Appeal from Sedgwick district court, TERRY L. PULLMAN, judge.
1. A plea of guilty or nolo contendere, for good cause shown, may be withdrawn at any time before sentence is adjudged. The decision to deny a motion to withdraw a plea rests within the sound discretion of the district judge, and such decision will not be set aside on appeal absent a showing of abuse of discretion.
2. A trial court's decision to deny a motion to withdraw a plea will not be disturbed absent a showing that the court abused its discretion. The defendant bears the burden of establishing such an abuse of discretion. Judicial discretion will vary depending upon the character of the question presented for determination. Generally, the trial court's decision is protected if reasonable persons could differ upon the propriety of the decision, as long as the discretionary decision is made within and takes into account the applicable legal standards. An abuse of discretion may be found if the trial court's decision goes outside the framework of or fails to properly consider statutory limitations or legal standards.
3. A two-step test applies when determining whether to set aside a guilty plea because of ineffective assistance of counsel. As the first step, defendant must show that counsel's performance fell below the standard of reasonableness. In the second step, defendant must show that a reasonable probability exists that, but for counsel's errors, defendant would not have pleaded guilty and would have insisted on going to trial.
4. The Kansas Rules of Professional Conduct which govern an attorney's conduct upon discovery of a possible conflict of interest are discussed and applied.
5. The assistance of counsel is a constitutional right so basic to a fair trial that its denial can never be treated as harmless error. A trial judge has an independent duty to ensure that a criminal defendant receives a trial that is fair and does not contravene the defendant's Sixth Amendment right to effective assistance of counsel.
6. To set aside a guilty plea on the ground that ineffective assistance of counsel, due to a conflict of interest, has rendered the plea involuntary, a defendant must show that counsel's performance fell below the standard of reasonableness and that there is a reasonable probability that but for counsel's errors he or she would have insisted on going to trial.
7. Amendments to the Kansas Rules of Professional Conduct (Supreme Court Rule 226), which become effective July 1, 2007, will require attorneys to confirm in writing a client's informed consent to a waiver of a potential conflict of interest. The new "mantra" under the KRPCs for a waiver of a potential attorney/client conflict of interest thus becomes "Informed Consent, Confirmed in Writing."
The opinion of the court was delivered by: Lockett, J.
Defendant Tieller M. Adams appeals his conviction for felony murder, claiming (1) the district court abused its discretion when it concluded Adams failed to establish good cause to permit withdrawal of his nolo contendere plea prior to sentencing, (2) there was an insufficient factual basis presented by the State to establish the offense of felony murder, and (3) his plea was the product of ineffective assistance of counsel due to the existence of an attorney/client conflict of interest.
In May 2004, defendant Tieller M. Adams was charged with premeditated first-degree murder of Chelando Dion Randolph. In exchange for the defendant's plea to the charge, the State agreed to recommend a life sentence. On November 30, 2004, Adams entered a plea of no contest to an amended charge of felony murder.
At the plea hearing, the State's attorney summarized what evidence would be introduced if a trial were held. The factual basis established that Adams shot and killed Randolph on May 12, 2004. On that date, Wichita police officers were dispatched to an apartment because of reports of gunshots in the residence. When the officers entered the apartment, they found Randolph, who was dead, lying on the floor of the kitchen, hunched over a trash can, with three gunshot wounds to the head. Four spent shell casings of unknown caliber were found in the kitchen and living room of the apartment. An autopsy determined the death to be a homicide.
If the defendant had gone to trial, the State's witnesses, including Season Micheaux and Jeffrey Hayes, were prepared to testify that Adams visited their apartment, which was near Randolph's apartment, the day Randolph was shot. According to the witnesses, Adams was waving a gun and saying he was going to "get Randolph". Micheaux would testify that Adams left her apartment and she then heard Adams and Randolph arguing. She heard a gunshot, then Randolph screaming, and then heard several more gunshots. Hayes would testify to the same events.
The State indicated that its DNA evidence would establish that Randolph's blood was found on Adams' shoes. The evidence would further show that Adams was angry and wanted to speak to Randolph because he wanted to get drug transaction money from Randolph. The district judge found a factual basis existed for the plea and accepted Adams' plea of no contest to felony murder.
