State v. Key (Supreme Court)

1

No. 104,651

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

SEAN AARON KEY,
Appellant.


SYLLABUS BY THE COURT

1.
Once a defendant pleads guilty or no contest, he or she has surrendered the right to
appeal the conviction, regardless of whether the plea is entered contingent upon a
"reservation" of appeal rights. However, the defendant may still, in limited
circumstances, appeal the sentence.

2.
If a defendant plans to challenge the validity of a prior misdemeanor driving under
the influence (DUI) conviction as a classifying factor for a DUI felony charge, he or she
must present that challenge at preliminary hearing or through a timely motion to dismiss.
If those efforts are unsuccessful, the defendant must go to trial, even if only on stipulated
facts, to preserve the argument regarding classification on appeal. If the defendant instead
enters a plea of guilty or no contest and does not file an unsuccessful motion to withdraw
the plea before the district court, appellate jurisdiction is limited to a review of the
sentence pronounced in the felony case.



2

3.
In order to properly challenge the inclusion of a prior conviction for felony
sentence enhancement purposes, the defendant must lodge an objection at sentencing. If
successful, the felony conviction will not be erased, only the enhanced felony sentence.
Subsequently, any attempts to set aside the conviction would have to be raised through a
timely K.S.A. 60-1507 motion.

4.
The denial of the right to appointed counsel and the lack of a court's subject matter
jurisdiction can be the bases upon which a court may disregard prior convictions in the
calculation of a subsequent sentence enhancement.

5.
Claims of ineffective assistance of counsel or failure to comply with Boykin v.
Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969), with regards to the due
process requirements of a plea advisory, are not allowed in a collateral attack on a prior
conviction for sentence enhancement purposes.

6.
A finding that a defendant's counsel was ineffective for entering a plea of guilty on
his or her behalf without the authority to do so does not provide an independent basis
upon which to collaterally attack the validity of a prior misdemeanor conviction used to
enhance a subsequent sentence.

7.
There is no indication that our Supreme Court is departing from its clear and
unequivocal statement in State v. Delacruz, 258 Kan. 129, Syl. ¶ 5, 899 P.2d 1042
(1995), that "[t]he right to collaterally attack prior convictions used for sentence
enhancement is limited. Only in those cases involving a denial of counsel as outlined in
3

Gideon [v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963)] is such an
attack allowed."

Appeal from Ellis District Court; EDWARD E. BOUKER, judge. Opinion on remand filed April 18,
2014. Affirmed.

Michael S. Holland II, of Holland and Holland, of Russell, for appellant.

David J. Basgall, assistant county attorney, and Derek Schmidt, attorney general, for appellee.

Before ARNOLD-BURGER, P.J., MCANANY, J., and ERNEST L. JOHNSON, District Judge
Retired, assigned.

ARNOLD-BURGER, J.: Sean Aaron Key was convicted of a third time driving
under the influence (DUI), a felony level offense. Prior to sentencing he objected to his
criminal history and challenged one of his prior misdemeanor DUI convictions as
unlawful. He proffered that his attorney pled to the charge without Key being present and
without Key's authority. The district court found that this was an impermissible collateral
attack on a prior conviction and considered the prior conviction for sentence
enhancement purposes. This court dismissed the appeal for lack of appellate jurisdiction.
Subsequently, our Supreme Court determined that this court did have jurisdiction to
determine the validity of a prior misdemeanor for sentence enhancement purposes.
However, the Supreme Court remanded the case to this court to discuss the underlying
issue presented by Key: Can an unauthorized guilty plea invalidate a prior misdemeanor
for sentencing enhancement purposes? The Supreme Court directed this court specifically
to State v. Elliott, 281 Kan. 583, 133 P.3d 1253 (2006), State v. Neal, 292 Kan. 625, 258
P.3d 365 (2011), and State v. Delacruz, 258 Kan. 129, 899 P.2d 1042 (1995). Because
our Supreme Court has not indicated that it is departing from its prior rulings that the
right to collaterally attack prior convictions used for sentence enhancement is limited to
those cases involving a denial of counsel and Key was not denied his Sixth Amendment
4

to the United States Constitution right to counsel, we find that an unauthorized guilty plea
does not invalidate a prior misdemeanor for sentencing enhancement purposes. The
decision of the district court denying Key's motion to strike his 2007 DUI conviction
from consideration for sentence enhancement purposes is affirmed.

