Kinkel v. Lawhead, 03C21079; A137866.

• Decision Date: 12 January 2011
• Docket Number: 03C21079; A137866.
• Parties: Kipland Philip KINKEL, Petitioner–Appellant,v.Gary LAWHEAD, Superintendent, MacLaren Youth Correctional Facility, Defendant–Respondent.
• Court: Oregon Court of Appeals

240 Or.App. 403
246 P.3d 746

Kipland Philip KINKEL, Petitioner–Appellant,
v.
Gary LAWHEAD, Superintendent, MacLaren Youth Correctional Facility, Defendant–Respondent.

03C21079; A137866.

Court of Appeals of Oregon.

Argued and Submitted July 15, 2010.Decided Jan. 12, 2011.

[246 P.3d 747]

Dennis N. Balske, Portland, argued the cause for appellant. With him on the briefs was Lawrence Matasar.Susan G. Howe, Senior Assistant Attorney General, argued the cause for respondent. With her on the brief were John R. Kroger, Attorney General, and Jerome Lidz, Solicitor General.Before ORTEGA, Presiding Judge, and SERCOMBE, Judge, and LANDAU, Judge pro tempore.LANDAU, J., Pro Tempore.

[240 Or.App. 405] Petitioner was charged with a number of counts of aggravated murder and attempted aggravated murder arising out of incidents in which he shot and killed his parents and, the following day, fired semi-automatic weapons while at his high school, killing two and injuring nearly two dozen students. He was given court-appointed counsel, who negotiated a plea agreement to which petitioner ultimately agreed. The criminal trial court entered judgment in accordance with the agreement and sentenced defendant to over 100 years' imprisonment.

Petitioner later initiated this action for post-conviction relief, requesting that the judgment of conviction be set aside and the sentences vacated. In support of that request, petitioner contends that, among other things, he had received constitutionally inadequate assistance of counsel during the plea negotiations, that his acceptance of the plea agreement was not knowing and voluntary, and that the plea agreement should not have been accepted without the consent of his guardian ad litem. The post-conviction court denied relief, concluding that petitioner received adequate assistance of counsel, that his plea was voluntary, and that the approval of the guardian ad litem was not required by law. Petitioner appeals, assigning error to each of the foregoing rulings. We conclude that the post-conviction court did not err and affirm.

The relevant facts are not in dispute. Petitioner's convictions arise from the murder of his parents and a subsequent shooting rampage at Thurston High School in Springfield in May 1998, when petitioner was 15 years old. Petitioner was indicted on four counts of aggravated murder, 25 counts of attempted aggravated murder with a firearm, one count of attempted aggravated murder, six counts of assault in the first degree with a firearm, 18 counts of assault in

[246 P.3d 748]

the second degree with a firearm, and other felony offenses, for a total of 58 criminal charges. The trial court appointed Mark Sabitt and Richard Mullen to represent petitioner. Sabitt and Mullen had, respectively, 10 and 23 years' previous experience in representing criminal defendants. [240 Or.App. 406] Both also were experienced in dealing with clients who were mentally ill and whose legal competence was in question.

Sabitt and Mullen asserted a defense of guilty except for insanity. ORS 161.295. Over the course of the following year, they arranged to have petitioner submit to more than a dozen mental health evaluations, including psychological, psychiatric, and neurological evaluations. Among the examining experts were a child psychologist, Dr. Orin Bolstad, and psychiatrist, Dr. William Sack. Bolstad opined that, because of petitioner's age, it was too early to give an exact diagnosis, but that it was clear that petitioner had a psychotic disorder, most likely paranoid schizophrenia or a schizo-affective disorder, with symptoms that included auditory hallucinations and severe depression. The other psychiatric and psychological experts retained by the defense agreed. Based upon the recommendations of Bolstad and others, petitioner began taking antipsychotic medications.

Because petitioner was a minor, Sabitt and Mullen asked the court to appoint a guardian ad litem to facilitate the release of medical and school records that could be released only with the consent of a parent or guardian. The court appointed petitioner's aunt, Claudia Jurowski.

The state asked for permission to examine petitioner. In response, on July 2, 1999, Sabitt and Mullen instructed petitioner to stop taking his antipsychotic medications. Jail records indicate that between July 1999 and September 1999, petitioner's symptoms—auditory hallucinations and severe depression—became more intense due to the withdrawal of the antipsychotic medications and the stress of the impending trial. Petitioner resumed taking his antipsychotic medications on September 21, 1999.

