State v. Maddox

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NOT DESIGNATED FOR PUBLICATION

No. 113,621

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

DAN R. MADDOX,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; DOUGLAS R. ROTH, judge. Opinion filed December 2,
2016. Affirmed.

Christina M. Kerls, of Kansas Appellate Defender Office, for appellant.

Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before STANDRIDGE, P.J., ARNOLD-BURGER and BRUNS, JJ.

Per Curiam: Dan R. Maddox appeals after being convicted of aggravated
indecent liberties with a child. On appeal, Maddox argues that the district court erred in
failing to inquire into the possibility of a conflict with his attorney after he filed a motion
to dismiss alleging that defense counsel did not obtain his permission before continuing
his case on multiple occasions. Maddox also argues that the district court violated his
constitutional rights by using his prior convictions to increase his sentence without first
requiring the State to prove them to a jury beyond a reasonable doubt. Finding no
reversible error, we affirm Maddox's conviction.
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FACTS

On April 17, 2013, Maddox was charged with aggravated indecent liberties with a
child, and he retained David Phillip Leon to defend him. After waiving his right to a
preliminary hearing, the district court bound Maddox over for trial. Maddox then entered
a plea of not guilty.

From May 2013 to March 2014, the district court continued Maddox's trial 10
times at the request of the defense. Ultimately, the case was set for a jury trial on March
3, 2014. On the day of the trial, however, Maddox waived his right to a jury and stated
that he wished to proceed with a bench trial. As a result, the trial was continued again.

Maddox's bench trial was continued yet again based on defense requests before
April 4, 2014. On that date, Maddox filed a pro se motion to dismiss. In his motion,
Maddox alleged that the case should be dismissed due to (1) a violation of his right to a
speedy trial; (2) continuances being granted without his permission; and (3) defense
counsel ignoring communications concerning his right to a speedy trial. Because Maddox
was represented, the clerk of the court forwarded the pro se motion to Maddox's defense
counsel and indicated that the district court would await direction from Leon on how to
proceed. It does not appear from the record on appeal that the motion to dismiss was ever
ruled upon.

After Maddox filed his motion to dismiss, the district court continued the trial nine
more times on requests from defense counsel. On October 15, 2014, the district court
conducted a bench trial on stipulated facts. Based on the stipulation, the district court
found Maddox guilty of aggravated indecent liberties with a child as defined by K.S.A.
2012 Supp. 21-5506(b)(1).

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On December 4, 2014, Maddox filed a pro se motion to consolidate this case with
another pending criminal case involving charges of lewd and lascivious behavior as well
as aggravated endangering a child. In the motion, he argued that multiple convictions on
the same date should constitute one conviction. The district court, again, forwarded the
motion to defense counsel. On the same date, defense counsel filed a motion for a
durational departure and/or to run Maddox's sentence in this case concurrently with his
sentence in the other criminal case. Although Maddox was scheduled to be sentenced in
both cases on the same day, the two cases had not been consolidated.

On December 9, 2014, the district court held the combined sentencing hearing. At
the sentencing hearing, the district court noted that Maddox committed the crime in this
case while he was out on bond after being charged in his previous case. After denying
Maddox's pro se motion to consolidate the two criminal cases as well as the departure
motion filed by defense counsel, the district court found Maddox to be a persistent sex
offender and sentenced Maddox to 494 months' imprisonment in this case. Furthermore,
the district court ordered that the sentence in this case should run concurrently with a 13-
month sentence in Maddox's other criminal case.

Evidently upon realizing that the issue of mandatory postrelease supervision had
not been addressed at the original sentencing hearing, the district court notified Maddox
that he would be resentenced on December 30, 2014. Because Maddox had decided that
he did not want Leon to represent him anymore, the district court appointed new counsel
to represent him and continued the hearing. Finally on February 6, 2015, the district court
resentenced Maddox to the same sentence as previously imposed with the additional
requirement of lifetime postrelease supervision. The district court also provided Maddox
with a notice of duty to register.

Thereafter, Maddox timely filed a notice of appeal.

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ANALYSIS

Conflict with Defense Counsel

On appeal, Maddox contends that the district court erred in failing to inquire into
the possibility of a conflict with his retained counsel after he filed a pro se motion to
dismiss alleging—in part—that defense counsel did not obtain his permission before
continuing the trial of this case on multiple occasions. In response, the State contends that
the district court did not have a duty to inquire because Maddox failed to make sufficient
allegations of a conflict with his retained counsel and because he could have simply
terminated Leon at any time if he was unhappy with his representation.

Both the United States Constitution and the Kansas Constitution guarantee the
right of a criminal defendant to the effective assistance of counsel. See State v. Brown,
300 Kan. 565, 574-75, 331 P.3d 797 (2014). If a defendant wishes to obtain a different
attorney, it is his or her burden to show justifiable dissatisfaction with counsel. Examples
of justifiable dissatisfaction include conflicts of interest, irreconcilable disagreements
between a defendant and his or her counsel, or complete breakdowns in communication
between counsel and a defendant. A defendant who provides an articulated statement of
attorney dissatisfaction to the district court triggers a duty by the court to inquire into a
potential conflict of interest. 300 Kan. at 575. Our review of the district court's failure to
inquire is unlimited. See 300 Kan. at 575.

