Opinion
No. 107,716.
2013-10-1
STATE of Kansas, Appellee, v. Harold WILLIAMS, Appellant.
Appeal from Rice District Court; Mike Keeley, Judge. Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant. Scott E. McPherson, county attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Rice District Court; Mike Keeley, Judge.
Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant. Scott E. McPherson, county attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., GREEN and STANDRIDGE, JJ.
MEMORANDUM OPINION
MALONE, C.J.
Harold Williams appeals the district court's revocation of his probation after he stipulated to violating the conditions of his probation. Williams claims the district court erred by not holding an evidentiary hearing on his motion to withdraw his stipulation to the probation violations. In the alternative, Williams claims the district court abused its discretion by refusing to reinstate his probation. Williams also claims the district court erred by ordering him to pay the Board of Indigents' Defense Services (BIDS) application fee for his court-appointed attorney in conjunction with an earlier probation revocation proceeding. Finding no error, we affirm the district court's judgment.
On April 15, 2009, Williams pled guilty to one count of failing to register as a sex offender. Pursuant to the plea agreement, the district court imposed an underlying sentence of 130 months' imprisonment, but the district court granted Williams' motion for dispositional departure to probation. Williams did not appeal his sentence.
On June 16, 2010, Williams admitted to probation violations, and the district court revoked and reinstated his probation. The district court imposed a 30–day jail sanction followed by continued probation with the added condition that Williams enter and successfully complete outpatient treatment. The judge warned Williams at this hearing that if he violated the conditions of probation again his “next stop is probably prison.” During these proceedings, Williams was represented by court-appointed counsel, so the district court ordered him to pay the $100 BIDS application fee.
On September 21, 2011, Williams appeared in court again for a second probation violation hearing for failing to attend required treatment programs, failing to register with the sheriff, and failing to report to his probation officer. Williams appeared pro se and indicated that he wanted to admit to violating the conditions of his probation. The prosecutor informed the district court that he intended to recommend that Williams' probation be revoked and that he be ordered to serve his underlying 130–month prison sentence. When the judge asked if Williams understood the recommendation, Williams said, “No. I didn't figure that.” He claimed that he previously had been told the sentence would be only 60 days. The judge explained to Williams that he needed to talk to counsel before admitting to the probation violations because he was “running the risk of [serving] 130 months in prison.” Accordingly, the district court continued the hearing and appointed counsel to represent Williams.
On October 19, 2011, Williams appeared in court with his attorney. Williams' attorney announced to the court that “there is no doubt that the alleged [probation] violations occurred,” but he wanted to be heard as to disposition. The judge asked Williams if he had any complaints whatsoever about his counsel's representation, and Williams responded no. Williams' counsel requested the district court to reinstate probation because Williams had “difficulties understanding things,” depression, financial issues, and no car for transportation, which collectively made it difficult for him to comply with his probation. Williams' neighbors also told the court that Williams had to have them explain paperwork to him and was “confused about a lot.” The State responded that Williams had almost 30 convictions in his criminal history, including aggravated robberies, aggravated batteries, and attempted rape, so he was a danger to the community. After hearing the arguments, the district court revoked Williams' probation and ordered him to serve the original 130–month prison sentence.
On October 25, 2011, Williams' attorney appeared before the district court to state that Williams had written a letter to him asking to withdraw his admission to violating the conditions of probation. According to the letter, which is not included in the record on appeal, Williams claimed that his attorney did not fully explain to him that the district court had the power to impose the entire 130–month prison sentence. Williams' attorney requested that the district court hold a hearing on the motion at which Williams could be present. The State argued that K.S.A. 22–3210 only permits a district court to set aside a plea from a judgment of conviction, not a probation revocation. Based on the State's argument, the district court found that it had “no authority to even consider [the] motion” to allow Williams to withdraw his admission to his probation violations. Thus, the district court denied the request for an evidentiary hearing. Williams filed a timely notice of appeal stating that he was appealing “from the decision of the Judge in the Probation Revocation hearing held on October 19, 2011 and the hearing of October 25, 2011.”
