Opinion
No. 107,861.
2013-11-27
STATE of Kansas, Appellee, v. Brian K. PENNINGTON, Appellant.
Appeal from Johnson District Court; James Franklin Davis, Judge. Korey A. Kaul, of Kansas Appellate Defender Office, for appellant, and Brian K. Pennington, appellant pro se. Steven J. Obermeier, senior deputy district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Johnson District Court; James Franklin Davis, Judge.
Korey A. Kaul, of Kansas Appellate Defender Office, for appellant, and Brian K. Pennington, appellant pro se. Steven J. Obermeier, senior deputy district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Before HILL, P.J., STANDRIDGE, J., and LARSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
Brian K. Pennington appeals the district court's denial of his presentence request to withdraw his plea. He contends the court made no meaningful inquiry into his request as it should have. A district court is required to protect a defendant's right to conflict-free counsel. Therefore, the court must make a meaningful inquiry into any claimed conflict between counsel and client that might arise. But here, Pennington made no claim of any conflict with his lawyer, related to withdrawing his plea; he just stated, “I feel I'm giving up rights I shouldn't give up based on the amount of time.” (Emphasis added.) Because this was not a claim of conflict with counsel we hold the district court did not abuse its discretion by making a brief inquiry into this request and not going further. We affirm the conviction and sentence.
Pennington pleads guilty.
Charged with one count of attempted first-degree murder and one count of aggravated burglary, Pennington made a plea bargain with the State. He agreed to plead guilty, and both sides agreed to recommend a 341–month sentence to the court. Pennington pled guilty, but at the sentencing hearing Pennington's attorney told the judge that Pennington was considering withdrawing his plea. The details follow:
7F'THE COURT: Mr. Pennington, is that your decision today [to withdraw your guilty pleas]?
“THE DEFENDANT: Yes, sir.
“THE COURT: Tell me why you want to do this. Speak loudly, too.
“THE DEFENDANT: I feel based on the time that has been given and based on the pressure I've been through during this whole situation, I feel I'm giving up rights that I shouldn't give up based on the amount of time.
“THE COURT: You reached this decision this morning?
“THE DEFENDANT: I spoke to my attorney about it yesterday.
“THE COURT: There was a plea agreement on this case November 17th of this year. From then to now, you just decided you want to withdraw your plea?
“THE DEFENDANT: Yes, sir.
“THE COURT: We went through a colloquy at the time of the entry of plea in this case, and I asked you a number of questions: Whether you have had plenty of time to talk to your attorney. You answered, ‘Yes.’
I asked you whether you were thoroughly satisfied with the way your attorneys represented you. You said, ‘Yes.’
The plea agreement is in writing, you signed it. I asked if that was your signature; you said, ‘Yes.’ You gave the Court every indication at the time of the plea hearing that you approved and agreed with these plea negotiations, and now for the first time the morning of sentencing, you come in and you tell me, Oh, I want to change my plea now. Is that what I'm hearing sir?
“THE DEFENDANT: (No audible response.)
“THE COURT: At this time, I'm going to deny your request to withdraw plea. I don't think there is good cause shown here to withdraw the plea.”
The court then sentenced Pennington. Pennington argues on appeal that the district court abused its discretion by:
• not inquiring into potential conflicts between Pennington and his counsel; and
• not holding a meaningful hearing on Pennington's motion to withdraw his pleas.
The law allows guilty pleas to be withdrawn.
According to K.S.A. 22–3210(d), a defendant may ask to withdraw a guilty plea at any time before sentencing for good cause, and a district court has discretion to grant or deny such a request. In turn, we review the denial of a presentence motion to withdraw a plea for an abuse of the district court's discretion. State v. Hulett, 293 Kan. 312, 318, 263 P.3d 153 (2011). On appeal, the defendant is responsible for proving that the district court abused its discretion when it refused to allow him or her to withdraw the plea. 293 Kan. at 319. Judicial discretion is abused when the action taken is arbitrary or unreasonable. State v. Brown, 46 Kan.App.2d 556, Syl. ¶ 3, 263 P.3d 217 (2011). In such a review on appeal, we do not reweigh evidence or assess witness credibility; instead, we defer to the trial court's findings of fact. State v. Anderson, 291 Kan. 849, 855, 249 P.3d 425 (2011).
Pennington's arguments focus on what the district court did not do.
