Opinion
No. 106,029.
2012-05-18
STATE of Kansas, Appellee, v. Phillip Delbert CHEATHAM, Appellant.
Appeal from Shawnee District Court; Mark S. Braun, Judge. Christina M. Waugh, of Kansas appellate defender office, for appellant. Natalie Chalmers, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Shawnee District Court; Mark S. Braun, Judge.
Christina M. Waugh, of Kansas appellate defender office, for appellant. Natalie Chalmers, assistant district attorney, Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, for appellee.
Before LEBEN, P.J., STANDRIDGE and ARNOLD–BURGER, JJ.
MEMORANDUM OPINION
PER CURIAM.
Phillip Delbert Cheatham appeals the denial of his presentence motion to withdraw his no contest plea contending ineffective assistance of his plea counsel Dennis Hawver. The issue before the district court was limited to the single allegation that Hawver rendered ineffective assistance when he failed to move for dismissal of the case because Cheatham's statutory right to be brought to trial within 180 days had run by the time he entered his plea. See K.S.A. 22–3402(2). Because the record conclusively establishes that Cheatham's speedy trial rights were not violated and that is the only allegation of Hawver's ineffectiveness properly before us, we affirm the denial of his motion to withdraw his plea.
Cheatham next asks us to reverse the district court's denial of the motion he filed to reconsider his motion to withdraw his plea. Because his motion to reconsider was filed more than 10 days after the court's ruling, we find we lack jurisdiction to address any of Cheatham's claims regarding the motion to reconsider.
Finally, based on our Supreme Court's decision in State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2002), we reject Cheatham's claim that his sentence violated his rights under the Sixth and Fourteenth Amendments to the United States Constitution.
Factual and Procedural History
A chronology of the relevant events in this and an intervening case not now before this court helps demonstrate the basis for our decisions.
January 15, 2003: The State charged Cheatham with three drug-related crimes in case number 03 CR 138 (the drug case). He posted a $250 appearance bond and retained Hawver to represent him. It is this case that is now before us.
October 8, 2003: Cheatham was arraigned on the drug case, which triggered his statutory right to be brought to trial within 180 days under K.S.A. 22–3402(2); see State v. Fink, 217 Kan. 671, 538 P.2d 1390 (1975). The case was set for ajury trial on January 12, 2004.
December 18, 2003: The State charged Cheatham in case number 03 CR 2635 (the murder case) with three counts of intentional first-degree murder (later amended to charge capital murder and several other counts), and a warrant issued for his arrest with a bond request of $2.5 million.
January 12, 2004: Cheatham failed to appear in court for his trial on the drug case. As a result, the district court revoked Cheatham's bond on the drug case and issued a warrant for his arrest.
We pause here to note that Cheatham acknowledges his failure to appear in court stopped the speedy trial clock, and the State does not, for purposes of this appeal, object to attributing all 96 days up to this point to it for speedy trial purposes.
April 22, 2005: Cheatham was arrested on the warrants in both cases after extradition from Chicago and appeared before the court. The court set his bond in the drug case at $25,000, and his bond in the murder case at $2.5 million. Cheatham did not thereafter post bond in either case.
July 15, 2005: Cheatham requested a continuance in the drug case, citing a need for time to prepare for the murder case, and signed a corresponding waiver of his speedy trial rights.
October 28, 2005: Cheatham was sentenced to death after a jury convicted him on all charges in the murder case.
May 15, 2006: Pursuant to a plea agreement in the drug case, Cheatham entered a no contest plea to possession of cocaine with intent to sell, and the State dismissed the other two charges.
The district court denied Cheatham's motion to withdraw his plea
May 6, 2008: The court held a hearing on a motion to withdraw plea filed by Cheatham's court-appointed counsel in the drug case, Jason King. After questioning by the court, King confirmed that the motion was limited to the issue of Hawver's failure to file a motion to dismiss for speedy trial violations. Pursuant to the court's order, King filed an addendum to the motion with a timeline to support the speedy trial violation allegation.
October 2, 2008: The district court entered judgment denying Cheatham's motion to withdraw his plea in the drug case. In support, the court found no violation of Cheatham's statutory speedy trial rights because the 180–day deadline for bringing him to trial had not yet run when he signed the July 15, 2005, unconditional waiver of his speedy trial rights.
December 15, 2008: King was allowed to withdraw as Cheatham's attorney. The court then appointed new counsel, Ronald Evans.
June 1, 2009: Evans filed a motion to reconsider the denial of Cheatham's motion to withdraw his plea in the drug case, summarily asking the court to consider and hold an evidentiary hearing on “all aspects” of Hawver's assistance, not just the speedy trial issue.
December 2, 2009: After denying Evan's motion for a continuance and hearing the parties' arguments, the district court denied the motion to reconsider. The court reasoned that the only issue raised and properly decided was the speedy trial issue, and the motion to reconsider did not provide any basis for revisiting that decision.