Prior to sentencing, Adams filed a motion to withdraw his plea. Adams claimed his plea was not knowingly and voluntarily entered because: (1) his appointed counsel did not spend adequate time discussing the case with him; (2) counsel failed to keep him advised of scheduled court hearings; (3) counsel did not explain the meaning of premeditated murder or felony murder; (4) counsel provided no explanation as to why he should enter a plea rather than go to trial; (5) counsel failed to review with him the evidence the State relied on to establish his guilt at trial; (6) counsel neglected to provide him with copies of reports, statements, and other pertinent documentary evidence; (7) counsel had informed him that a plea was his only option; therefore, he had failed to read the plea form; (8) counsel cautioned Adams not to ask questions at the plea hearing because that would make the judge angry; and (9) although counsel had advised him she had a conflict of interest, counsel failed to present sufficient information to enable him to waive the conflict of interest intelligently. Adams asserted he did not understand the events that transpired at his plea hearing, and he had followed the advice of counsel and refrained from asking questions of the court. The district court scheduled an evidentiary hearing and appointed alternative defense counsel to represent Adams on the motion to withdraw plea.
At the hearing, Adams testified he was represented by Julia Craft from the time of his arrest until he entered a plea of no contest to felony murder. Adams stated he was 24 years old and had 11 years of school at the time of his plea. Adams was incarcerated during the entire case. He claimed that prior to entering his plea Craft visited him only four or five times to discuss the case. In addition, Craft failed to keep him informed of court dates and failed to visit him until just prior to entering his plea. Adams stated Craft did not fully explain to him the nature of the charge against him or the consequence of a plea. He further stated Craft failed to explain the difference between premeditated first-degree murder and felony murder and, at the time of the plea, he was still unaware of the difference between the two charges. Adams stated he had never received a police report or statements of the two witnesses. He testified that when he discussed the plea agreement with Craft, she informed him that because there was no other way to defend him, she was not going to leave until he signed the plea agreement.
Adams further stated that Craft did not explain the document she gave to him, and he had not read the defendant's acknowledgment of rights and entry of plea document before he signed it. In addition, Craft failed to instruct him as to how to answer the court's questions at the plea hearing. Instead, because it might get him into trouble with the judge, Craft told Adams not to say anything at his plea hearing. Adams said that Craft informed him she had a conflict of interest in representing him but never stated what the conflict of interest was. He alleged he did not understand what was going on when he entered his plea. Adams asserted that if he had been properly informed of the conflict by his appointed attorney he would not have entered a plea but instead would have gone to trial.
The State then called as witnesses the defendant's former trial counsel and her private investigator to testify as to the events giving rise to defendant's plea and trial counsel's alleged conflict of interest. Craft explained her conflict of interest was that she had previously represented the State's complaining witness, the detective, in a civil family law matter. She stated that after she was appointed to represent the defendant she contacted the detective and the district attorney to determine if they had any objections to her representation of the defendant. Craft stated that she then spoke to Adams and his mother about the nature of the conflict. After all had orally waived any conflict of interest, she accepted the appointment.
Craft testified that from sometime in June 2004 until the plea in November 2004, she visited Adams approximately 10 times while he was in custody, The jail visitation record indicated Craft visited Adams eight times in addition to the scheduled preliminary hearings and when defendant entered his plea.
Craft acknowledged she did not provide Adams with all of the evidentiary reports she had obtained, but she had given copies of many of them to Adams. Craft testified that prior to Adams' plea she had reviewed the substance of all of the relevant evidence with Adams. In addition, Craft discussed the plea negotiations with Adams and reviewed the sentencing grid with her client on more than one occasion. Craft stated she had paraphrased the acknowledgment of rights form to Adams and believed Adams understood his rights, the plea, and what sentence would be imposed if he pled guilty.
Gary Eaves, the licensed private investigator who worked for Craft, also testified at the hearing. Eaves stated he had attempted to conduct interviews with witnesses provided to him by Adams. Eaves said that because none of the witnesses would discuss the incident with him or get involved, he was unsuccessful in building a defense for defendant.
The judge observed that Adams had a fair understanding of the original charge, the amended charge, and the sentences for each offense. The district judge determined that appointed counsel had provided competent representation to the defendant and that Adams had not been misled or unfairly taken advantage of. The district judge found no good cause to warrant withdrawal of Adams' plea and denied the defendant's motion to withdraw ...