Opinion
No. 107,421.
11-30-2012
William E. MANNON, Appellant, v. STATE of Kansas, Appellee.
Jonathan Laurans, of Kansas City, Missouri, and Paul D. Cramm, of Paul D. Cramm, Chartered, of Overland Park, for appellant. Steven J. Obermeier, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Jonathan Laurans, of Kansas City, Missouri, and Paul D. Cramm, of Paul D. Cramm, Chartered, of Overland Park, for appellant.
Steven J. Obermeier, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
MEMORANDUM OPINION
LEBEN, J. William Mannon asks that his guilty plea to child abuse be set aside because his attorney didn't conduct a reasonable investigation and didn't hire an expert witness before Mannon entered the plea. The district court rejected Mannon's claim after hearing testimony from both Mannon and his attorney, concluding that the attorney had conducted a thorough investigation into possible defenses before advising Mannon that his best chance at probation would come by accepting responsibility for the crime and pleading guilty.
Since the district court heard testimony, we must accept its factual findings if supported by the evidence—and they are. Mannon's attorney testified that he spent about 80 hours on the case, including reviewing medical literature regarding shaken-baby syndrome. And the attorney's testimony that Mannon chose not to pursue hiring an expert witness wasn't contradicted by Mannon. We therefore affirm the district court's decision, denying Mannon's request that his guilty plea be set aside.
Factual Background
As of February 2010, Mannon and a woman named Lorrin S. were caring for their 3–month–old girl, Darcy. On an afternoon that Mannon was providing care while Lorrin was attending a class, Mannon called 911 to report that Darcy was unresponsive. She was taken by ambulance to St. Joseph Hospital and later to Children's Mercy Hospital, where doctors determined Darcy had sustained bleeding in the brain as well as bilateral, multilayered retinal hemorrhages. The doctors said that these injuries were consistent with abusive head trauma.
Mannon told police officers that he had been home with Darcy that day and that she'd been doing fine until he noticed she was “gurgling.” Mannon said that he found Darcy completely limp when he came into the room. He said he shook Darcy lightly in order to get her to respond. When that didn't work, he said, he called 911.
Lorrin initially told officers that Mannon had called her and told her the same things he had told the police. But the next day, she told a detective that Mannon had admitted to her that he “ ‘did it.’ “ She said Mannon had told her that Darcy had started screaming, so he picked her up, tried to bounce her, and then began shaking her, causing Darcy to go limp. Lorrin said Mannon had told her that he hadn't meant to hurt Darcy.
Mannon was charged with felony child abuse under K.S.A. 21–3609. He hired attorney Jerry Wallentine before charges were filed, paying Wallentine a flat fee of $6,000 to defend him.
Ultimately, Mannon waived his right to a preliminary hearing at which the State would have had to present basic evidence against him, and he pled guilty to the charge. Mannon did this without a plea agreement from the State, but he hoped that he might receive probation. When his plea was taken, Mannon told the court that he was satisfied with the legal services Wallentine had provided.
Even though Mannon had no significant criminal history (one juvenile trespassing adjudication), the offense—child abuse—is a serious one, a severity–level–5 felony. So even for a person with no significant criminal history, a first severity–level–5 felony offense falls into the border box on the sentencing guidelines chart. That means that the presumptive sentence is prison, but the district court can grant probation—without making it a departure sentence—if certain border-box criteria are met. Specifically, under K.S.A.2009 Supp. 21–4704(f), the statute in place at the time of Mannon's offense, the district court could have granted probation to Mannon if it found either (1) that there was an available treatment program that was more likely to benefit the defendant than a prison sentence would or (2) that a nonprison sanction would promote community safety by promoting offender reformation. See State v. Whitlock, 36 Kan.App.2d 556, 559, 142 P.3d 334, rev. denied 282 Kan. 796 (2006). At sentencing, the State recommended a prison sentence; Mannon asked for probation based on border-box findings. Mannon addressed the court, saying that he had been trying to get Darcy to stop crying when “[t]he next thing, I started shaking her, thirty seconds, and I finally realized what I was doing when she went limp in my arms and immediately I rushed upstairs to call the ambulance. I talked to the EMT and they helped me try and help her become responsive again.” Mannon said that “[a] few minutes later [Darcy] regained consciousness and was crying.”
Mannon admitted that he had told Lorrin “everything that had really happened between me and [Darcy]” after the two of them had gone to the hospital chapel to pray the day after Darcy was injured. Mannon also explained that recently he had been working hard to deal with anger, anxiety, and depression, as well as being employed at a theatre and taking classes at the community college.
