State v. Tucker

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NOT DESIGNATED FOR PUBLICATION

No. 113,469

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

ROGER D. TUCKER,
Appellant.


MEMORANDUM OPINION

Appeal from Sedgwick District Court; DAVID L. DAHL, judge. Opinion filed July 15, 2016.
Appeal dismissed.

Samuel Schirer, of Kansas Appellate Defender Office, for appellant.

Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt,
attorney general, for appellee.

Before MCANANY, P.J., HILL and BRUNS, JJ.

Per Curiam: Roger D. Tucker appealed his theft conviction and the resulting
sentence. After he filed his notice of appeal, the State notified this court that Tucker died.
Initially, we agree with the State that Tucker's appeal is moot because even if it we found
in his favor, the appropriate remedy would be a new trial—not exoneration. In addition,
we do not find that resolution of the issue presented in this case would serve the interests
of public policy. Moreover, even if we considered the merits of Tucker's appeal, he
would not be entitled to relief. Thus, we dismiss this appeal.

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FACTS

On March 24, 2014, the State charged Tucker with felony theft. An affidavit
submitted by law enforcement alleged that in February 2014, Tucker walked into a JC
Penney's in Wichita, removed a pair of new shoes from a box, put on the new shoes,
placed the shoes he was wearing in the box, and returned the box to the shelf. The
affidavit further alleged that Tucker placed another pair of new shoes in a shopping bag
and left the store without paying for either pair of new shoes.

The affidavit also claimed that a store security guard stopped Tucker—who had
two prior theft convictions—outside the store and escorted him back into the store.
Although Tucker did not have a receipt, he allegedly told the security guard that he had
previously purchased the new shoes and was returning them to the store. A short time
later, a law enforcement officer arrived at the store, took tucker's statement, and placed
him under arrest.

Subsequently, the district court appointed an attorney to represent Tucker, released
him on bond, and ordered him to appear for a preliminary hearing. Evidently, Tucker
objected to his first attorney's representation, so the district court appointed Bradley
Sylvester from the Sedgwick County Conflicts Office to represent him.

Tucker forfeited his bond when he failed to appear at his preliminary hearing.
Accordingly, the district court issued a bench warrant for his arrest. Tucker was arrested
in early June 2014, and the district court conducted a preliminary hearing on July 8, 2014.
Before the State presented its evidence, Tucker advised the district court that he had filed
a disciplinary complaint against the prosecutor. The prosecutor denied knowledge of the
existence of any disciplinary complaint and argued that Tucker did not have the authority
to direct who prosecuted him.

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Throughout the preliminary hearing, Tucker interrupted the district judge and the
attorneys and refused to use his attorney to voice his arguments. At one point, the district
judge warned Tucker that if he did not cease interrupting, he would have him removed
from the courtroom. The district court ultimately overruled Tucker's motion to disqualify
the prosecutor and took judicial notice of Tucker's two prior theft convictions.

As the State began presenting its evidence, Tucker told the district court that he
had a conflict with his attorney. He alleged that Sylvester had told him that he would not
be pushed around like an attorney who had represented Tucker in a previous case.
According to Tucker, Sylvester refused to listen to his version of the events and refused
to communicate with him. In response, the district court paused the proceedings to
inquire into Tucker's assertions.

Sylvester explained to the district court what he had said to Tucker:

"[The attorney who previously represented Tucker] was in the same office I was
at the time and it was a very stressful situation for her. In fact, I think personally it's part
of the reason why she went into private practice and why she got off the appointment list.

"Last time this case was up for preliminary hearing I was unable to do it, I can't
remember why, but I said can somebody cover this for me. Nobody in my office would
cover it because nobody would deal with Mr. Tucker because a lot of people in my office
have.

"So what I just told him is he's telling me stuff, for example, the whole litany
we've had about this accepting prior convictions, taking judicial notice, I've told him I
think the Judge is right, I think he's right, there still is this barrage of he disagrees with
me, he's telling me all this stuff.

"We have met. This is a shoplifting case, I am years beyond needing to
understand how to do a shoplifting case. I mean, what I mean by that is I've met with
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him, we've talked. There is what's supposed to be a video. I found out today there's not a
video, so I'm going to be cross-examining this witness. I am happy to represent Mr.
Tucker, because I will be happy to deal with what I consider difficult clients. Mr. Tucker
has been a difficult client today. The record can show he has talked incessantly. And I
deal with clients like that and they do not push me around.

"THE DEFENDANT: Yeah.

