Opinion
No. 106,774.
2012-12-14
STATE of Kansas, Appellee, v. Mitchell RAND, Appellant.
Appeal from Johnson District Court; Thomas H. Bornholdt, Judge. Joanna Labastida, of Kansas Appellate Defender Office, for appellant. Thomas DeBacco, legal intern, Emilie Burdette, and Steven J. Obermeier, assistant district attorneys, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Johnson District Court; Thomas H. Bornholdt, Judge.
Joanna Labastida, of Kansas Appellate Defender Office, for appellant. Thomas DeBacco, legal intern, Emilie Burdette, and Steven J. Obermeier, assistant district attorneys, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Before HILL, P.J., BUSER, J., and KNUDSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
In keeping with a plea agreement, Mitchell Rand pled guilty to one count of possession with intent to sell the controlled substance psilocin. Prior to sentencing, Rand orally moved to withdraw his plea. The district court overruled Rand's motion. On appeal, Rand raises two issues. First, he contends the district court abused its discretion by failing to inquire into a potential conflict of interest between him and his attorney. Second, Rand claims error because the district court denied his motion to withdraw his guilty plea.
Factual and Procedural Background
On January 21, 2011, Rand pled guilty to one count of possession with intent to sell psilocin. In return for this plea, the State dismissed possession of marijuana and no drug tax stamp charges and agreed to make favorable sentencing recommendations. After confirming that no one threatened, coerced, or promised Rand any benefit in return for his plea and that he understood his rights, the pending charges, and the consequences of his plea, the district court accepted Rand's guilty plea as “voluntary and informed.”
Rand's sentencing was scheduled for April 18, 2011. At the beginning of the hearing, Rand's counsel, Robb Edmonds, informed the district court that he believed Rand wished to pursue a motion to withdraw his plea. Edmonds explained, “My client, Judge, has expressed to me concerns about the plea he entered. And I think, just to be really blunt, I think to [ sic ] feel like he was pressured into making that plea, didn't really understand it. And by ‘pressured into it,’ I mean by me.” Edmonds also indicated that if he was “part of [Rand's] basis for wanting to withdraw [his plea], [he] would need to withdraw” as his counsel.
The district court asked Rand why he wanted to withdraw his plea. Rand replied that while he did not know if there was “ ‘a technically legal reason’ “ why the court could not proceed with sentencing, he did not feel “ ‘comfortable with doing so’ “ because “ ‘certain aspects' “ of his case were not “ ‘clearly communicated between the Court and [himself].’ “ Rand explained that after his arrest, he entered into a confidential informant agreement with the State and although he “did everything that [he] was supposed to, and much more,' “ the State misled him, lied to him, and violated his “ ‘personal rights' “ by failing to follow through with its “ ‘portion of the agreement’ “ by dismissing the charges against him. Accordingly, Rand alleged the charges were illegitimate because he was “ ‘a victim of the [State's] abuse of power.’ “ Rand also claimed that at the time of his plea, he was not fully informed about his case because Edmonds told him that his trial “ ‘would be about, did [he] or did [he] not possess the illegal substance,’ “ which led Rand to believe “ ‘the trial would be detrimental to the case.’ “ Moreover, Rand explained that he only had 15 minutes to consider the plea offer, and in his opinion, the district judge was “ ‘incapable of making a fair judgment’ “ regarding the entry of his plea because he was “ ‘even less informed about [his] case and the [il]legitimacy of the charges.’ “ Accordingly, Rand requested permission to withdraw his plea so he could “ ‘reconsider [his] options and rights for a fair trial.’ “
The district court asked Edmonds if he knew anything about Rand's confidential informant agreement. Edmonds replied in the affirmative. According to Edmonds, the State had provided him with a copy of the written agreement and it did not comport with Rand's understanding of “what was going to happen relative to cooperation.” Edmonds then summarized the contents of the written agreement.
The district court overruled Rand's oral request to withdraw plea. Rand was then sentenced pursuant to the plea agreement to 18 months' probation, with an underlying prison term of 15 months. Rand filed a timely appeal.
Failure to Inquire About Potential Attorney/Client Conflict of Interest
Rand contends the district court violated his Sixth Amendment right to counsel by failing to inquire into a potential conflict of interest between him and Edmonds. The State counters that there was no error because the district court had no reason to believe such a conflict existed due to Rand's failure to personally raise this allegation at the plea withdrawal hearing.
