Jones v. State

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NOT DESIGNATED FOR PUBLICATION

No. 112,979

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

JASON JONES,
Appellant,

v.

STATE OF KANSAS,
Appellee.


MEMORANDUM OPINION

Appeal from Leavenworth District Court; GUNNAR A. SUNDBY, judge. Opinion filed December
18, 2015. Reversed and remanded with directions.

Serena A. Hawkins, of Serena Hawkins Law, LLC, of Kansas City, for appellant.

Cheryl A. Marquardt, assistant county attorney, Todd L. Thompson, county attorney, and Derek
Schmidt, attorney general, for appellee.

Before BUSER, P.J., LEBEN and BRUNS, JJ.

Per Curiam: Jason Jones appeals from the denial of his K.S.A. 60-1507 motion in
which he alleged ineffective assistance of trial counsel based on his counsel's failure to
represent him at a hearing on a presentencing motion to withdraw his plea. Because we
find that Jones was denied the assistance of conflict-free counsel at a critical stage of his
case, we reverse the district court's decision denying his K.S.A. 60-1507 motion.
Moreover, we remand this matter to the district court for appointment of an attorney to
advise Jones regarding his motion to withdraw plea and to represent him at a hearing if he
decides to proceed with his motion after speaking to a conflict-free counsel.
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FACTS

Jones pled guilty—pursuant to a plea agreement—to a reduced charge of second-
degree reckless murder and abuse of a child. Prior to sentencing, he filed a pro se motion
to withdraw his plea. Evidently, because he did not believe the motion to withdraw plea
was in his client's best interest, Jones' trial attorney decided that he would not participate
in the argument on the motion. As such, the district court decided to have Jones argue his
pro se motion without benefit of counsel. Ultimately, the district court denied the motion
to withdraw plea and sentence Jones to 467 months in prison.

On direct appeal, a panel of this court affirmed Jones' conviction but found that the
State had violated the terms of the plea agreement. Accordingly, the case was remanded
for resentencing and Jones' sentence was reduced to 360 months in prison. Although
Jones did not appeal from the resentencing, he filed the K.S.A. 60-1507 motion that is the
subject of this appeal a few months later. In the motion, Jones alleged—among other
things—ineffective assistance of trial and appellate counsel. Following an evidentiary
hearing, the district court denied the motion.

Regarding the motion to withdraw the plea, the district judge stated:

"You also claim that [your trial attorney] failed [to provide] effective assistance
of counsel in not joining in this motion—your motion to withdraw . . . plea. You asked
him to do it; he got a letter and now acknowledges receiving it. But he testified he did not
believe that the information was accurate, nor did he believe it was in your best interest.
It could backfire and you could end up with more time, and he felt it was right for your
son.

"He is not permitted under the rules of ethics to argue—under the rules of ethics,
he is not permitted to argue vexatious motions. He didn't believe in the motion.

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"You then said, I want to argue it, and I did allow you to argue your pro se
motion because you don't have the same rules of professional conduct that an attorney
does, and I allowed you to argue that motion. I do not see that failure to join in that
motion is ineffective assistance of counsel."

The district judge also stated that he had considered Jones' arguments about his
appellate attorney but found that none of Jones' claims of ineffective assistance of
appellate counsel had merit. The district judge ultimately concluded that Jones had not
shown that any deficient performance prejudiced his defense, and so the district judge
denied the motion. Thereafter, Jones appealed to this court.

ANALYSIS

Because the district court held a full evidentiary hearing on Jones' K.S.A. 60-1507
motion, we review the district court's factual findings to determine whether they are
supported by substantial competent evidence and are sufficient to support the court's
conclusions of law. However, we have unlimited review over the district court's
conclusions of law. State v. Adams, 297 Kan. 665, 669, 304 P.3d 311 (2013).
Additionally, a claim alleging ineffective assistance of counsel presents mixed questions
of fact and law. Like the standard of review on a K.S.A. 60-1507 motion, on a claim
alleging ineffective assistance of counsel, appellate courts review the district court's
factual findings for support by substantial competent evidence and review its legal
conclusions based on those facts de novo. State v. Bowen, 299 Kan. 339, 343, 323 P.3d
853 (2014).

