Opinion
No. 110800.
03-20-2015
Paul STOTTS, Appellee, v. STATE of Kansas, Appellant.
Stephen D. Maxwell, senior assistant district attorney, Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellant. Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellee.
Stephen D. Maxwell, senior assistant district attorney, Keith E. Schroeder, district attorney, and Derek Schmidt, attorney general, for appellant.
Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellee.
Before BRUNS, P.J., BUSER and POWELL, JJ.
MEMORANDUM OPINION
PER CURIAM.
In 2008, Paul Stotts was sentenced to 322 months of imprisonment after a jury convicted him of attempted second-degree murder, attempted manufacture of methamphetamine, and several charges of drug possession and fleeing and eluding a police officer. Subsequently, he was resentenced to 292 months of imprisonment. In 2013, Stotts filed a K.S.A. 60–1507 motion alleging ineffective assistance of trial and appellate counsel. After an evidentiary hearing, the district court found Stotts' trial counsel to be ineffective for failing to advise him of a plea bargain. As a remedy, the district court ordered the State to reoffer the plea bargain. Thereafter, the State filed an appeal. Because Stotts failed to demonstrate a reasonable probability that he would have accepted the plea offer at the time it was offered, we reverse the district court's decision.
Facts
On March 25, 2007, a Hutchinson police officer stopped a car being driven by Stotts because of a nonworking headlight and a report of suspicious activity. Stotts was identified as the driver, and Jason Thiel was sitting in the front passenger seat. During the stop, the police officer smelled what he believed to be anhydrous ammonia and saw coffee filters and aluminum foil behind the driver's seat. The officer suspected there was a methamphetamine lab in the vehicle. When the officer asked Stotts to exit the vehicle, he instead drove away.
Stotts then led police on a 24–minute chase through South Hutchinson. During the chase, an officer observed what he believed to be anhydrous ammonia being thrown from the car, along with coffee filters and muriatic acid, all of which are used to make methamphetamine. Eventually, the car slowed, and the passenger jumped from the moving vehicle. Stotts then sped up and threw more items from the car while the police continued to chase him. Ultimately, the chase ended when Stotts' car veered into oncoming traffic and crashed with another vehicle. As a result, the driver of the other vehicle was critically injured.
On March 30, 2007, the State charged Stotts with attempted first-degree murder; manufacture or attempted manufacture of methamphetamine; possession of ephedrine or pseudoephedrine, anhydrous ammonia, lithium metal, and drug paraphernalia with the intent to manufacture a controlled substance; possession of propoxyphene and marijuana; possession of drug paraphernalia with intent to use; and fleeing or eluding a police officer.
At the district court level, the State was represented by Thomas R. Stanton. Although Stotts was initially represented by other attorneys, the district court appointed David F. Holmes to represent Stotts on February 1, 2008. Several months later, Stanton evidently presented an oral plea offer to Holmes. In a follow-up letter dated June 18, 2008, Stanton reiterated his oral offer to “run all counts concurrent” and “consider a level 4 aggravated battery,” which Stanton stated “would reduce [Stotts'] liability by approximately 14 years on the count involving [the victim of the car crash].” In response, Holmes sent a letter to Stanton dated June 20, 2008, in which he stated:
“Thank you very much for your letter June 18th, 2008 and your immense concern for the welfare of Paul Stotts. I can assure you that I have performed all aspects of my defense of Mr. Stotts with ethical concerns at the top of my priority list. Your plea negotiations history is legendary in Reno County and it was not very difficulty [sic ] for me to anticipate the offers that you made approximately three (3) to four (4) weeks ago and then modified during our phone conversation earlier this week. I had already gone over every scenario that you have negotiated with Mr. Stotts many months ago. Mr. Stotts has indicated to me that he was not going to plea with anything dealing with [the car crash victim's] injuries. Ethically, there was no need for me to rehash already covered territory concerning your plea negotiations offer.”