FACTUAL AND PROCEDURAL HISTORY

On June 11, 2009, Key was charged with felony DUI. Key filed a motion to
dismiss the charge as a felony because one of his prior DUI misdemeanor convictions
was invalid. Key alleges that his attorney for that conviction pleaded guilty for Key in his
absence without Key's permission and authority. The district court found Key's motion to
dismiss was an impermissible collateral attack on his prior DUI conviction.

Key pleaded guilty to the felony DUI but reserved the right to appeal the denial of
his motion to dismiss, to challenge the use of his prior DUI conviction, and to challenge
the severity level of his sentence.

In the presentence investigation report, two prior misdemeanor DUI convictions
were listed. Key objected to the presentence investigation report, again asserting that one
of his previous misdemeanor DUI convictions, the one from Ellis County District Court,
was unlawful because his attorney pleaded guilty on his behalf without Key's consent.

At sentencing, the district court heard Key's argument pertaining to the use of his
prior misdemeanor DUI conviction to enhance the severity of his sentence. The district
court again denied Key's argument finding that Key was attempting to collaterally attack
the previous DUI conviction which was not allowed. Key was sentenced to 12 months'
imprisonment, but the district court suspended Key's sentence pending the outcome of his
appeal.

5

Key filed a timely notice of appeal. This court dismissed Key's appeal for lack of
jurisdiction because Key failed to file a motion to withdraw his guilty plea on the
previous misdemeanor DUI conviction.

Our Supreme Court granted Key's petition for review and reversed this court's
dismissal of Key's appeal on jurisdictional grounds. State v. Key, 298 Kan. 315, 312 P.3d
355 (2013). Our Supreme Court found:

"A defendant charged with felony driving under the influence (DUI) under
K.S.A. 2007 Supp. 8-1567 may challenge before the district court the validity of a prior
misdemeanor DUI used to classify the severity level of the current charge or to enhance
the sentence following conviction on the current charge. However, if the defendant pleads
guilty or no contest to the felony, the defendant will be limited on appeal to arguing the
impropriety of the prior misdemeanor's effect as a sentencing enhancement." Key, 298
Kan. 315, Syl. ¶ 1.

Thus, our Supreme Court remanded the case to this court, finding that there is
appellate jurisdiction over Key's challenge to his sentence, and asked us to rule on Key's
underlying claim. The Supreme Court restated the issue as follows:

"Should the principles underlying our decision in Elliott, Neal, and Delacruz apply to
prevent a judge from sentencing a DUI defendant to a felony sentence when one of the
prior DUI misdemeanors needed to enhance the sentence resulted from an unauthorized
guilty plea? If so, must this case be remanded to the district court for a factual
determination on whether Key's 2007 guilty plea was unauthorized, or has the State
already failed to carry its burden of proving Key's criminal history by a preponderance of
the evidence, compelling vacation of the felony sentence and remand for resentencing on
the felony DUI as a misdemeanor?" Key, 298 Kan. at 322.



6

ANALYSIS

We review the Supreme Court decision.

Pursuant to the opinion handed down by our Supreme Court in Key's case, the
court did have jurisdiction to determine the validity of Key's prior misdemeanor DUI
conviction when that conviction is used to enhance the sentence following Key's
conviction on the current charge. The court made a distinction between a challenge to the
conviction and a challenge to the sentence. Once a defendant pleads guilty or no contest,
he or she has surrendered the right to appeal the conviction. However, the defendant may
still in limited circumstances, appeal the sentence. Key, 298 Kan. at 321. This remains the
case even if the defendant enters the plea and specifically "reserves the right" to appeal
the denial of his or her motion to dismiss and the severity level of the offense, as Key
attempted to do here. The Supreme Court made it clear that if a defendant plans to
challenge the validity of a prior misdemeanor DUI conviction as a classifying factor for a
DUI felony charge, he or she must present that challenge at preliminary hearing or
through a timely motion to dismiss. 298 Kan. at 322-23. If those efforts are unsuccessful,
the defendant must go to trial, even if only on stipulated facts, to preserve the argument
regarding classification on appeal. 298 Kan. at 323. If the defendant instead enters a plea
of guilty or no contest and does not file an unsuccessful motion to withdraw the plea
before the district court, our jurisdiction is limited to a review of the sentence pronounced
in the felony case. 298 Kan. at 323.

