State v. Kebert

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NOT DESIGNATED FOR PUBLICATION

No. 116,610

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

DARRIN RAY KEBERT JR.,
Appellant.


MEMORANDUM OPINION

Appeal from Montgomery District Court; JEFFREY D. GOSSARD, judge. Opinion filed May 18,
2018. Reversed and remanded with directions.

Kai Tate Mann, of Kansas Appellate Defender Office, for appellant.

Jodi Litfin, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.

Before SCHROEDER, P.J., GREEN, J., and STUTZMAN, S.J.

PER CURIAM: Darrin Ray Kebert Jr. pled guilty to burglary, criminal damage to
property, and theft. Prior to sentencing, Kebert filed a pro se motion to withdraw his plea
and dismiss the charges, asserting his counsel was ineffective for failing to file a motion
to dismiss based on the failure to bring him to trial within the time limit set by the
Interstate Agreement on Detainers (IAD). Kebert's counsel followed Kebert's filing with
a formal motion, absent the allegations of ineffective assistance of counsel. The district
court found Kebert's counsel had waived his right to trial within the IAD time limit
because his counsel agreed to a trial date outside that limit. Kebert now argues it was
error for the district court to fail to inquire into Kebert's claim of ineffective assistance of
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counsel and to fail to find his counsel ineffective. We find unresolved issues of fact
requiring remand to the district court for further proceedings in accordance with our
findings.

FACTS AND PROCEDURAL BACKGROUND

On February 4, 2015, the State charged Kebert with burglary, criminal damage to
property, and theft. On March 31, 2015, the district court filed Kebert's pro se "Notice of
Place of Imprisonment and Demand for Speedy Trial." This notice informed the district
court that Kebert was presently incarcerated in a federal prison and demanded he be
brought to trial within 180 days in accordance with the IAD. See K.S.A. 2017 Supp. 22-
4303.

The district court held a review hearing on Kebert's filing at which the State
argued Kebert's notice did not comply with the IAD because it was not accompanied by a
certificate from the warden of the federal prison. At the State's suggestion, the district
court appointed an attorney for Kebert and continued the case for a further review
hearing.

On April 8, 2015, Kebert sent a letter to the district court and his appointed
attorney, Heath Lampson, which again stated he was in federal custody and noted his
intention to seek a "writ of habeas corpus ad prosequendum." Attached to this letter was
documentation titled "Sentencing Monitoring and Computation Data." Another review
hearing was held on April 16, 2015, and Lampson informed the district court that he had
sent Kebert a letter explaining to him the procedures he needed to follow to "move this
case forward." Both the State and Lampson agreed that the documents Kebert had filed
did not comply with the IAD. The district court found Kebert had not complied with the
IAD and set the case for further review on July 9, 2015.

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At the July 9, 2015 hearing, Lampson said he sent Kebert paperwork and a letter
advising him to get proper authorization from the warden. The district court found Kebert
had failed to comply with the IAD and removed the case from the court's docket. The
district court then filed a journal entry on July 17, 2015, that denied Kebert's motion for
the disposition of his detainer.

Kebert later filed an IAD compliant request for disposition of his detainer.
Although the request for disposition is not included in the record, the parties agree that
the request was filed after July 17 and before October 30, 2015. On October 30, 2015, the
district court scheduled a detainer hearing for December 29, 2015.

At the December 29, 2015 hearing, Lampson said plea negotiations had begun and
he noted a preliminary hearing needed to be scheduled. The State informed the district
court that the case needed to be set for trial and stated the "detainer was filed on October
13th of this year. That would mean we have 180 days to try the Defendant within that
detainer time." The court scheduled a preliminary hearing for January 19, 2016.

On January 19, 2016, the State requested a three-week continuance to prepare for
the preliminary hearing. Lampson stated Kebert was serving a federal sentence and was
in the county on a 180-day writ. Lampson objected to the continuance and asked that if
the court granted a continuance, that time be charged to the State for speedy trial
purposes. The district court granted the continuance and continued the preliminary
hearing to February 9, 2016.

The preliminary hearing did proceed on February 9, 2016, and the district court
bound Kebert over for trial on all three charges. The parties then discussed scheduling a
trial date and the district court told them a setting was available on May 12 and 13, 2016.
The parties agreed, and the court set the trial for those dates along with a settlement
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conference on April 12, 2016. Neither the parties nor the district court discussed the IAD
180-day limitation.

At the April 12, 2016 hearing, Lampson told the court that the State and Kebert
had reached no agreement. He then asked that the dates of the trial either be advanced or
continued because of a conflict in his schedule. Lampson told the district court that
Kebert was "in custody on another case so speedy trial is not an issue." The district court
rescheduled the trial for May 18 and 19, 2016.