On appeal, Williams claims the district court erred by not holding an evidentiary hearing on his motion to withdraw his stipulation to the probation violations. In the alternative, Williams claims the district court abused its discretion by refusing to reinstate his probation. Williams also claims the district court erred by ordering him to pay the BIDS application fee for his court-appointed attorney in conjunction with his probation revocation proceedings in June 2010.
Motion to Withdraw Stipulation to the Probation Violations
Williams first claims the district court erred by not holding an evidentiary hearing on his motion to withdraw his stipulation to the probation violations. Williams argues that the district court should have treated the motion as a post-sentence motion to withdraw plea under K.S.A.2012 Supp. 22–3210. Williams also argues that because his claim is based on ineffective assistance of counsel, the K.S.A. 60–1507 procedures apply and he was entitled to a full evidentiary hearing because the motion, files, and records of the case did not conclusively show that he was not entitled to relief.
The State renews its argument that K.S.A.2012 Supp. 22–3210 only permits a district court to set aside a plea from a judgment of conviction, not a probation revocation. Thus, the State argues that the district court had no authority to consider Williams' motion to withdraw his stipulation to the probation violations. As to Williams' claim of ineffective assistance of counsel, the State notes that generally appellate courts will not consider such a claim when it is raised for the first time on appeal.
This issue presents itself in an unusual procedural posture. Williams never filed a written motion to withdraw his stipulation to the probation violations. Instead, Williams' attorney appeared in court and informed the judge that Williams had written a letter to him asking to withdraw his admission to the probation violations. Apparently, Williams claimed in the letter that his attorney did not fully explain to him that the district court had the power to impose the entire 130–month prison sentence upon revocation of the probation. Williams' attorney requested that the district court hold a hearing on the motion at which Williams could be present. Williams never filed a K.S.A. 60–1507 motion in district court alleging ineffective assistance of counsel.
The district court ruled that it had no authority to consider Williams' motion to withdraw his stipulation to the probation violations under K.S.A.2012 Supp. 22–3210. Thus, the district court denied the request for an evidentiary hearing. The district court's ruling was based solely on statutory interpretation. The interpretation of a statute is a question of law over which appellate courts have unlimited review. State v. Dale, 293 Kan. 660, 662, 267 P.3d 743 (2011).
A defendant is allowed to withdraw a plea of guilty or nolo contendere under K.S.A.2012 Supp. 22–3210, which provides:
“(d)(1) 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.
(2) To correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw the plea.”
Williams argues that admissions to probation violations are similar to pleas and thus motions to withdraw admissions to probation violations should be treated like plea withdrawals under K .S.A.2012 Supp. 22–3210. But this statute only provides an avenue for withdrawing pleas; the statute does not provide for withdrawing admissions to probation violations. As the State points out, K.S.A.2012 Supp. 22–3716 controls the district court's actions when a violation of probation or community corrections is alleged. While the statute guarantees the defendant a hearing on the violations, there is no provision in the statute for the withdrawal of a stipulation to those violations.
While not dealing with the issue of withdrawing a stipulation to a probation violation, State v. Caruthers, 22 Kan.App.2d 910, 924 P.2d 1278 (1996), provides some guidance in resolving Williams' claim. In Caruthers, the defendant stipulated to violating his probation and the district court revoked the probation and ordered the defendant to serve his underlying prison sentence. On appeal, the defendant claimed that the district court should have allowed him allocution before it revoked his probation. In rejecting the defendant's claim, this court noted there is no allocution requirement in the probation revocation proceedings as mandated by statute. 22 Kan.App.2d at 911. This court also rejected the notion that allocution is required as a matter of due process independent of the statute. 22 Kan.App.2d at 911; see also State v. Billings, 30 Kan.App.2d 236, 238, 39 P.3d 682 (2002) (citing Gagnon v. Scarpelli, 411 U.S. 778, 786, 93 S.Ct. 1756, 36 L.Ed.2d 656 [1973] ) (revocation of probation is not part of a criminal prosecution and the full panoply of rights due a defendant in a criminal case is not applicable to a probation revocation proceeding).