In order to properly challenge the inclusion of the prior conviction for sentence
enhancement purposes, the defendant must lodge an objection at sentencing. If
successful, the felony conviction will not be erased, only the enhanced felony sentence.
At this point, any attempts to set aside the conviction would have to be raised through a
timely K.S.A. 60-1507 motion. 298 Kan. at 323.

7

Because Key entered a plea of guilty to a felony DUI, he cannot challenge his
conviction. He will remain convicted of a felony DUI. But he did properly lodge an
objection at sentencing, so we do have jurisdiction to consider his challenge to his
sentence enhancement.

Our standard of reviews is de novo.

Our Supreme Court has asked this court to determine the underlying issue
presented by Key: "Should the principles underlying our decision in Elliott, Neal, and
Delacruz apply to prevent a judge from sentencing a DUI defendant to a felony sentence
when one of the prior DUI misdemeanors needed to enhance the sentence resulted from
an unauthorized guilty plea?" Key, 298 Kan. at 322.

Because this is a purely legal question, this court's review is de novo. See State v.
Walker, 283 Kan. 587, 614, 153 P.3d 1257 (2007). We will begin by reviewing the cases
suggested to us by the Supreme Court and their progeny.

We review the cases to which we were referred by the Supreme Court.

We start, chronologically, with Delacruz. Our Supreme Court held that an
uncounseled misdemeanor for which a defendant is not subject to incarceration can be
included in his or her criminal history for sentence enhancement purposes. 258 Kan. 129,
Syl. ¶ 2. However, before a misdemeanor conviction which results in actual jail time may
be included in a defendant's criminal history, either the record must demonstrate that the
defendant was represented by counsel or that the defendant waived counsel. 258 Kan.
129, Syl. ¶ 7. In reaching this conclusion, our court relied on and approved of the
rationale used by the United States Supreme Court in Nichols v. United States, 511 U.S.
738, 748-49, 114 S. Ct. 1921, 128 L. Ed. 2d 745 (1994) (Uncounseled convictions that do
not result in jail time may be used for later sentence enhancement.). 258 Kan. at 135.
8

Our Supreme Court also expressly adopted the reasoning in Custis v. United
States, 511 U.S. 485, 114 S. Ct. 1732, 128 L. Ed. 2d 517 (1994), where the defendant
attempted to attack his prior convictions for sentence enhancement purposes based on
ineffective assistance of counsel, that his guilty plea was not knowing and intelligent, and
he had not been adequately informed of his right to opt for a trial on stipulated facts. The
United States Supreme Court found that none of the defendant's purported constitutional
violations rose "to the level of a jurisdictional defect resulting from the failure to appoint
counsel at all. [Citation omitted.]" Custis, 511 U.S. at 496. The denial of the Sixth
Amendment right to counsel had much earlier been described as a jurisdictional bar by
the United States Supreme Court. Johnson v. Zerbst, 304 U.S. 458, 467-68, 58 S. Ct.
1019, 82 L. Ed. 1461 (1938). Accordingly, Custis limited collateral attacks on prior
convictions to constitutional defects related solely to the appointment of counsel. 511
U.S. at 496. The Delacruz court followed suit, finding that Delacruz' contention that his
prior convictions were constitutionally infirm due to an inadequate plea colloquy—he
contended he was not advised of his rights regarding his guilty pleas and his pleas were
not knowingly and intelligently made—was not subject to review. The court opined that
allowing a collateral attack on prior convictions on the basis of inadequate plea
colloquies would force the sentencing court to look behind every conviction with
practically no record to rely on. 258 Kan. at 139.

"The determination of claims of ineffective assistance of counsel and failure to assure
that a guilty plea was voluntary would require sentencing courts, when considering
previous convictions under federal sentencing guidelines, to rummage through frequently
nonexistent or difficult to obtain state court transcripts or records that may date from
another era." 258 Kan. at 138-39.

The court in Delacruz also pointed out two additional reasons that collateral
attacks on previous convictions are limited to cases involving the denial of the right to
counsel: promoting the ease of administration and the finality of judgments.

