counsel in writing, the written waiver didn't show that he had been properly informed of all of his rights so as to prove that he had knowingly waived them. Specifically, he argues that the waiver didn't advise him that he had a right to have an attorney appointed to represent him— for free—if he couldn't afford one. He says that without this information, his waiver was improper and the conviction that followed it violated his Sixth Amendment rights.
The waiver Thomas signed stated that he had a right to have an attorney appointed if he couldn't afford one: “If I can't afford a lawyer, one will be appointed to represent me.” Thomas acknowledges that he was told that an attorney would be appointed if he couldn't afford one, but he argues that he wasn't told that the appointed attorney would be free. He contends that for a waiver to be proper, it needs to say something like: “If I can't afford an attorney, a free one will be appointed to represent me.”
Thomas is incorrect. Kansas law only required the court to inform Thomas that an attorney would be appointed if he couldn't afford one. Youngblood, 288 Kan. at 663; Gilchrist, 238 Kan. at 209, 212. A court's advice to the defendant regarding an appointed attorney doesn't need to say that the attorney will be “free.” In fact, attorneys appointed to represent indigent defendants aren't necessarily “free.” Kansas, like most states, has a statutory provision requiring defendants convicted of a crime to reimburse the state for court-appointed counsel. See K.S.A. 22–4513; see also Fuller v. Oregon, 417 U.S. 40, 51–54, 94 S.Ct. 2116, 40 L.Ed.2d 642 (1974) (Oregon's attorney fee recoupment statute, which provided defendant the opportunity to show that recovery of legal defense costs would impose hardship, did not infringe on a defendant's right to counsel).
The recommended waiver language in Gilchrist didn't mandate that a defendant be told the appointed attorney would be free; it merely required that the defendant be counseled about the right to have an appointed attorney if the court found that the defendant was indigent: “The undersigned acknowledges that he or she has been informed ... of his or her right to have counsel appointed to represent him or her, if he or she is financially unable to obtain counsel and is determined to be indigent....” 238 Kan. at 212. Thus, the recommended waiver language doesn't include a provision that explains that a defendant can obtain an appointed attorney for free.
Likewise, our courts have held that numerous waivers with language nearly identical to the waiver Thomas signed comply with the Sixth Amendment. See, e.g., State v. Turner, 239 Kan. 360, 365, 721 P.2d 255 (1986) (upholding defendant's waiver of right to counsel where the court informed defendant that “counsel would be appointed to defend him if it [was] established that he [was] not financially able to employ counsel”); State v. Myers, No. 102,800, 2010 WL 4393944, at *2 (Kan.App.2010) (unpublished opinion) (upholding waiver that stated, “If I am unable to afford a lawyer, the judge will appoint one for me.”); State v. Flores–Picasso, No. 100,602, 2009 WL 2436686, at *2–4 (Kan.App.2d 2009) (unpublished opinion) (upholding waiver that stated, “If I cannot afford to pay for an attorney, one will be named to represent me.”). Thomas' waiver—which states, “If I can't afford a lawyer, one will be appointed to represent me”—falls within the range of waivers Kansas courts have upheld.
The district court had substantial evidence to support its determination that Thomas' 2002 misdemeanor conviction wasn't obtained in violation of his Sixth Amendment rights. Because Thomas' 2002 conviction for violating a protective order was a person misdemeanor, the district court properly used this conviction in calculating Thomas' criminal history score. See K.S.A.2013 Supp. 21–6810(a) (noting that person misdemeanors are to be used in the calculation of a defendant's criminal-history score); K.S.A. 21–3843(c) (noting that violating a protective order is a Class A person misdemeanor) (now repealed).
Next, Thomas claims the district court erred by denying his motion for downward durational/dispositional departure. The State responds that this court lacks jurisdiction to consider this issue because Thomas received a presumptive sentence.
The State is correct. If a defendant receives a presumptive sentence under the Kansas Sentencing Guidelines Act, this court is without jurisdiction to review it. See K.S.A.2013 Supp. 21–6820(c)(1). As a result, this court cannot consider the denial of a motion to depart from a presumptive sentence when a presumptive sentence is imposed. State v. Williams, 37 Kan.App.2d 404, Syl. ¶ 4, 153 P.3d 566, rev. denied 284 Kan. 951 (2007); see State v. Looney, 299 Kan., 327 P.3d 425, 428 (2014). The district court sentenced Thomas to 40 months' imprisonment, which represented the standard presumptive sentence for someone convicted of distributing methamphetamine with a criminal history score of “C .” Because we lack jurisdiction to consider whether the district court erroneously denied Thomas' departure motion, this claim of error must be dismissed. See Williams, 37 Kan.App.2d at 408.
Affirmed in part and dismissed in part.