Wilmer v. State
| Decision Date | 04 November 2022 |
| Docket Number | 124,838 |
| Court | Kansas Court of Appeals |
| Parties | Clayton Deion Wilmer, Appellant, v. State of Kansas, Appellee. |
NOT DESIGNATED FOR PUBLICATION
Appeal from Leavenworth District Court; Gerald R. Kuckelman, judge. Affirmed.
Joseph A. Desch, of Law Office of Joseph A. Desch, of Topeka, for appellant.
Christopher Lyon, assistant county attorney, Todd Thompson county attorney, and Derek Schmidt, attorney general, for appellee.
Before Cline, P.J., Atcheson and Coble, JJ.
Clayton Deion Wilmer appeals the district court's denial of his K.S.A. 60-1507 motion because he claims the court erred by not appointing substitute counsel before trial. Although this issue ordinarily cannot be raised in a K.S.A. 60-1507 motion Wilmer asserts that his counsel on direct appeal was ineffective for failing to mention it, constituting an exceptional circumstance which allows our consideration of the issue.
We find the district court correctly denied Wilmer's motion because he failed to establish his dissatisfaction with trial counsel was justified. And since he has not shown appellate counsel was ineffective or that he was prejudiced by counsel's failure to raise this issue on direct appeal, he is not entitled to relief under K.S.A. 60-1507.
Wilmer shot a passenger in a vehicle driven by the mother of Wilmer's child, while that child, who was only a few months old, was in the backseat. State v. Wilmer, No. 117,080, 2018 WL 1127679, at *1 (Kan. App. 2018) (unpublished opinion). A jury convicted Wilmer of aggravated assault, criminal discharge of a firearm at an occupied vehicle, criminal possession of a firearm, and aggravated endangering of a child.
Motion to withdraw
About six months before trial, Wilmer was sentenced in an unrelated matter by the same judge who later presided over Wilmer's jury trial. The attorney appointed to represent Wilmer in the criminal case underlying this appeal, Debra Snider, was also appointed to represent him in that matter. At the sentencing hearing, the district court took up a motion to withdraw from Snider after she said Wilmer had requested new counsel the day before. Snider told the court that her communications with Wilmer had broken down to the point where neither of them believed it was in Wilmer's best interests for her to continue to represent him. She did not know whether he wanted new counsel for the unrelated matter, but he had requested new counsel in the case underlying this appeal.
When the district court asked Wilmer if he wanted Snider to withdraw in the unrelated matter, Wilmer said Snider could continue representing him in that matter if she was willing. So the court proceeded with sentencing in the unrelated matter, taking up arguments from Snider and the prosecutor about defense objections to Wilmer's criminal history, Snider's departure motion, and Wilmer's sentencing requests.
After the district court pronounced Wilmer's sentence, it took up Snider's motion to withdraw. Snider explained that she had relayed a plea offer to Wilmer the day before at which point their communications had broken down. She repeated that Wilmer had then asked to be assigned new counsel and said she joined in that request.
The district court denied the motion, noting Wilmer had been dissatisfied with each of his three appointed trial attorneys, even filing his own motions despite being represented by counsel. The court did not believe Wilmer would ever find an attorney that would satisfy him. It then explained:
Snider responded, "Judge, may I please note for the record that we are literally unable to effectively communicate at this point?" The district judge responded that they could use pen and paper to communicate suggestions and questions. Additionally, the judge stated, "If I just keep appointing lawyers, we'll just keep dragging this out, which does no one any good."
At that point, Wilmer complained about his lack of communication with Snider. He said that he only saw Snider the day before or the day of a court appearance. He claimed other inmates got letters twice a week from their attorneys, but none of his appointed attorneys had done that. Then Snider expressed concern for her professional reputation and potential issues involving her liability insurance if she continued to represent Wilmer. Even so, Snider's motion to withdraw was denied.
Wilmer's direct appeal
After Wilmer was convicted, he appealed his sentence through different counsel. A panel of this court vacated the aggravated assault conviction due to a jury instruction error but affirmed the rest of the convictions. Wilmer, 2018 WL 1127679, at *1.
Wilmer's K.S.A. 60-1507 motion
Wilmer then filed a timely pro se motion for habeas corpus relief under K.S.A. 60-1507. In his motion, Wilmer asserted several reasons why both his trial and appellate counsel had provided ineffective representation. The district court appointed counsel for Wilmer and granted Wilmer an evidentiary hearing. Before the hearing, Wilmer filed a pro se supplement to his motion, alleging additional defects in trial counsel's representation. And his appointed attorney filed a supplement as well, articulating even more defects in representation, including the court's failure to adequately inquire into a potential conflict of interest between Snider and Wilmer when Snider moved to withdraw. This last issue is the only one Wilmer raises on appeal.
Both Snider and Wilmer testified at the evidentiary hearing on the various complaints. As for her request to withdraw, Snider testified she made the request because Wilmer sent a letter to the district court asking to have her removed and alleging she was ineffective as counsel. She did not agree she was ineffective but asked to withdraw because that is what Wilmer wanted. She noted, "[W]hen a client puts it in writing and asks to have you removed, then I think it needs to be brought forward to the judge. . . .
And in order to try to give my client the best opportunity to have the-the representation that he wanted, I asked to be allowed to withdraw."
Snider denied having problems communicating with Wilmer but acknowledged they had differences of opinion on strategy. She testified she had adequate time to communicate with him before trial, and probably met with him more often than she normally met with clients in custody. Since she and Wilmer had frequent disagreements on strategy, she said it took "more than an average amount of meeting and discussing to try to come to a mutually agreeable strategy and direction going forward in the case." After her motion to withdraw was denied, she could not recall Wilmer requesting her to be removed again.
Snider felt she effectively represented Wilmer despite their communication issues. She pointed out her successful trial results, including the district court's dismissal of the aggravated assault charge against the child's mother after the close of evidence. And despite aggravated assault not being a lesser included offense of attempted first-degree murder, the jury was instructed on attempted voluntary manslaughter and aggravated assault as lesser included offenses of attempted first-degree murder and convicted Wilmer of the lesser offense of aggravated assault. Wilmer, 2018 WL 1127679, at *1.
Wilmer testified there was a lack of communication between Snider and him, claiming they spoke only 5 or 10 minutes before any court hearing. Wilmer was not satisfied with Snider's representation and believed their relationship was contentious. But he admitted he was successful at trial, beating the attempted murder charge and having another charge dismissed.
The district court denied Wilmer's motion, noting it was within the court's discretion to determine whether Wilmer's dissatisfaction with his court appointed counsel warranted the discharge of Snider's services and appointment of new counsel, and Wilmer did not establish justifiable dissatisfaction. The court also determined Wilmer did not establish trial and appellate counsel's representation was defective or that he had suffered prejudice from that representation.
Wilmer appeals the district court's denial of his K.S.A. 60-1507 motion. But the only issue he raises on appeal is the court's denial of Snider's motion to withdraw.
Generally a habeas corpus proceeding may not replace a direct appeal to correct mere trial errors. An exception exists, however, when constitutional rights are implicated, and exceptional circumstances excuse the failure to raise the issue on direct appeal. Supreme Court Rule 183(c)(3) (2022 Kan. S.Ct. R. at 243); State v. Barnes, 37 Kan.App.2d 136, Syl. ¶ 9, 149 P.3d 543 (2007).
Wilmer claims his appellate counsel was ineffective in failing to raise the district court's refusal to appoint substitute counsel in his direct appeal. We have found such ineffectiveness can rise to the level of exceptional circumstances,...
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