Opinion
No. 107,691.
2013-11-4
Jonathan Edward TREECE, Appellant, v. STATE of Kansas, Appellee.
Appeal from Johnson District Court; James Franklin Davis, Judge. Janine Cox, of Kansas Appellant Defender Office, for appellant. Steven J. Obermeier, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Johnson District Court; James Franklin Davis, Judge.
Janine Cox, of Kansas Appellant Defender Office, for appellant. Steven J. Obermeier, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellee.
Before MALONE, C.J., PIERRON, J., and JAMES L. BURGESS, District Judge Retired, assigned.
MEMORANDUM OPINION
PER CURIAM.
Jonathan Edward Treece appeals the district court's decision denying his K.S.A. 60–1507 motion. Treece filed the motion arguing his trial counsel was ineffective for failing to properly advise and represent him when Treece withdrew a motion to withdraw his guilty plea prior to sentencing. Treece claims that his attorney advised him a jury would be informed that he had previously pled guilty if he withdrew his guilty plea and went to trial. However, the district court found Treece's attorney's testimony credible that he did not tell Treece this, and this court cannot determine issues of credibility. Treece also argues that his attorney failed to make a reasonable investigation in order to advise him whether to withdraw the motion. Nevertheless, considering the standard under which a court reviews an ineffective assistance of counsel claim, Treece has failed to show that his counsel's actions were deficient. We affirm.
FACTS
In May 2008, Treece was charged with one count of aggravated robbery and one count of aggravated battery. The district court appointed an attorney, Angela Keck, to represent Treece. In August 2008, the complaint was amended to one count of aggravated robbery and one count of attempted first-degree murder.
On September 25, 2008, Treece appeared with Keck and waived his right to a preliminary hearing, Treece later entered into a plea agreement where he agreed to plead guilty to the attempted first-degree murder charge and the State agreed to dismiss the aggravated robbery charge. On September 30, 2008, Treece pled guilty to attempted first-degree murder, which the district court accepted. The district court dismissed the aggravated robbery charge.
On November 21, 2008, Keck filed a motion to withdraw as counsel based on a conflict of interest she had with Treece. Keck alleged that Treece wished to withdraw his plea based in part on ineffective assistance of counsel. The case was set for a sentencing hearing on that date, but the district court instead considered defense counsel's motion to withdraw. Treece also informed the court that he wished to withdraw his guilty plea. The district court granted Keck's motion to withdraw as Treece's attorney and informed Treece that the court would appoint him new counsel. The district court appointed Adrian Gilby to represent Treece.
On December 17, 2008, Treece filed a pro se motion to withdraw his guilty plea. In the motion, Treece argued that he should be allowed to withdraw his plea because the State violated 18 U.S.C. § 201(c)(2) (2006). On January 6, 2009, Gilby filed a request for transcripts of the hearing at which Treece waived his preliminary hearing and the plea hearing.
The district court held a hearing on April 22, 2009, at which Treece withdrew his motion to withdraw his guilty plea. No transcript of the hearing could be found. The district court then sentenced Treece to 195 months' imprisonment.
Treece did not take a direct appeal, but on November 19, 2009, he wrote a letter to the district court clerk requesting the forms that would allow him to obtain counsel for appeal and would allow him to fire his court-appointed counsel Gilby.
On February 5, 2010, Treece filed a K.S.A. 60–1507 motion, arguing that his counsel had provided ineffective assistance in advising him regarding his motion to withdraw his guilty plea. Treece also argued his counsel was ineffective for failing to file a notice of appeal on his behalf. Treece filed a memorandum of law in support of his motion. In the memorandum, Treece alleged that Gilby advised him that if he went to trial, the jury would be informed that Treece had previously pled guilty to the charge, which would make it hard to convince the jury that he was actually innocent. According to Treece, he reentered his guilty plea based on this advice from Gilby. Treece alleged that if Gilby had informed him that his prior withdrawn guilty plea would be inadmissible at trial, he would not have pled guilty and would have insisted on going to trial. Treece also argued that Gilby was ineffective because he failed to interview Treece about the facts of the case, and he never informed Treece of the evidence against him or any possible defenses to the charges. Finally, Treece argued Gilby was ineffective for failing to submit a notice of appeal.
The district court appointed new counsel, Curtis Sample, to represent Treece. At a prehearing conference on October 28, 2011, Treece waived his attorney-client privilege with Gilby. On November 15, 2011, the district court held a hearing on Treece's motion, and Treece testified on his own behalf. Treece testified that once Gilby was appointed, he met with Treece twice in jail and once right before sentencing. At the first meeting, Treece stated that Gilby did not know what the case was about because he had not gotten the proper documents from Treece's prior counsel. At the second meeting, Treece stated Gilby told him he should not withdraw his plea, even though Treece told Gilby he felt strongly about still wanting to withdraw the plea.
