Opinion
109,987.
10-10-2014
STATE of Kansas, Appellee, v. Michael SHELTON, Appellant.
Rachel L. Pickering, of Kansas Appellate Defender Office, for appellant. Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Rachel L. Pickering, of Kansas Appellate Defender Office, for appellant.
Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
Before LEBEN, P.J., ARNOLD–BURGER, J., and DANIEL L. LOVE, District Judge, assigned.
MEMORANDUM OPINION
PER CURIAM.
After Michael Shelton pled guilty to one count of burglary, he filed a motion asking the court to let him withdraw his plea. At a hearing on that motion, his attorney said the motion to set aside the plea in this case would be “overruled or denied” while a similar motion in another case would be granted. Consistent with this statement from Shelton's attorney, the district court denied the motion and sentenced Shelton to 29 months in prison.
On appeal, Shelton argues that the district court should not have denied the motion to withdraw his plea, contending that the court should have perceived a conflict between Shelton and his attorney. Shelton argues that the district court should have inquired of Shelton to be sure he agreed with his attorney's statements.
But Shelton never filed any documents in the district court indicating dissatisfaction with the attorney who made that statement to the court on his behalf. At the time of that hearing, the district court had no reason to suspect a conflict between Shelton and his attorney, who said that he had conferred with Shelton immediately before he said that the motion to withdraw plea in this case would be denied but that a similar motion in a companion case would be granted. The district court does not have a duty to ask about possible conflicts of interest that are not apparent to the court, and here Shelton never contradicted his attorney's statement about the motion or suggested that the attorney was providing insufficient representation. See State v. Hulett, 293 Kan. 312, 320–23, 263 P.3d 153 (2011) ; State v. Williams, 290 Kan. 1050, 1056, 236 P.3d 512 (2010). We find no error in the district court's order denying the motion to withdraw the plea, and we therefore affirm the district court's judgment.
Factual and Procedural Background
The State charged Michael Shelton with burglary, a severity–level–7 person felony, for events that occurred on August 4, 2011. Shelton entered into a plea agreement with the State covering the burglary case and several other charges from another case (Case No. 10CR1720). The part of the agreement relevant to this appeal is that Shelton agreed to plead guilty to burglary, and in return, the State agreed to recommend probation in the burglary case. Shelton also signed an Acknowledgement of Rights and Entry of Plea document indicating that he had spoken to his attorney about the plea and understood the consequences of entering into the agreement.
At Shelton's plea hearing, he told the district court that he had discussed his case with his attorney. The court explained the possible penalties Shelton could receive based on his plea:
“The Court: ... [F]or the charge of burglary, a Severity Level 7 person felony, you could receive a sentence of up to 34 months and $100,000 fine and another 12 months postrelease supervision. Do you understand that?
“[Shelton]: Yes, sir.” Shelton then pled guilty to burglary and provided the court a factual basis for the charge.
Before sentencing, Shelton filed a motion to withdraw his plea, arguing that he had not had sufficient time to consider the plea and that he had been misled about what his criminal history score would be. He also filed a motion to remove his defense counsel, Bradley Sylvester, saying that the attorney had misled him about the penalties he would face if he took the plea.
The district court appointed new counsel, Mark Sevart, who represented Shelton at the hearing on his motion to withdraw his plea. At the beginning of the hearing, Sevart stated what appeared to be the result of prior conversations with the State and with Shelton (and possibly with the court)—that the motion to withdraw Shelton's guilty plea for burglary would be “denied” but that a motion to withdraw his plea in the other case, No. 10CR1720, would be “sustained”:
“The Court: ... Mr. Sevart, have you had an opportunity to consult with your client?
“Mr. Sevart: I have, Your Honor. And Your Honor, I think that at this point in time, as I understand it ... the motion to set aside the plea in [Case No. 10CR1720] ... will be sustained.... [T]he motion to withdraw the plea in the [burglary] case would be overruled or denied. And that the case would be placed back on the jury trial docket with respect to the 10 CR 1720. My client would like to ... go ahead and proceed with that.
“I'll certainly, you know, inform the Court and the district attorney that I will continue to see if we can reach some sort of resolution, but rather than delaying it yet again, it would probably be better to go ahead and move forward.”
After stating that he had reviewed the transcript of the plea hearing, the judge granted Shelton's motion to withdraw his guilty plea for case No. 10CR1720 but not for his burglary case (No. 11CR2258):
“And regarding 10 CR 1720.... I'm going to sustain the motion regarding that, with I presume, the agreement of the State.
“And then the factual basis for 11 CR 2258 [the burglary case] is quite clear and that was a standard guilty plea and that was a knowing and intelligent plea regarding that. And given the facts and the reiteration of defense's positions in that case, I certainly do appreciate that.”
The district court then denied Shelton's request for a departure, nonprison sentence and sentenced him to 29 months in prison. Shelton responded with a pro se motion to set aside or correct his sentence, asking the court to set aside his plea because Sylvester had coerced him into accepting the plea agreement. The district court denied the motion, finding that it was successive and without merit because the district court had already denied his motion to withdraw the plea. Shelton has appealed to this court.
Analysis
Shelton's claim on appeal is that the district court erred in denying his motion to withdraw his plea. As a general rule, we review a district court's decision to deny a motion to withdraw plea for abuse of discretion. State v. Fritz, 299 Kan. 153, 154, 321 P.3d 763 (2014). A district court abuses its discretion if it takes action that is arbitrary, fanciful, or unreasonable or that is based on an error of fact or law. State v. Laurel, 299 Kan. 668, 676, 325 P.3d 1154 (2014) (citing State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 [2011], cert. denied 132 S.Ct. 1594 [2012] ).
