State v. Turner

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NOT DESIGNATED FOR PUBLICATION

No. 114,378

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

TIMOTHY L. TURNER,
Appellant.

MEMORANDUM OPINION

Appeal from Douglas District Court; SALLY D. POKORNY, judge. Opinion filed September 16,
2016. Affirmed.

Adam M. Hall, of Collister & Kampschroeder, of Lawrence, for appellant.

Julia Leth-Perez, legal intern, Natalie Yoza, assistant district attorney, Charles E. Branson,
district attorney, and Derek Schmidt, attorney general, for appellee.

Before ARNOLD-BURGER, P.J., MCANANY and GARDNER, JJ.

Per Curiam: Timothy Turner, who had a prior misdemeanor conviction for
possession of marijuana, was charged in a later incident with felony possession of
marijuana. Turner pled no contest to this charge, and the district court found him guilty.
Turner's criminal history consisted of 1 person juvenile adjudication and 13 person
misdemeanor convictions, including his prior marijuana conviction. Turner did not object
to his criminal history. The court sentenced Turner to 42 months in prison. This court
affirmed Turner's sentence on appeal.

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Turner then filed a motion to correct an illegal sentence. One of his claims was
that his sentence was based on his prior misdemeanor marijuana conviction in municipal
court when he was not represented by counsel. According to Turner, he did not
effectively waive his right to counsel in that case, so his uncounseled municipal
conviction was unconstitutional and could not be used as a basis to enhance his sentence
in his current case. Turner later moved to withdraw his plea, and that motion was heard
along with his motion to correct an illegal sentence.

At the hearing on Turner's motions no witnesses testified, but the court considered
various documents relating to Turner's municipal court conviction. Turner acknowledged
the municipal court record of his prior misdemeanor possession of marijuana conviction
indicated he waived the right to counsel and pled guilty on June 25, 2008. But his counsel
stated:

"I will leave it up to the Court to find whether or not that docket sheet that appears to
show [Turner] appears pro se, possession of marijuana, guilty, with a 7/25/08 date, and
whether that is enough proof to show that that relates to the waiver and makes it a valid
waiver."

At the hearing, the district court was not called upon to make credibility
determinations regarding the testimony of any witness. The hearing was confined to an
examination of several written documents, which we are in as good a position as the
district court to evaluate. Thus, our consideration of the documents is de novo. See
Telegram Publishing Co. v. Kansas Dept. of Transportation, 275 Kan. 779, 784, 69 P.3d
578 (2003). The documents show:

August 17, 2007—City of Lawrence citation issued to Turner for possession of
marijuana and various driving violations. Court date: September 12, 2007.

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September 12, 2007—Turner's original court appearance date. Turner fails to
appear. Bench warrant to be issued.

September 26, 2007—Bench warrant issued.

January 9, 2008—Turner posts cash bond.

January 23, 2008—Turner appears for arraignment and pleads not guilty. Trial is
set for March 28, 2008. This trial date must have been continued. There is no
reference to any court action in the case on March 28, 2008.

July 25, 2008—Turner appears and pleads guilty to possession of marijuana.
Sentencing is scheduled for September 16, 2008. This same date Turner signs a
"Waiver of Counsel and Plea Advisory." The municipal judge certifies that Turner
signed the waiver in the judge's presence and that Turner had been fully informed
of the charges and his right to counsel. There is no entry of any court action in the
case on September 16, 2008. From the next entry it appears that Turner did not
appear for sentencing as ordered by the court.

December 8, 2008—Bench warrant issued. Turner is apparently in jail and
scheduled for release on April 2, 2009.

April 2, 2009—Municipal court disposition hearing. Document notes the charge of
possession of marijuana and the finding of guilty. Court imposes $200 fine plus
various costs and fees.

The district court denied Turner's motion to correct an illegal sentence.

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With respect to Turner's motion to withdraw his plea, he argued that because his
prior municipal conviction for possession of marijuana was invalid because his plea was
taken without the benefit of counsel, he should have been charged in this current case
with misdemeanor possession of marijuana rather than a felony. Thus, he should be
entitled to withdraw his plea to this improper charge.

The district court denied Turner's motion to withdraw his plea, finding that he
failed to show manifest injustice. This appeal is from the rulings on both motions.