On June 26, 2008, the district court held a hearing on several pretrial motions at which Stotts was personally present. At the end of the motion hearing, Stanton announced on the record that he had presented a plea offer to Holmes and that it had been rejected. The following exchange occurred:
“MR. STANTON: I mean no disrespect to Mr. Holmes in the case, but I have future issues that I need to consider. I have in the past had to deal with situations in which I convicted person who later found out I made an offer that was not ... related. I related an offer to [Stotts' attorney] to allow his client to plead to intentional aggravated battery in the case, a level four. That would reduce his, the possibility of his sentence in this case to, by 140 months. So it's pretty
“THE COURT: How much? How much?
“MR. STANTON: 140 months between the level one and the level four.
“THE COURT: Okay.
“MR. STANTON: Mr. Holmes told me, no, he wouldn't consider that in the same conversation. I then wrote a letter to him asking it, to make sure it got relayed to his client. He sent me a letter back saying he had already spoken to him about the possibilities and he didn't need to discuss it any further. I just have to make a record here before the Court today that I made that offer and because, just because he's talked to his client about possibilities in the past doesn't mean he still doesn't have to at least let him know I made the offer. The defendant can say no, absolutely not; I'm not pleading to that.
“THE COURT: Okay.
“MR. STANTON: But I have to know. I have to know that the offer was relayed because what happens is that if it's not relayed, it doesn't matter what they talked about in the past, he's got to know I at least made the offer. If he wants me to go take a long walk off a short pier, he can do that, and that's fine. But that offer was made that would reduce his liability by 140 months. And I'm assuming at this point that in spite of his letter Mr. Holmes has relayed that offer to his client and his client has rejected that offer. And if I could just get confirmation of that, I'm good.
“MR. HOLMES: So if I get this right ... Mr. Stanton wants me to violate attorney/client privilege for his satisfaction, and I'm not going to do it.
“Any conversation with my client, I don't have to tell Mr. Stanton nothing.
“MR. STANTON: Now it's of record, Judge. And whether he's told him or not, the defendant now knows I made the offer.
“THE COURT: To a level four?
“MR. STANTON: To a level four and it's been rejected by his Counsel. I'm assuming it's been rejected by the defendant, and therefore, I don't have to worry about a Habeas Corpus later on if it becomes known to him that I made the offer. So I-the record's been made and, therefore, I don't have to worry about that issue in the future. My only way of doing that is on the record as I've done it today and so that's fine. I have nothing further.
“THE COURT: Okay.
“MR. HOLMES: Just for the record, Your Honor, my client is not waiving any Habeas Corpus actions in the case. Just for the record. I mean I think Mr. Stanton is so far off-base on this it brings me to want to get very angry because he's calling me unethical and he's trying to corner my client by going through you and there's just so many things wrong with this. Mr. Stanton should be admonished of ever bringing anything up like this again. It's totally inappropriate for a member of the bar to try to pin another member of the bar to violate their attorney/client privilege and to try to bind the defendant to not file a Habeas Corpus. It's mean. It's totally inappropriate and I don't know where he comes off thinking he can do that.
“MR. STANTON: Well, Judge, I haven't bound anything. I think the issue I had to deal with is within the record. He can file a Habeas Corpus all he wants to. I'm not saying he can't. I'm not accusing Mr. Holmes of any specific ethical violations. The bottom line is I made an offer, he rejected that offer to me, told me, and then he wrote me a letter and said I've already talked to my client, so I don't—we don't need to even talk about it. We're not considering it. My understanding of the rules is even if you have talked about it, you at least have to tell your client it was made. And so now he knows it was made. It's on the record. He can file all the Habeas Corpus he wants, but at least now I can show that he was present in the courtroom and now knows I made the offer. This is absolutely the proper way to do this. Absolutely the proper way. The improper way would have been for me to go tell his parents that I made the offer, or go tell him I made the offer, without his attorney present, without the court present. That would have been improper. I did it the only proper way it could be done.
“THE COURT: Alright. What else, [Holmes]?