"MR. SYLVESTER: So I will represent him and I will do everything I can for
him. And if he doesn't realize that, I don't know what to tell ya, because sometimes
clients don't. So I am here and I'll represent him. This is going into a store and taking
shoes. And he's talked to me about what he did in the store. If he wants some more time
to talk and that will cure the problem, great.

"If he says he and I have some sort of irreconcilable differences and he can't ever
trust me or can't do anything, he can raise that issue and try to go pro se or get different
counsel, but I am not backing off the statement that I made to him, with the explanation
I've given the Court. And I represent every client to the fullest, to my best of my ability."

The district court then asked Tucker if he wanted time to work out his issues with
Sylvester. In response, Tucker said he did not think he could repair their relationship. He
further claimed that Sylvester failed to notify him of the hearing date, which resulted in
his arrest. The State argued that based on Sylvester's appointment date, he could not be
blamed for Tucker's arrest.

The district court then denied Tucker's motion for a new attorney, stating that he
had not established justifiable dissatisfaction with Sylvester. Specifically, it found that
Sylvester and Tucker had not suffered a complete breakdown in communication, that
there was not an irreconcilable conflict between the two, and that Sylvester did not have a
conflict of interest. Thereafter, the store security guard testified about the events on
March 24, 2014, and the district court found probable cause to bind Tucker over for trial.

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At a hearing on a motion for bond reduction held 3 days after the preliminary
hearing, Sylvester told the court that he thought he and Tucker were "getting along quite
well." Sylvester explained that Tucker did not trust any defense counsel or prosecutor to
do the right thing. However, Sylvester indicated that "he and I are seeing probably better
eye to eye than most of his other attorneys."

Over the following months, Tucker filed several pro se motions. One of which was
a combined motion to dismiss and motion to substitute counsel that was filed about 2
weeks before the scheduled trial date. Tucker alleged in his motion that Sylvester had
failed to help him discover exculpatory evidence and refused to file his pro se motions.
At a motions hearing held on October 24, 2012, Tucker alleged that Sylvester had
requested continuances without his permission, had lied to him about documents he
possessed, and had refused to support his theory of defense. Tucker also claimed that
Sylvester was "in bed with the district attorney" and that his relationship with Sylvester
had ceased to exist.

When the district court asked Sylvester to respond, he explained that he
investigated Tucker's claims but determined that they had no merit. Sylvester also stated
that when he continued the case, he explained to Tucker that it was necessary because of
his heavy caseload. Sylvester stated that he had made sure that he had obtained all the
available discovery in the case and had provided Tucker with copies. However,
considering the nature of the case, Sylvester pointed out that there was not much in the
way of discovery.

Sylvester summarized his feelings about the case as follows:

"So I'm not objecting at all to the Court making a finding he needs a new
attorney. He can battle this issue out with a new attorney if he wants to. Maybe it's like
having a doctor and a fresh look will help him out. At the conflict office we're supposed
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to be the gatekeepers, and I don't say this on many cases, and just suck it up and deal with
clients that have issues like this. He needs to understand if he does that, the speedy trial
issues, if that's the catchall, because he objects I can't continue his case, this coming
Monday I'm having to continue a Jessica's Law case because his case got bumped over. If
Mr. Tucker thinks the way to do that is to put the two defendants in a courtroom and
whoever wins the fight goes to trial, great. That's the only way I can think of doing it
other than the attorney with his schedule saying this when I'm going to try it.

"I'm just flabbergasted that he's still saying I violated every right in the book. I
don't think from what he stated he should get a new attorney, but I think he believes
wholeheartedly what he's saying and that makes him so angry we're never going to be
able to talk again. I'll represent him at trial."

After confirming with Sylvester that he was prepared to effectively represent
Tucker at trial—which was scheduled to begin in 3 days—and after hearing arguments
from the State, the district court denied Tucker's motion. In doing so, the district court
found that although Tucker indicated that he was dissatisfied with Sylvester, none of his
justifications were sufficient to require the appointment of new counsel. It indicated that
it was very familiar with Sylvester because he practiced before the court on a regular
basis, and that Sylvester was "more than competent." The district court also pointed out
that Sylvester was not required to adopt every pro se motion Tucker filed because he had
a professional responsibility not to make frivolous arguments. The district court noted
that the case involved a "fairly low-level offense" with only a few witnesses and limited
evidence. As such, it found that Sylvester's representation would not prejudice Tucker's
rights.

Immediately thereafter, Tucker unequivocally invoked his Sixth Amendment right
to self-representation. The district court then continued the hearing to consider his
request. Three days later on October 27, 2014, Tucker reasserted his desire to represent
himself, even after the district court explained to Tucker the risks and difficulties in
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representing himself. Thus, the district court granted Tucker's request and appointed
Sylvester to serve as standby counsel.

