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State v. Bacon

Supreme Court of Kansas

June 28, 2019

State of Kansas, Appellee,
v.
Scot E. Bacon II, Appellant.

         SYLLABUS

         On these facts, a remand for the district court to inquire into a potential conflict between the defendant and his appointed attorney is unnecessary because the defendant retained a new attorney for trial; he does not claim his trial attorney was ineffective; and he does not otherwise identify any prejudice flowing from the failure to inquire.

         Review of the judgment of the Court of Appeals in an unpublished opinion filed June 2, 2017.

          Appeal from Sedgwick District Court; Bruce C. Brown, judge.

          Cooper G. Overstreet, of The Swain Law Office, of Lawrence, argued the cause, and Sarah G. Swain and James W. Fuller, legal intern, of the same firm, were on the brief for appellant.

          Lesley A. Isherwood, assistant district attorney, argued the cause, and Marc Bennett, district attorney, and Derek Schmidt, attorney general, were with her on the brief for appellee.

          OPINION

          STEGALL, J.

         Scot E. Bacon II petitioned for review of the Court of Appeals' holding that his pro se motion quoting KRPC 1.3 of the Kansas Rules of Professional Conduct (KRPC) (2019 Kan. S.Ct. R. 298) did not trigger the Sedgwick County District Court's duty to inquire into a potential conflict between Bacon and his appointed attorney. We assume error but affirm because Bacon retained new counsel for trial; he does not claim his trial attorney was ineffective; and he has not otherwise identified any prejudice flowing from the error. In short, Bacon got the remedy he sought-new counsel for trial-and on this record, there is no showing of prejudice.

         One evening in August 2014, an officer stopped Bacon and a young woman for jaywalking in Sedgwick County. The officer soon discovered that the young woman was a 17-year-old minor and an active runaway. She told the officer that Bacon had driven her to solicit prostitution on Broadway Street the last few nights. Bacon later admitted this was true but insisted that the prostitution was her idea, even though the money went to him.

         The State charged Bacon with one count of aggravated human trafficking. See K.S.A. 2014 Supp. 21-5426(b)(4). The district court determined Bacon was indigent and appointed a public defender, James Mamalis, to represent him.

         Mamalis continued Bacon's preliminary hearing seven times between August and November 2014. Then on December 1, 2014, Bacon filed a handwritten pro se "Motion for Diligence," which contained a copy of KRPC 1.3 and part of the accompanying comments. See KRPC 1.3 (2019 Kan. S.Ct. R. 298). The motion read in its entirety:

"K.R.P.C. 1.3 Motion For Diligence
"A Lawyer Shall Act with Reasonable diligence and promptness in representing a Client. "1) A lawyer should pursue a matter [on behalf] of a client despite opposition obstruction or personal inconvenience to the lawyer and may take whatever Lawful and ethical measures are required to vindicate [a] clients cause or endeavor a lawyer should act with commitment and dedication to the interest of the client and with zeal in advocacy upon the Clients behalf. However a lawyer in [sic] not bound to press for every advantage that might be realized for a client. A Lawyer has professional discretion in determining the means by which a matter should be pursued[.] See Rule 1.2[.] A lawyers work load should be controlled so that each matter can be handled adequately. 2) Perhaps no professional shortcoming is more widely resented than procrastination. A clients interest often can be adversely affected by the passage of time or the change of conditions in extreme instances as when a lawyer overlooks A Statute of limitations the clients legal position May be destroyed even when the cliens [sic] interests are not affected in substance However unreasonable delay can cause A client needless Anxiety and undermind [sic] Confidence in the lawyers Trustworthiness. 3) unless the relationship is terminated as provided in rule 1.16 A lawyer should carry through to conclusion all matters under-taken for a client if a lawyers employment is limited to specific matters the relationship terminates when the matter has been resolved."

         A week later, Bacon filed the same pro se motion again. The district court mailed a copy of the motion to Mamalis and the State. The court advised Mamalis by letter, "We await further direction from you as to how to proceed on this ...


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