Appellate courts review a district court's decision regarding disqualification of counsel for a conflict of interest for an abuse of discretion. State v. Hulett, 293 Kan. 312, 318, 263 P.3d 153 (2011). Judicial action constitutes an abuse of discretion
“if [the] judicial action (1) is arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted by the trial court; (2) is based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion; or (3) is based on an error of fact, i.e., if substantial competent evidence does not support a factual finding on which a prerequisite conclusion of law or the exercise of discretion is based.” State v. Ward, 292 Kan. 541, Syl. ¶ 3, 256 P.3d 801 (2011), cert. denied132 S.Ct. 1594 (2012).
The party asserting the district court abused its discretion bears the burden of showing such abuse. Hulett, 293 Kan. at 319.
When the State is represented at a plea withdrawal hearing, the defendant has a constitutional right under the Sixth Amendment to the United States Constitution to be represented by “conflict-free” counsel unless the defendant waives the right to counsel. Hulett, 293 Kan. at 319. Accordingly, “ ‘[w]here a [district] court becomes aware of a possible conflict of interest between an attorney and a defendant charged with a felony, the court has a duty to inquire further.’ [Citations omitted.]” State v. Vann, 280 Kan. 782, 789, 127 P.3d 307 (2006). A district court abuses its discretion by failing to make such an inquiry, as “ ‘[i]t is the task of the district judge to insure that a defendant's Sixth Amendment right to counsel is honored. [Citations omitted.]’ “ 280 Kan. at 789. District courts are not required, however, to grant a defendant's request for new trial counsel unless the defendant shows “ ‘justifiable dissatisfaction’ “ with his or her appointed counsel. State v. Bogguess, 293 Kan. 743, 753, 268 P.3d 481 (2012).
Importantly, Rand concedes he “did not specifically complain about his attorney's performance, or about feeling pressured into the plea” at the plea withdrawal hearing. Still, Rand asserts the district court had an independent duty to make an inquiry because Edmonds' remarks at the hearing were sufficient to alert the court to a possible conflict, i.e., that Rand may have felt pressured by Edmunds to plead guilty. Specifically, Rand highlights the following statements by Edmonds to establish Judge Bornholdt's duty to inquire:
“My client, Judge, has expressed to me concerns about the plea he entered. And I think, just to be really blunt, I think to [ sic ] feel like he was pressured into making that plea, didn't really understand it. And by ‘pressured into it,’ I mean by me.
“So in visiting with him this morning, I'm getting the sense that he wants to pursue a motion to withdraw his plea. I've explained very briefly this morning, that to do ... that, especially if I was part of his basis for wanting to withdraw it, I would need to withdraw. He could pursue that, and call me as a witness and, you know, the Court can make inquiry whether it was a voluntary plea.”
In support of his argument, Rand relies on State v. Taylor, 266 Kan. 967, 975 P.2d 1196 (1999). In Taylor, the defendant moved to withdraw his plea prior to sentencing. At the sentencing hearing, Taylor's attorney, Susan Martin, also requested a continuance, at Taylor's insistence, so Taylor could secure the services of a new attorney. Without inquiring as to the reason for Taylor's desire for new counsel, the district court refused to grant a continuance and denied Taylor's motion to withdraw his plea. Taylor then expressed his dissatisfaction with Martin because Martin had been unwilling or unprepared to try his case. Because defense counsel was unprepared, Taylor claimed he was pressured into accepting the plea bargain. Martin remained silent while Taylor aired his grievances.
On appeal, Taylor contended that the district court deprived him of his Sixth Amendment right to counsel by failing to inquire into his dispute with Martin. Our Supreme Court held: “Where a trial court becomes aware of a possible conflict of interest between an attorney and a defendant charged with a felony, the court has a duty to inquire further,” as “[i]t is the task of the district judge to insure that a defendant's Sixth Amendment right to counsel is honored.” 266 Kan. 967, Syl. ¶ 3, 5. The court explained:
“The problem here is that the district court never allowed Taylor an opportunity to explain his perception of the alleged conflict before denying the request for new counsel.