July 19, 2010: The court finally imposed a standard presumptive sentence of 49 months in prison on the cocaine-possession charge, which it ordered to run concurrent to Cheatham's sentences in the murder case and a case in Illinois. This appeal follows.
With these undisputed facts in mind, we address each of Cheatham's three issues on appeal.
Analysis
The district court did not err in denying Cheatham's motion to withdraw his plea
Anytime before sentence is imposed, for good cause shown and within the discretion of the court, a plea of guilty or nolo contendere may be withdrawn. K.S.A. 22–3210(d). Prior to sentencing in his drug case and pursuant to this statute, Cheatham filed a motion to withdraw his no contest plea to possession of cocaine with intent to sell.
District courts generally consider three factors when determining if a defendant demonstrates good cause to withdraw a plea prior to sentencing: (1) whether the defendant was represented by competent counsel; (2) whether the defendant was misled, coerced, mistreated, or unfairly taken advantage of; and (3) whether the plea was fairly and understandingly made. State v. Anderson, 291 Kan. 849, 855–56, 249 P.3d 425 (2011). All three factors need not apply in a defendant's favor. 291 Kan. at 856. Defendants wishing to show good cause for a presentence withdrawal of plea based on ineffective assistance of counsel must show, at a minimum, “lackluster” advocacy. State v. Aguilar, 290 Kan. 506, 512–13, 231 P.3d 563 (2010). There is little guidance as to what may constitute “lackluster” advocacy.
In support of his motion, Cheatham argued that he was not guilty of the crime to which he pled and that his attorney was ineffective. More specifically, he claimed that his attorney failed to assert Cheatham's constitutional and statutory speedy trial rights before he entered his plea. Had he done so, Cheatham concludes that the charges would have been dismissed, and as a result he would not have been in a position to enter a plea. At the hearing on the motion, Cheatham's counsel (King) advised the court that his ineffective assistance of counsel claim was limited to the speedy trial issue, even though there were other reasons listed in the written motion. The district court ordered counsel to file an addendum with the court outlining the dates that caused the State to exceed 180 days. Counsel filed the addendum. After reviewing the motion and addendum, the district court entered an order denying Cheatham's request to withdraw his plea. The court's memorandum decision presented a comprehensive review of the dates involved and its conclusion that neither Cheatham's constitutional nor his statutory speedy trial rights were violated. We are asked to review that order.
We review the denial of Cheatham's motion to withdraw his plea for an abuse of discretion, which Cheatham bears the burden of establishing. K.S.A. 22–3210(d); see Anderson, 291 Kan. at 855. “But the district court's decision must be based upon a correct understanding of the law to receive the full measure of the abuse of discretion standard”— i.e., to be subject to the highly deferential standard that requires a showing that no reasonable person would agree with the district court's decision. Anderson, 291 Kan. at 855.
We agree that the record establishes there was no speedy trial violation, but for different reasons
On appeal, Cheatham challenges the district court's reliance on his July 15, 2005, waiver of his speedy trial rights as halting his speedy trial rights for eternity. In a nutshell, Cheatham argues that we should reverse and remand to the district court for an evidentiary hearing on his motion to withdraw his plea because he established the existence of factual questions concerning whether his waiver of his speedy trial rights was only for that one hearing or whether his plea counsel might have been ineffective on other grounds.
But we find that we do not have to reach that issue because we agree with the State that this court can affirm the district court's denial of Cheatham's motion for different reasons. See State v. Murray, 285 Kan. 503, 533, 174 P.3d 407 (2008) (recognizing that “if a trial court reaches the right result, its decision will be upheld even if it provided an incorrect reason or engaged in an improper legal analysis”).
Cheatham's statutory speedy trial rights are found in K.S.A. 22–3402, which provides, in pertinent part:
“(1) If any person charged with a crime and held in jail solely by reason thereof shall not be brought to trial within 90 days after such person's arraignment on the charge, such person shall be entitled to be discharged from further liability to be tried for the crime charged, unless the delay shall happen as a result of the application or fault of the defendant, or a continuance shall be ordered by the court under subsection (5).
“(2) If any person charged with a crime and held to answer on an appearance bond shall not be brought to trial within 180 days after arraignment on the charge, such person shall be entitled to be discharged from further liability to be tried for the crime charged, unless the delay shall happen as a result of the application or fault of the defendant, or a continuance shall be ordered by the court under subsection (5).” (Emphasis added.)
“When reviewing whether a right to a speedy trial has been violated, this court has unlimited review.” State v. Blizzard, 43 Kan.App.2d 418, 421, 225 P.3d 773 (2010).