Pennington contends that the court abused its discretion in denying his motion to withdraw his plea without asking about potential conflicts between Pennington and his counsel when he alleged that his decision to plea was partially as a result of “pressure” and by not providing Pennington with a meaningful hearing on his motion to withdraw his plea. According to Pennington, because the court did not conduct a meaningful hearing, it erred by denying his motion to withdraw his plea. The State argues that because Pennington did not express any dissatisfaction with his attorney, the court had no duty to inquire into a potential conflict; thus, the court did not deny Pennington a meaningful hearing. We hold the State is correct.
A defendant's right to conflict-free counsel is why a district court must make a meaningful inquiry into claimed conflicts.
The Kansas Supreme Court, in State v. Taylor, 266 Kan. 967, 975 P.2d 1196 (1999), repeated the methodology district courts are to use when ruling on a presentence motion to withdraw a plea. First, the court admonished, “It is the task of the district judge to insure that a defendant's Sixth Amendment right to counsel is honored.” 266 Kan. 967, Syl. ¶ 5. Then, the court counseled, “In evaluating a motion to withdraw a plea, the district court should consider whether: (1) the defendant was represented by competent counsel, (2) the defendant was misled, coerced, mistreated or unfairly taken advantage of, and (3) the plea was fairly and understandingly made.” 266 Kan. 967, Syl. ¶ 6. Obviously, these serious considerations require serious inquiry.
In Taylor, the defendant, 1 week after entering a Brady plea, wrote a letter to his court-appointed counsel expressing dissatisfaction with his plea. His attorney did not file a motion to withdraw his plea until the day of sentencing. At the sentencing hearing, Taylor told his lawyer that he had already made contact with other attorneys about representing him and that she should ask for a continuance of the hearing. His counsel did so, but the court denied the motion to continue the hearing and then denied his motion to withdraw his plea and said that Taylor could represent himself if he wanted to. He told the judge he was innocent. While explaining why he should be allowed to withdraw his plea and get a different lawyer, Taylor told the court:
“ ‘I was put in a situation where I see a lawyer standing in front of me that one day saying 1 should win this case, the next day she's got cold feet and doesn't want to go to a trial, she's saying, John, take the plea. So pretty much any person in their right mind can see that this lawyer ... never intended to win this case for me from the get-go. I can see it, and my whole family and everybody around me that has anything to do with this case could see that this lawyer right here was never intending to win this case for me.’ “ 266 Kan. at 972.
The district judge proceeded to sentence Taylor but departed from the plea agreement and imposed consecutive sentences instead of concurrent sentences because of Taylor's “lack of remorse.”
The Supreme Court vacated Taylor's sentence and remanded the case for a meaningful hearing because the problem at that point was “that the district court never allowed Taylor an opportunity to explain his perception of the alleged conflict [with his counsel] before denying the request for new counsel.” 266 Kan. at 975. In summing up, the Taylor court stated, “The district judge failed to make any inquiry as to the problems between Taylor and Martin [court-appointed counsel]. Were they imagined or real? The record contains no inquiry from the bench regarding the adequacy of Taylor's representation.” 266 Kan. at 975.
When we apply the law in Taylor to the facts of this case we note a significant difference between Taylor's allegations and Pennington's allegations. Pennington makes absolutely no complaint about his attorney. His only concerns were “pressure” and the “amount of time,” both vague terms at best. Keeping in mind that the court's duty to inquire is to insure right to counsel, we cannot see how these statements create any concern about his representation.
Pennington argues a second case, State v. Brooks, No. 99,226, 2009 WL 500951, at *1 (Kan.App.2009) (unpublished decision), should persuade us to vacate his sentence and remand for a hearing on the motion to withdraw his plea. In Brooks, this court held that allegations about a conflict of interest with counsel, an irreconcilable conflict with counsel, or a breakdown in communication with counsel made by a defendant charged with a felony are sufficient to trigger the district court's duty to ask about potential conflicts. 2009 WL 500951, at *1.
Indeed, in Brooks, at the beginning of the defendant's sentencing hearing, counsel moved to withdraw from representing the defendant because of an irreconcilable breakdown in communication, and the defendant requested to withdraw his plea. Brooks explained that he was misinformed about the terms of the plea and that he believed his attorney did not support him because an e-mail she'd written to the prosecutor asking that Brooks be released on bond to “get out on the streets for a chance to hang himself made him think that his lawyer was not on his team. 2009 WL 500951, at *1. The district court denied the motion to withdraw the plea and defense counsel's motion to withdraw and proceeded to sentencing.