There are three types of ineffective assistance of counsel claims: (1) claims that
the attorney's performance was so deficient that the defendant was denied a fair trial; (2)
claims that the assistance of counsel was denied entirely or denied at a critical stage of
the proceeding; and (3) claims that the attorney actively represented interests that
conflicted with the defendant. Sola-Morales v. State, 300 Kan. 875, 882, 335 P.3d 1162
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(2014). "We observe the Strickland [C]ourt held: 'Representation of a criminal defendant
entails certain basic duties. Counsel's function is to assist the defendant, and hence
counsel owes a duty of loyalty, a duty to avoid conflicts of interest.' Strickland, 466 U.S.
at 688; accord Bowen, 299 Kan. at 342 ('The right [to counsel] extends a duty of loyalty
[from counsel] to the client.'). Indeed, the Strickland Court described the duty of loyalty
as 'perhaps the most basic of counsel's duties.' 466 U.S. at 692." Sola-Morales, 300 Kan.
at 893-94.

Here, Jones raises all three types of ineffectiveness claims on appeal. His primary
argument, however, is that he was denied his Sixth and Fourteenth Amendment right to
counsel at the hearing on his motion to withdraw his plea because he had to argue the
motion pro se. In particular, Jones argues that he was denied his constitutional right to
effective representation when his trial attorney (1) did not respond to his letter about
wanting to withdraw his plea; (2) did not give him any legal advice about the requirement
that he show good cause to withdraw his plea; and (3) refused to participate at the hearing
on the motion to withdraw plea.

When a defendant is completely denied the assistance of counsel or denied counsel
at a critical stage of a proceeding, a court may presume the defendant was prejudiced.
Sola-Morales, 300 Kan. at 883. The Kansas Supreme Court has held that a presentencing
motion to withdraw a guilty plea is a critical stage where conflict-free counsel is required.
See State v. Taylor, 266 Kan. 967, 975, 975 P.2d 1196 (1999). When the State is
represented at a plea withdrawal hearing, the defendant has a constitutional right to be
represented by conflict-free counsel unless the defendant waives the right to counsel.
State v. Hulett, 293 Kan. 312, 319, 263 P.3d 153 (2011). "'An actual conflict of interest
exists if "the defense attorney was required to make a choice advancing his own interests
to the detriment of his client's interests."'" State v. Cheatham, 296 Kan. 417, 452, 292
P.3d 318 (2013) (quoting Stoia v. United States, 22 F.3d 766, 771 [7th Cir. 1994]).
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The State argues that Jones' claim is barred by res judicata. Although we agree that
Jones could have presented this argument on direct appeal, he was not required to do so.
As the Kansas Supreme Court has held, "generally the factual aspects of a claim of
ineffective assistance of counsel require that the matter be resolved through a K.S.A. 60-
1507 motion or through a request to remand the issue to the district court for an
evidentiary hearing under State v. Van Cleave, 239 Kan. 117, 119-21, 716 P.2d 580
(1986)." State v. Galaviz, 296 Kan. 168, 192, 291 P.3d 62 (2012). Here, there was a
factual issue regarding whether Jones voluntarily and knowingly waived his right to
conflict-free counsel at the hearing on the motion to withdraw plea, which required
consideration of trial counsel's testimony as well as his case file. Cf. State v. Beaman, 295
Kan. 853, 858, 286 P.3d 876 (2012) (stating that whether a defendant waived the right to
a jury trial is a factual question unless the facts are undisputed). Thus, we do not find
Jones' argument to be barred by res judicata.

Jones argues that he and his trial attorney had a clear conflict of interest at the
motion to withdraw hearing. We agree. Unfortunately, a review of the record on appeal
reveals that the district court failed to make the appropriate in-depth inquiry necessary to
assure Jones' right to conflict-free counsel. See State v. Stovall, 298 Kan. 362, 370, 312
P.3d 1271 (2013).

Once trial counsel refused to represent Jones at a critical stage of the process—
even if he felt an ethical obligation to do so—his interests and those of his client were in
conflict. Moreover, there is nothing in the record to suggest that this is one of the rare
cases in which no attorney could ethically represent his or her client on a matter. As such,
the district court should have either appointed Jones with another attorney to represent
him on his motion to withdraw plea or made it clear on the record that Jones was
knowingly and voluntarily exercising his right to forego counsel and electing to proceed
pro se. Hulett, 293 Kan. at 319.

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In conclusion, we find that Jones was completely denied the assistance of conflict-
free counsel at a critical stage in this case and, as a result, was prejudiced. Although
going forward with his motion to withdraw plea may or may not be a good decision, an
attorney should be appointed to advise Jones of his options. Moreover, if he decides to
proceed with his motion to withdraw plea, Jones should be represented by counsel at the
motion hearing unless he knowingly and voluntarily waives his right to counsel on the
record. Finally, because we are reversing and remanding this matter to the district court,
it is unnecessary for us to address the other issues presented in the briefs.

Reversed and remanded with directions.