State v. Allen

• Decision Date: 06 April 2001
• Docket Number: No. 84,512.,84,512.
• Citation: 28 Kan. App.2d 784,20 P.3d 747
• Parties: STATE OF KANSAS, Appellee, v. HERMAN E. ALLEN, Appellant.
• Court: Kansas Court of Appeals

28 Kan. App.2d 784

20 P.3d 747

STATE OF KANSAS, Appellee, v. HERMAN E. ALLEN, Appellant.

No. 84,512.

Court of Appeals of Kansas.

Opinion filed April 6, 2001.

Randall L. Hodgkinson, assistant appellate defender, and Jessica R. Kunen, chief appellate defender, for appellant.

Richard A. Olmstead and Debra S. Peterson, assistant district attorneys, Nola Foulston, district attorney, and Carla J. Stovall, attorney general, for appellee.

Before GREEN, P.J., BEIER, J., and DAVID PRAGER, Chief Justice Retired, assigned.

GREEN, J.:

Herman Allen challenges the sentence imposed following a remand by this court to the trial court. The remand was to determine whether Allen received ineffective assistance of counsel regarding the inclusion of three battery convictions in his criminal history. The trial court refused to hear evidence on whether Allen's counsel fell below a reasonable standard of competence and denied his ineffective assistance claim. In addition, the remand was to determine if Allen could be sentenced under K.S.A. 1999 Supp. 21-4603d even though he was placed on parole by the State of California. The trial court determined that although Allen was entitled to presumptive probation for his convictions for burglary and theft, Allen's parole in California allowed the trial court to sentence him to imprisonment despite his presumptive probation status.

Allen agreed to plead guilty to reduced charges of two counts of vehicular burglary and one count of felony theft, all severity level 9 felonies. The presentence investigation report revealed Allen had three municipal misdemeanor battery convictions. These convictions were aggregated into one person felony, increasing Allen's criminal history score from E to C. As a result, the trial court sentenced Allen to consecutive terms of 13 months, 7 months, and 6 months.

On remand from this court, the trial court refused to hear testimony on whether Allen received ineffective assistance of counsel regarding the inclusion of the battery convictions in his criminal history. Instead, the trial court construed Allen's prehearing motion as a proffer of evidence on his ineffective assistance of counsel claim. The trial court reviewed the journal entries of the three misdemeanor convictions and determined that they were correctly aggregated to enhance Allen's criminal history score. Based on that finding, the trial court determined that Allen could not satisfy the prejudice prong under the two-prong test established in Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed.2d 674, 104 S. Ct. 2052 (1984). As a result, the trial court denied Allen's claim of ineffective assistance of counsel.

First, Allen contends that he was denied effective assistance of counsel. Our standard of review is well established. Before this court will find that defendant was deprived of effective assistance of counsel, the defendant must prove that (1) counsel's performance was sufficiently deficient to render that performance below that guaranteed by the Sixth Amendment; and (2) counsel's deficient performance was sufficiently serious to prejudice the defense and deprive the defendant of a fair trial. State v. Rice, 261 Kan. 567, 599, 932 P.2d 981 (1997) (quoting Strickland v. Washington, 466 U.S. at 687). The ineffective assistance of counsel inquiry involves mixed questions of law and fact, which are subject to de novo review. State v. Orr, 262 Kan. 312, 321, 940 P.2d 42 (1997).

Deficient Performance

Allen claims that his sentencing attorney's performance was deficient in allowing his three misdemeanors to be aggregated as one person felony without investigating their validity for enhancement purposes. Allen's proffer of deficient performance evidence indicated that his counsel received the presentence investigation report shortly before sentencing and reviewed it with Allen for accuracy. Because Allen did not dispute any of the convictions, counsel did not object to any of them.

Nevertheless, counsel "`has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.'" See State v. Orr, 262 Kan. at 327 (quoting Strickland, 466 U.S. at 691). When previous misdemeanor convictions are being used to enhance a defendant's sentence, defendant's counsel should make some inquiry about the validity of the convictions, especially when defendant has served a sentence on one or more of the convictions. This inquiry should be made especially when the record is silent or unclear on whether the defendant was represented by counsel or waived his right to counsel. K.S.A. 22-4709 permits both an inspection of records and a challenge to criminal history. Also, under K.S.A. 21-4715, if a defendant's counsel disputes a defendant's criminal history, the burden falls on the State to produce additional evidence. See K.S.A. 21-4715(c).