We hold that the record conclusively establishes neither statutory speedy trial deadline was applicable here once Cheatham was extradited back to Kansas and arrested on the outstanding warrant on April 22, 2005. When Cheatham failed to appear in court on January 12, 2004—which everyone agrees stopped the clock for purposes of calculating speedy trial deadlines—the court revoked his appearance bond. As noted above, up to that time, only 96 days had passed since his arraignment. Once the speedy trial clock started back up on April 22, 2005, he never posted the new $25,000 bond set in this case, nor was he ever released on a personal recognizance (OR) bond. Thus, from January 12, 2004, forward, K.S.A. 22–3402(2) was inapplicable because Cheatham was not being held to answer on an appearance bond. See State v. Mathenia, 262 Kan. 890, 900, 942 P.2d 624 (1997); Blizzard, 43 Kan.App.2d at 421–22 (holding K.S.A. 22–3402[2] does not apply unless defendant being held to answer on appearance bond). Nor did K.S.A. 22–3402(1) apply because Cheatham was not being held in jail solely by reason of the drug case. See State v. Hill, 257 Kan. 774, 778, 895 P.2d 1238 (1995) (holding K.S.A. 22–3402[l] applies only when defendant being held in jail solely on charges in case in the case at hand). Thus, the district court did not need to reach the issue of Cheatham's subsequent waiver of statutory speedy trial rights because Cheatham had no applicable statutory speedy trial rights by that time. His attorney could not have been ineffective for failing protect a statutory right that Cheatham himself had forfeited.
Cheatham also alleged below that Hawver was ineffective for not asserting his constitutional speedy trial rights, and the district court properly rejected his claim in a very well-reasoned opinion. However, Cheatham has not briefed the alleged denial of his constitutional speedy trial right on appeal, but limits his argument to the statutory right. Accordingly, he has abandoned his claim that his constitutional right to a speedy trial was denied. See State v. McCaslin, 291 Kan. 697, 709, 245 P.3d 1030 (2011) (holding issues not briefed by appellant are deemed waived and abandoned).
Because the record conclusively establishes that Cheatham's speedy trial rights were not violated and, as indicated below, that is the only allegation of Hawver's ineffectiveness properly before us; we affirm the denial of his motion to withdraw his plea.
We lack jurisdiction over Cheatham's motion to reconsider and all issues related to it
Cheatham filed a motion to reconsider the denial of his motion to withdraw his plea 8 months after the court denied the motion. Cheatham acknowledged that the court had only evaluated his claim regarding counsel's performance in protecting his right to a speedy trial. However, in the motion he asked that “all aspects of previous counsel's assistance be considered ... and wishes an evidentiary hearing be conducted” to show that his plea counsel (Hawver) had not been effective. Subsequently, the district court denied his continuance request and refused to grant an evidentiary hearing on his claims. After hearing arguments of counsel, the district court reasoned that the only issue raised and properly decided was counsel's ineffectiveness as it related to the speedy trial issue, and the motion to reconsider did not provide any basis for revisiting that decision.
On appeal, Cheatham argues that the district court erred in denying both his continuance request and his request for an evidentiary hearing on Hawver's ineffectiveness. But we find that Cheatham's motion to reconsider was not timely and the district court had no jurisdiction to consider it.
Whether jurisdiction exists is a question of law over which this court's scope of review is unlimited. State v. Ellmaker, 289 Kan. 1132, 1147, 221 P.3d 1105 (2009), cert. denied130 S.Ct. 3410 (2010). In State v. Edwards, 290 Kan. 330, 335–36, 226 P.3d 1285 (2010), the Supreme Court noted that a motion to reconsider is generally treated as a motion to alter or amend under K.S.A. 60–259(f), which at the time this motion was filed required motions to be filed no later than 10 days after the entry of judgment. Cheatham's motion was filed 8 months after the order denying his motion to withdraw his plea. Because it was untimely, the district court had no jurisdiction to consider the motion to reconsider. Likewise, this court lacks jurisdiction to consider the issues related to the motion. See State v. McCoin, 278 Kan. 465, 468, 101 P.3d 1204 (2004).
The district court did not err in considering Cheatham's prior convictions for sentencing
In his final issue on appeal, Cheatham argues the district court violated his rights under the Sixth and Fourteenth Amendments to the United States Constitution, as proscribed by Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), because it used his prior convictions to determine his sentence under the sentencing guidelines and those convictions were not included in the complaint or proven to a jury beyond a reasonable doubt. He acknowledges our Supreme Court decided this issue to the contrary in Ivory, 273 Kan. at 46–48, and raises the point only to preserve it for federal review. We are duty bound to follow the position in Ivory, which our Supreme Court continues to refuse to reconsider. See State v. Guder, 293 Kan. 763, 767, 267 P.3d 751 (2012); State v. Merrills, 37 Kan.App.2d 81, 83, 149 P.3d 869,rev. denied 284 Kan. 949 (2007).
Affirmed in part and dismissed in part.