The following month, the district court conducted an 8-day jury trial. The jury
found Tucker guilty of theft, and the district court sentenced Tucker to serve 12 months'
imprisonment. Thereafter, Tucker filed a timely appeal.

While the appeal was pending, the State notified this court that Tucker had died on
April 29, 2015. Shortly thereafter, the State filed a motion for involuntary dismissal of
the appeal on the ground of mootness. After Tucker's appellate counsel filed a response
asserting that the appeal was not moot, the State's motion was denied so that the parties
could brief the issue of mootness.

ANALYSIS

At the outset, we will address the State's contention that Tucker's death moots his
appeal. As a general rule, a court does not decide moot questions or render advisory
opinions because its role is to "'determine real controversies relative to the legal rights of
persons and properties which are actually involved in the particular case properly brought
before it and to adjudicate those rights in such manner that the determination will be
operative, final, and conclusive.'" State v. Bennett, 288 Kan. 86, 89, 200 P.3d 455 (2009)
(quoting Board of Johnson County Comm'rs. v. Duffy, 259 Kan. 500, 504, 912 P.2d 716
[1996]). Mootness—although not a jurisdictional issue—is a doctrine that recognizes that
the role of courts is to determine real rather than abstract or hypothetical controversies.
Bennett, 288 Kan. at 89.

The general test for mootness is whether it is clearly and convincingly shown that
the actual controversy has ended. In other words, a case is moot if the only judgment that
could be entered would be ineffectual for any purpose and would not impact any of the
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parties' rights. State v. Montgomery, 295 Kan. 837, 840, 286 P.3d 866 (2012). When a
criminal defendant dies during the pendency of an appeal, we are only to address issues
that "(1) [are] of statewide interest and of the nature that public policy demands a
decision, such as those issues that would exonerate the defendant; (2) remain[] a real
controversy; or (3) [are] capable of repetition." State v. Hollister, 300 Kan. 458, 467, 329
P.3d 1220 (2014).

Tucker's appellate attorney first argues that the Kansas Supreme Court wrongly
decided the Hollister case. He acknowledges, however, that this court is duty bound to
follow precedent from our Supreme Court absent some indication that it intends to depart
from its prior position. See State v. Hall, 298 Kan. 978, 983, 319 P.3d 506 (2014).
Because our Supreme Court has not signaled that it is departing from its holding in
Hollister, we must follow its holding and determine whether an exception applies that
would allow us to consider the merits of Tucker's claim.

The sole assertion made on behalf of Tucker in this appeal is that the district court
erred by not finding that he had established justifiable dissatisfaction with Sylvester. If
we were to find that the district court abused its discretion by not appointing substitute
counsel, the appropriate remedy would be a new trial. See City of Lawrence v. Jackson,
No. 110,828, 2015 WL 1310152 (Kan. App. 2015) (unpublished opinion) (reversing and
remanding for new trial after finding that the district court failed to inquire into the nature
of the alleged conflict between the defendant and his attorney); see also State v. Sharkey,
299 Kan. 87, 101, 322 P.3d 325 (2014) (reversing and remanding for a new hearing and
directing trial judge to conduct a new trial if it found ineffective assistance of trial
counsel). Obviously, a new trial in this case would be impossible because of Tucker's
death. See State v. Manns, No. 111,205, 2015 WL 3514005, at *4 (Kan. App. 2015)
(unpublished opinion), rev. denied 303 Kan. ___ (February 9, 2016) (dismissing appeal
of denial of motion to suppress evidence because the deceased defendant's only available
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remedy on remand was to grant the motion to suppress rather than find that defendant
was innocent).

Moreover, "the decision to grant a criminal defendant new appointed counsel
depends heavily upon the circumstances presented in a given case, and the district court
possesses broad discretion in determining whether to appoint new counsel." (Emphasis
added.) State v. McCormick, 37 Kan. App. 2d 828, 836, 159 P.3d 194, rev. denied 284
Kan. 949 (2007). Given its case-specific nature, the resolution of the issue presented in
this appeal would not resolve a matter of public policy. See Hollister, 300 Kan. at 467-48
(considering only the deceased defendant's challenge to the sufficiency of the evidence
because it was the only issue that could have exonerated him). Thus, we conclude that the
first Hollister exception does not apply.