In the meantime, defense counsel and the state pursued plea negotiations. On September 23, 1999, the parties participated in a mediated settlement conference. Although petitioner was not present at the settlement conference, Sabitt and Mullen had access to him at the jail and updated him throughout the settlement conference. Petitioner's guardian ad litem was also present to consult with petitioner.

[240 Or.App. 407] The mediation produced a potential settlement that involved pleading guilty to various lesser offenses, and for dismissal of some of the charges, which Sabitt and Mullen explained to petitioner. Under the terms of that proposal, petitioner would plead guilty to four counts of murder, for which he would receive concurrent 25–year sentences, and he would plead guilty to 25 counts of attempted murder and no contest to an additional count of attempted murder, for which he would receive sentences that remained up to the court. Petitioner agreed.

The following day, on September 24, 1999, petitioner pleaded guilty to four counts of murder and 25 counts of attempted murder, and pleaded no contest to one count of attempted murder. During the plea colloquy, the criminal trial court recited each paragraph of the plea agreement and asked petitioner if it was correct and if he had initialed each paragraph. To every question, petitioner responded in the affirmative. The court asked petitioner whether he understood the process by which the agreement was reached and the reasons for electing to accept the agreement rather than proceed to trial. Petitioner again responded in the affirmative. Jurowski, petitioner's guardian ad litem, was in attendance as the trial court reviewed the terms of the plea agreement with petitioner. A lengthy sentencing hearing followed, the details of which are not pertinent to the issues in this post-conviction proceeding. After the sentencing hearing, the criminal trial court sentenced petitioner to a total of 111 years and eight months' imprisonment. Petitioner challenged the lawfulness of those sentences on direct appeal on the ground that, among other things, they were unconstitutionally cruel and unusual; we upheld the constitutionality of the sentences. State v. Kinkel, 184 Or.App. 277, 56 P.3d 463, rev. den., 335 Or. 142, 61 P.3d 938 (2002).

[246 P.3d 749]

Petitioner then filed a petition for post-conviction relief based on multiple claims of constitutionally inadequate assistance of counsel and of criminal trial court error. Four of those grounds are pertinent to this appeal.

First, petitioner alleged that he was denied adequate and effective assistance of criminal trial counsel under the state and federal constitutions because Sabitt and [240 Or.App. 408] Mullen failed to request a mental examination to determine petitioner's competency prior to petitioner's acceptance of the plea agreement and his entry of guilty pleas. Petitioner contended that both Sabitt and Mullen were aware that, as a result of petitioner not taking his antipsychotic medications during the three months preceding the settlement conference, petitioner's auditory hallucinations and anxiety had significantly increased, making it possible that he was incompetent and, thereby, unable to accept the plea agreement. Because of that knowledge, petitioner contended, Sabitt and Mullen should have requested a competency examination, and their failure to do so was a failure to exercise reasonable professional skill and judgment and resulted in petitioner suffering prejudice. In support of that contention, petitioner relied on the testimony of Bolstad and Sack, who opined that, in retrospect, in light of petitioner's diagnosis, his behavior, and the fact that he had returned to taking his medication only shortly before the plea negotiations, it is unlikely that he was competent at that time.

Second, petitioner alleged that he also was denied adequate and effective assistance of criminal trial counsel under the state and federal constitutions because Sabitt and Mullen failed to obtain the consent of petitioner's guardian ad litem to the plea agreement. Petitioner contended that, if Sabitt and Mullen had done so, Jurowski, petitioner's guardian ad litem, would not have approved the agreement.

Third, and in a related vein, petitioner alleged that the criminal trial court erred by accepting petitioner's plea agreement and his waiver of his constitutional rights without his guardian ad litem's consent. To accept the plea agreement without her consent, petitioner argues, was a violation of his procedural rights under both the state and federal constitutions.

Last, petitioner alleged that he was denied due process under the Fourteenth Amendment to the United States Constitution and deprived of various state constitutional guarantees because his waiver of his constitutional rights by pleading guilty was not voluntary. Again, petitioner asserted [240 Or.App. 409] that, because he had not been using antipsychotic medications in the weeks before the negotiation of the plea agreement, he did not have the ability to waive his constitutional rights. According to petitioner, his waiver of rights was involuntary because it was motivated by his irrational fears of appearing in court, exposing his mental illness to the world, and being sent to the state mental hospital, and because it...