State v. Youngblood
| Decision Date | 08 May 2009 |
| Docket Number | No. 96,850.,96,850. |
| Citation | 206 P.3d 518 |
| Parties | STATE of Kansas, Appellee, v. Galen D. YOUNGBLOOD, Appellant. |
| Court | Kansas Supreme Court |
Michelle A. Davis, of Kansas Appellate Defender Office, argued the cause and was on the brief for appellant.
Jared S. Maag, deputy solicitor general, argued the cause, and Michael X. Llamas, assistant county attorney, and Paul J. Morrison, attorney general, were on the brief for appellee.
Galen Youngblood appeals his conviction and sentence for possession of hallucinogenic drugs, as a second offense. He claims that the prior misdemeanor conviction used to elevate the severity level of his current crime from a misdemeanor to a felony was unconstitutionally obtained without counsel or a valid waiver of counsel. Accordingly, Youngblood contends that the district court erred in convicting him of a felony in the current case. Finding the prior conviction to be constitutionally infirm, we reverse and remand.
In September 2004, Harvey County Sheriff's Department officers arrested Youngblood for driving on a suspended license. At the detention center, he was caught trying to discard a pipe, which subsequently tested positive for marijuana. The State charged Youngblood with driving while suspended, possession of drug paraphernalia, and possession of marijuana. Because of a prior misdemeanor possession of marijuana conviction in the Newton Municipal Court, the current possession of marijuana was charged as a felony pursuant to K.S.A. 65-4162(a), which provides:
Youngblood filed a motion to dismiss the felony possession of marijuana count. He argued that because the municipal court conviction was uncounseled and he had not waived his right to counsel in municipal court, its use to enhance the marijuana charge from a class A misdemeanor to a drug severity level 4 felony violated his Sixth Amendment rights. The State conceded that the prior conviction was uncounseled but argued that Youngblood had waived his right to counsel in municipal court.
On February 15, 2005, the district court conducted a hearing on the motion to dismiss. Youngblood presented the municipal court docket sheet, a printed form on which the boxes for showing attorney representation and waiver of counsel were left blank in his case. The State submitted a waiver of attorney form from the municipal court proceedings which had been signed by Youngblood. However, the form was dated November 1, 2004, which was over 3 weeks after Youngblood had been sentenced on the marijuana charge and after he had served 5 days in jail on a consolidated driving under the influence (DUI) charge.
The trial court took the matter under advisement so that it could review the case law cited by the parties. On February 28, 2005, the trial court issued a letter stating that it would allow the State to reopen the hearing on the motion. The court opined that the State had the burden of showing that the prior misdemeanor conviction was constitutionally obtained and that the new hearing was being offered to afford the State an opportunity to meet its burden. The court noted that, unless the State presented new evidence, the court could not find that the burden had been met.
The State got its second chance hearing on March 9, 2005. It presented the testimony of City of Newton Municipal Court Judge Brad Jantz. Judge Jantz testified that it was his practice to always discuss the waiver of counsel with defendants, but that he had no independent recollection of the actual discussion with Youngblood.
The trial court also heard evidence as to whether Youngblood actually served jail time as a consequence of the previous marijuana conviction. Judge Jantz testified that he had sentenced Youngblood to 6 months in jail on the possession of marijuana charge, and he believed that sentence was imposed consecutively to the DUI sentence. Youngblood was to serve the mandatory 5 days on the DUI conviction before being placed on probation on all of the charges in the case. On February 24, 2005, Youngblood's probation had been revoked and reinstated for 1 year, but he was ordered to spend an additional 2 days in jail.
Ultimately the trial court denied the motion to dismiss. The district court interpreted the case law as requiring the actual service of jail time to trigger the Sixth Amendment right to counsel. The court further opined that it was irrelevant that Youngblood had served actual jail time for his probation revocation, because at the original sentencing, he had been placed on probation. Additionally, the district court was persuaded by Judge Jantz' testimony that he always inquires about waiver of counsel.
