State v. Hughes

• Citation: 224 P.3d 1149
• Decision Date: 12 February 2010
• Docket Number: No. 98,716.,98,716.
• Parties: STATE of Kansas, Appellee, v. Michael HUGHES, Appellant.
• Court: United States State Supreme Court of Kansas

224 P.3d 1149

STATE of Kansas, Appellee, v. Michael HUGHES, Appellant.

No. 98,716.

Supreme Court of Kansas.

February 12, 2010.

Matthew J. Edge, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.

Lesley A. Isherwood, assistant district attorney, argued the cause, and Nola Foulston, district attorney, and Steve Six, attorney general, were with her on the brief for appellee.

The opinion of the court was delivered by ROSEN, J.:

Michael Hughes seeks review of the Court of Appeals decision affirming the 19-month prison sentence he received for his aggravated escape from custody conviction. Specifically, he challenges the aggregation of the three uncounseled misdemeanor convictions used to enhance his sentence. He argues that the State failed to meet its burden to prove that he made a knowing and intelligent waiver of the right to counsel because the waiver form he signed in two of those actions did not comply with the standards established by this court in In re Habeas Corpus Application of Gilchrist, 238 Kan. 202, 708 P.2d 977 (1985).

Hughes pleaded guilty to aggravated escape from custody. His presentence investigation (PSI) report listed three prior uncounseled misdemeanor convictions that were converted to a felony for criminal history purposes pursuant to K.S.A. 21-4711(a). Prior to sentencing, he filed a motion challenging his criminal history score. Hughes complained that it was improper to aggregate the misdemeanor convictions because the waiver of counsel obtained in those cases was insufficient to prove that the waiver was knowingly and intelligently made.

The district court conducted a hearing on the motion. At the hearing Hughes argued that in entries 17 and 18 of the PSI report— Dodge City Municipal Court cases Nos. 95-80391 and 95-80579—the waiver form he signed did not comply with Gilchrist. He asserted that the Gilchrist sample waiver form included a certification by the judge; a certification not included on the waiver forms he signed. Hughes contended that without that certification, the State could not meet its burden to prove he had knowingly and intelligently waived his right to counsel. Hughes also contested entry 3 in the PSI report—a municipal court conviction from Wichita— arguing that despite his signing a valid waiver, it was impossible to ascertain if a knowing or intelligent waiver was actually made without a record to identify what was said at the time. Hughes has apparently abandoned that argument, as he did not raise it before either the Court of Appeals or in his petition for review. See State v. Hughes, No. 98,716, 2008 WL 4849236, unpublished opinion filed November 7, 2008, slip op. at 2.

The State responded that in the Dodge City cases, the waiver form Hughes signed, which consisted of one form with both case numbers on it, was identical to what Gilchrist required, and the lack of certification by the judge should not affect the determination of whether Hughes intelligently and knowingly waived his right to counsel.

The district court ruled that Hughes had signed the waiver form and acknowledged that he was fully advised by the court of his right to counsel at the time of the convictions. The court noted that the waiver form was not diminished by the omission of the certification recommended in Gilchrist because, by signing the form, Hughes acknowledged that he was given the substantive information at the heart of Gilchrist. The district court reasoned that Hughes' signature on the waiver form should "have consequences." Given that the form was signed by Hughes and the municipal court judge, the district court believed requiring an additional certification was surplusage. Accordingly, Hughes was sentenced to 19 months in jail.

Hughes appealed his sentence. On appeal he renewed his criminal history score challenge. He also alleged that it was error to use his criminal history—specifically his prior adult convictions and a prior juvenile adjudication—to increase his sentence without submission to a jury, arguing this was a violation of the Sixth and Fourteenth Amendments to the United States Constitution.

The Court of Appeals reviewed Gilchrist at length and determined that its requirements focused more on substance than on form. The court reasoned that the purpose of the waiver form was to assure Hughes had knowingly and intelligently waived his right to counsel, and if that fact was ascertainable from the form used, then the Gilchrist requirements were met. Consequently, the Court of Appeals concluded that the municipal courts were not required to utilize an exact copy of the sample form from Gilchrist and that the waiver signed by Hughes was sufficient. Hughes, slip op. at 8-9.