Tucker's appellate counsel next suggests a real controversy remains because if the
conviction is reversed, the fees associated with the conviction would be vacated—
possibly affecting his estate. Of course, there is nothing in the record to indicate whether
an estate has been or could be opened. Moreover, as indicated above, even if Tucker were
to be successful on the merits, the remedy would not be exoneration but a new trial. It
also appears that in Hollister, our Supreme Court rejected the notion that the fees
imposed in a criminal case preserve a real controversy even upon an appellant's death.
See 300 Kan. at 465-66. Indeed, if we accepted the argument that the assessment of fees
automatically prevents an appeal from becoming moot upon the death of an appellant, we
would eviscerate the holding in Hollister because most convicted defendants are assessed
fees at sentencing. Therefore, we conclude that Tucker's appeal contains no real
controversy. Accordingly, it is moot.

We pause to note that even if Tucker's appeal was not moot, he would not prevail
on the merits because the record does not reflect that the district court abused its
discretion when it denied his requests for substitute counsel. Although criminal
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defendants have a constitutional right to representation, that right does not permit them to
choose which attorney will represent them. State v. Brown, 300 Kan. 565, Syl. ¶ 2, 331
P.3d 797 (2014). To warrant the appointment of substitute counsel, a defendant must
demonstrate justifiable dissatisfaction with appointed counsel—which includes a showing
of a conflict of interest, an irreconcilable conflict, or a complete breakdown in
communications between counsel and the defendant. See State v. Moyer, 302 Kan. 892,
360 P.3d 384 (2015).

Once a defendant articulates a statement of attorney dissatisfaction, the district
court then must inquire into a potential conflict of interest. Brown, 300 Kan. at 575; see
Sharkey, 299 Kan. at 98 (stating that failing to make an appropriate inquiry is an abuse of
discretion). "But ultimately, as long as the trial court has a reasonable basis for believing
the attorney-client relationship has not deteriorated to a point where appointed counsel
can no longer give effective aid in the fair presentation of a defense, the court is justified
in refusing to appoint new counsel." State v. Sappington, 285 Kan. 158, Syl. ¶ 5, 169 P.3d
1096 (2007).

The Kansas Supreme Court long ago explained that "[a]n indigent accused has a
right to either appointed counsel or pro se representation, but both rights cannot
simultaneously be asserted. [Citation omitted.] A defendant who accepts counsel has no
right to conduct his own trial or dictate the procedural course of his representation by
counsel." State v. Ames, 222 Kan. 88, 100, 563 P.2d 1034 (1977). Tucker's unwarranted
desire to control Sylvester's representation is evident in his complaint of Sylvester's
refusal to adopt Tucker's several meritless pro se motions. As the district court pointed
out, Sylvester was ethically precluded from bringing or defending a proceeding on a
frivolous basis. See Kansas Rules of Professional Conduct, Rule 3.1 (2015 Kan. Ct. R.
Annot. 592). Moreover, Sylvester had the right to exercise his professional judgment in
making strategy decisions. See Pfannenstiel, 302 Kan. at 767; State v. Brown, No.
109,417, 2014 WL 1193422, at *5 (Kan. App. 2014) (unpublished opinion) (finding that
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defense counsel was not ineffective for not filing a meritless motion to suppress), rev.
denied 301 Kan. ___ (March 12, 2015).

In a similar case, this court has found that a defendant's desire to control the
strategy and tactical decisions of his defense caused the irreconcilable conflict and
breakdown in communication alleged by the defendant. McCormick, 37 Kan. App. 2d at
838-39. The panel in McCormick reminded the defendant that "[w]hile a criminal
defendant has the right to consult with appointed counsel and to discuss the general
direction of his or her defense, the strategic and tactical decisions are matters for the
professional judgment of counsel." 37 Kan. App. 2d at 838 (citing State v. Bafford, 255
Kan. 888, 895, 879 P.2d 613 [1994]). Accordingly, it found that a defendant cannot
establish justifiable dissatisfaction when the defendant's actions were the cause of the
conflict between the defendant and his attorney. 37 Kan. App. 2d at 838-39.

Tucker's appellate counsel also briefly argues that he had a complete breakdown in
communications with Sylvester. However, 3 days after the district court denied Tucker's
first request for new counsel, Sylvester explained to the district court that the two were
"getting along quite well." Sylvester also told the court that he did not think that Tucker
trusted any defense counsel or prosecutor to do the right thing, but that they were "seeing
probably better eye to eye than most of his other attorneys." Thus, it appears that Tucker
and Sylvester did not have a complete breakdown in communication at this point and any
breakdown in communication that subsequently occurred, appears to have been the result
of Tucker's refusal to permit Sylvester to do his job.

Appeal dismissed.