State v. Grant-Adams

• Decision Date: 25 June 2021
• Docket Number: 121,833
• Court: Kansas Court of Appeals
• Parties: State of Kansas, Appellee, v. Bryan Grant-Adams, Appellant.

State of Kansas, Appellee, v. Bryan Grant-Adams, Appellant.

No. 121, 833

Court of Appeals of Kansas

June 25, 2021

NOT DESIGNATED FOR PUBLICATION

Appeal from Crawford District Court; Kurtis I. Loy, judge.

Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant.

Michael Gayoso Jr., county attorney, and Derek Schmidt attorney general, for appellee.

Before Gardner, P.J., Buser and Bruns, JJ.

MEMORANDUM OPINION

BUSER J.

Bryan Grant-Adams appeals his conviction and sentencing for violating the Kansas Offender Registration Act (KORA) K.S.A 22-4901 et seq. He raises three issues on appeal. First, Grant-Adams contends the district court erred when it did not allow his attorney who had a conflict of interest to withdraw and provide replacement counsel at the hearing on the motion to withdraw plea. We are persuaded this issue is meritorious. Second, Grant-Adams argues that our court should vacate his sentence and remand the matter to the district court to reconsider whether to include his 2014 conviction for criminal threat in the calculation of his criminal history score. This claim is also meritorious. Finally, Grant-Adams claims the revised Kansas Sentencing Guidelines Act (KSGA), K.S.A. 2020 Supp. 21-6801 et seq., violates his state and federal constitutional rights to a jury trial because it permits judicial fact-finding of prior convictions. We find no error.

Accordingly, we affirm in part, reverse in part, vacate his sentence, and remand with directions to appoint conflict-free counsel, reconsider the motion to withdraw plea, and resentence the defendant in accordance with this opinion.

Factual and Procedural Background

On June 14, 2019, Grant-Adams pled no contest and was found guilty of failing to register under KORA in violation of K.S.A. 2018 Supp. 22-4903(a) and (c)(1)(A). In return for the plea, the State agreed to dismiss other counts of failing to register and one count of perjury in this case, in addition to two other counts of selling methamphetamine in another case.

Shortly thereafter, Grant-Adams' attorney, Jason Wiske, filed a motion entitled "Amended Motion to Withdraw Plea and For Withdrawal of Appointed Counsel." In the two-page motion, Wiske advised that his client had informed him that "he wants to withdraw his plea." No reason was stated. Additionally, Wiske sought to withdraw as counsel because "he may be a factual witness in regard to the withdrawal of the plea and new counsel should be appointed."

At a hearing on the motion, both Grant-Adams and Wiske sought appointment of replacement counsel because Grant-Adams was asserting that Wiske was ineffective for failing to discuss potential defenses and certain aspects of the plea bargain with him and that he was frequently unavailable to discuss the case. For his part, Wiske stated that continuing to represent Grant-Adams would be a conflict of interest because his performance as Grant-Adams attorney was a basis for his client to withdraw the plea. The district court denied Wiske's request to withdraw as counsel and scheduled a hearing on the merits of the plea withdrawal motion for August 20, 2019.

Grant-Adams was the only witness to testify at the hearing. He said there were several grounds for withdrawal of his plea. First, he asserted that Wiske failed to tell him that the State planned to dismiss the drug charges in the other criminal case regardless of Grant-Adams' plea in this case. Second, that Grant-Adams had insufficient time to consider the plea agreement. Third, that communications with Wiske had broken down. Grant-Adams testified that if Wiske had provided him with all the necessary information, he "would have definitely admitted [his] guilt but then asked for probation or [a] downward departure," which he was not allowed to do under the plea agreement.

The district court denied the motion to withdraw plea, ruling that Grant-Adams knowingly and voluntarily entered his plea. At sentencing, the district court determined that Grant-Adams had a C criminal history score. Neither party objected to that ruling. Grant-Adams was sentenced to 36 months in prison. He appeals his conviction and sentence.

Denial of Attorney Withdrawal and Appointment of Conflict-Free Counsel

On appeal, Grant-Adams contends the district court failed to adequately inquire into the nature of the conflict between Grant-Adams and Wiske and failed to appoint conflict-free counsel for the hearing on the motion to withdraw plea. Grant-Adams asserts that these failures resulted in the functional absence of counsel at a critical stage which requires a reversal of the ruling denying the motion. See United States v. Cronic, 466 U.S. 648, 658-59, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). Alternatively, Grant-Adams claims that reversal is appropriate because Wiske's conflict of interest adversely affected his performance at the hearing. See Cuyler v. Sullivan, 446 U.S. 335 348, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980).

