State v. Martinez

NOT DESIGNATED FOR PUBLICATION

No. 112,587

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

ARMANDO MARTINEZ, JR.,
Appellant.


MEMORANDUM OPINION

Appeal from Ellis District Court; GLENN R. BRAUN, judge. Opinion filed October 23, 2015.
Affirmed in part, vacated in part, and remanded with directions.

Patrick H. Dunn, of Kansas Appellate Defender Office, for appellant.

Christopher W.D. Lyon, assistant county attorney, and Derek Schmidt, attorney general, for
appellee.

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

LEBEN, J.: Armando Martinez, Jr., pled no contest to felony theft after stealing two
air guns from a local store. Because he had three prior misdemeanor convictions for
offenses against a person, his guideline sentence on the felony-theft charge was greater
than it otherwise would have been.

Martinez argued that the district court sentencing him for theft should not have
considered one of these misdemeanor convictions; Martinez said he didn't properly waive
his right to an attorney in that case. But Martinez signed a written waiver of his right to
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counsel. While he argues that someone should have advised him that the conviction
might someday increase his sentence if he committed another crime, a defendant need not
be told all the potential consequences of a conviction before deciding whether to waive
the right to counsel.

At sentencing, the district court also ordered that Martinez pay a $100 application
fee for the appointment of an attorney to represent him. Although the district court has
the discretion to waive that fee, both parties agree that the district court mistakenly
believed it lacked that discretion. We therefore vacate the assessment of the $100 fee and
remand the case for further consideration on that issue; we otherwise affirm the district
court's judgment.

ANALYSIS

Most Kansas felony sentences are based on guidelines set out by statute. The
guidelines sentence for an offense is based on the severity level of the offense and the
criminal-history score of the offender. The more severe the offense, the greater the
potential prison sentence. Similarly, the greater the defendant's criminal-history score, the
greater the potential prison sentence. See K.S.A. 2014 Supp. 21-6804(a); State v. Pearce,
51 Kan. App. 2d 116, 118, 342 P.3d 963, rev. denied 301 Kan. ___ (August 20, 2015).

When calculating the criminal-history score, the potential sentence goes up if the
person's past convictions are felonies or if they were person offenses (traditionally
meaning offenses against the body of another person, now categorized by statute). In
addition, if a defendant has three person misdemeanors, K.S.A. 2014 Supp. 21-6811(a)
treats that as if the defendant had committed one person felony, thus resulting in a greater
potential punishment. In this appeal, Martinez argues that the district court should not
have considered one of the three person misdemeanors—a 2013 domestic-battery
conviction—because he didn't knowingly waive his right to an attorney in that case. If
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that conviction had been excluded, Martinez' presumptive sentence under the guidelines
would have been shorter.

Generally, all of a person's past convictions are considered when determining the
person's criminal-history score. K.S.A. 2014 Supp. 21-6810(d)(9); Pearce, 51 Kan. App.
2d at 120. But a conviction cannot be considered if it was obtained in violation of a
defendant's right to counsel under the Sixth Amendment to the United States
Constitution. State v. Long, 43 Kan. App. 2d 328, 336, 225 P.3d 754 (2010). That's the
claim Martinez is trying to make here.

Generally, a criminal defendant who cannot afford an attorney has a right to an
attorney furnished by the government if conviction would lead to imprisonment or
probation with an underlying prison sentence. Alabama v. Shelton, 535 U.S. 654, 657-58,
661-62, 122 S. Ct. 1764, 152 L. Ed. 2d 888 (2002); State v. Tims, 301 Kan. ___, 355 P.3d
660, 664 (2015). A defendant can waive this right, but the State generally must show that
the defendant was advised of the right to counsel and that the defendant's waiver was
knowingly and intelligently made. State v. Youngblood, 288 Kan. 659, 662, 206 P.3d 518
(2009).

Here, the State provided the district court with a written waiver and plea form—
headed "WAIVER OF RIGHT TO COUNSEL AND TRIAL"—signed by Martinez. In it,
Martinez acknowledged that he had a right to have a trial and that if he couldn't afford a
lawyer, one would be appointed to represent him. The waiver portion of the form
concluded: "Having considered the foregoing and in spite of the Court's admonitions of
disadvantages of self-representation, I nevertheless waive and give up my right to a
lawyer and a trial and plead _______ GUILTY or  NO CONTEST to the
charge(s)."