9

As to promoting the finality of judgments, the court quoted the following from
Custis:

"'By challenging the previous conviction, the defendant is asking a district court "to
deprive [the state court judgment] of [its] normal force and effect in a proceeding that
ha[s] an independent purpose other than to overturn the prior judgmen[t]." [Citation
omitted.] These principles bear extra weight in cases in which the prior convictions, such
as one challenged by Custis, are based on guilty pleas, because when a guilty plea is at
issue, "the concern with finality served by the limitation on collateral attack has special
force." [Citation omitted.]' [Citation omitted.]" Delacruz, 258 Kan. at 139.

The Supreme Court reiterated its decision in Delacruz 1 year later in State v.
Chiles, 260 Kan. 75, 917 P.2d 866 (1996). Chiles argued that his prior conviction should
not be considered for enhancement purposes because he was not properly informed of the
consequences of his guilty plea as required by Boykin v. Alabama, 395 U.S. 238, 89 S.
Ct. 1709, 23 L. Ed. 2d 274 (1969), and K.S.A. 22-3210. Chiles, 260 Kan. at 76. The court
held, as it did in Delacruz, that "[a] defendant does not have a constitutional right to
collaterally attack a prior conviction used to enhance a current sentence unless the prior
conviction was obtained in violation of the right to counsel." 260 Kan. 75, Syl.; see also
State v. McDonald, 272 Kan. 222, Syl. ¶ 4, 32 P.3d 1167 (2001) (no constitutional right
to collaterally attack a prior conviction unless it was obtained in violation of the right to
counsel); State v. Long, 41 Kan. App. 2d 477, Syl. ¶ 2, 203 P.3d 45 (2009) (same); State
v. Allen, 28 Kan. App. 2d 784, 790, 20 P.3d 747 (2001) (same).

Next, in Elliott, the defendant challenged four prior municipal court misdemeanor
DUI convictions that were used to enhance his sentence because they should have been
considered felonies—which would have deprived the municipal court of jurisdiction. Our
Supreme Court held that a defendant can challenge a misdemeanor conviction for DUI
when it is included in the defendant's criminal history for the purpose of enhancing the
sentence for a felony DUI conviction. 281 Kan. 583, Syl. ¶ 6. In addition, the court found
10

that the defendant's third and fourth prior misdemeanor DUI convictions in municipal
court were void and could not be used to enhance a subsequent DUI offense because the
municipal court lacked subject matter jurisdiction over the cases. Elliott appears to be
limited to a discussion of subject matter jurisdiction and the general rule that subject
matter jurisdiction can be raised at any time, it cannot be waived by the parties and a
conviction that lacks jurisdiction is void. 281 Kan. 583, Syl. ¶¶ 3-4. The Elliott court does
not reference any of the federal caselaw regarding violation of constitutional rights.
However, because it did involve a jurisdictional bar, it is consistent with the holdings in
Zerbst and Custis that violation of the Sixth Amendment right to counsel is a
jurisdictional prerequisite to a valid conviction. Custis, 511 U.S. at 494; Zerbst, 304 U.S.
at 468.

And finally, in Neal, the defendant filed a motion to correct an illegal sentence
arguing that his uncounseled misdemeanor convictions were improperly combined into a
single person felony in determining his criminal history score. The Supreme Court held
that a person charged with a misdemeanor that carried a sentence of incarceration, even if
the sentence is suspended or probated, has a right to counsel. 292 Kan. at 633. This result
was required due to the United States Supreme Court's elimination of the bright line
incarceration rule in Alabama v. Shelton, 535 U.S. 654, 658, 122 S. Ct. 1764, 152 L. Ed.
2d 888 (2002), and adopted by Kansas in State v. Youngblood, 288 Kan. 659, Syl. ¶¶ 2-3,
206 P.3d 518 (2009) (also finding that an uncounseled misdemeanor conviction obtained
in violation of the misdemeanant's Sixth Amendment right to counsel may not be
collaterally used for sentence enhancement in a subsequent criminal proceeding). The
opportunity to address the issue directly arose in Neal. On the prior conviction challenged
by Neal, he had been sentenced to 3 months in jail but placed on probation and thus not
required to actually serve the jail term. The Supreme Court reiterated that if the defendant
did not receive counsel on such a misdemeanor, then that conviction cannot be used to
enhance the defendant's sentence. 292 Kan. at 632-33.