Wallentine said that he'd obtained a psychological evaluation of Mannon that reflected some emotional issues and recommended that he continue his current treatment and medications. He argued that Mannon had momentarily lost control in “a situation where he had emotional issues,” that he was immediately remorseful, that he had taken responsibility for what he'd done, and that he was working to do everything he could to become a better person.
Wallentine also presented testimony from Dr. Bascom Ratliff, the director of a counseling program where Ratliff said Mannon was “working on the issues of depression, anxiety and stress.” Ratliff said that Mannon was “amenable to treatment” and was not trying to minimize or deny what he had done. Ratliff said that his treatment plan was for Mannon to attend a batterer's intervention program that teaches anger management, conflict management, and self-management. In addition, Ratliff said that Mannon had been working primarily with Ratliff on his mental-health issues. Ratliff attributed Mannon's conduct in shaking Darcy to “fatigue, depression and sleeplessness.”
The district court decided to give Mannon the presumptive-prison sentence, stating that “[t]he Court believes that the border box findings have not been met.” The court adopted the standard guideline sentence of 32 months.
A few months later, represented by new counsel, Mannon filed a habeas corpus motion under K.S.A. 60–1507. He argued that Wallentine had provided him with constitutionally inadequate representation and that his guilty plea and conviction should be set aside. Mannon made some additional claims in the motion, but only the claim that Wallentine “failed to conduct a reasonable investigation and seek an expert witness[ ] before advising Mr. Mannon to plead guilty” is pursued on this appeal. Both Wallentine and Mannon testified at an evidentiary hearing.
Wallentine admitted that he hadn't represented anyone previously in a shaken-baby case but said that he'd spent about 80 hours working on the case. He said he read many articles about shaken-baby syndrome and that he had consulted with two more-experienced attorneys, one of whom had handled shaken-baby-syndrome cases. Wallentine said he found some favorable research suggesting that the absence of bruises on a child wasn't consistent with shaken-baby syndrome, but that he also found conflicting information and believed the State could likely find another expert to support its case. Wallentine found one out-of-state expert who wanted a $4,000 consultation fee for reviewing the case. But when he discussed this possibility with Mannon, Wallentine testified, Mannon said he didn't want to hire an expert:
“He didn't want to hire an expert for a couple of reasons:
“Number 1, he thought that we had already spent enough money on the case. Number 2, he felt like despite—and we talked about the different triable issues. He felt like it was too great a risk, that we'd probably lose, and he would rather try to work it out for a probation ... by pleading guilty and start going the counseling route.
“So I didn't pursue it. And I talked to him a couple of times. I said, ‘Really, I think you should, you know, consider doing this.’ He didn't want to do that. And it's one of the things that really stuck out at me, he said he didn't want to cause any more stress for Lorrin, who's the mother of the child.
“And so we talked very briefly about he really has to do what's in his own best interests. But he didn't want to hire an expert.”
Wallentine said that there were two issues that had appeared the most promising for the preparation of a defense had the case gone to trial. First, he said that Lorrin had initially been very insistent that Mannon couldn't have abused Darcy and that Mannon was a great father. Wallentine noted that Lorrin had claimed that Mannon admitted he “did it” only after doctors had said Darcy had suffered from being shaken—when doctors or other people started to confront Lorrin that Darcy might be taken away from her unless somebody else admitted to hurting the child. Second, based upon what one of the consulting attorneys had told him, Wallentine believed that “sometimes the children will have symptoms that could look like shaken baby syndrome, but ... an expert will be able to show you that, well, ... this is ... because of something else.”
Wallentine said that the first strategy was problematic because Mannon admitted to Wallentine that he had confessed to Lorrin, just as she had told the police. Thus, although Wallentine could suggest that Lorrin may have made up the claim that Mannon had confessed to her, Wallentine couldn't put Mannon on the witness stand to deny it. Wallentine said he didn't pursue an expert witness further after Mannon decided not to hire one. Wallentine admitted that he hadn't tried to find an expert who would consult for free.
Wallentine said he had advised Mannon that his best chance at probation would be to plead guilty and start a counseling program before sentencing. Wallentine said he thought there was a “99.99 percent” chance Mannon would go to prison if he pled not guilty, went to trial, and was convicted in a contested trial since prison was the presumptive sentence. Wallentine said that plea negotiations with the State hadn't been possible because the prosecutor made clear early on that the State would not agree to probation. Ultimately, according to Wallentine, Mannon decided to plead guilty rather than go to trial:
“Q. [Prosecutor]: And this is the important question. Make sure I'm clear.