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Below that was a statement from the municipal judge, affirming that the judge had
told Martinez of his right to counsel and that Martinez had then signed the form in front
of her:

"I hereby certify that that above named person has been fully informed of the
charges against him or her and of his or her right to have counsel, either retained or
appointed, to represent the accused at the proceedings before this Court and that the
accused has executed the above waiver in my presence, after its meaning and effect have
been fully explained to the accused on the above date."

The statements of Martinez and the judge on this form met the traditional requirements
for a proper waiver of the right to an attorney. See State v. Hughes, 290 Kan. 159, Syl.
¶ 4, 224 P.3d 1149 (2010); In re Habeas Corpus Application of Gilchrist, 238 Kan. 202,
208, 708 P.2d 977 (1985).

Even so, Martinez argues that the waiver isn't valid unless the defendant is told of
all the potential consequences. Since no one told him that this person-misdemeanor
conviction could be grouped with two earlier person-misdemeanor convictions when
determining his criminal-history score in the future, he argues that his waiver wasn't
knowingly and intelligently made.

Martinez cites no case holding that an attorney waiver is invalid if the judge in that
case fails to advise the defendant of potential consequences in the event the defendant
commits another crime. In this case, of course, if Martinez had not committed new crimes
in May 2014, the potential consequence of the attorney waiver and plea he entered in
March 2013 would not matter.

In other cases, our court has found written attorney waivers sufficient even though
the defendants weren't advised of all of the collateral consequences that might occur in
the future. E.g., State v. Myers, No. 102,800, 2010 WL 4393944, at *4 (Kan. App. 2010)
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(unpublished opinion); State v. Flores-Picasso, No. 100,602, 2009 WL 2436686, at *3-4
(Kan. App. 2009) (unpublished opinion). Courts elsewhere have agreed. E.g., United
States v. Edwards, 911 F.2d 1031, 1034-35 (5th Cir. 1990); State v. Majeres, 722 N.W.2d
179, 183 (Iowa 2006); Craft v. State, 2011 WY 142, ¶¶ 14-15, 262 P.3d 1253 (2011).
Similarly, our court has held that a plea is knowingly entered even though the defendant
has not been told what effect the plea may have on his or her criminal-history score if the
defendant commits new offenses. State v. Barahona, 35 Kan. App. 2d 605, Syl. ¶ 6, 132
P.3d 959, rev. denied 282 Kan. 791 (2006). The district court correctly held that
Martinez' waiver of counsel was valid; accordingly, the court correctly calculated
Martinez' criminal-history score.

Martinez does raise one other issue on appeal—that the district court failed to
exercise its discretion when considering whether to assess the $100 application fee for
Martinez' request to have court-appointed counsel in this case. The issue was not raised in
the district court, but the Kansas Supreme Court and our court have considered this issue
routinely on appeal in the interest of justice. E.g., State v. Casady, 289 Kan. 150, 152,
210 P.3d 113 (2009); State v. Robinson, 281 Kan. 538, 541, 132 P.3d 934 (2006); State v.
Long, 45 Kan. App. 2d 938, 939, 257 P.3d 792 (2011); State v. Osuna, No. 111,206, 2014
WL 5347584, at *2 (Kan. App. 2014) (unpublished opinion), rev. denied 301 Kan. ___
(July 24, 2015).

Both Martinez and the State agree on appeal that the district court has discretion
about whether to assess this fee. K.S.A. 2014 Supp. 22-4529 provides that the defendant
pay the fee unless "it appears to the satisfaction of the court that payment of the
application fee will impose manifest hardship on the defendant," in which case the court
"may waive payment of all or part of the application fee." The district court is to make
this determination based on the defendant's financial affidavit and any other available
evidence. State v. Hawkins, 285 Kan. 842, 852-53, 176 P.3d 174 (2008).

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The parties also recognize that the district court here mistakenly thought it had no
discretion. (We note that no one corrected the court at sentencing.) The district court did
not assess attorney fees, but it did assess the $100 application fee after stating, "I don't
think I can waive that . . . ." Based on the court's statement, we conclude that it did not
exercise the discretion it was given. Accordingly, the proper course is to vacate its
assessment of the application fee and to remand for the court to reconsider the matter,
applying its discretion.

We vacate the district court's assessment of the $100 application fee for appointed
counsel. We otherwise affirm the district court's judgment and remand the case for
reconsideration of the assessment of the application fee.