State v. Hubbard, 121

• Court: Court of Appeals of Kansas
• Writing for the Court: PER CURIAM.
• Decision Date: 15 January 2021
• Parties: State of Kansas, Appellee, v. Arkadtis R. Hubbard, Appellant.
• Docket Number: 121,757

State of Kansas, Appellee,
v.
Arkadtis R. Hubbard, Appellant.

No. 121, 757

Court of Appeals of Kansas

January 15, 2021

NOT DESIGNATED FOR PUBLICATION

Appeal from Sedgwick District Court; John J. Kisner Jr. and Jeffrey Syrios, judges.

Peter Maharry, of Kansas Appellate Defender Office, for appellant.

Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.

Before Arnold-Burger, C.J., Powell and Gardner, JJ.

MEMORANDUM OPINION

PER CURIAM.

Arkadtis R. Hubbard appeals from the denial of a request for appointed or standby counsel during trial after the district court allowed him to represent himself at trial, as well as from the district court's pretrial rulings denying his requests for standby counsel. As to his request for court-appointed counsel at trial, the court determined that Hubbard made the request in bad faith and that appointing counsel would materially disrupt the proceedings. After a thorough review of the questions presented, we find no error and affirm the district court's rulings.

Factual and Procedural History

Officer Tyce Atwood, with the Wichita Police department, was on patrol one evening in January 2017 when he noticed a Buick run a stop sign. He turned on his lights to initiate a traffic stop but the Buick sped away. Thus began a high-speed pursuit in excess of 95 miles per hour that eventually ended when the Buick hit another vehicle and came to a stop in a ditch. A man, later identified as Hubbard, exited the vehicle and fled on foot. The officer gave chase and found Hubbard hiding under an overpass. Once other officers arrived, they placed Hubbard under arrest. During the foot chase, the officer observed Hubbard remove his coat, which an officer later located. Inside, they discovered a small clear bag containing a white powdery and crystal-like substance, an Altoids tin containing a yellow pill, and a black bag containing a blue pill. Testing indicated that both pills were methamphetamine.

The State charged Hubbard with one count of possession of methamphetamine, a felony in violation of K.S.A. 2016 Supp. 21-5706(a) and (c)(1); alternative counts of fleeing or attempting to elude an officer, in violation of K.S.A. 2016 Supp. 8-1568(b)(1)(C) or (D); one count of driving while suspended in violation of K.S.A. 2016 Supp. 8-262(a)(1); and one count of failure to stop, in violation of K.S.A. 8-1528. Because of Hubbard's indigency, the district court appointed a public defender to represent him following his first appearance.

Before the preliminary hearing, Hubbard moved to dismiss his appointed counsel based on claims of ineffective assistance and conflicts with his public defender. In lieu of appointed counsel, Hubbard requested to represent himself or to be provided only standby counsel. The district court took up these motions at the scheduled preliminary hearing on January 30, 2018. After reviewing the factors from State v. Lowe, 18 Kan.App.2d 72, 76-77, 847 P.2d 1334 (1993), and finding Hubbard had knowingly and intelligently waived his right to counsel, the court allowed him to proceed pro se but declined to appoint standby counsel. After the State presented its evidence, the court granted Hubbard's request for a continuance of the preliminary hearing so that Hubbard could present evidence.

The district court continued the preliminary hearing several more times at Hubbard's request, during which the court appointed an investigator to help Hubbard serve subpoenas to witnesses and obtain evidence. During this time, the court also declined Hubbard's request for standby counsel.

Ultimately, the preliminary hearing resumed on March 28, 2018. Hubbard questioned an officer involved in his arrest and submitted body cam videos of the incident as evidence. The district court bound Hubbard over for trial and he entered a plea of not guilty, then requested appointed counsel "from here on out." The court appointed the public defender again but also advised Hubbard that the right to request appointed counsel was "not just absolutely automatic" and could be denied "under certain circumstances." As an example, the court told Hubbard that "[i]f you show up a couple of days before trial or you show up the day of trial and say, hey, judge, I want a lawyer, it may be too late."

Three months later, Hubbard moved again to dismiss appointed counsel. During a preliminary hearing in an unrelated criminal case, Hubbard asked to proceed pro se in both cases. As a result of Hubbard's "behavior and comments in court" as the court began going over the Lowe factors, it ordered a competency evaluation for Hubbard and removed the cases from the docket.