On April 28, 2016, Kebert entered no contest pleas on all three counts. The district
court accepted the pleas and found him guilty. Before sentencing, however, on June 8,
2016, Kebert filed a pro se "Motion to [W]ithdraw from Plea Agreement and Dismiss
[A]ll Charges," based on claims that his right under the IAD to be brought to trial within
180 days was violated and that his attorney had been ineffective. Kebert alleged he filed
his request for disposition with the federal Bureau of Prisons on September 24, 2015, and
therefore "entered plea agreement well past the allot[t]ed time given for prosecution." He
also argued Lampson misled him to believe that he had no basis for dismissal based on
the IAD and that Lampson "was ineffective in that a motion to dismiss should have been
pursued."

At sentencing, Lampson said Kebert's pro se motion had merit and he asked for a
three-week continuance to file a formal motion to withdraw plea and dismiss charges.
The district court judge granted the continuance, stating:

"Mr. Kebert, I'll tell you, normally on your Motion to Withdraw your plea pro se,
my standard deal is you're not pro se, you do have an attorney so I won't accept or grant
the motion, but it sounds like your attorney is asking for leave for three weeks to file a
motion on your behalf following along the same lines of what you've filed, so I will allow
for that continuance."

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At no point during the hearing was there a reference to Kebert's claims of ineffective
assistance of counsel and Kebert did not object either to Lampson's filing of the formal
motion or his continued representation.

Lampson's motion argued the 180-day period for Kebert to be brought to trial
expired, at the latest, on April 27, 2016. Since the pleas were entered on April 28, 2016,
the motion contended Kebert should be allowed to withdraw his pleas and the charges
then must be dismissed because the district court had lost jurisdiction the previous day.

After the State filed a response, Lampson filed an amended motion to dismiss. In
the amended motion to dismiss, Lampson alleged Kebert's request for the disposition of
his detainer was actually received on August 21, 2015, and the time limit expired on
February 17, 2016. The amended motion argued that even if the January 19, 2016
continuance requested by the State was counted against Kebert, the 180-day period would
have expired on March 9, 2016, well before Kebert entered his pleas. As before, the
amended motion claimed the district court did not have jurisdiction to accept Kebert's
pleas.

The State then responded to the amended motion to dismiss with the argument that
when he agreed to a trial date outside of the IAD limit, Lampson waived Kebert's right to
be brought to trial within 180 days. It based that argument on New York v. Hill, 528 U.S.
110, 120 S. Ct. 659, 145 L. Ed. 2d 560 (2000).

The district court took up the amended motion on July 26, 2016. At the conclusion
of arguments, the district judge found "the setting of the trial date . . . outside the 180
days constitutes a waiver so I'm going to deny the Motion to Dismiss filed by the
Defendant." The court sentenced Kebert, who timely appeals.


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ANALYSIS

Kebert's appeal centers on the quality of assistance he received from his appointed
counsel, Lampson. Kebert asserts the district court abused its discretion by failing to
inquire into the claim of ineffective assistance of counsel contained in his pro se motion
to withdraw plea and dismiss charges.

Standard of review

Under the Sixth Amendment to the United States Constitution, Kebert had a right
to effective assistance of counsel during all critical stages of his criminal proceedings.
State v. Pfannenstiel, 302 Kan. 747, 758, 357 P.3d 877 (2015). "Where a constitutional
right to counsel exists . . . there is a correlative right to representation that is free from
conflicts of interest." Wood v. Georgia, 450 U.S. 261, 271, 101 S. Ct. 1097, 67 L. Ed. 2d
220 (1981). "To protect a defendant's right to counsel under the Sixth Amendment to the
United States Constitution, a district court must inquire into potential conflicts between a
defendant charged with a felony and defense counsel if (a) the court is aware of the
conflict or (b) it is brought to the court's attention." State v. Marshall, 303 Kan. 438, 447,
362 P.3d 587 (2015). "In general, a conflict exists when an attorney is placed in a
situation conducive to divided loyalties, . . . and can include situations in which the
caliber of an attorney's services 'may be substantially diluted.' [Citations omitted.]"
Pfannenstiel, 302 Kan. at 758.

Whether the district court adequately discharges its duty to inquire into a potential
conflict of interest is reviewed for an abuse of discretion. State v. McDaniel, 306 Kan.
595, 606, 395 P.3d 429 (2017).

"The duty of inquiry may lead a district court to abuse its discretion in three
ways: (1) When the district court becomes aware of a potential conflict of interest but
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fails to inquire at all, which is a decision based on an error of law—the error being the
district court's failure to fulfill a legal duty; (2) when the court is aware of the conflict,
proceeds to investigate, but fails to conduct an appropriate inquiry; and (3) when the
court, after being aware of the conflict, conducts an appropriate inquiry into the
defendant's expression of dissatisfaction with counsel but commits an abuse of discretion
in deciding whether to substitute counsel." 306 Kan. at 606-07.

