State v. Jackson
| Decision Date | 25 November 2015 |
| Docket Number | No. 112,575.,112,575. |
| Citation | 52 Kan.App.2d 125,363 P.3d 408 |
| Parties | STATE of Kansas, Appellee, v. Deshawn JACKSON, Appellant. |
| Court | Kansas Court of Appeals |
Christina M. Kerls, of Kansas Appellate Defender Office, for appellant.
Russell W. Hasenbank, county attorney, and Derek Schmidt, attorney general, for appellee.
Before GREEN, P.J., HILL, J., and TIMOTHY G. LAHEY, District Judge, assigned.
Deshawn Jackson appeals the trial court's denial of his postsentencing motion to withdraw plea. On appeal, Jackson argues that there are two reasons the trial court erred when it denied his motion. First, Jackson argues that he has established that his attorney, Aaron Gipson, coerced him into accepting the plea agreement by telling him that if he rejected the plea agreement he would receive the maximum possible sentence. Second, Jackson argues that Gipson provided ineffective assistance of counsel due to a conflict of interest that adversely affected his representation. Although Jackson's argument regarding coercion fails, Jackson successfully shows that Gipson had a conflict of interest that adversely affected his representation. Thus, the trial court erred when it denied Jackson's motion to withdraw plea. Consequently, we reverse Jackson's conviction and remand to the trial court with directions to grant his motion to withdraw plea.
Jackson was convicted of aggravated battery in Seward County case number 10CR545. Jackson's codefendant in this case was Francisco Beltran. Although it is unclear exactly with what the State charged Beltran, the Seward County case number associated with Beltran's case is 10CR546. Attorney Aaron Gipson represented Beltran in 10CR546. Ultimately, both Jackson and Beltran received probation for their convictions in 10CR545 and 10CR546 respectively.
On November 26, 2011, while Jackson was on probation for 10CR545, Jackson and his girlfriend, Alexandra Duran, got into an argument at their home. During the first part of the argument, Jackson grabbed Duran by the neck and told her that he would hurt her if she did not give him gas money. Later, Jackson told Duran to lie on her stomach with her hands behind her back on the bed. As Duran lay on the bed, Jackson bound Duran's hands together with shoelaces and placed tape over her mouth. Then, Jackson forced Duran into a bathtub filled with running water. Jackson attempted to force Duran's head under the water several times before the tape fell off and she was able to get one of her bound hands loose.
After Duran got free, Jackson took Duran to his sister's house. Jackson's sister, Lani Jackson, and Lani's boyfriend were inside the house. Duran, who still had a shoelace bound around one of her wrists, saw both Lani and Lani's boyfriend as Jackson forced her into the house. Lani and her boyfriend were sitting together on a bed when Duran overheard Jackson tell Lani that he was tired of Duran and that he was going to take her out and kill her. Although Duran later testified at the preliminary hearing that she did not know the identity of Lani's boyfriend, Jackson's presentence investigation report identified the man sitting on the bed with Lani as Francisco Beltran.
Eventually, Jackson, Duran, and Lani went to a gas station. Jackson told Duran to go into the gas station and buy some juice. Once Duran went inside the gas station, she called the police.
The police arrested Jackson and brought Duran to the police station for an interview. During the interview, the investigating police officer observed that Duran had red welts and slightly broken skin around both of her wrists. The investigating police officer also observed that the bottom of Duran's shirt was wet.
On November 30, 2011, in Seward County case number 11CR411, the State charged Jackson with the following: one count of attempted first-degree murder, a severity level 1 person felony, in violation of K.S.A. 2011 Supp. 21–5402(a)(1) ; one count of aggravated kidnapping, a severity level 1 person felony, in violation of K.S.A. 2011 Supp. 21–5408(b) ; one count of aggravated robbery, a severity level 3 person felony, in violation of K.S.A. 2011 Supp. 21–5420(b) ; and one count of aggravated battery, a severity level 7 person felony, in violation of K.S.A. 2011 Supp. 21–5413(b)(1)(B). Furthermore, because of the 11CR411 charges, the State moved to revoke Jackson's probation in 10CR545.
On December 1, 2011, the trial court appointed Gipson to represent Jackson in 11CR411. Gipson was also appointed to represent Jackson on his probation revocation in 10CR545. Beltran, Gipson's former client in 10CR546, had been subpoenaed as a State's witness against Jackson in 11CR411.