Motion to Withdraw Plea

As a preliminary matter, the State contends that Turner's motion to withdraw his
plea was untimely because it was not filed within the 1-year time period defined in
K.S.A. 2015 Supp. 22-3210(e)(1), and Turner has not shown excusable neglect to extend
this filing deadline. But the mandate following Turner's direct appeal was not issued until
November 21, 2013. Turner filed the motion to withdraw his plea on May 6, 2014, less
than 1 year later. So Turner's motion was timely.

"A person accused of a misdemeanor has a Sixth Amendment right to counsel if
the sentence to be imposed upon conviction includes a term of imprisonment, even if the
jail time is suspended or conditioned upon a term of probation." State v. Youngblood, 288
Kan. 659, Syl. ¶ 2, 206 P.3d 518 (2009). "The right to counsel arises at the stage of the
proceedings where guilt is adjudicated, eligibility for imprisonment is established, and
the prison sentence determined." 288 Kan. 659, Syl. ¶ 2. A defendant may exercise the
right to self-representation only after a knowing and intelligent waiver of the Sixth
Amendment right to counsel. State v. Vann, 280 Kan. 782, 793, 127 P.3d 307 (2006).

Turner acknowledges that the waiver of his right to counsel in municipal court was
valid at the time he executed it. But he argues the waiver lost its validity when so much
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time passed between the time he entered it "and the actual entry of a plea other than not
guilty." This is premised on the contention that he did not enter his guilty plea on the day
he executed the waiver but later at the disposition hearing. He also makes the related
argument that his guilty plea exceeded the waiver's scope. This argument is premised on
the contention that the waiver he signed contemplated an immediate plea which did not
occur.

We conclude from the documents set forth above that on July 25, 2008, Turner
appeared in court and signed a valid waiver of his right to counsel and entered a plea of
guilty. Thus, the premise for both of Turner's arguments is not supported by the facts.

But even if, contrary to the facts that we and the district court found, Turner did
not enter his plea until April 2, 2009, the day of his disposition hearing, the delay did not
invalidate his prior waiver of his right to counsel.

Turner relies on a law review article, Goldschmidt, Has He "Made his Bed and
Now Must Lie in It"? Toward Recognition of the Pro Se Defendant's Sixth Amendment
Right to Post-Trial Readmonishment of the Right to Counsel, 8 DePaul J. for Soc. Just.
287 (2015), to support the contention that his prior valid waiver of the right to counsel
expired with the passage of time. In fact, this law review article recognizes that many
federal and state courts do not require that the trial court readmonish the defendant
regarding the right to counsel when the defendant previously waived that right. 8 DePaul
J. for Soc. Just. 287, 353-74.

A case that exemplifies the ongoing validity of a waiver of counsel is United
States v. Hantzis, 625 F.3d 575, 581 (9th Cir. 2010). There, the court held that a waiver of
the right to counsel need not be renewed in subsequent proceedings "unless intervening
events substantially change the circumstances" existing at the time of the waiver to the
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extent that "the defendant can no longer be considered to have knowingly and
intelligently waived the right to counsel." 625 F.3d at 580-81. The court stated:

"'A competent election by the defendant to represent himself and to decline the assistance
of counsel once made before the court carries forward through all further proceedings in
that case unless appointment of counsel for subsequent proceedings is expressly
requested by the defendant or there are circumstances which suggest that the waiver was
limited to a particular stage of the proceedings.' [Citations omitted.]" 625 F.3d at 581.