11

So clearly, we can conclude from these cases that the denial of the right to
appointed counsel and the lack of the court's subject matter jurisdiction can be the bases
upon which a court may disregard prior convictions in the calculation of a subsequent
sentence enhancement. However, claims of ineffective assistance of counsel or failure to
comply with Boykin with regard to the due process requirements of a plea advisory are
not allowed in a collateral attack of a prior conviction used for sentence enhancement
purposes in a subsequent conviction.

Since the Custis decision, the United States Supreme Court has reaffirmed the
limitation on collateral challenges in two cases, Daniels v. United States, 532 U.S. 374,
121 S. Ct. 1578, 149 L. Ed. 2d 590 (2001), and Lackawanna County District Attorney v.
Coss, 532 U.S. 394, 121 S. Ct. 1567, 149 L. Ed. 2d 608 (2001). In Daniels, the Court
held that a federal prisoner could not challenge his federal sentence under 28 U.S.C. §
2255 (motion to vacate sentence) on the non-Gideon ground that his prior convictions
were unconstitutionally obtained. Daniels, 532 U.S. at 376; see Gideon v. Wainwright,
372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963). That same term, the Court extended
the Custis holding to state prisoners seeking to challenge enhanced state sentences
pursuant to 28 U.S.C. § 2254 (federal habeas corpus). In Coss, the Court stated:

"[W]e hold that once a state conviction is no longer open to direct or collateral attack in
its own right because the defendant failed to pursue those remedies while they were
available (or because the defendant did so unsuccessfully), the conviction may be
regarded as conclusively valid. [Citation omitted.] If that conviction is later used to
enhance a criminal sentence, the defendant generally may not challenge the enhanced
sentence through a petition under [28 U.S.C.] § 2254 on the ground that the prior
conviction was unconstitutionally obtained." 532 U.S. 403-04.

But, as in Custis, because the failure to appoint counsel under the Sixth
Amendment is a unique circumstance that warrants special treatment among alleged
constitutional violations, it is the only claim that can be raised in a collateral challenge to
12

sentence enhancement. Coss, 532 U.S. at 404. That said, the United States Supreme
Court did leave a small door open in both Coss and Daniels for the "rare [case] in which
no channel of review was actually available to a defendant with respect to a prior
conviction, due to no fault of his own." Daniels, 532 U.S. at 383; see Coss, 532 U.S. at
405-06. In both Daniels and Coss the United States Supreme Court again emphasized the
overarching considerations of preserving the integrity and finality of the prior judgment
and ease of administration. Daniels, 532 U.S. at 379-80; Coss, 532 U.S. at 402-03.

In addition, the majority of state supreme courts that have faced this question have
concluded that the reasoning of Custis is sound. "They have concluded that the right to
collaterally attack a conviction that will enhance a new charge or sentence should be, for
solid constitutional and policy reasons, limited to a claim that the defendant was deprived
of the fundamental Sixth Amendment right to counsel." State v. Johnson, 38 A.3d 1270,
1275 (Me. 2012) (listing at least 11 states—including Kansas with Delacruz—that have
expressly or implicitly adopted the Custis framework). Only two states, Montana and
California, have specifically rejected Custis by significantly expanding the right to
collaterally attack prior convictions. Johnson, 38 A.3d at 1275 n.7; see also State v.
Weber, 140 Idaho 89, 94-95, 90 P.3d 314 (2004) (listing Kansas among the states that
align with Custis based upon the Kansas Supreme Court decisions in Chiles and
Delacruz).

We apply the law to the facts of this case.

Key likens his argument in this case, that the plea he entered in 2007 was
unauthorized, to these prior cases. In other words, because the decision to plead and the
choice of plea is a fundamental right guaranteed to a criminal defendant, a denial of that
right should invalidate the conviction upon which it is based. Thompson v. State, 293
Kan. 704, 720, 270 P.3d 1089 (2011) (choice of plea is one of the few decisions about the
conduct of a criminal case that rests entirely with the client); State v. Bricker, 292 Kan.
13

239, 252, 252 P.3d 118 (2011) (citing State v. Carter, 270 Kan. 426, 441, 14 P.3d 1138
[2000], for proposition that decision to enter a plea of guilty or not guilty to a criminal
charge is a fundamental constitutional right guaranteed to a defendant and lies solely with
the defendant).

