State v. Reu-El

Decision Date26 May 2017
Docket NumberNo. 113,799,113,799
Citation394 P.3d 884
Parties STATE of Kansas, Appellee, v. King Phillip Amman REU–EL, f/k/a Phillip Cheatham, Appellant.
CourtKansas Supreme Court

Meryl Carver–Allmond, of Capital Appellate Defender Office, argued the cause and was on the briefs for appellant.

Jodi E. Litfin, assistant district attorney, argued the cause, and Chadwick J. Taylor, district attorney, and Derek Schmidt, attorney general, were with her on the brief for appellee.

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

To withdraw a no contest plea before sentencing, a defendant must establish good cause for doing so. Here, King Phillip Amman Reu–El, formerly known as Phillip Cheatham, contends he met the good-cause burden by showing he was misinformed about how his no contest plea might affect his ability to pursue double jeopardy arguments on appeal. In turn, he argues, this means his plea was not knowingly entered. The district court determined Amman Reu–El had not established good cause, and it denied Amman Reu–El's motion to withdraw his plea.

We affirm. The record does not demonstrate that the district court abused its discretion in ruling Amman Reu–El had no basis to claim, after the fact, that he did not understand how the plea impacted his appellate rights.


We have previously considered an appeal in this case, which arises from the shooting deaths of two Topeka women and the severe wounding of another. The first appeal arose after a jury convicted Amman Reu–El on six counts: capital murder; in the alternative, two counts of premeditated first-degree murder; attempted murder; aggravated battery; and criminal possession of a firearm. The jury's unanimous decisions during the penalty phase led the district court to impose the death penalty for the capital murder conviction, plus 285 months for attempted murder, 43 months for aggravated battery, and 9 months for the criminal possession of a firearm, all to be served consecutively.

Amman Reu–El appealed, alleging violations of his right to effective assistance of counsel as guaranteed by the Sixth Amendment to the United States Constitution. We granted his motion for temporary remand to the district court for a hearing on his claims, pursuant to State v. Van Cleave , 239 Kan. 117, 716 P.2d 580 (1986). After the case returned to us, we unanimously concluded Amman Reu–El's trial counsel's performance in the guilt phase was deficient. Accordingly, we reversed Amman Reu–El's convictions and remanded the case. See State v. Cheatham , 296 Kan. 417, 428, 432–37, 439–55, 292 P.3d 318 (2013) ; see also In re Hawver , 300 Kan. 1023, 339 P.3d 573 (2014) (disbarring trial counsel due to his performance in Amman Reu–El's trial).

Proceedings after remand

On remand, Amman Reu–El's appointed counsel filed approximately 65 pretrial motions; Amman Reu–El, acting pro se, filed numerous additional motions in which he repeatedly challenged whether he could be retried at all. He generally contended the district court lacked jurisdiction; he received ineffective assistance of counsel; and retrial was improper because of due process, speedy trial, and double jeopardy concerns. Regarding double jeopardy, Amman Reu–El alleged two violations: First, the State was precluded from trying him again on capital murder and attempted murder charges after this court reversed the first trial convictions; and second, the State was wrongfully trying to use a 1994 manslaughter conviction as an aggravating factor for capital punishment and as support for his unlawful possession of a firearm charge. The district court rejected Amman Reu–El's pro se arguments and explained, inter alia , that the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution did not prevent the State from retrying a defendant if a conviction is reversed on grounds unrelated to guilt or innocence and it also did not prevent the State from using a prior conviction as a predicate element of the crime of criminal possession of a firearm.

Nevertheless, Amman Reu–El continued to assert these double jeopardy arguments during the pretrial proceedings. In his later arguments, he added a new contention: "[I]f according to Abney [v. ] United States , [431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977) ], ... this Court chooses to deny my double jeopardy claim" then "you cannot take me back to trial before the Kansas Supreme Court or the United States Supreme Court has an opportunity to review these matters." A brief discussion of Abney 's holding and rationale helps explain the proceedings that occurred from that point in Amman Reu–El's case.