Discussion

Duty to inquire

The Kansas Supreme Court has stated "[w]hen a defendant asserts alleged
deficiencies in counsel's performance during plea negotiations as the basis for a motion to
withdraw plea, a district court must inquire further into the alleged conflict." State v.
Prado, 299 Kan. 1251, 1258, 329 P.3d 473 (2014). In Prado, the court held that the
district court was required to inquire into a potential conflict of interest when the
defendant argued his attorney did not adequately explain the charges against him or the
implications of the plea agreement prior to making a plea agreement. 299 Kan. at 1258-
59. The court explained such statements put the district court on notice that "Prado
potentially was forced to argue his motion without conflict-free counsel." 299 Kan. at
1258. Similarly, in State v. Sharkey, 299 Kan. 87, 98, 322 P.3d 325 (2014), the court held
that the district court was required to inquire into a potential conflict of interest when the
defendant filed a pro se motion for a new trial alleging his counsel was ineffective.

The State argues the district court's duty to inquire into a possible conflict was not
triggered because any conflict was not readily apparent and Lampson did not advocate
against Kebert's position that he was ineffective. But Kebert's pro se motion did not hide
the claim of conflict, leaving it to be deduced from context—it specifically said
"Defendant believes that Counsel was inneffective [sic] in that a motion to dismiss should
have been pursued."
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"Under the Sixth Amendment, an actual conflict of interest occurs when a
counsel's divided loyalties adversely affect counsel's performance." State v. Toney, 39
Kan. App. 2d 1036, 1042, 187 P.3d 138 (2008). To effectively represent Kebert on his
motion to withdraw the pleas and dismiss, Lampson would have been obligated first to
investigate the merits of his client's claims regarding his own ineffectiveness, then
objectively evaluate the findings, and finally argue such merits as he discovered. To
defend himself against Kebert's claims of ineffectiveness, Lampson would have been
required to advocate against his client's position.

As happened in Sharkey, Lampson did not argue his own ineffectiveness as
alleged in the pro se motion, nor did he seek to withdraw so Kebert could be represented
by conflict-free counsel at the motion hearing. On its face, Lampson's position was
complicated, if not untenable. As a result, the district court should have been aware that
Lampson's continued representation after Kebert's pro se motion would place Lampson in
that conflicted position, triggering the district court's duty to inquire into the nature of the
conflict. The district court abused its discretion when it failed to inquire about the
potential conflict of interest.

Remedy

Our determination of error requires us to consider what, if any, remedy is required.
McDaniel, 306 Kan. at 607. Kebert argues we should find Lampson was constitutionally
ineffective in waiving his IAD right to a speedy trial and he asks us vacate his sentences.
Alternatively, he contends remand is appropriate for further findings to allow review of
his ineffectiveness claim.

"Ordinarily, when a district court abuses its discretion by failing to further
inquire about an alleged conflict of interest, 'the appropriate remedy, in the absence of a
suitable record on appeal concerning the alleged conflict of interest, is to remand to the
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trial court for a determination of whether the defendant can "establish that the conflict of
interest adversely affected his counsel's performance."' [Citations omitted]." Prado, 299
Kan. at 1260.

The Kansas Supreme Court has adopted the three classifications of ineffective
assistance of counsel claims identified in Mickens v. Taylor, 535 U.S. 162, 122 S. Ct.
1237, 152 L. Ed. 2d 291 (2002). The first category includes claims that an attorney's
performance was deficient to the point a defendant was denied a fair trial; the second
category consists of those cases when the "assistance of counsel has been denied entirely
or during a critical stage of the proceeding"; and the third applies to situations when a
defendant's attorney "actively represented conflicting interests." State v. Galaviz, 296
Kan. 168, 181-82, 291 P.3d 62 (2012) (quoting Mickens, 535 U.S. at 166).

The third category is further divided into three subgroups, which our Supreme
Court has referred to as: "(1) the automatic reversal exception, (2) the adverse effect
exception, and (3) the Mickens reservation." McDaniel, 306 Kan. at 608. The three
conflicting interest subcategories require the defendant to establish his or her attorney had
an active conflict of interest. In the first two subgroups, the alleged conflict is related to
an attorney engaging in multiple, concurrent representations. The third subgroup involves
cases of successive representation or conflicts related to an attorney's personal or
business interests. Galaviz, 296 Kan. at 182.