“Whose decision was it not to pursue the expert route and/or the trial route using any of the strategies you discussed?
“A. [Wallentine]: It was Will's.”
Mannon agreed that Wallentine had talked with him about possible use at trial of the fact that Lorrin had initially said Mannon couldn't have abused the child but later changed her story and claimed he had confessed. Mannon also said that Wallentine had told him “that if we chose to go the route of trial, that a medical expert was usually what you do in that type of situation.” But he said that Wallentine hadn't specifically explained what the medical expert might testify about. Mannon said he was under the impression that probation was “a pretty likely outcome” if he pled guilty, but he also admitted that the district court had explained at the plea hearing that either prison or probation was possible if he pled guilty. Mannon agreed that he had chosen to plead guilty rather than fight the case through expert witnesses or other defenses, but he tied his decision to his understanding that probation was likely:
“Q. [Prosecutor]: You did not want to fight [the charge] through experts or other defenses, correct?
“A. [Mannon]: Well, I mean, it was more along the line of I thought this: If I came in and said, you know, hey, I did this, that—I mean, that is—I was just—I was under the pretense that when Mr. Wallentine told me he had spoken to the Judge, that we would get probation. That is what—that is the path we should take.”
The district court denied Mannon's motion in an oral ruling that was supplemented by a written order. In the written order, the court concluded that Wallentine “conducted a thorough investigation into possible defenses” before deciding that “the best possible result could be achieved by pleading guilty and offering evidence and argument to support a sentence of probation.” The court concluded that Mannon had failed to establish that Wallentine's recommendation, which the court said “was a viable strategy,” fell below acceptable standards for an attorney.
But in his oral ruling, although the judge again said that he didn't find Wallentine's representation deficient, the judge made some additional statements that may be read to suggest that Mannon got a poor-man's defense because he could only pay $6,000 for an attorney and that someone who can't afford an expert is simply out of luck in our legal system:
“What I gathered from Mr. Wallentine's testimony was that initially he wanted to pursue a defense[ ] that Mr. Mannon did nothing that caused the condition for which the baby was taken to the hospital, and that he began to be unable to do that after Mr. Mannon confessed to him that he had ..., in fact, shaken the baby.
“With respect to the exploration of medical issues, I have to say that Mr. Wallentine did not leave no stone unturned, but he did do some preliminary reading on the issue.
“He knew that ... there were different experts that said different things ... in evaluating evidence about what shaken baby syndrome even was or what can cause it.
“He didn't pursue all those things because his client didn't want to spend the money. His client basically wanted to go ahead, accept responsibility, keep a low profile....
“... He thought his best chance at probation would be to be the nice guy that he basically is, to accept responsibility for the act that he knew that he caused the child.
“Now, he may not have known the medical background of what happens when you shake a baby, and there may have been some things that are real costly, an expert would have been able to try to figure it out.... [Mr. Mannon's new attorney] says there are a lot of people who do this for free. I'm sure that they would like to have their name circulated for all lawyers to use, but I just don't find—I find [Mr. Wallentine's] performance not perfect. You don't get a perfect lawyer for $6,000.
“I don't find that he was experienced in this area, but I don't know any particular single criminal lawyer in this case who is experienced in shaken baby syndrome. We don't have that many of those cases, and so what we do when lawyers get those cases, they have to get up to speed like any trial lawyer does on the substantive area that they're attempting to defend. And they need to get medical experts. All this costs a lot of money.
“And if the client can't pay it, or won't pay it, then there is nothing the lawyer can do.... I mean, a person is either willing to spend a lot of money for a real defense of this kind of claim or they're not, or they're not able to.
“I don't know which of the cases it was in this case, but I think this was a guy who took a chance ... that hopefully by accepting responsibility ..., that he would receive probation from the Court. I didn't grant him probation.
“But that is not Mr. Wallentine's fault.... It's just because, in my judgment, I did not see that ... the border box criteria were met. I do not find Mr. Wallentine's performance deficient.”
The district court did not include any similar statements in its written order.
Mannon has appealed the denial of his habeas corpus motion to this court.
Analysis
Mannon contends the district court should have concluded that Wallentine provided deficient representation by not hiring an expert witness before advising Mannon to plead. On appeal, where the district court has made factual findings and legal conclusions after a full evidentiary hearing, we review the factual findings to see whether substantial evidence supports them and whether they are sufficient to support the district court's legal conclusions. We then review the ultimate legal conclusions without any required deference to the district court's decision. Bellamy v. State, 285 Kan. 346, 354–55, 172 P.3d 10 (2007).