So we return to the initial question. Is Key correct? Should the principles
underlying Elliott, Neal, and Delacruz apply to prevent a judge from sentencing a DUI
defendant to a felony sentence when one of the prior DUI misdemeanors needed to
enhance the sentence resulted from an unauthorized guilty plea? Key, 298 Kan. at 322.
Our answer is, no.

Clearly, the decision to enter a guilty or not guilty plea to a criminal charge is a
fundamental constitutional right guaranteed to the defendant and lies solely with the
defendant. Carter, 270 Kan. at 441. A defendant's tacit acquiescence in the decision to
plead is insufficient to render the plea valid. Florida v. Nixon, 543 U.S. 175, 187-88, 125
S. Ct. 551, 160 L. Ed. 2d 565 (2004) (citing Boykin, 395 U.S. at 242). A plea of guilty
entered by counsel has the same force and effect as a plea personally entered by the
accused, where the accused is present in court "when counsel enters the plea and the
circumstances are such as to show clearly that the accused understands what is being
done and acquiesces therein." State v. Spain, 193 Kan. 1, 4-5, 391 P.2d 1001 (1964)
(defendant remained silent while counsel entered plea to a felony).

But in misdemeanor cases, the court may allow the defendant to appear and plead
by counsel. K.S.A. 22-3210(b). Similarly, K.S.A. 22-3405 requires that the defendant be
present at every stage of a felony case but allows the defendant to be present either
personally or by counsel at every stage of a misdemeanor case. See also K.S.A. 12-4402
(allowing municipal judge, at his or her discretion, to require defendant's appearance on a
DUI or allow appearance and plea through counsel or by mail); K.S.A. 12-4407 (Upon a
guilty plea, the municipal judge "may hear evidence touching on the nature of the case, or
14

otherwise ascertain the facts thereof" and may accept the plea or refuse to accept the
plea.). So if the misdemeanor plea is authorized by the defendant, it can be entered in
abstentia through his or her attorney.

Key alleges that he did not authorize his attorney to enter a guilty plea. He claims
he was not present and did not even know his attorney was entering a plea on his behalf.
A review of the record provides some support for his claim. The journal entry of
sentencing indicates that Key appeared by his attorney John Boone. The plea and
sentence contained in the journal entry are only signed by his attorney. The signature line
for Key is blank.

However, it is undisputed that he did have an attorney, so there is no Sixth
Amendment Gideon violation here. He does not contend that he did not want to plead
guilty or that he would have been acquitted had he gone to trial. He did not appeal his
conviction. He did not seek to withdraw his plea. In fact, he served his sentence. Because
there is no allegation that he did not comply with his sentence, we assume he successfully
completed his 1-year probation period and paid his fines. He did not challenge the
jurisdiction of the court. He proffers no reason for not challenging his conviction if he
believed his plea to be without his permission or knowledge. He does not claim that there
was anything beyond his control that prevented him from a timely challenge to his
conviction and sentence in 2007.

We find no cases that elevate the entry of an unauthorized guilty plea to the same
level as denial of the Sixth Amendment right to counsel. It is, for all purposes, an
ineffective assistance of counsel claim. The decision to enter a plea is but one of many
fundamental rights at stake in a criminal conviction. Certainly, the right to counsel
includes the effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686,
104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Counsel can deprive a defendant of effective
assistance by failing to render "'adequate legal assistance.'" 466 U.S. at 686. Thus, the
15

adversarial process protected by the Sixth Amendment requires that the accused have
"counsel acting in the role of an advocate." Anders v. California, 386 U.S. 738, 743, 87 S.
Ct. 1396, 18 L. Ed. 2d 493 (1967). But even in Carter, the court found that imposing a
guilt-based defense against defendant's wishes violated defendant's fundamental right to
enter a plea of not guilty and accordingly "deprived the defendant of effective assistance
of counsel." (Emphasis added.) 270 Kan. 426, Syl. ¶ 4.

Our Supreme Court has not been hesitant to reverse convictions upon a finding
that counsel was ineffective. See State v. Cheatham, 296 Kan. 417, 419-20, 447, 292 P.3d
318 (2013) (counsel repeatedly referred to client as a "'professional drug dealer'" and
"'shooter of people'"; voluntarily disclosed prior manslaughter conviction to the jury;
advised the jury that ignoring client's background when determining guilt would require
"'some sort of superhuman fiction'"; and had a conflict of interest). Key's claim that his
attorney entered a plea to a misdemeanor without his knowledge, to which he later
acquiesced by serving the 5-day jail sentence, pales in comparison to Cheatham's
attorney's actions in his capital murder trial. If true, both constitute ineffective assistance
of counsel and our Supreme Court, as well as the United States Supreme Court, has
consistently rejected claims that ineffective assistance of counsel can be the basis for a
collateral challenge to a subsequent sentence enhancement.

