Wilkinson v. State, No. 99,169.

• Decision Date: 07 November 2008
• Docket Number: No. 99,169.
• Citation: 195 P.3d 278
• Parties: David WILKINSON, Appellant, v. STATE of Kansas, Appellee.
• Court: Kansas Court of Appeals

195 P.3d 278

David WILKINSON, Appellant, v. STATE of Kansas, Appellee.

No. 99,169.

Court of Appeals of Kansas.

November 7, 2008.

Michael P. Whalen, of Law Office of Michael P. Whalen, of Wichita, for appellant.

Matt J. Maloney, assistant district attorney, Nola Tedesco Foulston, district attorney, and Stephen N. Six, attorney general, for appellee.

Before LEBEN, P.J., BRAZIL and BUKATY, S.J.

LEBEN, J.

David Wilkinson pled guilty to a second charge of possession of cocaine based on a plea agreement in which the State agreed to recommend that his sentences for the two convictions be concurrent. The concurrent sentences were a significant incentive for the plea because concurrent sentences all share the same clock: the defendant serves only the longest sentence as less serious ones tick away alongside it. Consecutive sentences run separately and result in longer time in prison. But before Wilkinson could have been granted concurrent sentences, he had to clear a very high hurdle—and Wilkinson now claims that his attorney did not tell him about either the hurdle or its height.

As it turned out, the district court could not consider giving Wilkinson concurrent sentences on a level playing field because the second offense had been committed while he was on felony bond for the first offense. Kansas law provides for consecutive sentences in such cases unless that "would result in a manifest injustice." See K.S.A. 21-4608(d) and 21-4720(a). The manifest-injustice standard presents quite a high hurdle: a sentence results in manifest injustice only when it "is obviously unfair and shocks the conscience of the court." State v. Medina, 256 Kan. 695, Syl. ¶ 1, 887 P.2d 105 (1994). A defense attorney who fails to tell the defendant about that standard provides ineffective assistance of counsel because a defendant's knowledge that the playing field is sharply tilted against him is important. But the district court dismissed Wilkinson's motion under K.S.A. 60-1507 to set aside his plea, and we reverse and send the case back for an evidentiary hearing on whether Wilkinson's attorney failed to tell him about the manifest-injustice standard. If so, Wilkinson may well be entitled to withdraw his plea.

I. Under a Plea Agreement, the State Recommended Concurrent Sentences, But the Court Found No "Manifest Injustice" and Gave Wilkinson Consecutive Sentences.

Before Wilkinson pled guilty to his first charge for possession of cocaine, he was arrested on a second charge of cocaine possession. But the criminal case on the second arrest wasn't filed until shortly before he was sentenced on the first offense. In the first case, Wilkinson was given probation so he could enter a drug-treatment program, but he tested positive for cocaine use before treatment began. Authorities then picked Wilkinson up on a probation-violation charge for failing a drug test. At the same time, the second charge for possession proceeded to a plea.

Wilkinson admitted violating his probation in the first case and pled guilty to possession of cocaine in the second. As part of the plea agreement, the State agreed to recommend that the sentences run concurrently. The district court had given Wilkinson an underlying 28-month sentence to his probation and because Wilkinson violated probation, the court ordered Wilkinson to serve that sentence. The district court gave Wilkinson another 28-month sentence for the second charge. The court ordered that sentence consecutive—so Wilkinson must serve a total of 56 months. If the sentences had been concurrent, he would only have served 28 months.

The district judge concluded that he was required to make the sentences consecutive because to do otherwise, "I would have to make a finding of a manifest injustice. And frankly, I can't find that in this case." The judge noted that "[m]anifest injustice is a fairly high standard" and that the defendant had continued to use cocaine: "[A]nytime you give him an inch, he takes a mile and goes right back to those drugs again." Although Wilkinson argued that he had never received drug treatment, the record certainly supports the district court's comments. Wilkinson had used cocaine while his first case was pending and used cocaine again shortly after he was placed on probation in that case.

II. Wilkinson's Plea May Be Set Aside for Ineffective Assistance of Counsel.

A plea may be set aside for ineffective assistance of counsel if the defendant proves that: (1) the attorney's performance fell below a standard of reasonableness and (2) a reasonable probability exists that, but for the attorney's errors, the defendant would not have pled guilty and would have insisted on going to trial. State v. Adams, 284 Kan. 109, 118, 158 P.3d 977 (2007).

Wilkinson's motion was initially filed without an attorney's assistance and raised several issues that have not been pursued in this appeal. The motion didn't directly ask to withdraw his plea, but Wilkinson did say that his plea was invalid, improper, or not voluntary. Wilkinson also argued that the plea process would have been significantly different had he been told that a showing of manifest injustice was required to get his sentences to run concurrently. Because pro se motions under K.S.A. 60-1507 are liberally construed, Bruner v. State, 277 Kan. 603, 605, 88 P.3d 214 (2004), Wilkinson's motion should be construed as one to withdraw his plea based on ineffective assistance of counsel for failing to tell him of the manifest-injustice requirement for concurrent sentences.

III. Wilkinson Is Entitled to an Evidentiary Hearing on His Claim of Ineffective Assistance of Counsel.

The district court denied Wilkinson's motion without giving a rationale for rejecting his argument of ineffective assistance of counsel. Wilkinson had separately challenged the consecutive sentences, a challenge the district court properly rejected. The district court wrongly concluded that if the consecutive sentences were legally proper, there could be no viable claim that Wilkinson's lawyer had been ineffective. The district court considered the claim of ineffective assistance to be "premised entirely upon his assertion [that] the district court erred at sentencing." That's not true. Wilkinson argued that his lawyer was ineffective for failing to tell him that he had to meet the manifest-injustice standard to get concurrent sentences. The key elements to Wilkinson's argument all took place before a plea was entered: whether the lawyer failed to tell him about the standard and whether Wilkinson would have rejected the plea deal and insisted on going to trial had he known about it. Neither element is dependent upon whether "the district court erred at sentencing."

So we must answer the question...