Williams cites to no Kansas statute or case providing authority for withdrawal of an admission to probation violations, other than relying on K.S.A.2012 Supp. 22–3210. He also makes no argument on appeal that the district court was required to hold an evidentiary hearing on his motion to withdraw his stipulation to the probation violations as a matter of due process independent of the statute. We conclude that the district court did not err in finding that it had no authority to consider Williams' motion to withdraw his stipulation to the probation violations under K.S.A.2012 Supp. 22–3210.
Williams also argues that because his claim is based on ineffective assistance of counsel, the K.S.A. 60–1507 procedures apply and he was entitled to a full evidentiary hearing because the motion, files, and records of the case did not conclusively show that he was not entitled to relief. Williams is correct that a defendant has the right to the effective assistance of counsel during probation revocation proceedings. See Billings, 30 Kan.App.2d at 238 (finding probationer has the right to assistance of counsel); Brown v. State, 278 Kan. 481, 484, 101 P.3d 1201 (2004) (finding when counsel is appointed by court in postconviction matters, appointment should not be a “useless formality”).
But Williams never filed a K.S.A. 60–1507 motion in district court alleging ineffective assistance of counsel. In fact, Williams never asserted a claim of ineffective assistance of counsel in district court except for his attorney's statement that Williams was claiming that his attorney did not fully explain that the district court could impose the entire 130–month prison sentence upon revoking probation. Williams now argues on appeal that the district court should have conducted an inquiry into what defense counsel told Williams regarding the consequences of his stipulation. But Williams cites no legal authority in his brief to support this assertion. Failure to support a point with pertinent authority or show why it is sound despite a lack of supporting authority or in the face of contrary authority is akin to failing to brief the issue. State v. Berriozabal, 291 Kan. 568, 594, 243 P.3d 352 (2010). An issue not briefed by the appellant is deemed waived and abandoned. State v. McCaslin, 291 Kan. 697, 709, 245 P.3d 1030 (2011)
Generally, appellate courts will not consider a claim of ineffective assistance of counsel when it is raised for the first time on appeal. State v. Johnson, 258 Kan. 475, 488, 905 P.2d 94 (1995). In State v. Van Cleave, 239 Kan. 117, 119, 716 P.2d 580 (1986), our Supreme Court established a procedure to allow for resolution of an ineffective assistance of counsel claim in a direct appeal, under which an appellant can move for remand to the district court for the purpose of determining the effectiveness of trial counsel. But for such a motion to be granted, appellate counsel must first conduct an independent inquiry and investigation into the allegation of ineffective assistance of counsel apart from merely reading the record. 239 Kan. at 120–21, Here, Williams' appellate counsel is not requesting a remand pursuant to Van Cleave, and there is no evidence that an independent inquiry and investigation has been conducted to support such a request. Although an appellate court may remand for a Van Cleave hearing sua sponte, we do not find that the facts and circumstances herein warrant such an order.
Had Williams filed a K.S.A. 60–1507 motion alleging ineffective assistance of counsel, the district court would have been required to review the motion including any attached affidavits or supporting documentation. The district court would have been required to schedule a hearing on the motion unless the motion and files and records of the case conclusively showed that Williams was entitled to no relief. K.S.A. 60–1507(b); Supreme Court Rule 183(f) (2012 Kan. Ct. R. Annot. 274). But generally, a movant has the burden to prove that his or her K.S.A. 60–1507 motion warrants an evidentiary hearing, and the movant must make more than conclusory contentions in the motion in order to obtain relief. See Trotter v. State, 288 Kan. 112, 131, 200 P.3d 1236 (2009).