We note that on appeal this court vacated Brooks' sentence and remanded for a meaningful hearing on his motion to withdraw his plea because Brooks made sufficient allegations to demonstrate a possible conflict of interest with his counsel. Based on the ruling in Taylor, this court held that the district court had abused its discretion by not inquiring about the potential conflict. 2009 WL 500951, at *5.
Our holding in Brooks does not support Pennington's position. Unlike Brooks, Pennington has not made a single allegation at sentencing regarding his counsel.
The primary focus of a hearing on a motion to withdraw a guilty plea is whether the defendant has good cause to withdraw the plea. Good cause exists if the defendant can establish that the plea was made unknowingly; the defendant was represented by incompetent counsel; or the defendant was misled, taken advantage of, or coerced. Anderson, 291 Kan. 849, Syl. ¶ 2. The defendant bears the burden of establishing good cause to withdraw the plea at the hearing, and the hearing is considered meaningful so long as the defendant has a chance to address the court about his or her concerns. State v. Davis, 33 Kan.App.2d 134, 139, 98 P.3d 656 (2004).
Davis is instructive. In Davis, the defendant alleged at sentencing that his plea-hearing counsel threatened his family in order to coerce him to take the plea. The court asked him, “[W]hy didn't you tell the Court [your counsel] was threatening you?” 33 Kan.App.2d at 137. The defendant replied, “I have no comment, Your Honor.” 33 Kan.App.2d at 137. The district court denied his motions for a different counsel and to withdraw his plea. On appeal, Davis argued that the district court abused its discretion by not providing him with a “meaningful hearing” on his motion to withdraw his plea, which, in his opinion, would have been more intensive, separate from the sentencing hearing, and with conflict-free counsel.
But this court affirmed the district court, noting that the court had inquired into the nature of Davis' conflict with his counsel and why he wanted to withdraw his plea, even if only briefly. Had Davis provided more information, the outcome on appeal might have been different. Specifically, this court noted:
“If Davis had provided a satisfactory response to the district court's inquiry, perhaps it would have become appropriate for the district court to suspend the [sentencing] hearing, appoint substitute counsel for Davis, and schedule a separate hearing on [defendant's] motion to withdraw his plea....
“The district court's inquiry into Davis' conflict with his counsel and his reasons to withdraw his plea was adequate. The district court asked Davis several questions.... Davis chose not to provide any specific information or explanation to the court.” 33 Kan.App.2d at 140.
Likewise, Pennington did not allege any good cause for withdrawing his plea. See Anderson, 291 Kan. 849, Syl. ¶ 2. Nonetheless, the same judge that presided over the entry of his pleas reminded Pennington that at the entry of the plea, Pennington had acknowledged the lack of existence of all three relevant factors. The judge noted that at his entry of the plea, Pennington had stated that he had plenty of time to speak with his attorneys, was thoroughly satisfied with his attorneys' representation, and agreed with and approved of the plea negotiations.
Like the defendant in Davis, who opted to not comment when asked why he did not complain about his counsel prior to sentencing, Pennington's inaudible response to the judge's question—about why he waited until sentencing to seek to withdraw his plea—was insufficient to warrant further inquiry by the court. Also, as in Davis, the judge here satisfied the meaningful hearing requirement for a motion to withdraw a plea by simply inquiring into Pennington's motivation; the judge did not abuse his discretion by refusing to order another hearing on Pennington's motion to withdraw his plea.
Pennington had the burden to show that good cause existed to withdraw his plea, and he failed to carry this burden. Even if the hearing was cursory, the court gave Pennington the opportunity to make his argument. He gave insufficient reasons to go further. We see no abuse of discretion in this case.
Finally, Pennington argues in his pro se brief that the district court erred by denying his motion to suppress evidence that he contends was illegally obtained by officers who lacked jurisdiction to search his Missouri home. We have no jurisdiction to decide such a question. A defendant who pleads guilty may not appeal his or her conviction by arguing the court wrongfully decided a presentencing motion. See State v. Edgar, 281 Kan. 30, 39, 127 P.3d 986 (2006).
Affirmed.