“The district judge failed to make any inquiry as to the problems between Taylor and Martin, Were they imagined or real? The record contains no inquiry from the bench regarding the adequacy of Taylor's representation.” 266 Kan. at 975.
Accordingly, our Supreme Court found the district court abused its discretion, and it reversed and remanded for a hearing on Taylor's motion to withdraw plea. See 266 Kan. at 974–77, 979–80.
Conversely, the State insists that our Supreme Court's decision in State v. Williams, 290 Kan. 1050, 236 P.3d 512 (2010), controls because “Rand did not [personally] articulate any concerns about a conflict with his counsel, and there was no motion or request for new counsel.” In Williams, prior to sentencing, the defendant moved to withdraw her no contest plea to felony murder because she did not “ ‘ “believe that taking the plea [was] the best for [her].’ “ “ 290 Kan. at 1051. At the hearing, Williams' counsel encouraged the district court to hear directly from Williams and informed the court:
“ ‘I would also put into the record a previous letter that she wrote to me [in] which she states, [”]after a lengthy discussion with my family members, it would appear that this was not done with my best interest in mind, rather as a quick resolution for you[”]—you referring to me, Your Honor—[”]and the State of Kansas. Therefore, 1 would like to withdraw my plea agreement.[”] That was previous to the letter that I've quoted in the motion to withdraw.’ “ 290 Kan. at 1051–52.
Williams then addressed the court, and instead of complaining about her attorney's representation, Williams expressed concerns about the nature of her plea. The district court ultimately denied Williams' request to withdraw her plea without investigating whether a conflict of interest existed between Williams and her counsel and without inquiring of Williams' counsel, “who did not step forward with any argument.” 290 Kan. at 1052.
On appeal, Williams alleged the district court abused its discretion by failing to inquire into a potential conflict of interest. Our Supreme Court held that the district court did not abuse its discretion by not “address[ing] a nonexistent, possible conflict of interest between Williams and her attorney.” 290 Kan. at 1056. The court explained that although the district court heard directly from Williams at the plea withdrawal hearing, “[n]othing in Williams' discussion with the judge indicated that she was concerned with the representation provided by her attorney beyond the fact that she had a misunderstanding about what she had pled to ... that [was] clarified to her satisfaction.” 290 Kan. at 1055.
In the present case, Rand counters that “ Williams was wrongly decided.” But our court is duty bound to follow precedent from the Kansas Supreme Court absent some indication that the court is departing from its previous position. State v. Ottinger, 46 Kan.App.2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. (May 4, 2012). There is no evidence to suggest our Supreme Court is considering a departure from Williams. In fact, the Supreme Court recently affirmed Williams in Hulett, 293 Kan. at 320–23.
In Hulett, the defendant filed a motion to withdraw his plea prior to sentencing. At the plea withdrawal hearing, Charles Lamb, Hulett's attorney, encouraged the district court to hear directly from Hulett because he did not “ ‘know the reasons' “ for Hulett's request. 293 Kan. at 316. Hulett then explained that he did not understand the meaning of “ ‘felony murder’ “ when he entered his plea, there was no factual basis to support his plea, and he had maintained his innocence throughout the proceedings by telling Lamb he did not want to enter a plea. 293 Kan. at 316–17. The district court overruled the motion.
Hulett appealed, claiming the district court denied his Sixth Amendment right to counsel because the court had an independent duty to inquire as to a potential conflict of interest. According to Hulett, his pretrial motion for substitute counsel, his “expression of dissatisfaction with Lamb at his plea hearing” Lamb's “ ‘bare bones' motion to withdraw,” and Lamb's failure to advocate on his behalf at the plea withdrawal hearing “put the district judge on notice to inquire about a conflict, despite his failure to mention it.” 293 Kan. at 317–18.