This case falls within the third category, as Kebert alleges his counsel actively
represented conflicting interests. And because this case involves an alleged conflict of
Lampson's personal or business interests, as opposed to concurrent representation, it is
within the third subgroup—the Mickens reservation. The test to determine whether a
defendant is entitled to relief in Mickens reservation cases was left open by the United
States Supreme Court in Mickens. Galaviz, 296 Kan. at 184. Our Supreme Court has
explained:
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"[O]ne of two standards would apply. The first is the Strickland [v. Washington, 466 U.S.
668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)] standard, under which relief would not be
granted unless the defendant could demonstrate both that the attorney's performance was
deficient and a reasonable probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different.
"The alternative is the Cuyler [v. Sullivan, 446 U.S. 335, 100 S. Ct. 1708, 64 L.
Ed. 2d. 333 (1980)] standard used in the adverse effect exception. Under the Cuyler test,
the defendant must demonstrate counsel labored under an active conflict of interest that
affected the adequacy of the representation. This test differs from the Strickland standard
in that 'prejudice will be presumed only if the conflict has significantly affected counsel's
performance—thereby rendering the verdict unreliable, even though Strickland prejudice
cannot be shown.' [Citations omitted.]" McDaniel, 306 Kan. at 610.

Without discussion, the Kansas Supreme Court has applied the adverse effect
exception to cases that fall within the Mickens reservation subcategory. See, e.g., Prado,
299 Kan. at 1260; Boldridge v. State, 289 Kan. 618, 627-28, 215 P.3d 585 (2009). In this
case, the adverse effect measure is the one proposed by the State in the event of remand.
See Galaviz, 296 Kan. at 192. Our next step, therefore, is to consider the facts in the
record to see if they are sufficient to allow us to assess whether Lampson's active conflict
of interest had an adverse effect on his representation.

The record does show that the State, at the December 29, 2015 hearing, mentioned
the need to set Kebert's case for trial and raised the 180 day IAD deadline as a scheduling
consideration. The following month, when the State asked for a three-week continuance
to prepare for the preliminary hearing, Lampson objected on Kebert's behalf, asked that
the time be charged to the State if the court granted the request, and noted Kebert was in
the county on a 180-day writ. The State's representative at that hearing made only a very
oblique reference to the IAD, describing the case as "returned back to this court, I
believe, on a—I want to say it was on a—on a detainer." However, he then incorrectly
told the court that "I don't think speedy trial will come into effect yet until he's been
arraigned."
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The next significant scheduling involvement after those affirmative, if unspecific,
recognitions of a time constraint, was immediately after the preliminary hearing on
February 9, 2016, when the district judge and counsel set the date for trial. Neither party
commented about IAD compliance or the number of days that would have elapsed
between the time they then believed the IAD request was filed and the dates they
considered. Although Lampson told the court his client would like to get the case taken
care of, he nonetheless considered dates in June 2016 before citing the desire for an
earlier date since Kebert was "going to remain in custody." The parties and court then
settled on May 12-13, 2016, for the trial.

Two months later, on April 12, 2016, Lampson asked for the trial to be moved
either to an earlier or later date because of his schedule and told the court "[my] client is
in custody on another case so speedy trial is not an issue." The court moved the trial to
May 18-19, 2016.

Eventually, after Kebert's pro se motion, Lampson followed with his assertion that
the 180-day IAD limit had expired a day before Kebert pled. Then, in an amended motion
to dismiss filed July 18, 2016, Lampson claimed—apparently for the first time—that the
State and the court clerk actually had received Kebert's IAD request on August 19 and
August 21, 2015, respectively, considerably altering the calculation of the date by which
Kebert should have been brought to trial. The State responded with the argument that
Lampson had waived Kebert's right to assert the IAD deadline by accepting a trial date
outside 180 days.

The record lacks the facts that are needed to assess whether Lampson's conflict
had an adverse effect on his representation. For example, the record does not show when
the evidence of the August filing dates became known, how it became known, whether it
reliably establishes the filing date, and whether it could or should have been known
before. Likewise, the record is silent on Lampson's awareness of the IAD time limit as
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applied to this case and how it factored into his representation of Kebert. Other questions
no doubt would be identified as these and other issues are fully explored. We simply do
not have a sufficient record to review Kebert's claim of ineffective assistance.

The case, therefore, must be remanded to the district court. In view of the nature of
the claims, upon return of the case to the district court, conflict-free counsel should be
appointed to represent Kebert at a rehearing on the amended motion for withdrawal of
pleas and dismissal and on Kebert's claim that Lampson's conflicted position adversely
affected his performance. See State v. Brown, 300 Kan. 565, 578, 331 P.3d 797 (2014);
State v. Vann, 280 Kan. 782, 791-92, 127 P.3d 307 (2006).

Reversed and remanded for further proceedings in accordance with this opinion.