Two months later, the district court issued an order finding Hubbard to be competent and placed the case back on the docket. The court also granted Hubbard's request to proceed pro se after going over the factors from Lowe, ultimately finding that Hubbard "knowingly and intelligently waived his right to counsel and has knowingly and intelligently made a decision to represent himself." However, the court declined to appoint standby counsel, explaining that the previous denial was "the law of the case" and noting on the order of denial that "[t]he public defender (previous counsel) cannot perform that function."

About four months later, on the Friday before the scheduled jury trial, Hubbard asked the district court to appoint his counsel from another case, Mark Hartman, to represent him in this case. Although the State said it was ready for trial, it did not object to a continuance so Hartman could prepare for the trial. Ultimately, the court granted Hubbard's request and continued the trial date to May 2019.

Seventeen days before trial, Hubbard moved again to proceed pro se, arguing that Hartman was providing ineffective assistance. The district court took up that motion at a hearing six days later, ultimately finding that Hubbard had an unqualified right to represent himself if asserted before trial and went over the Lowe factors with him again, concluding that Hubbard had made a knowing and intelligent decision to represent himself. Later at that hearing, the district court explained that Hubbard could still file his planned motion to dismiss but declined to grant a continuance of the trial. Hubbard repeatedly stressed that he was not requesting a continuance at that time.

The three-day jury trial began as scheduled. At the outset, Hubbard moved to dismiss the charges and for a continuance, explaining that the clerk's office had refused to accept his handwritten motion because it was being submitted by a third party. Hubbard said he had asked his investigator to drop the motion off with the clerk's office the Friday before the trial. The district court allowed Hubbard to file the motion but denied the request for a continuance, and the parties proceeded with jury selection. The court denied the motion to dismiss.

The State's first witness at trial was Officer Atwood, the officer who saw the Buick run the stop sign and then started the pursuit that ultimately led to Hubbard's arrest. During cross-examination, Hubbard requested a bench conference. With only the parties and judge present, Hubbard explained that he was "having a difficult time with [his] emotions" and did not want to "get out of order" or "disrespect" the courtroom. Hubbard then asked for "[s]tand-by counsel, counsel," but later clarified that he was asking for counsel to represent him at trial "[b]ecause I'm having difficulty presenting my evidence." The State objected to standby counsel because "there's no right to hybrid representation," but asserted it would need to research Hubbard's request for appointed counsel over the lunch break.

After the break, the State asked the district court to deny Hubbard's motion for appointed counsel based on State v. Campbell, No. 116, 551, 2018 WL 1352541 (Kan. App. 2018) (unpublished opinion), rev. denied 308 Kan. 1596 (2018). The State explained that Campbell was "very, very similar to the situation we find ourselves in today." The State explained that in Campbell, the defendant had elected to proceed pro se and the court had denied his requests for standby counsel before trial "as is common in this jurisdiction." The defendant then made "essentially the same motion Mr. Hubbard's making today" during the trial, which the court ultimately denied as untimely and because appointing counsel would have been materially disruptive. As a result, the State asserted that Hubbard's similar request was being made in bad faith and would disrupt the trial.

Hubbard responded that he was "forced to go pro se" because of ineffective assistance and "not being able to trust [Hartman]." Hubbard also understood his right to counsel under the Sixth Amendment to the United States Constitution meant he could request appointed counsel "at any time."

Ultimately, the district court denied Hubbard's requests. First, the court explained that allowing hybrid representation is a discretionary act and generally not allowed by the Sixth Amendment, as explained in Campbell. The court noted that the public defender's office refused to act as standby counsel due to malpractice concerns and that appointing standby counsel would "cause significant delay" and require a mistrial. The court questioned who it could even appoint, explaining:

"Mr. Hartman isn't available. He won't do it Mr. Hubbard doesn't want him to do it. I don't believe anybody in the conflicts office would do it. So I'd have to get private counsel to do it, and no counsel is going to come in here nor would I order counsel to come in here and be stand-by in a trial that they know nothing about."

As for the request for appointed counsel, the district court explained, based on State v. Plunkett, 261 Kan. 1024, 1028-29, 934 P.2d 113 (1997), that "although a defendant has a...