“MR. HOLMES: Just for the record, Mr. Stanton just stated that he did not make any accusation of ethical misconduct on, on my part. In the letter June 18th he says I will remind you of your ethical responsibilities to discuss the possibility of a level four aggravated battery with your client before rejecting that. He had, has no way to know whether I talked to him or not. I sent him a subsequent letter telling him I had. And that his negotiations in all these cases are so predictable that I took care of this a long time ago and looked at all aspects of what Mr. Stanton would come back with and he did come back with the intentional aggravated battery. Now the reckless aggravated battery is a new one. And I stated that earlier, that wasn't discussed in a motion or anything else. But he's wanting me to violate my attorney/client privilege on the record and I take exception to that, and I think the Court should admonish him.
“MR. STANTON: Judge, I didn't ask him to do that. I didn't ask him to reveal the content of any discussions.
“THE COURT: The record will speak for itself.”
There is nothing in the record to indicate that the plea offer was ever discussed again until the current K.S.A. 60–1507 motion was filed in 2013. Significantly, despite hearing the colloquy between Stanton and Holmes, Stotts never mentioned the plea offer to the district court prior to trial, during the trial, or following the trial. Moreover, the plea offer was not mentioned in Stotts' direct appeal or at his resentencing.
Prior to trial, the State amended the charges to add aggravated battery as an alternative to the attempted first-degree murder charge. Ultimately, a jury trial began August 25, 2008, and lasted approximately 4 days. After considering the evidence, the jury found Stotts guilty of attempted second-degree murder, intentional aggravated battery, reckless aggravated battery, attempted manufacture of methamphetamine, possession of pseudoephedrine with the intent to manufacture methamphetamine, possession of lithium metal with the intent to manufacture methamphetamine, possession of drug paraphernalia with the intent to manufacture methamphetamine, possession of propoxyphene, possession of marijuana, possession of drug paraphernalia, and five counts of fleeing and eluding a police officer.
On September 30, 2008, the district court entered an order allowing Holmes to withdraw as Stotts' attorney. But he evidently remained as Stotts' co-counsel with Thomas Bath. The district court initially imposed a 322–month prison and 36–month jail sentence on December 1, 2008. During Stotts' direct appeal, however, the State asked that the case be remanded to the district court for resentencing because two of the convictions were multiplicitous. This court granted the State's request, and the district court imposed a controlling sentence of 292 months in prison on remand.
The issues that remained on appeal were Stotts' allegations of prosecutorial misconduct, a due process violation, two jury instruction errors, two identical offense sentencing errors, cumulative error, an error in imposing the aggravated sentence, and error in setting restitution after sentencing. On December 16, 2011, this court affirmed Stotts' conviction and amended sentence on. State v. Stotts, No. 101,828, 2011 WL 6382737 (Kan.App.2011) (unpublished opinion). No petition for review was filed, and a mandate was issued on January 19, 2012.
On January 18, 2013, Stotts filed a K.S.A. 60–1507 motion, alleging ineffective assistance of trial counsel and ineffective assistance of appellate counsel. He also alleged that he received an illegal sentence. Several months later, on August 12, 2013, a different district judge than the one who presided over Stotts' underlying criminal case commenced an evidentiary hearing on the K.S .A. 60–1507 motion. The hearing took place over different days, and the testimony of eight witnesses was presented. In addition, six exhibits were admitted into evidence.
Holmes testified that no matter how good or bad a plea offer was, he always delivered it to his client. In particular, Holmes testified that he relayed the State's plea offer to Stotts in this case. Although Holmes could not recall the method of communication he used to convey the plea offer, he testified that he definitely communicated it to Stotts.
According to Holmes, Stotts did not want to take a plea. Specifically, Holmes testified that Stotts
“indicated to me that he was not going to plea with anything dealing with [the victim's] injuries. Now, he might with the drugs because that was as serious but we wanted the first degree Count No. I, attempted murder in the first degree, gone.... [H]e didn't want the aggravated battery which was a severity level five, which was a border box.”
Two of Holmes' former employees also testified at the K.S.A. 60–1507 hearing regarding the procedures utilized in his law office. In addition, Tricia Bath, who also served as one of Stotts' attorneys, testified regarding his direct appeal. Her testimony related to Stotts' claim of ineffective assistance of appellate counsel that is not raised on appeal.