Moreover, to expand consideration of such collateral attacks to the denial of
"fundamental rights" beyond the right to appointment of counsel opens a floodgate of
potential claims and the erosion of the concept of finality of judgments. As the court
feared in Delacruz, it would force the sentencing court to look behind every conviction
with practically no record to rely on. 258 Kan. at 139; see State v. Larraco, 32 Kan. App.
2d 996, 999, 93 P.3d 725 (2004) ("There is no more fundamental right in the United
States than the right to a jury trial."); State v. Roland, 15 Kan. App. 2d 296, 300-01, 807
P.2d 705 (1991) (reversing conviction because counsel agreed to an 11-member jury
when one member was allowed to leave due to a family death, but defendant was not
16

consulted); State v. Cox, 297 Kan. 648, 656-57, 304 P.3d 327 (2013) (violation of Sixth
Amendment fundamental right to public trial requires reversal).

The United States Supreme Court has not expanded its ruling in Custis, instead it
has continued to limit it solely to cases involving the denial of appointed counsel. The
rationale for such a limitation was subsequently expressed in Daniels and Coss. We find
this approach to be sound. As the Supreme Court stated in Daniels,

"a defendant generally has ample opportunity to obtain constitutional review of a state
conviction. [Citation omitted.] But once the 'door' to such review 'has been closed,'
[citation omitted] by the defendant himself—either because he failed to pursue otherwise
available remedies or because he failed to prove a constitutional violation—the
conviction becomes final and the defendant is not entitled to another bite at the apple
simply because that conviction is later used to enhance another sentence." 532 U.S. at
383.

Expanding the situations in which a defendant can collaterally attack a prior
conviction "provide convicted defendants an incentive to forego a timely appeal or
petition for post-conviction review, knowing that they will never lose the ability to
challenge the validity of the conviction if, in the future, it is relied upon by the State to
enhance a new criminal charge." Johnson, 38 A.3d at 1278. Our system of justice should
encourage the predictable and timely completion of criminal cases, not provide
defendants with an incentive to delay exercising their rights to appellate and post-
conviction review. See also State v. Boskind, 174 Vt. 184, 192, 807 A.2d 358 (2002)
("We fail to see how the defendant, judicial administration, or justice are served by a
system that provides incentives for defendants . . . to ignore alleged constitutional
violations at the time they take place in the belief that some tactical advantage may be
gained by challenging a conviction remote in time.").

17

The Court of Appeals is duty bound to follow Kansas Supreme Court precedent,
absent some indication the court is departing from its previous position. See Friends of
Bethany Place v. City of Topeka, 297 Kan. 1112, 1130, 307 P.3d 1255 (2013). We find
that based upon our Supreme Court's clear direction in Delacruz, Chiles, McDonald,
Elliott, and Neal, as well as the United States Supreme Court decisions in Custis, Daniels,
and Coss, a claim that a defendant's counsel was ineffective for entering a plea of guilty
on his or behalf without the authority to do so does not provide an independent basis
upon which to collaterally attack the validity of a prior misdemeanor conviction used to
enhance a subsequent sentence. We find nothing in the decisions of our Supreme Court to
indicate it is departing from its clear and unequivocal statement in Delacruz that "[t]he
right to collaterally attack prior convictions used for sentence enhancement is limited.
Only in those cases involving a denial of counsel as outlined in Gideon is such an attack
allowed." Delacruz, 258 Kan. 129, Syl. ¶ 5.

Key had ample opportunity to raise this claim in 2007 as a direct appeal or a
motion to withdraw his plea, or subsequently, in a proceeding under K.S.A. 60-1507. He
may have been successful. But he is not entitled, under current federal and Kansas
jurisprudence, to a second bite of the apple.

Accordingly, the decision of the district court denying Key's motion to strike his
2007 DUI conviction from consideration for sentencing enhancement purposes is
affirmed.

Affirmed.