Furthermore, Gipson was also reappointed to represent Beltran. It seems that the State had moved to revoke Beltran's probation in 10CR546. It is unclear from the record why the State moved to revoke Beltran's probation. It is also unclear from the record the exact date Gipson was reappointed to represent Beltran on the probation revocation in 10CR546. At Jackson's motion to withdraw plea hearing, however, Gipson testified that Beltran's probation was revoked on January 20, 2012. Thus, for a time, Gipson was concurrently representing both Jackson and Beltran.
On December 28, 2011, the trial court held a preliminary hearing in 11CR411. Beltran did not testify at the preliminary hearing. Then, on March 5, 2012, Jackson entered into a plea agreement with the State.
Under the plea agreement, the State amended the charges against Jackson. The State amended the one count of first-degree attempted murder to one count of second-degree attempted murder, a severity level 4 person felony, in violation of K.S.A. 2011 Supp. 21–5403 and K.S.A. 2011 Supp. 21–5301. Furthermore, the State dismissed the remaining charges against Jackson. The State also agreed to recommend that the trial court impose the standard sentence for the attempted second-degree murder count so long as Jackson stipulated his sentence in 11CR411 would be consecutive to his underlying sentence in 10CR545; it seems Jackson's probation in 10CR545 had been revoked.
In accordance with this agreement, Jackson pled no contest to one count of attempted second-degree murder. During the plea colloquy, Jackson stated that no one had threatened him into accepting the plea agreement. Additionally, Jackson stated that he was satisfied with Gipson's representation. The trial court ultimately accepted Jackson's no contest plea. In 11CR411, the trial court sentenced Jackson to 71 months' imprisonment followed by 24 months' postrelease supervision. The trial court ordered that Jackson's sentence in 11CR411 run consecutive to Jackson's sentence in 10CR545. The journal entry of judgment in 11CR411 indicates that Jackson's sentence in 10CR545 was 16 months' imprisonment.
In March 2013, Jackson moved to withdraw his no contest plea in 11CR411. In his pro se motion, Jackson alleged that Gipson threatened him into accepting the plea agreement, telling him that he would receive the maximum sentence if he went to trial. Jackson also alleged that Gipson's dual representation of both him and Beltran was a conflict of interest that resulted in ineffective assistance of counsel.
The trial court appointed counsel to represent Jackson on his motion to withdraw plea. A hearing on this motion was held in April 2014. The only evidence presented at this hearing was the testimony of Jackson and Gipson. Jackson testified that Gipson had threatened him into accepting the plea by telling him that he would receive the maximum sentence for all of his charges if he went to trial. Moreover, Jackson testified that he believed that Gipson's dual representation of him and Beltran was a conflict of interest that limited Gipson's representation. Jackson further testified that Gipson hid the fact that he had a conflict of interest. Jackson asserted that Gipson never told him that he was also representing Beltran, and he only learned that Gipson was representing Beltran following his conviction.
Gipson testified that he never threatened Jackson. Gipson testified that he simply told Jackson that the prosecutor had told him he would be pursuing the maximum sentence for each charge against Jackson if Jackson did not accept the plea. Gipson also testified that he told Jackson that he was also representing Beltran. Gipson testified that Jackson told him that he was "okay" with this because Beltran "wasn't really a witness to anything." Furthermore, without prompting, Gipson brought up the fact that he never obtained a signed written waiver from Jackson. At the hearing, Jackson's attorney asked Gipson the following, "And the issue that we have in this case is that at no point was it waived that there was a conflict between the representation of those number of people; is that right?" Gipson responded,
The trial court denied Jackson's motion to withdraw plea. Regarding Jackson's allegation that Gipson had threatened him to accept the plea, the trial court found that Gipson's testimony was more credible. Regarding Jackson's allegation that Gipson had a conflict of interest resulting in ineffective assistance of counsel, the trial judge stated that Gipson's concurrent representation of Jackson and Beltran was troubling. Nevertheless, the trial judge found that even though there was a conflict and Gipson should have obtained Jackson's waiver of the conflict in writing, he believed that Gipson told Jackson that he was also representing Beltran. Thus, the trial court found that Jackson had not established manifest injustice to withdraw his plea because Jackson was aware of the conflict and had received the benefit of his plea bargain.
On appeal, Jackson asserts that the trial court erred when it denied his motion to withdraw plea for two reasons....
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