Stanton testified that he thought the plea offer he had made to Stotts was reasonable. According to Stanton, the offer was to amend the attempted first-degree murder to a level four aggravated battery, which he believed would have reduced Stotts' potential sentence on that count by 140 months. In addition, Stanton testified that after he announced the plea offer on the record at the motion hearing held on June 26, 2008, he saw no reaction from Stotts. According to Stanton, the recommended total sentence under the plea offer would have been 161 months in prison.
Stotts' father testified that his son never told him about any plea offers he had received, and he never talked to Holmes about any plea offers. He did recall, however, that his son indicated that Holmes had said Stanton's plea offers would be predictable and that they likely would not be favorable. Stotts' mother similarly testified that neither her son nor Holmes talked to her about any plea offers made by the State.
Finally, Stotts testified on his own behalf. According to Stotts, Holmes told him that he and Stanton did not get along very well and that he did not foresee a reasonable plea offer being made by the State. He also testified that Holmes never brought the plea offer to him, and he stated that he was unaware of Stanton's letter regarding the plea offer. Stotts never testified that he would have accepted the plea offer made by the State. However, he indicated that he had told Holmes at one point that he would consider a plea that was around 10 years.
Stotts remembered that Stanton had brought the plea offer to the district court's attention at the hearing held on June 26, 2008. Although he did not say anything at the time, Stotts testified that Holmes lied when he said he relayed the offer to Stotts. He also testified that at the conclusion of the hearing he tried to speak to Stanton to see whether the plea offer was for something around 10 years. According to Stotts, Stanton left the courtroom without answering him. Stotts further admitted that at no point following the hearing did he raise the issue of the plea offer to the district court until the current K.S.A. 60–1507 motion was filed in 2013.
On August 26, 2013, the district court heard closing arguments on the K.S.A. 60–1507 motion. Before doing so, the district court also allowed Stotts to testify again. But his testimony addressed his claim of ineffective appellate counsel. After the presentation of the closing arguments by counsel, the district court took the matter under advisement.
On November 6, 2013, the district court found that Stotts' trial counsel was ineffective in failing to discuss the State's plea offer with his client. On the other hand, the district court found that Stotts had been adequately represented during the course of the jury trial. Likewise, the district court found that Stotts had been adequately represented on appeal.
Specifically, the district court found:
“The law requires effective assistance not only during trial, but during the critical process known as plea bargaining. Holmes' conduct during the plea bargaining process suggests motivation by factors other than the best interests of Paul Stotts. Holmes' suspiciously prompt response to the plea offer in which he admitted not talking to his client and his personal accusations against prosecutor Stanton belie his claim that he effectively advised Stotts during the bargaining process.
“The State is ordered to reoffer the plea bargain. Counsel will be appointed if requested. Further proceedings will be held as determined by the outcome of the plea bargaining process.”
Thereafter, the State timely filed an appeal.
Analysis
Claims involving ineffective assistance of counsel constitute mixed questions of fact and law. See State v. Cheatham, 296 Kan. 417, 430, 292 P.3d 318 (2013). In appeals after the district court has held an evidentiary hearing on a claim of ineffective assistance of counsel, we review the district court's factual findings to determine if they are supported by substantial evidence, and we review its legal conclusions based on those facts under a de novo standard. 296 Kan. at 430.
Substantial evidence is evidence that possess both relevance and substance. In other words, it provides a substantial basis of fact from which the issues can reasonably be resolved. See Ludlow v. State, 37 Kan.App.2d 676, 686–87, 157 P.3d 631 (2007). Appellate courts cannot reweigh evidence or assess witnesses' credibility. State v. Martinez, 296 Kan. 482, 485, 293 P.3d 718 (2013). Instead, we must accept as true the inferences that support the district court's findings of fact. See State v. Morton, 286 Kan. 632, 641, 186 P.3d 785 (2008).
