Opinion
No. 108,372.
2013-08-30
STATE of Kansas, Appellee, v. Lawrence MITCHELL, Appellant.
Appeal from Wyandotte District Court; Wesley K. Griffin, Judge. Michelle A. Davis, of Kansas Appellate Defender Office, for appellant. Jennifer S. Tatum, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Wyandotte District Court; Wesley K. Griffin, Judge.
Michelle A. Davis, of Kansas Appellate Defender Office, for appellant. Jennifer S. Tatum, assistant district attorney, Jerome A. Gorman, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., POWELL and SCHROEDER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Lawrence Mitchell pled no contest to aggravated arson. After his plea but before sentencing, Mitchell filed two pro se motions complaining of ineffective assistance of counsel and asking to withdraw his plea, which the district court denied. Mitchell appeals and contends that the district court violated his Sixth Amendment rights by failing to appoint conflict-free counsel to argue his motions. Based on the record, we vacate Mitchell's sentence and remand for appointment of new counsel and reconsideration of Mitchell's motions to withdraw his plea.
On July 8, 2011, the State charged Mitchell with one count of aggravated arson, a severity level 3 person felony. Mitchell was bound over for trial on this charge after a preliminary hearing on September 15, 2011, before the Honorable Jan A. Way. On December 9, 2011, pursuant to a plea agreement, Mitchell pled no contest to aggravated arson. The plea hearing was before the Honorable Thomas L. Boeding.
On December 13, 2011, Mitchell filed a pro se motion to withdraw his plea. In support of his motion, Mitchell asserted that his court-appointed counsel, Renee Henry, was ineffective in that she refused to share discovery with him, even after his repeated requests; she refused to give him a transcript of his preliminary hearing; they had a complete breakdown in communication; and she pressured and coerced him into taking the plea. Mitchell asked the district court to allow him to withdraw his plea and appoint new counsel. On January 19, 2012, Mitchell filed a second pro se motion, again arguing that Henry had pressured him into entering a plea of no contest.
On January 27, 2012, the district court held the sentencing hearing, at which it also addressed Mitchell's pro se motions. The sentencing hearing was presided over by the Honorable Wesley K. Griffin, who had no prior involvement in Mitchell's case. At the hearing, the judge addressed Mitchell and said, “Tell us what you want to raise today, please.” Mitchell asserted that Henry was ineffective, that there was a lack of evidence to support the plea, and that Henry had not presented letters from the victim saying she believed Mitchell did not set the fire. Specifically, regarding Henry, Mitchell said:
“I state that the reason I state that it was ineffective counsel is because I feel that my attorney did not come to speak with me and talk with me on my case when I had made several requests to speak with her about my case. I wrote to her several times to talk to her about my case and got no response from her. Also, it was at the time that when there [were] things going on that I didn't know about and didn't understand, I had spoken with her and asked her about and she had said she would come in and speak with me and never did speak with me on it.
“Now, I also requested to have, like you said, the papers as far as my discovery as far as preliminary hearing and all of that go over, but she kept asking me why did I need to go over those. And I stated to her that it's because we had not went over this case at all in any kind of way and spoken about this case. And I felt that we need to talk to it and set up a defense for trial before, you know, going into trial on this case. So basically it ended up to the point that my attorney and I [were] not agreeing on the same thing as far as what we need.
“Also, Your Honor, is that the [victim] she did sen[d] me letters. She sent supposedly my DNA—I mean, my attorney I asked her, you know, did she get letters from her stating that she [knew] that I did not set the fire and everything. She told me she did. I feel that those could have been used if we had went to trial to prove my innocence, okay?”
The district court also addressed Henry and asked for her response to the pro se motions. Henry acknowledged that she had not spoken with Mitchell after receiving the pro se motions. Henry indicated that she could not file a motion to withdraw the plea and argue her own ineffectiveness. Thus, Henry stated, “I would be obviously moving to withdraw from this case because of the conflict.”
The district court also heard from the State, which argued that Henry had provided effective assistance of counsel. After hearing the arguments, the district court made no specific finding on whether Henry had a conflict of interest in representing Mitchell. However, the district court found that based on his prior experience with Henry, she was a dedicated attorney who always worked hard on her cases. The district court indicated there was nothing unusual about defense counsel not providing a defendant in custody with written discovery and transcripts. The district court also noted that Judge Boeding always did a thorough job in accepting a plea from a criminal defendant. For these reasons, the district court denied Mitchell's pro se motions to withdraw the plea.
The district court then proceeded directly to sentencing. After hearing from the State and Mitchell about sentencing recommendations, the judge asked Henry if she had anything to add. Henry replied, “Judge, first of all, for the record, I assume you denied my motion to withdraw from this?” The judge said, “Yes. I want to proceed with this and go on.” Henry then asked the district court to follow the plea agreement. The district court sentenced Mitchell to 71 months' imprisonment, with 36 months' postrelease supervision. Mitchell timely appealed the district court's judgment.
On appeal, Mitchell does not contest the district court's assessment of the merits of his motions to withdraw plea and the court's resulting denial of the motions. Rather, he claims that the district court erred in failing to appoint new defense counsel when Mitchell asked to withdraw his plea due to Henry's ineffectiveness. See State v. Kelly, 291 Kan. 868, 871, 248 P.3d 1282 (2011) (“[T]he Sixth Amendment to the United States Constitution claim is separate from the merits of the plea withdrawal claim.”). Mitchell asserts that his claim of ineffective assistance of counsel created a conflict of interest for Henry and that by failing to appoint new counsel the district court denied him effective assistance of counsel on his motions to withdraw plea and subsequent sentencing. The State, on the other hand, claims that the district court's actions did not deny Mitchell effective assistance of counsel, that there was no conflict, and that the motions to withdraw plea were properly denied.