In Abney , the United States Supreme Court considered the procedural avenues available to a defendant who raised a due process defense in federal court—specifically, whether a defendant could immediately appeal a pretrial order denying a motion to dismiss an indictment on double jeopardy grounds. 431 U.S. at 653, 97 S.Ct. 2034. The United States Supreme Court first recognized there is no constitutional right to appeal; consequently, if a right to appeal exists, that right must be granted by statute. 431 U.S. at 656, 97 S.Ct. 2034. The Court then examined the federal statute governing the right to appeal criminal cases in federal courts and noted that the statute generally requires a final decision before an appeal could proceed. 431 U.S. at 656–67, 97 S.Ct. 2034. Under that general rule, a defendant facing a second trial could not appeal a pretrial—i.e. , a nonfinal—ruling on double jeopardy. But the Court noted it had interpreted the federal appeals statute to include an exception to the finality requirement for collateral orders. And, after extensive discussion, the Court concluded the collateral orders exception applied to pretrial orders rejecting a double jeopardy claim. 431 U.S. at 657–62, 97 S.Ct. 2034. In part, the Court reasoned such an exception should apply because the protections guaranteed by the Double Jeopardy Clause

"would be lost if the accused were forced to ‘run the gauntlet’ a second time before an appeal could be taken; even if the accused is acquitted, or, if convicted, has his conviction ultimately reversed on double jeopardy grounds, he has still been forced to endure a trial that the Double Jeopardy Clause was designed to prohibit. Consequently, if a criminal defendant is to avoid exposure to double jeopardy and thereby enjoy the full protection of the Clause, his double jeopardy challenge to the indictment must be reviewable before that subsequent exposure occurs." 431 U.S. at 662, 97 S.Ct. 2034.

This quotation became the focal point for Amman Reu–El's arguments, as he wanted an appellate court to immediately consider and rule on whether he could be retried before that retrial actually took place. But the district court refused to extend Abney 's holding, which related to the federal statute only and did not dictate the way in which Kansas courts apply the Kansas statute that governs criminal appeals. See State v. Fisher, 2 Kan.App.2d 353, 579 P.2d 167, rev. denied 225 Kan. 846 (1978) (distinguishing wording of Kansas statute allowing appeals of criminal cases from federal statute at issue in Abney and holding Abney 's rationale could not be extended under Kansas law); see also State v. Webb , 52 Kan.App.2d 891, 896–98, 378 P.3d 1107 (2016) (decided after the district court proceedings in this case but reaffirming Fisher 's holding and, once again, refusing to extend Abney to allow the direct appeal of a pretrial motion rejecting a double jeopardy defense). Cf. In re Berkowitz , 3 Kan.App.2d 726, 728, 602 P.2d 99 (1979) (recognizing Kansas law did not allow a direct appeal of a pretrial double jeopardy ruling but holding the ruling could be properly challenged through a habeas corpus action, even before final judgment).

Just a few weeks before Amman Reu–El's second jury trial was scheduled to begin in district court, he filed a pro se habeas corpus action with this court. He challenged the district court's jurisdiction and argued that retrial would violate his right to a fair trial, his right to effective assistance of counsel, and the prohibition against double jeopardy. Meanwhile, in district court, Amman Reu–El's counsel asked the district court to stay the jury trial pending resolution of the habeas action. The district court denied the request, and the case proceeded to trial.

After jury selection began, the district court conducted a hearing outside the presence of the jury on a number of issues. Once again, Amman Reu–El asserted the district court lacked jurisdiction to move forward because of his double jeopardy claims and his pending habeas action. The district court noted that Amman Reu–El had "made a really good record" as to his double jeopardy objections, which the court had repeatedly considered and rejected. The court did so again.

Double jeopardy became an issue later during the same hearing when the court considered Amman Reu–El's request to dismiss his attorneys. Outside the State's presence, one of Amman Reu–El's attorneys explained that Amman Reu–El wanted new counsel because he disagreed with his current counsels' collective assessment that his double jeopardy arguments had no merit and that he had no right under Kansas law to immediately appeal the district court's denial of his double jeopardy claims. Amman Reu–El then addressed the court. After acknowledging the district court's repeated rulings on his double jeopardy arguments, Amman Reu–El cited Abney and insisted the district court had lost jurisdiction after he had requested the appellate courts to review his double jeopardy claims. The district court engaged in a lengthy colloquy with Amman Reu–El about this argument. Ultimately, the district court offered Amman Reu–El the option of representing himself but refused to appoint new counsel. The case proceeded without a change in counsel.

One week later, Amman Reu–El signed a plea agreement in which he agreed...

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