State Of Kan. v. Aguilar

• Citation: 231 P.3d 563
• Decision Date: 21 May 2010
• Docket Number: No. 95,249.,95
• Parties: STATE of Kansas, Appellee,v.Shannon R. AGUILAR, Appellant.
• Court: United States State Supreme Court of Kansas

231 P.3d 563

STATE of Kansas, Appellee,v.Shannon R. AGUILAR, Appellant.

No. 95,249.

Supreme Court of Kansas.

May 21, 2010.

Syllabus by the Court

1. The competence of plea counsel is one factor to consider on a presentence K.S.A. 22-3210(d) motion to withdraw plea, but a defendant is not required to show ineffective assistance rising to the level of a violation of the Sixth Amendment to demonstrate good cause under the statute.

2. A district judge's failure to apply the correct legal standard under K.S.A. 22-3210(d) in a plea withdrawal hearing is an abuse of discretion.

3. Under the particularly egregious facts of this case, in which a conflict of interest between the defendant and her codefendant was insurmountable, and the record reveals no sufficient disclosure by counsel and waiver by the client, the defendant met her presentence K.S.A. 22-3210(d) burden to show good cause to withdraw her plea.

Carl A. Folsom, III, of Kansas Appellate Defender Office, argued the cause and was on the brief for the appellant.

Christopher L. Schneider, assistant district attorney, argued the cause, and Jerome A. Gorman, district attorney, and Phill Kline, former attorney general, were with him on the brief for appellee.

PER CURIAM:

Shannon Aguilar pleaded guilty to possession of cocaine in a constructive possession case. Before sentencing, she moved to withdraw her plea. She claimed, among other things, that her counsel had a conflict of interest because of his concurrent representation of Aguilar's codefendant. The trial court denied her motion, and the Court of Appeals affirmed. State v. Aguilar, 95,249, 2007 WL 518907, unpublished opinion filed February 16, 2007. This court granted Aguilar's petition for review.

Factual and Procedural Background

Police in Kansas City, Kansas, pulled over a vehicle for the driver's failure to use a turn signal. The driver was Leona Ayalla; Aguilar was the only passenger. Ayalla was a close family friend whom Aguilar referred to as her “aunt.” During the stop, the officers learned of an outstanding warrant for each woman and arrested both. An inventory search of the vehicle revealed three baggies of cocaine under Aguilar's passenger seat. While searching Ayalla, police found an additional two bags of cocaine and two bags of crystal methamphetamine inside her bra.

Ayalla was charged with possession of cocaine, possession of methamphetamine, and possession of a controlled substance without a tax stamp. Aguilar was charged only with possession of cocaine.

Both women retained Jeff Carlin as defense counsel. Carlin gave them a “deal,” agreeing to handle both clients' criminal cases for $1,500 total if they both pleaded guilty, and for $3,000 total if they chose to go to trial. Three days before Aguilar entered her plea, Carlin filed a motion to withdraw from his representation of Aguilar. According to the motion, Aguilar had failed to pay the agreed attorney fees, which made it “impossible for movant to zealously represent Defendant as is ethically required of an attorney licensed to practice law in the State of Kansas.”

Despite this motion, Carlin represented both women at their joint plea hearing 3 days later. There, Ayalla pleaded guilty to one count of possession of cocaine; the State dismissed all of the other charges against her. Aguilar also pleaded guilty to possession of cocaine, the only charge against her. The record contains no mention whatsoever of any discussion or disposition of Carlin's motion to withdraw. Aguilar signed a plea agreement, which indicated that she was represented by Carlin, that she was satisfied with the advice he had given her, and that the maximum punishment she faced was 42 months' imprisonment plus a $100,000 fine.

During the plea hearing, the court conducted a plea colloquy, confirming with Ayalla and Aguilar in succession that each had reviewed her plea agreement with Carlin and that neither defendant had any complaints about his representation. Both women agreed that the State could present the evidence outlined by the prosecutor.

After questioning each codefendant, the court found that the women “voluntarily, knowingly, and understandingly waived their constitutional rights and enter[ed] their plea of guilty, that there's a factual basis for the plea, and that they understand the nature of the charges and the consequences of the pleas.” At no point in the hearing, however, did the court inform Aguilar pursuant to K.S.A. 22-3210(a)(2) of the maximum punishment she faced for her crime.