The parties do not agree on a standard of review. Mitchell asserts that this court should review de novo. See State v. Jones, 290 Kan. 373, 376, 228 P.3d 394 (2010) (stating that the extent of the right to counsel is a question of law over which this court exercises unlimited review).The State, on the other hand, advocates the abuse of discretion standard this court uses to review a presentence denial of a motion to withdraw a plea or a denial of a motion for new appointed counsel. See State v. Hulett, 293 Kan. 312, 318, 263 P.3d 153 (2011) (stating that a district court's decisions on disqualification of counsel for a conflict of interest, appointment of new counsel, and a presentencing motion to withdraw plea are all reviewed for abuse of discretion). Whether this court reviews de novo or for an abuse of discretion, however, is not critical because “the district court necessarily abuses its discretion when it makes an error of law and the exclusion impacts [a defendant's] constitutional rights. [Citation omitted.]” State v. McMillan, 44 Kan.App.2d 913, 928, 242 P.3d 203 (2010), rev. denied 291 Kan. 915 (2011).
Our Supreme Court has recognized that “[w]hen a defendant has a constitutional right to counsel, he or she has a corresponding right to representation by counsel that is free from conflicts of interest. [Citations omitted.]” Hulett, 293 Kan. at 319. Where the district court is advised of the possibility of a conflict by either the defendant or the State, the district court is required to initiate an inquiry to insure that the defendant's Sixth Amendment right to counsel is not violated. State v. Toney, 39 Kan.App.2d 1036, 1041, 187 P.3d 138 (2008). Under the Sixth Amendment, an actual conflict of interest occurs when a counsel's divided loyalties adversely affect counsel's performance. 39 Kan.App.2d at 1042.
As stated by this court in Toney, where the district court becomes aware of a possible conflict of interest between counsel and a defendant at sentencing, the district court has a duty to inquire further. If the initial inquiry reveals no actual conflict of interest between counsel and the defendant, and the district court makes this finding, then the district court can proceed with sentencing. But if the initial inquiry reveals an actual conflict of interest between counsel and the defendant, then the district court has an obligation to allow counsel to withdraw so that the defendant can be represented by conflict-free counsel. See 39 Kan.App.2d at 1040–44.
Here, the district court inquired into the alleged conflict of interest between Henry and Mitchell. In response to the district court's inquiry, Mitchell asserted a complete breakdown in communication with Henry. Specifically, Mitchell stated that he had made several requests to speak with Henry about his case, but he never received a response from her. Mitchell complained that Henry failed to provide him with written discovery and transcripts despite his requests for her to do so, Mitchell stated that he and Henry could not agree on a strategy of how to proceed with the case. Finally, Mitchell asserted that the victim of the arson had written a letter indicating that Mitchell did not set the fire, but Henry had failed to present the letter to the court.
Henry acknowledged to the district court that she had not spoken with Mitchell after receiving his pro se motions to withdraw his plea. Mitchell filed his initial motion on December 13, 2011, so in other words, Henry had not spoken with Mitchell for 6 weeks prior to the sentencing hearing. Henry indicated that she could not file a motion to withdraw the plea and argue her own ineffectiveness. Henry informed the district court that she “obviously [was] moving to withdraw from the case because of the conflict.”
Mitchell's statements to the district court, if accepted as true, were sufficient to establish a conflict of interest with Henry, especially when Henry agreed that she needed to withdraw due to a conflict. As it was, Mitchell was required to argue his motions to withdraw his plea without the benefit of counsel. Moreover, Mitchell essentially represented himself and argued on his, own behalf at the sentencing hearing, except for when Henry asked the district court to follow the plea agreement. Because the State was represented by counsel at the sentencing hearing and on Mitchell's motions to withdraw his plea, Mitchell had a constitutional right to conflict-free counsel at the same hearing.
The State cites State v. Williams, 290 Kan. 1050, 1051, 236 P .3d 512 (2010) and Hulett as two recent cases where the Kansas Supreme Court found that the district court did not abuse its discretion when declining to appoint new counsel. But Williams is distinguishable from the facts herein because in that case the Supreme Court found that the defendant's concerns were with the nature of the plea she had entered, not with her attorney's performance. 290 Kan. at 1055. Thus, the Supreme Court concluded that the district court did not err by “fail[ing] to address a nonexistent, possible conflict of interest between Williams and her attorney.” 290 Kan. at 1056.Hulett is also distinguishable because the defendant therein requested substitute counsel prior to entering his plea; the district court held a separate hearing on the defendant's motion for substitute counsel, at which it explored and considered statements from both the defendant and his counsel and explicitly found there was no conflict of interest, irreconcilable conflict, or complete breakdown in communication. See 293 Kan. at 312–14, 320–22.
In summary, we conclude that Mitchell's statements to the district court were sufficient to establish a conflict of interest with Henry, especially when Henry also agreed there was a conflict. We express no opinion on the merits of Mitchell's motions to withdraw his plea, but Mitchell is entitled to conflict-free counsel to argue the motions in district court. Thus, we vacate Mitchell's sentence and remand for appointment of new counsel and reconsideration of Mitchell's motions to withdraw his plea.
Sentence vacated and remanded with directions.