Appeal from Sedgwick District Court; WARREN M. WILBERT, judge.
bye THE COURT
1. A motion for new trial filed within the 14-day limitation period in K.S.A. 2013 Supp. 22-3501(1) and before a direct appeal is a critical stage of a criminal proceeding, and a defendant has a right under the Sixth Amendment to the United States Constitution to representation by conflict-free counsel at a hearing on the motion.
2. It is the task of a trial judge to ensure that a defendant's right to counsel under the Sixth Amendment to the United States Constitution is honored. In order to fulfill this duty, where a trial judge becomes aware of a possible conflict of interests between an attorney and a defendant charged with a felony, the judge has a duty to inquire further.
3. If a trial judge makes an appropriate inquiry regarding a possible conflict of interests between an attorney and a felony defendant, the trial judge's decision is reviewed under an abuse of discretion standard. But a trial judge abuses his or her discretion when the judge fails to inquire into the nature of the conflict.
4. A trial judge does not fulfill the obligation to ensure a criminal defendant's constitutional right to effective assistance of counsel at a hearing on a motion for new trial by merely providing the defendant with an opportunity to make a pro se statement.
5. The complete denial of the assistance of counsel or the denial of counsel at a critical stage of criminal proceedings, which can occur if an attorney stands mute and fails to advocate for the criminal defendant, presents circumstances of such magnitude that a court must presume a probable prejudicial effect upon the outcome and a case-by-case inquiry of prejudice is unnecessary.
Michelle A. Davis, of Kansas Appellate Defender Office argued the cause and was on the brief for appellant.
Boyd K. Isherwood, chief appellate attorney, argued the cause, and Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, were with him on the brief for appellee.
[299 Kan. 88] OPINION
Tyjuna M. Sharkey appeals from his jury trial conviction for aggravated indecent liberties with a child, in violation of K.S.A. 21-3504(a)(3)(A). Sharkey raises three issues, two of which have been resolved.
One issue, an error in completing the journal entry to include lifetime electronic monitoring, even though that condition had not been announced at the time of sentencing, has been corrected through a nunc pro tunc journal entry and is moot.
In a second issue, Sharkey argues the State presented insufficient evidence that he acted with both the intent to arouse or satisfy his sexual desires and the intent to arouse or satisfy the sexual desires of the alleged victim. Sharkey contends the State was required to prove both alternative means of the intent requirement because the jury was instructed on both means. See State v. Wright, 290 Kan. 194, Syl. ¶ 2, 224 P.3d 1159 (2010) (in alternative means case, jury need not be unanimous as to which means defendant utilized but there must be substantial competent evidence of each instructed means), overruled on other grounds by State v. Nunez, 298 Kan. 661, 316 P.3d 717 (2014). Subsequent to Sharkey filing his appellate brief, however, this court held in State v. Britt, 295 Kan. 1018, 1025-26, 287 P.3d 905 (2012), that the intent element of K.S.A. 21-3504(a)(3)(A), which was the basis for the jury instruction, does not state alternative means. Sharkey has not presented any compelling reason to reverse Britt's holding. Consequently, we reaffirm our holding in Britt, which resolves the issue against Sharkey; and without further discussion, we reject Sharkey's arguments on this issue.
This leaves as the sole issue for our consideration Sharkey's claim that the trial judge erred in denying his pro se motions for new trial--based on allegations of ineffective assistance of counsel-- [299 Kan. 89] without first appointing new conflict-free counsel to assist him in arguing the motions. We hold that this argument has merit because the effect of the trial judge's failure to inquire into the nature of the conflict and appoint new counsel was to deny Sharkey his right under the Sixth Amendment to the United States Constitution to have the effective assistance of counsel at a critical stage of the criminal proceedings against him. We remand the case for appointment of new counsel and consideration of Sharkey's motions for new trial.
Facts and Procedural Background
Sharkey's conviction arose from his contact with 12-year-old T.W., who was a friend of Sharkey's stepdaughter. During a sleepover at Sharkey's house, T.W. awoke when she felt something heavy pushing against the back of her body. T.W. found her pajama bottoms and panties had been pushed down to her upper thighs and Sharkey was " forc[ing]" or " shov[ing]" his penis between her buttocks in an up-and-down motion, to " kind of like make it fit." T.W. pushed Sharkey's shoulder and was able to pull away and flee.
Based on T.W.'s allegations, Sharkey was charged with aggravated indecent liberties with a child. Sharkey was eventually tried two times. In his first trial, which resulted in a conviction, the State presented a DNA expert who linked Sharkey to semen found on T.W.'s pajamas. Posttrial, Sharkey sought and was granted a new trial when additional DNA testing showed the " presence of at least a third individual" --someone other than T.W. or Sharkey--as a secondary or weaker source matching the DNA profile. At the second trial, which is the subject of this appeal, Sharkey presented expert testimony explaining the third contributor could have been Sharkey's wife or her teenage son. The defense expert suggested the DNA
could have been postcoital discharge from Sharkey having sex with his wife and the fluids could have been transferred to the pajamas. Based on this testimony, Sharkey built a defense around the suggestion that T.W.'s story had been concocted in concert with his wife and her daughter because they were upset with him. The second jury again convicted Sharkey.
[299 Kan. 90] Seven days after the verdict and before sentencing, Sharkey filed two pro se motions. In the motions, Sharkey requested a new trial and new counsel, basing his arguments on allegations of ineffective assistance of defense counsel. Previously, at various stages of both trials, Sharkey had filed similar motions and had cycled through several attorneys. During the second trial, Sharkey had made complaints against his attorney, at least some of which were similar to those in his posttrial motions.
Pro Se Motions at Issue
In one motion, labeled " Pro Se Motion for Re-Trial," Sharkey argued he was entitled to a new trial because his counsel kept him " in the blind" throughout the trial and failed to explain " all and every details, motions, [and] stipulations along with reasons." Sharkey claimed that he was " hoodwinked" into believing it was defense counsel's strategy to forego calling Sharkey's family members who would have testified " as to the nature of the madness that was happening in the year of 2006" and that Sharkey was " in a rocky relationship with my x wife and those girls." Sharkey further stated that he was " hoodwinked into not taking the stand" in his own defense, and he complained that his counsel " only objected twice" during trial and " ...