On the merits of an ineffective-assistance claim, the defendant has the burden to show two things: (1) that the attorney's work was below minimum standards and, thus, constitutionally deficient; and (2) that the attorney's substandard work prejudiced the defense. Mattox v. State, 293 Kan. 723, 725, 267 P.3d 746 (2011). The second part of that test ordinarily requires showing a reasonable probability that the result of the trial would have been different but for the attorney's substandard work. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674, reh. denied 467 U.S. 1267 (1984); Mattox, 293 Kan. at 725–26. But where the defendant was found guilty based upon a plea rather than at trial, the defendant must show a reasonable probability that he or she would not have pled guilty and instead would have insisted on going to trial had the attorney provided constitutionally adequate representation. State v. Adams, 284 Kan. 109, 118, 158 P.3d 977 (2007); State v. Atteberry, 44 Kan.App.2d 478, 484, 239 P.3d 857 (2010), rev. denied 292 Kan. 966 (2011). A reasonable probability is one sufficient to undermine confidence in the outcome. State v. Bricker, 292 Kan. 239, 246, 252 P.3d 118 (2011). In sum, what is generally referred to as the Strickland test requires two showings—constitutionally deficient representation and prejudice to the defense. Based upon the evidence presented and the district court's factual findings, Mannon has not made either showing.
Adequacy of Representation
Let's start with the adequacy of Wallentine's representation. The district court found that Wallentine conducted a thorough investigation and that his representation wasn't deficient. Wallentine testified that he spent about 80 hours on the case, including substantial time doing research regarding the medical issues. He testified that he discussed possible defenses with Mannon—focusing mainly on suggesting that Lorrin's report of a confession was a lie designed to help her keep the child and on retaining a medical expert to offer other explanations for Darcy's injuries. But Wallentine also told Mannon that he was unlikely to get probation for a presumptive-prison offense if he denied guilt and lost at trial. Mannon then decided to plead guilty—based on his attorney's advice that this was the best strategy to take to get a probation sentence instead of prison.
In considering whether an attorney's work was substandard, we must avoid hindsight bias, in which an answer seems obvious after the fact but may not have been so when the situation was encountered. Thus a reviewing court must be “highly deferential” in scrutinizing attorney conduct so as to “eliminate the distorting effects of hindsight.” Moncla v. State, 285 Kan. 826, 832, 176 P.3d 954 (2008). This deferential assessment is made “as of the time of counsel's conduct” and in light of “prevailing professional norms” among counsel. Strickland, 466 U.S. at 690. When advising a defendant considering a plea, counsel must advise the defendant as to the range of possible penalties and discuss the possible choices available to the defendant. State v. White, 289 Kan. 279, 285–86, 211 P.3d 805 (2009).
After the fact, of course, we know that the court sent Mannon to prison. But Mannon has not shown that the strategy Wallentine suggested was a poor one. The crime was a presumptive-prison offense, and the State planned to ask that Mannon go to prison. The victim was a 3–month–old girl who spent substantial time in the hospital and, according to family members who spoke at sentencing, had lingering effects from her injuries.
Wallentine's strategy might have been a poor one if either of two results was substantially likely to occur—but neither was.
First, if there was a substantial chance of a verdict in favor of the defense at trial, going to trial might have been the best strategy. Mannon argues on appeal that Wallentine failed to investigate his “claim of innocence.” Mannon argues that an expert could have been found to suggest that Darcy's injuries were caused by something other than Mannon's shaking of her. But Mannon told the court at sentencing that Darcy fell limp while he was shaking her for 30 seconds, and he told the court that he had explained to Lorrin “everything that had really happened.” So Lorrin would have been able to provide strong evidence—from Mannon's own words—to support the claimed connection between Mannon shaking Darcy and Darcy falling limp and unconscious. Perhaps Lorrin's testimony could have been undercut by making it appear that she was lying when she claimed Mannon had confessed to her so as to help her maintain the custody of her child. But there were strong facts in support of the State's case, including Lorrin's testimony, and Wallentine couldn't put Mannon on the stand to falsely claim that he had not confessed to Lorrin. So Mannon did not have a substantial chance of a favorable verdict. Second, if there was an equal or greater chance that Mannon would receive probation by taking the case to trial as compared to entering a plea, once again the strategy of going to trial might have been the best one to pursue. But Mannon hasn't made that argument on appeal, and it seems unlikely that Mannon's chance for probation would be better if he had denied—rather than accepted—responsibility and had then been found guilty at trial.
Still, Mannon argues on appeal that Wallentine couldn't competently develop a strategy for the case without first consulting with an expert. And that's where some comments made by the district court are problematic.