Similar holdings are found in United States v. McBride, 362 F.3d 360, 367 (6th
Cir. 2004) (the general rule of federal courts is "that a defendant's waiver of counsel at
trial carries over to subsequent proceedings absent a substantial change in
circumstances"); United States v. Unger, 915 F.2d 759, 762 (1st Cir. 1990) (the district
court was free to find that the defendant's earlier waiver was still in force at the
sentencing hearing in the absence of intervening events); United States v. Fazzini, 871
F.2d 635, 643 (7th Cir. 1989) ("Once the defendant has knowingly and intelligently
waived his right to counsel, only a substantial change in circumstances will require the
district court to inquire whether the defendant wishes to revoke his earlier waiver.");
Arnold v. United States, 414 F.2d 1056, 1059 (9th Cir. 1969) (a new waiver need not be
obtained at every subsequent court appearance of the defendant after a competent waiver
of the right to counsel); Davis v. United States, 226 F.2d 834, 840 (8th Cir. 1955) (same);
People v. Baker, 92 Ill. 2d 85, 91-92, 440 N.E.2d 856, 860-61 (1982) ("The greater
number of courts considering the precise issue here presented have held that a competent
waiver of counsel by a defendant once made before the court carries forward to all
subsequent proceedings unless defendant later requests counsel or there are
circumstances which suggest that the waiver was limited to a particular stage of the
proceedings."); accord State v. Steed, 506 P.2d 1031, 1033 (Ariz. 1977); State v.
Carpenter, 390 So. 2d 1296, 1299 (La. 1980); State v. Tiff, 199 Neb. 519, 531-32, 260
N.W.2d 296 (1977); Lay v. State, 2008 OK 7, ¶ 11, 179 P.3d 615, 620 (2008)
(defendant's "waiver of counsel was valid for the entire trial, including the sentencing
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phase"); State v. Modica, 136 Wash. App. 434, 445, 149 P.3d 446 (2006) ("[A] valid
waiver of the right to assistance of counsel generally continues throughout the criminal
proceedings, unless the circumstances suggest that the waiver was limited . . . . [I]t is not
ordinarily incumbent upon a trial court to intervene at a later stage of the proceedings to
inquire about a party's continuing desire to proceed pro se."); State v. Mathis, 39 Wisc.
453, 459, 159 N.W.2d 729 (1968).

With respect to Turner's first argument, we find (and Turner asserts) no change of
circumstances that would have required the district court to reaffirm at the April 2, 2009,
disposition hearing Turner's earlier waiver of his right to counsel. Further, Turner never
asserted his right to counsel or sought to revoke his waiver at this later disposition
hearing.

With respect to Turner's second argument, his original waiver of his right to
counsel was not predicated on any particular time period, so the later uncounseled
proceedings on April 2, 2009, did not exceed the scope of the waiver.

Finally, Turner's reliance on Menefield v. Borg, 881 F.2d 696 (9th Cir. 1989), is
unfounded. In Menefield the defendant waived the right to counsel and proceeded to trial
pro se. After being convicted, he asked the trial court to appoint counsel to assist him in
preparing a motion for a new trial. The trial court denied this request. The Ninth Circuit
concluded that the defendant's prior waiver did not bar his later request for counsel.
Unlike in Menefield, Turner never sought to disavow or revoke his prior waiver of his
right to counsel by later affirmatively requesting the appointment of counsel. Menefield
provides no assistance to Turner.

The district court did not err in denying Turner's motion to withdraw his plea.

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Motion to Correct an Illegal Sentence

K.S.A. 22-3504(1) provides that "[t]he court may correct an illegal sentence at any
time."

"'[A]n "illegal sentence" under K.S.A. 22-3504 [is]: (1) a sentence imposed by a court
without jurisdiction; (2) a sentence that does not conform to the applicable statutory
provision, either in character or the term of authorized punishment; or (3) a sentence that
is ambiguous with respect to the time and manner in which it is to be served.' [Citations
omitted.]" State v. Moncla, 301 Kan. 549, 551, 343 P.3d 1161 (2015).

Turner challenges the district court's use of his prior misdemeanor marijuana
conviction to enhance his current sentence, asserting the prior conviction was obtained in
violation of his right to counsel. The States contends this motion is not the appropriate
procedural vehicle to raise this challenge to his prior municipal court conviction. But
Turner alleges the municipal court conviction produced an erroneous crime severity level,
and he would have been convicted of a misdemeanor offense but for the improper
consideration of his uncounseled municipal court conviction. We conclude that Turner's
motion to correct an illegal sentence is an appropriate procedural vehicle to assert this
challenge. See State v. Delacruz, 258 Kan. 129, 899 P.3d (1995).

In considering this claim we apply the same legal analysis to the facts described
above and, without becoming unduly repetitious, conclude that the district court did not
err in denying Turner's motion to correct an illegal sentence. The sentence for Turner's
felony conviction was predicated upon Turner having a prior conviction for misdemeanor
possession of marijuana. Turner contends this was error because his prior uncounseled
municipal court conviction was invalid and could not be used to support a felony
conviction. But Turner waived his right to counsel in municipal court, so the district court
properly considered it in sentencing Turner for felony possession of marijuana. The court
did not err in denying his motion to correct an illegal sentence.
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Affirmed.