The State called Gilby to testify. Gilby testified that he was licensed as an attorney in Kansas in 1997, at which time he began working for the Johnson County District Attorney's office. Gilby worked there until 2005, when he began a criminal defense private practice. Gilby's specialty was DUI, but he also handled other types of criminal cases. Gilby testified that he was appointed to Treece's case because Treece wanted to withdraw his guilty plea. Gilby obtained Treece's file from his previous attorney, and either Gilby or someone from his office met with Treece six times. Gilby prepared a request for transcripts and obtained transcripts of Treece's waiver of preliminary hearing and his plea hearing. Gilby researched the issue based on Title 18 of the United States Code that Treece had raised in his motion, but Gilby determined and advised Treece that there was no merit to the issue.
Gilby informed Treece that it would be his burden at the withdrawal hearing to show that there was some coercion or duress. Gilby and Treece went through the transcript from the plea hearing and noticed that there were numerous instances where the district judge at the plea hearing had specifically asked Treece if he was doing what he wanted to do. Based on that, Gilby explained their burden would be somewhat difficult. Treece stated that he understood what was going on, and at that time, Treece decided he wanted to proceed with sentencing at the next hearing date. Gilby also discussed Treece's claim that he was coerced by a promise on which the State did not follow through. Gilby explained to Treece that the State had dismissed the charge that it stated it would dismiss. When asked what legal advice he gave Treece regarding whether he should proceed with his motion to withdraw the plea, Gilby testified:
“Actually, what I told him was that I believed it was his decision. I said, I don't believe that there is anything that I can find in the record other than his opportunity that he would have here if he testified that he was coerced or threatened or under duress that would substantiate a motion to withdraw. As to his decision to withdraw the plea, again, he did ask me if he thought—I thought it was a good idea that he should do so. My response to that was ... that if the plea was set aside, that the parties would be put back in a position prior to the date the plea was entered and that the charges that had been dismissed as a result of the plea would be reinstated, and the parties would then go forward.”
Gilby testified that he never told Treece that if he withdrew his plea, the fact that he previously plead guilty could be used against him. Gilby testified:
“In fact, ironically that's what was so strange when I first was provided a copy of the hearing—motion that we're here for today. The discussions that Mr. Treece and I had focused on exactly the opposite thing. The idea that if the plea was set aside, that the parties would be put on the ground that they existed on before he entered the plea. That his plea would be erased, and that it would not be held against him, but that the charges that were dismissed as a result of the plea would also be reinstated, and he would have to be tried on those. So it was the—again, it's ironic, because it's the exact opposite of what Mr. Treece is saying is what we talked about.”
Gilby testified that he did not have any difficulty communicating with Treece and he answered all of Treece's questions. Gilby stated they did not discuss trial strategy because that would only come into play if the motion was granted. If it was, and the case was placed back on a trial docket, Gilby stated they would discuss the issues of guilt, innocence, and defenses that could be raised. Although the transcript of the sentencing hearing at which Treece withdrew his motion to set aside his plea could not be recreated, Gilby testified that he told the district court judge that Treece wished to withdraw that motion and that he believed the district court judge also spoke to Treece about whether that was something he wanted to do. Finally, Gilby testified that Treece told him he did not want to appeal his case.
Treece and Gilby were the only witnesses called to testify, and no other evidence was presented. The district court heard final arguments from the parties and then announced its decision. The district court judge initially noted that he had presided over the pretrial proceedings and the plea hearing in Treece's case. The district court judge stated that he remembered no hesitation or any indication from Treece during the plea hearing that entering the plea was not what he wanted to do.
Moving to the ineffective assistance of counsel analysis, the district court judge stated that he found credible Gilby's testimony that he did not tell Treece that his previous plea of guilty could be used against him if Treece went to trial. The district court judge also stated that looking back at the case, he would not have granted Treece's motion to withdraw his plea anyway. Although no transcript could be found of the hearing during which Treece withdrew his motion to withdraw his plea, the district court judge stated that he believed he would have inquired whether Treece was making an informed and voluntary decision to withdraw the motion before he would have allowed the motion to be withdrawn. The district court judge stated:
“I've considered all the arguments presented by Mr. Sample here in this case, and I'm remaining of the opinion that there's—there was no miscarriage of justice in this case. You did receive good representation from Mr. Gilby, and this case was fairly presented to the Court. The plea was entered and the sentence was given as required by Kansas law.
“So it is my opinion here that your [motion] under [K.S.A.] 60–1507 should be and is hereby denied.”
The district court filed a journal entry denying Treece's motion, and Treece timely filed a notice of appeal.
ANALYSIS
Treece argues that the district court erred in denying his K.S.A. 60–1507 motion. When the district court has held a full evidentiary hearing on a K.S.A. 60–1507 motion, the appellate court reviews the district court's findings of fact to determine whether they are supported by substantial competent evidence and are sufficient to support the court's conclusions of law. Appellate review of the district court's ultimate conclusions of law is de novo. Bellamy v. State, 285 Kan. 346, 354–55, 172 P.3d 10 (2007).