We are, however, impeded in our review of this matter because of the trial court's refusal to hear evidence and to make findings. When a trial court neglects to address an issue that has been remanded to it for consideration, this greatly hinders an appellate court from doing its job. Because the trial court failed to take evidence in this matter and to state the controlling facts on whether Allen's counsel's conduct fell below the standard of reasonable performance, we are unable to determine from this limited record if Allen's counsel performed in a deficient manner. Although we are unable to determine whether Allen's counsel's performance was deficient, it is clear that prejudice would flow from Allen's asserted error in sentencing.

Prejudice

Allen contends his misdemeanor pleas were obtained in violation of his Sixth Amendment right to counsel. Even if only one of Allen's misdemeanor convictions is constitutionally infirm, under the standards of Gideon v. Wainwright, 372 U.S. 335, 9 L. Ed.2d 799, 83 S. Ct. 792 (1963), he is prejudiced. See Graham v. State, 263 Kan. 742, 757, 952 P.2d 1266 (1998) (admission of prior conviction which is constitutionally infirm under Sixth Amendment standards is inherently prejudicial). Allen correctly claims if one of his misdemeanor convictions was invalid, his criminal history score would not have included a person felony. Thus, his score would have been E rather than C and he would have been sentenced to less time. See K.S.A. 1999 Supp. 21-4704. Assuming Allen would have received the presumptive maximum sentences with an E history score, he would have served 4 months less time, that is, 26 months under C versus 22 months under E. As a result, if one of Allen's misdemeanor convictions is invalid, he satisfies the prejudice prong under Strickland. See Glover v. United States, 2001 WL 15331 (U.S. Jan. 9, 2001) (any amount of actual jail time has Sixth Amendment significance).

Are the Misdemeanor Convictions Constitutionally Valid?

Three constitutionally valid misdemeanors can be aggregated into one person felony in order to raise a defendant's criminal history score and to enhance his or her sentence under the Kansas sentencing guidelines. K.S.A. 1999 Supp. 21-4711(a); State v. Delacruz, 258 Kan. 129, 135, 899 P.2d 1042 (1995). Both parties cite to Delacruz, which adopted and applied the rulings in Scott v. Illinois, 440 U.S. 367, 59 L. Ed.2d 383, 995 S. Ct. 1158 (1979), and Nichols v. United States, 511 U.S. 738, 128 L. Ed.2d 745, 114 S. Ct. 1921 (1994). Neither party cites to K.S.A. 12-4405, which provides for the appointment of counsel in municipal court proceedings as follows:

"If the municipal judge has reason to believe that if found guilty, the accused person might be deprived of his or her liberty and is not financially able to employ counsel, the judge shall appoint an attorney to represent the accused person."

When charged with a misdemeanor, a defendant's constitutional right to counsel is not absolute. An uncounseled misdemeanor is constitutionally valid if the defendant is not incarcerated. "Actual imprisonment" is the line defining when the constitutional right in misdemeanor cases is triggered. Delacruz, 258 Kan. at 132 (citing Scott, 440 U.S. at 373-74). If an uncounseled misdemeanor does not result in incarceration, it may be used in determining criminal history even for enhancement purposes. 258 Kan. at 135 (citing Nichols, 511 U.S. at 748). However, if a misdemeanor conviction results in jail time, either the record must demonstrate that the defendant was represented by counsel or that the defendant waived counsel, or the State must prove by a preponderance of evidence that the defendant was represented by or waived counsel, before it can be included in the defendant's criminal history. 258 Kan. at 140.

At the remand hearing, the district court reviewed the three journal entries and made the following findings:

"1. Defendant's exhibits show the defendant was advised of his rights in municipal court ... (docket number 93CM13133) and ... (docket number 92CM00038) and that he waived his rights in the latter case.... ([D]ocket number 95CM02347) shows neither."

The trial court relied on the following stamped language appearing on two of the journal entries: "DEFENDANT HAS BEEN ADVISED OF HIS CONSTITUTIONAL RIGHTS AND EHANCEMENTS." On one journal entry, the trial court accepted the prosecutor's explanation that a word written on the entry read "waiver" and indicated a waiver of rights.

Convictions 93CM13133 and 95CM02347

In 93CM13133 and 95CM02347, the journal entries reflect a judgment of both a fine and jail time. Although the municipal judge ordered jail time in each of these cases, it seems that the municipal judge did not require Allen to serve any jail time and placed him on probation both times. Nevertheless, Allen argues such a practice triggers the right to counsel. He contends his case is distinguishable from Delacruz, which did not consider the right to counsel under a conditionally suspended sentence scenario. Instead, he relies on a 10th...