Our Supreme Court, however, distinguished Hulett's case from Taylor because “the defendant in Taylor brought the allegation of a counsel's conflict to the attention of the court at the hearing on the motion to withdraw plea,” while Hulett failed to “explicitly” do so. 293 Kan. at 320. And the court disagreed with Hulett's assertion that Lamb's incompetence was “implicit in the things he did say.” 293 Kan. at 320. The court further found that Hulett's situation was actually analogous to Williams. Hulett, 293 Kan. at 320–21. In fact, after reviewing Williams, the court concluded:
“As in Williams, we hold there is no error here in the district court's ‘failure to address a nonexistent, possible conflict of interest’ between Hulett and Lamb at the time of the hearing on the motion to withdraw plea. The district judge heard directly from Hulett at the plea withdrawal hearing, and Hulett's concerns related to the nature of the plea he had entered, not defense counsel's performance. Hulett did not reassert any problem he may previously have had with Lamb. There was no reason for the district judge to ‘become [ ] aware of a possible conflict of interest’ at that point.” Hulett, 293 Kan. at 321–22 (citing Taylor, 266 Kan. 967, Syl. ¶ 3).
Rand's claim that Williams was incorrectly decided is without merit. Alternatively, Rand attempts to distinguish Williams because the defendant in Williams merely raised a “vague notion of dissatisfaction with [her] attorney,” while Edmonds' suggestion that Rand thought he was pressured into a guilty plea “amounts to a far more specific reason to require inquiry from the district court.”
We are not persuaded. Hulett and Williams both suggest that an articulated statement of attorney dissatisfaction is necessary to trigger the district court's duty to inquire into a potential conflict. Hulett, 293 Kan. at 320–22;Williams, 290 Kan. at 1055–56. Moreover, while an attorney's statements may require a district court to inquire into a potential conflict, Edmonds' remarks were clearly insufficient because they were mere speculation.
For example, Edmonds did not ask to withdraw as Rand's counsel; Edmonds merely indicated that he would need to withdraw “ if [he] was part of [Rand's] basis for wanting to withdraw [his plea.]” (Emphasis added.) Accordingly, it was Rand's burden to articulate whether Edmonds' conjecture was valid or misplaced. Yet, when the district court inquired of Rand regarding his reason to seek withdrawal of his plea, Rand did not complain about Edmonds' legal representation. On the contrary, after being given an opportunity to tell the district court about a conflict with defense counsel-as discussed more fully in the next section-Rand principally articulated his concerns about the legitimacy of the charges because of the State's alleged violation of the informant cooperation agreement. As a result, the district court had no reason to suspect a potential conflict of interest, and there was “no error in the district judge's failure to address an alleged conflict that it had no reason to believe existed.” See Hulett, 293 Kan. at 323;Williams, 290 Kan. at 1056.
Hulett and Williams are on point and dispositive. We conclude the district court did not abuse its discretion by failing to inquire into a potential conflict of interest between Rand and Edmonds because there was no articulated basis to believe any conflict existed.
Denial of Motion to Withdraw Guilty Plea
For his second issue on appeal, Rand contends the district court abused its discretion when it denied his motion because the evidence presented at the hearing established good cause to withdraw his plea.
Prior to sentencing, a district court may, in the exercise of sound judicial discretion, withdraw a defendant's plea of guilty or nolo contendere “for good cause shown.” K.S.A.2011 Supp. 22–3210(d)(l). When determining whether the defendant has shown good cause, Kansas courts generally consider the following three factors commonly referred to as the “ ‘ Edgar factors' “—after State v. Edgar, 281 Kan. 30, 36, 127 P.3d 986 (2006): “(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. [Citations omitted.]” State v. Aguilar, 290 Kan. 506, 511, 231 P.3d 563 (2010).
These three Edgar “ ‘factors need not apply in a defendant's favor in every case, and other factors may be duly considered in the district judge's discretionary decision on the existence or nonexistence of good cause.’ [Citation omitted.]” State v. Macias–Medina, 293 Kan. 832, 837, 268 P.3d 1201 (2012). Moreover, while these factors are “viable benchmarks for judicial discretion,” district courts should not mechanically apply them or rely upon them to the exclusion of other factors. Aguilar, 290 Kan. at 512. Appellate courts will not disturb a ruling on a presentencing motion to withdraw plea unless the defendant sufficiently demonstrates that the district court abused its sound discretion. Macias–Medina, 293 Kan. at 836.
Rand argues that he established good cause because he “fulfilled at least two of the three Edgar factors,” i.e., that he was misled, mistreated, and unfairly taken advantage of by police, leaving him no other choice but to plead guilty, and his plea was not fairly and knowingly made. On the other hand, the State argues that the district judge did not abuse his discretion because “Rand was represented by competent counsel, [his] plea was fairly and understandingly made, and Rand was not misled, coerced, mistreated or unfairly taken advantage of” by police because Rand and Edmonds were both aware of the terms of the confidential informant agreement.