The Court of Appeals did not address Hughes' next argument, raised for the first time on appeal; Hughes contends that to be valid, the waiver required acknowledgment that he was informed of his right to appointed counsel if he was indigent. Hughes, slip op. at 9. Ultimately, the court concluded that there was substantial competent evidence that Hughes had been fully advised of his right to counsel and his subsequent waiver was knowingly and intelligently given. This court granted Hughes' petition for review of the Court of Appeals decision. Additional facts will be provided as necessary to the analysis of the issues presented. We now address the merits of Hughes' claims.

I. GILCHRIST'S WAIVER REQUIREMENTS

For his first issue, the appellant argues that two of his prior convictions should not have been included in the calculation of his criminal history because the written waiver of the right to counsel that he signed in those cases did not include a certification by the municipal court judge that is identical to the example waiver form offered by this court in Gilchrist.

The State must prove a defendant's criminal history score by a preponderance of the evidence. K.S.A. 21-4715(c). In that respect, this court's standard of review is limited to determining whether substantial competent evidence supports the district court's finding that the State has met this burden. State v. Presha, 27 Kan.App.2d 645, 648, 8 P.3d 14, rev. denied 269 Kan. 939 (2000). However, to the extent that we are asked to review the effect of the holding in Gilchrist, we are presented with a question of law subject to de novo review. See State v. Jefferson, 287 Kan. 28, 33-34, 194 P.3d 557 (2008).

Hughes' argument that the waiver of counsel he signed was invalid stems from this court's holding in Gilchrist, 238 Kan. 202, 708 P.2d 977. In Gilchrist, this court examined the requirements for a valid waiver of the right to counsel. Gilchrist was found guilty of battery in municipal court. He was not represented by counsel at trial, and no record was made of the proceeding. At sentencing, Gilchrist informed the court that he wanted counsel present. Despite this request, the court proceeded with sentencing, stating that Gilchrist could appeal the decision within 10 days. Although Gilchrist informed his counsel that he wished to appeal, an appeal was never filed. 238 Kan. at 203-04, 708 P.2d 977.

While in jail, Gilchrist filed a writ of habeas corpus with the district court, complaining that he had been denied his right to counsel in the municipal court proceedings. At the hearing, the municipal court judge, who had prior knowledge of Gilchrist's personal circumstances and knew he was not indigent, testified that at the time of Gilchrist's first appearance, he read to him the charges, explained the penalties, and asked if Gilchrist intended to have an attorney at trial. He testified that Gilchrist responded that he did not wish to have an attorney. Gilchrist, 238 Kan. at 204, 708 P.2d 977. Gilchrist admitted under oath that this testimony was accurate. In the end, the district court denied the writ because of Gilchrist's failure to directly appeal. 238 Kan. at 204-05, 708 P.2d 977.

That denial was thereafter appealed to this court. While it was ultimately decided that Gilchrist had been both properly advised of his rights and validly waived them by admitting that the judge's testimony was accurate, this court developed a procedure for recording future waivers of the right to counsel in municipal courts. Without requiring that every waiver of counsel be made on the record—a process too burdensome for the municipal courts—this court concluded that obtaining a written waiver was an effective solution. 238 Kan. at 209, 708 P.2d 977.

A sample of the suggested waiver form was included in the opinion:

                               "SAMPLE WAIVER
                   FOR THE CITY OF ____, ____
                         COUNTY, KANSAS
                CITY OF ____, Plaintiff
                vs
                ____, Accused Person
                

                (Municipal Court Identification
                No. ____)
                

WAIVER OF COUNSEL

The undersigned acknowledges that he or she has been informed by the Municipal Court of the charges against him or her, of the possible penalty, of the nature of the proceedings before the Court, of his or her right to have counsel appointed to represent him or her, if he or she is financially unable to obtain counsel and is determined to be indigent, all of which the undersigned fully understands. The undersigned now states to the Court that he or she does not desire to have counsel, either retained or appointed, to represent him or her before the Court, and wishes to proceed without counsel.

                   ______________
                  SUBSCRIBED AND SWORN TO before
                me this ___ day of ____, 19____
                   _____________
                

I hereby certify that the above named person has been fully informed of the charges against him or her and of the accused's right to have counsel, either retained or appointed, to represent the accused at the proceedings before this Court and that the accused has executed the above waiver in my presence, after its meaning and effect have been fully explained to the accused, this ___ day of ____, 19____.

                   ______________
                   JUDGE OF THE MUNICIPAL
                   COURT"
                

238 Kan. at 212, 708 P.2d 977.

It is the...