Because Williams did not file a K.S.A. 60–1507 motion in the district court, the procedures for a claim of ineffective assistance of counsel under K.S.A. 60–1507 and Supreme Court Rule 183 were not applicable to his motion to withdraw his stipulation to the probation violations. (2012 Kan. Ct. R. Annot 274). Not only did Williams not file a K.S.A. 60–1507 motion in district court, he did not even file a written motion to withdraw his stipulation to the probation violations. The district court held a brief hearing at which Williams' attorney informed the court that Williams wanted to withdraw his stipulation to the probation violations. The district court ruled that it had no authority to consider Williams' request to withdraw his stipulation to the probation violations, which was the only relief being requested, so the district court declined to schedule the matter for an evidentiary hearing. Under these circumstances, the district court had no duty to conduct a K.S.A. 60–1507 evidentiary hearing based on Williams' request to withdraw his stipulation to the probation violations.
District Court's Refusal to Reinstate Probation
In the alternative, Williams claims the district court abused its discretion by revoking his probation and ordering him to serve his underlying prison sentence because the mitigating factors outweighed his probation violations. Williams argues that his “difficulties understanding things,” depression, financial issues, and lack of transportation mitigated against revoking his probation. He also reiterates his attorney's suggestion at the probation revocation hearing that if Williams applied for public assistance, he would be able to pay for his treatment and better function on probation.
Probation from service of a sentence is an act of grace by the sentencing judge and, unless otherwise required by law, is granted as a privilege, not as a matter of right. State v. Gary, 282 Kan. 232, 237, 144 P.3d 634 (2006). Once the State has proven a violation of the conditions of probation, probation revocation is within the sound discretion of the district court. State v. Graham, 272 Kan. 2, 4, 30 P.3d 310 (2001). Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable. If reasonable persons could differ as to the propriety of the action taken by the district court, then it cannot be said that the district court abused its discretion. State v. Gant, 288 Kan. 76, 81–82, 201 P.3d 673 (2009).
Here, Williams violated his probation by failing to attend required treatment programs, failing to register as a sex offender, and failing to report to his probation officer. This was the second time Williams violated the terms of his probation, after the district judge had warned him to follow the conditions of his reinstated probation because the “next step is probably prison.” Williams had almost 30 convictions in his criminal history, including aggravated robberies, aggravated batteries, and attempted rape. As the district court noted, with such a criminal history Williams should have known that he was required to report to his probation officer. Moreover, as the State argued at the probation revocation hearing, because Williams' underlying crime of conviction was failing to register as a sex offender, he certainly understood that he had a duty to register. Under these circumstances, the district court did not abuse its discretion in revoking Williams' probation and ordering him to serve his underlying sentence.
BIDS Application Fee
Finally, Williams claims the district court erred by ordering him to pay the BIDS application fee for his court appointed counsel in conjunction with his probation revocation proceedings in June 2010. Williams relies on State v. Long, 45 Kan.App.2d 938, 940, 257 P.3d 792 (2011), which holds that a district court is prohibited from assessing a BIDS application fee upon appointing counsel in probation violation hearings. The State does not contest this issue.
Nevertheless, an appellate court has a duty to question jurisdiction on its own initiative. State v. Berreth, 294 Kan. 98, 117, 273 P.3d 752 (2012). Here, Williams is challenging on appeal the BIDS application fee assessed by the district court on June 16, 2010. Williams' notice of appeal is untimely on this issue. See K.S.A.2012 Supp. 22–3608(c) (defendant shall have 14 days after the judgment of the district court to appeal). Because Williams has failed to appeal the assessment of the BIDS application fee in a timely manner, this court lacks subject matter jurisdiction to address this issue.