When alleging ineffective assistance of counsel in a K.S.A. 60–1507 motion, a movant must satisfy the constitutional standards set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674, reh. denied 467 U.S. 1267 (1984). See Thompson, 293 Kan. at 715. Under the Strickland test, a movant must establish (1) that counsel's performance was constitutionally deficient, which requires showing that counsel made errors so serious that his or her performance was less than that guaranteed by the Sixth Amendment to the United States Constitution, and (2) that counsel's deficient performance prejudiced the defense, which requires showing that counsel's errors were severe enough to deprive the defendant of a fair trial. See State v. Cheatham, 296 Kan. 417, 431, 292 P.3d 318 (2013). To establish prejudice, the defendant must show there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. 296 Kan. at 431–32.
A defendant's Sixth Amendment right to counsel extends to the plea-bargaining process. See Lafler v. Cooper, 566 U.S. ––––, 132 S.Ct. 1376, 1384, 182 L.Ed.2d 398 (2012) ; Missouri v. Frye, 566 U.S. ––––, 132 S.Ct. 1399, 1409, 182 L.Ed.2d 379 (2012). The first thing a defendant must show to be entitled to relief for ineffective assistance of counsel is the performance prong—“ “ ‘that counsel's representation fell below an objective standard of reasonableness.” ‘ “ Lafler, 132 S.Ct. at 1384 (citing Hill v. Lockhart, A1A U.S. 52, 57, 106 S.Ct. 366, 88 L.Ed.2d 203 [1985] ). In Frye, 132 S.Ct. at 1408, the United States Supreme Court held:
“[A]s a general rule, defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused.... When defense counsel allowed the offer to expire without advising the defendant or allowing him to consider it, defense counsel did not render the effective assistance the Constitution requires.”
In the present case, the district court found that Holmes did not communicate the State's offer to Stotts after hearing the evidence presented at the K.S.A. 60–1507 hearing. A review of the record reveals that Stotts testified that Holmes did not inform him about the plea offer. Furthermore, Stanton was obviously concerned that Holmes had failed to tell Stotts about the plea offer because he felt the need to put it on the record at the June 26, 2008, hearing. Although we may not have reached the same conclusion as the district court on this question, we conclude that this finding is supported by substantial evidence.
“Under Strickland, the question then becomes what, if any, prejudice resulted from the breach of duty.” Frye, 132 S.Ct. at 1409.
“To show prejudice from ineffective assistance of counsel where a plea offer has lapsed or been rejected because of counsel's deficient performance, defendants must demonstrate a reasonable probability they would have accepted the earlier plea offer had they been afforded effective assistance of counsel. Defendants must also demonstrate a reasonable probability the plea would have been entered without the prosecution canceling it or the trial court refusing to accept it, if they had the authority to exercise that discretion under state law.” (Emphasis added.) Frye, 132 S.Ct. at 1409.
Here, even if it is assumed that Stotts demonstrated a reasonable probability that the plea offer made in June 2008 would not have been withdrawn by the State and would have been accepted by the district court, we do not find substantial competent evidence that Stotts has demonstrated a reasonable probability that he would have accepted the plea offer at the time it was offered. A review of the record reveals that neither Stotts nor any of his witnesses testified that in June 2008, he would have—or probably would have—accepted a plea offer of 161 months in prison. At most, the evidence in the record suggests that he may have accepted a plea offer around 10 years or 120 months. Certainly, a difference of 41 months—or approximately 3½ years is significant.
We recognize that the sentence of 292 months Stotts ultimately received following his jury trial was considerably more than the 161 months he may have received had he accepted the plea offer. But under Lafler and Frye, it is the defendant's burden to “demonstrate a reasonable probability” that he would have accepted the plea offer at the time that it was made—not after he knew the outcome of his trial and direct appeal. Lafler, 132 S.Ct. at 1384–85 ; Frye, 132 S.Ct. at 1409. Because Stotts has failed to demonstrate a reasonable probability that he would have accepted a plea offer of 161 months in June 2008, we conclude that he has failed—as a matter of law—to establish prejudice resulting from the ineffectiveness of his trial counsel.
Reversed.