Here, Maddox made his allegation against his retained counsel as part of a pro se
motion to dismiss. For whatever reason, Maddox did not terminate his attorney nor did he
ask the district court to appoint another attorney on his behalf until after his bench trial.
In fact, it appears from the record that he never raised this issue again prior to this appeal.
Moreover, Maddox does not argue on appeal that the district court erred in failing to
dismiss this case based on his pro se motion alleging a speedy trial violation. Instead,
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Maddox argues that the filing of the pro se motion was sufficient to inform the district
court that there was a breakdown of communication with his retained counsel and, in
turn, to trigger a duty on the part of the district court to inquire further into the potential
conflict.

In Kansas, defense counsel is not required to obtain his or her client's permission
before seeking a continuance. See Sola-Morales v. State, 300 Kan. 875, 897, 335 P.3d
1162 (2014); State v. Bafford, 255 Kan. 888, 895, 879 P.2d 613 (1994) ("The decision of
whether a motion for a continuance should be filed does not require a specific
consultation between the attorney and client. . . . Counsel was not required to obtain
[defendant's] permission prior to moving for a continuance."). Furthermore, Maddox does
not show how the requested continuances prejudiced his defense or that he took any steps
to replace his retained counsel prior to the bench trial. Accordingly, we conclude that
Maddox has failed to meet his burden to articulate a justifiable dissatisfaction with his
attorney.

Even if we found that the district court had a duty to inquire, we would then have
to determine whether the failure to do so constituted an abuse of discretion. See Brown,
300 Kan. at 576. We may find that a district court abused its discretion if its action—or
failure to act—was (1) arbitrary, fanciful, or unreasonable, i.e., if no reasonable person
would take the judge's view; (2) based on an error of law; or (3) based on an error of fact,
i.e., if substantial competent evidence does not support a factual finding made by the
judge in conjunction with his or her action. State v. Ward, 292 Kan. 541, 550, 256 P.3d
801 (2011). Again, the defendant bears the burden of showing that the district court has
abused its discretion. Brown, 300 Kan. at 571.

We recognize that the United States Supreme Court found in Cuyler v. Sullivan
that a criminal defendant who retained his or her own attorney may also assert a Sixth
Amendment claim of ineffective assistance of counsel. 446 U.S. 335, 344-45, 100 S. Ct.
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1708, 64 L. Ed. 2d 333 (1980) ("Since the State's conduct of a criminal trial itself
implicates the State in the defendant's conviction, we see no basis for drawing a
distinction between retained and appointed counsel that would deny equal justice to
defendants who must choose their own lawyers."). See also State v. Patton, 287 Kan.
200, 224, 195 P.3d 753 (2008). Furthermore, we note that a panel of this court has held—
in the context of a K.S.A. 60-1507 motion—that the right to effective assistance of
counsel applies equally to retained or appointed counsel, stating:

"To hold, as the State argues, that appointed counsel for an indigent must be effective
whereas retained counsel for a nonindigent does not have to be effective, is illogical.
Appointed and retained counsel must be effective when there are 'substantial questions of
law or triable issues of fact.' K.S.A. 22-4506(b)." Ludlow v. State, No. 105,303, 2011 WL
5833609, at *3 (Kan. App. 2011) (unpublished opinion).

In the present case, however, Maddox does not argue that his retained counsel was
ineffective. Rather, Maddox argues that he put the district court on notice of a potential
conflict, and it ignored his complaints. Although defendants are entitled to effective
assistance of counsel whether that counsel is retained or appointed, Maddox does not
allege that the multiple continuances equates to ineffective assistance of counsel. If
Maddox sincerely believed that Leon's representation was ineffective, he could have
terminated him or brought such an allegation to the attention of the district court either
prior to or at the bench trial. Instead, Maddox did not choose to terminate Leon's
representation until after the bench trial and the initial sentencing hearing. When he
finally did so, the district court appropriately appointed counsel to represent Maddox at
the resentencing hearing.

As our Supreme Court has stated, "When the trial court fails to inquire into a
potential conflict, the defendant is entitled to reversal if he or she can establish that the
conflict significantly affected his or her counsel's performance, thereby rendering the
verdict unreliable." (Emphasis added.) State v. Carter, 284 Kan. 312, 321, 160 P.3d 457
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(2007). Here, Maddox has not even attempted to establish that not being consulted about
the multiple continuances "significantly affected" Leon's ability to defend him nor has he
attempted to show that the verdict—which was based on stipulated facts—was somehow
unreliable. Thus, we conclude that the district court did not abuse its discretion in
neglecting to inquire into Maddox's complaint regarding his counsel's failure to consult
him prior to seeking continuances.

Apprendi Issue

Maddox also contends that the district court violated his rights under the Sixth and
Fourteenth Amendments to the United States Constitution based on Apprendi v. New
Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). He argues that in order
to use his prior convictions to increase his sentence, the State was required to prove them
to a jury beyond a reasonable doubt. Maddox acknowledges, however, that our Supreme
Court previously resolved this issue in State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2002).
Nevertheless, Maddox states that he is raising the issue to preserve it for federal review.

We are bound to follow precedent established by our Supreme Court unless there
is an indication that it is departing from the precedent. State v. Hall, 298 Kan. 978, 983,
319 P.3d 506 (2014). And we do not have any indication that our Supreme Court will be
departing from its holding in Ivory at any point in the foreseeable future. See State v.
Fisher, 304 Kan. 242, 264, 373 P.3d 781 (2016). Thus, we conclude that the district court
did not violate Maddox's constitutional rights.

Affirmed.