Shelton makes two arguments on appeal in support of his contention that the district court should have let him withdraw his plea in the burglary case—that defense counsel Sevart improperly abandoned his motion to withdraw his plea and that the district court abused its discretion when it failed to ask Shelton whether he agreed with Sevart's statement that the motion to withdraw his plea should be denied. Shelton does not argue on appeal that Sylvester—his first attorney—was ineffective when the plea was entered. His argument is really an attack on Sevart's performance, and the appropriate way to raise this claim would appear to be through a K.S.A. 60–1507 motion or a request to remand the issue to the district court for an evidentiary hearing under State v. Van Cleave, 239 Kan. 117, 119–21, 716 P.2d 580 (1986). See State v. Galaviz, 296 Kan. 168, 192, 291 P.3d 62 (2012). Shelton has not filed a K.S.A. 60–1507 motion or requested a Van Cleave hearing.
Shelton filed his motion to withdraw plea before sentencing, so the district court had the discretion to grant the motion “for good cause.” See K.S.A. 22–3210(d)(l) ; State v. Aguilar, 290 Kan. 506, 511–12, 231 P.3d 263 (2010). But Shelton has not shown any reason that the district court should have disregarded Sevart's statement that the motion was to be denied, apparently as the result of an agreement. Even on appeal, Shelton's brief makes only vague claims:
• “Mr. Shelton's counsel did not present any evidence in support of withdrawing the plea.”
• “The record does not indicate why defense counsel stated that Mr. Shelton's motion should be denied.”
• “Mr. Shelton did not appear to agree with this defense strategy because after sentencing, Mr. Shelton again argued that he should be able to withdraw his plea.”
But an appellant has the duty to provide a record showing error. See State v. Kettler, 299 Kan. 448, 465, 325 P.3d 1075 (2014). Shelton has not done so. He made no complaint to the district court about attorney Sevart. In fact, even in the postsentencing motion Shelton filed asking again to set aside his plea, he complained about his first attorney, Sylvester, and made no complaint about Sevart.
We still must consider Shelton's second argument—that at the hearing, the district court should have asked Shelton whether he agreed with Sevart's statement that the court should deny his motion to withdraw his plea in the burglary case. The Sixth Amendment right to counsel includes the right to conflict-free counsel. As a result, if a district court becomes aware of a possible conflict of interest between an attorney and a defendant, the court has a duty to inquire about the possible conflict. See State v. Prado, 299 Kan. 1251, 329 P.3d 473, 478 (2014) ; Wood v. Georgia, 450 U.S. 261, 272, 101 S.Ct. 1097, 67 L.Ed.2d 220 (1981).
But the district court does not have a duty to address conflicts that are not readily apparent. Compare Hulett, 293 Kan. at 321–23 (finding that the district court had no duty to inquire about a conflict of interest when the defendant failed to reassert prior arguments about the attorney's poor performance at a motion on a hearing to withdraw a plea); Williams, 290 Kan. at 1055–56 (finding that the district court did not abuse its discretion in failing to address “a nonexistent, possible conflict of interest” where defendant's concerns at hearing on motion to withdraw a plea were about the nature of her plea, not her attorney's performance); State v. Cougle, No. 95,634, 2007 WL 2239240, at *1–2 (Kan.App.) (unpublished opinion) (finding the district court had no duty to inquire about a conflict of interest where defendant expressed dissatisfaction with his trial but “there [was] nothing to indicate a conflict between counsel and the defendant”), rev. denied 285 Kan. 1175 (2007), with State v. Vann, 280 Kan. 782, 789–92, 127 P.3d 307 (2006) (finding that district court had duty to inquire into a possible conflict where defendant had asked the court for new counsel on multiple occasions before, during, and after trial); State v. Taylor, 266 Kan. 967, 974–75, 975 P.2d 1196 (1999) (finding that the district court abused its discretion in denying motion to withdraw plea where defendant told the court he was dissatisfied with counsel and the court did not inquire about counsel's competency). The court's failure to inquire about a possible conflict when it knows of one is an abuse of discretion. So we must consider whether the district court knew or should have known of a potential conflict between Sevart and Shelton. See Prado, 329 P.3d at 478.
Shelton contends on appeal that he had a conflict with Sevart because Sevart abandoned his motion to withdraw the plea when he did not wish to abandon it. But nothing at or before the hearing alerted the court to a potential conflict between Sevart and Shelton. Shelton did not file a motion requesting that Sevart be removed as his counsel, and Sevart told the court that he had spoken with Shelton immediately before he said that the plea would be overruled or denied. Moreover, during the rest of the hearing, Shelton did not disagree with Sevart, indicate to the court that he still intended to withdraw his plea, or complain that Sevart was providing insufficient representation.
Shelton does not argue in his appellate brief that the district court should have inquired about a possible conflict of interest after Shelton filed his pro se motion to set aside his sentence (and allow withdrawal of his plea). And even if he did, the motion to set aside the sentence only discussed Sylvester's representation; it did not indicate that Sevart had been ineffective or that Shelton had wanted Sevart to argue that the court should allow him to withdraw his plea at the hearing on the motion to withdraw his plea.
We find no abuse of discretion in the district court's denial of Shelton's motion to withdraw his guilty plea. The district court's judgment is therefore affirmed.