With regard to the second Edgar factor, Rand alleges that he was misled, mistreated, and unfairly taken advantage of by police. In particular, he complains that while no one “forced him to enter the plea,” the State failed to comply with the terms of the confidential informant agreement, leaving him with no choice but to plead guilty. A copy of the agreement was not included in the record on appeal.
Shortly after his arrest, Rand agreed to become a confidential informant for the Olathe Police Department's narcotics unit in exchange for “ ‘consideration’ “ from the State regarding the charges against him. According to a police affidavit, Rand admitted to the police that he had “a half pound of mushrooms ... and a little bit of marijuana” at his house. Rand explained that Chase Clayton was his mushroom supplier, and he still owed Clayton $500 for the mushrooms currently in his possession.
Rand agreed to help the police “make a successful case” against Clayton. In order to facilitate the agreement, Rand was provided $500, the amount Rand owed Clayton, so Rand could “get fronted another quantity of mushrooms.” When Rand gave Clayton the $500, however, Clayton informed him that he “did not have any more mushrooms.” Instead, Clayton provided Rand with a small quantity of marijuana.
At the plea withdrawal hearing, Edmonds summarized Rand's cooperation agreement as follows:
“ ‘For a successful case against Chase Clayton, in which Chase is found to be in possession of at least a half pound of—‘marijuana’—of mushrooms, or the equivalent drug, Mr. Rand will get consideration for the specific charges, possession of a hallucinogenic drug with intent to sell, possession of marijuana, possession of drug paraphernalia, using a telephone to run a drug transaction, [and] no tax stamp.' “ (Emphasis added.)
Edmonds explained that while the State did “make a case” against Clayton for marijuana possession, the case did not involve a quantity considered equivalent to “ ‘at least a half pound’ “ of “psychedelic mushrooms.” Edmonds also indicated that “the thrust of the problem” was that the agreement simply stated that Rand would receive “consideration” in exchange for his cooperation. Judge Bornholdt then asked, “What does that mean?” Edmonds responded, “Good question.”
Under the circumstances, Rand failed to show that the State breached the agreement or coerced, mislead, mistreated, or unfairly took advantage of Rand with regard to his plea. First, despite Rand's claim that he “ ‘did everything that [he] was supposed to, and much more,’ “ the evidence showed that Rand did not comply with the terms of the agreement because the State was not able to make a successful case against Clayton due to Rand's inability to obtain a 1/2 pound of the specified drugs.
Second, assuming Rand had facilitated the successful prosecution of Clayton, he was to receive consideration from the State. Whatever the term “consideration” meant, it certainly was not synonymous with dismissal of all the charges. Moreover, even though Rand failed to comply with his part of the bargain, it appears he still received consideration because the State only charged Rand with possession with intent to sell psilocin, no drug tax stamp, and possession of marijuana. The other drug charges mentioned in the agreement were not filed against Rand.
Third, assuming the State did breach the cooperation agreement, Rand could have demanded a trial. And on appeal, Rand admits that “no one had forced him to enter the plea.”
Turning to the third Edgar factor, Rand asserts his plea was not fairly and understandingly made because “he required more time to consider his rights and options,” as “ ‘certain aspects' “ of his case were not “ ‘clearly communicated between the Court and [himself].’ “ To the contrary, our review of the record shows that Rand freely, knowingly, and voluntarily pled guilty with a full understanding of the consequences. At the plea hearing, the district court verified that Rand understood his rights, the charges against him, and the consequences of his plea. Furthermore, Rand told the district court that he read the plea agreement and understood its terms, and he never indicated that he needed more time to fully consider his options. Rand also confirmed that the factual basis the State provided was accurate.
Finally, at the plea hearing, Rand never expressed any concerns regarding the cooperation agreement. In fact, he stated that he was not forced to enter into the plea agreement and that no other promises had been made to him other than as stated in the plea agreement.
In conclusion, Rand has failed to show that he unknowingly or involuntarily entered his plea. Accordingly, the district court did not abuse its discretion when it determined that Rand had not shown good cause to withdraw his plea and, as a result, denied the motion.
Affirmed.