The district court conducted a bench trial on September 1, 2005, based on stipulated evidence, which included the evidence presented at both hearings on the motion to dismiss. The trial court found Youngblood guilty of possession of hallucinogenic drugs, a second or subsequent offense, in violation of K.S.A. 65-4162(a)(3), a drug severity level 4 felony. Youngblood timely appealed, and the Court of Appeals affirmed his conviction.
We granted Youngblood's petition for review on the issue of whether the district court erred by enhancing the marijuana possession charge to a felony based upon a prior uncounseled municipal court conviction. The question has two components: (1) Whether Youngblood effectively waived his right to counsel in the municipal court prosecution; and (2) if not, whether the uncounseled municipal court conviction was unconstitutional so as to preclude its use to enhance the severity level of the crime in the subsequent prosecution.
"`[T]he [S]tate has the burden of showing that an accused was advised of his right to counsel, either retained or appointed, and that waiver of counsel was knowingly and intelligently made.'" In re Habeas Corpus Application of Gilchrist, 238 Kan. 202, 208, 708 P.2d 977 (1985) (quoting State v. Daniels, 2 Kan.App.2d 603, 605-06, 586 P.2d 50 [1978]). As the State acknowledges in its brief, a waiver of counsel may not be presumed from a silent record. See State v. Allen, 28 Kan.App.2d 784, 788, 20 P.3d 747 (2001); Daniels, 2 Kan.App.2d at 607, 586 P.2d 50.
Initially, the State submitted the post-dated waiver form to establish that Youngblood had waived counsel in the municipal proceeding. However, at the second hearing on Youngblood's motion to dismiss, the State focused on arguing that the right to counsel did not attach to the possession of marijuana charge in municipal court, rather than pursuing the argument that Youngblood had effectively waived his right to counsel. At that second hearing, the prosecutor did not ask the municipal judge a single question about the purported waiver.
However, the district court made its own inquiries about the waiver. In response to the district court's question as to what the municipal judge could tell the court about the waiver form which was signed after Youngblood had served his DUI jail time, the witness responded, "Very little." The municipal judge went on to say that occasionally a waiver form is filled out but not signed by an individual. In that case, the court will attempt to correct the oversight by having the form signed as soon as possible. The district court confirmed that the municipal judge did not dispute that the waiver form had been signed by both the judge and Youngblood on November 1, 2004, well after the plea hearing.
The municipal judge also answered in the affirmative to the district court's question: "Would it have been your practice at the time of the plea to ask if he waived counsel?" Pointedly, the district court did not inquire as to what the municipal judge would have advised Youngblood about his right to counsel, prior to asking whether he wished to waive it.
Defense counsel asked the municipal judge whether he had any independent recollection of whether Youngblood waived counsel on the day he pled or whether he waited to waive counsel until he signed the waiver form on November 1. The judge responded that he had "the general gist of the conversation with Mr. Youngblood in going through the standards, having done it hundreds of times with that inquiry but in terms of the exact quote of what he said, no. I don't." Again, no clarification was sought as to what "standards" the witness was referring or the nature and extent of the "inquiry" the municipal judge had made hundreds of times.
In Gilchrist, decided nearly two decades before Youngblood's municipal court appearance, this court clarified that the trial court must do more than simply ask a criminal defendant if he or she wants to waive counsel. "[T]he trial judge must advise the defendant of his right to counsel in `clear and unequivocal language.'" 238 Kan. at 207, 708 P.2d 977. Moreover, a "`person must be informed of the right to retained or appointed counsel before he or she can make a knowing and intelligent waiver of counsel.'" 238 Kan. at 207, 708 P.2d 977 (quoting Daniels, 2 Kan.App.2d at 607, 586 P.2d 50).
Apparently, the State would have us accept on faith that the municipal judge's standard procedure includes sufficiently informing the defendant of his or her rights, so as to meet the criteria for a valid waiver. However, Gilchrist stressed the need to have either a record of the court...
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