In its oral ruling from the bench, the court seemed to suggest that Mannon was entitled only to a budget defense because “[y]ou don't get a perfect lawyer for $6,000.” Quite probably no one gets a “perfect” lawyer at any price, but the fee paid to an attorney has nothing to do with the requirement that constitutionally adequate representation be provided. The district court's comment was inappropriate, but we find no effect from that comment on the court's ruling. In addition, the court in its comments made two situations equivalent—one in which a defendant can't afford to hire an expert and another in which a defendant can afford to do so but decides against it. The court said that if either situation occurred, “then there is nothing the lawyer can do,” although the court also said it didn't “know which of the cases it was in this case.”
The district court was wrong in these extemporaneous comments (which were not repeated in its written order). Indigent defendants have a right to a constitutionally adequate defense, which may require that the State hire an expert witness to assist the defense. K.S.A. 22–4508 provides a procedure for an indigent defendant to ask the court to authorize an expert paid for at public expense.
On appeal, Mannon has seized on the district court's inaccurate comments. Mannon argues that Wallentine's representation was also deficient because he didn't advise Mannon about the procedure under K.S.A. 22–4508 through which Mannon could ask for a state-funded expert witness if Mannon wasn't able to afford to hire one.
But the State points out that Mannon never testified that he was unable to afford to hire an expert. Nor did Mannon testify generally about his financial situation. Given the absence of any evidence to suggest that Mannon was indigent, we can't jump to the conclusion that Wallentine's representation was deficient because he didn't explain what Mannon's rights would be if he were indigent. That would be wholly inconsistent with the deferential standard used to review the attorney's work.
Wallentine clearly testified that Mannon made the decision not to pursue hiring an expert witness. When a client instructs his or her attorney not to hire an expert, the client can't later claim that the failure to do so constituted inadequate representation by the attorney. See del Toro v. Quarterman, 498 F.3d 486, 491 (5th Cir.2007); Miller v. Johnson, 2011 WL 2413951, at *10 (E.D.Va.2011) (unpublished opinion). Although Mannon's main point of emphasis has been Wallentine's failure to consult with an expert before Mannon pled guilty, he has also suggested some other deficiencies in his appellate brief—Wallentine's failure to interview some witnesses, for example. The district court did not make any specific findings about deficiencies now being argued except for the failure to consult with an expert. Mannon didn't ask the district court to make any additional findings, though, so we must presume that the district court made all the necessary findings to support its overall judgment that Wallentine's representation wasn't below minimal standards. See Drach v. Bruce, 281 Kan. 1058, 1080, 136 P.3d 390 (2006), cert. denied 549 U.S. 1278 (2007). We have reviewed the evidentiary hearing on Mannon's K.S.A. 60–1507 motion, and we find no area on which we can conclude—as a matter of law—that Wallentine provided inadequate representation.
Prejudice to the Defendant
Mannon also needs to show a reasonable probability that he would have insisted on going to trial—rather than pleading guilty—had Wallentine provided adequate representation. But Mannon's evidence did not support that claim.
First, Mannon never testified that he would have done so. Second, even on appeal, Mannon hasn't told us what an expert witness would have said that would have caused Mannon to take a different course. (Nor has Mannon told us what any other witness Wallentine failed to interview would have said and how those interviews would have led Mannon not to plead guilty.) See Beaver v. Thompson, 93 F.3d 1186, 1195 (4th Cir.1996) (finding that a claim of inadequate investigation by defense counsel fails without an offer or proof of what favorable evidence would have been produced through adequate investigation); Miller, 2011 WL 2413951, at *10 (same).
Mannon's presentation in his appellate brief of a collection of citations to medical articles that question the reliability of a shaken-baby-syndrome diagnosis under certain facts does not substitute for evidence showing that he would have chosen to go to trial. Mannon's motion was heard in an evidentiary hearing, and we must decide the appeal based on the evidence that was presented there.
Conclusion
Charged with a serious crime, William Mannon chose to plead guilty so as to maximize his chance for probation. Given the facts presented to the district court in an evidentiary hearing, there's evidence to support the conclusion that the advice Mannon's attorney gave him—that pleading guilty was his best chance at probation—was reasonable guidance. In addition, the evidence supports the conclusion that the decision not to hire an expert witness was Mannon's and not his attorney's.
Mannon had the burden to show both that his attorney provided inadequate representation and that Mannon would have insisted on going to trial, rather than pleading guilty, had his attorney's performance been adequate. There is evidence that supports the district court's conclusion that Mannon failed to make these showings. We therefore affirm the district court's judgment.