For its part, the State contends the district court made appropriate inquiries into the conflict of interest issue and that Wiske provided competent, conflict-free counsel to the defendant at the hearing on the motion to withdraw plea. We will address both aspects of the claimed error. A detailed factual recitation is necessary to evaluate this issue.

The district court was first advised of a potential conflict on August 16, 2019, when Wiske informed the court that Grant-Adams wanted to withdraw his plea because he had not understood it and he was unhappy with Wiske's representation. Under these circumstances, Wiske also sought to withdraw as counsel. At the hearing, Wiske informed the district court:

"But in regards to my motion to withdraw my client has informed me that he does not believe that he understood the plea. I have not got into the specifics about that with him because I think he's complaining about my representation and there's kind of a conflict of interest in regards to that so I'm asking the Court for leave to withdraw in this case [and] to appoint new counsel who can then file an appropriate motion to withdraw the plea." (Emphasis added.)

Wiske and Grant-Adams then had a colloquy with the district judge:

"MR. WISKE: Okay. Your Honor, like I said to the Court before[, ] my client informs me that he did not understand the plea or wants to withdraw it.

"What I may suggest we can do, Your Honor, the Court could interview Mr. Grant-Adams in chambers concerning his reasons for withdraw[al] of the plea without the [S]tate present or I could put him on the stand and he could testify concerning why he believes that he should be able to withdraw his plea and why new counsel should be appointed.

"THE COURT: Don't we really need those reasons to be in writing so that the prosecution has the opportunity to respond[?]

"MR. WISKE: Your Honor, that puts me in a difficult position. If he's complaining about my performance I'm having to put down in writing what is deficient in my performance. I would much rather have-

"THE COURT: I understand what you're saying. I'm going to ask him the question right now.

"Are you asking Mr. Wiske to withdraw?

"THE DEFENDANT: Yes.

"THE COURT: And what is the reason for that?

"THE DEFENDANT: Well, when we spoke about the plea bargain last time, we spoke on the phone, my concerns with it-my main concerns with it were all we ever spoke about was what madam prosecutor wanted to do. We never talked about a defense to my case or my side of this case at all. Just everything that's been brought to me, not just by him, but even previous lawyer. Well, this is what she wants. Well, okay, you know, what kind of defense do we have here? What are we looking at?

"THE COURT: We don't need any more than that.

"THE DEFENDANT: Okay.

"THE COURT: You're talking about events occurred prior to the plea?

"THE DEFENDANT: And then-

"THE COURT: Wait, wait. You're talking about events that occurred prior to the plea?

"THE DEFENDANT: And after, yes.

"THE COURT: What kind of events occurred after the plea?

"THE DEFENDANT: Well, I'm just trying to call and speak with him just to ask him about, you know, my thoughts and what's going on with this and throughout this whole thing I can't never get him.

"THE COURT: Mr. Grant-Adams, how many attorneys have you had on this case?

"THE DEFENDANT: I believe he's the third.

"THE COURT: Why is that?

"THE DEFENDANT: I couldn't tell you. I know the first two times she offered plea bargains I didn't agree with, my attorneys didn't like the [idea] that I wouldn't take them, they withdrew.

"THE COURT: Well, I didn't get the impression from your prior attorneys that was the reason at all. As a matter of fact they said other reasons.

"THE DEFENDANT: Like?

"THE COURT: I'm not going to get into it with you. One of them specifically you filed a disciplinary complaint against them.

"THE DEFENDANT: Yes.

"THE COURT: Well, unfortunately we have to have a hearing, an evidentiary hearing. We're going to have an evidentiary hearing regarding the request to get new counsel. We're going to have an evidentiary hearing regarding your motion to withdraw plea." (Emphases added.)

The State objected to the "last minute grandstanding by the defendant." The prosecutor, Reina Probert, opined that Grant-Adams was "just trying to delay the process and I think that he's finding himself, you know, five days from the penitentiary and now wants to withdraw his plea. I think it's as simple as that." In particular, Probert reminded the district court that at the plea hearing Grant-Adams testified that he had sufficient time to discuss the plea agreement with Wiske.

The district judge announced his ruling:

"THE COURT: Here's what we're going to do. On Tuesday, August 20, this is on the Court's calendar. At

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