Treece specifically argues that the district court erred in concluding that Treece had received effective assistance of counsel. A claim alleging ineffective assistance of counsel presents mixed questions of fact and law. Thompson v. State, 293 Kan. 704, 715, 270 P.3d 1089 (2011). The appellate court “reviews the underlying factual findings for substantial competent evidence and the legal conclusions based on those facts de novo. [Citation omitted.]” Boldridge v. State, 289 Kan. 618, 622, 215 P.3d 585 (2009).
To establish ineffective assistance of counsel, it is not enough to conclude, with the benefit of hindsight, that another attorney might have tried the case differently. Rather, before a court can find counsel's assistance to be defective enough to require reversal of a conviction, the defendant must establish two things. First, the defendant must establish that counsel's performance was constitutionally deficient. This requires a showing that counsel made errors so serious that his or her performance was less than that guaranteed by the Sixth Amendment to the United States Constitution. Second, the defendant must establish that counsel's deficient performance prejudiced the defense. This requires a showing that counsel's errors were so severe that they deprived the defendant of a fair trial. Harris v. State, 288 Kan. 414, 416, 204 P.3d 557 (2009).
Judicial scrutiny of counsel's performance in a claim of ineffective assistance of counsel is highly deferential and requires consideration of the totality of the evidence before the judge. The reviewing court must strongly presume that counsel's conduct fell within the broad range of reasonable professional assistance. To establish prejudice, the defendant must demonstrate a reasonable probability that, but for counsel's deficient performance, the outcome of the proceeding would have been different. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” 288 Kan. at 416.
Under the circumstances of the motion in this case, Treece's focus is on whether Gilby's advice leading up to Treece's decision to withdraw his motion to withdraw his plea was deficient. If so, the question is whether there is a reasonable probability that the outcome of the proceeding—in this case his withdrawal of his motion to withdraw his plea—would have been different if Gilby's advice was not deficient.
Treece admits that the district court found Gilby's testimony that he did not tell Treece that the jury would know about his prior guilty plea more believable than Treece's testimony that Gilby did make that statement. Treece argues, however, that he did not waiver in his testimony, whereas Gilby's testimony was equivocal. Nevertheless, appellate courts do not reweigh evidence, determine the credibility of witnesses, or resolve conflicts in the evidence. See Bellamy, 285 Kan. at 353. This court, therefore, must accept the district court's conclusion that Gilby did not advise Treece that the jury would be informed Treece previously pled guilty in the case, since it is supported by Gilby's testimony.
Next, Treece complains that Gilby did not research the facts of the case to advise Treece whether he would be convicted of the offense. Treece also argues that Gilby should have talked to witnesses and spoken to Treece's family members or codefendants regarding whether there were any other reasons Treece may have had for withdrawing his plea. Thus, Treece contends that Gilby's counsel was ineffective because Gilby “admitted he spent no time talking trial strategy or exploring any possible issues Mr. Treece could raise to support the withdrawal of his guilty plea and proceed to trial.”
“Counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any effectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments. [Citations omitted.]” State v. Hedges, 269 Kan. 895, 914, 8 P.3d 1259 (2000).
Regarding Gilby's failure to research the facts of the case and advise Treece whether he would be convicted of the offense, Gilby testified that he did not discuss trial strategy with Treece because it would not be a factor unless the motion to withdraw the plea was granted. Treece has not shown that this was outside the broad range of reasonable professional assistance. See Harris, 288 Kan. at 416.
Furthermore, Treece does not allege what other possible issues Gilby could have raised that would have entitled him to have his plea withdrawn. Gilby researched the statutory issue Treece raised in his motion and found it had no merit. Then Gilby and Treece went through the transcript from the plea hearing together, and Gilby explained that based on its contents Treece would have a hard time meeting his burden to prove good cause allowing him to withdraw his plea. See K.S.A.2012 Supp. 22–3210(d)(l) (stating guilty plea may be withdrawn at the district court's discretion any time before sentencing for good cause shown); State v. Schow, 287 Kan. 529, 543, 197 P.3d 825 (2008) (stating defendant has the burden of showing that good cause exists). Gilby left the ultimate decision of whether to continue with the motion or withdraw it to Treece.
Applying a heavy measure of deference to Gilby's judgment, Treece has failed to show that Gilby's actions were deficient. Furthermore, although Treece alleged in his K.S.A. 60–1507 motion that Gilby was ineffective for failing to file a notice of appeal of his sentence, Treece does not argue that issue on appeal. An issue not briefed by the appellant is deemed waived and abandoned. Superior Boiler Works, Inc. v. Kimball, 292 Kan. 885, 889, 259 P.3d 676 (2011).
Affirmed.