Within days, Aguilar informed Carlin that she wished to withdraw her plea. At a previously scheduled sentencing hearing before a different district judge, Carlin informed the court of Aguilar's request. Because Aguilar now wished to “present to the court a conflicting defense” by withdrawing her plea, Carlin said he believed that he could not represent both defendants and requested to withdraw. The judge allowed Carlin to do so and appointed Craig Lubow to represent Aguilar. Per the State's request, the judge then reassigned the case to the judge who had taken Aguilar's original plea.

Approximately 3 weeks later, Lubow submitted a formal motion to withdraw Aguilar's plea. The motion claimed that she was not guilty of the crime charged, that she entered the plea under duress, and that she had ineffective assistance of counsel during the plea hearing and the negotiations leading to it. According to the motion, Aguilar “felt pressured to enter the plea” because “the codefendant is her ‘aunt’, although not biologically related.” The motion also claimed Carlin had a conflict of interest because of his simultaneous representation of Aguilar and Ayalla. Included in this claim was an assertion that Carlin told Aguilar that a plea by both defendants would save Aguilar substantial legal fees she could not afford.

The court held a hearing on the motion to withdraw Aguilar's plea the same day. Lubow first advised the court that Aguilar had stated that she wanted to withdraw her plea ahead of sentencing before a different judge, and “it was sent back down here for you to consider that.” The judge replied: “I have reviewed the motion.”

Among other contentions presented at the hearing, Lubow argued that Aguilar “had ineffective assistance of counsel during the plea negotiations” because Carlin, “was representing the codefendant simultaneously, and there was a conflict of interest there.” He cited State v. Taylor, 266 Kan. 967, 975 P.2d 1196 (1999), and State v. Ryan, 29 Kan.App.2d 297, 26 P.3d 707 rev. denied 272 Kan. 1422 (2001). Lubow further argued that, “when the trial court becomes aware of a possible conflict of interest between an attorney and a defendant charged with a felony, the court has a duty to inquire further,” again citing Taylor. Because “the Court was aware that Jeff Carlin was representing two codefendants” at the plea hearing and because “there was no inquiry as to whether or not that created a conflict of interest,” Lubow requested that Aguilar's plea be set aside. Lubow also told the judge that the drugs were Ayalla's, not Aguilar's, and that Aguilar had pleaded as charged, with no concession by the State. Lubow argued “that she did feel duress and was not wanting to do the plea at the time, but was pressured to do that, and would not have done that if she had separate counsel.”

The State responded that the court had conducted the usual plea colloquy during the plea hearing and that Aguilar had said she was satisfied with Carlin's performance. The State also argued that there was no evidence of conflict of interest.

Aguilar provided brief testimony at the hearing after counsels' arguments. Among other things, Aguilar testified that she had felt financial and personal pressure to plead guilty as a result of her relationship with Ayalla and her inability to pay Carlin's higher trial fees: “$750 apiece only if we pled the same plea.” (Emphasis added.) Aguilar suggested that she felt pressure because she believed a not guilty plea would lead to her charge being added to her aunt's charges. Ayalla was already in jail while Aguilar stayed with Ayalla's children. “I did not [have] any idea that she [Ayalla] was going to get all that stuff dropped, or I would not have pled guilty.” On cross-examination, she acknowledged that she had told the court during the plea hearing that she thought Carlin's services were satisfactory.

Carlin did not testify, nor was he present at the hearing. The only explanation for his absence is found in the State's appellate brief, which states “there was not [an] opportunity to bring Mr. Carlin before the court” because Aguilar's written motion was not delivered to the State until the day of the hearing.

At the close of the plea withdrawal hearing, the judge ruled from the bench, denying Aguilar's motion to withdraw her plea saying:

“Ms. Aguilar, the dilemma the Court faces now is, I have to determine when you were telling the truth, were you telling me the truth in your responses on the day we took the plea, or are you telling the truth today. I have a hard time finding-really now, at this point, knowing when you were telling the truth. I spent thirteen pages and about 15 minutes going-asking you and your codefendant various questions about the plea. I had you under oath. You made what seemed to be appropriate responses and I thought, at the time, truthful responses; and frankly, at this time, I still think they were truthful. I think you-either because you don't want to do the [drug] treatment or you don't want to be on probation-I don't know what the reason is; but I think that the plea was voluntarily given-given without any threats, any promises. The fact that you say you're not guilty now, when you clearly stated to me that you were guilty, hasn't changed my mind. I don't think you were under duress. And-and fourth-the fourth reason, that Mr. Carlin gave you ineffective assistance of counsel-I've had Mr. Carlin in this courtroom a lot

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