Affirmed in part and dismissed in part. STANDRIDGE, J., dissenting:
The majority frames the first issue here as a question of whether the district court erred in declining to consider Harold Williams' request to withdraw his stipulation to probation violations using procedures established for (1) a motion to withdraw plea under K.S.A.2012 Supp. 22–3210 or (2) a motion alleging ineffective assistance of counsel under K.S.A. 60–1507. Although framing the issue this way is consistent with the italicized subheadings in Williams' brief, I do not believe these subheadings accurately reflect the substantive issue presented by Williams on appeal: whether the district court erred in failing to hold an evidentiary hearing on Williams' ineffective assistance of counsel claim.
I agree with the majority that neither K.S.A.2012 Supp. 22–3210 (procedure for withdrawing plea) nor K.S.A. 60–1507 (procedure for collateral attack) is the proper procedural vehicle in a direct appeal for purposes of presenting Williams' claim of ineffective assistance of counsel at the probation revocation hearing. Our Supreme Court, however, has recognized that a remand procedure during a direct appeal for determination of allegations of ineffective assistance of counsel is “an alternative remedy to K.S.A. 60–1507.” See State v. Van Cleave, 239 Kan. 117, 121, 716 P.2d 580 (1986).
In Van Cleave, the defendant received new counsel to directly appeal his criminal conviction, and his appellate counsel argued for the first time on appeal that Van Cleave's trial counsel was ineffective. The Supreme Court held that, as a general rule, allegations of ineffective assistance of counsel should not be considered for the first time on appeal because the trial court, which observed counsel's performance and knew the trial strategy, was in a better position than the appellate courts to consider counsel's competence. 239 Kan. at 119. The court went on to hold, however, that appellate courts have discretion to remand for an evidentiary hearing on the ineffective assistance of counsel claim to avoid the expense and delay of a separate K.S.A. 60–1507 action later. 239 Kan. at 119. Such a remand may be initiated by a party's motion or by the court's sua sponte order “so that facts relevant to determination of the legal issue may be developed and an evidentiary record established.” Rowland v. State, 289 Kan. 1076, 1084, 219 P.3d 1212 (2009).
Although acknowledging that the Van Cleave decision permits remand so that an ineffective assistance of counsel claim can be resolved in the context of a direct appeal, the majority holds that two conditions must exist in order to vest this court with the discretion to order such a remand: (1) appellate counsel must affirmatively request such a remand and (2) appellate counsel must first conduct an independent inquiry and investigation into the allegation of ineffective assistance of counsel apart from merely reading the record. The majority then concludes that remand would be improper in this case because appellate counsel failed to satisfy either one of these conditions. I disagree.
First, our Supreme Court specifically has held that a remand for a Van Cleave hearing may be initiated by either motion of a party or by the court's sua sponte order. Rowland, 289 Kan. at 1084. Second, the procedural posture of the ineffective assistance claim here necessarily demonstrates that appellate counsel did not just summarily cull through the cold record here for purposes of plucking out unexplored claims of deficient performance that potentially have merit. This is because, unlike Van Cleave and its progeny, the ineffective assistance of counsel claim here is not being raised for the first time on appeal: this case involves a direct review of the trial court's decision not to hold an evidentiary hearing on the ineffective assistance of counsel asserted by Williams.
Conversely, the Van Cleave case involved a claim of ineffective assistance of counsel that had never been raised to the trial court. In the context of an issue that was never raised for consideration by the trial court, the Van Cleave court appropriately held that remand would not be appropriate when appellant's counsel did nothing more than read the cold record of the district court proceedings without conducting an independent inquiry and investigation in order to independently determine whether a colorable claim for ineffective assistance of counsel exists. Such a requirement deters the presentation of premature and undeveloped claims in a direct appeal while leaving open the possibility of bringing those claims in a later collateral proceeding.
Given the facts presented here, I believe this court has the discretion to remand for an evidentiary hearing on Williams' ineffective assistance of counsel claim and that we should do so in order to avoid the expense and delay of a separate K.S.A. 60–1507 action. See Van Cleave, 239 Kan. at 119.